8. World War II and the demise of the Great Writ

Abstract This chapter explores the role of habeas corpus during World War II in the US and Great Britain. On the American side, the chapter details how suspension ruled in the Hawaiian Territory but the mass incarceration of Japanese Americans on the mainland followed in the absence of a suspension under Executive Order 9066. As the chapter details, this happened even though lawyers counselled President Franklin D. Roosevelt that doing so would violate the Suspension Clause. The chapter continues by contrasting the experience in Britain, where Prime Minister Winston Churchill led the push to retreat from its citizen detention program under Regulation 18B and restore a robust habeas privilege. The chapter also compares habeas decisions rendered by the high courts in both countries while asking larger questions about what can be learned from these events.