vol. 9, no. 1

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Vol. IX SAN FRANCISCO, CALIFORNIA, JANUARY, 1944 No. 1

SEEK REHEARING IN TEST CASE

Japanese Exclusion Upheld; Denman Scores Majority For Avoiding Issues

A petition has been filed with the Ninth Circuit Court of Appeals urging a rehearing of its decision, handed down in the case of Fred Toyosaburo Korematsu on December 2nd, upholding the constitutionality of the Military’s evacuation of all Japanese from the Pacific Coast. If the petition for a rehearing is denied, which is most likely, an appeal will at once be taken to the Supreme Court of the United States by Wayne M. Collins, attorney for the Northern California branch of the A. C. L. U.

Court Relies On Curfew Decision

While the various opinions filed in the important case aggregated some forty printed pages, the prevailing opinion by Presiding Judge Curtis D. Wilbur, concurred in by four other judges, dismissed Korematsu’s contention in little more than a page. The court was of the opinion that the Supreme Court’s opinion in the Hirabayashi ease, upholding the validity of the Army’s curfew restrictions imposed on citizens of Japanese ancestry, also disposed of the evacuation question, although the Surpreme Court did not expressly pass upon that issue. “However, the Supreme Court held,” said Judge Wilbur, “that under the constitution the government of the United States, in prosecuting a war, has power to do all that is necessary to the successful prosecution of a war although the exercise of those powers temporarily infringe some of the inherent rights and liberties of individual citizens which are recognized and guaranteed by the constitution.” This principle, it was said, sustained the validity of the evacuation. Other issues raised by Korematsu were also declared to have been disposed of by the Supreme Court in the Hirabayashi case.

Court Avoided Issue, Says Denman

In a concurring opinion by Judge Denman, the court was taken to task for its cavalier treatment of Korematsu’s contentions. “Outstanding,” said Judge Denman, “is the avoidance of the question of imprisonment and deportation.”

Judge Denman with devastating logic pointed out that the Supreme Court decision in the curfew case does not dispose of the evacuation question. “As seen, it (the Supreme Court) assimilated the curfew order to the fire lines and brief blackout restrictions. Here is no resemblance to the orders leading to the imprisonment of men, women and children en masse in assembly center stockades for deportation. These are orders ‘differing from the curfew order’ upon which the Supreme Court declined to pass.” That being true, the court had the duty to consider the special facts and to answer the contentions of the appellant, which it failed to do. The court made no effort to discover whether the “allowable limits of military discretion’’ had been overstepped, protested Judge Denman.

Nevertheless, Judge Denman himself reaches the conclusion that ‘‘a threatened air invasion, directed by saboteur signals, which in an hour’s time could destroy every federal court house in California, presents the necessity for the substitute of military action against such sabotage for that of civil courts.”’

Compensation Urged

At the same time, Judge Denman commented that where the acts of the government are oppressive “‘ordinary decent standards require that compensation must be made as in the case of our broken treaties with another Mongoloid group, the American Indians.”

(See opinions on pages 2 and 3)

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BACKING ASKED FOR CIVIL SERVICE LOYALTY TESTS

In a letter to all local representatives and interested organizations, the A.C.L.U. has asked that expressions of support be sent to Harry B. Mitchell, president of the U.S. Civil Service Commission, endorsing the Commission’s recent circular to its investi- gators warning them against asking improper questions concerning the loyalty to me ee States of applicants for federal posts.

The Commission is under Congressional direction not to certify as employees persons who ‘advocate the overthrow of the government” or who are “members of subversive organizations.”’ Under that authority the Commission -does not certify Communists or members of Fascist or Nazi organizations. Specifications to identify Communists are included in the Commission’s circular. No specifications have been worded to cover “Nazis and Fascists.”

Kaltenborn Urges Benefit Of the Doubt for Nisei

Returning last month from a three-week trip to the Pacific war fronts that covered some 20,000 miles, H. V. Kaltenborn, noted radio commentator, praised the performance of American-born Japanese in the war areas. According to a San Francisco Chronicle story, Kaltenborn charged the creation of a Japanese problem on the Pacific Coast and urged that “loyal Japanese here should be given the benefit of the doubt and permitted to follow their vocations.’ Kaltenborn’s entire comment about the Japanese exclusion from the Pacific Coast follows:

‘‘American-born Japanese are doing one of the greatest services for our Pacific armies, and there is no Japanese problem in Hawaii. Why in the world we had to create one here I don’t know.

“If Army control would be as intelligent here as in the islands on the Japanese prob- lem, I would favor it, but I don’t blame the Army if they don’t want to accept the head- ache here.

“I think loyal Japanese here should be given the benefit of the doubt and permitted to follow their vocations. In view of the situation on the islands in regard to the Japanese, it is evident the problem has not been handled intelligently here.”’

Army Ban On Silver Shirt Leader Contested

A. L. Wirin, counsel for the Southern California branch of the ACLU, entered the federal courts at Los Angeles on December 20 to support legal action taken by Kenneth Alexander, former leader of the Silver Shirts in Southern California, ordered out of the Pacific Coast area by the military authorities a year ago. |

Alexander, who refused to go, brought an injunction suit last February to contest the army order. The case was dismissed on the ground that the military had taken no steps to carry out the order. Alexander then appealed. While the appeal was pending, the military police broke into his home in September, threw him into an automobile, and deported him to Nevada.

The new proceedings in the courts seek to enjoin the army from preventing his return, and in addition claim damages. The case is without precedent.

Alexander, a former British subject who became a citizen years ago, served in the U. S. Navy in the first World War and again in the present war until he was discharged on physical grounds.

Page 2

Three opinions, covering forty printed. pages, set forth the decision of the Circuit Court of Appeals in the Japanese evacuation test case, Fred Toyosaburo Korematsu vs. United States of America, decided Dec. 2, 1943. All except one unimportant paragraph of the majority opinion, written by Judge Wilbur, is reprinted herewith. Ali but a small portion of Judge Denman’s outstanding concurring opinion is also set forth. We have omitted Judge Stephens’ concurring opinion which strikes us as being relatively unim- portant. Unfortunately, it has also been found necessary to omit all footnotes.

WILBUR, Cireuit Judge:

Appellant was convicted of, and placed on probation for five years for, the offense of remaining in that portion of Military Area No. 1, covered by Civilian Exclusion Order No. 34 of the Commanding General, J. L. DeWitt, issued May 3, 1942, in which all: persons of Japanese ancestry are excluded from, and not permitted to remain in, the City of San Leandro, County of Alameda, State of California, after 12:00 o’clock noon, P.W.T., May 9, 1942. The defendant appealed... .

Appellant is a native born citizen of the United States of America of Japanese ancestry and claims that the proclamation violated by him was void.

This case was argued with two companion cases, both of which were subsequently certified to, and decided by, the Supreme Court on June 21, 1943, entitled Hirabayashi v. United States, and Yasui v. United States. These decisions involve the portions of the proclamation of General DeWitt imposing curfew restrictions upon Japanese citizens of the United States of Japanese ancestry. The Supreme Court held the curfew restrictions valid. The Supreme Court did not expressly pass upon the validity of the evacuation order which is involved in the case at bar. However, the Supreme Court held that under the constitution the government of the United States, in prosecuting a war, has power to do all that is necessary to the successful prosecution of a war although the exercise of those powers temporarily infringe some of the inherent rights and liber— ties of individual citizens which are recognized and guaranteed by the constitution. We are of the opinion that this principle, thus decided, so clearly sustains the validity of the proclamation for evacuation, which is here involved, that it is not necessary to labor the point.

The constitutional questions concerning the authority of Congress and of the President and his subordinate, Lieutenant General DeWitt, and questions of discrimination because of race or ancestry raised by the appellant were also considered and decided by the Supreme Court contrary to contentions of the appellant, and for that reason these questions require no further elaboration by this court.

Judgment affirmed.

JUDGE DENMAN’S OPINION

DENMAN, Circuit Judge, concurring in the result, but dissenting from the grounds of the majority opinion:

It is with regret that | find myself in profound disagreement with a majority of my colleagues in their treatment of the claims of unconstitutionality and other illegalities, later considered herein, of General DeWitt’s order to Korematsu. Korematsu is a fellow citizen, who, because happening to have a common ancestry with the people under the dominion of the Japanese Government, with which we are at war after decades of peaceful intercourse, was required to report for imprisonment in a military assembly stockade to await deportation for further such imprisonment.

Along with him are 70,000 American citizens—men, women and children—who, under similar orders, have been torn from their homes, farms and places of business to be imprisoned together in large groups, first in barbed wire stockades called Assembly Centers, then, after deportation, in distant places under military guard. As Justice Murphy states in his concurring opinion in Hirabayashi v. United States, 87 L. ed. 1337, 1352, their treatment is not unlike that of Hitler in so confining the Jews in his stockades.

The order here under consideration is the initial step in a unit succession of orders, held by the Supreme Court to be a “single program,” ultimately leading to such a cruel consummation. The court properly should take judicial notice of the fact that the result is that such forcible confinement of American citizens made Poston the third largest city in Arizona; Manzanar the second largest city in California east of the Sierras; and a large town on the Southern Pacific Railway and the National Highway between San Francisco and San Mateo of the assembly stockade at Tanforan. | cannot agree that taking judicial notice of these facts, known to the world, is “lending aid and comfort to the enemy,” and hence that Korematsu’s contentions be suppressed.

SCORES MAJORITY’S AVOIDANCE OF ISSUES

In this conspicuous appeal of such a member of one of America’s minority groups, the opinion of this court disposes of Korematsu’s major contentions without their mention, much less their consideration. Outstanding is the avoidance of the question of im- prisonment and deportation. It is buried in the euphemism “evacuation,” without suggestion of its forced character or its accomplishment by compulsory

confinement. The opinion of this court concerning such unmentioned imprisonment for deportation is based solely upon an interpretation of the decision of the Supreme Court in Hirabayashi v. United States on the validity of a curfew order. That order is treated by that Court as analogous to the control of civilians by lines about a burning building, established by the

IT COURT

police or firemen, or the requirement of citizens to remain indoors during the brief period of a blackout.

In so disposing of his case, Korematsu has received a treatment similar to that accorded Hirabayashi in connection with our decision to refuse to decide the questions he brought before us and their certification to the Supreme Court without stating various of his contentions nor the facts on which he relied.

Americans are to face a peace table at which our prestige and power will rest upon the belief of a world questioning Caucasian sincerity, a world which includes a billion Asiatics. There no one will shut his eyes to the Postons, Manzanars and Tanforans. One of the questions will be what sort of judicial consideration do minority groups of American citizens receive from the courts of a claimed democracy.

A. THE SUPREME COURT REFUSED TO CONSIDER THE VALIDITY OF THE ORDERS TO REPORT FOR IMPRISONMENT

This case was consolidated for argument with that of Hirabayashi v. United States on the question of the validity of General DeWitt’s orders. For the reason, stated in its certificate in the Hirabayashi case, that the question arising from such a measure as mass imprisonment to prevent espionage and sabotage was “difficult” and for which “this court knows of no decision” as a precedent, a majority of this court avoided its decision. Instead, this court certified to the Supreme Court in that case the following question:

“4. Was Lt. Gen. DeWitt’s Civilian Exclusion Order No. 57 of May 10, 1942, excluding all persons of Japanese ancestry, including American citizens of Japanese ancestry, from and after 12 o’clock noon, May 16, 1942, from a particular area in Seattle, Washington within Military Area No. 1 established by General DeWitt’s Proclama| tion No. 1 of March 2, 1942 and requiring a responsible member of each family, and each individual living alone, affected by the order, to report on May 11 or 12, 1942, to the Civil Control Station in the said area in connection with said exclusion, a constitutional exercise of the war power of the President derived from the Consti- tution and statutes of the United States?” (Emphasis supplied.)

HIRABAYASHI CASE LIMITED TO CURFEW

The Supreme Court expressly refused to decide that question. Hirabayashi’s indictment also charged a violation of an order entirely different from that one of the series of deportation orders with which the above quotation is concerned. What it passed upon is the validity of General DeWitt’s Proclamation No. 3 of March 23, 1942, imposing a curfew, not only on persons of Japanese descent but, on all enemy aliens for whom no general exclusion order has ever been made. It required them to remain in their places of residence between the hours of 8 p. m. and 6 a. m.

It permitted such movement of all these aliens within the curfew hours as pertained to their voluntary evacuation of the coastal military areas. This court’s certificate in the Hirabayashi case certified the question of the validity of the curfew order, also because it found the question difficult and without precedent.

Concerning the question of the curfew order, as distinguished from the deportation order, the Supreme Court 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. * * * It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.” (Emphasis supplied.)

-IMPRISONMENT DIFFERS FROM CURFEW

The Supreme Court found a precedent. As seen, it assimilated the curfew order to the fire lines and brief blackout restrictions. Here is no resemblance to the orders leading to the imprisonment of men, women and children en masse in assembly center stockades for deportation. These are orders “differing from the curfew order” upon which the Supreme Court declined to pass.

Hence I dissent from the description of the offense in the first paragraph of the court’s opinion that it consisted merely “of remaining in that portion of Military Order No. 1 covered by * * * Exclusion Order 34 * * * in which all persons of Japanese an- cestry are excluded from, and not permitted to remain in, the City of San Leandro, County of Alameda, State of California, after 12:00 o’clock noon, P.W.T., May 9, 1942.”

San Leandro is a town of small area and, for anything the majority opinion shows, all Korematsu had to do to satisfy Order 34 was to walk for a few minutes and pass out of the town’s boundaries. The analegy with the police fire lines is obvious and if this were all, the opinion properly could say that it ig unnecessary further “to labor the point.’

Korematsu’s. contention, in effect, is that his conviction was for the crime’ of not moving out of San Leandro into imprisonment in an assembly center. An inspection of the series of orders affecting him shows his position to be well taken. These orders at once required him not to leave and not to remain in the area. His sole alternative was imprisonment.

PINK

Proclamations and Executive Orders which

B. THE FACTS, AND THE DEPORTATION AND IMPRISONMENT ORDERS

Fred Korematsu, born in California of Japanese parents, was educated in California grammar schools, high schoo! and junior college, with white children. He grew up under the conditions of a Mongolian minority in a Caucasian majority, with its tragic contrast between the primary and high school teachings of freedom and equality, and, in his later social and economic life, the limitation and denial of what had been taught him by his white instructors, more fully considered in my attached dissent of March 28, 1943, in the Hirabayashi case. |

There is no showing or suggestion that what Korematsu suffered from the contrast between the American teachings of personal liberty and equality and their denial caused any disloyalty. On the contrary, when rejected by his Selective Service Board, he spent $150.00 of his own funds to learn a ship mechanic’s trade and thereafter, prior to Pearl Harbor, has been employed in a defense industry. .

After that time he had made an unsuccessful attempt to have his features altered by plastic surgery, hoping thereby to escape the discrimination against his minority group of citizens. This attempt is as pathetic as that of another of our minority groups—of those of one-sixteenth negro blood hoping to conceal the fact that they have not “passed over” into general Caucasian social intercourse.

ENTIRE “EXCLUSION” PROGRAM MUST BE CONSIDERED

Like all the remaining 70,000 Japanese descended citizens, Korematsu became subject to a series of “are parts of a single program (leading to his imprisonment) and must be judged as such.”

On June 12, 1942, when he was arrested in San Leandro, Korematsu was subject to an order of General DeWitt prohibiting him from leaving Military Area No. 1. On March 27, 1942, Public Proclamation No. 4 was issued finding and ordering, “lt 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” (Emphasis supplied.)

therefore “as a matter of military necessity that commencing at 12:— midnight, P.W.T., March 29, 1941, 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.” |

The words “voluntary migrating” and “evacuation ‘and resettlement” coupled with the words prohibiting him from leaving the limits of Military Area No. 1 seem an evasion of the real purpose of refusing any voluntary departure. The words “evacuation” and “resettlement” mean deportation and imprisonment in a relocation stockade. It was not restricting and regulating “voluntary” migration. It was denying -it. Korematsu was thus prohibited from leaving a military area in California, roughly extending 200 miles westerly from the Sierras to the Pacific and north and south for 600 miles. By a previous Military Proclamation No. 1 he was prohibited from moving from his “habitual. residence” therein without filing a “change of residence” notice with his postmaster. He had filed no such notice of change of residence and hence was prohibited from leav- ing it.

For purposes of the contemplated deportation this Military Area was ordered divided into smaller areas. Korematsu found himself in an area about San Leandro in Alameda County, California. Similar small areas were created throughout the portions of California in Military Area No. 1. Had Korematsu left the San Leandro area, he would have entered another from which he was forbidden to leave.

DEPORTATION CASUALLY DESCRIBED

Then followed Evacuation Order No. 34, with its accompanying directions respecting the deportation casually described, but not set forth, in the first paragraph of the majority opinion. It is as follows:

“CIVILIAN: EXCLUSION ORDER No. 34

“4, Pursuant to the provisions of Public Proclamations Nos. 1 and 2, this Headquarters, dated March 2, 1942, and March 16, 1942, respectively, it is hereby ordered that from and after 12 o’clock noon, P. W. T., of Saturday, May 9, 1942, all persons of Japanese ancestry, both alien and non-alien, be excluded from that portion of Military Area No. 1 described as follows:” (Descriptive area including San Leandro.)

“9. A responsible member of each family, and each individual living alone, in the above described area will report between the hours of 8:00 A. M. and 5.00 P. M. Monday, May 6, 1942, or during the same hours on Tuesday, May 5, 1942, to the Civil Control Station located at.920 ‘C’ Street Hayward, California.

“3. Any person subject to this order who fails to comply with any of its provisions or published instructions pertaining hereto or who is found in the above area after 12 o’clock noon, P. W. T., of Saturday, May 9, 1942, will be liable to the criminal penalties provided by Public Law No. 503, 77th Gongress, approved March 21, 1942.”

As seen, that order required Korematsu and all such unmarried citizens and the heads of families’ of such citizens to report to a Civil Control Station by May 5, 1942, to receive directions for their imprisonment by May 9, 1942, in a stockade called an As- sembly Center, from which the deportation was to be made.

PANESE FAMILY LIFE AND BUSINESS) RELATIONS DESTROYED

The list of instructions made a part of Order No. 34 reveals the destruction of family life and of long established business relations. They are

“THE FOLLOWING INSTRUCTIONS MUST BE OBSERVED:

“1, A responsible member of each family, preferably the head of the family, or the person in whose name most of the property is held, and each individual living alone, will report to the Civil Control Station to receive further instructions. This must be done between 8:00 A. M. and 5:00 P. M. on Monday, May 4, 1942, or between ve A. M. and 5:00 P. M. on Tuesday, May 5,

2. Evacuees must carry with them on departure for the Assembly Center, the following property: (a) Bedding and linens (no mattress) for each member of the family; (b) Toilet articles for each member of the family; (c) Extra clothing for each member of the family; (d) Sufficient knives, forks, spoons, plates, bowls and cups for each member of the family; (e) Essential personal effects for each member of the family.

All items carried will be securely packaged, tied and plainly marked with the name of the owner and numbered in accordance with instructions obtained at the Civil Control Station. The size and number of packages is limited to that which can be carried by the individual or family group.

3. No pets of any kind will be permitted.

4. No personal items and no household goods will be shipped to the Assembly Center.

5. The United States Government through its agencies will provide for the storage at the sole risk of the owner of the more substantial household items, such as iceboxes, washing machines, pianos and other heavy furniture. Cooking utensils and other small items will be accepted for storage if crated, packed and plainly marked with the name and address of the owner. Only one name and address will be used by a given family.” (Emphasis supplied.)

The order is not free of the mean oppressiveness often found in regimentation of minority groups. After the Government had so ordered the stripping of the citizens of their belongings and their imprisonment, they are informed that their prospective warden “will provide for the storage of belongings at the sole risk of the owner.”

It is apparent that what the disobeyed order actually was bears no resemblance to the order described in the first paragraph of this court’s opinion.

C. KOREMATSU’S CONTENTIONS

The Government’s counsel contends that orders for such imprisonment were a proper exercise of the discretion of a military commander in such an area as Military District No. 1, with its reasonably antici' pated Japanese invasion from the Pacific. In the course of the hearing, the Government admitted that not one of these 70,000 Japanese descended citizen deportees had filed against him in any federal court of this circuit an indictment or information charging espionage, sabotage or any treasonable act. This admission covered the five months from Pearl Harbor to General DeWitt’s deportation order of May 10, 1942. Though in so conceding the fact, Korematsu’s position is greatly strengthened, the majority opinion does not mention the admission. It is thus lost to him.

Racial Discrimination

Korematsu argued that, assuming such imprisonment is otherwise valid, the selection of his Mongolian-blooded group for such treatment is so arbitrary and capricious a racial discrimination that it violates the due process clause of the Fifth Amendment. This argument is answered in the detailed consideration of the social and legal relationships of the people of Mongolian blood to the surrounding Caucasian population in the Pacific Coast states in my dissent in the Hirabayashi case. It is finally de- cided against him in the appeal in that case.

Korematsu contends that the principle established in Ex parte Milligan, 71 U. S. 2, applies a fortiori where no hearing of any kind was provided to establish the disloyalty or military menace of any of the citizens on the way to imprisonment, much less of Korematsu. It is contended that the prospective hanging of Milligan presents no difference in principle from the gross cruelty of the military mass imprisonment and deportation of these citizens. In both cases the civil courts were functioning. In both cases the action of the military was not against soldiers subject to court martial. Neither Milligan’s ordered hanging nor Korematsu’s imprisonment was the result of a judgment of a civil court.

Military’s Power Over Civilians Challenged

His position is that if hanging of a civilian is not legal on a military order after court martial, a fortiori imprisonment is not legal on a military order without court martial. Also, if, as stated in the Milligan case, Congress cannot give to the military the power to order the hanging of a civilian after a military trial, It cannot give the military the power to order the imprisonment of civilians without any trial at all.

It seems clear to me that a decision on a curfew order likened to police fire lines, does not dispose of Korematsu’s contention that the principles of the Milligan case apply to such imprisonment for deportation.

Due Process and “Letters De Cachet”

Korematsu also contends that such imprisonment violates the due process clause of the Fifth Amendment and that General DeWitt’s orders are “lettres de cachet.” Imprisonment without trial is a denial of the due process of the Fifth Amendment and such orders are the equivalent of lettres de cachet so far as the physical effect of the bodies’ of these citizens is concerned. It would be like the hypocrisy of the phrase “voluntary evacuation” to contend otherwise.

Cruel and Unusual Punishment

Korematsu further argues that such mass “banishment” is a cruel and unusual punishment in violation of the Eighth Amendment. That it is cruel and unusual need not be further pressed. It is nonetheless a matter for our consideration with reference to the discretionary power of General DeWitt, that the military order causing it may be construed as not the “punishment” contemplated by that amendment.

Deprivation of Property

Korematsu, a shipwelder, further contends that his right to work is property, e.g. Traux v. Raich, 239 U. S. 33, 38, and that his imprisonment is a deprivation of that property in violation of the due process clause of the Fifth Amendment.

D. EX PARTE MILLIGAN IS NOT CONTROLLING BECAUSE IMPLICIT IN ITS REASONING IS THE HYPOTHESIS THAT IN THE ABSENCE OF ACTUAL INVASION THE SLOWER AND MORE DELIBERATE PROCEDURE OF THE CIVIL COURTS ARE A SUFFICIENT PROTECTION FROM DISLOYAL CITIZENS LENDING AID TO THE ENEMY; AND BECAUSE THE POSSIBILITY OF AIR INVASION COVERING THE STATE OF INDIANA IN LESS THAN TWO HOURS WAS NOT EVEN “LURKING” IN THE MINDS OF THE JUSTICES.

It was 37 years after the Milligan decision that the Wrights made the first successful flight with a craft heavier than air, and 13 years later that aviation had progressed to military utility.

It was in a world that could not conceive of an invasion faster than by movement on the ground that the Supreme Court held “Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. :

“It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of. arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.

‘It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and-society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. AS necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.’”’ (Emphasis. supplied).

Since “necessity creates the (martial) rule,” it is not inconsistent with the principle established in the Milligan case that a threatened air invasion, directed by saboteur signals, which in an hour’s time could destroy every federal court house in California, presents the necessity for the substitute of military action against such sabotage for that of civil courts. The question of war necessity now before us could not even “lurk” in the record in the Milligan case. The extent of the holding of ‘‘necessity” in that case is confined by the long established rule that matters not presented and considered by the court and a fortiori those beyond its possible consideration, are not there decided.

E. GENERAL DeWITT’S ORDERS PURPOSED FOR AND LEADING TO KOREMATSU’S IMPRISONMENT, THOUGH VIOLATIVE OF SPECIFIC CONSTITUTIONAL RIGHTS IN THE ABSENCE OF ANY IMPENDING MENACE, DURING WAR AND THE REASONABLE EXPECTATION OF AIR INVASION ARE WITHIN THE AREA OF MILITARY DISCRETION OF THOSE ACTING UNDER THEIR THEN PARAMOUNT CONSTITUTIONAL POWER TO WAGE WAR.

Korematsu’s stress on his imprisonment as violative of several claimed constitutional rights is pertinent here with reference only to the limits of the control of governmental agencies compelled by some necessity to exercise, for the common safety, a coercion on the individual which otherwise such rights would prohibit.

In the peace time example of the fire lines, it is the existence or likelihood of fire that warrants the

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exclusion of the citizen from his home or office or ballot box. No one would question the violation of his constitutional right if, using the presence of a controlled fire in a small detached building, a political police extended its fire lines around a large district of adverse voters and had prevented him from reaching his polling booth. : That Korematsu is entitled to the consideration by this court of the particular facts of his case as supporting the contention that the coercion exceeds the “allowable limits of military discretion,” is what I understand to be the law as established in Sterling ¥ v. Constantin, 287 U. S. 378, 403. There, where martial law had been declared in Texas, the Supreme Court held certain acts of the governor to be violative of the Federal Constitution as in excess of his authority under the martial power the declaration had given him. In so ruling the Supreme Court held (pp. 400-401),

“It does not follow from the fact that the Executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well established. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” (Emphasis supplied.) ...

By refusing to consider Korematsu’s contentions, the majority are treating the Constantin case as if it had been overruled sub silentio by the Hirabayashi case. With this | cannot agree. Since the Hirabayashi majority opinion, by its terms, is confined to a curfew order, it required no consideration of the Constantin case. Such a curfew order, considered no more than an exercise of an ordinary police function, is obviously “without the allowable limits of military discretion.”

Assume the defense of the Coast had been under the command of some general so uneducated that he was oblivious to (1) the political struggles in Japan of a rising middle class for the creation of a form of democratic government, finally frustrated by assassination by a military group, to whom had been entrusted the education of a greater part of the nation’s youth; (2) the fact that even after the declaration of martial law, over 75,000 Japanese, both citizen and alien, are freely living their accustomed lives on Oahu around Pearl Harbor and the Oahu military establishments; and (3) the fact that, while now the Chinese are among the most respected and liked of all our minority groups of alien ancestry for their commercial integrity and sense of social responsibility, only sixty years ago, in support of the slogan “The Chinese Must Go,” a blind passionate hatred attributed to the Chinese, as a people, the same essential inherited treacherous antagonism to the Caucasian and the same cruel ferocity of the soldiers of some former Chinese “War Lords’? and of the Tong “hatchet men,” as that with which other ignorant citizens, often played upon by the lower politicians, now characterize all the Japanese people.

OPPRESSIVE MILITARY ORDERS SUBJECT TO REVIEW

Let us then assume that such a general had made findings and orders somewhat as follows: “Whereas, I find that a Jap is a Jap, and that all Japanese descended people, male and female, are alike. They by heredity worship a sun emperor who is destined to conquer and rule all the people of the world. No education in American schools can eradicate this inherent instinct. No American environment can create any loyalty in any Jap to our flag. To America they will always be treacherous and because of a crue! and fanatical courage each is a constant threat of sabotage and espionage;

“Now, therefore, it is ordered “(1) That all adult males of Japanese descent in Military Area No. 1 be imprisoned in a barbed wire stockade, each with an Oregon boot of ten pounds weight attached to his right leg, and

“(2) That all adult females be so confined ‘and each chained by the wrists, the chains light enough in weight and sufficient in length to allow them to prepare the food, do the laundering and other necessary services for all the prisoners and to care for their. younger offspring.”

Such findings and orders, inconceivable in any sane American commander such as General DeWitt, are postulated as an extreme exercise of military action to prevent espionage and sabotage. Under the principles established in Sterling v. Constantin, supra, we would not only consider their constitutionality but, it is strongly arguable, we would not convict Japanese descended citizens for disobeying them....

In so far as concerns the permitted area of “subversion of private right,’”’ General DeWitt’s orders lie between the comparatively innocuous curfew restriction and such chaining of the Japanese descended citizens. Whether here there has been such sub- version well may be regarded as a border-line question. The nearest analogy to General DeWitt’s stockade confinement is the long-established and accepted process of quarantining of both the persons having such a dangerous and contagious disease as smallpox and those exposed to the disease, the latter until shown free of it after the period of its development has expired....

War always causes sOme cruel treatment of the (Continued on Page 4, Col. 1)

Page 4

American Civil Liberties Union-News

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Native Sons Take Over Assembly Japanese Investigation

Recent press reports declare that Chester F. Gannon, Chairman of the Assembly Interim Committee on the Japanese Problem, has selected two active members of the Native Sons, one of them a grand first vice ‘president, as special counsel to conduct hearings to be held in San Francisco sometime in January. At the same time, the Native Sons announce that Mr. Gannon has invited them ‘‘to join in preparing information on the Japanese problem in California.

The resolution establishing the Committee recites that “the Legislature requires in- formation based upon an impartial study and investigation of all of the factors in- volved in order that it may proceed intelligently toward a solution of” the Japanese problem in California.

We see no objection to the Native Sons submitting their testimony to the Committee on the same basis as anybody else, but we do object most strenuously to the conduct of the legislative hearing being in effect turned over to the representatives of a private group, and particularly a group which has expressed such violent opinions on the question under investigation. —

Unfortunately, this same Committee has already made a bad record for itself in Los Angeles. Following its appearance there the Los Angeles Times was prompted to publish an editorial entitled ‘Legislative Committee Should Not Be Bullies.” The Gannon Committee was named specifically as an example of a tendency on the part of some members of legislative investigating committees ‘“‘ to browbeat and abuse witnesses and to get into hot arguments with them. It is no proper function of a legislative committee to seek to convert individuals to a particular point of view, or to turn itself into a prosecutor of what may currently be popular.”

The Gannon Committee has started off on the wrong foot in Northern California by virtually turning over its functions to representatives of a group that have expressed a strong bias against the majority that is under investigation. We hope this situation will be remedied and that the Committee will stick to its job of obtaining facts and opinions on which legislation can be based.

CIRCUIT COURT OPINIONS IN EVACUATION TEST CASE

(Continued from Page 3, Col. 3) |

innocent, the more so global war. It is customary for the Supreme and other federal courts to comment, where claims of oppression arising from Congressional legislation are not regarded as making the legislation invalid, that the claimant should look to Congress for his remedy. It is within that practice to state that where, as a war necessity, such wrongs are deliberately committed upon its citizens by a civilized nation, ordinary decent standards require that compensation must be made as in the case of our broken treaties with another Mongoloid group, the American Indians. One properly may hope that it will not be delayed (because it involves the admission of the wrong) until it is given to descendants many generations removed from their wronged ancestors.

Giving due weight to Korematsu’s argument of the extent of the subversion of his private rights, constitutional and other, and of the degrading conditions imposed upon him and like citizens, it cannot be said that, considering the martial necessity arising from the danger of espionage and sabotage, General DeWitt’s orders exceed the area of discretionary powers legally to be exercised by him In Military Area No. 1.

Grew Urges Square Deal For

Citizens of Japanese Descent

Excerpts from an address by the Honorable Joseph C. Grew, Special Asst. to the Secretary of State, at the annual banquet of the Holland Society of New York, New York City, November 18, 1943.

The point I wish to make is this. In time of war, blind prejudice is always rampant. In the last war I remember that even loyal Americans with German names were all too often looked at askance. That bigotry fortunately does not exist today, but it does exist today among a large proportion of our fellow countrymen with regard to American citizens of Japanese descent. In fact many, perhaps most, of our compatriots refer to those fellow-citizens of ours quite indiscriminately as “Japs.”’ In reading the many letters I receive from all over the country on that subject I very seldom know whether the writer is referring to Americans or to outright enemy aliens. There is, or should be, a great difference there.

In time of war, especially, we must take — every proper step to protect our country from hostile acts, especially from espionage or sabotage within our gates. We have competent official authorities to attend to that consideration and they are attending to it, constantly and effectively. Ido know that like the Americans of German descent, the overwhelming majority of Americans of Japanese origin wish to be and are wholly loyal to the United States, and not only that, but they wish to prove that loyalty in service to their native land. Relman Morin, of the Associated Press, reports from the Fifth Army in Italy that the first unit of American-born Japanese troops went into combat smiling with satisfaction as if they were going to a baseball game; their motto is ‘““Remember Pearl Harbor,” and their commander said that he wouldn’t trade his command for any other in the Army. Their officers, said Morin, are unanimously enthusiastic about the quality

Suit Filed In Ouster Of Dodd, Lovett and Watson

An action unprecedented in this country was taken on December 4 when suit was filed in the U. S. Court of Claims at Washington to test the constitutionality Of 2 Congressional measure removing by name three appointed officials from the government payroll because of alleged connections with subversive organizations.

Suit to recover pay thus lost by Dr. William E. Dodd, Jr., of the Federal Communi- cations Commission; Prof. Robert Morss Lovett, Government Secretary of the Virgin Islands, and Dr. Goodwin Watson of the F. C. C. was instituted by Charles Horsky, Washington attorney.

The A.C.L.U. opposed the bill in Congress and the inquiries by the Kerr and Dies committees which recommended it. Counsel for the Union will participate in the expected appeal to the U. S. Supreme Court. The House of Representatives, which pressed the ouster, recently appropriated funds for the employment of counsel to represent it in the legal proceedings.

WEST COAST GETS TWO F. E. P. C. DIRECTIVES

All lodges of the International Brotherhood of Boilermakers at Portland, Ore., and Los Angeles have been ordered to halt any employment practices discriminating against workers because of race or color.

The F. E. P. C. also directed five West Coast shipbuilding companies to reinstate all Negro workers discharged for refusing to pay dues to boilermaker auxiliary unions. The companies were ordered to cease discharging or refusing to hire Negroes who do not obtain union clearance.

and spirit of those men and said they never had seen any troops train harder and more assiduously and never had any doubt as to what to expect of them in combat. A German prisoner was brought past their encampment one day; he gaped with surprise when he saw their faces and asked if they were Japanese. An interpreter explained that they were Americans of Japanese parentage. The German shook his head in wonder and said: “‘Ach; that’s American.” There are camps in our country today engaged exclusively in training these men for military service. I have met and talked to them. Their officers are proud of their charges.

What I wish to say is merely this. Those Americans of Japanese descent have grown up in our country, in our democratic atmosphere. Most of them have never known anything else.. Among those few who have been to. Japan, most of them could not stand the life there and soon returned to the United States. The overwhelming majority of those men want to be loyal to us, and, perhaps surprisingly, the few who don’t want to be loyal to us often say so openly. It does not make for loyalty to be constantly under suspicion when grounds for suspicion are absent. I have too great a belief in the sanctity of American citizenship to want to see those Americans of Japanese descent penalized and alienated through blind prejudice. I want to see them given a square deal. I want to see them treated as we rightly treat all other American citizens regardless of their racial origin . —with respect and support, unless or until they have proved themselves unworthy of respect and support. That fundamental principle should apply all along the line— to every citizen of the United States of America.

UNION URGES PRESIDENT TO BACK UP FEPC ORDER

Joining other agencies, the American Civil Liberties Union on December 21, urged President Roosevelt to take “all available measures” to enforce the recent order of the Fair Employment Practice Committee against discrimination by Southern railroads in the employment of negroes. Sixteen of the 23 railroads ordered by the FEPC to desist from race discrimination ‘notified the President that they regard the order as unconstitutional and indicate they will fight it in the courts if necessary. The ACLU letter to the President stated that “‘it is assumed the railway unions will take a similar attitude, since most of them bar membership to Negroes.”

The FEPC has requested the President to use his war powers to enforce compliance. If the railroads do not yield in the event of a Presidential order, it is assumed the case will go to the federal courts.

A conference of interested agencies has been called for early in January in Wash- ington by the National Committee for a Permanent FEPC to devise ways and means to assist in enforcing the FEPC order.

ARIZONA SUPREME COURT DECLARES ANTI-JAPANESE LAW INVALID

The Arizona State Supreme Court on December 13 held unconstitutional a State statute severely limiting business dealings with persons whose movements are restricted. The law was patently aimed at Japanese but the court noted that other persons, such as members of the armed forces and persons incarcerated for crime, would also be limited in their business dealings. The court declared that the law ‘violates the first principles of due process and is therefore unconstitutional.”