vol. 10, no. 2

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AMERICAN CIVIL LIBERTIES UNION-NEWS


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“Eternal is the price of liberty.”


Vol. X SAN FRANCISCO, CALIFORNIA, FEBRUARY 1945 No. 2


“Jim Crow’ Auxiliaries In Closed Shop Unions Banned


Negroes must be admitted to full and equal membership in any union that maintains a closed shop according to a unanimous decision of the California Supreme Court in a suit brought by a group of Negro boilermakers against the AF of L Boilermakers Union and the Marinship Corporation shipyards at Sausalito, California. American Civil Liberties Union attorneys who filed a brief supporting the Negroes’ suit, hailed the decision written by Chief Justice Phil S. Gibson, who said: ‘An arbitrarily closed or partially closed union is incompatible with a closed shop. Where a union has attained a monopoly of the supply of labor by means of closed shop agreements ...it may no longer claim the same freedom from legal restraint enjoyed by golf clubs or fraternal organizations. Its asserted right to choose its members does not merely relate to so- cial relations; it affects the fundamental right to work for a living. |


“The discriminatory practices involved in this ease are contrary to the public policy of the United States and this state. Negroes must be admitted to membership under the same terms and conditions applicable to non-Negroes unless the union and employer refrain from enforcing the closed shop agreement against them.”


The suit arose out of a practice of the Boilermakers Union of placing all Negroes in separate “Auxiliary Lodges’. Such lodges have no vote in electing the officers of the Union who represent. them in job negotiations and assignments, and in the adjustment of grievances. Change of work classification for members of the Auxiliary is secured only with the approval of the Supervising (white) Lodge, and transfers of membership may be made only ‘to another Auxiliary Lodge”. Also, Negroes are never permitted to ‘rise above the status of helpers because apprentice mechanics. are limited to members of the “Subordinate (white) Lodge’. ;


The Supreme Court’s decision sustained a preliminary injunction issued by Superior Judge Butler of Marin county. On January 25 the Supreme Court denied a petition for a rehearing, so the case will now be returned to Judge Butler for trial on the merits. If the allegations of the petition for an injunction are sustained, a permanent injunction will issue.


PACIFISTS MAKE POSTWAR PLANS TO SETTLE CONSCIENTIOUS OBJECTORS


Planning now for a program of social action in the future, a group of liberal Northern Californians are joining forces with conscientious objectors who plan to settle here after the war. Now confined in CPS camps and prisons, these men will not be content to slip into a conventional niche in civilian life; they hope, by stra— tegic settling throughout the state, to make a significant contribution to the thinking and action of the area in the crucial period following the war. ‘Realizing the dynamic value of such a plan, the Northern California Service Board has set up a demobilization program to ease the — transition into postwar living and cooperate with these progressive CO’s in getting into creative and meaningful vocational fields.


The Demobilization Committee which was elected to put this program into effect has outlined three immediate goals: a credit union, to help men re-establish themselves in business or on farms; a revolving loan fund, to cover smallterm loans for emergency needs; and a center to provide temporary housing and vocational guidance. Progress toward the achievement of these specific aims was furthered at a recent meeting of the committee, held in Berkeley during the first weekend in January.


Racial Discrimimation In Richmond Housing


Compelled to change its policy of not accepting colored women in its war housing dormitories, the Richmond Housing Authority on January 22 opened specially a 64-room dormitory and moved only TWO women into it despite vacancies in so-called ‘‘white dormitories.” :


The issue came to a head last month when the local housing authority rejected the application for a dormitory room of Mrs. W. Whitby, who is colored. The authority insisted that its existing dormitories were “for whites only”.


Mrs. Whitby is married and has three children. Recently, however, she and her husband separated, and Mrs. Whitby took her three children to her mother’s home expecting that the children and her mother would join her in Richmond around February 1. When she got back from a trip to her mother’s, however, she found her apartment padlocked, despite the fact that her rent was paid until February 1. The local housing authority insisted that although she was employed in the shipyard, she was no longer entitled to the apartment because she was occuping it alone, and refunded part of the rent that had been collected under the lease.


At the same time, the housing authority refused to give Mrs. Whitby an available dormitory room. It insists upon segregating Negroes but declined to open a special dormitory for.


Negro women on the ground that a survey conducted by the Kaiser shipyards revealed there was insufficient demand to warrant such action. Incidentally, the company has taken the position (not publicly, of course) that mixing races in housing projects will not work, although such a practice is followed with marked success at Marinship and other projects. The company’s attitude toward colored people is also reflected in its unsuccessful attempts to limit its recent recruiting to white workers.


The discrimination against Mrs. Malaby was called to the Union’s attention. by the United Negroes of America and a complaint was filed with the Regional Office of the Federal Housing Authority, which supervises war housing. The FHA was willing to cure the discrimination by providing housing for Mrs. Malaby, but it was unwilling to do anything about the racial segregation.


The Malaby case also brought the issue of “lock-outs” to a focus. Instead of following OPA regulations and the procedures required by State Law in evicting tenants, the local housing authority has recently contented itself in most cases with using force and simply locking tenants out of apartments. The issue has been thoroughly discussed with the FHA and it appears at this writing that the local housing authority will in the future be required to follow lawful procedures in evicting tenants. At the same time, other unlawful practices of the Richmond Hous ing Authority are being corrected and machinery will be established for the hearing of complaints. — :


But the difficult racial situation in Richmond has by no means been settled. During the past month a white guard in a Negro men’s dormitory shot and killed a.young Negro boy in an argument over the lack of hot water. The guard was a Southerner. Not until this incident ocurred did the administration accede to requests that Negro guards be employed in Negro dormitories.


The United Negroes of America have declared a rent strike in the Richmond war housing in — 4 order to bring about a change in the housing administration. While the FHA is taking measures to remedy some of the complaints concerning Richmond’s public housing, the rent strike may cause further racial conflict.


ACLU To Suppert Bridges in U. S. Supreme Court


Following a petition asking the U. S. Supreme Court to hear the seven-year old deportation case against Harry Bridges, West Coast union leader, the American Civil Liberties Union announced on January 15 that it will support his appeal with a brief as a “friend of the court” if the petition is granted. The ACLU has intervened on Bridges’ behalf several times in the — past.


In asking the Supreme Court to hear his case Bridges’ attorneys said the evidence against him was so flimsy as to constitute a denial of due process, and the interpretation of the law under which he was ordered deported unconstitutionally penalized him for éxercising the right of free speech. The order was based in part upon Bridges’ alleged membership in the Communist Party.


In announcing that it would aid Bridges in the Supreme Court, the ACLU said that it was opposed to “exclusion or deportation of aliens solely on grounds of opinion”.


"| DISSENT”


Don’t fail to read Mr. Justice Murphy’s great dissent in the Korematsu case appearing in this isue of the “News”.


ACLU Will Support Appeal Against Hawaiian Martial Law Convictions


The American Civil Liberties Union announced last month that it will support the appeal to the U. S. Supreme Court of Lloyd C. Duncan, convicted of assault by a Hawaiian military court. The ACLU said it would file a brief as a “friend of the court”, if the petition for a Supreme Court hearing recently filed on Duncan’s. behalf by J. Garner Anthony, former Attorney General of Hawaii, is granted. The ACLU maintains that the Army has no power to try civilian offenses where the civil courts are open and functioning, as they were in Hawaii las March when Duncan was convicted.


After his conviction, Duncan obtained a writ of habeas corpus from Hawaiian Federal District Judge D. E. Metzger, who held the military trial invalid. He was over-ruled unanimously by the U. S. Circuit Court in San Francisco November {1 in an appeal taken by the Army. In asking the U. S. Supreme Court to hear the case, Mr. Anthony said that the right to a jury trial for ordinary criminal offenses was at stake. The ACLU will also support the appeal of Harry E. White, Honolulu broker convicted of embezzlement by a military court, who is also asking for a Supreme Court hearing.


The state of martial law in Hawaii under which the convictions of Duncan and White were obtained ended by Presidential decree last October, but persons previously convicted by military courts are still in prison, the ACLU says.


AMERICAN CIVIL LIBERTIES UNION-NEWS


We are reprinting herewith Mr. Justice Black’s majority opinion in the case of Fred T. Korematsu vs. The U. S. of America, handed, down by the U. S. Supreme Court on De- cember 18, 1944, as well as Mr. Justice Murphy’s magnificent dissent. The latter is carried in full, while only three short paragraphs have been omitted from the majority opinion. Lack of space makes it impossible for us to reprint Mr. Justice Frankfurter’s concurring opinion and the dissents of Mr. Justice Roberts and Mr. Justice Jackson.


Majority Opinion


Mr. Justice Black delivered the opinion of the Court. The petitioner, an American citizen of Japanese descent was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U. S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.


It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group. are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.


Sanctions Provided By Congress


In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that “. . whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority. of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such Inilitary commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.”


Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. “That order, issued after we were at war with Japan,declared that ‘the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, nationaldefense premises, and national-defense utilities. ne Exclusion Order No. 34, which the petitioner ihowingly and admittedly violated was one of a number of military orders and proclamations, all-of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that “‘the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. ...”


Orders Aimed At Espionage And Sabotage


One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order No. 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences’ from 8 p. m. to 6 a. m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Hirabayashi v. United States, 320 U. S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.


The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.


Valid Exercise of War Power


In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that ‘it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p. m. to 6 a. m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of es- Boiss and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. ‘They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.


In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.


Here, as in the Hirabayashi case, supra, at p 99, “... 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. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons Could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”


Exclusion a Military Imperative


Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approx- imately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.2


Scope of the Decision


We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U. S. 548, 547; Block v. Hirsh, 256 U. S. 185, 154-5. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kawato, 317 U. S. 69, 73. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. ,


Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic govern- mental institutions. But when under conditions of modern *warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. ...


It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as “assembly centers’, in order “to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration.” Public Proclamation No. 4, 7 Fed. Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed. Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.


Exclusion and Detention Distinct Questions


We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner’s remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indefinite period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the laning but an exclusion order.


lines of racial prejudice, without reference to the real guage of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U. S. 299, 304. There is no reason why violation of these orders, insofar as they were promulgated — pursuant to congressional enactment, should not be treat- ed as separate offenses.


The Endo case, decided today, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected.


Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation. center, we cannot in this case determine the’validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.


Power To Exclude Permits Some Detention


Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it re- sults in holding that the order under which petitioner was . convicted was valid.


No Question of Racial Prejudice


It is said that we are dealing here with the case of im-. prisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry con- cerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothTo cast this case into out


military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was ex- cluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congréss, reposing its confidence iin this time of war in our military leaders—as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military au thorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.


Affirmed.


Murphy's Opinion


Mr. Justice MURPHY, dissenting.


‘This exclusion of “all spersons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional: power” and, falls into the ugly abyss of racism.


In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.


Definite Limit To Military’s Discretion


At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the as- serted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. ‘What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.’”’ Sterling v. Constantin, 287 U. S. 378, 401.


‘The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United


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AMERICAN CIVIL LIBERTIES UNION-NEWS


States v. Russell, 13, Wall. 623, 627-8; Mitchell v. Harmony, 13 How. 115, 134-5; Raymond v. Thomas, 91 U.S. 712, 716. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast “all persons of Japanese ancestry, both alien and non-alien,” clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitu- tional rights to procedural due process. Yet no reasonable relation to an “immediate, imminent, and impending” public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.


Exclusion Not Reasonably Related to Dangers


It must. be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers ‘of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. Aind that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that ALL persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.


That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the ‘Commanding ‘General’s Final Report on the evacuation from the Pacific Coast area.1 In it he refers to all individuals of Japanese descent as ‘‘subversive,”’ as belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000 potential enemies... at large today” along the Pacific Coast.2 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals “were generally disloyal,3 or had ‘generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.


Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.’4 They are claimed to be given to “emperor worshipping ceremonies”’5 and to “dual citizenship.’”6 Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,7 together with facts as to certain persons being educated and residing at length in 2Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, 608-726; Final Report, Japanese Evacuation from the West Coast, 1942, 309-327.


1 Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J. L. De Witt. This report is dated June 5, 1943, but was not made public until January, 1944. ‘


2Further evidence of the Commanding General’s attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739-40 (78th Cong., Ist Sess.): “T don’t want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Jap. anese on this coast. -... The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. .. . But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area... .”


3 The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that ‘‘while it was believed that some -were loyal, it was known that many were not.’’ (Italics added.)


4 Final Report, .p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States.


5 Final Report, pp. 10-11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown.


6 Final Report, p. 22. The charge of “‘dual citizenship” springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claimas to all born in the United States after 1925. See Freeman, ‘“‘Genesis, Exodus, and Leviticus: Genealogy, Evacuation, and Law,’’ 28 Cornell L. Q. 414, 447-8, and authorities there cited; McWilliams, Prejudice, 123-4 (1944). |


7 Final Report, pp. 12-13. We have had various foreign Ianguaze schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121-3 (1944).


Japan.


8 It is intimated that many of these individuals deliberately resided “adjacent to strategic points,’ thus enabling them “to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been. inclined to do so.”9 The need for protective custody is also asserted. The report refers without identity to “numerous incidents of violence” as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese-Americans, it is concluded that the “situation was fraught with danger to the Japanese population itself’? and that the general public “was ready to take matters into its own hands.”’10 Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,il as well as for unidentified radio transmissions and night signalling.


The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese- Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese-Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.12 A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and eco- nomic status has been substantially discredited by independent studies made by experts in these matters.13


. Nazi Mass Guilt Doctrine Applied


The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese-Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used. in support of the abhorrent. and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelist of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.


Adequate Time For Individual Hearings


No adequate reason is given for the failure to treat these Japanese-Americans on an individual vasis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group “were unknown and time was of the essence.”14 Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these “subversive” persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to 8 Final Report, pp. 13-15. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement—the actions and membership of which are well known to our Government agents. ;


9 Final Report, p. 10; see also pp. vii, 9, 15-17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese-Americans. See McWilliams, Prejudice,. 119-121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59-93.


10 Final Report, pp. 8-9. This dangerous doctrine of protective custody, as proved by recent Huropean history, should have absolutely no standing asan excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1-2 Cf. House Report No. 2124 (77th Cong. 2d Sess.) 145-7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944).


11 Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942—a considerable time after the Japanese-Americans had been evacuated from their homes and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3.


12 Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154-6; McWilliams, Prejudice, 126-8 (1944). Mr. Austin BH. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that ““We’re charged with wanting to get rid of the Japs for selfish reasons. We do. It’s a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. .. . They undersell the white man in the markets. ... They work their women and children while the white farmer has to pay wages for help. If all the Japs were removed tomorrow, we’d never miss them in two weeks, bc cause the white farmers can take over and produce everything the Jap.grows. And we don’t want them back when the war ends, either.’ Quoted by Taylor in his article ‘‘The People Nobody Wants,’ 214 Sat. Eve. Post 24, 66 (May 9, 1942).


13 See notes 4-12, supra.


14 Final Report, p. vii; see also p. 18.


IST CASE


the belief that the factors of time and military necessity . were not as urgent as they have been represented to be.


Record Justified Individual Hearings


Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,15 a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved—or at least for the 70,000 American citizens—especially when a large part of this number represented children and elderly men and wom.en.1é Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.


Legalized Racism


| dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United . States. All residents of this nation are kin in some way by “blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.


15 The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, ‘‘The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.’’ Apparently, in the minds of the military leaders, there was no way that the Japanese-Americans could escape the suspicion of sabotage. :


16 During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a ‘“‘friendly enemy.’’ About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, ‘‘The Enemy Alien Problem in the Present War,’’ 34 Amer. Journ. of Int. Law 448, 444-46; House Report No. 2124 (77th Cong., 2d Sess.), 280-1.


ACLU Hails Supreme Court | Decision In Texas Labor Case


Attorneys for the American Civil Liberties Union hailed a 5-4 U. S. Supreme Court decision on January 8 that the Texas law requiring labor organizers to obtain registration cards was an illegal interference with freedom of speech and assembly guaranteed by the Constitution. The majority opinion on the appeal of R. J. Thomas, president of the United Automobile Workers, from a test case conviction under the Texas law according to the lawyers “substantially bore out the position advocated by the ACLU” in a brief on the case. Mr. Thomas appealed from a conviction, sustained by the Texas Supreme Court, for addressing a meeting of Humble Oil Co. workers and soliciting union membership in Sep tember, 1943 ,without obtaining a registration card. He was sentenced to $100 fine and three days in jail.


The majority opinion of the court, written by . Justice Rutledge, and supported by Justices Black, Douglas’ and Murphy, held that the “requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is incompavtble with the requirements of the first amendment. If the exercise of the rights of speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them.


Justice Rutledge pointed out, however, that while a speaker might freely solicit membership in a union, should he try to collect funds or obtain subscriptions “he enters a realm where a reasonable registration or identification re-— quirement may be imposed.” Justice Jackson in. “a separate concurrence with the majority said . that “in overriding the finding of the Texas court we are applying to Thomas a rule, the benefit of which in all its breadth and vigor the court denied to employers in the National Labor Relations Board cases.”


Justice Roberts in the dissenting opinion, supported by Justices Stone, Reed, and Frankfurter, held that the Texas law was not a restriction on free speech but a legitimate attempt to protect the public, saying that “solicitors of every kind in every state of the Union have traditionally been under duty to make some identification of themselves as practitioners of their calling’.


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AMERICAN CIVIL LIBERTIES UNION-NEWS


American Civil Liberties Union-News Published monthly at 216 Pine Street, San Francisco, 4, Calif., by the Northern California Branch of the American Civil Liberties Union. : Phone: EXbrook 1816 ERNEST BESIG ....... Editor


Entered as second-class matter, July 31, 1941, at the Post Office at San Francisco, California, under the Act of March 3, 1879. Subscription Rates—Seventy-five Cents a Year. Ten Cents per Copy.


| Religious Teaching in Maine Schools Banned; Suit Considered in Vermont Following protests to Maine State Commissioner of Education Harvey V. Gilson against: reported instances of sectarian religious instruction in Maine public schools, the state Attorney General has issued a ruling barring such practices, according to a letter made public by the American Civil Liberties Union January 15. Arthur Garfield Hays, general counsel for the ACLU, wrote Mr. Gilson last November, after he had received reports that an organization known as the New England Fellowship, with headquarters in Boston, was employing religrous teachers to carry on instruction in public schools with the cooperation of some rural teachers.


In a reply dated November 5 Mr. Gilson says: “The Attorney General of the State of Maine has rendered a decision to the effect that no sectarian comment or teaching can be given in the public schools of this state. Recently this matter was discussed at a conference attended by the Attorney General and representatives of various religious faiths, and a unanimous agreement and understanding were obtained regarding the text of the Attorney General’s decision ...I1 shall appreciate notification of any further breaches of the law regarding religious education in the schools of Maine”.


A similar protest to Vermont Commissioner of Education Ralph E. Noble has resulted in a response holding that the state authorities have no control over local districts. The ACLU is considering court action to stop the practice, which it holds violates the fundamental American principle of separation of church and state. In a letter to the ACLU Mr. Noble said that the States Board of Education, on the basis of an opinion by the Attorney General, ‘concludes that it does not have the authority (even if it were disposed to do so, which it is not its intention to imply) to prohibit religious education by voluntary organizations which is not conducted as a required course of study in the public schools.”


District Court Medifies Objectionable Bail Rule


U.S. District Judge St. Sure of San Francisco last month released the $2500. bail posted in the case of Carl J. Danstrom, Jehovah’s Witness, which the court had previously refused to release because of non-payment of a $1000 fine which had been assessed against Danstrom, in addition to a 2-year jail sentence, following con- viction, on November 16 last, under the Selective Service Act. The court had withheld the money from the bondsman, W. O. Furtwengler of San Jose, because of a new rule effective last July, that “money, bonds, or notes” deposited as bail “shall be treated as the property of the party for whom the deposit was made.”


The rule had been objected to by the Union on the ground that it seriously impairs the right to bail of impecunious defendants, because no friend of an arrested person would want to take the risk of having his money appropriated in payment of a fine.


Judge St. Sure has now instructed the Clerk of the U. S. District Court that bail posted by a third person in a case where a fine is unpaid will be released if the bondsman files an affidavit declaring that none of the money belongs to the defendant, and that none of the money will be paid to him when it is released.


W. O. Furtwengler, bondsman for Danstrom, filed such an affidavit, and on January 18 his $2500 was returned to him. A. Boyd Puccinelli, a San Francisco bail bond broker, has had over $25,000 in bail held up by the Clerk because of non-payment of fines. It is expected that the . money and surety bonds will now be exonerated after the filing of proper affidavits.


CIVIL RIGHTS DEFENSE COMMITTEE MEETS FEB. 18 IN SAN FRANCISCO


Celebrating the release of the remaining 12 of the 18 Minneapolis “Smith Gag Law’ defendants, the San Francisco Civil Rights Defense Committee will hold a meeting and social at eight o’clock on February 18, at 305 Grant Avenue, San Francisco. Among the speakers will be Ernest Besig, local director of the ACLU.


John W. Davis Aids War Objector’s Appeal


John W. Davis, prominent New York attorney and one time Democratic presidential candidate, is participating in a court appeal against the work camp system for conscientious objectors administered by Selective Service, according to an announcement by the National Committee on Conscientious Objectors. Mr. Davis, together with Arthur D. Hill, Boston attorney, and Ernest Angell, chairman of the NCCO, has signed a brief filed in the Circuit Court of Appeals in New ' York City in the case of R. Boland Brooks.


Mr. Brooks, himself an attorney, is now in the Federal Penitentiary at Lewisburg, Pa., following his conviction last year for refusing to report to a conscientious objectors camp. He is appealing on the ground that the internment of recognized conscientious objectors under the present camp system constitutes “involuntary servitude” barred by the constitution. The case will be argued by Mr. Angell.


In their brief the attorneys point out that “Selective Service has reared a harshly punitive system of internment labor camps, no pay for hard work, no support for dependents, no compensation for injury or death, arbitrary power to impose fines or forfeitures, and to extend the service term for breaches of discipline, and finally inaugurated the contracting out of this forced labor for private profit,” although there is no authority for this in our entire history, in the constitution, or the Selective Service Act itself. They also maintain that Selective Service is unconstitutionally penalizing objectors for their religious beliefs, since persons deferred from military service in other classifications are not subjected to forced labor and internment.


SEGREGATION PRACTICED IN BLYTHE, CALIF., RESTAURANT


Some time ago a member of the Union called our attention to racial segregation in the Circle H Cafe, Blythe, California, which is used as a meal stop by the Greyhound Lines. A sign was hung in front of one booth in the restaurant reading, “This booth is reserved for colored bus. passengers only”.


Complaints were sent by the Union to both the Company and the restaurant. The company informed the Union it would request the proprietor of the restaurant ‘“‘to cease the objectionable practices . . . If he faile or refuses to end the . Segregation, then we will have no alternative than to change the meal stop which will be done.”


Robert D. Huffaker, proprietor of the restaurant, advised the Union that “This sign was in no way meant to be discriminating to any race or color, however, it was thought that the colored people themselves would appreciate this service. (The argument is a familiar one.) At no time were the colored people required to sit in this booth or ever asked to do so by any of our employees. We are fully aware of the fact that they should be served at any place they so desire, and we will at all times serve them.”


Since Mr. Huffaker did not inform the Union that the offending sign had been removed, a further letter suggesting such action was sent to ‘him, to which we have thus far received no response. If any of our friends happen to go through Blythe we hope they will drop into the Circle H Cafe to see whether the sign is still . there and then let us know.


VERY FEW BILLS AFFECTING CIVIL LIBERTIES FILED IN STATE LEGISLATURE


Repressive legislation is not attracting much attention at the current session of the State Legislature. While the Union has not yet examined the various bills that have been introduced, press reports indicate there are very few.


Senator Tenney, chairman of the “Little Dies Committee” wants to crack down on some of the organizations he dislikes that are using Civic Centers, and has introduced a bill that would accomplish that purpose. He would also permit labor unions to oust radicals, while employers would be free to discharge them. Senator Hatfield, who is death on Labor, has introduced a measure to make the “Hot Cargo Law” a permanent thing in California.


Conscientious objectors and nudism also came in for attention. The former would be forbidden to hold any State job, or to serve on or under any State board, bureau or commission, under a bill introduced by Senator Irwin T. Quinn. Assemblyman Ralph Dills would outlaw nudist camps by making it a crime for persons to assemble in their “birthday clothes’.


Army Causes Worker's Discharge On "Confidential" Grounds


On Dec 19 last O. C. Downing of San Francisco was discharged from his job as a “ware- houseman-checker” at the Kaiser shipyards in Richmond at the behest of Army Intelligence — “for confidential reasons”. What those reasons are he has been unable to discover, and he insists that there is nothing in his record which would warrant the action that was taken. In fact, he claims he has never belonged to any organizations except a labor union and has never been charged with any offense.


Mr. Downing appealed to the business agent of his union, but the latter merely assured him he would be glad to see that he got another job. Then on December 23 the ACLU requested the Director of Personnel at Kaiser’s to request Army Intelligence to reinvestigate the matter and submited upon request a record of Mr. Downing’s employment during the past ten years. Nothing happened.


Mr. Downing tried to get a hearing with the F.B.I., Army Intelligence and Naval Intelligence, all without result. Indirectly, he learned that he was suspected of being a Nicaraguan revolutionary, which he denies.


This is the second time within a year that Mr. Downing has lost his job “for confidential reasons’. He worked for the Office of Censorship as a translator from January 17, 1944 to February 3, 1944, but resigned on request. Since some mysterious charge seems to be following Mr. Downing from one job to another, he would like to clear up his record, but thus far he has found no government agency that is willing to help him.


‘Mr. Downing holds citizenship derivately and has lived for a considerable time in Nicaragua. He is married and has two children. After los. ing his shipyard job his draft board reclassified him 1-A but then deferred him for six months. |


Jobs and Housing Surveys Being Conducted for Returning Japanese


The Berkeley Inter-Racial Committee is making a community-wide survey of available housing for returning Japanese. Employment opportunities are also being recorded. The committee is not soliciting sub-standard housing or employment at less than prevailing wages. “It is important for the welfare of the community,” says the Committee, “that returning JapaneseAmericans neither. be exploited nor placed in the position of depressing housing or wage standards.”


If you can offer housing, temporary or permanent, or employment, even in part-time jobs, please write to Jane Davis, Executive Secretary, 2634 Le Conte Ave., Berkeley 4, Calif. A similar survey is being conducted by the American © Friends Service Committee, 1830 Sutter St., San Francisco 15.


Executive Committee Northern California Branch American Civil Liberties Union


Hon. Jackson H. Ralston Honorary Chairman Sara Bard Field Honorary Member Rt. Rev. Edw. L. Parsons Chairman Dr. Alexander Meiklejohn ‘ Helen, Salz Vice-Chairman Joseph S. Thompson Secretary-Treasurer Ernest Besig Director : Philip Adams H, C. Carrasco Wayne M. Collins James J. Cronin, Jr. Rev. Oscar F. Green Morris M. Grupp Prof. Ernest R. Hilgard — Ruth Kingman Ralph N. Kleps Dr, Edgar A. Lowther Mrs. Bruce Porter Clarence E. Rust Rabbi Irving F. Reichert Dr. Howard Thursman Kathleen Drew Tolman


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