The Departure from Isolationism:
A Legal Analysis of FDR's Role in Coaxing the U.S. into WWII



 
    Between the beginning of WWII in Europe and Japanís bombing of Peal Harbor there were a number of significant policy changes which marked the U.S.ís break from its strictly isolationist stance and incrementally paved the way for its eventual entry into the war on the side of the Allies.  As it became increasingly clear that the Allies would not survive the tide of fascism without substantial U.S. aid, there ensued a national and international campaign, both political and legal, to free the U.S. from its neutrality legislation so that it might provide the necessary material aid to the Allies before it was too late.  However, the legal and political obstacles which had to be overcome (or skirted) in that campaign were, to say the least, significant.  The task of  finding a way of aiding the Allies despite national and international law, a strongly isolationist Congress, and a genuine belief that the U.S. had to avoid entry into the war at all costs fell largely to the president, Franklin D. Roosevelt.  In driving the country inevitably towards war, despite the express will of the Congress and the people, FDR pushed and occasionally crossed the bounds of national and international law.  This paper focuses on the legal basis for these transgressions.

    While the bulk of this web project, especially the timelines Historical Timeline Diplomatic Timeline and the summary of major U.S. policy changes, Summary of Major U.S. Policy Changes, 1949-1941 addresses the entirety of the period from 1939 to 1941, this paper focuses on the change in the U.S.ís status from neutrality to non-belligerency, roughly between September of 1939 and September of 1940.  More specifically, the paper will focus on the Presidentís role in the repeal of the arms embargo (with the passage of the Neutrality Act of 1939) and the secret negotiation of the Destroyers for Bases Deal in late 1940.

    At the outbreak of the war in Europe, U.S. public opinion was fairly uniformly horrified by the Nazi aggression and supportive of the Allies, yet remained determined that everything possible should be done to stay out of the war.[fn.1]   This sentiment, shared by a strong isolationist element in Congress, had been codified in two pieces of federal legislation.  Title V of the 1917 Espionage Act, entitled "Enforcement of Neutrality," stated that:
 

SEC. 3. During a war in which the United States is a neutral nation, it shall be unlawful to send out of the jurisdiction of the United States any vessel built, armed, or equipped as a vessel of war, or converted from a private vessel into a vessel of war, with any intent or under any agreement or contract, written or oral, that such vessel shall be delivered to a belligerent nation, or to an agent, officer, or citizen of such nation, or with reasonable cause to believe that the said vessel shall or will be employed in the service of any such belligerent nation after its departure from the jurisdiction of the United States. [fn.2]


As one commentator points out, the lack of any grammatical subject in Section 3 prohibits the transfer of vessels to belligerents by "anybody or anything," including the president, private parties, or even Congress. [fn.3]

    Secondly, the Neutrality Act of 1937, [fn.4] Excerpts From the 1937 Neutrality Act the successor to yearly neutrality legislation from 1934 to 1936 and the strongest yet, sought to legislate neutrality in  a number of ways. [fn.5]  Section 1 required the President to determine when a state of war existed and then made it unlawful "to export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to any belligerent state."  The 1937 Act also forbade loans and security sales to belligerents, subject to the Presidentís power to make certain exceptions; it forbade the use of American ports and territorial waters by belligerent submarines or armed merchant vessels where the President has deemed such use threatening to American peace; it forbade American ships from transporting arms of any state to a belligerent; it forbade American citizens from traveling on the vessels of belligerents; and it forbade American merchant vessels engaging in trade with belligerents to arm themselves.

     Despite these crystal clear bans on military aid to belligerents, FDR became increasingly convinced that the best way to keep the U.S. out of war and protect the national interest, while at the same time remaining neutral, was not to isolate the U.S. from world affairs and merely hope for the best, but to supply the Allies with enough material aid that they would be able to win the war in Europe and thus prevent it from eventually reaching the Americas.  The battle lines were thus drawn and turned largely on competing conceptions of what would best serve the national interest by keeping the U.S. out of war.  At the risk of oversimplifying, while both camps were determined to keep the U.S. out of the war, FDR was convinced that he only way to do so was by ensuring that the Allies won.  As early as September 8, the U.S. Ambassador to France wrote to the President to state that "ëevery Frenchman who is in a position to know the factsí was convinced that if the embargo provisions [of the 1937 Neutrality Act] were not eliminated, ëGerman victory would be certain.í" [fn.6]  FDR first thought to turn to Congress in order to seek a repeal, or a favorable revision, of the Neutrality Act.  Yet, upon meeting stiff resistance, it became evident that FDR was prepared to provide the necessary aid by any means necessary.  Indeed, two months earlier he had addressed the question to the Attorney General: "If we fail to get any Neutrality Bill, how far do you think I can go in ignoring the existing act--even if I did sign it?" [fn.7]

     On September 21, 1939 FDR asked Congress for a repeal of the arms embargo Index to Full Text of FDR's Foreign Policy Speeches provision of the Neutrality Act, which he in fact received on November 4.  His reasoning, however, is remarkable for its apparent disingenuousness more than anything.  FDR was apparently convinced that the Neutrality Act was grievously mislabeled as it "in every case puts us on the side of the offenders." [fn.8]   In his appeal to Congress, he urged for repeal of the arms embargo and a return to the traditional precepts of international law, which he characterized as allowing unrestricted sale of all materials to belligerents.   He argued that it was "wholly inconsistent with ancient precepts of the law of nations" to distinguish between a sheet of aluminum and an airplane wing as items which may be sold to belligerents.  Furthermore, he argued that the law in fact discriminated against traditional sea powers, who had previously relied on their right to buy anything anywhere, to the advantage of land powers (read: England v. Germany).  Thus, he concluded, a repeal of the embargo would merely constitute a return to the international law of neutrals. Full Text of Address to  Congress

     It is difficult to imagine, however, what international law of neutrals he was referring to, if not to the Hague Conventions of 1907, to which the U.S. is a party.  Article 6 of the Rights and Duties of Neutral Powers in Naval War (Hague XIII), October 18, 1907, Hague Convention, Art 6 clearly states that: "The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden."  The arms embargo certainly captures the intent of this prohibition.  In fairness, however, by banning export, the 1937 Neutrality Act did go beyond the duties imposed by international law.  Article 7 of the same Hague Convention Hague Convention, Art. 7 states that: "A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet."  In short, though a neutral power may not supply arms to a belligerent, it has no duty to prevent their export or transit.

     Stranger still was the neutrality law which resulted.  In its repeal of the ban of export of war materials to belligerents, the 1939 Neutrality Act [fn.9] did return to traditional international law.  However, seemingly determined to compensate for any perceived lax in U.S. neutrality, Congress forbade all U.S. ships from carrying freight or passengers to belligerent ports, it forbade U.S. ships from arming themselves, and it enabled the President to proclaim combat zones which U.S. ships were forbidden to enter. [fn.10]  The upshot of this, was a "cash and carry policy" which allowed trade with belligerents only if they paid cash and freight traveled only on their own ships.  Thus, in the name of a return to the principles of international law, the Act effectively legislated an abdication of the U.S.ís neutral rights and a desertion of the principle of the freedom of the seas. [fn.11]  Congress was determined to keep U.S. ships and citizens out of harmís way and thus avoid the potential for any diplomatic confrontation with Germany.  Lamentably, however, as one contemporary writer observed: "By taking our ships off the seas the bill aided the German blockade of Britain as effectively as if all our ships had been torpedoed." [fn.12]

     The final installment of neutrality legislation from Congress came after Senator David I. Walsh accidentally caught wind of a proposed deal to send twenty motor torpedo boats which were currently under construction to England. [fn.13]  Walsh, the chairman of the Senate Naval Affairs Committee, flew into a towering rage which prompted the referral of the transaction to the Attorney General who concluded that the deal was "absolutely illegal" as it clearly contravened the 1917 Espionage Act. [fn.14]  The deal was promptly canceled, yet Walsh, unmollified, proceeded to amend the pending Navy Expansion Bill with Section 14, the "Walsh Amendment." [fn.15]  In relevant part, the Walsh Amendment provided that:

(a) Notwithstanding the provision of any other law, no military or naval weapon, ship, boat, aircraft, munitions, supplies, or equipment, to which the United States has title . . . shall hereinafter be exchanged, sold, or otherwise disposed of in any manner whatsoever unless the Chief of Naval Operations in the case of naval material, and the Chief of Staff of the Army in the case of military material, shall first certify that such material is not essential to the defense of the United States. [fn.16]


Essentially, while preserving the ban on transfer of outfitted vessels of war from the 1917 Espionage Act, the Walsh Amendment further required that any military material leaving the U.S. must first be certified as surplus and obsolete. [fn.17]

     Significantly, shortly prior to the passage of the June 28 Walsh Amendment, FDR had, while addressing the graduating class of the University of Virginia on the eve of Italyís declaration of war on England, initiated the what has come to be known as the "Charlottesville Program."  In his address, FDR declared that 

In our American unity, we will pursue two obvious and simultaneous courses: we will extend to the opponents of force the material resources of this nation, and at the same time we will harness and speed up the use of those resources in order that we ourselves in the Americas may have equipment and training equal to the task of any emergency and every defense.
     All roads leading to the accomplishment of these objectives must be kept clear of obstructions.  We will not slow down or detour.  Signals call for speed--full speed ahead. [fn.18]
It is against this backdrop, with FDR steaming full speed ahead directly into the explicit obstacles erected by Congress, that the secret destroyer deal unfolded.

      FDR, in the wake of the Walsh Amendment during August of 1940, was initially convinced that he could not deliver on Churchillís request for fifty or sixty old WWI era recommissioned destroyers without Congressional approval. [fn.19]  However, as the summer wore on and Englandís plight became critical, a cadre of current and former advisors, with the help of Supreme Court Justice Felix Frankfurter, managed to contrive a set of legal arguments which persuaded FDR that he could indeed go behind Congressís back. [fn.20]  In doing so, FDR was perhaps justified in concluding that "Congress is going to raise hell about this, but even another dayís delay may mean the end of civilization.  Cries of ëwarmongerí and ëdictatorí will fill the air, but if Britain is to survive, we must act." [fn.21]  In the end, however, the fact that he did not lose the 1940 election or face impeachment for his blatant evasion of the law was not in any way based on the strength of his legal arguments. 

     It is telling that, in preparing the legal opinion justifying the deal, Attorney General Jackson characterized his role as "the attorney for the administration." [fn.22]  He noted that "I donít think [the Attorney General] should act as judge and foreclose the Administration from making reasonable contentions;" on a close issue he would give his client "the benefit of a reasonable doubt as to law." [fn.23]  The question, however, is whether his contentions were even reasonable.

     The crux of the legal reasoning sought to exploit an alleged loophole in the Walsh Amendment.  The opinion rested on the contention that the spirit of the Walsh Amendment was not to prohibit the release of military equipment unless it was useless and obsolete, but that the requirement that material be certified as "not essential to the defense of the United States" allowed for a transaction to be considered in the aggregate.  Thus, if the exchange of the destroyers for long-term leases to naval bases on British holdings would improve the defense of the U.S. as a whole, then the destroyers themselves could be certified as non-essential. [fn.24]  Ben Cohen, the original author of the opinion which was later largely adopted by Jackson, [fn.25] contended that "ëit would seem the most specious sort of legal argumentí to insist that these old ships were in fact essential to the national defense, if in fact ëthe present requirements of national defense would be best served by their release.í" [fn.26]  To hold otherwise, he argued, would remain true to the letter of the law while subverting its fundamental purpose. [fn.27]  No amount of clever divining of the "fundamental purpose" of the text of the Act, however, can change the fact that it indeed was the fundamental purpose of its author to for the letter of the law to be followed to the precisely.

     The opinion disposed of the 1917 Espionage Act by contending that the language criminalizing the export of "any vessel built, armed, or equipped as a vessel of war, or converted from a private vessel into a vessel of war, with any intent or under any agreement or contract, written or oral, that such vessel shall be delivered to a belligerent nation" [fn.28]  covered only ships which were built, armed, or equipped "with any intent or under any agreement or contract" to deliver them to a belligerent nation.  Thus, since the destroyers were built to fly the U.S. flag and not with any intent to transfer them, they were not covered by the Act. [fn.29]  This grammatical slight of hand, however, would not obviate the Presidentís obligation to construe the law in concordance with the treaties to which the U.S. was a party--most notably the Hague Convention--which makes no distinction between old and new war materials.

     To comply with international law, the destroyers would have to first be transferred to a neutral non-U.S. holding company in order to avoid obvious violation of Article 6 of the Hague Convention (XIII), prohibiting the transfer of vessels from neutral powers to belligerent powers. [fn.30]  Secondly, it was arguable that Article 6 applied at all due to the Article 28 Hague Convention, Art. 28 qualification that: "The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention."  Since neither Britain or Italy had signed the convention, the State department asserted that the U.S. was under no obligation to comply with it in this instance. [fn.31]  Finally, it was contended by Jackson that, if all else failed, Hitlerís repeated violations of international law justified some retaliatory, "even at the cost of strict neutrality." [fn.32]

     Even conceding these dexterous legal improvisations, they do not cure the obvious Constitutional problem that Congress is the sole proprietor of U.S. property and the executive is not authorized to unilaterally dispose of it.  Implicit in the same constitutional question was whether the President is able to acquire bases from England by executive agreement without the advise and consent of the Senate.  Jackson tackled these issues by asserting that the President, as Commander in Chief, had not only the right but the obligation to enhance the national defense and the "the present world conditions forbid him to make risk any delay that is constitutionally avoidable." [fn.33]  Secondly, he turned to the Presidentís admittedly limited power to conduct foreign relations, but contended that the power was limited primarily in instances where the negotiations would "commit the U.S. to future action for which congressional approval would be required." [fn.34]  In this instance, since the Destroyer for bases deal was a single exchange without any further commitment, it was "not necessary for the Senate to ratify an opportunity that entails no obligation." [fn.35]  The baseline of these almost-penumbral interpretations of Presidential powers is not that they are Constitutionally justified as much as it is born out of the normative conviction that concluding the deal was simply the right thing to do. 

     In whole, the Presidential view of the legalities of the Destroyers for Bases deal is perhaps most adequately captured by the editorial in the Chicago Daily News which observed that:

To the average American this business of quibbling over the fine points of international law in the face of one of historyís gravest threats to all law is a piece of inexcusable stupidity. . . .  If Hitler crushs Britain, we can pass laws by the bucket-full, without diminishing in any wise the threat to national security. [fn.36]
Functionally, the deal effectively spelled the end to American neutrality and reclassified the U.S. as a non-belligerent, "the concept of non-belligerency being defined as ëin reality only a euphemism designed to cover violations of international law in the field of neutral obligations.í" [fn.37]  Perhaps more troublesome, is the fact that FDR ultimately justified the exchange as a defensive act taken "in the face of grave danger." [fn.38]  As one writer notes, this maneuver constituted a watershed in the abuse of Presidential powers. [fn.39]  Since the Destroyer Deal, it has become almost commonplace for Presidents to unilaterally commit U.S. troops and resources in the name of combating "grave dangers" while citing FDR as precedent. [fn.40]  Though time and custom may have lent a sense of legitimacy to this practice, neither time nor custom can erase the fact that it has been illegitimate from its very inception.


 
Footnotes
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See WILLIAM L. LANGER & S. EVRETT GLEASON, THE CHALLENGE TO ISOLATION: 1937-1940 201 (1952).
 
Espionage Act of 1917, Ch. 20, 40 Stat. 217 (1917).
 
See Aaron Xavier Fellmeth, A Divorce Waiting to Happen: Franklin Roosevelt and the Law of Neutrality, 1935-1941, 3 BUFF. JOUR. INTíL L. 413, 423-4 (1996).
 
Neutrality Act of 1937, 50 Stat. 121 (1937).
 
One commentator mockingly referred to the 1937 Act as "An Act to Preserve the United Stated from Intervention in the War of 1914-18." Fellmeth, supra note 3, at 430.
 
LANGER & GLEASON, supra note 1, at 219 (1952) (quoting Letter of Bullitt to the President, September 8, 1939 (Roosevelt Papers: Secretaryís File, Box 43)).
 
Id. at 142 (1952) (quoting Note to the Attorney General, July 1, 1939 (F.D.R.: His Personal Letters, II, 899-900)).
 
Id. at 219 (1952) (quoting Chit of the President, outlining ideal on repeal, perhaps in anticipation of his address to Congress, in longhand and undated, but presumably circa September 13, 1939 (F.D.R.: His Personal Letters, II, 923)).
 
Neutrality Act of 1939, ch. 2, 54 Stat 4 (1939) (codified as amended at 22 U.S.C. § 441 et seq. (1995)).
 
10  See LANGER & GLEASON, supra note 1, at 232 (1952). 
 
11 See id. at 233 (1952).
 
12 Id.
 
13 See id. at 521. 
 
14 See id. at 522.
 
15 See An Act to Expedite National Defense, And for Other Purposes, 54 Stat. 676 (1940).
 
16 Id. § 14, at 681.
 
17 See Aaron Xavier Fellmeth, A Divorce Waiting to Happen: Franklin Roosevelt and the Law of Neutrality, 1935-1941, 3 BUFF. JOUR. INTíL L. 413, 436 (1996).
 
18 LANGER & GLEASON, supra note 1, at 516 (1952).
 
19 See ROBERT SHOGAN, HARD BARGAIN: HOW FDR TWISTED CHURCHILLíS ARM, EVADED THE LAW, AND CHANGED THE ROLE OF THE AMERICAN PRESIDENCY 177-78 (1995).
 
20 See generally, id. at 177-192.
 
21 LANGER & GLEASON, supra note 1, at 776.
 
22 SHOGAN, supra note 19, at 218.
 
23 Id.
 
24 See id. at 181.
 
25 See id. at 218.
 
26 Id. at 181.
 
27 Id.
 
28 Espionage Act of 1917, Ch. 20, 40 Stat. 217 (1917).
 
29 See SHOGAN, supra note 19, at 181-2.
 
30 See Rights and Duties of Neutral Powers in Naval War (Hague XIII), art. 6, October 18, 1907 ("The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.").  Note that, in the final deal, the destroyers were not routed through a private company but were indeed transferred directly from the United States government to England.
 
31 See LANGER & GLEASON, supra note 1, at 773.
 
32 Id.
 
33 SHOGAN, supra note 19, at 234.
 
34 Id
 
35 Id.
 
36 LANGER & GLEASON, supra note 1, at 770.
 
37 Id. at 774.
 
38 SHOGAN, supra note 19, at 271.
 
39 See id.
 
40 See generlly, id. at 271-279.