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Personal Justice Denied

SUMMARY

The Commission on Wartime Relocation and Internment of Civilians was established by act of Congress in 1980 and directed to

1. review the facts and circumstances surrounding Executive Order Numbered 9066, issued February 19, 1942, and the impact of such Executive Order on American citizens and permanent resident aliens;
2. review directives of United States military forces requiring the relocation and, in some cases, detention in internment camps of American citizens, including Aleut civilians, and permanent resident aliens of the Aleutian and Pribilof Islands; and
3. recommend appropriate remedies

In fulfilling this mandate, the Commission held 20 days of hearings in cities across the country, particularly on the West Coast, hearing testimony from more than 750 witnesses: evacuees, former government officials, public figures, interested citizens, and historians and other professionals who have studied the subjects of Commission inquiry. An extensive effort was made to locate and to review the records of government action and to analyze other sources of information including contemporary writings, personal accounts and historical analyses.

By presenting this report to Congress, the Commission fulfills the instruction to submit a written report of its findings. Like the body of the report, this summary is divided into two parts. The first describes actions taken pursuant to Executive Order 9066, particularly the treatment of American citizens of Japanese descent and resident aliens of Japanese nationality. The second covers the treatment of Aleuts from the Aleutian and Pribilof Islands.

PART 1: NISEI AND ISSEI*

(* The first generation of ethnic Japanese born in the United States are Nisei; the Issei are the immigrant generation from Japan; and those who returned to Japan as children for education are Kibei.)

On February 19, 1942, ten weeks after the Pearl Harbor attack, President Franklin D. Roosevelt signed Executive Order 9066, which gave to the Secretary of War and the military commanders to whom he delegated authority, the power to exclude any and all persons, citizens and aliens, from designated areas in order to provide security against sabotage, espionage and fifth column activity. Shortly thereafter, all American citizens of Japanese descent were prohibited from living, working or traveling on the West Coast of the United States. The same prohibition applied to the generation of Japanese immigrants who, pursuant to federal law and despite long residence in the United States, were not permitted to become American citizens. Initially, this exclusion was to be carried out by "voluntary" relocation. That policy inevitably failed, and these American citizens and their alien parents were removed by the Army, first to "assembly centers"--temporary quarters at racetracks and fairgrounds--and then to "relocation centers"--bleak barrack camps mostly in desolate areas of the West. The camps were surrounded by barbed wire and guarded by military police. Departure was permitted only after a loyalty review on terms set, in consultation with the military, by the War Relocation Authority, the civilian agency that ran the camps. Many of those removed from the West Coast were eventually allowed to leave the camps to join the Army, go to college outside the West Coast or to whatever private employment was available. For a large number, however, the war years were spent behind barbed wire; and for those who were released, the prohibition against returning to their homes and occupations on the West Coast was not lifted until December 1944….

The loyalty review program was a point of decision and division for those in the camps. The advowedly loyal were eligible for release; those who were unwilling to profess loyalty or whom the government distrusted were segregated from the main body of evacuees into the Tule Lake camp, which rapidly became a center of disaffection and protest against the government and its policy--the unhappy refuge of evacuees consumed by anger and despair….

THE DECISION TO END EXCLUSION [p. 15]

The loyalty review should logically have led to the conclusion that no justification existed for excluding loyal American citizens from the West Coast. Secretary Stimson, Assistant Secretary McCloy and General Marshall reached this position in the spring of 1943. Nevertheless, the exclusion was not ended until December 1944. No plausible reason connected to any military security has been offered for this eighteen to twenty month delay in allowing the ethnic Japanese to return to their homes, jobs and businesses on the West Coast, despite the fact that the delay meant, as a practical matter, that confinement in the relocation camps continued for the great majority of evacuees for another year and a half.

Between May 1943 and May 1944, War Department officials did not make public their opinion that exclusion of loyal ethnic Japanese from the West Coast no longer had any military justification. If the President was unaware of this view, the plausible explanation is that Secretary Stimson and Assistant Secretary McCloy were unwilling, or believed themselves unable, to face down political opposition on the West Coast. General DeWitt repeatedly expressed opposition until he left the Western Defense Command in the fall of 1943, as did West Coast anti-Japanese factions and politicians.

In May 1944 Secretary Stimson put before President Roosevelt and the Cabinet his position that the exclusion no longer had a military justification. But the President was unwilling to act to end the exclusion until the first Cabinet meeting following the Presidential election of November 1944. The inescapable conclusion from this factual pattern is that delay was motivated by political considerations....

[about the implementation of Executive Order 9066.]

At this late date of February 14 [, 1942] General DeWitt finally sent to the Secretary of War his final recommendation on the "Evacuation of Japanese and Other Subversive Persons from the Pacific Coast." Having estimated that the West Coast was open to air and naval attacks as well as sabotage, but without suggesting that a Japanese raid or invasion would land troops on the West Coast, the General set out his military justification for requesting the power to exclude ethnic Japanese:

The area lying to the west of Cascade and Sierra Nevada Mountains in Washington, Oregon and California, is highly critical not only because the lines of communication and supply in the Pacific theater pass through it, but also because of the vital industrial production therein, particularly aircraft. In the war in which we are now engaged racial affiliations are not severed by migration. The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become "Americanized," the racial strains are undiluted. To conclude otherwise is to expect that children born of white parents on Japanese soil sever all racial affinity and become loyal Japanese subjects, ready to fight and, if necessary, to die for Japan in a war against the nation of their parents. That Japan is allied with Germany and Italy in this struggle is no ground for assuming that any Japanese, barred from assimilation by convention as he is, though born and raised in the United States, will not turn against this nation, when the final test of loyalty comes. It, therefore, follows that along the vital Pacific Coast over 112,000 potential enemies, of Japanese extraction, are at large today. There are indications that these are organized and ready for concerted action at a favorable opportunity. The very fact that no sabotage has taken place is a disturbing and confirming indication that such action will be taken.

The only justification for exclusion here, beyond DeWitt's belief that ethnicity ultimately determines loyalty, is the unsupported conclusion that "indications" show that the Japanese "are organized and ready for concerted action." The General's best argument for the truth of this was the fact that it hadn't happened yet. It would be hard to concoct a more vicious, less professional piece of military reasoning....

[about the Western Defense Command]

... In the view of the WDC [Western Defense Command], the review and control of civilians who presented some security question might well require other methods:


One of the most fundamental parts of the problem is that Americans, having been trained under our Common Law system of courts and juries, are strongly imbued with the idea that determinations by courts and juries are not only reasonably accurate but also that they completely solve a specific problem, and that a problem, having once been decided by a jury, cannot be reopened under the double jeopardy theory of our law. This unquestionably is the reason so many people felt that hearing or screening boards could easily have examined the records of the meetings of the Japanese population and satisfactorily separated the sheep from the goats. At the same time, they would be quite undisturbed by the fact that possibly some who should have been goats were labled as sheep. It is a real question whether in wartime we can afford to protect our peace and security by these quite slipshod determinations. Ordinarily in peacetime, if a criminal, who has committed a theft or some crime of violence, has been acquitted, there is little likelihood that the public as a whole will be penalized for this inaccurate judgment of the court or jury, for such a criminal will only again commit a crime probably affecting one member of society; but in the case of one committing espionage or sabotage, the effect upon the population as a whole is quite different. The furnishing of a vital piece of information to the enemy may affect thousands of lives, rather than just one individual. ... So the question has to be asked whether our Common Law system of trial by jury for an individual crime is sufficiently satisfactory in the situation under discussion here.

Another phase of our court system that works well enough in the eyes of the majority in peacetime, but which has to be re-examined in time of war, is the theory that the jury can only be composed of people who have formed no opinion about the trial at issue, for otherwise a jury member either will be removed for cause or pre-emptorily challenged by either side. ...

The theory that any reasonably honest and intelligent person is capable of passing judgment upon many complex factors is certainly open to severe question in the case of making determinations in the interest of the peace and security of the country in time of war.

The WDC went the additional step of suggesting a citizen education program to condition the public to accept such deprivations of due process in a future war.

In essence, the WDC was willing to advocate military control of civilians in wartime unfettered by normal constitutional restraints....

THE SUPREME COURT CASES

Immediately after the announcement [Public Proclamation Number 21, December 17, 1944] the Supreme Court handed down opinions in both Korematsu and Ex parte Endo. [106. Korematsu v. United States, 323 U. S. 214 (1944); Ex parte Endo, 323 U. S. 283 (1944).] In Korematsu, a divided court upheld the criminal conviction of Fred Korematsu for failing to report to an assembly center in May 1942 pursuant to the plan through which he would be excluded from California and sent to a relocation center. Justice Hugo Black wrote a short opinion for the majority which is remarkable in its treatment of both the facts and the law. The Court did not undertake any careful review of the facts of the situation on the West Coast in early 1942. It avoided this task by choosing to give great deference to the military judgment on which the decision was based. This approach of deferring to the military judgment rather than looking closely at the record which the government had been able to pull together was the only plausible course for the Court to follow if it were to conclude that exclusion was constitutionally permissible. If the Court had looked hard, it would have found that there was nothing there--no facts particularly within military competence which could be rationally related to the extraordinary action taken. Justice Murphy's vehement dissent made that plain as he dissected and destroyed General DeWitt's Final Report. It is the inevitable conclusion of those who carefully studied the opinion, the briefs and the record immediately after Korematsu was decided. Eugene Rostow wrote the seminal article [note (not named in the text): Eugene Rostow, "The Japanese American Cases--A Disaster," 54 Yale Law Journal 489 (1945)] about the cases in 1945 and dealt pointedly with the issue of factual proof of "military necessity." Rostow believed a convincing and substantial factual case had to be made before civil rights could be permissively invaded as they were here, but he concluded that one did not have to insist upon that rule of proof to conclude that the Japanese American cases were wrongly decided:

No matter how narrowly the rule of proof is formulated, it could not have been satisfied in either the Hirabayashi or the Korematsu cases. Not only was there insufficient evidence in those cases to satisfy a reasonably prudent judge or a reasonably prudent general: there was no evidence whatever by which a court could test the responsibility of General DeWitt's action, either under the statute of March 21, 1942, or on more general considerations. True, in the Hirabayashi case the Court carefully identified certain of General DeWitt's proclamations as "findings," which established the conformity of his actions to the standard of the statute--the protection of military resources against the risk of sabotage and espionage. But the military proclamations record conclusions, not evidence. And in both cases the record is bare of testimony on either side about the policy of the curfew or exclusion orders. There was every reason to have regarded this omission as a fatal defect, and to have remanded in each case for a trial on the justification of the discriminatory curfew and of the exclusion orders.

Such an inquiry would have been illuminating. General DeWitt's Final Report and his testimony before committees of Congress clearly indicated that his motivation was ignorant race prejudice, not facts to support the hypothesis that there was a greater risk of sabotage among the Japanese than among residents of German, Italian, or any other ethnic affiliation. The most significant comment on the quality of the general's report is contained in the government's brief in Korematsu v. United States. There the Solicitor General said that the report was relied upon "for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice, and we rely upon the Final Report only to the extent that it relates such facts." Yet the Final Report embodied the basic decision under review and stated the reasons why it was actually undertaken. General DeWitt's Final Recommendation to the Secretary of War, dated February 14, 1942, included in the Final Report, was the closest approximation we have in these cases to an authoritative determination of fact. [107. Eugene Rostow, "The Japanese American Cases--A Disaster," 54 Yale Law Journal 489, 520 (1945)(footnotes omitted [in original]).]

We have already analysed the conclusory beliefs about ethnicity determining loyalty which are central to DeWitt's final recommendation, and have pointed out the weakness of the government's case when it was put to its proof on the facts in cases such as Ebel and Schueller.

No one reading the Supreme Court's opinion today with knowledge of the exclusion, evacuation and detention can conclude that the majority opinion displays any close knowledge of the reasoning used by the government in the momentous historical events under review. The only concrete item pointed out to show disloyalty among evacuees was the fact that approximately 5,000 American citizens in the relocation centers had refused to swear unqualified allegiance to the United States, a fact that is meaningless without understanding conditions within the camps.

What of the law on which the case was based? There are two principles in contention in the majority opinion; the presumption against invidious racial discrimination which requires that racial classifications be given strict scrutiny, and the deference to military judgment in wartime based on the war powers of the constitution and expressed in the banal aphorism that the power to wage war is the power to wage war successfully. In this case, of course, the Court found that military interests prevailed over the presumption against racial discrimination.

Today the decision in Korematsu lies overruled in the court of history. First, the Supreme Court, a little more than a year later in Duncan v. Kahanamoku, reviewed the imposition of martial law in Hawaii and struck it down, making adamantly clear that the principles and practices of American government are permeated by the belief that loyal citizens in loyal territory are to be governed by civil rather than military authority, and that when the military assumes civil functions in such circumstances it will receive no deference from the courts in reviewing its actions. [108. Duncan v. Kahanamoku, 327 U. S. 304 (1946); see analysis in Chapter 11, Hawaii, pp 280-82.] Korematsu fits the Duncan pattern--the exclusion of the Nikkei not only invaded the recognized province of civil government, it was based on cultural and social facts in which the military had no training or expertise. General DeWitt had assumed the role of omniscient sociologist and anthropologist. Duncan makes clear that no deference will be given to military judgments of that nature.

The other leg of the opinion, the failure to strike down an invidious racial discrimination, stands isolated in the law--the Japanese American cases have never been followed and are routinely cited as the only modern examples of invidious racial discrimination which the Supreme Court has not stricken down. Typically, Justice Powell wrote in 1980:

Under this Court's established doctrine, a racial classification is suspect and subject to strict judicial scrutiny. ... Only two of this Court's modern cases have held the use of racial classifications to be constitutional. See Korematsu v. United States, 323 U. S. 214 (1944); Hirabayashi v. United States, 320 U. S. 81 (1943). Indeed, the failure of legislative action to survive strict scrutiny has led some to wonder whether our review of racial classifications has been strict in theory, but fatal in fact. [109. Fullilove v. Klutnick, 448 U. S. 448, 507 (1980) (Justice Powell concurring).]

Moreover, the law has evolved in the last forty years and the equal protection of the laws, once applicable only to the states by the language of the Fourteenth Amendment, has now been applied through the due process clause of the Fifth Amendment to actions of the federal government. [110. Bolling v. Sharp, 347 U. S. 497 (1954).] Thus the constitutional protection against federal discrimination has been strengthened. Korematsu is a curiosity, not a precedent on questions of racial discrimination.

Finally, insofar as Korematsu relied on the inherent authority of an executive order from the Commander in Chief and not on a program articulated and defined by statute, that precedent has been overruled by the decision of the court in the steel seizure case. [111. Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579 (1952).]

Korematsu has not been overruled--we have not been so unfortunate that a repetition of the facts has occurred to give the Court that opportunity--but each part of the decision, questions of both factual review and legal principles, has been discredited or abandoned.

The result of the companion case of Ex parte Endo was very different. The court unanimously reversed Endo and ruled that an admittedly loyal American citizen could not be held in a relocation camp against her will. But even this ruling was on the narrow ground that no statute or even an explicit executive order supported this course of conduct. The Supreme Court does not reach constitutional issues unnecessarily, but the tone of Justice Douglas's writing in Endo was nonetheless crabbed and confined. Even this very substantial and important victory for the evacuees did not come with an air of generosity or largeness of spirit. [112. In his autobiography, Justice Douglas commented on the decisions and his own later view of the cases:

Was it constitutional to evacuate only citizens of Japanese ancestry? That was an issue hotly contested both in the curfew case (Hirabayashi v. United States, 320 U. S. 81) and in the evacuation case (Korematsu v. United States, 323 U. S. 214).

The Pentagon's argument was that if the Japanese army landed in areas thickly populated by Americans of Japanese ancestry, the opportunity for sabotage and confusion would be great. By doffing their uniforms they would be indistinguishable from the other thousands of people of like color and stature. It was not much of an argument, but it swayed a majority of the Court, including myself. The severe bite of the military evacuation order was not in a requirement to move out but in the requirement to move out of the West Coast and move into concentration camps in the interior. Locking up the evacuees after they had been removed had no military justification. I wrote a concurring opinion, which I never published, agreeing to the evacuation but not to evacuation via the concentration camps. My Brethren, especially Black and Frankfurter, urged me strongly not to publish. "The issue of detention is not here," they said. "And the Court never decides a constitutional question not present." The latter was of course not true, as John Marshall's famous Marbury v. Madison (5 U. S. 137) shows. Technically, however, the question of detention was not presented to us. Yet evacuation via detention camps was before us, and I have always regretted that I bowed to my elders and withdrew my opinion.

On the same day that we decided the evacuation case we held that there was no authority to detain a citizen, absent evidence of a crime (Ex parte Endo, 323 U. S. 283). Meanwhile, however, grave injustices had been committed. Fine American citizens had been robbed of their properties by racists--crimes that might not have happened if the Court had not followed the Pentagon so literally. The evacuation case, like the flag-salute case, was ever on my conscience. Murphy and Rutledge, dissenting, had been right." (William O. Douglas, The Court Years: 1935-1975 [New York: Random House, 1980], pp. 279-280.)]

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