At first the attorney general, Francis Biddle, and the secretary of war, Henry L. Stimson, leaned against removal. But the War Department’s assistant secretary, John McCloy, argued strongly for removal. Ultimately, the War Department and the Justice Department cleared DeWitt’s removal recommendation and sent it on to the president, who approved it.11
THE PRESIDENT’S EXECUTIVE order gave military commanders the authority to designate “military areas” and to impose restrictions on those present in the areas. Congress subsequently ratified the order with a statute that imposed criminal penalties on anyone who knowingly “shall enter, remain in, leave, or commit any act in any … military zone … contrary to” applicable “restrictions.” On March 2, 1942, General DeWitt designated the western portions of California, Oregon, and Washington as a special “military area.” And within the next few weeks DeWitt issued several orders that applied to all persons of Japanese ancestry.12
The first order imposed a curfew. A second required all persons of Japanese ancestry to remain within the West Coast “military area,” and then a third simultaneously told them to leave every part of that area but certain specified “assembly centers,” including Tanforan and Santa Anita racetracks near San Francisco and Los Angeles, respectively. The orders thereby required all persons of Japanese ancestry to gather together at those racetracks and similar designated areas. The government transported them to internment camps in the eastern parts of California and in the intermountain states. By early June 1942, 100,000 and by October 112,000 “persons of Japanese ancestry,” including 70,000 American citizens, were living in those camps, behind barbed wire and under guard.13
Camp facilities have been described as “spartan in the extreme.” Those interned lived in barracks built of tar paper and pine. The internal walls were made of thin plywood. Inside, sheets and blankets divided the bunks. The residents used common bathing and toilet facilities. In some camps daily winds would blow dust and sand everywhere. The Japanese internees lived in the camps for two to three years. Within a few months of their arrival, however, any realistic threat of a California invasion had disappeared. The American armed forces began to win victories in Europe and the Pacific. Indeed, thousands of Japanese-Americans joined the U.S. Army. The Nisei 442nd Regimental Combat Team emerged as the “most decorated unit” in Europe, having received more than eighteen thousand decorations for valor.14
The government authority that ran the camps, the War Relocation Authority (WRA), itself began to recognize that it lacked any justification for continuing to confine the residents. By October 1942 the WRA had developed a screening program to identify internees whose loyalty was in doubt and whom it sent to a camp at Tule Lake, California. The WRA offered to release the rest, provided they agreed not to return to California, where anti-Japanese sentiment was strong. By 1943 the WRA had begun to abandon this requirement, and by late 1944 the government had announced it would close all the camps the following year, eventually permitting the residents to return to California.15
Before that happened, a few of the affected Japanese-Americans tried to contest the legality of the relocation orders, and four cases eventually reached the Supreme Court. Two of the cases, those of Gordon Hirabayashi and Fred Korematsu, were critically important. The Court held against both Hirabayashi and Korematsu. Nearly forty years later, in 1988, Congress enacted a resolution of apology for what one of the camp residents, Fred Korematsu, properly described as “a great wrong.” But what about 1944? Why did the Court not reach the same conclusion then?16
HIRABAYASHI
GORDON HIRABAYASHI WAS an American citizen born of Japanese parents in Auburn, Washington. A pacifist, he deliberately violated the curfew and the exclusion orders in May 1942. Immediately thereafter, he went to the FBI, bringing with him a briefcase containing papers that documented his violations, and explained that he wanted to test the orders’ lawfulness.17
The government charged Hirabayashi with two criminal misdemeanors, the first for refusing to report to an assembly center, the second for not keeping the curfew. He was convicted of both. The federal judge, after holding the curfew orders constitutional, sentenced him to consecutive sentences of thirty days of imprisonment for each violation—a total of sixty days. When Hirabayashi discovered that he would serve his thirty-day sentences in the local jail, he asked to serve instead in an outdoor work camp. The judge, making a decision that had surprisingly important later consequences, accommodated him, changing Hirabayashi’s sentence to ninety days for each violation to run concurrently, that is, ninety days in total.18
Hirabayashi appealed his convictions to the Ninth Circuit Court of Appeals. That court held the case on its docket for several months without reaching a decision. On February 19, 1943, the appeals court heard oral argument. Then, at the Justice Department’s request, it asked the Supreme Court to consider the constitutional questions. The Court announced on April 5 that it would decide the case.19
Both sides saw the case as a test of the government’s internment authority. The American Civil Liberties Union (ACLU) guided the preparation of Hirabayashi’s brief, which focused on detention. How could the Constitution permit detention of American citizens without any procedural safeguards? How could it permit detention of a group whose members were mostly indisputably loyal? How could it select that group on the basis of race? Why, at the very least, did the government not begin a loyalty screening program immediately after internment began?20
The government did not find these questions easy to answer. How could the War Department argue against loyalty screening? It recognized that many citizens of Japanese ancestry were undoubtedly loyal. In early 1943 it had created that highly decorated Nisei fighting unit, the 442nd Regimental Combat Team. And as I’ve mentioned, the War Relocation Authority began a screening program that would allow loyal citizens to return to the West Coast, but with a catch. A screening question asked if the internee was willing to “serve in the armed forces of the United States on combat duty.” The WRA counted a negative answer, even from women and children, as suggesting uncertain loyalty. It then decided there were too many negatives to warrant allowing any internees to return to California. Regardless, why not screen and return?21
The War Department began to lose confidence in General DeWitt. The general filed a long report in which he justified the original relocation on grounds of military necessity (invasion, sabotage, espionage). He justified the lack of screening not on grounds that “there was insufficient time” but for reasons resting on racial stereotype: “the realities” are, he said, “that an exact separation of the ‘sheep from the goats’ was unfeasible.” DeWitt also opposed introduction of a new screening program because doing so now would lead judges to ask why it could not have been done earlier. After reading the report, John McCloy concluded that it sounded racist and would hurt the government’s cause, and therefore refused at first to make the report public.22
At the same time, the Justice Department began to lose confidence in the War Department. Edward Ennis, a Justice Department lawyer, read an October 1942 Harper’s Magazine article whose author appeared to be a high-ranking Naval Intelligence officer. The author revealed that within six weeks of Pearl Harbor the Office of Naval Intelligence (in charge of the armed forces’ Japan-related intelligence) had estimated the number of potential “saboteurs or agents” within the United States at approximately thirty-five hundred. He wrote that “the entire ‘Japanese Problem’ has been magnified out of its true proportion, largely because of the physical characteristics of the people,” and he recommended that the problem “be handled on the basis of the individual, regardless of citizenship, and not on a racial basis.” He concluded that it would be necessary to evacuate, at the very most, ten thousand individuals whom the Office of Naval Intelligence could identify by name. After reading this, Ennis asked the solicitor general how the department could tell the Court that individual screening prior to relocation would have been impractical, when it seemed tha
t General DeWitt was told the contrary. Moreover, the British had provided individual hearings within a few months to more than a hundred thousand German and Italian “enemy aliens.”23
When it argued in the Supreme Court, however, the government followed DeWitt’s line of thinking. The solicitor general told the Court that in January 1942 the army thought invasion possible. Fears of espionage and sabotage by Japanese-Americans were “realistic and not a figment of the imagination.” Furthermore, the “task of promptly segregating the potentially disloyal from the loyal,” though “comparatively simple,” would have taken “many months, perhaps years,” because Japanese-Americans “had never become assimilated” and some “may lack to some extent a feeling of loyalty toward the United States” as a result of discriminatory treatment. The solicitor general spoke of the fear that among the Japanese-Americans there were “a number of persons who might assist the enemy.” He said this fear was “not based on race but on these other factors,” that is, aiding the enemy. Lawyers representing California, Washington, and Oregon had obtained copies of DeWitt’s report and used it to provide support for similar race-based arguments.24
On June 21, 1943, the Court released its opinion. It did not decide the most important question presented—that of relocation. Instead, it stated that it needed only to decide the curfew question. If the curfew order was valid, then what was in effect a single ninety-day sentence was valid, and all the other issues in respect to Hirabayashi’s punishment were purely hypothetical. And, in the Court’s view, the curfew order was legally valid.25
The Court thought the congressional legislation and the executive order clearly delegated to a military commander the power to issue a curfew order. The basic question was whether the Constitution permitted that commander to do so, given that the order restricted the freedom of American citizens to leave their homes and that it was race based. The Court answered this question by holding the curfew constitutional, on the basis of the wartime emergency, the constitutional grants of the war powers to the president and to Congress, and the consequent need for judges to defer to military decision making.26
The Court, it said, cannot “sit in review of the wisdom” of the warmaking activities of the executive and legislative branches; nor can it “substitute its judgment for theirs.” Rather, a court should simply ask whether “in the light of all the relevant circumstances” as seen at the time there was a “reasonable basis for … imposing the curfew.” The Court then explained why it believed there was a reasonable basis here.27
As to wartime need: the military authorities feared invasion, arguing that the risk of sabotage and espionage in the relevant geographic area seemed obvious. In any event, the military authorities made “findings of danger from espionage and sabotage, and of the necessity of the curfew order to protect against them.”28
As to race: the “danger of espionage and sabotage, in time of war and of threatened invasion,” warrants an exception to the general rule that “discrimination based on race alone” amounts to a “denial of equal protection.” The “solidarity” of those of Japanese origin, their comparative lack of assimilation, and their resentment provoked by restrictions all taken together may have “encouraged the continued attachment of members of this group to Japan”—or at least the relevant military authorities may have so found. And “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.”29
The conclusion: because the “circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision,” the “curfew order as applied, and at the time it was applied, was within the boundaries of the war power.”30
Although the decision was unanimous, three justices wrote separate opinions as well. Justice Douglas underlined the Court’s inability to second-guess the military. Given that “the orders … have some relation to ‘protection against espionage.…,’ our task is at an end” (although some reclassification system might eventually be necessary). Justice Frank Murphy deplored the racial distinctions but thought they were necessary here because of the “great emergency,” the “critical military situation,” and the “urgent necessity of taking prompt and effective action to secure defense installations and military operations against the risk of sabotage and espionage.” Justice Wiley Blount Rutledge wrote that General DeWitt had “wide discretion” to take action “necessary to the region’s … safety,” but there may still have been judicially enforceable “bounds beyond which he cannot go.”31
The government thus won the comparatively easy curfew case. But what of the harder, more central cases challenging the relocation program itself? Fred Korematsu had been convicted for refusing to report to Tanforan for relocation. His case, too, was before the Court. Although the lower courts thought a technicality (related to the sentence imposed) might block Supreme Court review, the Court held that it did not. Still, it did not decide the relocation issue. Instead, it sent Korematsu’s case (along with another “curfew” case, that of Min Yasui) back to the lower courts for further consideration.
KOREMATSU
FRED KOREMATSU, AN American citizen, was born of Japanese parents in Oakland, California. He studied briefly at Los Angeles City College and then became a welder. He tried to join the navy, which rejected him for medical reasons.32
Korematsu refused to report for relocation, and on May 30 local police arrested him. Although some of the internees he knew advised him against contesting relocation, he decided to mount a legal fight. He explained why:
Assembly Camps were for: Dangerous Enemy Aliens and Citizens; These camps have been definitely an imprisonment under armed guard with orders shoot to kill. In order to be imprisoned, these people should have been given a fair trial in order that they may defend their loyalty at court in a democratic way, but they were placed in imprisonment without any fair trial! Many Disloyal Germans and Italians were caught, but they were not all corralled under armed guard like the Japanese—is this a racial issue? If not, the Loyal Citizens want fair trial to prove their loyalty! Also their [sic] are many loyal aliens who can prove their loyalty to America, and they must be given fair trial and treatment! Fred Korematsu’s Test Case may help.33
In mid-1942, Korematsu was convicted of violating the statute enforcing the exclusion (that is, the “report for internment”) orders. As I mentioned, the Court did not resolve the relocation issue the first time it heard his case but instead returned the case to the court of appeals for further consideration. The Supreme Court might have heard the case in the spring of 1944, but further delay, in part because of disagreements among the lawyers, meant that it did not hear the case until October 1944.34
In the meantime, the factual foundation underlying the government’s arguments began to crumble. General DeWitt had written a new, more complete final report in which he repeated his claims of espionage, sabotage, and dual loyalty. He claimed, for example, that before the relocation he had received “hundreds of reports nightly of signal lights visible from the coast, and of intercepts of unidentified radio transmissions” from the mainland to offshore submarines. The report became public. Newspapers across the country wrote about it. One press article said that in 1942 the “Japs attacked all ships leaving coast” (Washington Post). Others said that “signals from the shore aided the Japanese in attacks on the West Coast” (San Francisco Examiner) and that there were “plenty of reasons for removing Japs” (Los Angeles Times). The press criticized the “reluctance of the Justice Department” to accept and enforce all DeWitt’s recommendations.35
But DeWitt had gone too far. The publicity led two Justice Department lawyers working on the Korematsu case to ask the Federal Communications Commission (FCC) and the FBI to look into the report’s claims. The FCC returned with documents showing that, at DeWitt’s request, soon after Pearl Harbor the FC
C had set up a communications detection system with roving patrol boats. But they had found no clandestine transmissions; any reports of those transmissions had come from untrained army privates who did not know how to use the electronic detection equipment. And they had told DeWitt this at the time. The FCC had investigated 760 reports of suspicious signals in the first half of 1942, and none came from Japanese-American sources. (Of the 760 instances, 641 involved no signal, the remaining 119 emanated from ordinary sources, such as army and navy transmitters and licensed commercial broadcasting stations.) The upshot, said the FCC, was that at the time of relocation “there wasn’t a single illicit station and DeWitt knew it.”36
The FBI report said the bureau had no information linking attacks on ships or the shoreline immediately after Pearl Harbor to espionage activity onshore or to illicit radio or light signaling. The report traced DeWitt’s sabotage charges to three instances in which offshore Japanese vessels had shelled or bombed West Coast targets, two of which took place after the relocation and the third (ineffective shelling near Santa Barbara) was based on information collected long before Pearl Harbor. The FBI reiterated that J. Edgar Hoover had opposed the relocation as unnecessary at the time.37
Faced with the FCC and FBI reports, the Office of Naval Intelligence recommendation against evacuation, and Hoover’s initial opposition, the Justice Department could not easily claim military necessity to justify the relocation. The two Justice Department lawyers wrote a draft brief referring to Hirabayashi’s upholding the curfew while specifically claiming only that in 1942 army officials had “ample ground” to fear that Japan would attack the West Coast. The lawyers added a draft footnote that asked the Court not to take “judicial notice” of facts stated in DeWitt’s final report. The draft footnote said that the report’s “recital of the circumstances justifying the evacuation as a matter of military necessity” is “in several respects, particularly with reference to the use of illegal radio transmitters and to shore-to-ship signaling by persons of Japanese ancestry, in conflict with information in the possession of the Department of Justice.”38
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