vol. 13, no. 6

Civil Liberties |

~ American

_ Union-News

Free Press

Free Speech |

Free Assemblage

" "Eternal vigilance is the price of liberty."

Vol. XII | Us

yen

SAN FRANCISCO, JUNE, 1948

No, 6

`High Court Bans Enforcement

Of Racial Housing Covenants

In historic decisions which wiped away all legal

props of the racial and religious restrictive hous-

ing covenant system, the U. S. Supreme Court

on May 3rd ruled unanimously that private agree-

ments barring persons from owning or living in

property because of race or color are unenforce-

able in federal or state courts. The 6-0 decisions,

in which Justices Reed, Jackson and Rutledge

took no part because they disqualified themselves,

were hailed by Thurgood Marshall, special counsel

for the NAACP, as the greatest blow "against the

pattern of segregation existing within the United

States."

The decision applied portions of the Fourteenth

Amendment to the U. S. Constitution, which be-

came effective July 28, 1868, and which reads, in

part, as follows:

"No State shall make or enforce any law which

shall abridge the privileges or immunities. of citi-

zens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of

the laws."

"Tt cannot be doubted,'' said Chief Justice Fred

M. Vinson, speaking for the Court, "that amor

- the civil rights intended to be protected by the

Fourteenth Amendment are the rights to acquire,

enjoy, own and dispose of property. Equality in

the enjoyment of property rights was regarded

by the framers of that amendment as an essentie.

pre-condition to the realization of other basic

civil rights and liberties which the amendment

was intended to guarantee."'

The court held that such voluntary agreements

do not violate any constitutional rights, as the

Fourteenth Amendment "erects no shield against

merely private conduct, however discriminatory

or wrongful." The decision, however, takes away

from participants in such voluntary agreements

any recourse to the courts, because "action of the

States to which the Amendment has reference,

includes action of state courts and state judicial

officials,' `We hold," said the court, "that in

granting judicial enforcement of the restrictive

_ agreements in these cases, the States have denied

petitioners the equal protection of the laws and

that, therefore, the action of the state courts can-

not stand."

Because of its relevance to cases involving seg-

regation in transportation and education, ACLU

attorneys noted with interest the court's state-

ment: "The equal protection of the laws is not

achieved through indiscriminate imposition of in-

equalities." Earlier Supreme Court rulings had

held that segregation was justifiable because

whites as well as Negroes suffered similar bur-

dens. The lawyers suggested also that miscegena-

tion statutes might now be declared void by the

high court.

The ACLU participated in these cases in the

courts from beginning to end.

Elsa Gidlow Reappointed to

Fairfax Planning Commission

_ The Elsa Gidlow case apparently came to a

close last month. Almost a year from the day

when she was ousted from the Fairfax Planning

_ Commission until such time as she disproved

charges of Communism and un-American activi-

ties, Miss Gidlow was reappointed to the Commis-

sion, effective July 12. :

The old City Council never did give Miss Gid-

low a hearing, but under a resolution adopted by

the new Council, Miss Gidlow may take her non-

salaried job on July 12, unless a Fairfax resident

Citizenship Restored to 2,300 N

Renounced Under Governmenta

Federal Judge Louis E. Goodman of San Fran-

cisco on April 29th revalidated the citizenship of

2,300 West Coast war-time evacuees of Japanese

ancestry who had signed statements of renuncia-

tion while detained at the Tule Lake, California,

segregation center. Representing the renunciants

was Wayne M. Collins of San Francisco, who had

the backing of the American Civil Liberties Union

of Northern California.

- In an eloquent and courageous opinion, the

court ruled that "there was a complete lack of

constitutional authority for administrative, execu-

tive or. military officers to detain and imprison

American citizens not charged criminally or sub-

ject to martial law." Judge Goodman criticized

the Federal Government for accepting the renun-

ciations of citizenship, asserting that it was "fully

aware of the coercion" at Tule Lake by pro-Japan-

ese individuals and organizations and of "`the fear,

anxiety, hopelessness and despair of the renun-

ciants." He described the issue in the case as

"without precedent and unique."

While Judge Goodman set aside the renuncia-

tions as a group because of Governmental duress,

he did give the Government an opportunity to des-

ignate the names of certain of the plaintiffs it may

claim "acted freely and voluntarily despite the

present record facts.". Except as to such plain-

tiffs, the judgment will become final on July 29.

The chances are, however, that none of the

plaintiffs will have their cases heard separately,

because it would mean that the Government would

have the duty of proving by competent testimony

that `they were not affected by the duress. That

is an almost impossible task.

There is always the possibility, of course, that

Race Discrimination May Be

Bo @ e (R) x

Eliminated in Deportations

The U.S. Senate last month adopted H. R. 3566

permitting suspension of deportation in hardship

cases irrespective of race or color, and the bill

has now been referred to a conference committee

-to iron out differences between the House and

Senate versions.

Under existing law, the Attorney General may

not suspend deportation in cases of persons who

are ineligible for citizenship. The new legislation

will affect the cases of hundreds of Japanese who,

except for their race, are eligible for suspension

of deportation.

The bill also provides for suspension of depor-

tation in cases of persons who have resided con-

tinuously in the U. S. for seven or more years

and who are residing in the U. S. upon the ef-

fective date of the new law. The Senate proposal

differs from the House proposal in that in each

case it requires affirmative action by Congress

"stating in substance that it favors the suspen-

sion of such deportation." The House version

would make the Attorney General's recommenda-

tion for suspension final unless either House

passed a resolution stating it did not favor the

suspension of such deportation. E

FLASH!

The convictions on contempt charges of

20 members of the Traffic Committee of the

San Francisco Chamber of Commerce for

criticizing Municipal Judge Twain Michelsen

and demanding his ouster from the traffic

bench were reversed late last month by the

District Court of Appeal in San Francisco.

The Union had intervened by filing an ami-

isei Who

| Duress

the Government will hold up the restoration of

citizenship to the renunciants by an appeal. That

appears unlikely, however, because Judge Good-

man's decision rests on findings of fact (as to

duress) which a higher court could overrule only

if they were unsupported by the record, and, in

this case, there is substantial evidence to support

the findings as to duress.

Unfortunately, the decision does not restore

the citizenship of every one of the 5,371 Nisei who

renounced. Only 2,300 persons were parties to

the suit. But, since the court has merely handed

down an opinion and not signed a final order,

there is still time (until July 29) for the remain-

ing renunciants to secure the benefits of the suit.

Those renunciants who wish to join the suit

should write to Attorney Wayne M. Collins, 1721 -

Mills Bldg., San Francisco 4, Calif., giving the

following information:

Full name (a married woman should also give

her maiden name); present address; date and

place of birth; place of citizenship renunciation;

whether the renunciant received a letter from the

Attorney General approving the renunciation. _

Aiready more than 700 persons have added

their names to the original 2,300 in the suit and

every mail brings another batch of names. Unless

the remaining renunciants get into the present suit

by July, however, they will be compelled to file

separate suits to secure the restoration of their

citizenship.

In the meantime, Mr. Collins has suggested to

the Attorney General that he ought to supply the

names of all renunciants in order that those not.

already named could be made parties to the suit.

Thus far, however, the Attorney General has not

consented to go along with the proposal.

Judge Goodman's decision will solve many

problems that have resulted from the renun-

ciations. Those covered by the suit will no longer

have to register as aliens. There will no longer

be any question about the right of these stateless

people to own agricultural land, and renunciants

who attend the University of California will no

longer be charged the ``non-resident'' fee.

The mass suit in behalf of the renunciants was

filed in the U. S. District Court in San Francisco

November 13, 1945. It had no backing from any

organized group except the A.C.L.U. of Northern

California. Indeed, even the national office of the

A.C.L.U. opposed any intervention because the

renunciants had been labeled "disloyal." It for-

bade the filing of a mass suit by the local Execu-

tive Committee, but then supported "administra-

tive relief" in well-screened cases. Finally, it

agreed to the filing of a few test suits, which the

local branch opposed in the absence of an agree-

ment with the Justice Department that the re-

maining renunciants would not be shipped to

Japan while the suits were pending. The renun-

ciants finally engaged Attorney Wayne M. Collins,

a member of the local committee, to file a mass

suit, and the local committee voted to support the

suit. After many months, the Union's national

office endorsed the mass suit "in principle." The

suit charged duress by the W. R. A., the Justice

Department. and the Army, while the Union's

national office wanted to absolve these Govern-

mental agencies of responsibility and merely

charge duress by pro-Japanese individuals and

groups as well as parents. Judge Goodman's de-

cision found, however, that there was Govern-

mental duress.

The mass suit was likewise unsupported by the

Japanese American Citizens League which, under-

standably perhaps, found it expedient to divorce

itself from a group that was labeled "disloyal."

In fact, the cause has been so unpopular that no

other group than the A.C.L.U. of Northern Cali-

fornia has unequivocally supported it.

cus curae brief supporting the Chamber of

Commerce members. A complete story of

the decision will be carried in the July issue

of the "News."

files "written charges of a specific nature against

, Miss Gidlow," in which event a hearing will imme-

diately held before State Supreme Court Justice

Jesse Carter.

AMERICAN CIVIL LIBERTIES UNION-NEWS

Following is the complete opinion by the Hon.

Louis Goodman, U. S. District Judge, handed down

in San Francisco on April 29, 1948, in the case of

Tadayasu Abo, et al., etc. vs. Tom Clark, etc. et al.

Judge Goodman's decision revalidates the citizenship

of 2300 Nisei who renounced their U. S. citizenship

under duress. ao ;

eke _ OPINION

GOODMAN, District Judge. ;

Plaintiffs are approximately 2300 out of 5371

native born persons of Japanese ancestry, who

signed renunciations of their American citizen-

ship in 1945, pursuant to 8 USC 801 (i), while they

were interned and imprisoned at Tule Lake Relo-

cation Center in Modoc, California. These plain-

tiffs, by their amended complaint, seek a decree in

equity rescinding their renunciations and declar-

ing that they are still citizens and nationals of the

United States. The issue tendered is without

precedent and unique in the annals of American

_ jurisprudence. `

Of the 2300 plaintiffs, about 264 were hereto-

fore ordered deported as alien enemies. Some

were subsequently voluntarily released by the

Department of Justice. In actions 25296 and

25297, this court heretofore granted writs of

habeas corpus, by which the remainder of the

264. referred to were released from the custody of

the Immigration Authorities who were about to

deport them to Japan. The Immigration Author-

~ities claimed the right to deport these. persons

upon the ground that they became alien enemies,

i.e. citizens of Japan, as a result of their renun-

ciation ef American'citizenship. The reasons for

the issuance of the writs of habeas corpus in these

cases. are set forth in my opinion, 77 Fed. Supp.-

Grounds For The Suit

In the instant causes, the renunciations are al-

leged to be void and ineffectual for the following

_ reasons: - :

I. The renunciants acted (a) under pressure

of duress and coercion induced by actions of the

United States Government and by factions of dis-

loyal co-internees, and (b) while in a state of

mind, brought about by their evacuation and

internment experience, rendering them impotent

_ to act freely and voluntarily or competently and

Sood. rote ne

intelligently.

If. The renunciation hearings were unfairly

conducted and were lacking in procedural due

process. oe =

III. 8 USC 801(i) is unconstitutional.

It is also alleged that some of the renunciants

were infants and insane persons. |

The answer of defendants denies that plaintiffs

were coerced or caused by duress to renounce their

citizenship and avers that the renunciations were

free and voluntary. Denial is also made of the

charge of unconstitutionality of the renunciation

statute and of unfairness of the renunciation

hearings.

Admissions By Government

The answer does admit the following:

Detention of renunciants in a war relocation

center surrounded by wire and guarded; existence

of hostility to renunciants in various parts of the

country which caused them apprehension at re-

location; existence at Tule Lake of pro-Japanese

organizations which engaged in propaganda pro-

grams and misrepresentations to persuade citizen

internees to renounce their American citizenship;

parental pressure exercised by alien parents upon

their citizen children to induce them to renounce

for the preservation of the family unit, and to

avoid induction into the armed forces.

The answer also alleges that certain of the

plaintiffs were themselves members of the nation-

alistic Japanese organizations above referred to.

After the cause was at issue, both plaintifis

and defendants moved for summary judgment

upon affidavits and documents filed. The docu-

ments consist of public records issued by the War

Relocation Authority on the subject of Japanese

Evacuation and Relocation, records of hearings

held in February and March of 1942 before a

House Committee Investigating National Defense

Migration, and a book entitled "The Spoilage"

dealing with Japanese American evacuation and

resettlement.

The plaintiffs also moved for judgment on the

pleadings. In additions, motions to strike portions

of the pleadings were filed by both sides. Plain-

tiffs also. moved to strike certain of defendants'

affidavits. a

Cause Submitted By Stipulation

Then on October 13, 1947, a stipulation was

entered submitting the cause on the merits, upon

the record as it stands including any evidence by

way of affidavits and exhibits submitted on the

motions previously made that are legally ad-

missable as competent, relevant and material

against the objections made thereto; provided,

however, that if the court desired further evidence

in respect to any particular person, it may so

order.

Certain of the affidavits making up the record

are based upon facts ascertained from personal

observation by individuals who appear to be un-

biased. They are as follows:

Submitted by plaintiffs:

1. Tetsujiro Nakamura.

2. Masami Sasaki. |

3. Rev, Thomas W, Grubb.

Submitted by defendants:

1. John LiBurline

2. Rosalie Hankey. - a

3. Thomas M. Cooley II, dated March 18, 1947,

filed March 24, 1947.

4. Thomas M. Cooley II, dated J anuary 9, 1947,

filed January 27, 1947.

The documentary evidence proffered is volumi-

nous and is corroborative and cumulative of mat-

ters contained in the affidavits. For these reasons

and also because it is not the best evidence, the

court has not considered the so-called documen-

tary evidence. Neither has the Court considered

the so-called Abe Fortas letter, since it was

stricken out on preliminary motion. *1,

In my opinion decision of the causes should be

made without determining the alleged unconstitu-

tionality of the renunciation statute. *2. The

claim of the plaintiffs, that the so-called renuncia-

tion hearings were unfair, is unmeritorious, inas-

much as 8 USC 801(i) required no hearings at all.

A study of the affidavits reveals that some re-

nunciants acted freely and voluntarily. However,

these are not the renunciants who are here seek-

ing restoration of citizenship. Those who did act

freely were members of the pro-Japanese organi-

zations at Tule Lake, who have already been re-

patriated to Japan in accordance with their ex-

press wishes.

Factors Leading To Renunciations |

To recite in detail the circumstances existing at

Tule Lake Camp at the time the renunciations

were executed, as well as the prior history of con-

ditions there, would be to write a story more ap-

propriate for a book or similar literary effort. It

is sufficient to say that the affidavits of both

sides show agreement as to the combination of

factors which lead to the execution of the renun-

ciations. What disagreement there is concerns

which factors were primary, and which subor-

dinate, as to their effect and impact upon the

plaintiffs. These factors were:

1. The internal pressure to renounce by in-

doctrination of young and threats of violence

against recalcitrant internees and their families)

exerted by the two pro-Japanese factions at Tule

Lake who were permitted to carry out nationalistic

activities.

2. Parental pressure by alien parents on citi-

zen children to prevent family breakup and avoid

draft induction.

3. The fear of community hostility on release,

leading to resort to renunciation in the belief it

would assure further detention.

4, The conviction that the government would

deport them in any event and, unless they re-

nounced, they would be subject to reprisals on

arrival in Japan.

5. Mass hysteria, the outgrowth of the com-

bined experience of evacuation, loss of home, iso-

lation from outside communication and concen-

tration in an enclosed, guarded, overpopulated

camp with little occupation, inadequate and un-

comfortable living accommodations, dreary and

unhealthful surroundings and climatic conditions,

producing neuroses built on fear, anxiety, resent-

ment, uncertainty, hopelessness and despair of

eventual rehabilitation. *3. Iam satisfied that

*1. This letter, pleaded again in the amended com-

plaint, is the subject of defendants' motion to strike.

The letter is also attached as an exhibit to the offi-

davit of Ernest Besig. It is a communication from

the Under Secretary of the Interior in charge of the

War Relocation Authority to Mr. Besig as head of

_the American Civil Liberties Union in Northern

California, sent in August, 1945. In this communi-

cation is an explanation of the reason for certain

regulations adopted at Tule Lake. The explanation

given tends to confirm the plaintiff's contention

that the primary factor which induced renunciation

of citizenship by the plaintiffs herein was pressure

exerted by the pro-Japanese groups at the Camp.

*2. The wisdom of abstaining from deciding Constitu-

tional questions unless required to do so by the

record of a particular case, has long been judicially

recognized. Baker v. Grice, 169 U.S. 284; Arkansas

Oil Co. v. Muslow, 304 U. S. 197. - nee

*3. It.must be kept in mind that Tule Lake was a center

purported not for relocation but for. segregation, for

the duration of hostilities. In this camp were de-

tained without separation: (1) disloyal alien Japan-

such factors, singly or in combination, cast the

taint of incompetency upon any act of renuncia-

tion made under their influence by American citi-

zens interned without Constitutional sanction, as

were the plaintiffs. (Emphasis supplied.)

Draft Cases Act As "Curtain Raiser"

United States v. Kuwabara, 56 Fed. Supp. 716

decided July 22, 1944, was, in a manner of speak-

ing, a "curtain raiser' to this proceeding. The

United States Grand Jury for the Northern Divi-

sion of the Northern District of California, on |

July 18, 1944, indicted 26 young American citi-

zens of Japanese ancestry, then imprisoned at

Tule Lake, for failing to report for pre-induction

physical examination pursuant to the Selective

Training and Service Act, 50 USC App. $311. While

I was holding the Eureka term of the court later

that month, the United States Marshal brought

these 26 young men to Eureka for arraignment.

I appointed two leading attorneys to represent

the defendants. Motions to quash the indictments

were presented and were granted. In my opinion,

I said: "It is shocking to the conscience that an

American citizen be confined on the ground of

disloyalty, and then, while so under duress and

restraint be compelled to serve in the armed forces

or be prosecuted for not yielding to such compul-

sion ... defendant is under the circumstances not

a free agent, nor is any plea that he may make,

free or voluntary, and hence he is not accorded

`due process' in this proceeding." U. S. v. Kuwa-

bara, supra, p. 719. I was subsequently advised

that the Attorney General directed the United

States Attorney not to appeal. The criminal pro-

ceedings consequently terminated.

It is true that the Constitutional safeguards in

criminal proceedings, such as were taken in Kuwa-

bara, may seem more important and vital than in

civil proceedings. But they are of equal impor-

tance and vitality. It is only because their viola- _

tion in prosecutions for crime so greatly offends (c)

the sense of justice that the safeguards them-

selves assume seemingly greater significance in

criminal than in civil proceedings. Certainly the

less of American citizenship, described as "the

highest hope of civilized man'"' (U. S, v. Schneider-

mian, 320 U. S. 118), calls for the exercise of the ....

es,

most inflexible caution upon the part of the Gov-

ernment officials having the power to effectively

take away "this priceless benefit." (U. S. v.

Schneiderman, supra, Justice Murphy.) ae

History Of Expatriation Law

Sub-section i, of Section 801 of Title VIII USC

was added to Section 801 by the Congress on July

1, 1944. In general, section 801 prescribes the

"means of losing United States nationality." Sub-

section i provided an additional means, namely, -

the loss of United States nationality by resident -

nationals by filing a written renunciation "when-

ever the United States shall be in a state of war."

It is admitted by the Department of Justice that

sub-section i was drawn by the Attorney General

solely as a result of a request to him by the Chair-

man of the Sub-Committee of the House Select

Committee To Investigate Un-American Activi-

ties, to recommend to the Committee some solu-.

tion of the problem arising out of the detention of

American citizens at Tule Lake Camp. The At-

torney General recognized that there was no con-

stitutional means by which American citizens, not

charged with crime and not under martial law

could be detained by administrative, military or

civil officials or upon a mere administrative de- |

termination of loyalty. The Attorney General

was thus required to exercise his ingenuity to ac-

complish the continued detention of the citizen

group at Tule Lake Camp without doing violence

to the Constitution, His recommendation for the

enactment of sub-section i was his answer. For by

virtue of this legislation, if renunciations of Amer-

ican citizenship could be obtained from those in

Tule Lake, it was thought they could then be de-

tained as alien enemies without doing violence to

our traditional constitutional safeguards. It is

not fair to charge the officers of the Department

of Justice with the full responsibility for the ef- -

fects of Section 801(i). *4. The People of the

United States acting through their representatives

- (Continued on Page 4, Col. 2)

ese; (2) American citizens of Japanese ancestry who

were regarded by Executive Officers of the Govern-

-ment as disloyal; and (3) American citizens of Jap- -

anese ancestry whose loyalty had not been ques-

tioned but who chose to remain at Tule Lake in-

preference to further removal to a relocation Center -

or because of reluctance to leave family members.

4*. There was of course no governmental design to

entrap the unwilling citizen into renunciation, but

merely to afford an opportunity to. the willing to

renounce. Mass renunciations by distraught citizens

were not contemplated. oe

INION IN NISEI RENUNCIATION SUIT.

AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

Right to Writ of Habeas

Corpus Upheld by High Court

In a 5 to 4 decision, the U. S. Supreme Court

on `May 24 decided that a person who is im-

prisoned may file successive writs of habeas cor-

pus. Justice Murphy wrote the majority opinion.

Justice Jackson was joined in a dissent by Chief

Justice Vinson and Justices Frankfurter and Reed.

Attorney Wayne M. Collins filed an excellent

amicus curiae brief in the U. S. Supreme Court

on behalf of the American Civil Liberties Union of.

Northern California supporting Mr. Price's appeal.

_ The decision came in the case of Homer C..:

Price, serving a 65-year term for bank robbery in

1938. Price presented four successive petitions

for writs of habeas corpus to the U. S. District

Court in San Francisco. The petitions raised iden-

tical questions, except that the fourth petition

asserted a new ground for release, a charge that

he was convicted on perjured testimony, which

the government knew was false.

_ The Ninth Circuit Court of Appeals in San

Francisco affirmed the dismissal of the fourth

petition under a rule of convenience giving a peti-

tioner only one shot for freedom. "It requires a

EE

petitioner to satisfy the Court that he has a valid

excuse for not having urged his newly-asserted

grounds in his prior application for the writ." In

this manner the court has discouraged the filing

of writs of habeas corpus in order to prevent be-

ing burdened with petitions.

According to newspaper reports, the historic |

writ of habeas corpus has not been sacrificed to

a rule of convenience, and Mr. Price will now be

given an opportunity to secure his liberty by

proving, if he can, that he was convicted on per-

jured testimony.

`Private Club' Labor Unions

_ Hitby ACLU in N. Y. Case

Labor unions which bar qualified workers from

membership "by "outrageous restrictions" and

which operate as "private clubs" were attacked

by the ACLU on April 30th in a brief filed in the

highest N. Y. court, the Court of Appeals. The

ACLU supported ten employees of the Rockaway

News Supply Co., of Valley Stream., L. I., who

have been denied membership in the Newpaper

and Mail Deliverers' Union of New York which.

limits new members to sons of members in good

_ Standing for twenty years.

The ACLU, represented by Osmond K. Fraenkel

of New York, rapped the union's attempt, in con-

junction with the employer, to maintain a "closed

shop" together with a "closed union." The brief

argued that the union "in seeking to establish

itself as an exclusive club, while maintaining a.

monopoly of all jobs in the employees' line of

work, is not pursuing a legitimate union objec-

tive." The ACLU scored the outmoded doctrine

that labor unions are voluntary associations with

an absolute right to reject membership applica-

tions, maintaining that the analogy between pri-

vate clubs and labor unions cannot stand "at a

time when unions have become part of the very

warp and woof of democracy." _.

Executive Committee

- American Givil Likerties Union

of Northern California

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

John H. Brill

_ Prof. James R. Caldwell

_H., C. Carrasco

Wayne M. Collins

Rev. Oscar F. Green

Margaret C. Hayes -

Ruth Kingman

Ralph N. Kleps

Seaton W. Manning

_ Mrs. Bruce 2orter

`Clarence E. Rust

Rabbi Irving F. Reichert

_ Prof. Laurence Sears |

- Dr. Howard Thurman

thleen Drew Tolman

The A.C.L.U

`Subversive Activities

The House Committee on Un-American Activi-

ties on April 28, 1948, introduced legislation

(H.R. 5852) to require registration with the

Attorney General of the Communist Party and

all Communist-front organizations, together with

lists of Party members. The recommendation

goes beyond mere registration and deprives Com-

munist Party members of rights accorded other

citizens. It would deny them federal employment;

it would deny them passports to go abroad. It

violates freedom of speech by penalizing mere

advocacy of alleged Communist doctrines without

proof of commission of overt acts.

The reason advanced for so extraordinary a de-

parture from American law is that Communists

and other front organizations `constitute an inter-

national conspiracy against democratic govern-

ment. Exposure of restrictions on their activities

is held to be the remedy. :

The Civil Liberties Union is opposed to all anti-

democratic movements. It is equally opposed,

however, to adopting their methods. The pro-

posals of the Un-American Activities committee

would do exactly that. Registration and restric-

tion of rights are a form of very effective repres-

sion based solely on political opinions and associa-

tions. To include so-called Communist-front or-

ganizations by requiring them to keep member-

ship lists available for inspection would force the

effective blacklisting of thousands of citizens who

Supreme Court Raps Movie

Producers Theater Holdings

Continued ownership of motion picture theaters

by producing companies was threatened as a result

of a 6-1 Supreme Court decision on May 3rd in the

anti-trust suit brought by the Government against

Paramount Pictures Company and seven other

producers. The majority opinion was written by

Justice William O. Douglas. Incidental to the

finding, but important to the ACLU which filed

-a brief supporting the Government's request for

divorce, was the court's statement that "films,

like newspapers and radio, are included-in the

press whose freedom is guaranteed by the First

Amendment." ee oes

Finding that the lower court in refusing to

grant the Government request for divorce of thea-

ter holdings, "did not address itself to the monop-

oly problem," the high court, in remanding the

case, pointed out that the five major companies

own an overwhelming proportion of the first-run

motion picture houses. The Court held that the

first-run field, which constitutes the cream of the

exhibition business, is the core of the present

cases. In 1945 "the big five" had interests in

over 17% of the theaters in the United States,

3,137 out of 18,076, and in 92 cities with popula-

tions over 100,000 at least 70% of all the first-

run theaters were affiliated with one or more of

the five major companies.

_In reply to the ACLU's brief, which argued that

divorcement was a necessary part of securing

diversity in films, the Court said that "the ques-

tion here is not what the public will see or if the

public will be permitted to see certain features.

It is clear that under the existing system, the

public will be denied access to none." The central

question, as the Court saw it, was that the major

producers by their theater holdings were monop-

olizing the "highly profitable first-run business."

ACLU experts, in appraising the decision, were

_ agreed that a large degree @f divorce of theater

ownership by producers would be ordered by the

lower court and that competing theater houses

would be able to secure first-run films. They pre-

dicted that independent producers and exhibitors

would then find a far wider market, and the public

ready access to all films produced immediately

upon their release. Substantial reduction of the

number of first-run theaters was forecast.

Appellate Court Rules Against Would-

Be Citizen Who Disparaged Capitalism

The Ninth Circuit Court of Appeals in San

Francisco last month upheld a denial of citizen-

ship to Samuel Morris Wixman of Los Angeles,

World War I veteran and a college instructor in

economics. The lower court ruled Wixman was

not attached to the principles of the Constitution

and cited a series of college lectures given in

1934-35 in which Wixman held that recurrent

depressions were inevitable under capitalism. The

appellate court contented itself with stating that

the lower court's decision was "`supported by sub-

stantial evidence." ~

The case was handled by the Southern Califor-

nia branch of the Union. The national office has

agreed to support an appeal to the U. S. Supreme

_ Court.

. Opposes the

ivities Control Bill

undt-Nixon

may have been innocently enlisted in what appears

to be a good cause. The difficulty of proving what

is a Communist-front organization is clearly ad-

mitted by the Committee in framing elaborate

procedure to determine the fact.

The effect of the bill would be to impose penal-

ties by Congressional fiat instead of after judicial

trial. The Supreme Court has time and again -

ruled such legislative attempts to be bills of

attainder and hence unconstitutional. Congress

has no power to declare the Communist Party a

conspiracy and then provide penalties for mem-

bership therein. It is for the Congress only to

define conspiracy and the courts to find whether

the party falls within the definition.

Disclosure legislation applicable to all may, as

in the Foreign Agents Act, be legal. To single -

out a group by name for special disabilities has

not yet been held proper Congressional action.

Even more fatal from a legal point of view is

the principle of ``guilt by association" which per-

meates the proposed legislation.

A showing of mere membership in the Com-

munist Party or any "front organization" is suf-

ficient to provide imputation of all the tenets of

the group to each member. The disabilities suf-

fered therefor are not as a result of any finding (c)

of unlawful activity but merely on the basis of

affiliation. The Supreme Court has consistently

ruled that guilt is purely personal and may not be ;

imputed by association. i 7

The Civil Liberties Union is opposed to all pen- :

alties on mere opinion or association. It is "un-

American" in principle. It is ineffective in prac-

tice. If such a law were passed, the Communist.

Party would either go under ground or adopt.

deceptive disguises. The passage of such a bill

would also involve litigation in the courts. We

have no doubt that it would be held unconstitu-

tional. If so, the practical effect would be worse

than if we had no legislation. Furthermore, such

a law would give the impression of controlling

Communist activity when as a matter of fact it

would merely change its form. It would minimiz

vigiliance in promoting a democratic counte:

fensive to the anti-democratic as}

ganized Communi

should be opposed b ho

American principles of civil liberties.

Judge Goodman's Opinion -

In Renunciation Case

(Continued from Page 4, Col. 3)

viz: "It is shocking to the conscience that an

American citizen be confined without authority

and then, while so under duress and restraint, for

his government to accept from him a surrender

of his constitutional heritage."

The Government of the United States under the

stress and necessities of national defense, com-

mitted error in accepting the renunciations of the

greater number of the plaintiffs herein. The

highest standards of public morality and the in-

exorable requirements of good conscience rest

upon the Government in its dealings with its citi-

zins. It must be slow to afflict and quick to make

retribution. The Government must be neither

reluctant nor evasive in correcting wrongs in-

flicted upon a citizen. By so doing it demon-

strates to the people of the world the fairness and

justice of our form of society and law. The Gov-

ernment need not sheepishly confess error; it

must be stalwart and forthright in its recogni-

tion of injustice. By so doing, faith and confi-

dence in our system of law will be maintained. -

Upon the basis of the class showing made by

plaintiffs, equity and justice require the entry of

an interlocutory decree cancelling the renuncia-

tions and declaring plaintiffs to be citizens of the

United States.

It may be that if the defendants were to go

forward with further proof, they could present

evidence that certain of the plaintiffs individually .

acted freely and voluntarily despite the present

record of facts. *7. Therefore, it is further or-

dered that defendants may have 90 days from

date hereof within which to file a designation of

any of the plaintiffs concerning whom they desire

to present further evidence. As to any plaintiff,

not so designated by the defendants within the

time specified, a final decree may enter. As to

any plaintiff designated in the manner and within

the time specified, further hearings, after notice

duly given, will be held. :

Dated: April 29th 1948.

*7. According to the affidavit of Thomas M. Cooley II,

dated January 9, 1947,-approximately 112 of the

plaintiffs were Kibei who spent their formative

years in Japan and were said to have been active

members of pro-Japanese groups at Tule Lake.

Page 4

AMERICAN CIVIL LIBERTIES UNION-NEWS

American Civil Liberties Union-News

Published monthly at 461 Market St., San Francisco 5,

Calif., by the American Civil Liberties Union

of Northern California.

Phone: EXbrook 2-3255

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-One Dollar a Year.

Ten Cents per Copy

ACLU Statement of Policy on

Peace-Time Conscription

The ACLU has consistently opposed peace-time

military conscription. It is by its necessary prin-

ciples a grave impairment of civil liberty. But

the ACLU has acknowledged that in time of war

or the immediate threat of it national security

may justify withholding opposition. The burden

of proof of such necessity is, however, heavy; it

must be clearly evident that conscription is essen-

tial to the national safety.

In the current hysteria the Administration and

its spokesmen from the armed services have sub-

mitted no such proof. Their arguments for a

draft have even been vigorously opposed on purely

military grounds. How much more, therefore, are

the defenders of the civil liberties justified in

opposing the draft as well as peace-time military

training. The ACLU sees no occasion to alter its

opposition to all such measures.

The bills pending in Congress are defective in

two respects involving civil liberties; (1) wholly

inadequate provisions are made for conscientious

objectors and (2) racial segregation is not out-

lawed under the prohibition against racial dis-

crimination. Whatever consideration is given

these bills, the ACLU, while opposing them on

general principle, will urge the inclusion of ade-

quate provisions for freedom of conscience and

from racial segregation.-Adopted by the National

Board of Directors of the ACLU, April 29, 1948.

Dealers in Race Covenants

Continue Their Operations

M. C. Friel and Associates of Hayward, special-

ists in writing racial restrictive covenants on real

property at a good fee, have not given up the

profitable business despite the U. S. Supreme

Court decision declaring such covenants to be

legally unenforceable. Evidence of the continued

activity of Mr. Friel is found in a form letter to

two of our members in Oakland inviting them to

a meeting at the First Presbyterian Church on

May 18 for the purpose of organizing a Home

Owners Protective Association. Another meeting

was scheduled for Bret Harte Junior High School

on May 25.

The Friel letter reads, in part, as follows:

"We are addressing you in regard to the recent

`Supreme Court decision which states that the

existing covenants for a specific neighborhood

will be only as effective as the residents of that

area may desire them to be.

"It is, therefore, proposed to organize your

group into a Home Owners Protective Association

which will not only maintain present type of own-

ership but also to function in other lines of com-

munity interest such as realty taxation, trans-

portation, utilities, schools, public health and sani-

tation and general community welfare."

Precisely what Mr. Friel is now offering is not

known since the Union's informants were unable

to attend the two meetings. It is known, however,

that Mr. Friel does not work for nothing. He used

to organize groups of home owners and then

charge them $10 a head for writing and filing

racial restrictive covenants which are now not

worth the paper they are written upon.

MEMBERSHIP APPLICATION

American Civil Liberties Union of No. Calf.,

461 Market Street,

San Francisco 5, Calif.

1. Please enroll me as a member at dues of

Se: for the current year. (Types of mem-

bership: Associate Member, $3; Annual Mem-

ber, $5; Business and Professional Member,

$10; Family Membership, $25; Contributing

Member, $50; Patron, $100 and over. Mem- i

bership includes subscription to the "American |

Civil Liberties Union-News" at $1 a year.)

2. I pledge $............ per month........ OP Ss per yr.

3. Please enter my subscription to the NEWS, $1

per year)

Enclosed please find $......0.....0.cccccccsesc0 Please bill

- *5. 316.6

Opinion of Federal Judge Louis Goodman

(Continued from Page 2, Col. 3)

in Congress assembled, as well as the executive

and administrative officers of government whose

activities contributed to the unfortunate saga of

Tule Lake, must all take that responsibility. (En--

phasis supplied.)

The Regulations promulgated by the Attorney

General pursuant to the authority granted by

Section 801(i), 9 F. R. 12241 make quite clear the

statutory object and the purpose of the so-called

renunciation hearings. *5.

Congress itself was fully aware of the purpose

and objectives of the statute as proposed by the

Attorney General. See House Report 1075 and

Senate Report 1029 submitted in connection with

H. R. 4102, 78th Congress 2d session.

"War Stimulates Lawlessness"

_ The safeguards of the Constitution have fallen

in earlier days in the face of the hysteria and

exigencies of war. It has been stated that: ``war

stimulates lawlessness" and that "this was true

of England during the Napoleonic Wars; it was

true of the United States as a result of the World

War." (referring to World WarI.) *6.

But it is incumbent upon the United States to

now effectively and properly correct the evils re-

sulting from ignoring Constitutional safeguards,

just as was done in the past.

The court is not unmindful of the heavy respon-

sibilities and burdens resting upon the executive

and military officials due to the war with Japan

and the dangers particularly affecting the west

coast of the United States. But even expediency

cannot remove the taint of unfairness with which

the renunciations, subsequently executed, were

clothed, because of the admitted objective of sub-

section i, (Emphasis supplied.)

There rested upon the government the impos-

sible burden, under these conditions, as well as

those inherent in the detention of the plaintiffs

at Tule Lake, of imparting fairness and regularity

to the procedure of alleged renunciations.

In accepting the renunciations of the plaintiffs,

the Attorney General was, of course, not only fully

aware of the purpose of sub-section i but also of

all the conditions existing at Tule Lake Camp at

the time. The affidavits filed on behalf of the

United States in this proceeding fully and without

dispute so establish. Only a comparatively small

number of renunciants acted with complete free-

dom of action, as evidenced by actual repatriation

to Japan. Only as to this small number, may it be

said that there was freedom from the factors

which in law made the other renunciations, in the

legal and equitable sense, involuntary and invalid.

(Emphasis supplied.)

Affidavit of John L. Burling

The affidavit of John L. Burling, assistant to

the Director of the Alien Enemy Control Unit of

the War Division of the Department of Justice,

filed by the Government, is enlightening. Mr.

Burling unquestionably was the one officer of the

Department of Justice who had the greatest first-

hand knowledge concerning conditions at Tule

Lake and the setting in which the renunciation

hearings were held. Among other things he said:

"The Attorney General was then confronted with

the necessity of making a recommendation either

for the detention of American citizens not charged

with crime and not under martial law by an ad-

ministrative act of a military or civil official or of

recommending a means of accomplishing the de-

tention of this group without violating the Con-

stitution." The 48 page affidavit of Mr. Burling

Hearing officer's recommendation. The

hearing officer shall recommend approval or dis-

approval by the Attorney General of the applicant's

request for approval of the formal written renuncia-

tion of nationality. The hearing officer, in making

his recommandation, is authorized to consider not

only the facts presented at the. hearing, but also

results of any investigation and any informa-

tion which may be available to him in reports of

Government agencies or bureaus, and from other

sources, RELATING TO THE APPLICANT'S

ALLEGIANCE AND RELATING TO THE EF-

FECT OF RENUNCIATION OF NATIONALITY

UPON THE INTERESTS OF NATIONAL DE-

FENSE. (underlineation supplied.)

316.7 Approval or disapproval by Attorney Gen-

eral.

record of the hearing and any other facts upon

which it is based, will be submitted to the Attorney

General for his approval or disapproval of the appli-

cant's formal written renunciation of nationality.

A RENUNCATION OF NATIONALITY SHALL

NOT BECOME EFFECTIVE UNTIL AN ORDER

IS LSSUED BY THE ATTORNEY.GENERAL AP-

PROVING THE RENUNCIATION AS NOT CON-

TRARY TO THE INTERESTS OF NATIONAL

DEFENSE. (Underlineation supplied.)

*6. "Mr. Justice Holmes and the Supreme Court," Felix

Frankfurter, 1938, p. 53.

The hearing officer's recommendation and the .

isei Citizenship Renunciation Case

is a fair, temperate and dispassionate statement

of the circumstances backgrounding the renuncia-

tions. The following excerpts from pages 45 and

46 of his affidavit are indeed worthy of mention in

this opinion:

"Tt is also patent that there was existing at

Tule Lake at the time described a very high degree

of excitement whipped up by organizations ad-

mittedly extremely pro-Japanese. It is also true,

as has been stated, that most of the renunciations

took place at the time when the renunciants and

their families were in extreme fear of being forced

out: of the center into a hostile community and

when they believed that the only way of making

sure of protective detention during the war was

to make themselves eligible for Department of

Justice internment. If these factors and the hys-

teria render the act of renunciation by persons

detained under these circumstances void, then the

renunciations are void. If the court is now to

hold that the totality of the circumstances de-

scribed in this affidavit constitute coercion, then

these renunciations were coerced." :

.... "It may be said that these hardships in-

flicted upon these persons were very great and

that the hysteria and mental confusion was like-

wise great."

.... "such renunciation could not be set aside as

a result of a determination that legal coercion

existed but only as an expression of the regret of

the American people over the original act of evacu-

ation and detention. If the renunciations are ulti-

mately set aside, in affiant's opinion, that ultimate

decision will only be justified as a determination

that the persons of Japanese ancestry resident on

the Pacific Coast were so goaded that some of

them took the foolish step of renunciation and

that, because the moral blame is ultimately else-

where, these persons shall not suffer the legal

`consequences of their own acts."

The chronology and history of the military and

executive orders providing for the removal and re-

location of American citizens of Japanese ances-

try, as well as Japanese nationals, is set out in Ex

parte Endo, 323 U.S. 283 and need not be repeated

here. In Endo v. U.S. 320 U.S. 81, the Supreme

Court failed to pass upon the constitutionality of

`the detention of American citizens of Japanese

ancestry, a proceeding protested by certain of the

Justices in dissenting and concurring opinions. In

view of the admissions contained in the affidavits

filed by the defendants herein and the conceded

purposes of Section 801(i), I have no doubt that

there was a complete lack of constitutional au-

thority for administrative, executive or military

officers to detain and imprison American citizens

not charged criminally or subject to martial law.

(Emphasis supplied.)

Government Aware of Coercion

It is contended by the Government that the

coercion of the renunciants was not by the Gov-

ernment and that, ergo, there is no basis for can-

celing renunciations. But the Government was

fully aware of the coercion by pro-Japanese and

by pro-Japanese organizations and the fear, anx-

iety, hopelessness and despair of the renunciants;

and yet accepted the renunciations. Any one of

the various factors, the existence of which is ad-

mitted by the affidavits, was adequate to produce,

at least, a confused state of mind on the part

of the renunciants and in which considered deci-

sion became impossible. The renunciants acted

abnormally because of abnormal conditions not of

their own making. We are not here concerned

with whether or not the acts of the renunciants

detrimentally affected other persons. The author-

ities cited by defendants, to support the conten-

tion that the duress recognized by equity as the

basis for rescinding contractural obligations is

absent here, are neither persuasive nor pertinent

to the unique facts of these causes. There is ade-

quate power in equity to right the wrong done

to the plaintiffs-a wrong inherent in the objec-

tive of Section 801(i) and demonstrated by the

admitted circumstances of renunciation. This

judicial power has never been expressly limited

nor circumscribed nor has the domain in which it

functions been precisely bounded. 30 C.J. S. 387

et seq; 312 et seq; 875 et seq.

Indeed it is not inappropriate to apply to these

causes the rationale of McNabb v. U.S. 318 USS.

302. If a confession secured in a manner obnox-

ious to Congressional policy may not be used in a

criminal case as evidence of guilt, it is equally

true that a document relinquishing the priceless

insignia of American citizenship should not be

validated when executed in like manner.

"Shocking to the Conscience"

The language of Kuwabara, supra, may be

appropriately paraphrased to fit this proceeding,

(Continued on Page 3, Col. 3)