206 JACKSON, J., dissenting. blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration. Cf. Knauff v. Shaughnessy, 338 U. S. 537, which was a near miss, saved by further administrative and congressional hearings from perpetrating an injustice. See Knauff, The Ellen Knauff Story (New York 1952). Our law may, and rightly does, place more restrictions on the alien than on the citizen. But basic fairness in hearing procedures does not vary with the status of the accused. If the procedures used to judge this alien are fair and just, no good reason can be given why they should not be extended to simplify the condemnation of citizens. If they would be unfair to citizens, we cannot defend the fairness of them when applied to the more helpless and handicapped alien. This is at the root of our holdings that the resident alien must be given a fair hearing to test an official claim that he is one of a deportable class. Wong Yang Sung v. McGrath, 339 U. S. 33. The most scrupulous observance of due process, including the right to know a charge, to be confronted with the accuser, to cross-examine informers and to produce evidence in one's behalf, is especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed. Both the old proceeding by which one may be bound to keep the peace and the newer British "preventive detention" are safeguarded with full rights to judicial hearings for the accused. On the contrary, the Nazi regime in Germany installed a system of "protective custody" by which the arrested could claim no judicial or other hearing process, and as a result the con • Hermann Göring, on cross-examination, made the following statements: ". . . [T]hose who had committed some act of treason against the new state, or those who might be proved to have committed such an act, were naturally turned over to the courts. The others, however, of whom one might expect such acts, but who had not yet committed JACKSON, J., dissenting. 345 U.S. centration camps were populated with victims of summary executive detention for secret reasons. That is what renders Communist justice such a travesty. There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government's theory of custody for "safekeeping" without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the "protective custody" of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere. That these apprehensive surmises are not "such stuff as dreams are made on" appears from testimony of a top immigration official concerning an applicant that "He has no rights." Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. them, were taken into protective custody, and these were the people who were taken to concentration camps. . . . Likewise, if for political reasons... someone was taken into protective custody, that is, purely for reasons of state, this could not be reviewed or stopped by any court." He claimed (though the claim seemed specious) that twenty-four hours after being put in concentration camps they were informed of the reasons and after forty-eight hours were allowed an attorney. "But this by no means rescinded my order that a review was not permitted by the courts of a politically necessary measure of protective custody. These people were simply to be given an opportunity of making a protest." 9 International Military Tribunal Proceedings 420-421 (March 18, 1946). 206 JACKSON, J., dissenting. Would not such measures be condemned judicially as a deprivation of life without due process of law? Suppose the authorities decide to disable an alien from entry by confiscating his valuables and money. Would we not hold this a taking of property without due process of law? Here we have a case that lies between the taking of life and the taking of property; it is the taking of liberty. It seems to me that this, occurring within the United States or its territorial waters, may be done only by proceedings which meet the test of due process of law. sea. Exclusion of an alien without judicial hearing, of course, does not deny due process when it can be accomplished merely by turning him back on land or returning him by But when indefinite confinement becomes the means of enforcing exclusion, it seems to me that due process requires that the alien be informed of its grounds and have a fair chance to overcome them. This is the more due him when he is entrapped into leaving the other shore by reliance on a visa which the Attorney General refuses to honor. It is evident that confinement of respondent no longer can be justified as a step in the process of turning him back to the country whence he came. Confinement is no longer ancillary to exclusion; it can now be justified only as the alternative to normal exclusion. It is an end in itself. The Communist conspiratorial technique of infiltration poses a problem which sorely tempts the Government to resort to confinement of suspects on secret information secretly judged. I have not been one to discount the Communist evil. But my apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else. 345 U.S. JACKSON, J., dissenting. Congress has ample power to determine whom we will admit to our shores and by what means it will effectuate its exclusion policy. The only limitation is that it may not do so by authorizing United States officers to take without due process of law the life, the liberty or the property of an alien who has come within our jurisdiction; and that means he must meet a fair hearing with fair notice of the charges." It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone. "The trial court sought to reconcile due process for the individual with claims of security by suggesting that the Attorney General disclose in camera enough to enable a judicial determination of the legality of the confinement. The Attorney Genera' refused. I do not krow just how an in camera proceeding would be handled in this kind of case. If respondent, with or without counsel, were present, disclosures to them might well result in disclosures by them. If they are not allowed to be present, it is hard to see how it would answer the purpose of testing the Government's case by cross-examination or counter-evidence, which is what a hearing is for. The questions raised by the proposal need not be discussed since they do not call for decision here. Syllabus. HEIKKILA v. BARBER, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 426. Argued February 4-5, 1953-Decided March 16, 1953. An alien whose deportation has been ordered by the Attorney General under § 19 (a) of the Immigration Act of 1917 may not obtain a review of the Attorney General's decision under § 10 of the Administrative Procedure Act, by a suit for a declaratory judgment or injunctive relief. Pp. 230-237. (a) Section 19 (a) of the Immigration Act of 1917 is a statute which precludes judicial review within the meaning of the first exception to § 10 of the Administrative Procedure Act. Pp. 232235. (b) The reasons which prevent review of a deportation order under § 10 of the Administrative Procedure Act apply a fortiori to suits for injunction based on the general equity powers of the federal courts and suits for declaratory relief under the Declaratory Judgment Act. P. 237. (c) Habeas corpus remains the only procedure by which an alien whose deportation has been ordered by the Attorney General may challenge such order in the courts. Pp. 234-235. Affirmed. Appellant's complaint seeking a "review of agency action" as well as injunctive and declaratory relief, was dismissed by a three-judge District Court. On direct appeal to this Court, affirmed; p. 237. Joseph Forer and Lloyd E. McMurray argued the cause for appellant. With them on the brief was Allan Brotsky. Robert W. Ginnane argued the cause for Barber, appellee. With him on the brief were Solicitor General Cummings, Assistant Attorney General Murray, Beatrice |