Digital History>eXplorations>Japanese American Internment>Internment and the Law>Personal Justice Denied
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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