Clark offered little insight into how he would designate certain people as disloyal for purposes of internment. He simply said “If these people are radicalized and they don’t support the United States and they are disloyal to the United States as a matter of principle, fine. It’s their right and it’s our right and obligation to segregate them from the normal community for the duration of the conflict.”
It is not clear how Clark rationalizes his recognition of a protected right with internment for exercise of that right. He seemed to go further in stating that “We have got to identify the people who are most likely to be radicalized. We’ve got to cut this off at the beginning. I do think on a national policy level we need to look at what self-radicalization means because we are at war with this group of terrorists.” He also seemed to encourage the same measures throughout the West: “not only the United States but our allied nations like Britain, Germany and France are going to have to look at their domestic law procedures.”
As always, in this concurrent, Justice Felix Frankfurter seemed eager to surrender authority of the judiciary:
According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear, and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center . . .
The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. . . . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as “an unconstitutional order” is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are, of course, very different. . . . If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And, being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. . . . To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.
It was Justice Murphy who correctly called the camps as part of “the ugly abyss of racism,” and an example of “the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”
Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.