The Roosevelt Administration feared 5th columnist sabotage and worried about the effects of total war on the American people well before the United States entered World War II after the Japanese bombing of Pearl Harbor on December 7, 1941. Its thinking on the subject before and immediately after the Pearl Harbor Attack is contained in a remarkable collection of speeches by Assistant Attorney General for the Criminal Division Wendell Berge and Attorney General Francis Biddle. These speeches have been stored away in the U.S. Department of Justice library for seven decades and have not been forgotten, but they offer some insights for thinking about civil rights and civilian participation in total war today that make them worth a read today. You may be very surprised about these forgotten efforts of the U.S. Department of Justice during World War II. A citation, summary by this author, and the original speech follow below.
“Civil Liberties During National Emergency,” Remarks of Wendell Berge, Assistant Attorney General, Criminal Division, U.S. Department of Justice to Foreign Policy Association Forum, The Waldorf Astoria, New York, New York, October 25, 1941, 3:00 PM. (Source: USDOJ Library, Washington, D.C.)
Summary: Defense of freedom in the context of total war. Individual liberties are exposed to greater dangers during times of national emergency. Government must create confidence through solid operations, showing restraint, and avoiding irresponsible enforcement. Avoid extremes of actions against aliens as a class. Registration of foreign agents reduces confusion as spies. Government must answer foreign propaganda against the United States. Avoid suppression of speech, no matter how sensational the accusations.
“Civil Liberties After A Year of War,” Remarks of Wendell Berge, Assistant Attorney General, Criminal Division, U.S. Department of Justice to the Annual Meeting of the Chicago Civil Liberties Committee, Grand Ballroom, Hotel Sherman, Chicago, Illinois, January 23, 1943.
Summary: The greater threat to civil rights is the threat to civilization. To protect civil liberties the United States must win both the war and the war censorship of information within the country is voluntary, but legally enforced outside the borders. The line between legitimate criticism of government and sedition is difficult to draw. The contribution of civilians to the war effort is important. Propaganda is a weapon of the enemy hampering that effort. Some types of utterances by fighting people cannot be permitted. That courts are operating normally is key evidence presented as evidence that the government is not being overly enthusiastic in pursuing cases of sedition. Religious freedom continues with minor disturbances where Jehovah’s Witnesses would not salute the flag. Freedom of movement, and actions as consumers and producers are affected during the war time, but not the fundamental rights. The goal is to build an even broader basis for civil rights in the post-war world.
“The Enforcement of Federal Criminal Laws Relating to National Defense,” Remarks of Wendell Berge, Assistant Attorney General, Criminal Division, U.S. Department of Justice to the Annual Meeting, American Bar Association, Criminal Law Section, Indianapolis, Indiana, October 1, 1941, 2:00 PM.
[The website author did not copy the text of this speech. However, the speech is nearly identical to the other speech of October 25, 1941. This speech was the first of the FDR Justice Department’s civil rights in wartime speeches.]
Summary: No one can escape the impact of total war.
“The Enforcement of the Criminal Laws of the United States in Time of War,” Address of Wendell Berge, Assistant Attorney General of the United States to the American Bar Association, Criminal Law Section, Book-Cadillac Hotel, Detroit, Michigan, 2:00 PM, August 25, 1942.
Summary: Internal security is the first concern of the U.S. Department of Justice. A program is ready for internment of those regarded as a threat to national security. Denaturalization program to remove the citizenship of those in the U.S. for no good purpose – not just those who committed criminal acts. Criminal laws will apply to native-born citizens committing crimes of espionage. The United States is engaged in total war with spies operating among the citizens. The Foreign Agent Registration Act was passed and transferred to the U.S. Department of Justice to make clear who are those representing foreign governments. New provision of the Act require that all political propaganda is to be registered with the Library of Congress. For several months after the Pearl Harbor Attack no charges of sedition were brought by the Department. Prosecutors must be careful to distinguish between seditious utterance and legitimate criticism of the U.S. Government. The Department ignored prosecution of those with small audiences and concentrated on those writing and speaking to large audiences and flagrant cases. For the first time, saboteurs are viewed as having arrived at U.S. shores. Prosecution for aiding and comforting the enemy will be based on four factors: allegiance of defendant owing to the U.S., enemy character of person aided, intent, and overt act to further hostile design of enemy. Treason is a rare crime in history and requires two witnesses to each overt act. Berge cautiously encouraged criminal procedures to speed trials during war time as merited by the case. Indictments should be written in as short and specific of language as possible.
Francis Biddle, Attorney General of the United States, Address to the Fifty-Third Annual Dinner, Brooklyn Bar Association, Hotel St. George, Brooklyn, New York, February 5, 1942. U.S. Department of Justice Library, Washington, D.C.
Summary: In times of war, the state becomes cohesive. In times of peace, lawyers are officers of the court, in times of war they become officers of the state. The bundle of traditions lawyers are concerned with are found in the Bill of Rights. The Attorney general must balance between being too harsh against aliens and intrusion into the privacy of citizens.
Francis Biddle, Attorney General of the United States, Address to the U.S. Conference of Mayors, Mayflower Hotel, Washington, D.C. Monday, January 12, 1942, 2:30 PM. U.S. Department of Justice Library, Washington, D.C.
Summary: Civilians are not brought face to face with the enemy but nevertheless are brought to battle stations in this war. We are resolved to keep our standards of life in the face of all-out barbarity. The U.S. Department of Justice has the responsibility of stamping out fifth column activities including espionage and sabotage. The United States has put into place new machinery to carry out these duties. Some communities have enacted misguided ordinances against aliens. Industries and schools should protect our democratic ideals. Mayor LaGuardia had sent a letter to all mayors outlining four points of how mayors should respond to aliens and how to behave during the war.
Francis Biddle, Attorney General of the United States, “Identification of Alien Enemies,” a radio address on Sunday, February 1, 1942, 7:15 PM, over the Columbia Broadcasting System from Washington, D.C. U.S. Department of Justice Library, Washington, D.C.
Summary: Announcement of a new program beginning February 2, 1942 to identify all German, Italian, and Japanese aliens 14 years or older living in the United States. It is a program of personal identification in which all such persons will receive an identity card that will be used to protect them from injustice, mistaken identity, and persecution. It also restrains aliens who may attempt to violate our laws. A year ago the United States required registration of all aliens from all origins. Five million aliens were registered with 1.1 million from Germany, Italy, and Japan. Because of a disloyal few, the many must be inconvenienced. The program does not single out individuals, but makes checks possible. The West Coast will be addressed first to secure it, because the Administration will not take chances. Care should be taken not to persecute aliens and to drive them into fifth column operations against the United States. The alien of today is the citizen of tomorrow.
Francis Biddle, Attorney General of the United States, Address on the occasion of the 150th Anniversary of the Bill of Rights at the Dedication Ceremonies of the Thomas Jefferson Room, Library of Congress Annex, Monday, December 15, 1941, 3:30 PM. Broadcast by the Columbia Broadcasting System. U.S. Department of Justice, Washington, D.C.
Summary: War is a test as to whether democracies can remain free. The Japanese attack was a bombardment of the American Way of Life as much as upon Pearl Harbor itself. War threatens all civil rights – for those who are with us as well as those who are not. We must carry forward into this new conflict the living words and spirit of Thomas Jefferson and James Madison.