Mr. Justice BLACK, with whom Mr. Justice DOUGLAS, Mr. Justice MURPHY and Mr. Justice RUTLEDGE join, dissenting.
The petition for habeas corpus in this case alleged that petitioner, a legally admitted resident of the United States, was about to be deported from this country to Germany as a 'dangerous' alien enemy, without having been afforded notice and a fair hearing to determine whether he was 'dangerous.' The Court now holds, as the Government argued that because of a presidential proclamation, petitioner can be deported by the Attorney General's order without any judicial inquiry whatever into the truth of his allegations. The Court goes further and holds, as I understand its opinion, that the Attorney General can deport him whether he is dangerous or not. The effect of this holding is that any unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany before coming here, can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the United States has any power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General's deportation order. Mr. Justice DOUGLAS has given reasons in his dissenting opinion why he believes that deportation of aliens, without notice and hearing, whether in peace or war, would be a denial of due process of law. I agree with Mr. Justice DOUGLAS for many of the reasons he gives that deportation of petitioner without a fair hearing as determined by judicial review is a denial of due process of law. But I do not reach the question of power to deport aliens of countries with which we are at war while we are at war, because I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction. Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the President or the Attorney General, one or both, can deport aliens without a fair hearing reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported.
The Court relies on the Alien Enemy Act of 1798. 1 Stat. 577, 50 U.S.C. §§ 21-24, 50 U.S.C.A. §§ 21-24. That Act did grant extraordinarily broad powers to the President to restrain and 'to provide for the removal' of aliens who owe allegiance to a foreign government, but such action is authorized only 'whenever there is a declared war between the United States' and such foreign government, or in the event that foreign government attempts or threatens the United States with 'any invasion or predatory incursion.' The powers given to the President by this statute, I may assume for my purposes, are sufficiently broad to have authorized the President acting through the Attorney General to deport alien Germans from this country while the 'declared' second World War was actually going on, or while there was real danger of invasion from Germany. But this 1798 statute, unlike statutes passed in later years, did not expressly prescribe the events which would for statutory purposes mark the termination of the 'declared' war or threatened invasions. See Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 165, note 1, 40 S.Ct. 106, 111, 64 L.Ed. 194. In such cases we are called on to interpret a statute as best we can so as to carry out the purpose of Congress in connection with the particular right the statute was intended to protect, United States v. Anderson, 9 Wall. 56, 69, 70, 19 L.Ed. 615; The Protector, 12 Wall. 700, 702, 20 L.Ed. 463, or the particular evil the statute was intended to guard against. McElrath v. United States, 102 U.S. 426, 437, 438, 26 L.Ed. 189. See Judicial Determination of the End of the War, 47 Col.L.Rev. 255.