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This chapter undertakes a brief descriptive account of executive power — both its scope, and the means that American law has developed to hold the executive to account for its actions. This chapter proceeds in five parts. The first part offers a brief theoretical overview of the American separation of powers. The second part describes the scope of executive authority. Thereafter, the third part discusses legislative, judicial, and political mechanisms for holding the executive to account. The fourth part then illustrates how some of those mechanisms play out in three distinct contexts: the exercise of delegated powers, the President's ‘war power’, and the contemporary problem of executive detention. Finally, the fifth part advances some brief conclusions about the comparative efficacy of separated powers and checks and balances models, and the relation of those modes to judicial review.

This book is a history of the use of executive detention in Britain during World War II under Regulation 18B of the Defence (General) Regulations; this enabled the government to imprison citizens thought to be dangerous to national security without charge, trial, or term set, under what Herbert Morrison, who administered the system during most of the war, described as ‘a terrible power’. Just under 2,000 individuals were so imprisoned in as gross an invasion of British civil liberty as could be conceived, only justifiable, if at all, by the grim necessity of the time. Imprisonment is of course commonplace, and is indeed the typical punishment imposed for serious breaches of the criminal law. But executive detention is designed to be employed in advance; hence detainees languish in prison not for what they have done, but for what they might do in the future if they remained at liberty. Also, detention is typically imposed as a result of an administrative decision, taken in private, by state officials, without any form of prior trial.

It was the text of Regulation 14B, not its original limited purpose as an instrument of alien control, which lived on, and this text was drafted so as not to restrict the scope of the regulation to that purpose. The expression ‘of hostile origin’ clearly included former enemy citizens, and perhaps those whose parents were of enemy citizenship. ‘Of hostile associations’ was much less precise. The war with Germany was not the only problem then confronting government; there was the Irish question, and the authorities made extensive use of Regulation 14B to crush the Irish rebellion of 1916. With the official end of the war on August 31, 1921 executive detention ceased to be possible in mainland Britain under the Defence of the Realm Act, and with the signing of the Anglo-Irish Treaty of December 6, 1921, and the establishment of the Irish Free State, it might be supposed that detention in Britain under the Restoration of Order in Ireland Act 1920 might then have ceased too. But, incredibly, the arrests and detentions continued.

On May 22, Parliament passed the Emergency Powers (Defence) Act, which formally conferred on the executive the powers appropriate to a totalitarian state at war; it could now, by regulation, ‘make provision for requiring persons to place themselves, their services, and their property at the disposal of His Majesty as appears to him to be necessary or expedient’. That evening, the Privy Council passed the new Regulation 18B (1A), to be enforced on May 23 as a secret law, for it had not then been published. Its text formed a concise ‘Statement of the Case’ against the British Union (BU); though Sir John Anderson in the House of Commons on May 23 referred to organisations in the plural, the party was to be its only victim; it was not used against the Right Club, the Communist Party of Great Britain, or any other group. Many members of the BU thought that it was the peace campaign which led to their executive detention. Sir Oswald Mosley himself was arrested on May 23, followed by more arrests.

Although most orders were made in 1940, quite a few were made in later years. A few names are discoverable, such as Thomas Hubert Beckett. Some suspended orders were reactivated, and a number who escaped were recaptured. But after 1940, the main task was suspending or revoking orders already made. Once the Home Office won the dispute with Military Intelligence Section 5 over British Union (BU) detainees about 450 could be released. By the end of 1941, only 200 BU detainees were still in executive detention. There never developed widespread sympathy or support in Britain for Regulation 18B detainees as people; in so far as there was a popular view it is that they were a crowd of traitors who richly deserved all that happened to them. More surprisingly perhaps, there never developed a strong principled objection to the regulation as a gross invasion of civil liberty; no doubt the explanation lies in the desperate conditions in which it was principally employed. Once World War II ended and the detainees were all released, the subject died.

The Home Office division concerned with making detention orders was G2, under Sir Ernest Holderness. Enemy aliens were the chief concern. A few belonged to the Auslands Organisation, the overseas organisation of the Nazi Party, or were associated with such organisations as the German Labour Front. For the 19,000 or so resident Italians there was the Fascio, which, along with the Auslands Organisation, was viewed with suspicion by Military Intelligence Section 5. There were a number of German agents in Britain in the late 1930s, though by the time the war came the active numbers were not in double figures. Some Welsh Nationalists may have been approached in the hope that they would be prepared to assist Germany in return for independence, though it is hard to believe that they could have been gullible enough to take this seriously. Code B was laid before Parliament on September 5, 1939. Publication triggered protests in the House of Commons, probably reinforcing the Home Office's reluctance to employ the power of executive detention freely.

Executive detention in Britain normally began with arrest without warning. There were ugly incidents. R. R. Reynolds of Tottenham was slapped. Some resisted arrest. Amongst the Anglo-Italian communities, the 600 Regulation 18B detentions coincided with 4,000 or so arrests under the prerogative, and produced terror. Arrests separating parents, particularly mothers, from young children, seem peculiarly harsh. No special arrangements were made for the care of families and dependants; they could apply like anyone else to the Local Assistance Board. The techniques adopted at Latchmere House are clinically described by Hinsley and Simkins in an appendix, so drafted as to impose responsibility on the Home Office for what went on. There was fear in Military Intelligence Section 5 that information about Latchmere House, and the double agents, might leak. As early as June 11, it had been suggested that detainees should be held in camps. Winston Churchill had long been a romanticiser over habeas corpus, and although initially a strong advocate for detention he soon began to have doubts.

Robert Liversidge claimed damages for false imprisonment; he did not apply for habeas corpus. His was not the first such action; Oswald Mosley, Maule Ramsay, and the de Lange brothers had issued writs for false imprisonment, and J. R. Smeaton-Stuart, after release in November 1940, had brought such an action, and lost on June 26 before Mr Justice Tucker. Since he was at liberty, habeas corpus was pointless, and this explains in his case the choice of proceeding. Liversidge was still in executive detention, but such an action, as well as leading to damages, had three potential advantages over habeas corpus proceedings. The first was that interlocutory proceedings, decided by judges or lower court officials, were possible. Second, actions for false imprisonment were determined by a trial. Third, although most civil actions were tried by a judge alone, it was possible to apply for a trial by jury.

The new regulation was analysed by L. S. Brass, the assistant legal adviser to the Home Office, who identified five categories of potential detainees; logically there were really eight. But Home Office policy was to distinguish merely two basic categories—those of ‘hostile associations (and/or origin)’, and those involved in ‘acts prejudicial’. Standard forms of order indicated which was involved, but gave no additional information. There was a problem of transition. The committee had heard twenty-four cases, recommending continued detention in only thirteen, and release in six, four subject to restrictions, figures which suggest that confidence in Military Intelligence Section 5 (MI5) was already waning. When the new Regulation 18B came into force, Alexander Maxwell and Sir Ernest Holderness thought that Sir John Anderson should review all existing orders. This chapter examines executive detention during the period of the ‘phoney war’, when the Home Office made very modest use of its powers, much to the irritation of MI5.

The threat to the integrity of Norman Birkett's committee stemmed from the War Cabinet decision of May 22. Until then the committee evaluated the threat to security posed by individuals; there had to be a case against each person, and each recommendation was independent of what was recommended for other detainees. After May 22 all this changed; the War Cabinet had decided that the fascists were potentially dangerous, and the British Union (BU) was to be crippled. There could be no question of the advisory committee going against this and recommending the release of Sir Oswald Mosley and his principal followers, quite irrespective of what emerged in hearings. Nor was the release of Capt. Maule Ramsay conceivable. The executive detention of the lesser BU activists also implemented a general policy decision, as did the arrest of the Anglo-Italian members of the Fascio. Where, after May, individuals were detained simply on the basis of their own actions or sympathies, the committee could proceed much as before; such cases, however, now formed a minority.

The original Regulation 18B was designed to give the Home Secretary an arbitrary power of executive detention; neither its scope nor its validity were ever raised in the courts. The amended 18B was undeniably legally valid, but its more specific text appeared to set limits to the powers of the Home Secretary; potentially the courts had a role in ensuring that these limits were observed. The judges, if they wished, could hold detention illegal if it did not satisfy whatever requirements they regarded as the tolerable minimum. They could play an active part by setting firm limits to the discretionary power conferred on the executive, and by spelling out more precisely the rights of a detainee. Alternatively they could be passive, accepting more or less anything which emanated from the Home Office. And there was nothing in the text which ruled out applications to the courts for habeas corpus, or other legal remedies. The first case to come before the courts involved the colonial Civil Servant, Aubrey T. O. Lees.

The massive increase in the use of executive detention between May and September 1940 placed great strains upon Britain's bureaucracy. In addition to Regulation 18B detainees, there were approximately 28,000 enemy aliens, detained under the prerogative, and a substantial number of non-enemy aliens, of whom, by November, 895 had been made subject to orders. There were also Irish Republican Army expulsion orders to be made. In terms of paper alone this meant more than 30,000 Home Office files, not to mention those of the committee and Military Intelligence Section 5. Regulation 18B orders remained in theory under John Anderson's direct control, but their judicial and individual character could not survive the imposition by the War Cabinet of political and military policy. Legally, the Home Secretary personally made the orders; although the point never arose in litigation, the making of such orders involves in legal theory a ‘quasi-judicial’ decision, the performance of which cannot be delegated. But the idea of Anderson applying his own judgement to each case was now fanciful.

The detainees who did take appeals to the House of Lords were Robert Liversidge and Ben Greene. Both lost, the judicial opinions being delivered on November 3, 1941; the resulting legal position seemed, from a technical point of view, exactly what the Home Office wanted. But success had its price, for the two cases brought the Home Office, the security service, and the courts, into very considerable disrepute. The executive detention of both Liversidge and Greene was entirely understandable, but they were in fact loyal citizens who, in an absolute sense, ought never to have been detained. The administrative mechanisms for Liversidge's and Greene's protection had delivered to them nothing of value, and as the year 1940 drew to a close both had been driven to the conclusion that their only hope lay in an appeal to the judges, the traditional if unenthusiastic guardians of British liberty against the over-mighty executive.

For the next sixteen years, Britain was free of executive detention. But Military Intelligence Section 5 (MI5), the source of the demand for a power to detain citizens without trial in the name of national security, lived on, and its existence ensured that in any new crisis the practice would be revived. During World War II, Vernon Kell's and Basil Thomson's organizations had flourished mightily in pursuit of a phantom army of saboteurs and potential spies, and a very small number of real ones. MI5 had originally been solely concerned with defence security; with the war won it might have seemed to have lost an obvious reason for existence. But in about 1917, new threats providentially arose: bolshevism and pacifism. Both MI5 and Special Branch began to investigate political subversion. Kell called this activity civil security. Since subversion was a domestic matter, the institution directly concerned was the Home Office and its police, and from 1919 to 1921 civil security, mainly directed at bolshevism, was handled by Thomson as head of a Home Office Special Intelligence Directorate.

This chapter describes the aftermath of the Philadelphia acquittals, which generated enormous resentment, leading to vituperative newspaper exchanges over the jury’s role in treason cases, interference with a misprision of treason trial, and the armed attack on the home of James Wilson. The state introduced a new noncapital offense of treasonable misdemeanor. Benedict Arnold’s notorious betrayal led to Pennsylvania’s last two wartime executions for treason. One was ordered without a trial under the attainder proclamations. The other, of a man charged with joining the Indians and prosecuted by Arnold’s brother-in-law, Edward Burd, was a dubious extension of Pennsylvania treason law and explicable only in the context of the fervor over Arnold. The Pennsylvania Supreme Court asserted its authority to issues writs of habeas corpus, and issued an important opinion about the duty of allegiance to Pennsylvania. The court also addressed a significant tax revolt in Berks County, a precursor to the more well-known rebellions of the 1790s.