Working Papers

Fighting the Japanese Internment in Court

R. Jeffrey Blair

return to
Resistance and Evasion
Court Appeals

      In the fall of 1944 Korematsu's conviction, once again, came before the Supreme Court. The justices could no longer evade a decision on the evacuation, since Korematsu had no other offenses charged against him except the single count of remaining in a prohibited area. The result was a split decision which affirmed the conviction and the evacuation.
      Justice Hugo Black delivered the majority opinion. The opinion rationalized the case in such a way that the Hirabayashi case could be directly applied. Stating that evacuation was a military necessity, Black pointed to the thousands of evacuees who had subsequently refused to swear unqualified allegiance to the United States and to the thousands who had requested repatriation to Japan (Korematsu v. U.S., 1944, 195). This, he said, was plain evidence of disloyalty within the Japanese population residing in America. Thus evacuation was, indeed, a military necessity. "[E]xclusion from a threatened area, no less than a curfew, has a definite and close relationship to the prevention of espionage and sabotage" (Ibid.).
      Then came the key to the whole decision. Taking a cue from Judge Stephens, Black painstakingly dissected the governmentºs relocation program, separating exclusion from the subsequent internment, so as to concentrate exclusively upon the first. Violations of each phase of the government's program should be considered as separate offenses. Exclusion in May 1942, not the continuation of exclusion (Korematsu v. U.S., 1944, 195) nor the interment at the relocation centers (Ibid., 197), was the only issue that the majority would recognize. Viewed in this manner, the evacuation was a bit harsher, but not fundamentally different from a curfew.
      One more point remained. The defense had argued that the exclusion order directly conflicted with the freezing order which General DeWitt had previously issued. Thus if Korematsu had left the area, except by submitting to detention at an assembly center, he would have been charged with violation of the freezing order. Black and his colleagues ruled that the evacuation order superseded the freezing order. Unlike Denman the justices apparently felt that Korematsu was free to leave the military area any time after the exclusion order was issued. With this in mind the evacuation was sustained, Korematsu's conviction affirmed.
      In his dissent Justice Roberts, like Denman, characterized the majority's construction "a figmentary and artificial situation" rather than "the actualities of the case" (Korematsu v. U.S., 1944, 201). Furthermore, he attacked the terms "Assembly Centers" and "Relocation Centers" as euphemisms for prisons and concentration camps. Looking past this facade of euphemisms and artificial constructions, Roberts denied that exclusion could be separated from the question of interment and affirmed the contradictory nature of the exclusion and freezing orders. "[E]xclusion was but a part of an over-all plan for forcible detention" (Ibid.). Since the detention was not a military necessity, the conviction should have been reversed.
      Murphy never bothered to distinguish Korematsu's evacuation from Hirabayashi's curfew, but simply reversed the opinion he had expressed in Hirabayashi. He denied the reasonableness of classifying United States residents according to the nationality or race of their ancestors. The suspicion of Japanese in America, he said, was based upon "misinformation, half-truths and insinuations that for years have been directed against the Japanese by people with racial and economic prejudices" (Korematsu v. U.S., 1944, 204). He quoted some references General DeWitt had made to those of Japanese descent, such as "an enemy race" (Ibid., 203). Murphy also pointed out that "[l]eisure and deliberation seem to have been more of the essence [of the evacuation] than speed" (Ibid., 205). The first evacuation order was issued a full four months after the Pearl Harbor attack. It then took a full seven months to complete the evacuation. Loyalty hearings, he concluded, could have and should have been held.
      Justice Jackson seemed embarrassed by the use of Hirabayashi to justify any kind of treatment that might be handed out to the evacuees. "Now," he declared, "the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones" (Korematsu v. U.S., 1944, 208). He then found the racial basis of the evacuation to be unconstitutional, without regard to the reasonableness of the actions taken. The legislative and executive branches of the government had, in fact, granted overly broad powers to the military authorities. Because of this and because he felt that guilt must be personal, not inherited, Jackson joined with Murphy and Roberts in their dissent. All together then, three justices opposed the constitutionality of the evacuation and Korematsu's conviction.

      In the wake of Hirabayashi and Korematsu the most important questions were still unanswered. Only two judges--Denman and Murphy--had the fortitude to squarely face the issue of internment. Both of these men saw the situation in the same unholy light, the imprisonment of a suspicious race without even the appearance of due process for the individuals involved. They settled, however, on opposite sides in their final decisions. Denmen felt that the urgency of the war situation justified these harsh precautions; Murphy did not.
      Meanwhile, the majorities on both courts had gone to great lengths in order to separate the question of evacuation from internment. The Supreme Court's extreme caution in formulating its written opinion makes it appear that the six justices wanted to give the federal government maximum leeway during this wartime emergency, but balked at the idea of setting precedent for any such future programs. Even their affirmation of the evacuation was strictly limited to the time of Korematsu's offense, May 1942. Not only detention, but the issue of the indeterminate evacuation of suspicious groups had been judiciously sidestepped.
      The curfew in Hirabayashi received the Supreme Court's strongest backing. Though Murphy, in particular, was reluctant to affirm, the court's unity was maintained in a unanimous ruling. But then, sometime between Hirabayashi and Korematsu, two justices reversed their judgments. By 1944 Murphy decided that the Army's decision to evacuate the Japanese was nothing more than a leisurely, deliberate, and ill-conceived plan based on prejudice. Equally alarmed at the use of Hirabayashi to uphold evacuation was Justice Jackson. One year after having joined in the majority opinion, he refuted that ruling point by point. Opinions were shifting in favor of the evacuees.

Habeus Corpus

      The government attorneys relied on a strategy which avoided the issue of detention and internment in its prosecution of resisters and evaders. The strategy worked, frustrating the ACLU's attempts to defend those who violated curfews and the evacuation orders. The Union, however, also went on the offensive by petitioning the courts to order the release (habeus corpus) of Japanese that had unwillingly submitted to detention and internment.
      The first such challenge, by a private attorney, in March 1942, centered around a marriage of mixed ancestry (Thomas, n.d., 17-19; Civil Liberties Quarterly, June 1942, 1&4; and Girdner and Loftis, 1969, 202). Mary Asaba, a Nisei woman, had married a native of the Philippines and become Mrs. Ventura. Because she lived in the State of Washington, Mrs. Ventura was subjected to the curfew regulations. Before the evacuation separated Mrs. Ventura from her husband, she filed suit in federal court asking to be released from the provisions of the evacuation orders. Federal Judge Black declared in his Seattle courtroom that the action was premature. The restraints imposed by the curfew did not constitute imprisonment. And her detention at an assembly center, which might be considered imprisonment, had not yet occurred. If she violated the evacuation order later, he assured her, she would get a fair trial with all the constitutional guarantees that go with it.

      In May the Southern California Union found a test case on this issue. Ernest Wakayama and his wife were Los Angles residents who had been detained at the Santa Anita Assembly Center (McDaid, 1969, 41-42). As a postal employee and veteran of the French campaign in World War I, Wakayama was outraged at the treatment he was receiving. Although the American Civil Liberties Union filed on his behalf, he was not satisfied to patiently wait for the outcome of that suit. On June 18 he and several others were arrested for holding a secret meeting in Japanese. At this point the Union almost gave up on Wakayama because the national office believed that the rules against such gatherings were reasonable. They discovered, however, that the orders against meetings had not officially been issued until a week after the incident. Only then did the Los Angeles branch undertake the defense of Wakayama and two of his companions--Kaname Takahashi and Masaru Kawada--in federal court (S. Cal. ACLU, 8 Aug 1942). Jotara Ban, a fourth defendant, retained his own counsel. The Army finally agreed to drop charges. Thus two months after having been jailed, the defendants were released.
      As months of delays passed, Wakayama became increasingly bitter about his internment (McDaid, 1969, 42-43). WRA attorneys harassed him. The camp administration arrested him for rioting; then, without explanation, released him. Many evacuees, afraid of being turned out of the camps into a hostile environment without assistance, put pressure on Wakayama to drop his suit. Finally in February 1943 amidst this mounting pressure, he decided to renounce his American citizenship and apply for "repatriation" to Japan. The case was dropped.

      The Northern California branch had more success with their test case on behalf of Mitsuye Endo, another American citizen of Japanese ancestry (N. Cal. ExComm, 2 Sep 1943 and McDaid, 1969, 46). Endo was evacuated from Sacramento May 15, 1942; then removed one month later to the Tule Lake Relocation Center (Ex parte Endo, 1944, 208-222). In July 1942 she filed a petition for a writ of habeus corpus in the Northern District Court of California. Endo's attorney argued for her release on four grounds: (a) the continued detention, (b) the lack of due process in the evacuation, (c) the abuse of war powers, and (d) the violation of equal protection because German-Americans and Italian-Americans had not been evacuated (Fellowship of Reconciliation, n.d.). On February 19, 1943--the anniversary of Executive Order 9066--while the case was still pending (N. Cal. ACLU, 1943a, 1), she applied for leave clearance from the camp. Clearance was granted in August, one month after the federal district court had denied her writ. She immediately appealed to the Ninth Circuit.

      On appeal the Circuit Court decided to seek instruction from the Supreme Court on some specific points raised in the case. But in April 1944 the Supreme Court decided to review the case in toto. The entire record in the case was certified up, and the points argued before the nine justices. In December the court rendered a unanimous verdict that the defendant be released.
      By the time the Supreme Court heard her case Endo had already been found to be a loyal American and consequently issued leave clearance, so the government agreed that she must be released. Government attorneys claimed, however, the right (a) to detain her for the period of time it would take to process her out of camp and (b) to supervise her relocation.
      Justice Douglas, delivering the majority's opinion, assumed that the initial detention was authorized, but maintained that the provisions of Executive Order 9066 were not meant to apply to loyal citizens. The stated purpose of the evacuation had always been to protect the vulnerable West Coast from spies and saboteurs, not from loyal citizens of Japanese ancestry.
      Though the decision was unanimous, Justices Murphy and Roberts prepared separate concurring opinions. Roberts took issue with the majority's implication that administration subordinates had abused the powers Congress and President Roosevelt had conferred upon them. He felt that Congress and Roosevelt had exceeded their constitutional authority and should share blame for the error. Murphy referred back to his opinion in Korematsu and declared that both the evacuation and interment were unconstitutional.


      The end result of these several court cases was that the judicial branch of government chose to exercise as little control as possible over the evacuation and internment. Each case that came before the United States Supreme Court was decided upon the narrowest possible construction of the facts. While the court allowed the army to carry on its program almost without restriction, it went to great lengths in the Korematsu case to avoid ratifying the program. To this day, a huge gray area remains between the black and white of Endo and Korematsu.
      The rights of individuals often suffer in wartime, when the courts are especially reluctant to place burdensome restrictions upon the conduct of national government. The Endo decision, admittedly limited in scope, stands out as an exception to this rule. Among the many defeats the ACLU experienced in trying to protect the rights of Japanese-Americans, it represents a real victory.
      The final opinions in Korematsu and Endo were released the day after the Army revoked the evacuation order. Though these decisions came too late to affect the plight of the Japanese, they are still important for their value as legal precedents in future cases. The decision in Korematsu affirmed the initial evacuation; and as consequently poses a sinister threat to individual rights. Popular sentiment among liberals of the 1960s and 70s, however, had mistakenly interpreted this as a broad affirmation of the use of concentration camps for the control of anti-government suspects. The courts relied heavily upon the dire circumstances of World War II in rendering their decisions. In order to invoke a clear precedent, any future evacuation would have to occur during a period of total war in which American territory had been attacked and in an area that continued to be threatened with attack. Even in considering the issue of temporary evacuation under these extreme circumstances, Korematsu split the Supreme Court six to three. Such a weak showing would remove some of the temptation for extending the precedent beyond the specific circumstances of Korematsu.
      The success of the ACLU contentions in Endo is clear cut. Though skirting the constitutional issue, the Supreme Court unanimously decided that loyal citizens did not belong in interment camps. Although questions of the presumption of loyalty and who has the burden to prove it or disprove it still remain unresolved, the efforts of the American Civil Liberties Union seem to have paid off in a very limited decision striking down internment and, though leaving a very large gray area, avoiding an unfavorable precedent. Modest as such victories appear, they might prevent a similar injustice in the future.

continue with

Working Papers