The Gordon Hirabayashi Trials:
War Powers and Japanese American Internment
America is a nation that prides
itself on its constitution and the rights it guarantees. When these same rights
have been breached, the results have often been tragic. One such trampling of
the civil liberties so earnestly penned by our forefathers presents itself in
the forced expulsion of Japanese Americans to prison camps during WWII. The
legal challenge to this injustice mounted by Gordon Hirabayashi (and only 12
others), an American of Japanese descent, reveals serious deficiencies in the
American legal system throughout all branches of government. Moreover,
Hirabayashi's plight offers a fascinating look at the inner legal workings of a
nation "ruled by law."
The weeks leading to the
internment were times of political intrigue in America, and the nation became
gripped by the grim specter of world wide war. Japan, already embroiled in a
controversial war with China, had signed the Tripartite Pact with Germany and
Italy in 1940. The signatories pledged to come to the aid of one another if
attacked by powers not currently fighting in China or Europe (Pyle 201). The
reaction from Washington to the signing was robust and resulted in an oil
embargo of Japan. Japan's new and militaristic prime minister, Tojo Hideki,
realizing that limited access to oil would continue to weaken the Japanese
military position, pushed for war sooner than later. The Japanese navy, for the
same reason, also argued for war.
The issue of oil, rising
nationalist sentiment, a desire to establish independence from the west, and a
determination to rule a sphere of influence free of foreign meddling,
culminated in the sneak attack on American forces at Pearl Harbor, December
7th, 1941. Once news of the attack hit Washington the "internment
question" immediately began to foment angst within the highest levels of
American government. In particular, eight men launched into a greatly heated
internment debate. Most of these men had very real doubts and misgivings when
confronted with the notion of mass internment. Two of them fought with great vigor
for the rights of Japanese Americans. In the end, this constitutional struggle
resulted in victory for zealous War Department lawyers over the men from a more
liberal Justice Department.
Of the eight, John Dewitt alone
lacked formal legal education. Lieutenant General John L. Dewitt commanded the
Fourth Army along the west coast. It was but one day after Pearl Harbor that
Dewitt's staff falsely reported of thirty Japanese planes in the San Francisco
area, resulting in a huge blackout of the city (Irons "Justice At"
26). The very next week there were reports of an entire Japanese fleet headed
for the west coast. Hysteria and war fears grew rapidly. Although a Japanese
attack on the American mainland in some form was a possibility, most of the
alarms and reports sounding from the west coast were greatly unfounded.
Even so, any of Japanese descent
in America could now be viewed a potential "fifth column" threat,
potentially colluding and abetting the enemy in every imaginable sort. Dewitt
had designated a hundred-mile wide strip up and down the west coast and had
hoped to remove undesirables from this "invasion area." As much as
Dewitt was concerned with the integrity of military installations, it is not
clear he would have made any quick move toward mass internment. In a December
26 Communication with Provost Marshal General Allen W. Gullion, it is Gullion
who presses Dewitt on the mass internment question, which at that time, Dewitt
rejected out of hand. By then, the line between justice and unreason was already
solidifying. On one side was Secretary of War Henry Stimson, Assistant
Secretary of war John McCloy, General Gullion, and the director of the alien
division of Gullion's office, Karl Bendetson.
General Dewitt rounded out the
list of high level officials who favored some form of internment, although it
took the relentless drive of Gullion, McCloy and Bendetson to finally pull both
Stimson and Dewitt firmly into their camp. The three men most opposed to mass
internment and seemingly more in step with the rights of the constitution were
the Justice Department heads. Edward J. Ennis was the Justice Department's head
of the alien enemy program. He had a history of New Deal liberalism and
guardianship of civil liberties was primary of his concerns. In his new role
with the alien program he truly desired to avoid the roughshod treatment of
enemy aliens so common during the First World War (Irons "Justice At"
16). Working closely with Ennis in the vain attempt to thwart the impulsive
moves of the War Department was Justice Department assistant, James Rowe.
Dennis and Rowe reported directly to Attorney General Francis Biddle.
Biddle's role as Attorney General
had already proved a needed shot in the arm to the cause of American civil
liberties. He had greatly increased the federal prosecution of lynching, police
brutality and other injustices leveled at African Americans. Some of his
efforts became benchmarks, referred to in the civil rights movement to come.
Unfortunately, as a cabinet member, he lacked the clout of the senior
statesman, Stimson. Because of Biddle's deference to Stimson, Ennis and Rowe
were at a great disadvantage to McCloy and Gullion. The series of meetings
between these government lawyers were long and complicated. Gullion and
Bendetson, the two most aggressive proponents for internment, pushed
increasingly harder. By January, newspapers had firmly laid blame on the Pearl
Harbor attack with the Army and Navy commanders in Hawaii, Short and Kimmel.
Both were discharged from their posts and disgraced.
Dewitt, looking to avoid a
similar fate, put to rest any of his previous doubts of internment, firming his
position with the War Department lawyers. That same month, the Congress took a
hard line on the internment position, and Supreme Court Justice Owen J. Roberts
led a commission that not only placed blame for Pearl Harbor on Short and
Kimmel, but concluded that there had been Japanese Hawaiians abetting the
Japanese in the form of an espionage ring. Public opinion toward Japanese
Americans shifted dramatically after the commission findings were released.
This in turn weakened the Justice Department's position to that of the War
Department men. Over the course of a few weeks after the Pearl Harbor attack, a
few hard-line War Department lawyers used political clout and unfounded
hysteria to get an upper hand over evenhanded men who clearly understood that
civil liberties and constitutional rights were being assaulted.
Stimson's diary reveals his
concerns with the ultimate aims of his men, Gullion and McCloy. "We cannot
discriminate among our citizens on the ground of racial origin." (Irons
"Justice At" 46). Before it was over, he could not bring himself to
make an ultimate decision in the matter and conferred with Roosevelt to put the
issue in "executive" hands. A preoccupied Roosevelt tossed it right
back to him and also made clear a quick resolve of the issue was desired.
Stimson, in February, reluctantly gave a nod of approval to McCloy and
Bendetson. Knowing of Stimson's meeting with Roosevelt, McCloy exaggerated to
Bendetson that the President had given them carte blanche in the matter, and
within two weeks they had drafted Executive Order 9066. On February 19, 1942,
Roosevelt signed the document.
By late March Congress and the
Senate quickly processed a bill to legally enforce the executive order. Public
Law 503 would grant the right to criminally prosecute those of Japanese
ancestry who violated curfews, did not report to regional centers, or were
found present in the west coast exclusion zone. Senator Robert Taft said of the
bill, "I think this is probably the sloppiest criminal law I have ever
read or seen anywhere." Taft's concerns aside, Roosevelt signed it into
law March 21. The mass internment of over 120,000 people (70,000 were American
citizens), was quickly underway (Nagata 21). Men, women and children were
herded to makeshift prison camps in some of the most desolate and unseemly
regions of the nation. The conditions of the interment camps were often
intolerable (Weglyn 42). Further compounding the injustice of forced
imprisonment was the seizure of property and other holdings of those sent to
the camps (Weglyn 152).
Amazingly, there was little
protest from these hapless people. Entire families donned there best attire and
politely did as they were told, leaving behind most of what they had spent
years accumulating. Five Japanese Americans eventually challenged Executive
Order 9066 (Nagata 22). One of these five was Gordon Hirabayashi, a University
of Washington social sciences student. His challenge would force the government
to defend its internment position in a court of law. Moreover, many of the same
government lawyers who hastily saw fit to imprison thousands of people would
now have to justify their actions.
Even before the Public Law 503
curfews were imposed, Hirabayashi was already aware of at least some of the
ongoing battles between the Justice and War Departments, as he later recounted
in a 1981 interview (Daniels 536b 7). He knew his parents (first generation
Japanese) would almost certainly be classified as enemy aliens. As such,
Hirabayashi knew there was a great chance they would be under some form of
internment. By the time Hirabayashi was to report and register for evacuation
himself, he had decided to abstain. In the same 1981 interview he explained
that he was not protesting as much as just acting like all the other Americans
who could move about as they pleased. Before making his final decision he had
sought legal council from the lawyer Arthur Barnett (see attached letter from
the Governor - Barnett 1 10). Mary Farquharson of the state senate had heard
about his intended curfew violation and approached him on the possibility of
making his stance a "test case." She worked with the ACLU and was
hopeful that his position could ultimately help the plight of the Japanese in
America if the case was tried.
Hirabayashi was glad to have the
support and with the help of Farquharson, money was soon raised for a case. On
May 11, 1942, he turned himself in to the Seattle FBI office and was sent to
jail. There he would sit for five months before being escorted to the Seattle
courtroom of Judge Lloyd D. Black that October. Hirabayashi's lawyer, Frank L.
Waters, had hoped that the shifting tide of the Pacific war after the
astounding victory in the Battle of Midway would have eased the hysteria and
fears of any Japanese attack on the mainland, and strengthen any case against
the Public Laws and Executive order 9066. Unfortunately, Judge Black had not
softened his own fears, of which he had written on that May in an opinion from
another case. In the opinion he envisioned and air armada of destroying
Japanese parachutist and "fifth column" Japanese Americans helping to
conceal them (Irons "Justice At" 154).
Walter's argued his case on Fifth
Amendment rights, and the equal protection clause of the Fourteenth Amendment.
Black's written opinion on Walter's demurrer makes clear that at this
particular time in American history, legality in such a case was less important
than paranoia. Black writes again on the Japanese threat:
Of
vital importance in considering this question is the fact that the parachutist
and saboteurs, as well as the soldier, of Japan make diabolically clever use of
infiltration tactics. They are shrewd masters of tricky concealment among any
who resemble them. With the aid of any artifice or treachery they seek such
human camouflage and with uncanny skill discover and take advantage of any
disloyalty among their kind.
The racial notion of resemblance
in addition to the ideal of "loyalties" within the Japanese American
community would play later into the more successful trials, years to come. In
the first trial under Mr. Black, however, civil liberties were dismissed
(Daniels 536c 44). Black even instructed the jury it was not for them to
interpret the constitution. The one day, one sided affair was certain to go as
Judge Black saw fit and Hirabayashi was convicted and sentenced the next day.
Hirabayashi, desperate to avoid jail, pleaded to be sent to a road camp, even
if it meant more time served. Black accommodated him, smiling, with concurrent
ninety day sentences (Daniels 536c 44). This blunder on the part of Walters
gave the Supreme court a legal loophole eight months later, to avoid ruling on
Hirabayashi's refusal to report for evacuation. The next step would be to
appeal.
Edward Ennis, once defeated in
his personal convictions by the War Department boys, found himself in the
position of having to defend the government stance in the pending cases
involving curfew and other violations of the public laws (there were three
cases total). In a later interview he admitted coming close to walking away
from it all. However, even in defense of the government, he displayed a fair
and even hand. Inasmuch, he pressed without success for dismissal of the cases
while they were in the court of appeals. Ennis testified in the appeals court
that he knew of no single case of a Japanese American found to have been a
menace to military security. However, both the inadequate arguments presented
by Walters and the courts acceptance of the "military necessity"
argument pleaded by the government lawyers, assured a decision in favor of the
government.
This left the lofty individuals
of the Supreme Court to decide the fate of the young Hirabayashi. At this point
it is of importance to point out that there were three cases being defended by
scores of government lawyers, including the likes of Ennis and McCloy. Many of
the same schisms between the Justice and War Department carried over from
pre-internment to the government defense. As well, there were many people on
the side of Hirabayashi. The ACLU, Quaker movements (Hirabayashi was Quaker),
the JACL and many others were outraged at the treatment of this race of people.
Mountains of briefs and other legal paperwork were submitted. These cases were
not as simple as they may seem in the summary overview presented here. And yet,
by the time they had reached consideration of the Supreme Court, the legalities
of constitutional rights involved had surely not been evaluated and debated
with proper consideration.
One could argue that the facts
were submitted by both sides, and the juries could have decided for or against
Hirabayashi. However, the high handedness of Judges like Black made an
impartial rendering on the cases difficult if not impossible. Moreover, as the
cases were being considered by the Supreme Court, the government defense had to
become stronger in view of the respectability of that great body. A great
degree of the defense increasingly rested on the premise of military necessity,
and war powers. It would be prudent at this time, to consider the significance
of what war powers actually are.
"I think of all the damnable
heresies that have ever been suggested in connection with the Constitution, the
doctrine of emergency is the worst. It means that when Congress declares an
emergency, there is no Constitution." So said Congressman Beck in 1933.
The War Powers, and what they can actually command are of continuing great
debate. In Roosevelt's inauguration speech America was in the throes of a great
depression. In that speech Roosevelt implored for War Powers in order to fight
the national emergency that was the depression. He described the national state
of emergency as no less than a foreign invasion. He even used this power to
impose a bank holiday (Genovese 169). In theory and in historical practice, War
Powers have indeed superceded the Constitution. What constitutes an abuse of
War Powers is certainly a consideration when looking to the rights of those Japanese
interned in WWII.
The Habeas Corpus is the
"Great Writ of Liberty" that guarantees the government cannot charge
and hold people with any crime, unless the procedure of due process of law is
carried forth. This writ also says the privilege of due process of law cannot
be suspended. The powers of this writ directly conflict with the War Powers.
There are great difficulties in determining which law supercedes the other. It
is far less difficult to conclude that a two year old Japanese American toddler
is not a threat to a Naval base. With that said, let us look now to the Supreme
Court rendering of the Hirabayashi case, and then finally, the reexamination of
the verdicts over forty years later.
The arguments before the Supreme
Court in these cases began May 10, 1943. Harold Evans, a new lawyer to the case
(Walters was working with him), questioned the President's powers as Commander
in Chief to exercise military control over citizens. He also tried to
distinguish for the court the difference between zones of military activity and
those with no immanent military danger. Justice William O. Douglas asked if
that was but a matter for military judgment (Irons "Justice At 221").
Charles Fahy, the government lawyer, determined to win his case, refuted the
positions of Evans and Walters with great oratorical skill. He off handedly
dismissed all lesser charges and focused instead the greater charges, which he
tied to the War Powers defense.
Fahy argued that the wartime
emergency shifted the balance of the Constitution. He also said that the
"due process" clause must give way to reasonable discretion of the
military when exercising War Powers. He tied these arguments again, with
"military necessity." When he was finished, his patriotic flair and skill
as a lawyer had sealed the victory for the government. However, not before
Justice Frank Murphy had circulated a draft of his intent to dissent (Daniels
536d 36).
Murphy, a formal Attorney
General, had dedicated his career to civil liberties. Murphy believed there had
been no reasonable grounds for the military action nor evidence of disloyalty
among the Japanese Americans (McClain 82). He wrote, "Despite the
extensive scope of the war power, it did not follow that the broad guaranties
of the Bill of Rights and other provisions of the Constitution protecting
essential liberties were suspended by the mere existence of a state of
war." When it was understood by the other justices that there was going to
be dissent, there was a great appeal to Murphy to relent for the sake of a
united front on such a difficult case. Only under great pressures did Murphy
change his opinion. His final draft had but few changes and barely concealed
his desire to dissent (McClain 88). The Murphy near dissent would be the
high-watermark for Hirabayashi's legal struggle for nearly a half century to
come. With the defeat at the Supreme Court in 1943, Hirabayashi was sent back
to jail (Daniels 536e 7).
Thirty nine years later, Peter
Irons, then a member of the Legal Studies faculty at the University of
Massachusetts, was doing research for a book on the internment cases. In his
research he unturned evidence of trial error in the original case trials, including
that of Hirabayashi. The errors opened up a possibility the cases could be
reopened. After conferring with all three men convicted in the original trials,
it was decided by all parties to pursue this effort. The legal procedure that
would be invoked was obscure and rarely used. It was called the "coram
nobis writ." Those who invoke it are limited to instances of fundamental
error or manifest injustice, and the burden of proof is high. It can only be
used to raise errors of fact that were knowingly withheld by prosecutors.
Only cases of extreme government
misconduct have any chance of succeeding with the coram nobis avenue. Even so,
the evidence of misconduct Irons had uncovered was startling, and later
corroborated by some of the men who took part in it. Careful examination of
Justice Department records revealed that DeWitt had gone on record in an
official Army report saying that as a racial group Japanese Americans were
disloyal, and that they had committed acts of espionage for Japan. These claims
had been refuted by the FBI, Federal Communications Commission, and the Office
of Naval Intelligence (Irons "Justice De." 5). Learning of the
suppressed evidence that would have proven DeWitt lied, and that Japanese
Americans had been fiercely loyal, Edward Ennis and another Justice Department
lawyer, John Burling, tried without success to persuade Charles Fahy to give
the information to the Supreme Court.
The records showed clearly that
DeWitt had not encountered or learned of one single act of espionage on the
part of Japanese Americans before he issued evacuation orders. With this
evidence in hand, Irons began the immense undertaking of organizing the coram
nobis petitions. The effort would take many lawyers, some volunteering their
time. The goal was to clear the criminal records of Hirabayashi and the others,
as well, it was hoped the judiciary would find the entire internment program
had been both unlawful and unconstitutional. It was decided after great
consideration to file the petitions in the original courts as opposed to the
Supreme Court. In addition, it was decided that the public had to be made aware
of the situation at hand (Irons "Justice De."12). If any possible
rulings were returned favorable, it would matter little without press.
The efforts paid off as the
petition filings were greeted with throngs of people and media. The judicial
reaction to the petitions was uncertain. McCloy, one of the government men
implicated by Iron's allegations, still held influence in Washington, and had
remained steadfast in his defense of the internment. After the petitions had
been filed a government commission released a report entitled Personal
Justice Denied. The report concluded that the internment decision was based
on race prejudice, war hysteria, and lack of political leadership. The findings
of the commission led to the possibility of pardons for the three men. This
would mean the arguments of the petitions would not have to be debated. It was
decided to reject the pardons, if proposed. It made little difference, as the
pardon effort met with criticism from hard-liners and fizzled away.
After intense legal debate, on
November of 1983, the first of the coram nobis petitions was granted. By May,
Hirabayashi, was also granted his new trial. The government held in defense a
few decoded Japanese diplomatic cables from 1941 that were intended to prove
Japanese American duplicity. When the cables were finally offered to the judge
as evidence in June, 1985, he refused to examine them all but relented to read
the "best one." The government lawyer handed one to the judge, who
laughed aloud and read the so called "magic cable" into record:
"The intelligence net operating in England is made up of eight Welshmen,
two Irishmen, eleven Scotsmen and two Spaniards."
That episode of hilarity had been
no more helpful to the government defense than the testimony of the
seventy-seven year old Edward Ennis. Ennis confirmed the suppression of
evidence charge he had originally brought forth in 1943, and he corroborated
his charge from that same year of McCloy withholding a crucial report from the
Justice Department. He went on to explain that McCloy's deputy, John Hall, had
deceived him about the report (Irons "Justice De." 329). The report
would have contradicted the government position to the Supreme Court that
Japanese Americans had been evacuated because the Army did not have the time
needed to sort out the loyal from the rest.
This phase of the trial ended in
vacation of Hirabayashi's evacuation conviction. Only after two rounds of
appeals, in January 1988, did the Court of Appeals for the Ninth Circuit vacate
the remaining curfew charge that had been with Hirabayashi for those long years
(see attached document - Barnett 1 26). This was certainly a victory for the
long suffering Hirabayashi. It could not, however, be construed as a resounding
victory for the American legal system. From the time of his arrest to the final
clearing of his name in 1988 there had been far too many failings in the checks
and balances that were created to protect his rights as an American. The
Justice Department efforts of Francis Biddle, Edward Ennis and James Rowe were
commendable, but they had been thwarted by Gullion and Bendetson. It was as if
the rights of the constitution were to the discretion of two assistant lawyers.
Consider that of 120,000 people,
only twelve people challenged the internment. Of these twelve only three fought
actual test cases of protest. It is quite conceivable there could have been no
challenge at all, and none of the constitutional arguments of internment would
have ever seen a court. When the cases finally made their way to the Supreme
Court, men who devoted their careers to the understanding of law and the rights
granted by the Constitution somehow saw fit to find the internment viable. Only
after years of tireless efforts, appeals, and an odd legal loophole (coram
nobis), did these men and the internment question stand even the slightest
chance of vindication. Moreover, there had been too much debate devoted to the
issue of redress. The redress and reparations that finally resulted in a
monetary forgiveness was overdue and welcomed by the Japanese American
community. However, the true debate should have been fought over the legal
system that caused the need for redress in the first place.
In particular, the War Powers and
how it related to the internment issue should have been and should continue to
be intensely scrutinized, by citizens, the judiciary and Congress alike.
Various Supreme Court justices have written opinions of emergency powers
ranging from stifling Constitutional restraint on the Presidency to that of
unbridled power (Genovese 87). Such great chasms in Supreme Court ideals on
this matter reveal that the powers of the President in a time of war or
emergency should be more clearly defined. The power to send troops abroad has
been a source of great conflict in Congress. In situations that possibly
require American troops on foreign soil, concrete conclusions delineating War
Powers will remain elusive. However, it should be a far simper task to define
the roles of how and when the President or Congress can level the power of
military and courts directly at American citizens.
Use of the Constitution to grant
"dictatorship" is an extreme danger and has been the undoing of more
fragile democracies. When an entire population of people, including children,
are imprisoned on pretense of military necessity, it should be clear that an
abuse of War Powers has been committed. When such abuse has occurred, it should
be a matter of national debate to find exactly how it happened, where and why
justice failed, and of greater importance, how to prevent it from ever
happening again. To the great loss of our nation, this is not how the mass
internment of Japanese Americans in WWII has been confronted.
Post Script:
It is of great curiosity to many,
how the liberal leaning Roosevelt could put his signature on the fate of so
many innocent people. Rowe and McCloy recounted conflicting views on the
matter. McCloy claims the President gave such important issues careful
Constitutional consideration. Rowe claimed the harried wartime President simply
saw internment as a minor problem (Irons "Justice At" 365). It is
clear that Roosevelt held up the release of Japanese Americans to placate conservative
sentiments during the 1944 election season for his own political advantage. The
war horse, McCloy, never changed his opinion on the absolute military necessity
for internment. In a heated exchange during a commission hearing years later he
let it slip that internment had been retribution for Pear Harbor. He then
immediately asked to have his terse comment stricken from the record.
Francis Biddle later regretted
not having pressed a better fight to the War Department. He also wished he had
made a stronger appeal to the President for the cause of Japanese Americans.
Justice William O. Douglas later admitted, "The evacuation case is forever
on my conscience." As for Stimson, his racial attitudes came clear in his
diary, "The racial characteristics of Japanese Americans make it
impossible to understand or trust them."
Gordon Hirabayashi, after the
war, was awarded a teaching assistant position at the
Works Cited