Working Papers

       As a direct challenge to Executive Order 9066 and the subsequent military orders (see Blair, 1999, 195-196), Gordon Kiyoshi Hirabayashi refused to comply with Evacuation Order #57 (Seattle). He then presented himself, with a prepared statement, to agents of the Federal Bureau of Investigation (FBI) for arrest. The statement explained his purpose:

If I were to register and cooperate ... I would be giving hapless consent to the denial of practically all of the things which give me incentive to live. I must maintain the democratic standards for which this nation lives. Therefore, I must refuse this order for evacuation ... I am objecting to the principle of this order which denies the rights of human beings, including citizens. (Girdner and Loftis, 1969)

       Hirabayashi, born in Seattle in 1918, had resided in Washington State all of his life. He had attended public schools, graduated, and continued his education at the University of Washington. At the age of twenty-four he was finishing his senior year in the College of Arts and Sciences when ordered to evacuate. As vice-president of the campus YMCA and a member of the Seattle Meeting of the Society of Friends, Hirabayashi already had ample contact with community groups that would support his cause.
       The FBI immediately arrested him, and bail was set at 5,000 dollars. They charged him first with failure to report on May 11 or 12 to the Civil Control Station in response to Civilian Exclusion Order No. 57. A second count declared Hirabayashi to have been in unlawful violation of curfew regulations on May 9, the night he and some friends had held a farewell dinner for the neighborhood Japanese-Americans. The others had slipped out of the small church prior to the eight o'clock curfew, but not Hirabayashi.

       Hirabayashi spent five months cramped with thirty to forty other inmates in the King County Jail. Then, in the early fall, ACLU attorney Frank Walters presented Federal Judge Lloyd Black with two pretrial motions (U.S. v. Hirabayashi, 1942, 658). One argued for dismissal of the indictment because the military orders involved exceeded the constitutional limits imposed by the Fifth Amendment and Article IV, Section 2, Clause 1. It further claimed that these orders had not been properly authorized by executive order or legislative enactment. The second motion, a plea in abatement, called attention to Hirabayashi's status as a natural born American citizen and recorded his sworn allegiance to the United States.
       The judge disallowed the plea in abatement since the indictment identified the defendant as being of Japanese ancestry only, without reference to loyalty or citizenship (U.S. v. Hirabayashi, 1942, 659). Next the court took up the challenge to the indictment's constitutionality. Following the oral arguments in court, Black warned the defense that his views as expressed in Ex parte Ventura, et al. ran contrary to the defense's line of reasoning. Leaning heavily on the notion of military necessity, Judge Black noted that since Pearl Harbor:

We have been engaged in a total war with enemies unbelievably treacherous and wholly ruthless, who intend to totally destroy this nation, its Constitution, our way of life, and trample all liberty and freedom everywhere from this earth. It must be realized that civilization itself is at stake in this global conflict. (U.S. v. Hirabayashi, 1942, 659)

Characterizing the curfew provision and the Civilian Exclusion Order as "not only reasonable but vitally necessary", he even proclaimed "their advantage to all those American citizens of Japanese ancestry who are loyal to this country" (U.S. v. Hirabayashi, 1942, 661). In view of the extraordinary circumstances, he concluded that Hirabayashi's "technical right ... should not be permitted to endanger all of the constitutional rights of the whole citizenry" (Ibid.). The motion was denied.

       The trial, set for October 20, drew a crowd of university students, Quakers, and other supporters. The defendant's parents had even been released from the Tule Lake Relocation Center to attend (Fisher, 1970, 103). The prosecutor laid out the legal foundation for his case: Executive Order 9066, Public Law 503, Public Proclamation 3, and Civilian Exclusion Order No. 57. The defendant's acts within this legal framework were clearly established both in the prosecutor's case and Hirabayashi's own testimony. It took the jury only ten minutes to pronounce guilt on both counts (Fisher, 1970, 107). Frank Walters gave an immediate notice of appeal.
       Hirabayashi returned to jail and later received two concurrent sentences of three months' imprisonment. In February 1943 he was released on his own recognizance pending final determination of his appeal. As the case made its way up to the Supreme Court, he worked at the Spokane Friends Center and traveled with Quaker Floyd Schmoe to various War Relocation Authority (WRA) camps.

       The test case for the Northern California branch was that of Fred Toyosaburo Korematsu (N. Cal. ACLU ExComm, 4 June 1942). Unlike Hirabayashi, who resisted military orders to defend American principles, Korematsu evaded the orders for a personal motive. Born in Oakland and educated in the public schools, he found that almost all his friends were Caucasian, including the girl he planned to marry. In order to avoid the painful separation that evacuation would bring, he underwent a nose operation, changed his name, and posed as a Spanish-Hawaiian.
       This single transgression of military orders conspicuously stands out from Korematsu's otherwise complete support of the war effort. After graduation from high school he had attempted to enlist in the Army. It rejected him because of stomach ulcers; and the draft board classified him 4-F, physically unfit for military service. Then he went to work in the defense industry as a shipyard welder. But here again his attempts to aid in the war effort were frustrated. The Boilermakers Union canceled his membership because he was Japanese, although he had never been outside the United States and could not read or write Japanese. He had found new employment as a welder for a trailer company before Exclusion Order No. 34 ordered him out of the area.
       Korematsu's attempted disguise failed to fool the Federal Bureau of Investigation. They seized him and on June 12 formally charged him with remaining in the City of San Leandro. First, he was committed to the San Francisco County Jail. When Besig posted his bond, the jailer telephoned the military police. Without warrants or writs of any kind, the soldiers seized Korematsu and hauled him to the Tanforan Assembly Center. Judge Welsh subsequently sanctioned the action yet refused to release Besig's bail. In fact, the bail was raised to $2,500. Korematsu refused to sign the bail bond. This time the United States Marshal seized him and returned him to the county jail, where he awaited trial.

       On June 22, shortly after the local committees had lined up the Korematsu and Hirabayashi cases, the national office in New York ordered the local committees to conform to a new policy concerning the evacuation (see Blair, 1999, 199-200). A referendum by the national committee and the Board of Directors had defeated Resolution One's forceful and direct challenge of the evacuation in favor of a more narrow legal challenge to procedural abuses. This new policy would not allow the Northern California branch to argue the Korematsu case on the broadest possible issues, including the constitutionality of Executive Order 9066.
       The national office said the Northern California Union should organize a defense committee for Korematsu and turn the case over to that committee. Besig and the Executive Committee refused to retreat (see Blair, 1999, 200-202), insisting that they must honor their commitment to Korematsu under the old policy. At their July meeting the Executive Committee decided to continue the Korematsu case as planned and to follow the new national policy in any future cases (N. Cal. ACLU ExComm, 2 July 1942). Back in New York, the National Committee was not satisfied. Letters were exchanged and, finally, a compromise reached. The Northern California branch would carry the case through the Ninth Circuit Court of Appeals. Then the national committee would set up a defense committee to plead Korematsu's case before the Supreme Court (N. Cal. ACLU, 1943a).
       The national committee made a similar request of the Seattle branch to drop the Hirabayashi case and submit, instead, an amicus curiae brief on limited grounds (Girdner and Loftis, 1969, 206). Wayne Collins replied that the case he was prepared to plead in court would challenge the administration of the evacuation along the lines of the new national policy.

       Korematsu's case ran into the opposition not only of the national ACLU, but also large segments of the Japanese community. Some inmates of the assembly centers wanted to see the entire case dropped. In response to widespread suspicion, many of them had adopted a super-patriotic attitude. To satisfy them a test case would have to have been grounded firmly in moral principles, to be above reproach along the line of Hirabayashi's case. This led one inmate to complain, "Mr. Besig wants to clarify the evacuation order via ... Fred Korematsu. We think that the circumstances surrounding his case would not give the group any favorable publicity, but on the contrary play into the hands of the reactionary forces" (Kunitani, 1942). Yet the case moved forward. In August, Judge Welsh overruled Korematsu's demurrer; and, at trial, a guilty verdict was returned. The judge suspended sentence, put the defendant on five years probation, and released him inside the military's prohibited area. Once again soldiers seized him for transportation to an assembly center.

       At the appeals level, the ACLU entered into a third test case, this one involving a twenty-five year old Nisei attorney who had challenged the legality of the restrictions imposed upon Japanese-Americans prior to the evacuation. On March 28th Minoru Yasui, in violation of an eight o'clock curfew, walked into a Portland police station at 11:20 pm and presented himself for arrest. The government obliged with an indictment and trial, while the Japanese-American Citizens' League repudiated him as a "glory-grabbing, self-styled martyr" (Girdner and Loftis, 1969, 204).
       Yasui, a dual citizen, had lived in the United States since birth except for a summer trip at the age of nine to visit his grandfather in Japan. He received his education at public schools, Japanese language school, and the University of Oregon. At the University of Oregon he was required to undergo ROTC (Reserve Officers Training Corps) training and, consequently, was commissioned as a second lieutenant in the U.S. Army Reserve. After graduation he found employment as an attorney with the Japanese Consul in Chicago, but resigned the day after the Pearl Harbor attack and, unsuccessfully, offered his services to the United States Army.

       In district court, Judge James A. Fee ruled that the curfew order was illegal as applied to United States citizens. Contrary to Judge Black's opinion in the Hirabayashi case, he noted that the perils facing the nation were ³not more dreadful than ... the Revolution² (U.S. v. Yasui, 1942, 45) whose leaders adopted the Bill of Rights. Despite this hopeful beginning the judge added a surprise twist. Choosing the most sinister interpretation possible of the evidence, he maintained that Yasui had

served the purposes and philosophy of the ruling caste of Japan as a propaganda agent ... and only resigned when it seemed apparent that he could no longer serve the purposes of his sovereign in that office, but could do better [as] an officer in the armed forces of the United States on active service (U.S. v. Yasui, 1942, 55).

Yasui's employment with the Japanese Consul, the judge ruled, deprived him of his United States citizenship; and as a Japanese alien he was legally at the mercy of the Army. He fined the defendant five thousand dollars and sent him to jail for a year, the maximum sentence allowed.

       A second and more bitter policy dispute arose after the National Board's enactment of the "Resolution of October 19, 1942". The disagreement centered around a common dilemma in time of war. How do you oppose the administration of a war program without appearing to side with the enemy? It was, in fact, under such circumstances during the First World War that the American Civil Liberties Union first emerged from its own parent organization, the American Union Against Militarism.
       Throughout the summer of 1917 Roger Baldwin and his Civil Liberties Bureau had been creating a stir in the American Union Against Militarism (for more detail on the early history of the ACLU see Johnson, 1963). Ever since its inception in early June, the Bureau had embarrassed a certain group of social workers with its work on behalf of conscientious objectors. That group believed that the Bureau had gone beyond the maintenance of civil rights and opposition to militarism to a point of embarrassing and opposing the American government itself. The opinions of this group of social workers could not be overlooked, because three of them--Jane Addams, Paul Kellogg, and Lillian Wald--had established the original Henry Street group that later evolved into the American Union Against Militarism (AUAM). When the AUAM's national board finally had to decide between the Bureau and the social workers, it voted to separate the Bureau from the rest of the organization. Three days later, on October 1, the National Civil Liberties Bureau set out on its own. Despite the impounding of some of its publications and the imprisonment of its director, the Bureau flourished and developed into the ACLU, while the AUAM dissolved soon after the separation.
       Twenty-five years later history threatened to repeat itself. In order to avoid the appearance of giving aid and comfort to the enemy, the October Resolution would prevent the Union's intervention in cases where there were grounds to believe that the defendant was "cooperating with or acting on behalf of the enemy" (N. Cal. ACLU, 1943a). Accordingly the national office established a Committee of Sedition Cases to conduct investigations into the loyalty of these defendants. This committee subsequently ordered the Northern California branch to refrain from filing an amicus curiae brief in Yasui's appeal to the Ninth Circuit Court. The Sedition Committee was concerned with the fact that Yasui had worked for the Japanese Consulate in Chicago.

       San Francisco protested this new policy on its face and as applied to Yasui. Their objections numbered three. First, the new policy represented a "radical and indefensible departure" from the Union's avowed purpose of defending everyone's constitutional rights. Second, they felt that the national office should have consulted the local branches before adopting such a major change in policy. And finally, they protested that the ACLU was neither equipped nor disposed to carry out such loyalty investigations as this new policy would require. The district court's ruling that Yasui had lost his American citizenship, the Northern California branch contended, raised a far-reaching civil liberties issue. It went ahead and filed the amicus curiae brief under the name of its attorney, Wayne Collins. Sometime later the branch was able to convince the national office that its decision with regards to Yasui was an error. They had not been aware that Yasui quit his post at the consulate immediately after the Pearl Harbor attack. The national office agreed to file an amicus curiae brief in the Supreme Court. Yasui's sentence was later reduced to eight months and ten days, after which he was interned at the Minidoka Relocation camp.

       Yasui appealed the decision and in February 1943 the Northern California ACLU agreed to file a brief in his behalf (N. Cal. ACLU ExComm, 4 February 1943). Thus the West Coast offices of the ACLU entered the spring of 1943 with three Japanese test cases challenging Executive Order 9066. All three would eventually come before the United States Supreme Court for final disposition.

       In the spring of 1943 the United States Supreme Court agreed to review the district court decisions in both Hirabayashi and Yasui directly, without any hearing in the Circuit Court of Appeals. Hirabayashi had been convicted of two counts: violation of the evacuation order and violation of the curfew. He received concurrent sentences, however. If either conviction was affirmed the sentence would stand. Accordingly the court addressed the curfew violation only and avoided any ruling on the question of evacuation (Hirabayashi v. U.S., 1943, 1378 & 1386-1387).
       Hirabayashi did not deny that he had violated the military orders, but challenged instead their constitutionality. The defense argued that Congress had improperly delegated its legislative responsibilities to General DeWitt and that General DeWitt's regulations, applying only to ethnic Japanese violated the equal protection provisions of the Constitution. The majority opinion, delivered by Chief Justice Stone, countered these two points.
       The court found no unlawful delegation of legislative power (Hirabayashi v. U.S., 1943, 1381). The President and Congress, it declared, have the power to wage war and defend the nation. The danger of espionage and sabotage was imminent, and the curfew was an appropriate measure to meet it (Ibid., 1387). The President had authorized the curfew regulations when he issued Executive Order 9066, and Congress was aware of the curfew regulations when it enacted the penalty provisions for violations of military orders by civilians. All the necessary branches of government had given their assent.
       As to the question of racial discrimination, the court conceded that legislative classification based solely upon race had often been held a denial of equal protection. But it found that race might be a reasonable standard by which to judge a person's loyalty. The mere fact that Japan might attack the West Coast, in the court's opinion, "set these citizens [Japanese-Americans] apart from others" (Hirabayashi v. U.S., 1943, 1386). The court pointed out the lack of assimilation of the Japanese into white society, the use of language schools, the possession of dual citizenship, and the influential position of aliens in the Japanese community. The Japanese population in America had never entered the mainstream of American society and culture; therefore, they were, perhaps, less loyal. The court also pointed out that the discrimination shown to West Coast Japanese might well have made them resentful of the federal government, and thus more willing to side with Japan. Loyalty, of course, might be determined more accurately with a system of individual hearings. Yet hearings would require time--time that the Allied cause could ill afford. In this case justice would have to give way to the demands of expediency. The curfew conviction would stand.
       The court's decision had been unanimous, but three of the justices were uncomfortable enough with it to write their own separate concurring opinions into the record. Justice Frank Murphy was particularly reluctant, siding with the majority under some pressure from his colleagues (Fine, 1964). Murphy and William Douglas both declared that timing was a crucial point in their decisions. ³[W]here the peril is great and the time is short, temporary treatment on a group basis may be the only practical expedient, [but if the evacuees are never to receive hearings] questions of a more serious character would be presented² (Hirabayashi v. U.S., 1943, 1388-1389). Murphy indicated further that the enforcement of Executive Order 9066 might be valid only within the designated military zones.
       The Yasui case confronted the Supreme Court with precisely the same issues as were decided in Hirabayashi. After reversing the district court's ruling that Yasui had lost his American citizenship, it affirmed the conviction and remanded the case for resentencing (Yasui v. U.S., 1943, 1393).

       Unlike Hirabayashi and Yasui, Korematsu had not violated the curfew order. The sole issue in his case, the evacuation question, could no longer be side-stepped. When the case first came before the Ninth Circuit, the government maintained that no right to appeal existed since sentence had not been imposed. Defense counsel then requested a fine or jail sentence so as to avoid the technicality (ACLU News, January 1943). The court sought the advice of the justices in Washington. It attached Korematsu's case to those of Hirabayashi and Yasui, asking the Supreme Court to decide specific questions in each. Though taking charge of the Hirabayashi and Yasui cases in their entireties, Washington sent Korematsu back to San Francisco with directions to proceed with the appeal.
       The Ninth Circuit heard the appeal and filed their opinions on 2 December 1943. The three separate opinions all agreed as to the validity of Korematsu's conviction, though Judge Denman lambasted the majority for their reluctance to deal with the true issues of the case.
       The majority's opinion, delivered by Judge Wilbur, was short and concise (Korematsu v. U.S., 1943b, 289-290). Although recognizing that the Supreme Court had avoided any judgment upon the validity of the evacuation order, they felt that the principles enunciated in the decision in Hirabayashi clearly applied to and sustained the validity of evacuation as well as curfew.
       Judge Denman's long and detailed text took his colleagues to task (Korematsu v. U.S., 1943b, 291-304). He denounced the term "evacuation" as a euphemism for deportation and imprisonment "not unlike that of Hitler in so confining the Jews". He drew a sharp distinction between such an oppressive process and Hirabayashi's curfew violation. To further distinguish the two cases, he refuted the Supreme Court's analogy to police fire lines. Unlike a person prevented from entering a burning building, Korematsu could not simply walk away from the prohibited area. He had been convicted for remaining in San Leandro, but another military order prohibited his leaving the area. Finally, Denman observed that the majority's opinion failed to take into account evidence of Japanese-American loyalty, the government's admission that no charges of espionage, sabotage, or treason had been filed against any of the internees in the five months between Pearl Harbor and the evacuation.
       Despite his recognition of the seriousness of Korematsu's contentions, however, Denman found that the wartime emergency had created an overpowering necessity that could justify the government's actions. He pointed out that the complexity and increased striking distance of modern warfare had greatly expanded the territory which might be labeled as the combat zone. He compared the herding of loyal and disloyal Japanese-Americans behind barbed wire to a quarantine of both exposed and diseased people "until shown free of [the disease] after the period of its development has expired" (Korematsu v. U.S., 1943b, 298). And with what disease were the Japanese-Americans plagued? Racial discrimination. Denman pointed to various racial inequities--the prohibition of intermarriage with whites, the alien exclusion acts, the prohibition against Issei ownership of land in California, and the racial discrimination of labor unions--as a "humiliation so inconsistent with the quality of [American] teachings, that there will be those who will hesitate or fail to perform a citizen's duty" (Korematsu v. U.S., 1943b, 302). Thus an earlier policy of racial discrimination justified, in Denman's mind, a continuation of that racial discrimination.
       Judge Stephens, in a third opinion, defended the majority opinion against Denman's attack. He argued that the act of exclusion was separable from the subsequent internment and that courts lack jurisdiction over military policy in wartime (Korematsu v. U.S., 1943b, 304-309).

       Meanwhile the Northern California ACLU's reluctance to follow the dictates of (a) the June Referendum and (b) the October Resolution brought about a flurry of correspondence between New York and San Francisco, then an ultimatum. On May 13, 1943 the national office took exception to the branch's handling of the Japanese test cases and gave the branch thirty days to apologize or face disaffiliation. The national office accused it of "refusing to recognize control by the Board of Directors in national matters" (N. Cal. ACLU, 1943a) and failing to notify the national office of the briefs it was filing.
       The branch finally responded in writing on August 5. In response to the Korematsu and Hirabayashi amicus curiae briefs that had been filed in Collins' name, the Northern California committee denied any wrongdoing (N. Cal. ACLU, 1943b). The national office had been informed, they declared, both through the board's minutes of April 8 and in conversation with A. L. Wirin, who was acting as the national office's representative in such matters. They did concede fault in their handling of the Hirabayashi case before the Ninth Circuit Court of Appeals and apologize for testing the constitutionality of Executive Order 9066 after telling the national office that they would follow the new policy in all cases entered into after notification of the new policy was received. Then following this limited apology, the committee renewed its protests to the October Resolution. It characterized the conditions as intolerable, but rejected disaffiliation as the solution, requesting instead a conference to discuss the organization of the Union and its various locals.
       This response did not completely satisfy the national office, but did serve to prevent the threatened disaffiliation. The question of disaffiliation lingered on into the next year. As late as March 1944 the Northern California Committee was seriously considering disaffiliating itself from the Union (N. Cal. ExComm., 9 March 1944). They deferred their actions until the result of the Corporation's Committee on Reorganization were announced. By that time interest in disaffiliation had subsided.