Petitioner's opening brief in the matter of the application of Mitsuye Endo for a writ of habeas corpus

JAMES C,. PURCELL

Mills Tower ~ Do, 6633

San Franeisco, Calif,

Attorney for Petitioner

IN THE DISTRICT COURT OF THE UNITED STATES IN AND FOR THE NORTHERN

DISTRICT OF CLAIFORNIA

Southern Division

(

In the Matter of the Application PETITIONER'S

of MITSUYE ENDO : OPENING

For a Writ of Habeas Corpus BRIEF

)

In this opening brief on behalf of petitioner for writ of

habeas corpus it is not intended to detail any argument in support

of the application of petitioner for a writ of habeas corpus.

The purpose of this brief is to point out to the Court the

leading cases upon which petitioner relies.

The sole question at issue is whether or not the cacmmanding

general has authority to detain the petitioner without any charges

having been brought against her and without any hearing or trial

of any type whatever. |

It should be borne in mind that this petitioner is an

American citizen by birth,

I

Where the Courts are cpen and their process unobstructed,

the arrest of persons by military authority is unauthorized.

Most of the cases cited upon this point are to the effect

that the "arrest and trial" of persons by military authority is

unauthorized, This distinction is pointed out to the Court be~

cause the Endo case is stronger than the cases cited owing to the

i.

bl a sit sses assis ia

fact that no trinl or process of any kind has been used or is

proposed to be used to accuse ar try potitioner en any ob avees

sree ae Se Bee

parte parte Milligan, e"al) 2, 18 Use ease 281; Boon vs

il. 21 UsSs (ley Odds) 8495 grr oti

feos of Tas tat, of dns toes 1595 Sheehan vs Jones, 44

ii. The evs Carver vs dene, 45 Ill, 5545 Griffin v. Wilson,

21 Inde S70; Molaughlin v. Green, 50 Mise, 463; Jones v.

Seward, 40 Barbs (He Ys )563; Matter of Gzan, 6 Park, Grim

(le Ye ") 6765 SE parte' Dasodiot, " Tost le leah (cite) 446

S Feds Cate Nos 1, 2923 In vo Kamp, 16 "ies 359,"

Jing cage upon which petitianer relies is the

leox, 21 indiana Reports, page 870.

an `tesa its: Sion upon the finding of the federal

judge of Hawaii in the ease of tho application of petitioner

Zimmerman for writ of habeas corpus om the grounds thet he was

being detained without charges ly the military governor of lami,

and the reported statement of the Judge te be found in the volume

of lerverd Law Review, heretofore given to the judge by mo, to the

The court " " " believes that a writ should isaue as a

matter of lew, Sut it would be in clear defianse of on

erder of the military governor to iacue the writ, I feel

the court is under duress ami is not able to carry out the

funetion of the court ae is ite duty, for that reason

alone, the court declines to isque the writ, -

50 arverd Law Review "1296

This court is clearly not under duress.

We also refer the Court to the following language an

in the report of the Tolan Commi

ittee House Report `No. 2124, iatea

Mey, 1942, page 169 thereof, as follows:

A resume of the foregoing developments can be

summarized as follows: Under seetion 21, title 50, United

States Code, Congress has conferred upon the President

the authority to regulate and control the activities of

enemy aliens. Sy the authority of this statute the

President issued his reclamations of December 7 and 5,

1941, No similiar statutory power exists to regulate and -

gontrol the activities of citizens of the United States.

The Executive order of February 19, 1942, was issued by

does not confer upon anyone the power to issue orders to

regulate and control the activities of citizens of the

2e i

Niger.

virtue of the President's authority as Commander in Chief

and not by legislative sanction, The act of March 21, 1942,

United States; it merely makes it a crime to disobey any

restrictions on such activities imposed by order of the

Secretary of War or his military commanders in military

areas or zones prescribed, under the authority of an .

ixecutive order of the President, by the Secretary of War,

or by any military commander designated by the Secretary

of War. :

if

We desire to point out te the court that at all times there

has been recognized a distinction between the right to seize

aliens or alien property, and the right to seize the person of

citizen or the property of citizen,

in this respect we first desire to call to the Court's

attention the fact that the right of the government to seize the

person of alien enemies by presidential warrant is based upon the

statute passed by Congress. (See Ex parte Gilroy, hereinafter

eited,) , ;

In this respect also, it should be noted that the right to

seize the property of alien enemies again is based upon a

Congressional statute.

: ' Upon the point that there is a distinction between the

right to seize the property of slien and the property of citizens

we cite to the Court, Salamandria v. lew York Life Insurance, 254

Federal at 661.

This was a case where the alien property custodians acting

under a Congressional statute claimed the property seized by him

was the property of an alien enemy, :

An attempt was made to restrain the seizure upon the ground

that it constituted a ciolation of the Fifth Amendment and upon

the further ground that the property was in reality the property

of a citizen.

The Court held that it was not violative of the Fifth

Amendment because the act in section 9 thereof, made provisions

for due process of law, in thet provision was made whereby and

alien friend or a citizen whose property was seized, could by the

Se

procedure provided in Section 9, recover said property.

_ It should be noted that the act permitting the seizure of

alien enemy property was stated to be within the war powers of

Congress, under Article I of the Constitution,

The Court also stated that no one would argue that a Court

should restrain the seizure of the person of an alien, merely

because that person claimed he was a citizen and that when the

seizure, under the presidential warrant was acoomplished, then upon

habeas corpus the person arrested could be heard as to whether or

not he was a citizen.

In the case of U. S. v. Tod, 285 Federal, 523, it was

specifically held that while Congress may forbide aliens, -

classes of aliens, entering the United States, and under certain

conditions may provide for their expulsion it is plain that

Congress cannot exclude a citizen from the United States.

This is particularly pertinent, because if Congress cannot

exclude a citizen from the United States it shows that the

President cannot exclude a shbleen, because the right to be in the

United States is a right incidental to citizenship.

The question then arises as to whether the right to be in

the United States means liberty of movement therin. In this

respect we call to the Court's attention the case of Edwards v.

California ,62 Supreme Court Reporter, 164 and particularly the

concurring opinion of Justice Douglas and Sanbion daehepems

In connection with this citation may we point out that the

quotation from Chief Justice White's decision in the selective

draft cases, wherein it is stated that the conception of a just

government and its duty to its citizens includes a reciprocal

obligation of the citizen to render military service is particular~

ly pertinent in the case at bar by reason of the allegation cone=

tained, that the brother of this petitioner is at the present time

serving in the United States armed forces.

"

If the citizen must reciprocate to the government by render-~

ing militery service, it seems apparent that the converse should

be true and where one is subject to military service, the govern-

ment owes a duty of equal protection,

Any other conception would put us on a par with the Hitlerian

form of government, where, as was recently pointed out in a none

report, when Hitler became short of men he took the Jews who had

heretofore been oppressed end placed them under the conscription

laws in his army,

This girl is subject to any service that may be demanded of

her by the government as a part of the obligation she owes because

of her citizenship.

Upon the question of distinction of treatment of citizens

and alien enemies and the fact that the right of a citizen is

superior to that of an alien enemy, we refer the Court to Ex parte

Gilroy, 257 Federal 110, wherein an American citizen, born in

Berlin, Germany, Was seized under the alien enemy act and applied

for a writ of habeas corpus.

This seizure was pursuant to a Presidential warrant issued

under the provisions of Section 4067, Revised Statutes.

The Court should note, that even as to interning aliens

Seized by a Presidential warrant, the seizure and the warrant are

authorized by the Congressional act, not by an executive proclam-

At Page 114, the following appears

"Vitel as is the necessity in time of war not to

hamper acts of the executive in the defense of the nation

and in the prosecution of the war, of equal, and perhaps

greater importance is the preservation of Constitutional

rights. The writ of habeas corpus is in such a real sense

one of the protection of civil rights and liberty that it

is not likely to be laid aside, Indeed, the fact that the

writ has not been suspended during this war will no doubt

stand as an enduring memorial of the calm and orderly

restraint of the American people during a period of great

stress and strain."

5e

In this respect we refer the Court to the 50 Harvard Law

Review, 1253 (article by Fairman), wherein at the end of said

article Fairman suggests that since there is some question as to

the legality of interning American citizens, the best way of

solving the problem would be to suspend the writ of habeas corpus,

and in that way delay the decision as to whether or not this

internment is legal. P,. 1501 and 1302.

In the Gilroy case, the Court, having determined that

Gilroy was an American citizen, granted the writ.

In the case immediately preceeding the Gilroy at page 102,

appears Ex parte Riss and In Re Stallforth, Therein it was pointed

out by the judge, that the burden is upon the applicant for the

writ of habeas corpus, to convince the court that he is not

subject to the Alien Enemy Act and consequently subject to seizure

by Presidential warrant as an enemy alien,

It has been repeatedly held that war does not suspend the

operative force of the Fifth or Sixth Amendments, or of the Fourth

Amendment . |

As to the Fourth Amendment see Ex parte Milligan, In re

Merriman, Griffin v. Wilcox, and Ex parte Vields, supra.

Also see U. S. v, licIntosh, 2 Federal Supplement, 244

1932, in which it was held that it was clear that war did not

suspend the operative force of the Fifth Amendment as to the

necessity for determination of just compensation for lend taken for

a marine base under an act of Congress authorizing seizure.

This Congressional act, it shovld be noted, authorized the

President to determine the just compensation with the right to

judicial review on the determination.

In this respect also see Namilten vs. Kentucky Distillary,

40 Supreme Court Report, 108, 1919, in which the following

language appears and in which the Milligan case is cited upon the

Wer powers.

6.

"The war power of the United States, like its other

powers and like the police power of the state, is subject

to applicable Constitutional limitations."

We also refer the Court to the case of U. 5. v. Cohen

Grocery, 255 U. S. 81, in which the Supreme Court comments upon

the fact that the District Court, in deciding the case, held that

the question of whether or notithis country was at War was unin-

portant because war did not suspend the applicable provisions of the

Constitution, and the Supreme Court in turn stated that the

question of whether or not the United States was at war as far as

its connection with the determination of this criminal status was

concerned, was negligible,

Upon the question as to whether or not martial law exists,

we specifically refer the Court to the article by Fairman in

Harvard Law Review, page 1299, wherein he states specifically that

there is no martial law. `The article includes the statement of

General Emmons in command at Hawaii, concerning the distinction

between Hawaii and the mainland, P.1291. It is conceded by this

article, that under the law of this country Congress has the power

to declare the necessity for martial law or to confer upon the

President the right to determine the necessity and to apply martial

law.

In the Fairman article it is noted that in Hawaii and in

Porto Rico and the Phillipines, Congress has specifically by

statute made provision for martial law under certain conditions.

No such statute has been enacted applying to the mainland, p. 1289.

What the government is virtually asking this Court to do is

over rule the decisions of the United States Supreme Court in

the cases heretofore cited and in particular in the cases of Ex

parte Field, In Re Merriman, and in Re Milligan, supra, and further

to take judicial notice that we are in a state of martial lew where

neither Congress nor the President has declared it to exist and

where no one else believes it exists.

Vs

of iiitsuye Unde, the petitioner is justifishle because there is

possibility, notthet she is suspected of being a ssbotow, but

that thore is a possibility some person my be a sabotow and they

don't know whether Miteuye Ente is in " elass which my inelude

this subotour whese presence is suspected, ,

" Identienl with the justification given in the foreign countries

for the incarceration in concentration compe, of the Jews in

Commany, of the Germans in Russia, Hitler's eonsentration camps

(der our lew a person is presumed to be imocent of erine,

Umdex the provisions of thie act of the President, as

tod by his general, the procedure now tn, that 4cent thore is

teil exbotour among 124,000 Japenese, that justifies the

debention of the 124,060, upon the ground thet they are unable to

plok out this paren, mot vho is ueousui of rine but who 4s mus

"peeted of the possibility of committing orine.

, `The opposition of the goverment to the issuance of the

order to show cause (which itself is contrary to the procedure

under an appliention for a writ of habeas corpus), shows ite

position to be that they oan insarcerate a citizen of the United

States, regardless of whether cr not she is suepected of wrong doing

or whether or not 1t ie suspected that sometime in the future she

may do wrong; and that they may refuse te even show to this Court -

applying for the writ of habens corpus with any bad set.

In conelusion let us polmt out to the Court thet 4cent is a

tal principle of American law that the military is

fieation for the imposition of mrtial lew .

a Os eg re re

Be `i

law, when, by reason of insurrection, invasion, or public disturb-

ance, when civil law is unable to act and no longer exists.

`Martial lew and civil law may be compared to the wolf and

the lamb, they cammot exist together -- one disappears in the

presence of the other and lambs don't eat wolves,

in the case of Caldwell v. Parker, 40 Supreme Court, 588

the Court was deciding whether or not Congress, by its power to

"declare war, had the power to abrogate state authority over

persons in military service,

"The known hostility of the American people to

interference by the military, with the regular administration

of justice in the civil courts, requires that such intention

should not be ascribed to Congress in the absence of clear

and direct language to that effect".

We cite this language because of the fact that in the

present case there are times when the government, instead of

proceeding upon the theory that martial law has been declared,

seeks to sustain the action by reason of the provision of Public

Law No, 505.

In respect to that law, we respectfully submit that the case

of U. . v. Cohen Grocery, supra, conclusively shows that the

law is void on its face,

We also contend that no where in this law is there any

tne or direct language authorizing the detention of American

citizens for an unknown period of time within or without military

reservation.

We respectfully submit that at no time have the American

people ever demonstrated confidence in military commanders.

sufficient to give deen the penne' of life and death over citizens.

| In the event that this procedure, now before the Court for

dedision, is sustained, where will the end be? In the past

Catholics have been persecuted because of a supposed loyalty to an

Italien Pope, Jews because they are supposed to be Sntninitihantaiten

without loyalty to any country, the Irish because they hate Great

De