Chapter V: The Deportations (1)

That imprisonment should continue an hour longer than it ought
by law, or that there should be constraint of limb or voice that
the law does not allow, is ever a consideration that should call
off courts of justice from the ordinary deliberations on matters
of property, however great, until this question be determined and
this great wrong, if it be one, be redressed.—WILLIAM M. EVARTS,
_Argument in the Lemmon Slave Case_.

As long as Congress refuses to follow the disastrous precedent of 1798 and enact a peace-time Sedition Law, the government cannot do much to suppress “evil-thinking” among citizens of the United States. It is not entirely powerless, for violent anarchistic books and periodicals can be excluded from the mails, and the Espionage Act will remain in force as long as we are at war with Germany; in other words, for an indefinite future. As we have seen, Mr. Burleson has not scrupled to use it in his effort to wreck the _New York Call_, and Mr. Palmer, while professing to limit the Act to “acts and utterances which tended to weaken the waging of actual hostilities,”[356] prosecuted and convicted Socialists for requesting an amnesty for political prisoners months after the armistice, and closed up the _Seattle Union-Record_ a year after the last shot was fired. The outcry which these high-handed acts have drawn from even the conservative press has deterred the Attorney General from much independent action, though his agents are frequently reported as co-operating with state officials in raids under local anarchy acts on radical headquarters.

[356] Investigation Activities of the Department of Justice, 6.

In the absence of a new Sedition Law against radical citizens, the government has seized upon the new Alien Law and used it with relentless vigor. The first conspicuous event was the sailing of the transport “Buford” on December 21, 1919, with two hundred and forty-nine Russians. This was followed in January by a carefully prepared round-up in all parts of the country in which over four thousand persons were arrested under deportation charges.

While the right of the Federal Government to punish sedition is open to serious doubt, there can be no question of its affirmative power to exclude aliens from this country or to deport them even though they are admitted. Although no clause in the Constitution expressly gives this power, it has been held by the United States Supreme Court in the Chinese Exclusion Cases to be an incident of the sovereignty and right of self-preservation necessarily conferred by the Constitution upon the government it created.[357]

[357] Nishimura Ekiu _v._ U. S., 142 U. S. 651, 659 (1892); see other cases in 1 Willoughby on the Constitution, 251 ff.

I. _The Statute as to Deportable Radicals_

Various classes of aliens besides the Chinese have long been subject to exclusion and expulsion for such obvious objections as conviction of crime, insanity, pauperism, etc., but it was not until 1903 that the possession or expression of opinions was first made a disqualification. In consequence of the death of President McKinley, Congress refused entry to the United States to anarchists, persons advocating the forcible overthrow of our government or all government, or the assassination of public officials, as well as persons disbelieving in or opposed to all organized government or belonging to organizations teaching such disbelief or opposition.[358] Other types of extreme radicals were added by subsequent legislation.[359] The present statute, enacted toward the close of the war, specifies the following proscribed classes:[360]

Aliens who are anarchists; aliens who believe in or advocate the
overthrow by force or violence of the Government of the United
States or of all forms of law; aliens who disbelieve in or are
opposed to all organized government; aliens who advocate or
teach the assassination of public officials; aliens who advocate
or teach the unlawful destruction of property; aliens who are
members of or affiliated with any organization that entertains
a belief in, teaches, or advocates the overthrow by force or
violence of the Government of the United States or of all forms
of law, or that entertains or teaches disbelief in or opposition
to all organized government, or that advocates the duty,
necessity, or propriety of the unlawful assaulting or killing of
any officer or officers, either of specific individuals or of
officers generally, of the Government of the United States or of
any other organized government, because of his or their official
character, or that advocates or teaches the unlawful destruction
of property.

[358] Act, March 3, 1903, e. 1012, §§ 2, 38.

[359] Act, February 20, 1907, c. 1134, §§ 2, 38; Act, February 5, 1917, c. 29, in U. S. Comp. Stat., 1918, §§ 4289¼ b and jj.

[360] Act of October 16, 1918, c. 186; U. S. Comp. Stat., 1919 Supp., § 4289¼ b. This has been amended since the events narrated in this chapter to include aliens convicted under the Espionage Act and other war statutes (Act, May 10, 1920, No. 197), or advocating sabotage, or injury to property, or assaults on officials for any reason; giving or lending money is proof of advocacy or membership (Act, June 5, 1920, No. 262). On the last statute, see John Lord O’Brian, “The Menace of Administrative Law,” address to Maryland Bar Association, June 25, 1920.

Such aliens are not only refused admission and put out if they succeed in getting in, but if they acquire these views or join these associations after their entry into this country, they are to be deported without any time limit, no matter how long before 1918 they came to the United States.

Like the federal “force and violence” bills discussed in the preceding chapter, this statute at first sight seems to apply to really bad men, and to effect nothing but desirable results. Once again, however, we ought to defer judgment until we have examined the actual operation of the statute. The life of a law is not in its words, but in its enforcement. In this case we do not have to rely on inference and argument with respect to the future, for the deportation laws have been in existence long enough to provide us with abundant data from past experience, upon which we may base our decision as to the wisdom and justice of this national course of action.

II. _The Administrative Machinery for Deporting Radicals_

“I’ll be judge, I’ll be jury,”
Said cunning old Fury;
“I’ll try the whole cause,
And condemn you to death.”—_Alice in Wonderland._

The most important question with any legislation which affects human happiness is, what kind of men administer its provisions? Are they an impartial judge and jury, a government official, a secret council, a star chamber? The answer to this question in our problem is the following sentence:[361]

In every case where any person is ordered deported from the
United States under the provisions of this Act, or by any law or
treaty, the decision of the Secretary of Labor shall be _final_.

[361] U. S. Comp. Stat., 1918, § 4289¼ jj. Italics mine.

No judge or jury passes on the important question whether an alien who has lived here for many years actually holds or has expressed any of the objectionable views specified as grounds for deportation. No judge or jury decides whether he belongs to an objectionable organization or whether it really is objectionable. All these vital issues of fact are determined by the Secretary of Labor, or more often by his subordinates, the immigration officials. And there is for all practical purposes no appeal from those officials to any court, not even to the Supreme Court of the United States. The law takes the position that deportation is not a criminal proceeding and involves no punishment. It is simply an exercise of the right of every sovereign state to determine who shall reside within its borders. Therefore, the foreigner who is expelled without a hearing in court, no matter how long he has lived in the United States, no matter if he must leave a house and other cherished possessions behind him, is not deprived of life, liberty, or property without due process of law.

Such wide powers have not been acquired by the executive branch of our government all at once or without a struggle.[362] The doctrine that administrative decisions on questions of fact may be made conclusive without any judicial review originated in our law in controversies growing out of the distribution of public property. When the government is giving away money which it has acquired under a treaty or is making free grants of public land, it may justly annex whatever conditions it pleases to its gifts and delegate to anybody it selects the power to say how and where those gifts shall go. The recipients of its generosity cannot complain if they must dispense with judicial proceedings and abide by the decision of some administrative body like the Land Department. If they are denied relief by such officials, they lose nothing which they had before.

[362] The leading cases are in 2 Willoughby on the Constitution, c. LXIV. A very valuable article by the Assistant Secretary of Labor, Louis F. Post, is “Administrative Decisions in Connection with Immigration,” 10 _Pol. Sci. Rev._ 251 (1916). This supports my conclusions. The same volume contains several other articles on administrative decisions. See the Bibliography for further references on the Post-office.

Similar powers were soon accorded from obvious necessity to tax officials. The collection of the public revenues would become impossible if every dispute of fact over the value of an imported scarf or the size of an income could be carried by the disgruntled taxpayer into the courts. The complexity of the business and the requirement of speed make it very desirable that administrative officers should execute any valid tax law without interruption so long as no issue of law is involved; on the other hand, their decisions do not affect the liberty of the citizen or interfere with the normal activities of his life.

When the doctrine was extended to exclusion from the mails, its effect became much more serious. The business man who wishes to communicate with prospective buyers and sources of supply is not a recipient of public bounty like the occupant of free land. While he does make use of governmental machinery, he pays for what he gets, and in substance the transaction is like buying municipal water or riding on a national railway. The opportunity to obtain essential services is a condition of earning a livelihood and very possibly of life itself. If a city cuts off a man’s water, he cannot dig a well; if he is kept off the trains, he cannot walk; and in the same way the factory or newspaper which is excluded from the mails is denied any other practicable means of systematic intercourse. The decision virtually ruins its business. All questions of constitutionality aside, Congress ought to consider the advisability of continuing to place such a destructive power in the Postmaster General instead of in an impartial tribunal which would not be both judge and prosecuting attorney. Questions of the weight and contents of letters are administrative like tariff valuations, but the tax department does not furnish an analogy for exclusion orders in the post-office for fraud and other reasons, because such controversies are comparatively few and similar in nature to those which courts are accustomed to settle, besides being far-reaching in their consequences to the community as well as to the prohibited periodical. The cases I have already discussed of exclusion from the mails for alleged indecency or disloyalty show the possibilities of danger when the attainment and dissemination of truth are regulated by the arbitrary will of one man.

All these considerations apply _à fortiori_ to deportation, and especially deportation for opinions. Exclusion of a newly arrived alien by administrative fiat is not a serious hardship, for he simply returns to his old life and takes up the threads where he recently dropped them, but expulsion after long residence is another affair. The matter at stake here is not a gift from the government, or the payment of a tax which leaves substantial property untouched, or even the existence of a business. Liberty itself, long-established associations, the home, are at the mercy of a bureaucracy. Although technically Justice Gray was right in saying that it is not a punishment to deport an alien who has been domiciled here many years, but only a method of removing him to his own country because he has not complied with the conditions for residence imposed by our government,[363] nevertheless, practically it is nothing but a punishment, which, as Justice Field pointed out, is “beyond all reason in its severity.”

[363] Fong Yue Ting _v._ U. S., 149 U. S. 698, 730 (1892).

As to its cruelty nothing can exceed a forcible deportation from
a country of one’s residence, and the breaking up of all the
relations of friendship, family, and business there contracted.
The laborer may be seized at a distance from his home, his
family, and his business and taken before the judge [now the
immigration inspector] for his condemnation, without permission
to visit his home, see his family, or complete any unfinished
business.[364]

[364] Dissenting opinion in same case, 759.

This power to tear a man up by the roots is now conferred upon officials of the government, the same officials who prefer charges against him, and is extended from such definite facts as the race and birth of a Chinaman to such vague facts as the opinions and political affiliations of a European. Whatever the constitutional powers of the government, it ought not to deprive a man of liberty and happiness without being sure after a thorough and impartial investigation, such as a judge and jury in open court would afford, that the alien actually falls within a proscribed class. It is popular to defend the present arbitrary methods on the ground that he is only an alien; if he wants to acquire a home here, why does he not become naturalized? He cannot be naturalized for five years, and even after that time his omission ought not to make him an outlaw. He should not be dragooned into citizenship, and incidentally citizens acquired through pressure are not always desirable. A foreigner often has honest and even praiseworthy motives for retaining his old loyalties. He may desire to return to his birthplace in his old age after he has saved a competence by building roads and railways for us, or as in the case of most Russians in our midst before 1917, he may be waiting here with the hope that a tyranny at home will be overthrown. Surely, we do not reproach Americans who spend their lives in England or France without renouncing their allegiance. Why should we regard similar conduct by foreigners in this country as worse than crime, for even criminals would not receive such harsh and summary treatment? We have no business to act and talk as if we owed absolutely nothing to our unnaturalized immigrants. Most of them were brought in at the earnest desire of the very persons and corporations that are now loudly calling for more deportations. For years these foreigners have done our dirty work, and we might at least give them a jury trial before we throw them out neck and heels. Have we no confidence in our own institution? Every alien must expect to be expelled, if he furnishes legal cause, just as he must expect to be punished for an offense, but in each case we should be proud as citizens of a free land to furnish him the best legal machinery we can devise to ascertain whether or not the ground for governmental action really exists.

Let us now look more closely at the method which we actually employ to determine the political and economic views of an alien. Is it equivalent to a jury trial? Even that, I have tried to show, is a hazardous means for the investigation of another man’s words and opinions, and often liable to err, but it is the best practicable means if we are going to inquire into those facts at all. What are the chances of error in the present deportation tribunals?

This can be best determined from a consideration of the actual practice as described by Judge Holt of the United States District Court for Southern New York:[365]

There are a number of officers called inspectors of immigration,
connected with the office of the commissioner. Complaint that an
alien is in this country in violation of law is usually made by
one of these inspectors. The information upon which he bases the
charge may have been obtained by himself upon investigation,
or may have been furnished to him by others. Frequently such
information is furnished by the city police, or by enemies of
the person charged, acting through malice or revenge. Affidavits
are obtained and are sent by the inspector to the Secretary at
Washington, who, if he thinks a proper case is made out, issues
a warrant for the arrest of the persons charged. This warrant is
usually intrusted for execution to the inspector who has made
the charge, and he subsequently usually takes entire charge of
the case. After the aliens have been taken to Ellis Island,
they are held in seclusion and not permitted to consult counsel
until they are first examined by the inspector, under oath, and
their answers taken by a stenographer. After this preliminary
inquisition has proceeded as far as the inspector wishes, the
aliens are then informed that they are entitled to have counsel,
and to give any evidence they wish in respect to the charge.
Thereafter a further hearing is had before the inspector, at
which further evidence may be given by him, and the aliens may
appear by counsel and offer evidence in their own behalf. The
inspector thereupon reports whether in his opinion guilt has been
established, and the evidence taken and the inspector’s finding
are sent to the Secretary of Commerce and Labor at Washington,
who thereupon makes an order either for the deportation or the
release of the aliens. It is, of course, obvious that such a
method of procedure disregards almost every fundamental principle
established in England and this country for the protection of
persons charged with an offense. The person arrested does not
necessarily know who instigated the prosecution. He is held in
seclusion, and is not permitted to consult counsel until he has
been privately examined under oath. The whole proceeding is
usually substantially in the control of one of the inspectors,
who acts in it as informer, arresting officer, inquisitor, and
judge. The Secretary who issues the order of arrest and the order
of deportation is an administrative officer who sits hundreds of
miles away, and never sees or hears the person proceeded against
or the witnesses.

[365] Bosny _v._ Williams, 185 Fed. 598 (1911); see also Immigration Rules of May 1, 1917, Rule 22.

The proceedings are in secret. The public is excluded, so is the press, so are the alien’s wife and children. His inability to speak English and the inspector’s frequent inability to speak anything else make the record unsatisfactory, but the Secretary of Labor sees nothing else. Furthermore, this record is often made by the inspector himself, and he may stop it whenever he wishes, after a good case is made out. Like a policeman, like a district attorney, it is his business to get results. Unless the alien is represented by counsel there is some chance that matter in defense will not get on the record.[366] While he has a right to ask for counsel at such stage in the proceedings as the inspector shall deem proper, being defenseless until then, he is not, like a criminal, entitled to receive counsel at the expense of the government. Furthermore, the alien who does not speak English and is shut up on an island, often ignorant and out of funds, does not readily obtain a lawyer on his own initiative. Thus he may be rigorously cross-examined in the absence of counsel, not only on what he did and said, but on what he thinks. The proceedings are rarely reported in the newspapers, not being open, so that public opinion cannot easily be focussed on an unjust case. Once the alien is deported, all mistakes and wrongs are covered by the intervening ocean.

[366] Low Wah Suey _v._ Backus, 225 U. S. 460 (1912), holds valid the rule denying counsel until after the preliminary hearing.

“If this,” said Justice Brewer,[367] “be not a star chamber proceeding of the most stringent sort, what more is necessary to make it one?”

[367] U. S. _v._ Ju Toy, 198 U. S. 253, 268 (1905).

The alien has two slight possibilities of relief from a wrong decision of the inspector. The review by the Secretary of Labor has already been shown by Judge Holt to be inadequate, because the Secretary never sees the alien or the witnesses, but only the record, which was made up by the very person whose finding is attacked. Moreover, the Secretary of Labor determines and enforces the policy of the government in respect to deportations. Congress should refuse in so serious a matter to make a man final judge in his own cause. Secondly, the alien may in rare instances obtain a writ of _habeas corpus_, which will bring his case before a United States judge. This remedy is very limited, for the conclusions and orders of the immigration officials can be attacked by judicial proceedings only if it is shown “that the proceedings were manifestly unfair, that the action of the executive officers was such as to prevent a fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute;”[368] or if there was an error of law, for instance, in construing the statutory definition of some deportable class. In the absence of fraud, a finding of fact will be reversed only when there is a complete absence of evidence to justify it. So long as there is any evidence at all in its support, no matter how overwhelmingly this is outweighed by the testimony on behalf of the alien, a court cannot interfere.

[368] Low Wah Suey _v._ Backus, _supra_, 468; Gegiow _v._ Uhl, 239 U. S. 3.

The risks of grave injustice under this system are shown by a recent case.[369] A Canadian woman in northern New York, who had always earned her own living and owned several hundred dollars, part of it in local real estate, beside having well-to-do relatives, was ordered to be deported as a person “likely to become a public charge.” The evidence showed that the alien had excited the jealousy of a married woman by receiving from her husband lessons in bicycle riding evenings, and it was suggested that the wife might sue this woman for alienation of his affections, and might in this suit take all her property and leave her without means of support. Also the woman might be prosecuted on a criminal charge, and eventually imprisoned at public expense. On these facts the immigration inspector arrested her and ordered her deportation, and his decision was affirmed by the Secretary of Labor. Obviously the whole case was framed up by a personal enemy, as many cases against radicals may have been framed up during this past winter. In this instance the alien was released by the court, because there was not a single fact to support the finding, but if there had been a scintilla of evidence the judge could have done nothing. Injustice of this kind may easily occur without any corruption on the part of the inspector if he is zealous in enforcing the deportation law and anxious to gratify the eagerness of his superior officers and satisfy the incessant demand of influential newspapers and organizations[370] for a high record of expulsions.

[369] _Ex parte_ Mitchell, 256 Fed. 229 (1919). See Post, Deportations Testimony, 80, 247, for other framed-up cases.

[370] See, for instance, the constant complaints that deportations are few, in the weekly letter issued by the President of the National Founders’ Association, who has suggested that the entire administration of the law be transferred from the Secretary of Labor to the Attorney General. Such a transfer would probably involve sweeping changes in personnel among immigration inspectors.

“In the administration of preventive justice,” wrote James
Madison, “the following principles have been held sacred: that
some probable ground of suspicion be exhibited before some
judicial authority, that it be supported by oath or affirmation;
that the party may avoid being thrown into confinement, by
finding pledges or sureties for his legal conduct sufficient in
the judgment of some judicial authority, that he may have the
benefit of a writ of habeas corpus, and thus obtain his release
if wrongfully confined; and that he may at any time be discharged
from his recognizance, or his confinement, and restored to his
former liberty and rights, on the order of the proper judicial
authority.”

All these principles he declared to be violated by the Alien Act of 1798.[371] They are violated even more by the Alien Act of 1918. The hated statute of 1798 was a temporary measure called forth by impending war, and provided that the foreigner should first be served with a notice and given time to depart voluntarily. Only if he failed to do so was he arrested. Of this statute Madison said, “If a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.” The Act of 1918 is a permanent measure, and provides for immediate arrest, confinement, and expulsion, without notice, or opportunity to close up one’s affairs and embark freely. Even if such procedure has been declared constitutional, it is nevertheless dangerous that it can be inflicted with practically no judicial safeguards, “on mere suspicion, by the single will of an executive magistrate, on persons convicted of no prison offense against the laws of the land.”

[371] Act of June 25, 1798, c. 63; Madison’s Report on the Virginia Resolutions, 4 Ell. Deb. (2 ed.) 581, 582.

III. _The Raids of January, 1920_

You may take my word for it, my dear Viceroy, that if we do not
use this harsh weapon with the utmost care and scruple—_always,
where the material is dubious, giving the suspected man the
benefit of the doubt_—you may depend upon it, I say, that both
you and I will be called to severe account, even by the people
who are now applauding us (quite rightly) for vigor.—MORLEY, to
Lord Minto, on deportation from India.

Such is the machinery which Attorney General Palmer has set in motion to bring thousands of radicals within the provisions of the Alien Act of 1918. Powerful as this machinery is, it is subjected by the law to three limitations in the interest of liberty. (1) The Act provides that arrest must be on a warrant signed by the Secretary of Labor, and the issue of the warrant is carefully regulated by the Immigration Rules.[372] (2) A house or a meeting-hall cannot be searched, and papers or other property cannot be seized, even with a search-warrant, for there is no law which authorizes the issue of a search-warrant in deportation proceedings.[373] (3) The alien must be given a fair administrative trial, in accordance with the Rules. (4) The deportation laws apply only to aliens.

[372] Immigration Rules, 1917, Rule 22, Subd. 3. “_Application for warrant of arrest._ The application must state facts showing prima facie that the alien comes within one or more of the classes subject to deportation after entry, and ... should be accompanied by some substantial supporting evidence.... If based upon statements of persons not sworn officers of the Government ... the application should be accompanied by the affidavit of the person.... Telegraph application may be resorted to only in case of necessity, or when some substantial interest of the Government would be subserved thereby, and must state (a) that the usual written application is being forwarded by mail, and (b) the substance of the facts and proof therein contained....”

[373] The subject of unreasonable searches and seizures will be discussed in the next chapter. There are some statements that the Fourth Amendment does not apply to deportation proceedings, Fong Yue Ting _v._ U. S., 149 U. S. 698, 730 (1893); _Re_ Chin Wah, 182 Fed. 256 (1910), but the contrary has been held in a much cited case, U. S. _v._ Wong Quong Wong, 94 Fed. 832 (1899). See also Moy Wing Sun _v._ Prentis, 234 Fed. 24 (C. C. A. 1916). In Weeks _v._ U. S., 232 U. S. 392 (1914), Day, J., said of the Fourth Amendment: “This protection reaches all alike, whether accused of crime or not”; and in _Ex parte_ Jackson, 96 U. S. 727 (1877), it was applied to administrative opening of the mails. It is inconceivable that the Amendment has no application to non-criminal proceedings though of course the test of what is reasonable is different. _In re_ Pacific Ry. Com’n, 32 Fed. 241, 251 (1887); I. C. C. _v._ Brimson, 154 U. S. 447, 478 (1894).

Moreover, searches and seizures without search-warrant violate the “due process” clause of the Fifth Amendment, except a few special cases like searching the _person_ only of a man arrested for a _crime_. A warrant of arrest does not authorize search. And the Secretary of Labor has no power to issue search-warrants in immigration proceedings under any Act of Congress. Only a warrant issued by a court (under U. S. Comp. Stat., 1918, § 1239; Stern _v._ Remick, 164 Fed. 781) can make legal searches and seizures of the property of an alien not charged with crime, and no statute authorizes immigration officials to obtain a judicial search-warrant in the absence of judicial proceedings. No lawful search can be made in immigration proceedings with or without a search-warrant. Therefore, it seems probable that all the evidence seized in the recent raids cannot be used by the government, Silverthorne Lumber Co. _v._ U. S., 40 Sup. Ct. 182 (1920); and that actions for damages can be brought. Illegal searches and seizures were a ground for the release of an I.W.W. in _Ex parte_ Jackson, 263 Fed. 110 (1920), and of Communists in the Colyer case.

It is also some mitigation of the drastic features of this machinery that it has been entrusted by Congress, not to the Department of Justice which is engaged in the prosecution of crime, but to that Department which was created “to foster, promote, and develop the welfare of the wage earners of the United States,” and is daily concerned with aiding millions of human beings, many of them poor, comparatively helpless, and unacquainted with our language and institutions. The Department of Justice may furnish legal advice or lend its agents for use under the control of the Department of Labor, but it has no more legal right or power to deal with the expulsion of aliens than has the Department of the Interior.

The raids of January, 1920, have been fully described in the opinion of Judge George W. Anderson in the Colyer case. This book will therefore only discuss briefly the extent to which the four principles of personal liberty just stated have been observed and the relative shares which the Departments of Justice and Labor have taken in these raids. My discussion is not based upon the evidence of aliens or journalists, however credible, but upon the statements of sworn officials of the United States, and so far as possible upon the testimony of Attorney General Palmer.[374]

[374] Palmer Deportations Testimony; Post Deportations Testimony; testimony and instructions of government officials in Report upon the Illegal Practices of the United States Department of Justice, by 12 lawyers, Natl. Popular Govt. League, Wash., May, 1920; opinion of Judge G. W. Anderson in Colyer and Katzeff _v._ Skeffington, 265 Fed. 17 (cited hereafter as Colyer opinion). The only sentence based on an unofficial source is that on Detroit conditions.

“Appreciating,” he says, “that the criminal laws of the United States were not adequate to properly handle the radical situation, the Department of Justice held several conferences with the officials of the Department of Labor and came to an agreeable arrangement for the carrying out of the ‘deportation statute.’” Whether the Secretary of Labor, William B. Wilson, and the Assistant Secretary, Louis F. Post, were informed of the “plans laid by the Department of Justice for the apprehension of members of the Communist Party and the Communist Labor Party,” he does not state. The officials with whom he was in close co-operation were the third ranking officer, Mr. J. W. Abercrombie, a member of Mr. Palmer’s Department detailed to serve as solicitor to the Department of Labor and vested with the powers of Acting Secretary when his superiors were absent or otherwise occupied, and Mr. A. Caminetti, the Commissioner General of Immigration, whose relations with Mr. Post have long been strained. Mr. Abercrombie signed 3,000 warrants for the arrest of persons alleged by affidavits of Mr. Palmer’s agents to be members of the two Communist parties. Mr. Caminetti instructed the immigration officials that the aliens covered by the warrants would be arrested simultaneously by the Department of Justice and “held on local charges” until the officials had served the warrants that night or the following day. The agents would assist in serving warrants, perfecting detention arrangements, and providing evidence, but they could not legally conduct the deportation hearings, since this duty was delegated by statute to the immigration inspectors.

The character of the raids is best shown by the Instructions issued by Mr. Palmer’s Bureau of Investigation to his Secret Service men throughout the country. Those in New England are reproduced in Judge Anderson’s opinion. A slightly different form is reprinted on the front page of the _New York Times_, January 3, 1920:

INSTRUCTIONS

Our activities will be directed against the radical
organizations, known as the Communist Party of America and the
Communist Labor Party of America, also known as Communists.

The strike will be made promptly and simultaneously at 8:30 P.M.
in all districts. The meeting places of the Communists in your
territory, and the names and addresses of the officers and heads
that you are to arrest, are on the attached lists.

You will also arrest all active members where found.

Particular efforts should be made to apprehend all the
officers, irrespective of where they may be, and with respect
to such officers, their residence should be searched and in
every instance all literature, membership cards, records and
correspondence are to be taken.

When a citizen is arrested as a communist, he must be present
with the officers searching his home at the time of the search.

Meeting rooms should be thoroughly searched.

Locate and obtain the charter. All records, if not found in
the meeting rooms, will probably be found in the home of the
recording secretary or financial secretary, but in every
instance, if possible, records should be found and taken.

All literature, books, papers, pictures on the walls of the
meeting places, should be gathered together and tagged with tags
which will be supplied you, with the name and address of the
person by whom obtained and where obtained.

In searching meeting places, a thorough search should be made and
the walls sounded.

It is an order of the Government that violence to those
apprehended should be scrupulously avoided.

Immediately upon the apprehension of the alien, or citizen,
search him thoroughly. If found in groups in a meeting room, they
should be lined up against the wall and searched. Particular
efforts should be made to obtain membership cards on the persons
who are taken.

Make an absolute search of the individual. No valuables, such as
jewelry and monies, to be taken away from those arrested.

After a search has been made of the person arrested you will
take all the evidence you have obtained from his person and place
it in an envelope, which will be furnished you, placing the name,
address, contents of the envelope, by whom taken and where on the
outside of the envelope and deliver to me with the alien.

Everybody will remain on duty until relieved, without exception.

Flashlights, string, tags and envelopes should be carried, as per
instructions.

In searching rooms of an alien pay particular attention to
everything in the room and make a thorough search thereof.

You are also warned to take notice “that no violence is to be
used.”

You will communicate with me by telephone from your several
districts, the number of the telephone herewith given.

Attached you will find a list of those to be apprehended in your
district and you will also apprehend all those found arrested
with these names at the time of the arrest, whom you find to be
active members of the Communist party.

You are also instructed to use reasonable care and good judgment.

It is too early to write an account of the methods in which Mr. Palmer’s agents carried out his Instructions, but I give the following authenticated facts.

First, aliens and citizens found in a Communist hall on the night of raids, whether they were members of the organization or not, were seized without any warrant whatever. In New England alone a hundred such persons were imprisoned for several days while the officials telegraphed for warrants to cover them, and hundreds more were not released for many hours. The Attorney General testifies on the nation-wide situation:

Where the aliens were assembled at their meeting places and an
actual meeting of the Communist Party was in progress the agents
of the Department of Justice did take into custody all aliens
attending that meeting. It is quite likely that warrants had not
been obtained for all such persons, but it is sufficient, it
seems to me, that when an alien is apprehended in the commission
of the unlawful act that the action of the government officer
taking him into custody is warranted. Certainly it could be
claimed that if the government officers had visited a meeting
place and had permitted aliens found there for whom warrants
had not been previously obtained to depart, that they had been
derelict in their duty.

The Attorney General also states that when persons applied at the Hartford jail to see their friends who had been arrested at a Communist meeting, the visitors were properly arrested and locked up in the jail; for their coming to inquire was _prima facie_ evidence of affiliation with the Communist Party.[375]

[375] Palmer Deportations Testimony, 69, 76, 115.

Mr. Palmer’s contention is that his agents faced the same situation as a policeman who witnesses a robbery. If he goes to the station house for a warrant the offender will vanish. His agents “did the safe thing” in arresting every alien apparently a Communist. This analogy is clearly unsound. For many crimes a warrant is necessary to arrest, and a deportable alien is not a criminal at all. Neither he nor a citizen can be deprived of his liberty upon considerations of expediency which are not the law of the land. Congress makes that law, and has explicitly required that the alien shall be taken into custody “upon the warrant of the Secretary of Labor.”

Secondly, the prisoners’ property was overhauled and seized without search-warrants. The Chief of the Bureau of Investigation did direct his subordinates to apply to the local authorities for warrants “if you find it is absolutely necessary”; and the Attorney General states, “In every instance where practicable search-warrants were procured from either city authorities or the United States commissioner.” He points to no law authorizing such warrants for papers, and none existed except possibly in states where Communists fall within anti-anarchy acts. Of course, warrants for the seizure of concealed weapons give no right to seize papers. No proof has been given by the government in the Colyer case or elsewhere that search-warrants were obtained in these raids. Mr. Palmer also says, “In no instance can it be shown that any person or place was searched over the objection of the individual.” Naturally an ignorant alien confronted by a posse of detectives at night would hesitate to object to anything. Moreover, Mr. Palmer’s statement that consent was a prerequisite to search is contradicted by the peremptory language of the Instructions and the testimony of his agents. Except in the case of educated English-speaking aliens like the Colyers, there is no evidence that the agents paused before ransacking halls and houses for documentary evidence connected with Communism.

The justification urged is that this valuable evidence of membership would have been destroyed if not seized. Of course, no government has ever made an illegal search unless it expected to find something useful. If searches in deportation proceedings, with or without warrant, are necessary, they must be authorized by Congress and not by the Attorney General.

Thirdly, the hearings by the immigration inspectors were often unfair. This was in large measure due, not to the fault of the inspectors, but to the unprecedented pressure of work and the absence of adequate protection for the rights of the alien. For nearly a year before the raids aliens had been entitled to counsel throughout the deportation hearings. The old procedure described in this chapter, which deprived them of counsel during the important preliminary hearings, while not unconstitutional, was considered so harsh by Secretary Wilson that he abolished it. On December 29, 1919, just four days before the raids and during the Secretary’s illness, the old harsh rule was revived. The Attorney General does not deny that this change was made through the efforts of the Department of Justice, and defends it on the ground that the examination of an alien, when under the advice of counsel, “got us nowhere.” The fact remains that the Secretary of Labor had thought counsel desirable, and it was for him and not the Attorney General to fix the Immigration Rules. As soon as Mr. Wilson and Mr. Abercrombie (who had inadvertently approved the change without appreciating its effect) realized what was happening, they restored the right to counsel, but this was not until January 27, after most of the examinations were completed. Meanwhile, until the hearings were practically closed, the inspectors heard the evidence without the help of counsel for the defense, and on the other hand, for the first time in the experience of immigration officials (at least in New England), an agent of the Department of Justice was present through every hearing. The alien stood alone before an administrative official, confronted by a member of the force of detectives who had sworn out the warrant against him and accomplished his arrest. Thus the government after issuing warrants for the arrest of 3,000 persons suddenly repealed a rule so as to affect those specific persons and deprive them of rights which were guaranteed to them, not indeed by the Constitution, but by the existing law of the land.

The value of the evidence obtained in this way was also materially affected by the treatment which the aliens underwent before and during their trials. The police dragged many men out of their homes in the dead of night. The aliens, none of them under any criminal charge and many of them held without warrants, were taken on trains and through the streets in handcuffs and chains.[376] The prisoners were herded in vastly overcrowded quarters without sufficient clothing and food. For instance, the Mayor of Detroit described as “intolerable in a civilized city” conditions in the police “bull pen,” a room 24 by 30 feet, where over a hundred men were kept for a week. Bail was often fixed at very high amounts; for instance, $10,000, although $500 is the normal sum specified in the Immigration Rules. The men arrested were separated for days from their wives and children, who were left without support by the government. Instead, they were, Mr. Palmer assures us,[377] “looked after by the most prominent charitable organization of their own creed in their locality. It is no part of the Attorney General’s duty to look after the families of the violators of our laws.” The Supreme Court has declared repeatedly that aliens held for expulsion are not criminals.[378] This apology recalls the British General Dyer, the hero of Amritsar, who found shooting into a crowd a still more satisfactory way to get rid of sedition, and remarked that picking up the wounded was no affair of his—that was the business of the hospitals.

[376] Palmer Deportations Testimony, 115. On Detroit, Barkley, _infra_, note 382. On Boston, Colyer opinion.

[377] See his circular letter in 110 _Nation_ 190 (February 14, 1920).

[378] _E.g._, Fong Yue Ting _v._ U. S., 149 U. S. 730 (1893).

The men deported on the “Buford” were torn from their families, who still remain in America.

The public approval of these raids rests on a belief that all the thousands of men arrested were dangerous foreigners who advocated violence. Yet the daily press shows the eventual release for want of evidence of over a third of those seized. And a cursory glance at Mr. Palmer’s Instructions shows that the character of an individual had absolutely nothing whatever to do with his arrest. The most harmless person was to be seized if suspected of membership in the specified political parties. And although there was no law authorizing the arrest of citizens, these instructions direct that all Communists shall be seized, expressly including citizens. Elsewhere it is ordered that if citizens are arrested “through error,” they shall be referred to the local authorities. Thus United States officials would arrest American citizens for prosecution under the harsh state anti-anarchy acts.

That the President of the United States can have authorized these measures seems impossible. It is astonishing that the Attorney General and the Acting Secretary of Labor should have carried through the greatest executive restriction of personal liberty in the history of this country during the President’s illness. Even so the British Cabinet took advantage of the illness of their head, Lord Chatham, to make one of the worst onslaughts on freedom in modern England, the expulsion of Wilkes from the House of Commons in 1768. Macaulay’s Second Essay on Chatham gives the facts.

His colleagues for a time continued to entertain the expectation
that his health would soon be restored, and that he would emerge
from his retirement. But month followed month, and still he
remained in mysterious seclusion.... They at length ceased to
hope or to fear anything from him; and, though he was still
nominally Prime Minister, took without scruple steps which they
knew to be diametrically opposed to all his opinions and feelings.

The sequel to the raids made it plain that hardly a single alien then arrested by the Department of Justice would be deported. In the absence of the President, a sharp conflict between Mr. Palmer and the Department of Labor soon developed. Secretary Wilson released all the aliens imprisoned as members of the Communist Labor Party, holding that organization not to be within the deportation statute. Many of those arrested as members of the Communist Party were released by Assistant Secretary Post because their membership was not proved, and Judge Anderson in the Colyer case decided after an exhaustive survey of the New England raids that (1) many of the aliens who were ordered deported must be discharged for want of a fair trial; (2) even those who had a fair trial must be discharged because the Communist Party does not advocate “force and violence.” If his decision is affirmed by the Supreme Court, nobody can be deported merely because of membership in either party. Consequently every alien seized in the raids must be released except the few who personally advocated the overthrow of the government by violence.

Meanwhile, when Mr. Abercrombie went away, Mr. Post had taken charge of deportation matters. He soon became convinced that many of the recommendations of the immigration inspectors and Mr. Caminetti for the deportation of aliens were not in accordance with the evidence obtained at the hearings, and therefore canceled the warrants of arrest in these cases. This action aroused the indignation of Mr. Palmer and several members of the Immigration Committee of the House of Representatives. A House Resolution looking toward impeachment was referred to the Rules Committee, which heard the testimony of both Mr. Post and Mr. Palmer, but took no action before Congress adjourned.

Mr. Post pointed out that the power to determine whether an alien should be deported was vested by law in the Secretary of Labor and his deputies, and not in the Commissioner General of Immigration. The belief that the aliens discharged were dangerous revolutionists was derived from Mr. Caminetti’s summaries, which were merely advisory, and not from the actual records of the hearings, which were often very different. It was Mr. Post’s duty to decide each case upon the evidence and he had done so. When there was doubt as to the alien’s guilt, the humanity of the situation might properly enter into his decision. Although deportation proceedings are not criminal in nature, he had drawn from the criminal law those principles which recognize the rights of the individual and especially his right to a fair decision whether or not he is guilty. The issue is, not whether those aliens who violate the law shall be deported, for he is deporting them, but whether those who have not violated the law shall be deported.

Mr. Palmer’s position is this. While he has not “the slightest fear that any revolutionary movement can succeed in this country, even to the extent of seriously menacing our institutions,” there was in 1919 a great deal of revolutionary agitation which led to several attacks on federal officials and other violence, and might easily have led to more. The best way to keep order was to attack the spreaders of agitation by means of the deportation statute. The raids caused a marked cessation of revolutionary activities, and the two organizations affected were completely broken by the Department of Justice. Now this same agitation has taken a new lease of life because of the decisions of Secretary Wilson and Mr. Post, which in Mr. Palmer’s opinion are “neither based upon fact nor upon law.”

Upon this position, which I have tried to state with absolute fairness, three comments may be made. First, it raises the fundamental issue discussed in the preceding chapter, how far violent acts can wisely be prevented by the suppression of violent talk. Secondly, the particular method of suppression used by the Attorney General was placed by law under the control of another Department, but the facts of the raids leave no doubt that the deportation machinery during the arrests and the hearings was very substantially directed and operated by the Department of Justice. If the Department of Labor has not properly administered the law, the duty to “care that the laws be faithfully executed” is vested, not in the Attorney General, but in the President. Finally, although it is undoubtedly true that the laws requiring warrants for arrest, forbidding searches, and allowing counsel make deportation more difficult, even in the case of dangerous revolutionists, every rule in the interest of personal liberty necessarily diminishes the efficiency of government. Mr. Palmer adopted the attitude of the men he denounced. Because the law hindered the result he wished to accomplish and thought desirable, he disregarded the law.

IV. _The Arrest of American Citizens for Deportation_

The American people ought to be startled out of their complacent acquiescence in these raids by the confinement of hundreds of their fellow-citizens in jails, without the slightest charge of crime or possibility of such charge under any law of the United States. The government actually contends that it has the right to issue so-called alien warrants, which state no evidence or facts whatever beyond a perfunctory repetition of clauses of the Deportation Act, and yet are the only substitute for an indictment in these proceedings, against any individuals, whether aliens or naturalized citizens or native-born citizens, arresting them whenever and wherever found, and holding them in custody until the question of citizenship is decided by the immigration authorities. It contends that a court has no jurisdiction to release an American citizen who has never been out of his native country from Deer Island or Ellis Island, or any other deportation jail, until the immigration official and the Secretary of Labor on appeal have denied his citizenship. Experience in the Chinese cases shows that these proceedings frequently last for many months. “It follows that on the theory now urged the right of native-born citizens to liberty, perhaps for months, lies at the mercy of the immigration authorities,” and that even after the order of deportation is finally issued against the citizen, he cannot obtain the right from a court to remain in this country unless the proceedings were manifestly unfair or otherwise illegal.[379]

[379] Peter Frank _v._ Henry J. Skeffington, Commissioner, unreported opinion of G. W. Anderson, J., (D. Mass., January 27, 1920).