Japanese American Legal History (The Internment)

This page focuses primarily on World War II and the Internment of Japanese Americans pursuant to Executive Order 9066.  Other pages in this series are Japanese American Legal History (General) and Japanese American Legal History (Enemy Aliens and Habeas Corpus).


World War II

On December 7, 1941, Japan launched a carrier-aircraft-based attack on the United States naval base at Pearl Harbor, Hawaii. About half the Pacific fleet was at Pearl Harbor at the time. More than 2,400 American servicemen and civilians were killed. Another 1,200 were wounded. Eight battleships of the Pacific Fleet were damaged or sunk, though the fleet’s aircraft carriers were at sea.  Hundreds of aircraft were destroyed. The same day, or shortly thereafter, the Japanese launched attacks against Malaysia, Singapore, Hong Kong, the Philippines, and Guam and Wake Island.

Because of the swift advances of the Japanese military, many Americans concluded that an invasion, either of Hawaii or the West Coast, was inevitable. Nevertheless, General Emmons, the military governor of Hawaii, informed his superiors in the War Department that “[t]he feeling that an invasion is imminent is not the belief of most of the responsible people.” Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied: Report of the Commission on Wartime Relocation and Internment of Civilians (Washington DC 1982), quoted in, Ronald Takaki, Strangers from a Different Shore, Little, Brown & Co., 381 (1998).

Executive Order 9066

0EevacuationPosterIn February 1942, Lt. Gen. John DeWitt, the commanding general of  the Western Defense Command, which included California, Oregon and Washington,  urged the evacuation of all Japanese American citizens from the West Coast. He argued that “[t]he Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted. . .The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.” Final Recommendation of the Commanding General, Western Defense Command and Fourth Army, to the Secretary of War (Feb. 14, 1942), quoted in, Hohri v. United States, 782 F.2d 227, 231 (D.C. Cir. 1986), vacated, 482 U.S. 64 (1987)(emphasis provided).

Faced with such logic, days later, President Franklin D. Roosevelt, who had considered a similar solution to the “problem” of Japanese Americans years earlier, signed Executive Order 9066.  Executive Order 9066 empowered the military to exclude persons from “military exclusion areas.”

By now, it is relatively well known that, pursuant to Executive Order 9066, more than 120,000 persons of Japanese ancestry  were relocated and/or interned, of whom some 77,000 were United States citizens. It is worth mentioning and taking note of, that Executive Order 9066 did not explicitly, in and of itself, “order” the evacuation and imprisonment for the duration of World War II of all persons of Japanese ancestry living in the western United States.  In fact, the Order did not specifically mention Japanese Americans at all.

The Order, in relevant part, authorized and directed “the Secretary of War and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.” Exec. Order 9066, 7 Fed.Reg. 1407 (Feb. 19, 1942), cited in, Hirabayashi v. United States, 320 U.S. 81(1943)(emphasis provided).

Thus, the scope of Executive Order 9066 was considerably broader in application than Japanese Americans solely, though Americans of Japanese ancestry were the only citizens affected simply by virtue of ancestry. The Executive Order was swiftly followed by two Public Proclamations, by one General DeWitt, who designated California, Oregon, Washington, and Arizona, to be “military areas.” Executive Order 9102 (Mar. 18, 1942) followed, which established the War Relocation Authority to formulate and effectuate a program (including all necessary regulations) for the removal, relocation maintenance and supervision of all persons excluded pursuant to Executive Order9066.  Congress then passed legislation making it a misdemeanor to be caught in violation of any applicable regulation (18 U.S.C. §97a(1942)).

Then, General DeWitt issued Public Proclamation No. 3, which established an 8 p.m. to 6 a.m. curfew (i.e., house arrest) for “all persons of Japanese ancestry” as well as “alien Japanese, Germans and Italians” living within the “military areas.”

Not long thereafter, a series of Civilian Exclusion Orders (a total of 108) were promulgated, which directed the exclusion of all persons of Japanese ancestry (even as little as one-sixteenth) from certain military areas . But, to ensure the “orderly evacuation” additional orders forbade the Japanese Americans from leaving the military areas on their own until future orders permitted. Other orders required them to report to Assembly Centers and then Relocation Centers. In addition, certain others of the Civilian Exclusion Orders forbade those who were assembled at the Camps from leaving without authorization.

A justification for the relocation was the fear of espionage or sabotage from “enemy aliens,” or citizens of foreign countries with which the United States was at war. Broadly speaking, this makes a certain amount of sense: a nation at war, the argument goes, ought at least to keep tabs on nationals of enemy countries.  For this reason (as will be discussed in greater detail below), certain German and Italian nationals living in this country were rounded up and detained. See, Jacobs v. Barr, 959 F.2d 313 (D.C. Cir. 1992), vacated, 482U.S. 64 (1987).

(Somewhat surprisingly, though, there does not appear to have been a repeat of the anti-German hysteria that gripped the U.S. during World War I, of the type that caused President Eisenhower’s family to change the spelling of his name, or which renamed sauerkraut “liberty cabbage” or German measles “liberty measles.” [Please note that I do not have a source on these latter three, and am (almost) convinced that I was being put on when told the last].)

But the onus largely fell onto the issei who, as discussed above, were forbidden to become citizens. This fact was often ignored in the media and Congress when the relocation/internment was being proposed. The issei, so the argument went, “had lived in this country for decades, but had refused to become citizens . . . . How can we trust their loyalty now?” Ironically, this was also a problem for Korean immigrants: Korea had been invaded by and occupied by Japan since the early 1930′s. Consequently, Korean immigrants who, as discussed above, could not become U.S. citizens, were considered Japanese nationals and hence, enemy aliens, even though Korea had been at war with Japan for years.

0girlbagsappleThe internment/relocation of nisei, or citizens, was justified because it was, allegedly, more difficult to distinguish loyal Japanese Americans from Japanese Americans who still owed fealty to the Emperor of Japan.  For this reason, as a general matter, no hearing tribunals were considered necessary to determine whether individual Japanese Americans should be excluded. In addition, it was argued that it would be impossible to distinguish “loyal” Japanese Americans from infiltrating saboteurs put ashore on the West coast, for example, by Japanese submarines. (In this context, it is noteworthy that the Germans apparently landed several teams of saboteurs armed with plastic explosives on the East Coast, but these were soon apprehended. See, Ex Parte Quirin, 317 U.S. 1 (1942). It is not entirely clear why the government would be able to distinguish a German saboteur from a German American, but not a Japanese saboteur from the Japanese American).

The Los Angeles Times editorialized that “[a] viper is nonetheless a viper wherever the egg is hatched – so a Japanese American, born of Japanese parents – grows up to be a Japanese, not an American.”See, e.g., Ronald Takaki, Strangers from a Different Shore, Little, Brown & Co., 388 (1998).  Gen. DeWitt held similar views, and would later state before Congress that “[y]ou needn’t worry about the Italians [sic, Italian Americans] at all except in certain cases.  Also, the same for the Germans [sic, German Americans] except in individual cases. But we must worry about the Japanese [American] all the time until he is wiped off the map.”  Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied: Report of the Commission on Wartime Relocation and Internment of Civilians (Washington DC 1982), Civil Liberties Public Education Fund/University of Washington Press 66 (1997)(citation omitted).

However, neither FBI Director J. Edgar Hoover nor United States Attorney General Francis Biddle felt the threat of sabotage or espionage was a legitimate concern. They felt the relocation to be the result simply of local political pressures from persons such as California Attorney General (and later, Governor) Earl Warren (the same Earl Warren who would become the Chief Justice of the Supreme Court).

In this context, moreover, it is noteworthy that there was no mass internment/relocation of Japanese Americans living in the Hawaiian Islands, despite the imposition there of martial law. Of the more than 150,000 persons of Japanese ancestry living in Hawaii, only about 1,500 were interned (generally, these were known sympathizers, Buddhist priests, certain civic leaders, and martial arts experts).

A further justification for the Internment Camps was that most states were unwilling to accept large numbers of what were essentially refugees. See, e.g., Ex Parte Endo, 323 U.S. 283 (1944) (alone of the governors of the western states, the Colorado governor expressed willingness to take in the relocated Japanese Americans, as part of his state’s wartime duty).

Later, due in part to a dearth of farmers, a series of regulations allowing for “indefinite leave” were promulgated. These regulations required that application for leave clearance be filed, and if granted, separate application for indefinite leave be made. (Notwithstanding these relatively humane [for a concentration camp – Pres. Truman’s words] provisions, there were incidents of persons shot trying to escape).

The Constitutionality of Relocation/Internment

The Supreme Court Cases

basbeallThe United States Supreme Court addressed controversies stemming from  Executive Order 9066 only four times: Hirabayashi v. United States, 320 U.S. 81 (1943), Yasui v. United States, 320 U.S. 115 (1943), Korematsu v. United States, 323 U.S. 214 (1944), andEx Parte Endo, 323 U.S. 283 (1944). In not one of these cases did the Court find Executive Order 9066 or orders promulgated under its authority to be unconstitutional.

In Hirabayashi and Yasui, the Court upheld the constitutionality of the curfews for American citizens of Japanese ancestry (described above), and approved “differentiating citizens of Japanese ancestry from other groups in the United States.” Hirabayashi v. UnitedStates, 320 U.S. 81, 101 (1943), though the Court did acknowledge that, generally, “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”

In particular, the Court stated that “[t]he adoption by Government, in the crisis of war and threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.” Id.

The Hirabayashi Court explicitly declined to consider the constitutionality of the regulations requiring Hirabayashi to report to an Assembly Center preparatory to his being sent to a Relocation Camp. The Court basically deferred to “military expediency,” essentially buying the argument that (i) a certain number of people of Japanese ancestry were not loyal to the United States; (ii) it was impossible in short order to determine precisely who; and (iii) it was therefore necessary to round up everyone of Japanese ancestry (except those living in Hawaii next door the the naval base at Pearl Harbor).

In Ex Parte Endo, Ms. Endo, an American citizen being held in a Relocation Camp, filed for leave clearance. It was granted, but she failed to file for indefinite leave. Instead, she filed for writ of habeas corpus, demanding that she be restored to liberty and that the regulations holding her were invalid.

The Endo Court granted her petition, but explicitly declined to rule on constitutional grounds. The Court merely found that, pursuant to the War Relocation Authority statute and Executive Order 9066, the WRA had no power to subject admittedly loyal citizens to its leave procedure, i.e., no power to detain, where the citizen was admittedly loyal.

The Court explicitly left open the possibility that the Order allowed for detention of citizens whose loyalty was not known. The Court stated “[d]etention which furthered the campaign against espionage and  sabotage would be one thing. But detention which has no relationship to that campaign is of a distinct character…” Ex Parte Endo, 323U.S. 283, 302 (1944). Thus, although the camps were generally opened in the wake of Endo, the case never addressed the constitutionality of the measure.

Korematsu related to the constitutionality of an exclusion order, i.e., whether it was constitutional to exclude Mr. Korematsu from his home in California simply because he was Japanese American. As the Court framed the issue, it was constitutional to exclude Mr. Korematsu from his home. The Court denied that it was reaching the question of whether internment was constitutional.  However, the practical effect was that the internment itself passed constitutional muster, since Mr. Korematsu was not allowed to be within the excluded area, except within a Relocation (or Assembly) Center.

The Court announced that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” and subject  “to the most rigid scrutiny.”  Nevertheless, in upholding Korematsu’sconviction, the Court relied heavily on the “military expediency” doctrine it had enunciated in Hirabayashi and noted that ‘[w]e are not unmindful of the hardships imposed by [the exclusion order] upon a large group of American citizens. 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.” Korematsu v. United States, 323 U.S. 214 (1944).

Somewhat gratifyingly, Justice Roberts, in dissent, stated that “the indisputable facts exhibit a clear violation of constitutional rights.” Further, he stated “this is a case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry,  without evidence or inquiry concerning his loyalty and good disposition toward the United States.” Justice Murphy, in dissent, noted that the “exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism.” Justice Jackson noted that, by ratifying the exclusion order, “the Court has for all time validated the principle of racial discrimination in criminal procedure  and of transplanting American citizens.”  However, Roberts, Murphy and Jackson were only three of nine justices; their dissents do not have any force of law.

 The Legacy Of E.O. 9066

FarewelltoManzanarCoverExecutive Order 9066 was finally withdrawn in 1976 by President Ford.

In 1980, the government convened a special commission, called the “Commission of Wartime Relocation and Internment of Civilians,” to investigate the internment/relocation.  The Commission’s report, issued in 1982, and titled Personal Justice Denied: Report of the Commission on Wartime Relocation and Internment of Civilians, found that the relocation and internment were “not justified by military necessity” and were based on “prejudice, war hysteria, and a failure of political leadership.”  See also, 50 U.S.C. App. 1989a(a).

Also in the early 80′s, Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu filed petitions for writs of error coram nobis. Essentially, this means that they wanted their convictions vacated on the grounds that the facts presented by the government were in error and/or falsified. The courts found that the government had suppressed documents showing that there was, in fact, no threat of espionage or sabotage from the Japanese American community during WWII.

Hirabayashi’s exclusion conviction and curfew conviction were vacated on appeal. Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987). Yasui’s case was dismissed by the district court upon the government’s motion to dismiss the indictment and vacate the conviction, but did not reach the issue of whether Yasui’s constitutional rights had been violated. See, Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985). Yasui appealed, but the appeal was dismissed as untimely; Yasui died before further substantive action was taken on his case. Yasui v. United States, 772 F.2d 1496 (9thCir. 1985); Hirabayashi v. United States, 828 F.2d 591 (9th Cir.1987). Korematsu’s conviction was vacated by the district court; the government did not appeal. Korematsu v. United States, 584 F.Supp. 1406 (N.D. Cal. 1984).

Finally, in the Civil Liberties Act of 1988, the Congress formally apologized on behalf of the United States and authorized restitution for surviving internees. In particular, the Congress recognized that “a grave injustice has been done to both citizens and permanent resident aliens of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II.” 50 U.S.C. App. 1989a(a). In addition, Congress stated that one of the purposes of the Civil Liberties Act was to “discourage the occurrence of similar injustice and violations of civil liberties in the future.” 50 U.S.C. App.1989 (6).

In none of the coram nobis cases, however, did the District Courts or the Courts of Appeals address the constitutionality of the conviction(and nor could they). The Supreme Court had already found it constitutional, and a lower court cannot overrule the Supreme Court.   Thus, although Hirabayashi’s and Korematsu’s convictions were vacated, the decision on the constitutionality of the underlying government action remains.

Moreover, congressional legislation cannot remove/overturn a Supreme Court pronouncement on constitutionality. Accordingly, under current precedent, the exclusion order of which Korematsu was convicted of violating, and the curfew which Hirabayashi and Yasui violated, are constitutional.

Why is this important? In 1950, not long after the fall of China to communism, Congress passed the McCarran Internal Security Act (repealed in the early ’80s), which authorized the attorney general to detain anyone if he believed there was “reasonable ground” to believe that that person was engaged in espionage or sabotage. The Act was, of course, directed at Communists; and it authorized their internment during a “national emergency.”  Note that this language closely tracks that of the Supreme Court’s Japanese American internment cases.

Finally, since the relocation derived from an Executive Order, ratified by act of Congress, nothing exists to prevent a future President from reissuing a similar Executive Order.

“Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent, it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.  It stands as a caution that in time of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.  It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.”  Korematsu v. United States, 584 F.Supp. 1406 (N.D. Cal. 1984).

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