Working Papers

In Opposition to the Japanese Internment

R. Jeffrey Blair

return to
Background of the Japanese in America
The Coming of War

The Decision to Evacuate

       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.

Formulating an Opposing Policy

      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)
It further labeled Public Proclamation No. 1, which established Military Areas No. 1 and No. 2, an unprecedented and unnecessary action (Civil Liberties Quarterly, March 1942, 1). Having thus set the tempo, they instructed the California branches in San Francisco and Los Angles to meet in conference to develop a policy.
      The resulting statement, issued March 1st, displayed the branches' hesitation to confront the constitutionality of Executive Order 9066 directly. It plead only that "in the administration of that order, local racial prejudices and selfish interests shall not be allowed to influence action" (Statement, 1 March 1942). The conference noted the "general fairness and impartiality" the Justice Department had employed and wishfully expressed confidence that the Army would continue the tradition. Yet, the branches let it be known that they would be keeping a watchful eye on the Army's performance, offering assistance to those people whose constitutional rights might be disregarded (Baldwin, 1942). The very next day the national office issued a similar policy statement with a bold call to immediate action. It characterized Executive Order 9066 as "far too sweeping to meet any proved need" (Baldwin, 1942), then suggested two alternate proposals. Either hearings should be provided for all people excluded from military areas or all residents should be placed under martial law. The board further urged "immediate court test" (Baldwin, 1942) by injunction or habeas corpus in order to challenge these sweeping powers.
      Upon receipt of Roger Baldwin's telegram, the Northern California ACLU proceeded cautiously, voting to "withhold publicity and action ... until we secure a detailed explanation and clarification of the board's position" (Baldwin, 1942). That detail came by way of the national office's proposal for a letter to President Roosevelt. This draft of the letter conceded that military necessities would have to take priority over civil rights and Executive Order 9066 would have to be accepted in principle. Yet, it followed this brief concession with a lengthy indictment of the potential abuses of unchecked power in the hands of military authorities. The letter warned of "cruel and unnecessary hardships", of undermining the loyalty of the Nisei, and of giving substance to charges of racial prejudice and discrimination (National ACLU, 1942). The national office then proposed three restrictions to be placed upon the Presidential order: (1) narrow definition of restricted areas, (2) case-by-case hearings for enemy aliens prior to evacuation, and (3) similar hearings for U.S. citizens coupled with reliance upon voluntary compliance with the decision.
      At first the Northern California ACLU recommended significant changes which would transform the national office's rather bold challenge into mild supplication. The executive committee voted to strike the entire section which dealt with the potential abuses of power. Their version also withdrew the suggestion for a narrow definition of restricted areas and acquiesced in a postponement of individual hearings until after the evacuation. The committee's weak stance stemmed from the fact that they had "hopelessly divided" in their views of the evacuation orders. They agreed only upon the need for hearing boards to review each case individually. With a 6-3 vote they elected to confine their action, temporarily, to matters of administration (N. Cal. ACLU ExComm, 19 March 1942). Then at their next meeting the balance shifted and the members rescinded this restriction 8-3 (N. Cal. ACLU ExComm, 19 March 1942). Thus they cleared the way for a broad attack on Executive Order 9066 itself.
      The San Francisco group authorized their director, Ernest Besig, to proceed on the behalf of citizens fired from state jobs or whose business licenses the state had revoked, where the cause for such actions derived from the person's race. Furthermore, they agreed in principle to test the application of General DeWitt's curfew regulations, contraband regulations, and "freezing" order. Rather than a blanket authorization, however, they required Besig to present any such cases to the full committee for approval before proceeding (N. Cal. ACLU ExComm, 2 April 1942). Besig located two cases for court tests: the curfew violation of John Ura and the evacuation violation of Fred Korematsu.
      Meanwhile, the national office also reviewed its policy with regard to the Japanese evacuation. It presented two resolutions to the National Committee and the Board of Directors. Resolution One would challenge the constitutionality of Roosevelt's action in issuing Executive Order 9066 and oppose all removals from areas not under martial law. It claimed a "fundamental violation" of constitutional rights which no system of hearing boards could cure (McDaid, 1969, 10-11). Resolutions Two, on the other hand, would accede to the order itself, while challenging its necessity and the legality of its administrative procedures. It conceded the government's right to establish military zones, but placed upon the government the burden of establishing the necessity for and propriety of evacuation. It also insisted upon appeal board hearings for those who wished to contest their expulsion and the full liberty of those who had left the military areas (McDaid, 1969, 10-11).
      The vote favored Resolution Two by a margin of two to one. The new policy was adopted on June 22, 1942. In accordance with this policy, the Union explained, it would challenge not the "underlying constitutional power of removal, [but the] unreasonable application of that power" (Civil Liberties Quarterly, Sep 1942, 2-3).
      Anticipating that the Union would pursue a broad challenge of the constitutionality of evacuation, Roger Baldwin had put considerable pressure upon the West Coast chapters--L.A., San Francisco, and Seattle--to find suitable test cases. During the months of May and June they had found their cases. Seattle had accepted the Hirabayashi case, while San Francisco had taken up the defense of Fred Korematsu. When the National Board of Directors voted to embrace the more narrow challenge, Baldwin must have been as surprised as anyone. The Board then ordered the West Coast locals to alter their arguments accordingly. Either they must conform to Resolution Two or drop the cases entirely. Baldwin notified the three chapters of this and expressed hope that harmony could be maintained, if not through real agreement, then through the "generous application of lip service" (McDaid, 1969, 29).
      The Seattle branch, a small operation, did not oppose these orders. Although Southern California's director, Clinton Taft, had wanted to test the evacuation on the broadest constitutional grounds, the branch's chief counsel, A.L. Wirin, wrote that the referendum did not change his court strategy at all since he had not wanted to test "the abstract right of evacuation anyway" (quoted in McDaid, 1969, 29-30). These two chapters yielded without struggle to the national office's new line, submitting case outlines which the National Board approved July 6.
      The Northern California branch, on the other hand, did not accede so readily. Going into its ninth year of operations, this well-established office could afford a larger measure of independence than the other two. Furthermore, its location in San Francisco provided it with the most direct and abrasive contact with the WCCA. On June 4, the Executive Committee meeting which authorized Wayne Collins to proceed with the Korematsu case also polled itself on the New York resolutions. Six to four they voted in favor of Resolution One (N. Cal. ACLU ExComm, 4 June 1942). As one historian has noted:
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.

Lobbying Against Injustice

      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.

continue with

Working Papers