Making Our Democracy Work (29 page)

The War Department began to lose confidence in General DeWitt. The general filed a long report in which he justified the original relocation on grounds of military necessity (invasion, sabotage, espionage). He justified the lack of screening
not
on grounds that “there was insufficient time” but for reasons resting on racial stereotype: “the realities” are, he said, “that an exact separation of the ‘sheep from the goats’ was unfeasible.” DeWitt also opposed introduction of a new screening program because doing so now would lead judges to ask why it could not have been done earlier. After reading the report, John McCloy concluded that it sounded racist and would hurt the government’s cause, and therefore refused at first to make the report public.
²²

At the same time, the Justice Department began to lose confidence in the War Department. Edward Ennis, a Justice Department lawyer, read an October 1942
Harper’s Magazine
article whose author appeared to be a high-ranking Naval Intelligence officer. The author revealed that within six weeks of Pearl Harbor the Office of Naval Intelligence (in charge of the armed forces’ Japan-related intelligence) had estimated the number of potential “saboteurs or agents” within the United
States at approximately thirty-five hundred. He wrote that “the entire ‘Japanese Problem’ has been magnified out of its true proportion, largely because of the physical characteristics of the people,” and he recommended that the problem “be handled on the basis of the
individual
, regardless of citizenship, and
not
on a racial basis.” He concluded that it would be necessary to evacuate, at the very most, ten thousand individuals whom the Office of Naval Intelligence could identify by name. After reading this, Ennis asked the solicitor general how the department could tell the Court that individual screening prior to relocation would have been impractical, when it seemed that General DeWitt was told the contrary. Moreover, the British had provided individual hearings within a few months to more than a hundred thousand German and Italian “enemy aliens.”
²³

When it argued in the Supreme Court, however, the government followed DeWitt’s line of thinking. The solicitor general told the Court that in January 1942 the army thought invasion possible. Fears of espionage and sabotage by Japanese-Americans were “realistic and not a figment of the imagination.” Furthermore, the “task of promptly segregating the potentially disloyal from the loyal,” though “comparatively simple,” would have taken “many months, perhaps years,” because Japanese-Americans “had never become assimilated” and some “may lack to some extent a feeling of loyalty toward the United States” as a result of discriminatory treatment. The solicitor general spoke of the fear that among the Japanese-Americans there were “a number of persons who might assist the enemy.” He said this fear was “not based on race but on these other factors,” that is, aiding the enemy. Lawyers representing California, Washington, and Oregon had obtained copies of DeWitt’s report and used it to provide support for similar race-based arguments.
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On June 21, 1943, the Court released its opinion. It did not decide the most important question presented—that of relocation. Instead, it stated that it needed only to decide the curfew question. If the curfew order was valid, then what was in effect a single ninety-day sentence was valid, and all the other issues in respect to Hirabayashi’s punishment were purely hypothetical. And, in the Court’s view, the curfew order was legally valid.
²⁵

The Court thought the congressional legislation and the executive
order clearly delegated to a military commander the power to issue a curfew order. The basic question was whether the Constitution permitted that commander to do so, given that the order restricted the freedom of American citizens to leave their homes and that it was race based. The Court answered this question by holding the curfew constitutional, on the basis of the wartime emergency, the constitutional grants of the war powers to the president and to Congress, and the consequent need for judges to defer to military decision making.
²⁶

The Court, it said, cannot “sit in review of the wisdom” of the warmaking activities of the executive and legislative branches; nor can it “substitute its judgment for theirs.” Rather, a court should simply ask whether “in the light of all the relevant circumstances” as seen at the time there was a “reasonable basis for … imposing the curfew.” The Court then explained why it believed there was a reasonable basis here.
²⁷

As to wartime need: the military authorities feared invasion, arguing that the risk of sabotage and espionage in the relevant geographic area seemed obvious. In any event, the military authorities made “findings of danger from espionage and sabotage, and of the necessity of the curfew order to protect against them.”
²⁸

As to race: the “danger of espionage and sabotage, in time of war and of threatened invasion,” warrants an exception to the general rule that “discrimination based on race alone” amounts to a “denial of equal protection.” The “solidarity” of those of Japanese origin, their comparative lack of assimilation, and their resentment provoked by restrictions all taken together may have “encouraged the continued attachment of members of this group to Japan”—or at least the relevant military authorities may have so found. And “we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained.”
²⁹

The conclusion: because the “circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision,” the “curfew order as applied, and at the time it was applied, was within the boundaries of the war power.”
³⁰

Although the decision was unanimous, three justices wrote separate
opinions as well. Justice Douglas underlined the Court’s inability to second-guess the military. Given that “the orders … have some relation to ‘protection against espionage.…,’ our task is at an end” (although some reclassification system might eventually be necessary). Justice Frank Murphy deplored the racial distinctions but thought they were necessary here because of the “great emergency,” the “critical military situation,” and the “urgent necessity of taking prompt and effective action to secure defense installations and military operations against the risk of sabotage and espionage.” Justice Wiley Blount Rutledge wrote that General DeWitt had “wide discretion” to take action “necessary to the region’s … safety,” but there may still have been judicially enforceable “bounds beyond which he cannot go.”
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The government thus won the comparatively easy curfew case. But what of the harder, more central cases challenging the relocation program itself? Fred Korematsu had been convicted for refusing to report to Tanforan for relocation. His case, too, was before the Court. Although the lower courts thought a technicality (related to the sentence imposed) might block Supreme Court review, the Court held that it did not. Still, it did not decide the relocation issue. Instead, it sent Korematsu’s case (along with another “curfew” case, that of Min Yasui) back to the lower courts for further consideration.

F
RED
K
OREMATSU, AN
American citizen, was born of Japanese parents in Oakland, California. He studied briefly at Los Angeles City College and then became a welder. He tried to join the navy, which rejected him for medical reasons.
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Korematsu refused to report for relocation, and on May 30 local police arrested him. Although some of the internees he knew advised him against contesting relocation, he decided to mount a legal fight. He explained why:

In mid-1942, Korematsu was convicted of violating the statute enforcing the exclusion (that is, the “report for internment”) orders. As I mentioned, the Court did not resolve the relocation issue the first time it heard his case but instead returned the case to the court of appeals for further consideration. The Supreme Court might have heard the case in the spring of 1944, but further delay, in part because of disagreements among the lawyers, meant that it did not hear the case until October 1944.
³⁴

In the meantime, the factual foundation underlying the government’s arguments began to crumble. General DeWitt had written a new, more complete final report in which he repeated his claims of espionage, sabotage, and dual loyalty. He claimed, for example, that before the relocation he had received “hundreds of reports nightly of signal lights visible from the coast, and of intercepts of unidentified radio transmissions” from the mainland to offshore submarines. The report became public. Newspapers across the country wrote about it. One press article said that in 1942 the “Japs attacked all ships leaving coast” (
Washington Post
). Others said that “signals from the shore aided the Japanese in attacks on the West Coast” (
San Francisco Examiner
) and that there were “plenty of reasons for removing Japs” (
Los Angeles Times
). The press criticized the “reluctance of the Justice Department” to accept and enforce all DeWitt’s recommendations.
³⁵

But DeWitt had gone too far. The publicity led two Justice Department lawyers working on the
Korematsu
case to ask the Federal Communications Commission (FCC) and the FBI to look into the report’s
claims. The FCC returned with documents showing that, at DeWitt’s request, soon after Pearl Harbor the FCC had set up a communications detection system with roving patrol boats. But they had found no clandestine transmissions; any reports of those transmissions had come from untrained army privates who did not know how to use the electronic detection equipment. And they had told DeWitt this at the time. The FCC had investigated 760 reports of suspicious signals in the first half of 1942, and none came from Japanese-American sources. (Of the 760 instances, 641 involved no signal, the remaining 119 emanated from ordinary sources, such as army and navy transmitters and licensed commercial broadcasting stations.) The upshot, said the FCC, was that at the time of relocation “there wasn’t a single illicit station and DeWitt knew it.”
³⁶

The FBI report said the bureau had no information linking attacks on ships or the shoreline immediately after Pearl Harbor to espionage activity onshore or to illicit radio or light signaling. The report traced DeWitt’s sabotage charges to three instances in which offshore Japanese vessels had shelled or bombed West Coast targets, two of which took place
after
the relocation and the third (ineffective shelling near Santa Barbara) was based on information collected long before Pearl Harbor. The FBI reiterated that J. Edgar Hoover had opposed the relocation as unnecessary at the time.
³⁷

Faced with the FCC and FBI reports, the Office of Naval Intelligence recommendation against evacuation, and Hoover’s initial opposition, the Justice Department could not easily claim military necessity to justify the relocation. The two Justice Department lawyers wrote a draft brief referring to
Hirabayashi
’s upholding the curfew while specifically claiming only that in 1942 army officials had “ample ground” to fear that Japan would attack the West Coast. The lawyers added a draft footnote that asked the Court
not
to take “judicial notice” of facts stated in DeWitt’s final report. The draft footnote said that the report’s “recital of the circumstances justifying the evacuation as a matter of military necessity” is “in several respects, particularly with reference to the use of illegal radio transmitters and to shore-to-ship signaling by persons of Japanese ancestry, in conflict with information in the possession of the Department of Justice.”
³⁸

The War Department and others in the Justice Department strongly objected to the draft footnote. Eventually, the assistant attorney general for war, Herbert Wechsler, drafted a compromise, which appeared in the final brief. It said: “We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice; and we rely upon the Final Report [of DeWitt] only to the extent that it relates to such facts.” The lawyers reluctantly agreed to the compromise and signed the brief.
³⁹

While the department was preparing to defend the relocation in the Supreme Court, internment itself was drawing to a close. The War Department had recognized DeWitt’s hostility to Japanese-Americans (he had once told officials there “isn’t such a thing as a loyal Japanese”) and had replaced him with successors who thought that camp internment should end. The threat of invasion had long since passed. Whatever screening could be done had been done. The War Relocation Authority saw no reason to prolong internment, and the Justice Department, too, wished to end it. California’s political officials, however, recognizing the unpopularity of the Japanese-Americans’ return, favored continued internment. The president seemed to agree, reportedly stating in May 1944 that he thought it would be a mistake to do anything “drastic or sudden,” at least until after the 1944 election.
⁴⁰