Court Reverses Korematsu Conviction - Korematsu v. U.S., 584 F.Supp. 1406, 16 Fed. R. Evid. Serv. 1231 (N.D.Cal. 1984)
Companion case to Korematsu - explores the exemption process for detainees - Ex parte Mitsuye Endo, 323 U.S. 283 (1944)
Companion case - Hirabayashi v. United
States, 320 U.S. 81, 95, 63 S.Ct. 1375, 1383, 87 L.Ed. 1774 (1943)
|||SUPREME COURT OF THE UNITED STATES
323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194
|||December 18, 1944
|||CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
|||Messrs. Wayne M. Collins and Charles A. Horsky argued the cause, and Mr.
Collins was on the brief, for petitioner.
|||Solicitor General Fahy, with whom Assistant Attorney General Wechsler
and Messrs. Edward J. Ennis, Ralph F. Fuchs, and John L. Burling were on
the brief, for the United States.
|||Messrs. Saburo Kido and A. L. Wirin filed a brief on behalf of the Japanese
American Citizens League; and Messrs. Edwin Borchard, Charles A. Horsky,
George Rublee, Arthur DeHon Hill, Winthrop Wadleigh, Osmond K. Fraenkel,
Harold Evans, William Draper Lewis, and Thomas Raeburn White on behalf of
the American Civil Liberties Union, as amici curiae, in support of petitioner.
|||Messrs. Robert W. Kenney, Attorney General of California, George Neuner,
Attorney General of Oregon, Smith Troy, Attorney General of Washington,
and Fred E. Lewis, Acting Attorney General of Washington, filed a brief
on behalf of the States of California, Oregon and Washington, as amici curiae,
in support of the United States.
|||Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge
|||The opinion of the court was delivered by: Black
|||1. Civilian Exclusion Order No. 34 which, during a state of war with Japan
and as a protection against espionage and sabotage, was promulgated by the
Commanding General of the Western Defense Command under authority of Executive
Order No. 9066 and the Act of March 21, 1942, and which directed the exclusion
after May 9, 1942 from a described West Coast military area of all persons
of Japanese ancestry, held constitutional as of the time it was made and
when the petitioner -- an American citizen of Japanese descent whose home
was in the described area -- violated it. P. 219.
|||2. The provisions of other orders requiring persons of Japanese ancestry
to report to assembly centers and providing for the detention of such persons
in assembly and relocation centers were separate, and their validity is
not in issue in this proceeding. P. 222.
|||3. Even though evacuation and detention in the assembly center were inseparable,
the order under which the petitioner was convicted was nevertheless valid.
|||CERTIORARI, 321 U.S. 760, to review the affirmance of a judgment of conviction.
|||MR. JUSTICE BLACK delivered the opinion of the Court.
|||The petitioner, an American citizen of Japanese descent, was convicted
in a federal district court for remaining in San Leandro, California, a
"Military Area," contrary to Civilian Exclusion Order No. 34 of
the Commanding General of the Western Command, U.S. Army, which directed
that after May 9, 1942, all persons of Japanese ancestry should be excluded
from that area. No question was raised as to petitioner's loyalty to the
United States. The Circuit Court of Appeals affirmed, *fn1
and the importance of the constitutional question involved caused us to
|||It should be noted, to begin with, that all legal restrictions which curtail
the civil rights of a single racial group are immediately suspect. That
is not to say that all such restrictions are unconstitutional. It is to
say that courts must subject them to the most rigid scrutiny. Pressing public
necessity may sometimes justify the existence of such restrictions; racial
antagonism never can.
|||In the instant case prosecution of the petitioner was begun by information
charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173,
which provides that
|||". . . whoever shall enter, remain in, leave, or commit any act in
any military area or military zone prescribed, under the authority of an
Executive order of the President, by the Secretary of War, or by any military
commander designated by the Secretary of War, contrary to the restrictions
applicable to any such area or zone or contrary to the order of the Secretary
of War or any such military commander, shall, if it appears that he knew
or should have known of the existence and extent of the restrictions or
order and that his act was in violation thereof, be guilty of a misdemeanor
and upon conviction shall be liable to a fine of not to exceed $5,000 or
to imprisonment for not more than one year, or both, for each offense."
|||Exclusion Order No. 34, which the petitioner knowingly and admittedly
violated, was one of a number of military orders and proclamations, all
of which were substantially based upon Executive Order No. 9066, 7 Fed.
Reg. 1407. That order, issued after we were at war with Japan, declared
that "the successful prosecution of the war requires every possible
protection against espionage and against sabotage to national-defense material,
national-defense premises, and national-defense utilities. . . ."
|||One of the series of orders and proclamations, a curfew order, which like
the exclusion order here was promulgated pursuant to Executive Order 9066,
subjected all persons of Japanese ancestry in prescribed West Coast military
areas to remain in their residences from 8 p.m. to 6 a.m. As is the case
with the exclusion order here, that prior curfew order was designed as a
"protection against espionage and against sabotage." In Hirabayashi
v. United States, 320 U.S. 81, we sustained a conviction obtained for violation
of the curfew order. The Hirabayashi conviction and this one thus rest on
the same 1942 Congressional Act and the same basic executive and military
orders, all of which orders were aimed at the twin dangers of espionage
|||The 1942 Act was attacked in the Hirabayashi case as an unconstitutional
delegation of power; it was contended that the curfew order and other orders
on which it rested were beyond the war powers of the Congress, the military
authorities and of the President, as Commander in Chief of the Army; and
finally that to apply the curfew order against none but citizens of Japanese
ancestry amounted to a constitutionally prohibited discrimination solely
on account of race. To these questions, we gave the serious consideration
which their importance justified. We upheld the curfew order as an exercise
of the power of the government to take steps necessary to prevent espionage
and sabotage in an area threatened by Japanese attack.
|||In the light of the principles we announced in the Hirabayashi case, we
are unable to conclude that it was beyond the war power of Congress and
the Executive to exclude those of Japanese ancestry from the West Coast
war area at the time they did. True, exclusion from the area in which one's
home is located is a far greater deprivation than constant confinement to
the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper
military authorities of the gravest imminent danger to the public safety
can constitutionally justify either. But exclusion from a threatened area,
no less than curfew, has a definite and close relationship to the prevention
of espionage and sabotage. The military authorities, charged with the primary
responsibility of defending our shores, concluded that curfew provided inadequate
protection and ordered exclusion. They did so, as pointed out in our Hirabayashi
opinion, in accordance with Congressional authority to the military to say
who should, and who should not, remain in the threatened areas.
|||In this case the petitioner challenges the assumptions upon which we rested
our Conclusions in the Hirabayashi case. He also urges that by May 1942,
when Order No. 34 was promulgated, all danger of Japanese invasion of the
West Coast had disappeared. After careful consideration of these contentions
we are compelled to reject them.
|||Here, as in the Hirabayashi case, (supra) , at p. 99, ". . . we cannot
reject as unfounded the judgment of the military authorities and of Congress
that there were disloyal members of that population, whose number and strength
could not be precisely and quickly ascertained. We cannot say that the war-making
branches of the Government did not have ground for believing that in a critical
hour such persons could not readily be isolated and separately dealt with,
and constituted a menace to the national defense and safety, which demanded
that prompt and adequate measures be taken to guard against it."
|||Like curfew, exclusion of those of Japanese origin was deemed necessary
because of the presence of an unascertained number of disloyal members of
the group, most of whom we have no doubt were loyal to this country. It
was because we could not reject the finding of the military authorities
that it was impossible to bring about an immediate segregation of the disloyal
from the loyal that we sustained the validity of the curfew order as applying
to the whole group. In the instant case, temporary exclusion of the entire
group was rested by the military on the same ground. The judgment that exclusion
of the whole group was for the same reason a military imperative answers
the contention that the exclusion was in the nature of group punishment
based on antagonism to those of Japanese origin. That there were members
of the group who retained loyalties to Japan has been confirmed by investigations
made subsequent to the exclusion. Approximately five thousand American citizens
of Japanese ancestry refused to swear unqualified allegiance to the United
States and to renounce allegiance to the Japanese Emperor, and several thousand
evacuees requested repatriation to Japan. *fn2
|||We uphold the exclusion order as of the time it was made and when the
petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S.
543, 547; Block v. Hirsh, 256 U.S. 135, 154-5. In doing so, we are not unmindful
of the hardships imposed by it upon a large group of American citizens.
Cf. Ex parte Kawato, 317 U.S. 69, 73. But hardships are part of war, and
war is an aggregation of hardships. All citizens alike, both in and out
of uniform, feel the impact of war in greater or lesser measure. Citizenship
has its responsibilities as well as its privileges, and in time of war the
burden is always heavier. Compulsory exclusion of large groups of citizens
from their homes, except under circumstances of direst emergency and peril,
is inconsistent with our basic governmental institutions. But when under
conditions of modern warfare our shores are threatened by hostile forces,
the power to protect must be commensurate with the threatened danger.
|||It is argued that on May 30, 1942, the date the petitioner was charged
with remaining in the prohibited area, there were conflicting orders outstanding,
forbidding him both to leave the area and to remain there. Of course, a
person cannot be convicted for doing the very thing which it is a crime
to fail to do. But the outstanding orders here contained no such contradictory
|||There was an order issued March 27, 1942, which prohibited petitioner
and others of Japanese ancestry from leaving the area, but its effect was
specifically limited in time "until and to the extent that a future
proclamation or order should so permit or direct." 7 Fed. Reg. 2601.
That "future order," the one for violation of which petitioner
was convicted, was issued May 3, 1942, and it did "direct" exclusion
from the area of all persons of Japanese ancestry, before 12 o'clock noon,
May 9; furthermore it contained a warning that all such persons found in
the prohibited area would be liable to punishment under the March 21, 1942
Act of Congress. Consequently, the only order in effect touching the petitioner's
being in the area on May 30, 1942, the date specified in the information
against him, was the May 3 order which prohibited his remaining there, and
it was that same order, which he stipulated in his trial that he had violated,
knowing of its existence. There is therefore no basis for the argument that
on May 30, 1942, he was subject to punishment, under the March 27 and May
3 orders, whether he remained in or left the area.
|||It does appear, however, that on May 9, the effective date of the exclusion
order, the military authorities had already determined that the evacuation
should be effected by assembling together and placing under guard all those
of Japanese ancestry, at central points, designated as "assembly centers,"
in order "to insure the orderly evacuation and resettlement of Japanese
voluntarily migrating from Military Area No. 1, to restrict and regulate
such migration." Public Proclamation No. 4, 7 Fed. Reg. 2601. And on
May 19, 1942, eleven days before the time petitioner was charged with unlawfully
remaining in the area, Civilian Restrictive Order No. 1, 8 Fed. Reg. 982,
provided for detention of those of Japanese ancestry in assembly or relocation
centers. It is now argued that the validity of the exclusion order cannot
be considered apart from the orders requiring him, after departure from
the area, to report and to remain in an assembly or relocation center. The
contention is that we must treat these separate orders as one and inseparable;
that, for this reason, if detention in the assembly or relocation center
would have illegally deprived the petitioner of his liberty, the exclusion
order and his conviction under it cannot stand.
|||We are thus being asked to pass at this time upon the whole subsequent
detention program in both assembly and relocation centers, although the
only issues framed at the trial related to petitioner's remaining in the
prohibited area in violation of the exclusion order. Had petitioner here
left the prohibited area and gone to an assembly center we cannot say either
as a matter of fact or law that his presence in that center would have resulted
in his detention in a relocation center. Some who did report to the assembly
center were not sent to relocation centers, but were released upon condition
that they remain outside the prohibited zone until the military orders were
modified or lifted. This illustrates that they pose different problems and
may be governed by different principles. The lawfulness of one does not
necessarily determine the lawfulness of the others. This is made clear when
we analyze the requirements of the separate provisions of the separate orders.
These separate requirements were that those of Japanese ancestry (1) depart
from the area; (2) report to and temporarily remain in an assembly center;
(3) go under military control to a relocation center there to remain for
an indeterminate period until released conditionally or unconditionally
by the military authorities. Each of these requirements, it will be noted,
imposed distinct duties in connection with the separate steps in a complete
evacuation program. Had Congress directly incorporated into one Act the
language of these separate orders, and provided sanctions for their violations,
disobedience of any one would have constituted a separate offense. Cf. Blockburger
v. United States, 284 U.S. 299, 304. There is no reason why violations of
these orders, insofar as they were promulgated pursuant to Congressional
enactment, should not be treated as separate offenses.
|||The Endo case, post, p. 283, graphically illustrates the difference between
the validity of an order to exclude and the validity of a detention order
after exclusion has been effected.
|||Since the petitioner has not been convicted of failing to report or to
remain in an assembly or relocation center, we cannot in this case determine
the validity of those separate provisions of the order. It is sufficient
here for us to pass upon the order which petitioner violated. To do more
would be to go beyond the issues raised, and to decide momentous questions
not contained within the framework of the pleadings or the evidence in this
case. It will be time enough to decide the serious constitutional issues
which petitioner seeks to raise when an assembly or relocation order is
applied or is certain to be applied to him, and we have its terms before
|||Some of the members of the Court are of the view that evacuation and detention
in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion
Order No. 34, Korematsu was under compulsion to leave the area not as he
would choose but via an Assembly Center. The Assembly Center was conceived
as a part of the machinery for group evacuation. The power to exclude includes
the power to do it by force if necessary. And any forcible measure must
necessarily entail some degree of detention or restraint whatever method
of removal is selected. But whichever view is taken, it results in holding
that the order under which petitioner was convicted was valid.
|||It is said that we are dealing here with the case of imprisonment of a
citizen in a concentration camp solely because of his ancestry, without
evidence or inquiry concerning his loyalty and good Disposition towards
the United States. Our task would be simple, our duty clear, were this a
case involving the imprisonment of a loyal citizen in a concentration camp
because of racial prejudice. Regardless of the true nature of the assembly
and relocation centers -- and we deem it unjustifiable to call them concentration
camps with all the ugly connotations that term implies -- we are dealing
specifically with nothing but an exclusion order. To cast this case into
outlines of racial prejudice, without reference to the real military dangers
which were presented, merely confuses the issue. Korematsu was not excluded
from the Military Area because of hostility to him or his race. He was excluded
because we are at war with the Japanese Empire, because the properly constituted
military authorities feared an invasion of our West Coast and felt constrained
to take proper security measures, because they decided that the military
urgency of the situation demanded that all citizens of Japanese ancestry
be segregated from the West Coast temporarily, and finally, because Congress,
reposing its confidence in this time of war in our military leaders -- as
inevitably it must -- determined that they should have the power to do just
this. There was evidence of disloyalty on the part of some, the military
authorities considered that the need for action was great, and time was
short. We cannot -- by availing ourselves of the calm perspective of hindsight
-- now say that at that time these actions were unjustified.
|||JUSTICE FRANKFURTER, Concurring.
|||According to my reading of Civilian Exclusion Order No. 34, it was an
offense for Korematsu to be found in Military Area No. 1, the territory
wherein he was previously living, except within the bounds of the established
Assembly Center of that area. Even though the various orders issued by General
DeWitt be deemed a comprehensive code of instructions, their tenor is clear
and not contradictory. They put upon Korematsu the obligation to leave Military
Area No. 1, but only by the method prescribed in the instructions, i. e.,
by reporting to the Assembly Center. I am unable to see how the legal considerations
that led to the decision in Hirabayashi v. United States, 320 U.S. 81, fail
to sustain the military order which made the conduct now in controversy
a crime. And so I join in the opinion of the Court, but should like to add
a few words of my own.
|||The provisions of the Constitution which confer on the Congress and the
President powers to enable this country to wage war are as much part of
the Constitution as provisions looking to a nation at peace. And we have
had recent occasion to quote approvingly the statement of former Chief Justice
Hughes that the war power of the Government is "the power to wage war
successfully." Hirabayashi v. United States, supra at 93; and see Home
Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 426. Therefore, the validity
of action under the war power must be Judged wholly in the context of war.
That action is not to be stigmatized as lawless because like action in times
of peace would be lawless. To talk about a military order that expresses
an allowable judgment of war needs by those entrusted with the duty of conducting
war as "an unconstitutional order" is to suffuse a part of the
Constitution with an atmosphere of unconstitutionality. The respective spheres
of action of military authorities and of Judges are of course very different.
But within their sphere, military authorities are no more outside the bounds
of obedience to the Constitution than are Judges within theirs. "The
war power of the United States, like its other powers . . . is subject to
applicable constitutional limitations", Hamilton v. Kentucky Distilleries
Co., 251 U.S. 146, 156. To recognize that military orders are "reasonably
expedient military precautions" in time of war and yet to deny them
constitutional legitimacy makes of the Constitution an instrument for dialectic
subleties not reasonably to be attributed to the hard-headed Framers, of
whom a majority had had actual participation in war. If a military order
such as that under review does not transcend the means appropriate for conducting
war, such action by the military is as constitutional as would be any authorized
action by the Interstate Commerce Commission within the limits of the constitutional
power to regulate commerce. And being an exercise of the war power explicitly
granted by the Constitution for safeguarding the national life by prosecuting
war effectively, I find nothing in the Constitution which denies to Congress
the power to enforce such a valid military order by making its violation
an offense triable in the civil courts. Compare Interstate Commerce Commission
v. Brimson, 154 U.S. 447; 155 U.S. 3, and Monongahela Bridge Co. v. United
States, 216 U.S. 177. To find that the Constitution does not forbid the
military measures now complained of does not carry with it approval of that
which Congress and the Executive did. That is their business, not ours.
|||I Dissent, because I think the indisputable facts exhibit a clear violation
of Constitutional rights.
|||This is not a case of keeping people off the streets at night as was Hirabayashi
v. United States, 320 U.S. 81, nor a case of temporary exclusion of a citizen
from an area for his own safety or that of the community, nor a case of
offering him an opportunity to go temporarily out of an area where his presence
might cause danger to himself or to his fellows. On the contrary, it is
the case of convicting a citizen as a punishment for not submitting to imprisonment
in a concentration camp, based on his ancestry, and solely because of his
ancestry, without evidence or inquiry concerning his loyalty and good Disposition
towards the United States. If this be a correct statement of the facts disclosed
by this record, and facts of which we take judicial notice, I need hardly
labor the Conclusion that Constitutional rights have been violated.
|||The Government's argument, and the opinion of the court, in my judgment,
erroneously divide that which is single and indivisible and thus make the
case appear as if the petitioner violated a Military Order, sanctioned by
Act of Congress, which excluded him from his home, by refusing voluntarily
to leave and, so, knowingly and intentionally, defying the order and the
Act of Congress.
|||The petitioner, a resident of San Leandro, Alameda County, California,
is a native of the United States of Japanese ancestry who, according to
the uncontradicted evidence, is a loyal citizen of the nation.
|||A chronological recitation of events will make it plain that the petitioner's
supposed offense did not, in truth, consist in his refusal voluntarily to
leave the area which included his home in obedience to the order excluding
him therefrom. Critical attention must be given to the dates and sequence
|||December 8, 1941, the United States declared war on Japan.
|||February 19, 1942, the President issued Executive Order No. 9066, *fn1
which, after stating the reason for issuing the order as "protection
against espionage and against sabotage to national-defense material, national-defense
premises, and national-defense utilities," provided that certain Military
Commanders might, in their discretion, "prescribe military areas"
and define their extent, "from which any or all persons may be excluded,
and with respect to which the right of any person to enter, remain in, or
leave shall be subject to whatever restrictions" the "Military
Commander may impose in his discretion."
|||February 20, 1942, Lieutenant General DeWitt was designated Military Commander
of the Western Defense Command embracing the westernmost states of the Union,
-- about one-fourth of the total area of the nation.
|||March 2, 1942, General DeWitt promulgated Public Proclamation No. 1, *fn2
which recites that the entire Pacific Coast is "particularly subject
to attack, to attempted invasion . . . and, in connection therewith, is
subject to espionage and acts of sabotage." It states that "as
a matter of military necessity" certain military areas and zones are
established known as Military Areas Nos. 1 and 2. It adds that "Such
persons or classes of persons as the situation may require" will, by
subsequent orders, "be excluded from all of Military Area No. 1"
and from certain zones in Military Area No. 2. Subsequent proclamations
were made which, together with Proclamation No. 1, included in such areas
and zones all of California, Washington, Oregon, Idaho, Montana, Nevada
and Utah, and the southern portion of Arizona. The orders required that
if any person of Japanese, German or Italian ancestry residing in Area No.
1 desired to change his habitual residence he must execute and deliver to
the authorities a Change of Residence Notice.
|||San Leandro, the city of petitioner's residence, lies in Military Area
|||On March 2, 1942, the petitioner, therefore, had notice that, by Executive
Order, the President, to prevent espionage and sabotage, had authorized
the Military to exclude him from certain areas and to prevent his entering
or leaving certain areas without permission. He was on notice that his home
city had been included, by Military Order, in Area No. 1, and he was on
notice further that, at sometime in the future, the Military Commander would
make an order for the exclusion of certain persons, not described or classified,
from various zones including that in which he lived.
|||March 21, 1942, Congress enacted *fn3
that anyone who knowingly "shall enter, remain in, leave, or commit
any act in any military area or military zone prescribed . . . by any military
commander . . . contrary to the restrictions applicable to any such area
or zone or contrary to the order of . . . any such military commander"
shall be guilty of a misdemeanor. This is the Act under which the petitioner
|||March 24, 1942, General DeWitt instituted the curfew for certain areas
within his command, by an order the validity of which was sustained in Hirabayashi
v. United States, supra.
|||March 24, 1942, General DeWitt began to issue a series of exclusion orders
relating to specified areas.
|||March 27, 1942, by Proclamation No. 4, *fn4
the General recited that "it is necessary, in order to provide for
the welfare and to insure the orderly evacuation and resettlement of Japanese
voluntarily migrating from Military Area No. 1, to restrict and regulate
such migration"; and ordered that, as of March 29, 1942, "all
alien Japanese and persons of Japanese ancestry who are within the limits
of Military Area No. 1, be and they are hereby prohibited from leaving that
area for any purpose until and to the extent that a future proclamation
or order of this headquarters shall so permit or direct." *fn5
|||No order had been made excluding the petitioner from the area in which
he lived. By Proclamation No. 4 he was, after March 29, 1942, confined to
the limits of Area No. 1. If the Executive Order No. 9066 and the Act of
Congress meant what they said, to leave that area, in the face of Proclamation
No. 4, would be to commit a misdemeanor.
|||May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34 *fn6
providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry,
both alien and nonalien, were to be excluded from a described portion of
Military Area No. 1, which included the County of Alameda, California. The
order required a responsible member of each family and each individual living
alone to report, at a time set, at a Civil Control Station for instructions
to go to an Assembly Center, and added that any person failing to comply
with the provisions of the order who was found in the described area after
the date set would be liable to prosecution under the Act of March 21, 1942,
(supra) . It is important to note that the order, by its express terms,
had no application to persons within the bounds "of an established
Assembly Center pursuant to instructions from this Headquarters . . ."
The obvious purpose of the orders made, taken together, was to drive all
citizens of Japanese ancestry into Assembly Centers within the zones of
their residence, under pain of criminal prosecution.
|||The predicament in which the petitioner thus found himself was this: He
was forbidden, by Military Order, to leave the zone in which he lived; he
was forbidden, by Military Order, after a date fixed, to be found within
that zone unless he were in an Assembly Center located in that zone. General
DeWitt's report to the Secretary of War concerning the programme of evacuation
and relocation of Japanese makes it entirely clear, if it were necessary
to refer to that document, -- and, in the light of the above recitation,
I think it is not, -- that an Assembly Center was a euphemism for a prison.
No person within such a center was permitted to leave except by Military
|||In the dilemma that he dare not remain in his home, or voluntarily leave
the area, without incurring criminal penalties, and that the only way he
could avoid punishment was to go to an Assembly Center and submit himself
to military imprisonment, the petitioner did nothing.
|||June 12, 1942, an Information was filed in the District Court for Northern
California charging a violation of the Act of March 21, 1942, in that petitioner
had knowingly remained within the area covered by Exclusion Order No. 34.
A demurrer to the information having been overruled, the petitioner was
tried under a plea of not guilty and convicted. Sentence was suspended and
he was placed on probation for five years. We know, however, in the light
of the foregoing recitation, that he was at once taken into military custody
and lodged in an Assembly Center. We further know that, on March 18, 1942,
the President had promulgated Executive Order No. 9102 *fn7
establishing the War Relocation Authority under which so-called Relocation
Centers, a euphemism for concentration camps, were established pursuant
to cooperation between the military authorities of the Western Defense Command
and the Relocation Authority, and that the petitioner has been confined
either in an Assembly Center, within the zone in which he had lived or has
been removed to a Relocation Center where, as the facts disclosed in Ex
parte Endo (post, p. 283) demonstrate, he was illegally held in custody.
|||The Government has argued this case as if the only order outstanding at
the time the petitioner was arrested and informed against was Exclusion
Order No. 34 ordering him to leave the area in which he resided, which was
the basis of the information against him. That argument has evidently been
effective. The opinion refers to the Hirabayashi case, (supra) , to show
that this court has sustained the validity of a curfew order in an emergency.
The argument then is that exclusion from a given area of danger, while somewhat
more sweeping than a curfew regulation, is of the same nature, -- a temporary
expedient made necessary by a sudden emergency. This, I think, is a substitution
of an hypothetical case for the case actually before the court. I might
agree with the court's Disposition of the hypothetical case. *fn8
The liberty of every American citizen freely to come and to go must frequently,
in the face of sudden danger, be temporarily limited or suspended. The civil
authorities must often resort to the expedient of excluding citizens temporarily
from a locality. The drawing of fire lines in the case of a conflagration,
the removal of persons from the area where a pestilence has broken out,
are familiar examples. If the exclusion worked by Exclusion Order No. 34
were of that nature the Hirabayashi case would be authority for sustaining
it. But the facts above recited, and those set forth in Ex parte Endo, supra,
show that the exclusion was but a part of an over-all plan for forcible
detention. This case cannot, therefore, be decided on any such narrow ground
as the possible validity of a Temporary Exclusion Order under which the
residents of an area are given an opportunity to leave and go elsewhere
in their native land outside the boundaries of a military area. To make
the case turn on any such assumption is to shut our eyes to reality.
|||As I have said above, the petitioner, prior to his arrest, was faced with
two diametrically contradictory orders given sanction by the Act of Congress
of March 21, 1942. The earlier of those orders made him a criminal if he
left the zone in which he resided; the later made him a criminal if he did
|||I had supposed that if a citizen was constrained by two laws, or two orders
having the force of law, and obedience to one would violate the other, to
punish him for violation of either would deny him due process of law. And
I had supposed that under these circumstances a conviction for violating
one of the orders could not stand.
|||We cannot shut our eyes to the fact that had the petitioner attempted
to violate Proclamation No. 4 and leave the military area in which he lived
he would have been arrested and tried and convicted for violation of Proclamation
No. 4. The two conflicting orders, one which commanded him to stay and the
other which commanded him to go, were nothing but a cleverly devised trap
to accomplish the real purpose of the military authority, which was to lock
him up in a concentration camp. The only course by which the petitioner
could avoid arrest and prosecution was to go to that camp according to instructions
to be given him when he reported at a Civil Control Center. We know that
is the fact. Why should we set up a figmentary and artificial situation
instead of addressing ourselves to the actualities of the case?
|||These stark realities are met by the suggestion that it is lawful to compel
an American citizen to submit to illegal imprisonment on the assumption
that he might, after going to the Assembly Center, apply for his discharge
by suing out a writ of , as was done in the Endo case, (supra) . The answer,
of course, is that where he was subject to two conflicting laws he was not
bound, in order to escape violation of one or the other, to surrender his
liberty for any period. Nor will it do to say that the detention was a necessary
part of the process of evacuation, and so we are here concerned only with
the validity of the latter.
|||Again it is a new doctrine of constitutional law that one indicted for
disobedience to an unconstitutional statute may not defend on the ground
of the invalidity of the statute but must obey it though he knows it is
no law and, after he has suffered the disgrace of conviction and lost his
liberty by sentence, then, and not before, seek, from within prison walls,
to test the validity of the law.
|||Moreover, it is beside the point to rest decision in part on the fact
that the petitioner, for his own reasons, wished to remain in his home.
If, as is the fact, he was constrained so to do, it is indeed a narrow application
of constitutional rights to ignore the order which constrained him, in order
to sustain his conviction for violation of another contradictory order.
|||I would reverse the judgment of conviction.
|||JUSTICE MURPHY, Dissenting.
|||This exclusion of "all persons of Japanese ancestry, both alien and
non-alien," from the Pacific Coast area on a plea of military necessity
in the absence of martial law ought not to be approved. Such exclusion goes
over "the very brink of constitutional power" and falls into the
ugly abyss of racism.
|||In dealing with matters relating to the prosecution and progress of a
war, we must accord great respect and consideration to the judgments of
the military authorities who are on the scene and who have full knowledge
of the military facts. The scope of their discretion must, as a matter of
necessity and common sense, be wide. And their judgments ought not to be
overruled lightly by those whose training and duties ill-equip them to deal
intelligently with matters so vital to the physical security of the nation.
|||At the same time, however, it is essential that there be definite limits
to military discretion, especially where martial law has not been declared.
Individuals must not be left impoverished of their constitutional rights
on a plea of military necessity that has neither substance nor support.
Thus, like other claims conflicting with the asserted constitutional rights
of the individual, the military claim must subject itself to the judicial
process of having its reasonableness determined and its conflicts with other
interests reconciled. "What are the allowable limits of military discretion,
and whether or not they have been overstepped in a particular case, are
judicial questions." Sterling v. Constantin, 287 U.S. 378, 401.
|||The judicial test of whether the Government, on a plea of military necessity,
can validly deprive an individual of any of his constitutional rights is
whether the deprivation is reasonably related to a public danger that is
so "immediate, imminent, and impending" as not to admit of delay
and not to permit the intervention of ordinary constitutional processes
to alleviate the danger. United States v. Russell, 13 Wall. 623, 627-8;
Mitchell v. Harmony, 13 How. 115, 134-5; Raymond v. Thomas, 91 U.S. 712,
716. Civilian Exclusion Order No. 34, banishing from a prescribed area of
the Pacific Coast "all persons of Japanese ancestry, both alien and
non-alien," clearly does not meet that test. Being an obvious racial
discrimination, the order deprives all those within its scope of the equal
protection of the laws as guaranteed by the Fifth Amendment. It further
deprives these individuals of their constitutional rights to live and work
where they will, to establish a home where they choose and to move about
freely. In excommunicating them without benefit of hearings, this order
also deprives them of all their constitutional rights to procedural due
process. Yet no reasonable relation to an "immediate, imminent, and
impending" public danger is evident to support this racial restriction
which is one of the most sweeping and complete deprivations of constitutional
rights in the history of this nation in the absence of martial law.
|||It must be conceded that the military and naval situation in the spring
of 1942 was such as to generate a very real fear of invasion of the Pacific
Coast, accompanied by fears of sabotage and espionage in that area. The
military command was therefore justified in adopting all reasonable means
necessary to combat these dangers. In adjudging the military action taken
in light of the then apparent dangers, we must not erect too high or too
meticulous standards; it is necessary only that the action have some reasonable
relation to the removal of the dangers of invasion, sabotage and espionage.
But the exclusion, either temporarily or permanently, of all persons with
Japanese blood in their veins has no such reasonable relation. And that
relation is lacking because the exclusion order necessarily must rely for
its reasonableness upon the assumption that all persons of Japanese ancestry
may have a dangerous tendency to commit sabotage and espionage and to aid
our Japanese enemy in other ways. It is difficult to believe that reason,
logic or experience could be marshalled in support of such an assumption.
|||That this forced exclusion was the result in good measure of this erroneous
assumption of racial guilt rather than bona fide military necessity is evidenced
by the Commanding General's Final Report on the evacuation from the Pacific
Coast area.1a In it he refers to all individuals of Japanese descent as
"subversive," as belonging to "an enemy race" whose
"racial strains are undiluted," and as constituting "over
112,000 potential enemies . . . at large today" along the Pacific Coast.2a
In support of this blanket condemnation of all persons of Japanese descent,
however, no reliable evidence is cited to show that such individuals were
generally disloyal,3a or had generally so conducted themselves in this area
as to constitute a special menace to defense installations or war industries,
or had otherwise by their behavior furnished reasonable ground for their
exclusion as a group.
|||Justification for the exclusion is sought, instead, mainly upon questionable
racial and sociological grounds not ordinarily within the realm of expert
military judgment, supplemented by certain semi-military Conclusions drawn
from an unwarranted use of circumstantial evidence. Individuals of Japanese
ancestry are condemned because they are said to be "a large, unassimilated,
tightly knit racial group, bound to an enemy nation by strong ties of race,
culture, custom and religion."4a They are claimed to be given to "emperor
worshipping ceremonies"5a and to "dual citizenship."6a Japanese
language schools and allegedly pro-Japanese organizations are cited as evidence
of possible group disloyalty,7a together with facts as to certain persons
being educated and residing at length in Japan.8a It is intimated that many
of these individuals deliberately resided "adjacent to strategic points,"
thus enabling them "to carry into execution a tremendous program of
sabotage on a mass scale should any considerable number of them have been
inclined to do so."9a The need for protective custody is also asserted.
The report refers without identity to "numerous incidents of violence"
as well as to other admittedly unverified or cumulative incidents. From
this, plus certain other events not shown to have been connected with the
Japanese Americans, it is concluded that the "situation was fraught
with danger to the Japanese population itself" and that the general
public "was ready to take matters into its own hands."10a Finally,
it is intimated, though not directly charged or proved, that persons of
Japanese ancestry were responsible for three minor isolated shellings and
bombings of the Pacific Coast area,11a as well as for unidentified radio
transmissions and night signalling.
|||The main reasons relied upon by those responsible for the forced evacuation,
therefore, do not prove a reasonable relation between the group characteristics
of Japanese Americans and the dangers of invasion, sabotage and espionage.
The reasons appear, instead, to be largely an accumulation of much of the
misinformation, half-truths and insinuations that for years have been directed
against Japanese Americans by people with racial and economic prejudices
-- the same people who have been among the foremost advocates of the evacuation.12a
A military judgment based upon such racial and sociological considerations
is not entitled to the great weight ordinarily given the judgments based
upon strictly military considerations. Especially is this so when every
charge relative to race, religion, culture, geographical location, and legal
and economic status has been substantially discredited by independent studies
made by experts in these matters.13a
|||The military necessity which is essential to the validity of the evacuation
order thus resolves itself into a few intimations that certain individuals
actively aided the enemy, from which it is inferred that the entire group
of Japanese Americans could not be trusted to be or remain loyal to the
United States. No one denies, of course, that there were some disloyal persons
of Japanese descent on the Pacific Coast who did all in their power to aid
their ancestral land. Similar disloyal activities have been engaged in by
many persons of German, Italian and even more pioneer stock in our country.
But to infer that examples of individual disloyalty prove group disloyalty
and justify discriminatory action against the entire group is to deny that
under our system of law individual guilt is the sole basis for deprivation
of rights. Moreover, this inference, which is at the very heart of the evacuation
orders, has been used in support of the abhorrent and despicable treatment
of minority groups by the dictatorial tyrannies which this nation is now
pledged to destroy. To give constitutional sanction to that inference in
this case, however well-intentioned may have been the military command on
the Pacific Coast, is to adopt one of the cruelest of the rationales used
by our enemies to destroy the dignity of the individual and to encourage
and open the door to discriminatory actions against other minority groups
in the passions of tomorrow.
|||No adequate reason is given for the failure to treat these Japanese Americans
on an individual basis by holding investigations and hearings to separate
the loyal from the disloyal, as was done in the case of persons of German
and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52.
It is asserted merely that the loyalties of this group "were unknown
and time was of the essence."14a Yet nearly four months elapsed after
Pearl Harbor before the first exclusion order was issued; nearly eight months
went by until the last order was issued; and the last of these "subversive"
persons was not actually removed until almost eleven months had elapsed.
Leisure and deliberation seem to have been more of the essence than speed.
And the fact that conditions were not such as to warrant a declaration of
martial law adds strength to the belief that the factors of time and military
necessity were not as urgent as they have been represented to be.
|||Moreover, there was no adequate proof that the Federal Bureau of Investigation
and the military and naval intelligence services did not have the espionage
and sabotage situation well in hand during this long period. Nor is there
any denial of the fact that not one person of Japanese ancestry was accused
or convicted of espionage or sabotage after Pearl Harbor while they were
still free,15a a fact which is some evidence of the loyalty of the vast
majority of these individuals and of the effectiveness of the established
methods of combatting these evils. It seems incredible that under these
circumstances it would have been impossible to hold loyalty hearings for
the mere 112,000 persons involved -- or at least for the 70,000 American
citizens -- especially when a large part of this number represented children
and elderly men and women.16a Any inconvenience that may have accompanied
an attempt to conform to procedural due process cannot be said to justify
violations of constitutional rights of individuals.
|||I Dissent, therefore, from this legalization of racism. Racial discrimination
in any form and in any degree has no justifiable part whatever in our democratic
way of life. It is unattractive in any setting but it is utterly revolting
among a free people who have embraced the principles set forth in the Constitution
of the United States. All residents of this nation are kin in some way by
blood or culture to a foreign land. Yet they are primarily and necessarily
a part of the new and distinct civilization of the United States. They must
accordingly be treated at all times as the heirs of the American experiment
and as entitled to all the rights and freedoms guaranteed by the Constitution.
|||JUSTICE JACKSON, Dissenting.
|||Korematsu was born on our soil, of parents born in Japan. The Constitution
makes him a citizen of the United States by nativity and a citizen of California
by residence. No claim is made that he is not loyal to this country. There
is no suggestion that apart from the matter involved here he is not law-abiding
and well disposed. Korematsu, however, has been convicted of an act not
commonly a crime. It consists merely of being present in the state whereof
he is a citizen, near the place where he was born, and where all his life
he has lived.
|||Even more unusual is the series of military orders which made this conduct
a crime. They forbid such a one to remain, and they also forbid him to leave.
They were so drawn that the only way Korematsu could avoid violation was
to give himself up to the military authority. This meant submission to custody,
examination, and transportation out of the territory, to be followed by
indeterminate confinement in detention camps.
|||A citizen's presence in the locality, however, was made a crime only if
his parents were of Japanese birth. Had Korematsu been one of four -- the
others being, say, a German alien enemy, an Italian alien enemy, and a citizen
of American-born ancestors, convicted of treason but out on parole -- only
Korematsu's presence would have violated the order. The difference between
their innocence and his crime would result, not from anything he did, said,
or thought, different than they, but only in that he was born of different
|||Now, if any fundamental assumption underlies our system, it is that guilt
is personal and not inheritable. Even if all of one's antecedents had been
convicted of treason, the Constitution forbids its penalties to be visited
upon him, for it provides that "no attainder of treason shall work
corruption of blood, or forfeiture except during the life of the person
attainted." But here is an attempt to make an otherwise innocent act
a crime merely because this prisoner is the son of parents as to whom he
had no choice, and belongs to a race from which there is no way to resign.
If Congress in peace-time legislation should enact such a , I should suppose
this Court would refuse to enforce it.
|||But the "law" which this prisoner is convicted of disregarding
is not found in an act of Congress, but in a military order. Neither the
Act of Congress nor the Executive Order of the President, nor both together,
would afford a basis for this conviction. It rests on the orders of General
DeWitt. And it is said that if the military commander had reasonable military
grounds for promulgating the orders, they are constitutional and become
law, and the Court is required to enforce them. There are several reasons
why I cannot subscribe to this doctrine.
|||It would be impracticable and dangerous idealism to expect or insist that
each specific military command in an area of probable operations will conform
to conventional tests of constitutionality. When an area is so beset that
it must be put under military control at all, the paramount consideration
is that its measures be successful, rather than legal. The armed services
must protect a society, not merely its Constitution. The very essence of
the military job is to marshal physical force, to remove every obstacle
to its effectiveness, to give it every strategic advantage. Defense measures
will not, and often should not, be held within the limits that bind civil
authority in peace. No court can require such a commander in such circumstances
to act as a reasonable man; he may be unreasonably cautious and exacting.
Perhaps he should be. But a commander in temporarily focusing the life of
a community on defense is carrying out a military program; he is not making
law in the sense the courts know the term. He issues orders, and they may
have a certain authority as military commands, although they may be very
bad as constitutional law.
|||But if we cannot confine military expedients by the Constitution, neither
would I distort the Constitution to approve all that the military may deem
expedient. That is what the Court appears to be doing, whether consciously
or not. I cannot say, from any evidence before me, that the orders of General
DeWitt were not reasonably expedient military precautions, nor could I say
that they were. But even if they were permissible military procedures, I
deny that it follows that they are constitutional. If, as the Court holds,
it does follow, then we may as well say that any military order will be
constitutional and have done with it.
|||The limitation under which courts always will labor in examining the necessity
for a military order are illustrated by this case. How does the Court know
that these orders have a reasonable basis in necessity? No evidence whatever
on that subject has been taken by this or any other court. There is sharp
controversy as to the credibility of the DeWitt report. So the Court, having
no real evidence before it, has no choice but to accept General DeWitt's
own unsworn, self-serving statement, untested by any cross-examination,
that what he did was reasonable. And thus it will always be when courts
try to look into the reasonableness of a military order.
|||In the very nature of things, military decisions are not susceptible of
intelligent judicial appraisal. They do not pretend to rest on evidence,
but are made on information that often would not be admissible and on assumptions
that could not be proved. Information in support of an order could not be
disclosed to courts without danger that it would reach the enemy. Neither
can courts act on communications made in confidence. Hence courts can never
have any real alternative to accepting the mere declaration of the authority
that issued the order that it was reasonably necessary from a military viewpoint.
|||Much is said of the danger to liberty from the Army program for deporting
and detaining these citizens of Japanese extraction. But a judicial construction
of the due process clause that will sustain this order is a far more subtle
blow to liberty than the promulgation of the order itself. A military order,
however unconstitutional, is not apt to last longer than the military emergency.
Even during that period a succeeding commander may revoke it all. But once
a judicial opinion rationalizes such an order to show that it conforms to
the Constitution, or rather rationalizes the Constitution to show that the
Constitution sanctions such an order, the Court for all time has validated
the principle of racial discrimination in criminal procedure and of transplanting
American citizens. The principle then lies about like a loaded weapon ready
for the hand of any authority that can bring forward a plausible claim of
an urgent need. Every repetition imbeds that principle more deeply in our
law and thinking and expands it to new purposes. All who observe the work
of courts are familiar with what Judge Cardozo described as "the tendency
of a principle to expand itself to the limit of its logic."1b A military
commander may overstep the bounds of constitutionality, and it is an incident.
But if we review and approve, that passing incident becomes the doctrine
of the Constitution. There it has a generative power of its own, and all
that it creates will be in its own image. Nothing better illustrates this
danger than does the Court's opinion in this case.
|||It argues that we are bound to uphold the conviction of Korematsu because
we upheld one in Hirabayashi v. United States, 320 U.S. 81, when we sustained
these orders in so far as they applied a curfew requirement to a citizen
of Japanese ancestry. I think we should learn something from that experience.
|||In that case we were urged to consider only the curfew feature, that being
all that technically was involved, because it was the only count necessary
to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief
Justice guarded the opinion as carefully as language will do. He said: "Our
investigation here does not go beyond the inquiry whether, in the light
of all the relevant circumstances preceding and attending their promulgation,
the challenged orders and statute afforded a reasonable basis for the action
taken in imposing the curfew." 320 U.S. at 101. "We decide only
the issue as we have defined it -- we decide only that the curfew order
as applied, and at the time it was applied, was within the boundaries of
the war power." 320 U.S. at 102. And again: "It is unnecessary
to consider whether or to what extent such findings would support orders
differing from the curfew order." 320 U.S. at 105. (Italics supplied.)
However, in spite of our limiting words we did validate a discrimination
on the basis of ancestry for mild and temporary deprivation of liberty.
Now the principle of racial discrimination is pushed from support of mild
measures to very harsh ones, and from temporary deprivations to indeterminate
ones. And the precedent which it is said requires us to do so is Hirabayashi.
The Court is now saying that in Hirabayashi we did decide the very things
we there said we were not deciding. Because we said that these citizens
could be made to stay in their homes during the hours of dark, it is said
we must require them to leave home entirely; and if that, we are told they
may also be taken into custody for deportation; and if that, it is argued
they may also be held for some undetermined time in detention camps. How
far the principle of this case would be extended before plausible reasons
would play out, I do not know.
|||I should hold that a civil court cannot be made to enforce an order which
violates constitutional limitations even if it is a reasonable exercise
of military authority. The courts can exercise only the judicial power,
can apply only law, and must abide by the Constitution, or they cease to
be civil courts and become instruments of military policy.
|||Of course the existence of a military power resting on force, so vagrant,
so centralized, so necessarily heedless of the individual, is an inherent
threat to liberty. But I would not lead people to rely on this Court for
a review that seems to me wholly delusive. The military reasonableness of
these orders can only be determined by military superiors. If the people
ever let command of the war power fall into irresponsible and unscrupulous
hands, the courts wield no power equal to its restraint. The chief restraint
upon those who command the physical forces of the country, in the future
as in the past, must be their responsibility to the political judgments
of their contemporaries and to the moral judgments of history.
|||My duties as a Justice as I see them do not require me to make a military
judgment as to whether General DeWitt's evacuation and detention program
was a reasonable military necessity. I do not suggest that the courts should
have attempted to interfere with the Army in carrying out its task. But
I do not think they may be asked to execute a military expedient that has
no place in law under the Constitution. I would reverse the judgment and
discharge the prisoner.
|||*fn1 140 F.2d 289.
|||*fn2 Hearings before the Subcommittee
on the National War Agencies Appropriation Bill for 1945, Part II, 608-726;
Final Report, Japanese Evacuation from the West Coast, 1942, 309-327; Hearings
before the Committee on Immigration and Naturalization, House of Representatives,
78th Cong., 2d Sess., on H. R. 2701 and other bills to expatriate certain
nationals of the United States, pp. 37-42, 49-58.
|||1 7 Fed. Reg. 1407.
|||2 7 Fed. Reg. 2320.
|||*fn3 56 Stat. 173.
|||*fn4 7 Fed. Reg. 2601.
|||*fn5 The italics in the quotation
are mine. The use of the word "voluntarily" exhibits a grim irony
probably not lost on petitioner and others in like case. Either so, or its
use was a disingenuous attempt to camouflage the compulsion which was to
|||*fn6 7 Fed. Reg. 3967.
|||*fn7 7 Fed. Reg. 2165.
|||*fn8 My agreement would depend
on the definition and application of the terms "temporary" and
"emergency." No pronouncement of the commanding officer can, in
my view, preclude judicial inquiry and determination whether an emergency
ever existed and whether, if so, it remained, at the date of the restraint
out of which the litigation arose. Cf. Chastleton Corp. v. Sinclair, 264
|||1a Final Report, Japanese Evacuation from the West Coast, 1942, by Lt.
Gen. J. L. DeWitt. This report is dated June 5, 1943, but was not made public
until January, 1944.
|||2a Further evidence of the Commanding General's attitude toward individuals
of Japanese ancestry is revealed in his voluntary testimony on April 13,
1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate
Congested Areas, Part 3, pp. 739-40 (78th Cong., 1st Sess.):
|||"I don't want any of them [persons of Japanese ancestry] here. They
are a dangerous element. There is no way to determine their loyalty. The
west coast contains too many vital installations essential to the defense
of the country to allow any Japanese on this coast. . . . The danger of
the Japanese was, and is now -- if they are permitted to come back -- espionage
and sabotage. It makes no difference whether he is an American citizen,
he is still a Japanese. American citizenship does not necessarily determine
loyalty. . . . But we must worry about the Japanese all the time until he
is wiped off the map. Sabotage and espionage will make problems as long
as he is allowed in this area. . . ."
|||3a The Final Report, p. 9, casts a cloud of suspicion over the entire
group by saying that "while it was believed that some were loyal, it
was known that many were not." (Italics added.)
|||4a Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation
is a problem, it is largely the result of certain social customs and laws
of the American general public. Studies demonstrate that persons of Japanese
descent are readily susceptible to integration in our society if given the
opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith,
Americans in Process (1937); Mears, Resident Orientals on the American Pacific
Coast (1928); Millis, The Japanese Problem in the United States (1942).
The failure to accomplish an ideal status of assimilation, therefore, cannot
be charged to the refusal of these persons to become Americanized or to
their loyalty to Japan. And the retention by some persons of certain customs
and religious practices of their ancestors is no criterion of their loyalty
to the United States.
|||5a Final Report, pp. 10-11. No sinister correlation between the emperor
worshipping activities and disloyalty to America was shown.
|||6a Final Report, p. 22. The charge of "dual citizenship" springs
from a misunderstanding of the simple fact that Japan in the past used the
doctrine of jus sanguinis, as she had a right to do under international
law, and claimed as her citizens all persons born of Japanese nationals
wherever located. Japan has greatly modified this doctrine, however, by
allowing all Japanese born in the United States to renounce any claim of
dual citizenship and by releasing her claim as to all born in the United
States after 1925. See Freeman, "Genesis, Exodus, and Leviticus: Genealogy,
Evacuation, and Law," 28 Cornell L. Q. 414, 447-8, and authorities
there cited; McWilliams, Prejudice, 123-4 (1944).
|||7a Final Report, pp. 12-13. We have had various foreign language schools
in this country for generations without considering their existence as ground
for racial discrimination. No subversive activities or teachings have been
shown in connection with the Japanese schools. McWilliams, Prejudice, 121-3
|||8a Final Report, pp. 13-15. Such persons constitute a very small part
of the entire group and most of them belong to the Kibei movement -- the
actions and membership of which are well known to our Government agents.
|||9a Final Report, p. 10; see also pp. vii, 9, 15-17. This insinuation,
based purely upon speculation and circumstantial evidence, completely overlooks
the fact that the main geographic pattern of Japanese population was fixed
many years ago with reference to economic, social and soil conditions. Limited
occupational outlets and social pressures encouraged their concentration
near their initial points of entry on the Pacific Coast. That these points
may now be near certain strategic military and industrial areas is no proof
of a diabolical purpose on the part of Japanese Americans. See McWilliams,
Prejudice, 119-121 (1944); House Report No. 2124 (77th Cong., 2d Sess.),
|||10a Final Report, pp. 8-9. This dangerous doctrine of protective custody,
as proved by recent European history, should have absolutely no standing
as an excuse for the deprivation of the rights of minority groups. See House
Report No. 1911 (77th Cong., 2d Sess.) 1-2. Cf. House Report No. 2124 (77th
Cong., 2d Sess.) 145-7. In this instance, moreover, there are only two minor
instances of violence on record involving persons of Japanese ancestry.
McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets,
No. 91, p. 8 (1944).
|||11a Final Report, p. 18. One of these incidents (the reputed dropping
of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942 -- a
considerable time after the Japanese Americans had been evacuated from their
homes and placed in Assembly Centers. See New York Times, Sept. 15, 1942,
p. 1, col. 3.
|||12a Special interest groups were extremely active in applying pressure
for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154-6;
McWilliams, Prejudice, 126-8 (1944). Mr. Austin E. Anson, managing secretary
of the Salinas Vegetable Grower-Shipper Association, has frankly admitted
that "We're charged with wanting to get rid of the Japs for selfish
reasons. . . . We do. It's a question of whether the white man lives on
the Pacific Coast or the brown men. They came into this valley to work,
and they stayed to take over. . . . They undersell the white man in the
markets. . . . They work their women and children while the white farmer
has to pay wages for his help. If all the Japs were removed tomorrow, we'd
never miss them in two weeks, because the white farmers can take over and
produce everything the Jap grows. And we don't want them back when the war
ends, either." Quoted by Taylor in his article "The People Nobody
Wants," 214 Sat. Eve. Post 24, 66 (May 9, 1942).
|||13a See notes 4-12, (supra) .
|||14a Final Report, p. vii; see also p. 18.
|||15a The Final Report, p. 34, makes the amazing statement that as of February
14, 1942, "The very fact that no sabotage has taken place to date is
a disturbing and confirming indication that such action will be taken."
Apparently, in the minds of the military leaders, there was no way that
the Japanese Americans could escape the suspicion of sabotage.
|||16a During a period of six months, the 112 alien tribunals or hearing
boards set up by the British Government shortly after the outbreak of the
present war summoned and examined approximately 74,000 German and Austrian
aliens. These tribunals determined whether each individual enemy alien was
a real enemy of the Allies or only a "friendly enemy." About 64,000
were freed from internment and from any special restrictions, and only 2,000
were interned. Kempner, "The Enemy Alien Problem in the Present War,"
34 Amer. Journ. of Int. Law 443, 444-46; House Report No. 2124 (77th Cong.,
2d Sess.), 280-1.
|||1b Nature of the Judicial Process, p. 51.
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