The incarceration of Japanese American citizens during the Second World War was one of the most flagrant violations of civil rights ever inflicted by the United States government. All three branches of government — executive, legislative, and judicial — lost their constitutional compass. Government officials were blatant in their disregard of cherished American liberties and indifferent to the rule of law.
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Rarely in times of crises has the lapse of judgment been so tragic. American citizens in previous wars were sometimes imprisoned for their protest or dissenting speech but never for their ancestry. Japanese Americans, however, were not protestors or dissenters. The justification for their confinement was heritage alone.
The internment policy reflected a complex of hysteria, ignorance, fear and deep-seated racism that permeated the corridors of power and the American public—a mindset cut from the same cloth that inspired slavery and the long train of racial discrimination and abuses against African Americans and Native Americans. It was a stark reminder, moreover, of the high costs endured by the republic when governmental officials erect a platform of unquestioning deference to the doctrine of necessity and the military intelligence to justify curtailment of the rights and liberties of American citizens.
Poster announcing the enforcement of Executive Order 9066 in San Francisco.
The architecture of the program, hatched in the weeks and months that followed the attack on Pearl Harbor, was founded on a simple, if deeply flawed, premise within U.S. military circles: Japanese American citizens living on the West Coast would exhibit loyalty toward the Japanese Empire, not the United States, and could be expected to engage in acts of espionage, sabotage and treasonable activities. There was no evidence or military intelligence to support the hypothesis, but only the wild speculation of a handful of military officials whose imaginations were fired by their racism toward Japanese Americans. Roosevelt’s decision to issue Executive Order 9066 reflected, in part, surrender to the wave of racial prejudice on the West Coast that, for roughly a century, had been directed against Japanese Americans. Ironically, in the immediate wake of the attack on Pearl Harbor, there was no widespread demand for the removal and confinement of Japanese Americans. The occasional expression of fears that Japanese Americans were engaged in espionage and fifth column activities were allayed by various public officials, including FBI Director J. Edgar Hoover, who dismissed concerns about internal security threats and reassured the nation of the loyalty of American citizens of Japanese ancestry. U.S. Attorney General, Francis Biddle, who through the course of the war would prove to be a steady defender of the rights of Japanese Americans, declared that the government would not conduct any “indiscriminate, large-scale raids.” Yet those stout declarations were not enough to stem the tide of mounting hysteria generated by conspiracy theories built on wild rumors of espionage and sabotage and the racial discrimination fueled by a handful of military officials, elected representatives, newspaper columnists and business interests that competed with those owned by Japanese Americans.
Military officials who possessed the knowledge, capacity, and standing to allay anxieties about a Japanese invasion, refused to do so. On the contrary some, including General John L. DeWitt, the ranking military commander on the West Coast, fanned the flames of fear with their own irresponsible assertions. DeWitt, for example, stated in the days following the attack on Pearl Harbor that a squadron of Japanese planes had flown over California and that an uprising of some 20,000 Japanese Americans was imminent. He also asserted “Japanese Americans were aiding submarines by signaling them from the shore.” Military investigators and the FBI denounced DeWitt’s claims as baseless. Despite those findings, Navy Secretary Frank Knox reported to FDR “there was a great deal of very active fifth column work going on both from the shore and from the sampans.” Knox speculated that acts of espionage were likely and urged Roosevelt to remove aliens from Hawaii. No doubt Knox hoped to distract attention from the Navy, which was embarrassed by the attack on Pearl Harbor. FDR rejected the recommendation, but the surge of demands for removal of Japanese Americans continued to be fueled by newspaper editorials and elected officials in California and throughout the western United States.
A member of the California congressional delegation called for the placement of Japanese Americans in “concentration camps.” California Governor Earl Warren asserted that while it was relatively easy to discern the loyalty of Italians and German Americans it was extremely difficult to determine which Americans of Japanese descent were loyal and which were not. Prominent columnists Walter Lippmann and Westbrook Pegler joined the chorus. Lippmann concluded that the fact that there had been “no important sabotage on the Pacific Coast” since the “outbreak of the Japanese War,” proves “that the blow is well-organized and that it is held back until it can be struck with maximum effect.” Pegler boldly stated: “[T]o hell with habeas corpus.” The Attorney General of Idaho declared, “We want to keep this a white man’s country,” and also said that all people of Japanese descent should “be put in concentration camps, for the remainder of the war.” Calls for incarceration drew support from officials and organizations in Washington. The report of the Commission on Pearl Harbor, chaired by U.S. Supreme Court Justice Owen Roberts, falsely claimed that Japanese Americans living in Hawaii had facilitated Japan’s attack on the United States. General DeWitt, whose racism and capacity for outrageous conclusions seemed boundless, announced in January that the “Japanese race is an enemy race” and that America must worry about the Japanese “until he is wiped off the map.” Attorney General Biddle resisted, for as long as he could, but he was no match for the combination of public opinion and the Department of War despite his personal pleas to President Roosevelt and his public statements that denied the need for the evacuation and detention of Japanese Americans. As the primary defender of the rule of law and the Bill of Rights, Biddle was overwhelmed by the plea of military necessity.
Roosevelt’s decision to issue the executive order was undoubtedly reflective of his deference to military judgment and the assertion of military necessity was supported by public opinion in a presidential election year. But FDR’s lack of sympathy for the civil rights of American citizens remains disconcerting. Few wartime presidents are troubled by constitutional principles when they appear to undercut their goals.
The constitutionality of incarceration — the curfew, the exclusion and the detention camps — came before the U.S. Supreme Court in three important cases: Hirabayashi v. United States (1943), Korematsu v. United States (1944), and Ex parte Endo (1944). By the time the Court heard the cases, however, the national security crisis that was expected to occur and which was supposed to justify the program, had never materialized. The cases raised two principal issues. First, should the Court accept without question the military’s assertion of the need for incarceration or should it make its own inquiry into the issue? Second, has the military provided adequate evidence to support its claim that the exclusion and confinement of Japanese Americans was necessary to the success of our war effort? If not, then the program violated fundamental rights protected by the Fifth and Sixth Amendments to the Constitution. In the end, the Court’s bow to the Doctrine of Necessity, “lies about like a loaded weapon ready for the hand of any authority that can bring a plausible claim of an urgent need,” as Justice Jackson declared in his justly celebrated dissent in Korematsu.
The Hirabayashi case was the first to reach the Court. Gordon Hirabayashi was a college student at the University of Washington, who was prosecuted and convicted of violating a federal statute that made it a crime for any person knowingly to disregard restrictions in a military area. His conviction was upheld by the Supreme Court in an opinion written by Chief Justice Harlan Stone who, in conference, had expressed his shock that “U.S. citizens were subjected to this treatment.” That sentiment, however, was not enough to deter the Court from sustaining the curfew. Stone wrote: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people. … [But] it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense … and which may in fact place citizens of one ancestry in a different category from others.”
The reasoning of the Court was hardly persuasive and suffers from undue deference to the judgments of the military. Stone’s opinion proceeded from the well-heeled premise that the government enjoys broad discretionary authority to conduct war in order to prosecute it successfully. Stone’s strained conclusion found “reasonable ground” for the military to believe that Japanese Americans posed a “real” threat to the security of the nation. Yet, the so-called facts were said to afford the conclusion that there was a “rational basis” to believe that ancestry would inspire citizens to resort to sabotage.
The military presented no evidence or facts that Japanese Americans had or were inclined to engage in acts of sabotage. Furthermore, the ethnic presumption of disloyalty, applied only to Japanese Americans and not those American citizens of Italian or German descent, reflected a standard of raw racial prejudice of the sort that had never previously been held against Americans based on their ancestry. The Court’s embrace of an additional premise of the military’s reasoning — that it was impossible to determine the loyalty of every American citizen of Japanese ancestry — coupled with the presumption of Japanese disloyalty, provided the justification for the curfew and exclusionary order. Of course, there was ample time to examine the loyalty of Japanese American citizens. In addition, the Court might have taken judicial notice of the fact that in the five months following the attack on Pearl Harbor, some 110,000 citizens of Japanese ancestry had been living in California without any reports of sabotage. In the end, as it has been justly observed, the exclusion order was sustained, not because it was impossible to investigate the loyalty of all Japanese American citizens but because they were a small enough segment of the population to confine.
The Court, in Hirabayashi, engaged in excessive deference to the military invocation of necessity and ignored its “inescapable duty of seeing that the mandates of the Constitution are obeyed,” and that “the limitations of the Constitution” are enforced, as Justice Frank Murphy observed in his concurring opinion, which read like a dissent. Murphy rightly dismissed the hackneyed military resort to the doctrine of necessity in order to compromise civil liberties when he concluded that “we must not forget that few indeed have been the invasions upon essential liberties which have not been accompanied by pleas of urgent necessity.”
The Korematsu case featured a young Japanese American citizen who was prosecuted and convicted of violating General DeWitt’s Exclusion Order, which required the exclusion of all persons of Japanese ancestry from the area under the supervision of the Western Command of the U.S. Army. Fred Korematsu had sought to enlist in the Navy, but was turned down because of gastric ulcers. On May 30, 1942, the police stopped Korematsu, who was walking with his Italian girlfriend on the streets of San Leandro, California.
In 1944, in an opinion written by Justice Hugo Black, the Supreme Court, by a 6-3 vote, upheld Korematsu’s conviction. Black’s opinion leaned heavily on the frame and reasoning em ployed by the Court in Hirabayashi: “We cannot reject as unfounded the judgment of the military authorities… [that] exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group… [Yet] we are not unmindful of the hardships imposed… 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… Korematsu was not excluded from the [West Coast] because of hostility to… his race… We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified.”
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In adhering to the Court’s reasoning in Hirabayashi, Justice Black determined that the premises of the Hirabayashi case governed Korematsu — that Japanese Americans represented a national security threat and that there was no time to examine on an individual basis their loyalty to the United States. Of course, Black’s opinion for the Court also reflected an additional conclusion, that the curfew order was insufficient to protect the nation and, therefore, the decision to exclude Japanese Americans from specific areas represented a “reasonable” way to protect the West Coast against means of espionage and sabotage.
The Court’s opinion in Korematsu, like its opinion in Hirabayashi, shattered upon the analyses of the three dissenting Justices — Owen Roberts, Frank Murphy and Robert Jackson. Justice Roberts, who chaired the Pearl Harbor Commission, held that it was clearly unconstitutional for the government to insist that a citizen submit “to imprisonment in a concentration camp” for no reason other than “his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.” Justice Jackson concluded that the courts may “not be asked to execute a military expedient that has no place in law under the Constitution.” He added: “I would… discharge the prisoner.” Justice Murphy advanced a standard by which to adjudge the legality of the claim of military necessity. “The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.” The Exclusion Order, Murphy reasoned, “does not meet that test.” Justice Murphy decried the baseless conclusions that Japanese Americans represented a security threat and concluded: “I dissent, therefore, from this legalization of racism.”
Ex parte Endo was the third case in this line of challenges to the incarceration program. Mitsuye Endo was a 22-year-old clerical worker in the California Department of Motor Vehicles. Endo did not read or speak Japanese and had never traveled to Japan. Her brother was serving in the U.S. Army. Endo filed a petition for habeas corpus, contending that she was a loyal citizen who had been unlawfully interned in a relocation center. The government conceded that Endo was a loyal American citizen.
Endo was decided the same day as Korematsu. The Court, in a unanimous opinion written by Justice William O. Douglas, did not review the constitutionality of the detention camps since it was able to determine that the statute, which authorized forced removal to relocation centers, did not contemplate the detention of a citizen whom, the government agreed, was loyal. Thus the Court held that Endo “should be given her liberty.” Justice Douglas wrote: “Loyalty is a matter of the heart and mind, not of race, creed, or color.” The Court, after severe missteps in Hirabayashi and Korematsu, had finally gotten it right in liberating Endo, though it sidestepped addressing the constitutionality of confining thousands of American citizens in concentration camps.
The unspeakable treatment of American citizens of Japanese ancestry, rooted in racism and claims of military necessity, and promoted through the indifference of governmental officials in the executive, legislative and judicial branches to the Bill of Rights, to fundamental constitutional principles and to the elements of basic human decency, was a blight on our democratic honor. Robert Maynard Hutchins, a visionary educational leader and President of the University of Chicago, was surely correct when he declared: “The death of democracy is not likely to be an assassination from ambush; it will be a slow extinction from apathy, indifference and undernourishment.” The maintenance and vitality of our republic requires not merely governmental adherence to the rule of law, but an active, engaged citizenry, willing to call a halt to the assault on fundamental freedoms.
Republished from Adler’s “Flagrant Violations,” in Surviving Minidoka (2013).
The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University or the School of Public Service.