Ebel v. Drum

• Decision Date: 20 September 1943
• Docket Number: Civil Action No. 2290.
• Parties: EBEL v. DRUM et al.
• Court: U.S. District Court — District of Massachusetts

52 F. Supp. 189

EBEL v. DRUM et al.

Civil Action No. 2290.

District Court, D. Massachusetts.

September 20, 1943.

Jacob Friedberg and J. C. Johnston, both of Boston, Mass., for plaintiff.

Edmund J. Brandon, U. S. Atty., of Boston, Mass., and John L. Burling and Nanette Dembitz, Attys. War Division Department of Justice, both of Washington, D. C., for defendants.

FORD, District Judge.

Lieutenant General Hugh A. Drum of the United States Army, Military Commander of the Eastern Military Command, on April 23, 1943, issued an "Individual Exclusion Order" prohibiting the plaintiff from entering or remaining in the Eastern and other military areas comprising a large portion of the United States which had been designated in public proclamations by commanding generals throughout the United States.

The plaintiff brought this present complaint which seeks to restrain the defendants¹ from expelling the plaintiff from the Eastern Military Area where he resides, "or from in any other manner interfering with or circumscribing the liberty and freedom without due process of law", with a further prayer that the exclusion order be declared void. In his complaint the plaintiff alleges he has at all times been loyal to the United States.

No question is raised by the defendants with respect to the jurisdiction of this court concerning the matters involved in the present case.

Although the plaintiff's complaint alleges that his rights under the Fifth and Sixth Amendments to the Constitution have been and are about to be violated, yet at the time of final hearing—request for a preliminary injunction being waived by stipulation of the defendants that the liberty of the plaintiff would not be interfered with until the decision of this court on the merits had been handed down—the plaintiff through his counsel stated that his sole reliance for relief was now based on the due process clause of the Fifth Amendment to the Constitution of the United States.

The defendants' answer, in sum, asserts that the exclusion order was justified by military necessity and that neither the action of the military commander in issuing the order, nor any action contemplated as a consequence of its issuance, in any way has or will violate any rights accorded the plaintiff under the Constitution of the United States.

The evidence at the hearing was documentary and oral, and it showed the following facts:

War was declared by Congress against Japan December 8, 1941; against Germany and Italy on December 11, 1941.

On February 19, 1942, the President issued Executive Order No. 9066, 7 Fed.Reg. 1407, reciting: "* * * the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104 50 U.S.C.A. § 104)." By virtue of the authority vested in him as President and Commander in Chief of the Army and Navy, the President purported to "authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe the military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion".

On April 22, 1942, the Secretary of War designated Lieutenant General Hugh A. Drum as Military Commander of the Eastern Defense Command² and he directed the Military Commander to carry out the duties and responsibilities imposed by Executive Order No. 9066 for that portion of the United States embraced in the Eastern Defense Command.

On May 15, 1942, General Drum promulgated Proclamation No. 1, reciting: "The present situation requires as a matter of military necessity the establishment, in the territory embraced in the Eastern Defense Command within the continental United States, of Military Areas, and for that purpose, I do hereby prescribe all of the territory in the several States of the United States lying east and northeast of the westerly boundary line of the Eastern Defense Command, including the States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, part of the State of Florida, and the District of Columbia, to be a Military Area and to be designated as the Eastern Military Area".

On September 7, 1942, General Drum promulgated Public Proclamation No. 2, reciting that a person whose presence in the Eastern Military Area is deemed dangerous to the national defense will be excluded therefrom.

The Congress by the Act of March 21, 1942, 18 U.S.C.A. § 97a, 56 Stat. 173, provided that: "Whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor * * *."

On April 23, 1943, General Drum issued the exclusion order involved here, reciting that the action was taken pursuant to a determination made in accordance with the provisions of paragraph 9a of Public Proclamation No. 2 (supra) and was dictated by military necessity. By its terms it prohibited the plaintiff after expiration of ten days from the date of its service from entering or remaining in the Eastern Military Area; the Western Military Areas (Arizona, California, Oregon and Washington); Military Area No. 1 of Florida; Alabama, Mississippi, Louisiana, Texas, and New Mexico; the Sault Ste. Marie Military Area (Chippewa and Mackinac Counties, Michigan, and their contiguous islands and waters). A further requirement in the exclusion order was that the plaintiff should report in three days after the service of the order to the First Service Command for the purposes of being photographed, fingerprinted, and furnishing a specimen signature. There were other requirements not material here with an admonition that failure to comply would subject the plaintiff to forcible expulsion and prosecution under Section 97a, 18 U.S. C.A.

On April 29, 1943, the plaintiff instituted these proceedings.

At the hearing in this court, the evidence introduced through officers of Military Intelligence showed that the Eastern Military Area since the beginning of hostilities and up to the present date is known as a "sensitive area" (an area in which are located large concentrations of war-time installations or activities and also an area in which observation can be made and information valuable to the enemy can readily be obtained); that the area is open to offensive action and maneuvers; that it is exposed to direct attack by air and because of tremendous amount of war installations and utilities exposed to sabotage. The evidence further showed that the area covering less than 14% of the land area of the United States includes about 40% of the population and over 60% of all plants manufacturing tools. There is also contained in this area a major portion of war-time installations and naval activities. It is the seat of the federal government and installations of management over communications. There are vast freight movements of supplies and equipment passing over its transportation lines; ship movements of men and supplies with their convoys and naval activities are easily discernible in this area.

At the close of the evidence showing the "sensitivity" of the Eastern Military Area, the defendants introduced in evidence the original record in the exclusion proceedings before the different agencies of the Eastern Defense Command from which the names of confidential informants, the discussion of the source of their information, and other reports revealing information and investigation technique, such as reports of the Federal Bureau of Investigation, were deleted. This record showed that for sometime prior to the issuance of the exclusion order by General Drum the plaintiff's pro-Nazi activities—all before the commencement of the present hostilities—had been reviewed and passed upon in twenty-four separate steps.

In the intermediary stages of the proceedings, the plaintiff was afforded a hearing. On September 25, 1942, at Boston, before a board comprised of three officers of high rank, he was given the opportunity of showing cause why he should not be excluded from the Eastern Military Area. Previous to this hearing, notice had been sent on September 21, 1942, and received by the plaintiff in which he was notified that an inquiry was in progress "to consider the question whether military necessity" required his exclusion from the Eastern Military Area and that he would be afforded full opportunity to produce witnesses and present evidence in his own behalf. He had no knowledge before he received this notice that an investigation was being conducted. The notice further stated he could refuse to answer any question without assigning a specific reason for the refusal and he was given permission to have an adviser accompany him. No opportunity for cross-examination of witnesses was afforded him, nor was he informed of the nature and cause of the accusations...