The internment of US citizens of Japanese ancestry

Photo credit: Professor Michael Bess. See here.

Photo credit: Professor Michael Bess. See here.

The holiday season is upon us. Most of us try to think good thoughts during this time. That is true even for those of us who are unbelievers. From the Jackson List, here is something in that vein worth reading and celebrating:

For the Jackson List:

The background history is well known—

· On December 7, 1941, Japanese attackers inflicted grave damage on the United States Navy at Pearl Harbor, Hawaii.

· The next day, President Franklin D. Roosevelt sought and obtained a congressional resolution declaring that the U.S. was at war with Japan.

· In February 1942, President Roosevelt signed Executive Order 9066, authorizing the Secretary of War and U.S. military commanders to prevent possible espionage and sabotage by declaring parts of the U.S. to be military areas, excluding persons therefrom, and taking other steps that commanders deemed appropriate.

· Pursuant to that authority, the U.S. Army soon declared the west coast of the U.S. to be an area under military command.

· The Army then issued a series of security orders directed at persons there who were of Japanese descent (both immigrants and U.S. citizens). These orders included curfews, then exclusions from coastal areas, and then directives to report to internment camps in the interior of the country.

· The U.S. Congress and President Roosevelt then enacted criminal laws penalizing violations of those orders.

· During the war years, over 100,000 Japanese-Americans, obeying these orders, were interned by the U.S. government.

· Some—relatively few—Japanese-Americans refused to obey those government orders. Some were prosecuted and convicted, and some of their appeals reached the Supreme Court of the United States.

· In 1943 and 1944, U.S. and allied forces, fighting island to island and at horrific cost, began to prevail – the war moved ever farther west, away from the U.S. and its people, toward Japan, and toward Allied victory.

· In June 1943, the Supreme Court affirmed unanimously a curfew violator’s conviction, holding that the Constitution empowers Congress and the President to enact and enforce such a restriction in what they regarded as the interest of national security (Hirabayashi v. United States).

· Two other Japanese-American cases – one challenging the constitutionality of a military exclusion order (Korematsu v. United States), the other challenging the legality of the government’s internment of a concededly loyal U.S. citizen of Japanese ancestry (Ex parte Endo) – were argued before the Supreme Court in October 1944.

As decisions in those cases were impending (and probably a Supreme Court leak tipped off the executive branch that decisions, perhaps adverse, were coming very soon), the United States government decided … to stop.

On Sunday, December 17, 1944 — seventy years ago today — General H. Conger Pratt, the U.S. Army’s western commander, located in San Francisco, issued Public Proclamation No. 21. It revoked, effective January 2, 1945, the military orders that had resulted in the internment of Japanese-Americans.

The Supreme Court then acted, the very next day.

In Ex part Endo, which the Justices and the press regarded then as the big case/the frontal assault on the internment system, the Court held unanimously that the government had no legal authority to intern a loyal citizen.

In United States v. Korematsu, a lagging case regarding a citizen’s conviction for violating back in 1942 an order that excluded him, based only on his Japanese-American ethnicity, from the coastal area in which he lived, a divided Court—three, including Justice Jackson, dissented—upheld the constitutionality of the executive branch’s actions in what it claimed to have been national security interests.

United States government treatment of Japanese-Americans during World War II is and should be a topic of constant study and reflection. Those executive (presidential and military) and congressional actions show how injury, knowledge, power, fear, ignorance and prejudice can combine to produce oppression. The judicial decisions show deference, rationalizations and perhaps institutional abdications.

General Pratt’s announcement of December 17th also shows, however, something that is hopeful. It was possible, and thus it is possible, for officials to wake up, to rethink, to change course, to improve behavior, to turn pages. Even when officials act late, and even when they act in response to forces and developments that largely have forced their moves, such actions are the promise of self-government.

* * *

To Professor John Q. Barrett, Professor of Law, St. John’s University, New York, NY and Elizabeth S. Lenna, Fellow, Robert H. Jackson Center, Jamestown, NY thank you for reminding us that redemption is possible even for governments. And, more broadly, thanks for the Jackson List, it is a pearl of great price.


14 responses

  1. Great post.

    Hard cases make bad law. Tough circumstances make bad policy. Changing course in the wake of those errors is difficult but it can and has been done. Let’s hope that is always the case.

    The Jackson List is quite informative indeed.

  2. The cynic in me requires that I note that by the time Endo and Korematsu were decided, the war was far from our shores. MacArthur had fulfilled his promise and returned to the Philippines. American bombers were devastating Japanese cities day after day. While there was still hard fighting ahead, and thousands more Americans would die, the ultimate outcome was not in doubt. Thus, it was easier to reverse course, and so required much less courage to do so than would have been the case a year or two earlier.

    A fact that seems to me significant, although it is not much noted, is that Americans of Japanese ancestry were not interned in Hawaii, where they formed a much larger portion of the population than on the West Coast, and where the Japanese had actually attacked.

    Finally, in one of the wonderful ironies of history, Fred Korematsu survived long enough to file an amicus brief arguing against the constitutionality of detentions without recourse at Guantanamo Bay.

  3. Jon,

    Cynicism is perfectly appropriate. But, for me, that doesn’t detract from the fact that our government finally did the right thing. And, don’t forget the war was not over, and the impending invasion of Japan, with the savage fighting that everyone feared, was still a real concern to the American public.

    All the best.


  4. Yes, that is true. At the time, hardly anyone knew about the A-bomb, much less that it would be used to bring the war to a close. (Some historians believe that Japan was ready to surrender before the bomb was dropped on Hiroshima; I take no position on that.)

    By the way, I am a true child of the Atomic Age. I was born the day after Hiroshima was bombed, and two days before Nagasaki.

  5. Judge \and Jon Part of the credit goes to the Japanese American both on the mainland and Hawaii for their patriotic compliance and service. Original decision to intern pushed by West Coast politicians including Earl Warren, still one of my heroes , nobody is perfect.

  6. Jon was not Barton Leach of hated property book fame, chairman of the committee on the use of the A bomb?

  7. RL,

    Japanese Americans are the real heroes, no doubt about it.

    As for Earl Warren, and the others who pushed for internment, I agree that no one is perfect. More importantly, Warren’s behavior reminds us of the singular importance of cultural context when reading legal history.

    Those judges who are able in the moment to rely upon transcendent legal principles, when the cultural context clouds the visions of lesser judges, are the great ones.

    All the best.


  8. I did not recall that Prof. Leach was involved with the decision to use the bomb. I do recall that he was in intelligence during the war and, I believe, was one of those who prepared the Strategic Bombing Survey after it–a study that revealed that strategic bombing was a lot less effective than had been believed during the war. I checked briefly on line to see if I could find a reference, and was unable to. Interestingly, that giant of American law does not have a Wikipedia page!

    As for the book being hated, I don’t recall that, either. I know that I found property to be a dull subject–even with Frank Michelman teaching it–but I don’t recall blaming the book, particularly. (About the only thing I do recall from the book is that the doctrine of ancient lights, though good law in Britain, does not apply here in the States.)

  9. Out in the wilderness we hated the books with red covers, Little Brown, which we thought were fitting only for East Coast law schools. Book was last of the horribles, casebooks with bad cases to sharpen critical facilities. I do remember the fox, then I lost interest in property.

  10. The Asian American bar association around here puts on some extraordinarily good lectures on various cases, including a partial re-enactment of the Heart Mountain trial, that included newspaper clippings and trial transcripts. Heart Mountain was one of the internment camps, and the case centered around Japanese-American men who refused to answer their draft orders. Ironically, some of these same young men had earlier during the war volunteered to serve but were turned down. However, when the same government that was keeping them in internment camps ordered them to report for duty, they declined.

    Really fascinating case–both for the bad it showed in America and the good.

  11. I suppose that this is the point to note that the 422nd Regimental Combat Team (sometimes known as the Nisei Battalion), which was almost entirely composed of Japanese-American men, some of them with family in the internment camps, was the most decorated American unit of the war. One of its members was Daniel Inouye, who became a Senator from Hawaii for many years. He was maimed in battle and awarded the Medal of Honor. (When he was in San Francisco on his way home, in full uniform, a barber refused to cut his hair, because he wasn’t American enough.)

  12. chocolatetort,

    Here is a Nebraska connection to this story that PBS featured:

    Ben Kuroki may be one of the most remarkable people you’ve never heard of.
    Born in 1917 to Japanese parents who had moved to the U.S. and settled on a small vegetable farm near Hershey, Nebraska early in the 20th century, he graduated from high school in 1936 and began a quiet life as a farmer.
    And then came Pearl Harbor.
    “Most Honorable Son” is an hour-long documentary that explores the personal odyssey of this Nebraska-born Nisei whose sense of shame over the bombing as a Japanese American ( read about the Japanese sense of shame, honor, and duty ) and sense of loyalty to his country as a native-born American drove him to enlist to fight the Axis powers.
    This moving story of our only Japanese American air war hero is told through rare and little-seen footage, as well as emotional recollections from Kuroki and his fellow airmen of the 8th and 20th Army Air Forces.
    “Most Honorable Son” follows Kuroki from his childhood through his distinguished military career and on to his long-overdue honoring with the Distinguished Service Medal in an August 2005 ceremony.

    The Smithsonian has a wonderful interview of this brave and modest man. You ought to watch it.


  13. RGK: Oh wow, I will check that out, thank you.

    Jon: Either at that lecture or on the occasion of his death in 2012, I learned a bit about Daniel Inouye and the 422nd battalion. Truly remarkable people and Americans.

  14. Judge:
    I recall an interview many years ago with Chief Justice Rehnquist who, when asked about this topic, said that the government had–and still has–the authority to treat non-citizens in this way; however, Japanese citizens (“Nisei”) could not have been so treated absence due process of law. The government’s failure to differentiate one from another, given its blanket internment order, correctly doomed the government’s actions in this regard.

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