August 2003
It Can’t Happen Here? A Look Back at a Sad Chapter in the Law
by David F. Shayne
Shortly after the 9/11 attacks, I stood waiting for an elevator. Next to me, two elderly women were talking. One said to the other, “Now I can understand why they locked up the Japanese after Pearl Harbor.” I understood the implication all too well: perhaps our government should emulate that move, and round up the enemy and stick them in modern concentration camps. Of course, I could only guess who the “enemy” was: Arabs? Muslims? All Middle Easterners? I doubt the speaker knew for sure herself.
I could not contain myself. I asked the woman if she could tell me why only Japanese Americans were rounded up and imprisoned en masse, even though we were also at war with Germany and Italy. Why didn’t the government do the same with German and Italian Americans? The woman looked at me with surprise, looked back at her companion, and replied, “Well, I guess I never thought of that.”
The exchange saddened me terribly. I thought the act of incarcerating American citizens (or noncitizens for that matter) because they belonged to an ethnic group with which we were at war was widely recognized as a horrible crime our government had committed during World War II, and that there was no chance any American could justify it or want it to happen again.
Clearly I was wrong. In a February 2003 interview, North Carolina congressman Howard Coble said not only that the internments were justified but that the Japanese were imprisoned for their own good. He argued the extreme level of hatred the average American bore toward the Japanese over the attack on Pearl Harbor placed them at risk for falling victim to violent assaults. Imprisonment was just some benign form of protective custody.
Nothing could be further from the truth. Now we are again engaged in open war against an enemy who has killed thousands of his own civilians, has murdered and tortured American prisoners of war, and is in all probability closely allied with the perpetrators of the September 11, 2001, terrorist attacks.
Will the specter of the so-called “internment camps” be resurrected, as more Americans become comfortable with suspecting an entire ethnic group or religious community of disloyalty to or hatred of America? Will “national security” be raised, as it was during World War II, to justify a wholesale suspension of basic constitutional and human rights?
2002 marked 60 years since the U.S. Army issued the orders resulting in the incarcerations. I saw no recognition of this anniversary in the media. Those events are worth remembering. They are relevant to the events of today.
To gain some insight into the causes of the Japanese imprisonment, it is worthwhile to examine the opinions of the U.S. Supreme Court. The Court produced a detailed rendition of the events and underlying reasons for the mass imprisonment of Japanese Americans in two opinions: Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944). Although the Court failed to uphold basic constitutional principles and deferred, almost unquestioningly, to an indefensible policy promoted by a racist general, supported by a racist group of self-interested white citizens, and tolerated by the president of the United States, its decisions provide invaluable insight to how these events came to pass.
The legal issues in both cases were straightforward. Did the executive branch exceed its authority to take certain actions deemed necessary to carry out its war-making function? Or, as applied to these cases, did the military exceed its authority as defined by executive order when, first, it imposed curfews and, later, imprisoned all Japanese aliens and Americans of Japanese ancestry then residing on the West Coast?
A majority of the Supreme Court justices answered “no” to both questions, displaying extreme deference to the military, refusing to subject its rationale to any kind of scrutiny. The majority justified its “hands-off” approach in part based on a “war is hell” attitude, and dismissed the detentions as part of the suffering all Americans had to endure. The Court accepted military arguments that the Japanese, both citizen and alien, were as a whole “disloyal” to the United States, and that this fact justified the draconian measures taken.
I believe the historical record developed by the justices concurring and dissenting in Hirabayashi and Korematsu is of far greater interest than the facile legal analysis of the majorities. While both cases addressed the same underlying military orders, only the latter arose from the mass relocations and detentions, producing the strongest dissents.
Korematsu, however, builds on Hirabayashi. Thus, while Korematsu may be more interesting, it is important to understand Hirabayashi first.
Hirabayashi, a native-born American citizen and resident of Seattle, appealed two convictions for curfew violations. In its initial review, the Court discussed the background for the curfew orders. General J.L. DeWitt, the commander of the Western Defense Command, at first developed the policy of restricting Japanese to their homes at night. Later he ordered the “orderly evacuation and resettlement (ultimately in “relocation centers”) of Japanese” from their homes in certain designated areas along the West Coast, including Seattle. DeWitt justified his orders based on “suspected widespread fifth column activity”—Japan’s allowance of dual citizenship and “propaganda” from “Buddhist priests and other leaders.”
DeWitt’s “suspicions” were unsupported by hard facts. The crowning indignity in Hirabayashi occurs later, however. Justice Harlan F. Stone, writing for the majority, noted with no irony that the Japanese deserved suspicion because the bigotry and discrimination practiced by the majority American population prevented effective integration of the Japanese into the larger American society.
Put another way, the Court accepted the fact that the Japanese as a whole suffered significant discrimination and bigotry at the hands of mainstream society. It then followed, in the Court’s reasoning, that the Japanese must be more susceptible to disloyalty and hostility toward America, and therefore be more likely to engage in hostile acts. Recognizing the Japanese were already an oppressed minority justified oppressing them even more harshly.
Three justices—William O. Douglas, Frank Murphy, and Wiley Rutledge—wrote separate concurring opinions in Hirabayashi. Douglas and Rutledge took no particular issue with the majority’s analysis. Foreshadowing the Endo case (footnote 6), Douglas simply suggested that Hirabayashi might have to be given an opportunity to prove his loyalty. Rutledge said the military’s ability to act, even pursuant to the broad grant of authority by Congress and the president, was not unfettered or immune from possible judicial scrutiny.
Justice Murphy, on the other hand, discussed at length his extreme discomfort with the Court’s acquiescence to the use of ancestry and color as a basis for distinguishing between citizens. He found in the curfew order a “melancholy resemblance to the treatment accorded members of the Jewish race in Germany. . . . In my opinion this goes to the very brink of constitutional power.”
Despite his misgivings, Murphy went along with the majority. They upheld the military order as an “allowable judgment” under the circumstances. Murphy added, however, “Whether such a restriction is valid today is another matter.” He revisited that theme in his Korematsu dissent. Like Hirabayashi, Korematsu was a U.S. citizen. He appealed two criminal convictions arising from his failure to report for “relocation.” Technically, the trial court convicted him for failing to obey the exclusion order. Justice Hugo L. Black deftly avoided addressing the detention by claiming that this issue was not before the Court, only the issue of the exclusion order that forced the Japanese Americans to leave their residences.
The Court relied heavily on Hirabayashi to uphold Korematsu’s convictions. The only additional fact the majority cited in support of its ruling was a claim that the refusal by 5,000 Japanese Americans to swear “unqualified” loyalty to the United States, and that the request of “several thousand” for repatriation to Japan showed that all Japanese remained loyal to Japan.
Despite the majority’s acknowledgement that, even without taking the actual imprisonment into consideration, the exclusion of citizens from their homes is a “far greater deprivation” than confinement thereto during a curfew, they reached the same result as in Hirabayashi, relying on the same posture of extreme deference toward the military.
But this time three justices refused to support the result, and each authored a dissenting opinion.1 Collectively, they thoroughly developed the factual record, providing the details the majority chose to ignore in reaching its decision.
Justice Owen S. Roberts thoroughly traced the legal history of the military orders and the criminal prosecution leading to Korematsu’s conviction. He criticized the “officialese” the government used to disguise the odious nature of its actions, such as characterizing the forced detentions as “voluntary migrat[ion].” He characterized the conviction for what it was: punishment for failing to submit to “imprisonment in a concentration camp.”2
Roberts also described, and protested, the legal dilemma that snared Korematsu. Two of the military’s orders were inherently contradictory: Korematsu was forbidden to be within a certain area; at the same time, he was forbidden to leave it. The only way to solve the problem was to submit to involuntary imprisonment before seeking redress from the courts.
Justice Robert Jackson (who later acted as lead prosecutor at the Nuremberg war crimes tribunals) wrote primarily to decry the irony that neither a congressionally enacted statute nor an executive order issued by the president containing the same directives would have passed constitutional muster. Because the orders in question were issued by the military in wartime, though, the Court refused to interfere. As he put it, “We may as well say that any military order will be constitutional and have done with it.”
It was Justice Murphy, however, who brought to light the folly and wrongfulness both of the underlying actions perpetrated against Japanese Americans and the timidity of the Court’s majority in allowing these actions to stand. Building on his concurrence in Hirabayashi, Murphy said the military’s exclusion order “goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.”
Murphy’s Korematsu dissent—alone of all the internment cases’ opinions—laid bare the nature of General DeWitt’s actions. Murphy argued that the military’s justification for the exclusion orders was based not on “reliable evidence” of widespread criminal or treasonous acts, but rather on “questionable racial and sociological grounds not ordinarily within the realm of expert military judgment.” He quoted General DeWitt’s declaration that all Japanese were “subversive [persons who belong to an] enemy race whose racial strains are undiluted.” The general further declared, “I don’t want any [persons of Japanese ancestry] here. . . . The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. . . . We must worry about the Japanese all the time until he is wiped off the map.”
Apparently, neither the general nor anyone else in the military involved in these decisions wanted to bother with facts. Justice Murphy pointed out that, in fact, only two isolated acts of sabotage could possibly be attributed to Japanese Americans and one of these—the igniting of an incendiary device in Oregon—occurred after the detentions had taken place.3 In the bigoted mind of General DeWitt and his supporters, the lack of evidence of any hostile acts committed during the first three months of the war with Japan was only a “disturbing and confirming indication that such action will be taken.” 4
Justice Murphy further brings to light what may in fact lie at the core of these orders: the greed and hatred of many in the white population. It appeared that many white farmers and land holders lusted after the considerable accumulation of property by Japanese Americans. Murphy quoted Austin Ansen, an officer of the Salinas Vegetable Grower-Shipper Association:
We’re charged with wanting to get rid of the Japs for selfish reasons. . . . We do. It’s a question of whether the white man lives on the Pacific Coast or the brown men. They came to this valley to work, and they stayed to take over.
. . . They undersell the white man in the markets. . . . They work their women and children while the white farmer has to pay wages for his help. If all the Japs were removed tomorrow, we’d never miss them in two weeks, because the white farmer can take over and produce everything the Jap grows. And we don’t want them back when the war ends, either.
Finally, Murphy raised the one fact that made the obvious injustice of the military order inescapable: We were at war not only with Japan but with Italy and Germany as well. German naval vessels sank millions of U.S. marine tonnage, killing large numbers of Americans even before Pearl Harbor. German vessels came closer to our shores and attacked American targets far more frequently than did the Japanese navy.5 American citizens of German ancestry actually did engage in sabotage and espionage.6 They were punished individually7 and no collective action was taken against large concentrations of German or Italian Americans, whether living on the Atlantic coast or in the interior. Justice Murphy argued, “No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal as was done in the case of persons of German and Italian ancestry.8
Although none of the justices said it directly, the inescapable conclusion of these cases is that the Japanese were treated differently than German and Italian Americans because they were not white and were not well integrated into mainstream American white society.
Justice Murphy closed his opinion: “I dissent from this legalization of racism. Racial discrimination in any form and any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.”
I have often heard it said, from learned judges and law professors alike, that dissenting opinions are irrelevant. I know one judge, an excellent jurist, who would get annoyed if any attorney would attempt to rely on a dissent.
Nevertheless, publishing judicial opinions—majority and minority alike—serves purposes beyond the immediate need to determine the current state of the law. At the U.S. Supreme Court, particularly, these expressions of disagreement and occasional frustration—and, as in the case of Justice Murphy, a sense of outrage—can provide great insight into the American character and the values over which society argued in years past.
Sometimes, as in Korematsu, dissenters may lie ahead of the curve, their views harbingers of a coming shift in the way we see our society, and a redefinition of what we perceive to be right and wrong.9
When its military branch issued the orders resulting in the dislocation and imprisonment of more than 100,000 innocent people, the U.S. government committed a great injustice, one of the worst—if not the worst—abuses of power towards its own citizens in the 20th century.
Perhaps it is farfetched for me to worry that our government would impose such abuses again, this time against Arab Americans, Muslim Americans, or simply persons born in another country. While I do not take lightly the dangers confronting us at this time of active warfare against terrorism and the conflict in Iraq, we must be careful not to allow our natural fears to unleash our deepset and ever-present bigotries, and allow these to dictate our actions. If we do, as the Korematsu dissenters and those who agree with them have shown, we will come to regret it.
More than 60 years have passed since General J.L. DeWitt issued the orders that resulted in the injustice of internment. Children who were robbed of a significant part of their childhood are now aging. Their parents’ generation is elderly or has passed. More should be done by modern American society to recognize the great injustice done in its name and memorialize it for future generations. One small way to do this is to recall the unsuccessful but gallant efforts by a handful of lawyers and jurists to right this national wrong. And to promise ourselves that this great injustice shall never be repeated.
WSBA member David F. Shayne is an attorney with the Office of Regional Counsel of the Federal Aviation Administration in Renton.
NOTES
1. A fourth justice, Felix Frankfurter, wrote a separate concurrence. He added little to the discussion other than to point out, in a manner reminiscent of Pontius Pilate’s handwashing, that the Court’s refusal to overturn the military orders at issue did not constitute “approval” of the result.
2. Despite the harsh language and arguments employed by all three dissenters, especially Justice Murphy, this comment alone drew a wounded reproach from Justice Black, who replied, “[W]e deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies.”
3. It is a matter of further irony that Justice Murphy got this fact wrong: The launching of incendiary devices and their detonation in the Pacific Northwest were acts carried out by the Japanese military, and there is no known or suspected involvement by any then living in the United States. See, e.g., Oregon Blue Book, www.bluebook.state.or.us and J. David Rogers, “How Geologists Unraveled the Mystery of Japanese Vengeance Bombs.”
4. Not only was DeWitt dead wrong in his prediction of Japanese-American treachery, large numbers of Japanese Americans enlisted in the military and fought alongside their fellow Americans. The heroic actions of the 100th Infantry Battalion and the 442nd Regimental Combat Team, all-Japanese volunteer units, are now acknowledged. Indeed, the 442nd is one of the most highly decorated units in U.S. military history.
5. See, for example, Homer Hickam’s Torpedo Junction (Dell, 1991), describing in detail how German U-Boats destroyed more U.S. shipping within a few miles of the Atlantic coast than the entire Japanese navy destroyed during World War II, including Pearl Harbor.
6. See Ex parte Quirin, 317 U.S. 1 (1942).
7. In fact, when the Court did confront the issue of the legality of detaining loyal Japanese Americans, the Court found that the underlying executive order that authorized the military orders upheld in Hirabayashi and Korematsu did not authorize the detention of a citizen whose loyalty the government conceded. See Ex parte Mitsuye Endo, 323 U.S. 283, 1944.
8. Justice Jackson made a similar point in his dissent, noting that no German or Italian aliens, let alone treasonous U.S. citizens, would have been arrested under the same orders had they been present in the same areas as those at issue in the military orders.
9. For example, two of the most infamously racist opinions the Court issued, Dred Scott v. Sanford, 60 U.S. 393 (1856), and Plessy v. Ferguson, 163 U.S. 537 (1896), included dissents expressing ideas that decades later would become the Court’s norms for addressing racial-discrimination issues.
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