Working Papers

       Pearl Harbor to the contrary, war with Japan had been foreseen. As early as the summer of 1940 the federal government had begun to take steps to thwart possible attempts at sabotage. The Immigration and Naturalization Service was transferred from the Labor Department to the Department of Justice. In order to keep a close watch on foreigners, all aliens were required to register annually (Daniels, 1975, 5). The Federal Bureau of Investigation and the various military intelligence agencies began to compile extensive lists of suspect Japanese aliens. In the summer of 1940, Judge Advocate General Allen Gullion, the top law enforcement officer in the War Department, was already receiving questions about the Army's role in preventing Fifth Columnist activities in case of war (Daniels, 1975, 7). General Gullion and his assistant in charge of aliens, Major Karl Bendetsen, soon became primary figures in the decision to evacuate the Japanese.
       As diplomatic tension between Washington and Tokyo increased, Japanese in America were put under increased restrictions. One day after the Pearl Harbor attack Issei bank accounts were frozen and all Japanese were prohibited from crossing U.S. borders in either direction (Daniels, 1972, 10-11 and 1975, 35). Within a few days 1,500 suspect Japanese aliens were placed under arrest. For a period of three or four weeks after these initial protective measures, calm and tolerance generally characterized the nation's attitude towards Japanese residents. But even in this period there were individuals and groups in the public, press, and government who were thinking in terms of evacuation and internment.
       Four days after the Pearl Harbor attack the West Coast of the United States was officially declared a "Theatre of Operations". The designation immediately expanded the authority of the area's commander, Lieutenant General John DeWitt. He and his staff assumed these responsibilities with what one historian describes as an attitude of "infectious panic" (Daniels, 1975, 14-15). Numerous false alarms emanated from the West Coast Defense Headquarters, including sightings of Japanese planes and fleets accompanied by warnings of imminent attack. On December 10 General DeWitt's staff, convinced that 20,000 Japanese residents of the San Francisco Bay area were about to stage an armed uprising, hatched a scheme to take all these people into military custody. Luckily, the local FBI office talked them out of it. This kind of paranoid panic contributed greatly to the push for a desperate solution to a non-existent problem.
       The wide circulation of Japanese scare stories in the press and in the public mind led editorial and public opinion to oppose the presence of Japanese on the West Coast. By mid-January these concerns had been transmitted to the West Coast congressional delegation. Even congressmen who had earlier cautioned restraint began to propose evacuation and internment.
       In the midst of this acute apprehension a jurisdictional dispute soon arose between the War Department and the Department of Justice. From the very outset the Department of Justice had been arresting suspect aliens, then giving them individual hearings. It accorded the American-born Japanese all the rights due citizens. Meanwhile Gullion, DeWitt, and Bendetsen were pushing for military jurisdiction over both aliens and Japanese-Americans. They continually complained about the laxity of the Attorney General's program for alien control.
       The Department of Justice, sensitive to this criticism from the War Department, apologized for its manner of handling enemy aliens (Daniels, 1975, 66). In its own defense the Department of Justice insisted that it had no right to disturb Nisei without proof of individual guilt and that, even if it had such power, it did not have the manpower to carry out such a broad program. Instead, the Attorney General suggested that the Army might declare various military areas from which it would evacuate everyone, except those to whom it issued passes (Daniels, 1975, 43-44). Not until February 17, 1942 did he attack General DeWitt's military judgment. In a letter to President Roosevelt he pointed out that the Army Chief of Staff did not expect an attack on the West Coast and that the Federal Bureau of Investigation had no evidence of planned sabotage (Daniels, 1975, 48). But by then it was too late, the decision had already been made. Two days later President Roosevelt signed Executive Order 9066, empowering the Army to designate military areas from which it could exclude anyone. [Note: Photo at left actually shows Rossevelt signing declaration of war against Japan.]
       Once the government decided in favor of evacuation, many details remained to be worked out. The evacuation process evolved over a period of months and even during the evacuation itself. The first problem was to determine who should be included in the evacuation. Executive Order 9066, after all, authorized the War Department to exclude anyone and everyone from a military area. In delegating his authority to General DeWitt, Secretary of War Henry L. Stimson established six categories of people: (1) Japanese aliens, (2) Japanese-Americans, (3) German aliens, (4) Italian aliens, (5) suspected fifth-columnists or subversives, and (6) all others. Stimson ordered DeWitt to exempt categories 4 and 6 from the evacuation (Daniels, 1975, 117-121). In time all restrictions on both German and Italian aliens were relaxed, then abolished. The sixty or so people evacuated in category 5 as being dangerous were expelled from the prohibited area, but not otherwise restricted (Girdner and Loftis, 1969, 124).
       While the group of people to be evacuated was being reduced, the territory from which they were to be excluded was increased. Attorney General Biddle, at the prompting of the War Department, had already designated numerous specific areas to be restricted, which subsequently became the first locations evacuated. Next General DeWitt designated two very broad areas. Military Area No. 1 covered roughly all land within 150 miles of the Pacific Coastline. Military Area No. 2 covered the rest of the states of California, Washington, and Oregon, as well as the western part of Arizona. Japanese were initially warned that they would be moved out of Military Area No. 1 only, but it was later decided to exclude them from both areas. Those who had voluntarily moved from Area No. 1 to No. 2 had to move once again.
      The general character of the evacuation also changed. At first the War Department envisioned a mass migration of which a large part would be "voluntary" (under the threat of involuntary removal), then decided upon a forced evacuation. General DeWitt issued a freezing order which forbade Japanese in prohibited areas from leaving without case-by-case approval. From March 30 to mid-August the Japanese were moved en masse to hastily constructed assembly centers, where they waited for several months to be transported east of the Military Areas. But again the plan was revised. April 7, at a conference in Salt Lake City with federal officials, governors of the states to which the evacuees would be relocated indicated that the Japanese were most unwelcome (War Department, 1943, 215). These states did not wish to receive by the thousands an oriental minority whose loyalty to America had come under intense suspicion. And so, the War Department moved the people to more permanent Relocation Camps for internment. The War Relocation Authority was then established to administer the camps. Under its direction evacuees were later screened and some resettled outside of the camps. As the evacuation policy solidified, the American Civil Liberties Union tried to ease the restrictions that would be imposed upon the Japanese evacuees.

      Roosevelt's Executive Order 9066 provided the ACLU with its most direct challenge to the principle that civil liberties must not be suspended in wartime. Not having a prepared policy for this contingency, the national organization had to quickly consult its branch offices and formulate one. Meanwhile the federal government raced ahead with its plans. The week after Secretary Stimson delegated his powers of exclusion to General DeWitt, the Japanese living on Terminal Island were completed evacuated. In the first two weeks of March DeWitt designated two extensive military zones with numerous subdivisions, established the Civil Affairs Division to plan the evacuation, and created the Wartime Civil Control Administration (WCCA) to execute it.
      The ACLU's national office, recognizing instantly the dire significance of the government's new direction, declared:

Unquestionably the most serious violation of civil rights since the war began will arise with the enforcement of the President's order permitting military authorities to establish zones from which all aliens and citizens alike may be evacuated. (Civil Liberties Quarterly, March 1942, 1)

Perhaps the most important factor in creating opposition to the referendum's outcome in Northern California was the director of the local board, Ernest Besig. A fanatic for civil liberties, Besig wanted no part of the half-way measures and compromises. His contact with the government infuriated him; once he had bailed out a Japanese-American "criminal", only to have the military police, alerted by the local sheriff, seize the man on the step of the courthouse and cart him off to military prison, leaving the outraged Besig in danger of losing his bond. Most exasperating of all, Besig's Japanese-American secretary had been forced to flee to the east coast, since she had "decided she wasn't going to any concentration camp"; the overworked Besig was now left with all the office paperwork to do, a state of affairs not likely to develop his diplomacy, his patience, or his acquiescence towards the Army. (McDaid, 1969, 31)

      At its July meeting, after modification of the national policy, the San Francisco Executive Committee prevailed over two dissenting votes to carry a motion that recognized the new national policy as binding in all future cases while continuing the Korematsu case as originally planned (N. Cal. ACLU ExComm, 2 July 1942). Since one test case on a given issue is all a local chapter can usually handle, the decision amounted to a repudiation of the national board's referendum (McDaid, 1969, 32). A "period of exhaustive correspondence" (N. Cal. ACLU, 1943) between New York and San Francisco ensued.

Baldwin suggested that a separate defense committee be set up to fight the Japanese-American cases. Besig replied, "We don't intend to trim our sails to follow the board's vacillating policy." The national board ordered the Northern California chapter to withdraw from its case on the points outside the scope of Resolution #2. Besig snorted, "We've got a number of Irishmen on our committee who love a good fight. So heave away with the monkey wrenches. We'll toss them back." (McDaid, 1969, 33)

      Eventually San Francisco and New York worked out a compromise under which the local branch handled the case through the Circuit Court of Appeals under Wayne Collins' name without mention of the ACLU affiliation. Meanwhile the national office set up an independent defense committee to make its arguments before the Supreme Court.

      While engaged in internal disputes, the ACLU managed also to carry out an energetic lobbying program in defense of Japanese-American rights. As early as January 1942 the Union had begun to agitate against repressive measures coming before Congress. In a letter signed by Arthur Garfield Hays, a member of the National Board, it urged a hearing on an amendment to a bill, originating in the Justice Department, which would allow naturalized citizenship to be revoked whenever the holder's "utterances, writings, actions, or course of conduct establishes that his political allegiance is to a foreign state" (S. Cal. ACLU, 31 Jan 1942). Hays complained that such a provision "opens the doors wide to prejudicial interpretations, private informers, and in the time of excitement, gross injustices".
      With the appearance of Executive Order 9066 the American Civil Liberties Union received its primary challenge. Though the Union split in its appraisal of the constitutionality of the order itself, it consistently and solidly pushed for reform in its administration. In March it wrote President Roosevelt asking for a procedure that would include individual hearings for all the evacuees. And in early May the Northern California Civil Liberties Union protested the War Department's sudden reversal of its policy of exempting from evacuation families of mixed race and individuals of mixed blood (N. Cal. ACLU ExComm, 7 May 1942).
      In June the San Francisco office went to court on behalf of Japanese-American voters. A member of the Native Sons and Daughters of the Golden West had filed suit in U.S. District Court to prevent San Francisco and Alameda Counties' evacuees from voting in upcoming elections. The American Civil Liberties Union promptly responded with an amicus curiae brief, and the suit was dismissed.
      In addition to its attempts to influence the administrative decisions of the executive departments of government, the ACLU devoted some attention to legislative proposals in Sacramento and Washington, D.C. Upon the national office's recommendation, the Northern California branch protested to U.S. Senators Downey and Johnson of California against Japanese internment Bill S2293 (N. Cal. ACLU ExComm, 1 Oct 1942). This bill, introduced on the day Roosevelt signed Executive Order 9066, would have authorized the Secretary of War to arrest and hold: (1) anyone owing allegiance to a foreign country, (2) members of any "race" ineligible for naturalization, and (3) anyone acting as subjects of a foreign nation (U.S. Congress, 1943, 8). In February 1943, the office directed its efforts to influence the deliberations of the California Legislature. The Executive Committee decided to oppose a resolution which advocated the denial of citizenship and landholding to all Japanese and another which would expatriate dual citizens (N. Cal. ACLU ExComm, 4 February 1943). It also voted to authorize the office "to intervene, if necessary, [on] behalf of the Japanese-American Citizen League, which desires to send its representatives to Sacramento to oppose pending anti-Japanese legislation" (N. Cal. ACLU ExComm, 4 February 1943).
      Though the Union's lobbying in legislatures against anti-Japanese legislation proved generally successful, it could not prevent the executive branch of the federal government from evacuating and interning the Japanese. Nor could it get them to establish any procedural safeguards to protect the rights of those affected. Eventually the ACLU had to carry on its battle in the judiciary. In a future paper I will discuss the six resulting cases--Hirabayashi, Korematsu, Yasui, Asaba, Wakayama, and Endo--and their disposition.