by Kathleen E. Finnerty
This year marks the 75th anniversary of Executive Order 9066 and the subsequent internment and incarceration of Japanese Americans and others. Recent events have renewed focus on these tragic events: The Trump administration’s attempts to slow or block the immigration of “refugees” from seven Muslim-majority countries and the Executive Orders to strip federal funding to “sanctuary cities,” including Sacramento.
Much can be learned from Executive Order 9066 and the incarceration – rather than internment – of American citizens and others. The order was based not on evidence of threat, but on a generalized fear grounded in racial bias and applied to frightening events. This article explores how past experience can guide a thoughtful response to current events.
The Attack on Pearl Harbor Precipitates Executive Order 9066
On December 7, 1941, Japan destroyed much of the U.S. Pacific fleet in a surprise attack on Pearl Harbor. The U.S. declared war on Japan almost immediately. Fear of a potential Japanese invasion of the West Coast was rampant. President Franklin D. Roosevelt signed Executive Order 9066, which authorized the Secretary of War to designate certain areas as “military zones” to provide “every possible protection against espionage and against sabotage” to the national defense. Public Law 503, passed by Congress, made violation of military orders a misdemeanor punishable by fine and imprisonment. General John L. DeWitt defined the entire West Coast as a military area and imposed a curfew on all people of Japanese ancestry. He then ordered them removed from the area and incarcerated in distant camps without trial or other judicial review.
A critical legal distinction exists between internment and incarceration. Internment is the incarceration of enemy soldiers and selected aliens, not citizens. The “internment” of Japanese Americans during World War II was forced relocation and incarceration of persons of Japanese descent.
Over 120,000 persons of Japanese descent were “interned.” More than half were U.S. citizens. Yet, outside of California, 2,000 non-citizen Italian nationals were interned out of a population of 695,000, and approximately 11,000 non-citizen German nationals were interned out of a population of 1.2 million. Of more than 170,000 Japanese Americans living in Hawaii, approximately 2,000 were “interned.”
The Japanese “Internment” Cases
War time powers and fears of international terrorism permeated the country. Several legal cases challenged the constitutionality of Executive Order 9066, one of which was based in Sacramento.
Yasui v. United States, 320 U.S. 115 (1943)
Minoru Yasui was the first Japanese American to challenge the military actions. Yasui was born in Hood, Oregon, earned his undergraduate and law degree at the University of Oregon, and joined the Oregon Bar. However, no Portland law firm would hire him. He moved to Chicago to work for the Japanese Consulate. He quit that job the day after Japan attacked Pearl Harbor to rejoin the U.S. Army – but was repeatedly refused, despite his diligence and Army officer status.
Yasui peacefully violated the curfew. He asked to be arrested so that he could test the curfew’s constitutionality. The trial court ruled that the curfew was unconstitutional as applied to U.S. citizens, but convicted Yasui, finding that he had “renounced his citizenship” by working for the Japanese consulate. The Supreme Court upheld the conviction, stating that the curfew was constitutionally appropriate for American citizens in times of war.
Ex Parte Endo, 323 U.S. 283 (1944)
Mitsuye Endo, an American citizen of Japanese ancestry living in Sacramento, was a clerk at the local Department of Motor Vehicles. She did not speak or write Japanese. Her brother served in the U.S. Army. In 1942, Endo was removed from her Sacramento home and placed in a Utah internment camp. Endo’s attorney filed a petition for writ of habeas corpus arguing that she was a loyal and law- abiding U.S. citizen who was unlawfully detained and held against her will. The War Relocation Authority conceded that she was a loyal and law-abiding citizen and offered to release her if she stayed out of California. Endo refused release so that the U.S. Supreme Court would review her case.
The court ruled unanimously that the federal government could not continue to detain a citizen who was concededly loyal to the U.S. It also ruled: “A citizen who is concededly loyal presents no problem of espionage or sabotage … [¶] …The authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded.”1 The Constitution is specific in providing procedural safeguards surrounding the arrest, detention, and conviction of individuals, including that no person shall be deprived of liberty without due process of law.2 Endo must be freed.
Korematsu v. United States, 323 U.S. 214 (1944)
Fred Korematsu, 23, was an American citizen of Japanese descent. He intentionally declined to leave a military zone to challenge the constitutionality of Executive Order 9066. Korematsu was tried in federal court and convicted of remaining in a military area against military orders. He was sentenced to five years of probation and moved to an assembly center in San Bruno, California. Korematsu’s attorneys appealed the trial court’s decision to the U.S. Court of Appeals, which affirmed the trial court. The U.S. Supreme Court ruled, in a 6-3 decision by Justice Hugo Black, that the detention was a “military necessity” not based on race. The Supreme Court further held that the Executive Order and military orders were aimed at “the twin dangers of espionage and sabotage.”3 The court accepted the government’s claim “that it was impossible to bring about an immediate segregation of the disloyal from the loyal.”4 The court stated: “Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.”5 The court strained to articulate that its ruling was not based on racial antagonism:
“Regardless of the true nature of the assembly and relocation centers − and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies − we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.”6
Justices Roberts, Murphy, and Jackson dissented. Justice Murphy wrote separately, proclaiming that the “exclusion goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.”7 “… no reasonable relation to an ‘immediate, imminent, and impending’ public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.”8 Justice Murphy noted that “[n]o 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.”9 He called the majority opinion “the legalization of racism.”10
In 1983, a pro bono legal team with new evidence re-opened the 40-year-old case based on government misconduct – specifically that the government’s legal team had intentionally suppressed or destroyed evidence from intelligence agencies that Japanese Americans posed no military threat to the U.S. On November 10, 1983, Judge Marilyn Hall Patel overturned Korematsu’s conviction in the same San Francisco courthouse where he had been convicted as a young man.11 The district court ruling cleared Korematsu’s name, but the Supreme Court decision remains.
The Trump administration’s policy toward Muslims, Syrians, and others bears reflection on the tragic injustice done to many Japanese-American citizens under the guise of potential attack. Let us all pause and reflect on some of the lessons learned, and hope that we can conduct ourselves and our country in a constitutional and just manner. Our country was founded upon the formative principle of freedom and due process that cannot be deprived without evidence of specific, not generalized, threat or fear. Let us be diligent in our efforts to protect our country, and even more diligent in our efforts to protect its fundamental values.
1 323 U.S. at 302.
2 Id. at 299.
3 323 U.S. at 217.
4 Id. at 218-19.
5 Id. at 219.
6 Id. at 223.
7 Id. at 233.
8 Id. at 235.
9 Id. at 241.
10 Id. at 242.
11 Korematsu v. U.S., 584 F. Supp. 1406 (N.D. Cal. 1984).