by Kai Bird
The arrest on June 13,1942, of four German saboteurs spotted by a Coast Guardsman burying their uniforms and explosives in the sands of a Long Island beach confirmed all of McCloy’s assumptions that the enemy would engage in sabotage. He was not surprised that two of the saboteurs were German Americans; this only confirmed everything he had learned from his Black Tom experience. But it did not mean that he felt compelled to urge the relocation or internment of German Americans. He recognized that this was impractical, given the large numbers and the widespread integration of the German ethnic minority in American society. That German Americans had committed sabotage nevertheless provided justification for interning the Japanese Americans.
Taken into custody by the FBI, the four German agents were found to have a large supply of explosives, detonators, maps of key bridges, railroads and locks on the Ohio River, plans of various industrial plants, and more than $82,000 in American dollars. There was no question of their intent to commit sabotage. Under interrogation, the two German American agents turned state’s evidence and admitted that they had been brought to Long Island by a German submarine, U-boat No. 202. They also volunteered the information that another team of saboteurs was scheduled to land elsewhere on the East Coast. J. Edgar Hoover’s men scoured the Eastern shoreline, and though they missed the second team’s landing, by June 27 the FBI had arrested four more agents, who had landed by submarine in Florida.77
McCloy believed the saboteurs should be tried in camera and executed within days.78 The Justice Department objected, and after considerable argument, a compromise was reached whereby the attorney general was allowed to prosecute the case but in a special martial-law court. McCloy was infuriated, however, when the trial opened on July 8, accompanied by one of J. Edgar Hoover’s orchestrated press extravaganzas. The names of the saboteurs were published, and the FBI naturally was given all the credit for their apprehension. When it was over, six of the eight saboteurs were electrocuted on August 8, a month after their trial had begun and only six weeks after the first of them had been caught. But none of this mollified McCloy. He believed an elementary principle of counterintelligence had been violated by even announcing the names of the saboteurs and revealing to the Germans how many of their agents had been caught. In a memorandum to Stimson, he observed, “The FBI has now had its bath of publicity. . . . It [the trial] violated every principle of counterespionage and sabotage. The Germans know now who was apprehended, and . . . how they were apprehended.”79
He thought, “Even a democracy can afford to execute a spy a few days after he is caught red-handed.”80 A war was going on, and he believed any overly fastidious observance of such constitutional rights as due process could risk the outcome of the battle. His attitude went far beyond the merely instinctive reactions of a wartime citizenry. He possessed a fully developed national-security philosophy, assigning to the executive arm of government sweeping powers.
Others in the Roosevelt administration were alarmed by the spread of such views and the growing power of the War Department. McCloy was perceived by many of his colleagues as a symbol of this trend toward a military mind-set. Attorney General Biddle complained that the army was “taking over the control of internal security in this country.” Angered by McCloy’s interference in the sabotage cases, Assistant Attorney General James Rowe wrote a memo in October warning Biddle that the Justice Department had to resist the War Department’s encroaching powers. “These isolated instances, and there are many more,” wrote Rowe, “indicate a disregard of the military mind for intellectual protest. I am perfectly well aware that Jack McCloy is an intelligent, reasonable human being. I am even more aware of the terrific pressures exerted against him by the brass hats . . . but I do believe in adapting our techniques to defend ourselves. The Department of Justice is relying upon Maginot Line thinking and the Army Panzers already hold both of our coasts and soon will hold most of the control of internal security in the United States.”81 Rowe urged Biddle to fight back like J. Edgar Hoover, who “keeps the Army on the run, and they respect him for it.” But Biddle was not the bureaucratic player that Hoover was, and Rowe had very few allies. In this war, even the civil-libertarian community was becoming infected with the national-security mind-set.
Late in the summer of 1942, McCloy had a chance to renew his friendship with Alexander Meiklejohn, when the former Amherst president came to Washington on behalf of the American Civil Liberties Union to monitor the government’s policies regarding Japanese Americans. A noted civil libertarian, Meiklejohn had nevertheless written Roger Baldwin the previous spring in defense of the evacuation. “The Japanese citizens, as a group, are dangerous both to themselves and to their fellow-citizens,” wrote Meiklejohn. “And, that being true, discriminatory action is justified.”82 But with the evacuation completed, Baldwin now wanted Meiklejohn to persuade the authorities to allow the internees to leave the relocation centers for jobs away from the West Coast.83
When Meiklejohn arrived in Washington, he quickly learned that McCloy seemed to be “near the bottom of things” concerning any questions on the relocation camps. He informed an ACLU official that McCloy was “one of my favorite Amherst boys [cum laude, 1916] whom I used to lick at tennis . . . and so I’m likely to get the low-down. . . .”84 On August 5, the two old friends got together for dinner to reminisce about Amherst and discuss the relocation camps. Using an argument suggested by Baldwin, Meiklejohn said that a liberal furlough policy would result in the absorption of the Japanese Americans into the mainstream of American community life.85 McCloy indicated he had an open mind about the issue and said that something would be decided after he came back from an inspection of the West Coast in September.
Accompanied by Bill Donovan and Al McCormack, McCloy spent the third week of September on the West Coast.86 But after numerous meetings with DeWitt and Bendetsen, he came back to Washington with more doubts about the Japanese Americans than ever before. Upon his return, he wrote Meiklejohn a letter that reveals the extent to which the policy of temporary, protective evacuation had now become a policy of long-term internment:
We would be missing a very big opportunity if we failed to study the Japanese in these Camps at some length before they are dispersed. We have not done a very good job thus far in solving the Japanese problem in this country. . . . These people, gathered as they now are in these communities, afford a means of sampling opinion and studying their customs and habits in a way we have never before had possible. We could find out what they are thinking about and we might very well influence their thinking in the right direction before they are again distributed into communities.
I am aware that such a suggestion may provoke a charge that we have no right to treat these people as “guinea pigs”, but I would rather treat them as guinea pigs and learn something useful than merely to treat them, or have them treated, as they have been in the past with such unsuccessful results.87
Only a few weeks later, McCloy warned Myer against subjecting “the Nisei to further Issei contamination” and suggested that native-born Americans should be segregated insofar as possible from exposure to Issei culture.88
After consulting at length with McCloy, Myer eventually issued a set of regulations governing the release of internees from the camps. Three kinds of passes were allowed: short-term emergency passes; restricted passes for work gangs employed off camp, invariably as crop-pickers; and indefinite furloughs. In order to qualify for an indefinite furlough, an internee had to undergo an extensive investigation. References were required from “preferably Caucasian persons,” and each internee was asked to sign a pledge of allegiance to the United States and agree to serve as an informant “regarding any subversive activity . . . both in the relocation centers and in the communities in which you are resettling.” They were instructed to stay away from large groups of Japanese and asked to “try to develop such American habits which will cause you to be accepted readily into American social groups.” Finally, those wanting out of the camps were aske
d, “Can you furnish any proof that you have always been loyal to the United States?”89
Very few internees, particularly in the beginning, were willing to subject themselves to these humiliating conditions. And yet Meiklejohn did not object to the regulations: he reported back to the ACLU that, although there were extensive “conditions” attached to any leaves, “they are, I think, essentially reasonable limits arising out of the Evacuation situation.”90 The ACLU board and national committee had by now already voted by a margin of two to one not to mount a direct constitutional challenge to the evacuation order.91
This did not mean that the War Department did not have to worry about legal challenges to the internment. Four cases were now before the courts, involving four different challenges to the evacuation orders. Gordon K. Hirabayashi, Mitsuye Endo, Minoru Yasui, and Fred T. Korematsu had each decided independently to defy the evacuation orders or, in Endo’s case, apply for a writ of habeas corpus. Endo’s habeas corpus petition was first reviewed in July 1942, but the federal district judge on the case let months pass before making a ruling. Korematsu, however, was convicted of violating the curfew and evacuation orders on September 8. Yasui was tried in June, but here too the judge let months go by before making a ruling. Hirabayashi’s trial was not scheduled until October. In all these cases, McCloy was aware that there was a good chance the judges might rule against the government. By mid-September, he was so worried that some federal judge might grant a writ of habeas corpus—or, worse, issue an opinion vacating the evacuation order—that he took the precaution of drafting a piece of legislation that would suspend the writ of habeas corpus for all citizens, including those of Japanese ancestry.92
His fears were nearly realized when, on November 16,1942, the judge in the Yasui case finally issued his opinion. Judge James A. Fee pointed out that Congress had not declared martial law or suspended habeas corpus. So long as civil courts were functioning on the West Coast, Fee wrote, “military necessity cannot be so imperative that the fundamental safeguards” of the Constitution “must be abandoned.”93 But this blow was mitigated by Fee’s curious finding, against all the documentary evidence, that Yasui was not a U.S. citizen, and that therefore, as an alien, he could be convicted of having violated the curfew.
McCloy called Judge Fee’s decision an “indiscretion,” and again made preparations to have Congress suspend habeas corpus rights for all citizens.94 As it happened, the resolution of the other cases was less than expeditious: Gordon Hirabayashi was convicted in October, but his appeal and those of Korematsu and Endo would not reach the Supreme Court for many more months. For the time being, the internment program had survived its first legal challenge.
A few weeks after Judge Fee’s decision, conditions inside one of the largest internment camps, Manzanar, resulted in an explosion. A crowd of internees, angered by the authorities’ use of JACL inu (“stool pigeons” or informers), marched on the camp jail. There they ran into a wall of armed troops hastily brought to the scene. When the crowd refused to disperse, tear-gas grenades were thrown, and then, in the confusion, a number of shots were fired. Two internees were killed and eight seriously wounded.95 In the aftermath of this and other, less serious disturbances in the camps, Dillon Myer proceeded, with McCloy’s approval, to build a special maximum-security camp at Tule Lake, California, where troublemakers and any vocally resentful internees could be isolated. By the end of 1942, a program of temporary evacuation and relocation had become a bureaucracy dedicated to the indefinite incarceration of tens of thousands of citizens in concentration camps.
For the remainder of the war, no issue absorbed more of McCloy’s time than the internment. He certainly did not consider it the most important of the dozens of matters that crossed his desk each month. But it was the most persistent. Over time, as it became clear that whatever security justification might have existed for the internment was no longer remotely credible, he fought a rearguard battle to justify the original decision. For him, it was a matter of defending the War Department’s reputation. He was particularly anxious that the Supreme Court not declare the internment unconstitutional.
In this context, in mid-January 1943, McCloy called Mike Masaoka, the JACL’s Washington representative, into his office. The War Department, McCloy said, would soon announce the formation of an all-Nisei volunteer combat regiment. Masaoka had been lobbying McCloy for months to subject his people to the draft, or at least allow them to volunteer for military service. At first he was disquieted by McCloy’s proposal for a segregated, all-Nisei combat team; he would have preferred a simple application of the Selective Service laws. But McCloy soon persuaded him that an all-Nisei combat regiment would receive greater recognition than if a few thousand Nisei volunteers were scattered throughout the army.96 A few days later, the War Department announced that it hoped to recruit up to three thousand volunteers from the internment camps. Masaoka was the first to volunteer.
The idea that Japanese Americans interned for possible disloyalty should now be allowed to put on a uniform sharply divided the War Department. General DeWitt opposed the proposal, saying, “There isn’t such a thing as a loyal Japanese.”97 But in Washington that spring, the Supreme Court was scheduled to hear arguments on the various internment cases, and McCloy was convinced that an all-Nisei combat team could provide proof of the government’s good-faith efforts to determine the loyalty of those interned. It was evidence, he argued, that the internment was not governed by mere racial prejudice.
For the same reason, he argued, the War Department should authorize the WRA to determine the loyalty or disloyalty of individual internees and release in large numbers those thought to be loyal.98 Unfortunately, a political mistake was now made that complicated the prospects for any early mass release. As a prelude to accepting volunteers for the all-Nisei combat unit, McCloy had one of his aides compose a questionnaire designed to determine the loyalty of potential recruits. Among other questions, the internees were asked whether they were willing “to serve in the armed forces of the United States on combat duty” and “forswear any form of allegiance or obedience to the Japanese emperor.” Instead of being given only to potential volunteers, the questionnaire was circulated to all internees. This led to widespread doubts in the camps, where parents of draft-age sons feared the proposed segregated Nisei combat team was designed for suicide missions. Many others were offended by the questionnaire, since it implied they had an allegiance to the Japanese emperor. In the event, 86 percent of the internees answered affirmatively to both questions; but this left 10 percent, who now were labeled the “No-No” group. Such evidence of militancy by a sizable minority convinced Stimson and McCloy to defer any mass release until after the Supreme Court heard oral arguments on the internment cases.99”
The faulty questionnaire also resulted in far fewer than the three thousand volunteers McCloy had expected for his 442nd Regiment. Because of the anger and resentment accompanying the bitter debate inside the camps over the offending loyalty questions, only 1,181 Nisei initially stepped forward. To compensate for the shortfall, twenty-six hundred Nisei were recruited from Hawaii, where, of course, there had been no internment and no smoldering resentments. After training at Fort Shelby in Mississippi, the special combat team was shipped overseas that summer and quickly became distinguished for its exploits in the Italian theater. The 442nd eventually sustained the most battle casualties—and decorations—of any comparable unit in the army.100
In the meantime, McCloy did everything he could to ensure that the Supreme Court did not suddenly declare the internment unconstitutional. One day in the spring of 1943, he found on his desk two printed copies of a long document entitled Final Report, Japanese Evacuation from the West Coast General DeWitt proposed to release this report, written largely by Colonel Bendetsen, to the Justice Department for use in the oral arguments before the Supreme Court. Reading it over later that evening, McCloy became so alarmed that at 11:15 P.M. he placed a call to Bendetsen in San Francisco. First
he rebuked Bendetsen: “I thought it was arranged that we were to get a galley of it before you printed it up.” Then he told the colonel, “I’m distressed about it.. . . There are a number of things in it now which I feel should not be made public.”101
What disturbed McCloy most was DeWitt’s preface. If, as DeWitt claimed, it was “impossible” under any conditions to determine the loyalty of this “tightly-knit racial group,” then the War Department would seem to be taking the position before the court that the Japanese as a race were disloyal.102 McCloy knew the court would not accept this foolhardy assertion, and so he quickly had Bendetsen rewrite the report. The final version simply stated that “no ready means existed for determining the loyal and the disloyal with any degree of safety.”103 This language neatly sidestepped any racial implications. Even so, McCloy was worried enough by the report that he decided for the moment to withhold its release.
Oral arguments before the Supreme Court on the three cases challenging the constitutionality of the internment began on May 10, 1943. At least five of the justices had some reservations about the exclusion orders. But in the context of war, each justice wished to avoid having to question the right of the commander-in-chief and his officers to make military judgments. In short, every effort was made to decide each of the three cases on the narrowest, most technical grounds possible. Fred Korematsu’s case was sent back to a lower court for a ruling on the legality of the exclusion order. Three weeks later, Minoru Yasui was convicted on the narrow ground of violating a curfew order. Similarly, the court upheld Gordon Hirabayashi’s conviction for violating the curfew order, but evaded any decision on the constitutionality of the evacuation order itself. A ruling on the critical constitutional issues was in effect postponed until the Korematsu case was once more brought before the court, the following year.