Ludecke v. Watkins/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice MURPHY and Mr. Justice RUTLEDGE, concur, dissenting.

I do not agree that the sole question open on habeas corpus is whether the petitioner is in fact an alien enemy.  That delimitation of the historic writ is a wholly arbitrary one. I see no reason for a more narrow range of judicial inquiry here than in habeas corpus arising out of any other deportation proceeding.

It is undisputed that in peacetime an alien is protected by the due process clause of the Ff th Amendment. Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140. Federal courts will then determine through habeas corpus whether or not a deportation order is based upon procedures affording due process of law. United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed. 560. In deportation proceedings due process requires reasonable notice (Tisi v. Tod, 264 U.S. 131, 134, 44 S.Ct. 260, 261, 68 L.Ed. 590), a fair hearing (Bridges v. Wixon, 326 U.S. 135, 156, 65 S.Ct. 1443, 1453, 89 L.Ed. 2103; Chin Yow v. United States, 208 U.S. 8, 12, 28 S.Ct. 201, 202, 52 L.Ed. 369; Low Wah Suey v. Backus, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed. 1165), and an order supported by some evidence. Vajtauer v. Commissioner, supra, 273 U.S. page 106, 47 S.Ct. at page 303, 71 L.Ed. 560; Zakonaite v. Wolf, 226 U.S. 272, 274, 33 S.Ct. 31, 32, 57 L.Ed. 218. And see Kwock Jan Fat v. White, 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010.

The rule of those cases is not restricted to instances where Congress itself has provided for a hearing. The Japanese Immigrant Case (Kaoru Yamataya v. Fisher), 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721, decided in 1903, so held. The Court in that case held that due process required that deportation be had only after notice and hearing even though there, as here, the statute prescribed no such procedure but entrusted the matter wholly to an executive officer.  Consistently with that principle we held in Bridges v. Wixon, supra, that a violation of the rules governing the hearing could be reached on habeas corpus, even though the rules were prescribed not by Congress but by the administrative agency in charge of the deportation proceeding. We stated, 326 U.S. page 154, 65 S.Ct. page 1452, 89 L.Ed. 2103,

'We are dealing here with procedural requirements prescribed for the protection of the alien. Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty-at times a most serious one-cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.'

The same principles are applicable here. The President has classified alien enemies by regulations of general applicability and has authorized deportation only of those deemed dangerous because they have adhered to an enemy government, or the principles thereof. Petitioner was in fact given a hearing in 1945 before the Repatriation Hearing Board in addition to one in 1942 before the Alien Enemy Hearing Board. The order for his deportation recites that 'upon consideration of the evidence presented' before those Boards, the Attorney General, in the words of the Proclamation, dees  petitioner 'to be dangerous to the public peace and safety of the United States because he has adhered to a government with which the United States is at war or to the principle thereof.' Those findings and conclusions and the procedure by which they were reached must conform with the requirements of due process. And habeas corpus is the time-honored procedure to put them to the test.

The inquiry in this type of case need be no greater an intrusion in the affairs of the Executive branch of government than inquiries by habeas corpus in times of peace into a determination that the alien is considered to be an 'undesirable resident of the United States.' See Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. Both involve only a determination that procedural due process is satisfied, that there be a fair hearing, and that the order be based upon some evidence.

The needs of the hour may well require summary apprehension and detention of alien enemies. A nation at war need not be detained by time-consuming procedures while the enemy bores from within. But with an alien enemy behind bars, that danger has passed. If he is to be deported only after a hearing, our constitutional requirements are that the hearing be a fair one. It is foreign to our thought to defend a mock hearing on the ground that in any event it was a mere gratuity. Hearings that are arbitrary and unfair are no hearings at all under our system of government. Against them habeas corpus provides in this case the only protection.

The notion that the discretion of any officer of government can override due process is foreign to our system. Due process does not perish when war comes. It is well established that the war power does not remove constitutional limitations safeguarding essential liberties. Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. 

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