Attorney General Kenny files brief with U.S. Supreme Court supporting Pacific Coast Jap evacuation order
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ttorney-General Kenny Files Brief
With U.S. Supreme Court Supporting
Pacific Coast Jap Evacuation Order
Asking that the United States Supreme Court define the powers
which a military commander may exercise over civilians and civil-
ian authorities in time of war, Attorney-General Robert W. Kenny
yesterday filed with the court a brief in which he supported the
validity of Lieutenant-General J. L. DeWitt's order excluding all
persons of Japanese ancestry from the military areas in the States
of Oregon, Washington and California. Kenny was joined in this
brief by Washington and Oregon through their attorneys-general.
The case arises out of the conviction in the United States Dis-
trict Court of the State of Washington of an American-born Japa-
nese, Gordon Kiyoshi Hirabayashi, for violation of the curfew and
evacuation orders of Lieuenant-General J. L. DeWitt.
Kenny's action is the outgrowth of an appeal taken by Hira-
bayashi, who contended that General DeWitt had no authority to
impose curfew and exclusion orders upon American sacemeeaes of
|threat of invasion, provide for
`the defense of the area and to
Japanese ancestry, and that he(R)
and other Japanese-American
citizens had been deprived of
their constitutional rights when
individual hearings for the pur-
pose of determining their loyalty
or disloyalty were denied them,
because martial law had neither
been declared nor did the reason
for martial law exist on the Pa-
cific Coast. Kenny described
General DeWitt's orders as prop-
er measures of limited martial
law.
Invasion Threat
Kenny contended that the
threat of invasion of the Pacific
Coast states following Pearl Har-
bor made immediate action nec-
essary in the exclusion of the
Japanese. Kenny pointed out
that there were over 112,000 per-
sons of Japanese ancestry on the
Pacific Coast at the time of the
war living near prospective land-
ing beaches and within the vi-
cinity of defense plants and mili-
tary installations. "This group,
was largely unassimilated," said
Kenny, "and many within this
area possessed strong religious,
ideological, and family ties with
Japan." He stated that it would
have been impossible to examine
this large group individually as
to their loyalty in the face of the
emergency which required]
prompt action.
"The possibility thatthe ex-
clusion orders might be held in-
valid," said Kenny, "and that
persons of Japanese ancestry
might be permitted to return be-|
fore a time justified by the mili-
tary situation, is of deepest con-
cern to Oregon, Washington and
California."
"The states of the Pacific
Coast," said Kenny, "believe that.
the matter of moving inland the
Japanese population. from mili-
tary areas must be treated solely
from a military viewpoint. This
action was necessary to meet the
protect against sabotage, cep
age and fifth column activities."
Kenny pointed out in his brief
that General DeWitt's orders|
stemmed out of executive order
`lof President Roosevelt of Febru-
`lary 19, 1942, which prescribed
military areas from which all
persons might be excluded based
upon the ground that successful
prosecution of the war required
every possible protection against
sabotage and espionage. Kenny
stated that shortly thereafter
Congress passed a law providing
enforcement in the Federal
`| eourts of all orders issued under
the presidential proclamation.
The brief contained a resume
of the Japanese problem insofar
-----
as it affected the Pacific Coast
states.
"Over 124 separate Japanese
organizations along the Pacific
Coast," Kenny stated, `were en-
gaged in varying degrees in com-
mon pro-Japanese purposes with
local branches of these parent
organizations numbering more
than 310. There were 100 fascis-
tic or militaristic organizations
in Japan having some relation,
either directly or indirectly, with
Japanese organizations or indi-
viduals of the United States.
Many had branch organizations
in the United States and directed
the activities of these branches.
(Continued on Page Eight)
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MS-3580-1127 MS-3580-1127.MODS MS-3580-1127.batch MS-3580-1385 MS-3580-1385-large MS-3580-1385-large.MODS MS-3580-1385.MODS MS-3580-1385.batch MS-3580-1386 MS-3580-1386.MODS MS-3580-1386.batch MS-3580-1387 MS-3580-1387.MODS MS-3580-1387.batch MS-685 MS-685.MODS MS-685.batch MSP-685 MSP-685.MODS add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log ladd WEDNESDAY, MAY 12, 1943 ma
ATTORNEY-GENERAL KENNY FILES BRIEF
WITH U.S. SUPREME
COURT SUPPORTING
PACIFIC COAST JAP EVACUATION ORDER
(CONTINUED FROM PAGE ONE)
A line of control existed from
the Japanese government."
Issei Influence
Kenny cited the powerful in-
fluence wielded by the Issei-
foreign-born Japanese aliens-
over the American-born Japa-
nese.
"There was reason to believe,"
Kenny said, "that there was a
considerable number of Ameri-
can Japanese who were poten-
tially disloyal and because of
their location were capable of
conducting espionage for the en-
emy and committing sabotage to
war plants and utilities in a way
which might have had disastrous
consequences for the Pacific
Coast and have seriously inter-
fered with America's success in
its war with Japan."
Additional anti-American in-
fluences were mentioned by Ken-
ny as the theory of the Japanese
government that many Japanese
may hold Japanese citizenship
although not born in Japan, and
also the former maintenance in
California of Japanese language
schools with a student body of
over 17,000.
Kenny cited numerous Su-
preme Court decisions wherein
it was held that certain civil
rights must be temporarily sus-
pended in times of emergency.
"When the occasion requires,
individual rights such as those
affected by curfew and evacua-
tion orders," said Kenny, "must
temporarily bend to the exercise
of the paramount and funda-
mental constitutional Tent pe Of
the State to preserve itself."
Kenny referred .to the `"disas-
trous error into which many
democracies have fallen-that of
affording more protection to the
civil liberties at home than to
safeguarding them from attack
from without."
"Ordinarily, constitutional
rights," stated Kenny, "privileges
and immunities of American citi-
zens cannot be curtailed by mili-
tary authorities, and local, State
and Federal laws prescribe the
standards of lawful conduct, but
there are occasions in time of
war when to meet an emergency,
the military authorities, in
carrying out the constitutional
function of conducting the war,
may adopt measures directly af-
fecting the conduct of civilians
and temporarily limiting their
constitutional rights."
Some Are Loyal
Kenny stated that there were
many among those excluded who
were undoubtedly loyal and
some, he said, "are now proudly
wearing the American uniform."
Long ago, the United States
Supreme Court ruled in the Mil-
ligan case that military law
could not legally be applied ex-
cept in case of actual invasion.
Kenny pointed out, however,
|this Japanese not guilty of vio-
that the reasoning of this case
should not apply as that case
"fails to meet today's wartime
conditions. It requires an inva-
sion and the complete break-
down of civil government before
the military may act. Long-
range bombing planes and car-
rier-based aircraft and far-mov-
ing submarines place a large por-
tion of our country and states
within the area of threatened
invasion.
"Today, sabotage, espionage
and fifth column technique are
the preludes to invasion. Mea-
sures taken to prevent the use
of these methods of modern war-
fare are within the mandate of
the Federal Government."
Stating that the "genius of
America has been its ability to
accommodate men of different
races, creeds and colors, and to
remove distinctions based on
these difference, Kenny said that
the considerations advanced in
his brief were made with the
realization of the importance of
preserving the fundamental
rights of all citizens regardless
of race or color.
Must Have Choice
"The Commander - in - Chief,'
said Kenny, "and his subordi-
nate military commanders, must
pe allowed a reasonable choice
of the means by which they will
discharge the tremendous re-
sponsibility imposed on them so
that they may achieve the vic-
tory through which constitution-.
al rights once more will be se-,
cured."
Oregon and Washington also
joined Kenny in another brief
to the Supreme Court involving
Minoru Yasui, American - born
Japanese. The trial court held
lating the DeWitt curfew orders
on the basis that martial law|-
had not been declared. Yasui,
however, was found by the trial
court to have accented Japanese |'
citizenship by implication be- |,
cause of his being an employee |
of the Japanese Consulate. Ken-
ny said that the position taken |
by the trial court would jeopar-
dize the position as citizens of
a number of native-born Japa-
nese of the Pacific Coast states,
and that the Supreme Court had
the opportunity of providing
some guide as to the kind of evi-
dence which should be required
before "a court will be justified
in finding that an election to
surrender such a precious thing
as American citizenshio has been
made."
Kenny urged that the "con-
siderations concerning national.
citizenship should be kept. free |
from the considerations which
made the imposition of curfew
a military problem."