Gordon Hirabayashi v. The United States
"Am I an American?"
Source:
Peter Irons, The Courage of Their Convictions:
Sixteen Americans Who Fought
Their Way to the Supreme Court
(New York: Penguin Books, 1990), p. 50-62I was born in Seattle, Washington, on April 23, 1918. Both of my parents were born in Japan. My father came over to this country in 1907, when he was nineteen, and my mother came over in 1914, when she was also nineteen. They were married in this country, but their marriage was arranged in Japan by their families. I was the oldest of five kids in the family. My dad operated a fruit and vegetable store, more like a roadside stand, in Auburn, which was a rural farm community about twenty miles south of Seattle.
My parents had grown up in Buddhist homes in Japan, but they were both converted to Christianity when they were taking English lessons, preparatory to coming over to the United States. Although they took these lessons seven years apart, they both happened to have an English instructor who was a disciple of a unique Protestant movement which was known in Japan as Mukyokai. In English this would mean 'Non-Church Movement.' This was a small, unorthodox, nondenominational movement which had beliefs and values very much like the Quakers, with a strong emphasis on pacifism.
My parents did not allow Sunday sports or work, except during emergencies like harvest time. Their lives emphasized the oneness of belief and behavior. My father was sometimes accused of being baka shojiki, which is roughly translated as stupidly honest. For example, while packing crates of lettuce, he would not make the usual spectacular selection of the outstanding heads for the top row. If my father was the quiet and solid foundation of the family, my mother was the fire, providing warmth and sometimes intense heat. She was an activist - outgoing, articulate, feisty.
While I was a child, and through my teenage period, I often felt that our religious group was too rigid and restrictive. I also had to cope with the conflicts between Japanese and Western ideals and values. Growing up in a Japanese home created serious problems at school. The teacher would encourage me by saying, Speak up, Gordon! What do you think about that? Let's hear your view. The Japanese value system told me not to blurt out anything that was only half-baked, bringing shame to me and my family, and I frequently sat like a sphinx in school. But I was active in school activities and the Boy Scouts. I became a Life Scout and a senior patrol leader.
I entered the University of Washington in Seattle after I finished high school, and at first I was majoring in math. I wasn't very active politically-at :the. university. I guess I still am not, in the formal political sense. But I was involved in a lot of issues. I belonged to the student YMCA, which was the main group around the so-called independents versus the Greek Row, with their 'for white gentiles only' policy, which was legal at that time. So when issues came up, we'd get into debates over certain positions, and I got involved in that sort of thing. Debates within the Y, Student Christian Movement, and conferences. Whenever issues came up, I always found myself taking the extreme liberal side, arguing those positions.
During one summer, I was sent to the Presidents' School; this was a training school of the YM and YWCA. This took place at Columbia University in New York City and it overlapped with Union Theological Seminary because the Y billeted us there and we worked for our meals on lunch shift. This was a liberal group, and we went to seminars with guys like A J. Muste and Evan Thomas and Frank Olmstead, who were all advocates of social action and opposition to war and war preparation: I guess I was ready for that, because I was just eating that up. It all made sense to me, and after I returned to Seattle I applied to my draft board for conscientious objector status. I didn't get my CO right away, so I had to appeal: And I was prepared, if they didn't give it to me, to refuse military service.
The University of Washington has a quarter system, and I was working my way through school, so the first couple of years I spent two quarters and then worked two quarters. Then I decided I'm missing too much, so I worked out a program where I worked full time and carried less than a full course load. So I was living on a shoestring. When I came back from New York, my roommate was in the same shoes, so the Y secretary put us up until we found a place to stay and found part-time jobs.
My roommate and I had been visiting different church groups, not belonging to any. We went to the University temple because they had an excellent choir, and we'd go to the Unitarian church once in a while because we liked what the minister said, and we'd drop in at the Quakers. And we liked that setting. That kind of appealed to us and we found ourselves gravitating over there more frequently, and after awhile we weren't shopping around. Sometime before the war we both applied for membership in the University Friends Meeting. My roommate was then sent down to a CO camp in California and after that I was fending for myself as a CO.
I remember that December 7, 1941 was a quiet Sunday morning in Seattle. We had just finished Meeting for Worship at the Friends Meeting and we drifted outside for visiting. Then, one of our members, who had stayed by the radio, broke the news. Japan has attacked Pearl Harbor in Hawaii! We are at war! It was unreal. "The impact did not sink in for some time. My immediate worry was what would happen to my parents and their generation. Since they were legally ineligible for American citizenship, war with Japan instantly transformed them into ‘enemy aliens.’
During the months between Pearl Harbor and the curfew order in March 1942 things were happening fast. I was a pretty naive, young country hick; my most serious problem was trying to earn enough to continue school. I didn't have any long-term plan. I had already been ordered to a Civilian Public Service camp in Oregon by my draft board, but the Selective Service had reclassified all draft-age persons of Japanese ancestry as aliens ineligible for conscription, so my order was canceled on the eve of my departure, after I had been treated to farewell parties with going-away gifts.
After the curfew order was announced, we knew there would be further orders to remove all persons of Japanese ancestry from the West Coast. When the exclusion orders specifying the deadline for forced removal from various districts of Seattle were posted on telephone poles, I was confronted with a dilemma: Do I stay out of trouble and succumb to the status of second-class citizen, or do I continue to live like other Americans and thus disobey the law?
When the curfew was imposed I obeyed for about a week. We had about twelve living in the Y dormitory, so it was a small group, and they all became my volunteer time-keepers. 'Hey, Gordy, it's five minutes to eight!' And I'd have to dash back from the library or from the coffee shop. One of those times, I stopped and I thought, Why the hell am I running back? Am I an American? And if I am, why am I running back and nobody else is? I think if the order said all civilians must obey the curfew, if it was just a nonessential restrictive move, I might not have objected. But I felt it was unfair, just to be referred to as a 'non-alien'-they never referred to me as a citizen. This was so pointedly, so obviously a violation of what the Constitution stood for, what citizenship meant. So I stopped and turned around and went back.
This shocked some of my friends. So I said, Well, you're here. What gives you any more right to stay here than me? And they couldn't answer that. After that, I just ignored the curfew. But nothing happened. And it became a kind of expression of freedom for me to make sure that I was out. after eight. It wasn't hard in the University district; there were-a lot of activities after eight.
When the exclusion order came, which was very close to that time, I was expecting to go along. I had dropped out of school at the end of the winter quarter, which was the end of March. I knew I wasn't going to be around very long, so I just didn't register for spring quarter and I volunteered for the fledgling, newly formed American Friends Service Committee. From time to time, districts of Seattle were on a deadline to move all the Japanese. So, with a car that was made available, I'd go and help - particularly families whose fathers were interned and there were a bunch of little kids, and I helped them to move. It really horrified me to help these families pack up-their belongings and drive them down to the Puyallup fairground and leave them behind barbed wire.
I fully expected that when the University district deadline came up I would join them. Those who saw me waving them goodbye all expected to see me within a few weeks at the most. About two weeks before my time came up, I said to myself, If I am defying the curfew, how can I accept this thing? This is much worse, the same principle but much worse in terms of uprooting and denial of our rights, and the suffering. So that's when I began to mull it over and I kicked it around with my roommate, Bill Makino, and he agreed with me. So we said, Let's investigate this further and think about it. And we both decided we can't go along with it. It's an absolute denial of our rights.
I had no plans to bring a test case. Today, if I violate anything on the grounds of principle, I would spend some time thinking about the legal aspects, the court battles and so on. But at that time, I was just a student. I had read of World War I and constitutional cases, but I didn't give it very-much thought. I did anticipate that I would be apprehended, but I didn't know very much about the legal procedures in these things. I just felt that something was going to happen to curtail my freedom.
I had met a lawyer named Arthur Barnett at the Friends Meeting. Bill and I met with Art and asked him some questions about the legal implications of the position we were contemplating. But there was no, Should we, or shouldn't we? Some people knew what I was thinking, but they didn't know what I was going to do.
Eventually, I wrote-out a statement explaining the reasons I was refusing evacuation, and I planned to give it to the FBI when I turned myself in. By that time my roommate, Bill Makino, had to cope with his parents' request that he stick with them and go along to the camp. Bill was the only son of parents who were at least ten years older than my parents and the pressure was very strong on him. I didn't want to have someone who would be having remorse all the way through, because I figured that we'll run into serious problems. In the course of our discussions, I said, You should think this through carefully and, if there's any way you could persuade yourself to go with your family, you should do. that. You should come with me only if you just can't go and you have to object. Then I welcome you. He thought about it and decided he'd have to stick with his family.
I didn't have the same moral pressure. Dad was physically able, so I didn't have that worry. My mother said that she gave me moral support but she wanted me to come with the family to the camp. I know you're right and I admire this stand of yours, she said, but we don't know if we'll ever see each other again. In that period, I didn't know what was going to happen to me, and I didn't know what was going to happen to them, where they were going, how far away and for how long. Everything was just a total blank, full of anxiety. So she said, It's a matter of life and death. Why stick to a principle? Stick with us. She used everything - tears and everything. And I couldn't do it.
So when I wrote my statement it was only me. When this got around, Mary Farquharson came to see me. Mary was the state senator for the University district and she was a regular resource person for the student Y. She said, I'm checking on a rumor that you are intending to defy the exclusion order. Is that true? And I said, Yes, I've already made a stand and written a statement. She said, Are you planning to make a test case of this? I said, I know that's a possibility, but I don't know very much about law and I don't have any money. I haven't talked to anybody about this. I don't know what's going to happen as a result of it and I've made no plans. And she said, Well, if you've made no plans, there's a group here that is very upset about what's happening to our liberties, the status of citizenship, and we'd like to battle it, but we haven't been able to find anyone yet. Do you have any objection to our group using your case as a vehicle to fight for citizens' rights?
Mary's group included some people I knew and respected, some Quakers, ministers,. professors, businessmen in the University district. Our plan was to hire a constitutional. lawyer, get the case started, and then the American Civil-Liberties Union would take over. But we had to change these plans. Roger Baldwin, the national ACLU director, regretfully informed Mary that his national board had failed to back him. So Mary and the Seattle group organized a Gordon Hirabayashi Defense Committee and continued the fight.
The day after the University district deadline for evacuation, Art took me to the FBI office to turn myself in. At first, I was only charged with violating the exclusion order. They threw in the curfew count afterward. One of the FBI agents who interrogated me regarding the exclusion order refusal stopped at one point and said, Well, gee, if you feel this way about it, what would you do about curfew? And I said, Well, what were you doing the past few nights? Were you out after eight o'clock? He said, Yeah. And I said, So was I. Other Americans were ignoring it, and so did I. When they confiscated my journal from my briefcase, I had some events listed of violating the curfew, and they picked one of those and added it to the counts against me.
Shortly, Art left the FBI office and I was in their hands for most of that day. There was an initial attempt to get me to register for evacuation, and they drove me to the registration center in a Catholic church. But when I found there were no changes in the regulations from the time I had previously found it impossible to register, I refused their offer. They took me back to the car and I'm sitting there while they must have been mulling over what to do with me. And then they took me back to headquarters and promised to drop the charges and give me a ride to the fairgrounds in Puyallup, if I would just go in without registering. I told them that not only would I refuse that offer, but they were proposing to do something illegal.
At the end of the. day I was checked into the federal tank of the King County jail in downtown Seattle. I had no notion of anything. I was so naive, I’d never even seen a jail. I was a sociology student but my class had never taken a field trip. After I was put in jail, within a couple of days I was brought into court for arraignment, and I was represented by a lawyer named John Geisness, with Art Barnett as advisor. We made a plea of not guilty to both counts and then they set bail. The original amount was five hundred dollars. So I said to Geisness, 'What if I put up that five hundred? Can I just walk out like anybody else? He raised this question and the judge, after consulting for a while, said, No, if he puts up bail he'll have to go to camp at Puyallup.
Things would have been better physically in the camp. Emotionally, it would have been very difficult for me, because I had objected to the whole thing and then I'm there. I'd have to be subject to all sorts of regulations, many of which were objectionable. I just felt that I couldn't accept that, so I stayed on in jail.
In the course of my staying in jail from May to October, when my district court trial was set, there were two or three legal skirmishes during the summer. My lawyers filed motions requesting that the case be dropped because, as a citizen, I wasn't given due process and, in effect, I was subject to these orders only on the grounds of ancestry, which was outside of constitutional guarantees. Judge Black denied these challenges.
King County jail is a holding place, primarily for people to be arraigned or serve sentences of sixty days or less. So the stays are quite short, and when a guy like me is there for months, I'm the senior person. Eventually I became the 'mayor' of the tank and I was in that capacity when they brought my Dad in to testify at my trial.
My trial in October lasted just one day. It started in the morning and they took a noon recess and continued in the afternoon until my conviction. The government subpoenaed my parents and they put Dad on the stand. They only asked him a couple of questions, like, Were you born in Japan? Are you a Japanese citizen? The only point was to impress on the jury, that this man was Japanese and didn't speak English well and that this defendant is his son.
I really objected to the government putting-my parents in jail for ten days before my trial. They were brought up from the Tule Lake Concentration Camp in California and my Dad was placed in the federal tank with me. Mother was put in the only tank for women, with street walkers, petty thieves, embezzlers. The tank was cockroachy and the food was greasy. On the day of my trial, we had to wait ten minutes for her to come down. Six of the women had been working on her hair and fingernails. She came out looking like a queen. She told me that whatever, the women were charged with, she had never met such warm hearted people. But I'll never forgive the government for putting my parents in jail like that, just to prejudice the jury against me.
Judge Black's instructions to the jury before they retired were very succinct. You can forget all those legal arguments, he said. Here are the only questions that you must determine. I am instructing you that the curfew and exclusion orders of the Army are valid. You are to determine whether the defendant is of Japanese ancestry, and if he is, he's subject to this regulation. Then you are to determine whether he complied with it. Gee, there's no question. They go in and they were back in ten minutes. I was guilty on both counts. You could have a whole bunch of civil liberties people on the jury and they are subject to the judge's instructions. They had to vote against me. It was cut and dried.
Judge Black sentenced me the next day. He said, Taking into consideration that you have already been five months in jail on a conviction with a maximum of twelve months, I'm going to sentence you to thirty days for the exclusion order conviction and thirty days for curfew order violation, to be served consecutively, or sixty days. Then he asked if the prisoner had anything to say, and I asked if he could add fifteen days to each count so that it would total ninety days. I'd been told by jailhouse friends that if my sentence was ninety days or longer, I could serve on a work camp and be outdoors instead of in jail behind bars. When Judge Black heard this he smiled and said, I could accommodate that. Why don't we make it three months on each count, to be served concurrently. Nobody saw any objection to that, and nobody realized that the Supreme Court would use that to avoid ruling on the exclusion order conviction.
Two days after I was sentenced, we appealed, and I continued to remain in jail because the judge and I couldn't agree on bail conditions. He said that if my backers put up the bail he would release me to one of the barbed wire internment camps. And I said, If my backers put up the bail, I should be released our the front door like anybody else. He said, There's a law that says you're not allowed out in the streets, so I can't do that.
With that stalemate, I remained in jail until the end of the ninth month, four months into the appeal period. Then we worked out a compromise with judge Black. By that time he was willing to get me out of jail. We'd become sort of like old friends in terms of his knowledge of me, and he said, We ought to get him out. We worked out a compromise that I would go to Spokane, which was outside the restricted area for Japanese. The American Friends Service Committee, was setting up a branch in Spokane to work on the relocation of Japanese who might be able to come out of the camps if they had a place to live and a job. And my assignment would have been like a field officer working up places to stay and lining up jobs. Judge Black said, I want the prisoner's promise that he will not return to the restricted area for the duration of the appeal. That sounded acceptable to me, so I went out to the Spokane post.
When the Supreme Court decision in my case came down in June 1943, I expected I would have to serve my sentence. Around the middle of July a couple of FBI agents came after me in Spokane. I was living with a Japanese doctor at the time, and I was mowing the lawn when they came. What kept you so long? I said. I've been waiting for you. Can I go in and get my things? They took me to the federal attorney's office and booked me into custody. His name was Connolly and he said, Well, I guess you'll have to serve your sentence in the federal tank of the Spokane county jail. I said, Wait a minute! I've got ninety days to serve and that's too long for the county jail. So he said, The only federal work camp I can send you to is in Tucson, Arizona. But we don't have any money to send you there. You'll have to serve your time here.
I was wracking my brain. I said, What if I go on my own to Tucson? And Connolly said, If you want to do that, it's okay with me. In fact, I'll write a letter for you, in case somebody gives you problems. It was against my principles to pay my way to prison, so I hitchhiked. This is 1,600 miles away, down the middle of the mountain states, during gas rationing, so there's not many, cars on the road, and traffic is slow. I stopped in Idaho to visit with my parents for a few days and then I stopped at Salt Lake City to visit friends, and finally got to Tucson after two weeks.
I went to the U.S. marshal's office and told them I was reporting to serve my sentence. This marshal looked in his papers and said, We don't have any record for you here. You might as well turn around and go back. You're free to go. I said, Look around, there must be something. If I go, someday you're going to find those papers and I’ll have to interrupt what I'm doing and come back. So I might as well get this over with. It was a hot day, and he said, Why don't you go to an air conditioned movie and come back tonight. Well, they found my papers at the bottom, of the pile. So they took me to the work camp, which was like a CCC camp up in the mountains, and I did my sentence there. Most of the prisoners were there for selling liquor to Indians or as wetbacks, illegal aliens. It was actually a good experience, getting to know these people and working in the woods on conservation projects. The ironic thing was that the work camp was in the restricted area that I wasn't supposed to enter.
After my time was up, they gave me a bus ticket back to Spokane. I continued my work where I left off, with a feeling that I might as well settle in for the duration now. After one month, I got a special questionnaire from my draft board, which they had concocted for persons of Japanese ancestry. This one had the usual Selective Service questions that I had filled in already, plus these additional questions that demanded that you agree to serve in the military and renounce any loyalty to the emperor of Japan.
This was like, Have you stopped beating your wife? If you never had a loyalty to Japan, how could you renounce it? So I wrote to my draft board and asked if they were sending this to all sorts of Americans of various ancestries, or only to those of Japanese ancestry. I never got a response, and I waited for a reasonable time and put my response in. I told them the questions were a form of racial discrimination and that as an American citizen I can't support that. So I'm returning this unfilled.
Then I got an order to report for a physical. I ignored it, and then I got another order to report for induction in Oregon. When that date came, I didn't show up. Later on, when I went to prison for this for a year, I met some guys who had walked out of the CO camps. They said, When we were in the army base in Oregon we saw your name on the list of those who were reporting for induction. So we went down to the station that morning to welcome you, and when the train came in and you didn't get off, we let out a great cheer! I could have fought that case on appeal, because I was subject to the draft on the basis of ancestry, but by that time I was tired of court cases.
When I came out of prison, the war had just finished, and so I was released to Seattle. I had been married just before I went in, and my wife and twin daughters in their little baskets were waiting for me at the dock from McNeil Island, where the prison was. Although I had four mouths to feed by then, I thought I should first complete my bachelor's degree at the University of Washington, feeling that whatever I went into, a degree would come in handy. I completed my degree that year, and then I went on to graduate school in sociology and I finished my Ph.D. in 1952.
As my first appointment, I accepted an assistant professorship at the American University of Beirut in Lebanon. I had a strong feeling of wanting international experience and that was the first teaching job I could find. I was there for three years, and then I taught in Cairo until 1959, about four years. So for most of the 1950s I was in the Arab Middle East. I came back to North America for family reasons, primarily. My kids were getting to junior-high age, and I felt they should have continuity in high school, although we all appreciated the international schooling background for the early years. I finally accepted an offer at the University of Alberta, in Canada, since it was the most attractive offer. I have been there ever since, so I guess we have liked it personally and as a family. In 1983, the year during which I became 65, I retired at the end of the academic year and took an emeritus position.
After the Supreme Court decided my case in 1943, there was always a continuous hope and interest on-my part that the case could be reviewed at some point. Not being a lawyer, I didn't know exactly what my options were. During the time I was overseas I didn't spend much time looking into that possibility, but during the latter part of the sixties and beginning of the seventies I had discussions with law professors at the University of California, but they couldn't find anything promising. And later I talked with a judge who suggested that I move to quash the charges in my case. The courts would have to look at that motion and in that process we might get a kind of hearing. I shared that idea with a few others, but nothing came of it. I had certain feelings of finality about my case. You know, while I'm hoping as a layman that something can be done, well, the Supreme Court is the Supreme Court. That's the end, and when they have made a decision, there aren't many ways open to reverse it. It wasn't until Peter Irons called me from Boston in 1981, saying that he had discovered some documents that might present an opportunity under a rarely used legal device to petition for a rehearing, that I felt there was a chance. I said to him, I've been waiting over forty years for this kind of a phone call. So he arranged to fly out to Edmonton, and eventually we got a legal team organized that filed a petition in the federal court in Seattle to vacate my conviction.
My petition was filed in January 1983 and we had a two-week evidentiary hearing in June 1985. Judge Donald Voorhees, who presided over the case, impressed me as a very fair judge. He was obviously interested in the case and well-informed about the evidence. Naturally, I was delighted that he ruled that my exclusion order conviction had been tainted by government misconduct. But I was disappointed that he upheld the curfew conviction, and we appealed that. The government also appealed on the exclusion order. We had arguments before the appellate judges in March 1987, and they handed down a unanimous opinion in September, upholding judge Voorhees on the exclusion order and also striking down the curfew conviction. So I finally got vindication that I had wanted for forty years, although I'm a little disappointed that the Supreme Court didn't have a chance to overrule the decision they made in 1943.
When my case was before the Supreme Court in 1943, I fully expected that as a citizen the Constitution would protect me. Surprisingly, even though I lost, I did not abandon my beliefs and values. And I never look at my case as just my own, or just as a Japanese American case. It is an American case, with principles that affect the fundamental human rights of all Americans.
HIRABAYASHI v. UNITED STATES.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT.
No. 870. Argued May 10,11,1943.-Decided June 21,1943.
1. Where a defendant is convicted on two counts of an indictment and the sentences are ordered to run concurrently, it is unnecessary on review to consider the validity of the sentence on both of the counts if the sentence on one of them is sustainable. P. 85.
2. Pursuant to Executive Order No. 9066, promulgated by the President on February 19, 1942 while the United States was at war with Japan, the military commander of the Western Defense Command promulgated an order requiring, inter alia, that all persons of Japanese ancestry within a designated military area "be within their place of residence between the hours of 8 p.m. and 6 a.m." Appellant, a United States citizen of Japanese ancestry, was convicted in the federal District Court for violation of this curfew order. Held:
(1) By the Act of March 21, 1942, Congress ratified and confirmed Executive Order No. 9066, and thereby authorized and implemented such curfew orders as the military commander should promulgate pursuant to that Executive Order. P. 91.
(2) It was within the constitutional authority of Congress and the Executive, acting together, to prescribe this curfew order as an emergency war measure. P. 92.
In the light of all the facts and circumstances, there was substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. P. 95.
(3) The curfew order did not unconstitutionally discriminate against citizens of Japanese ancestry. P. 101.
(a) The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. P. 100.
(b) The curfew order as applied, and at the time it was applied, was within the boundaries of the war power. P. 102.
(c) The adoption by the Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not to be condemned as unconstitutional merely because in other and in most circumstances racial distinctions are irrelevant. P. 101.
(d) An appropriate exercise of the war power is not rendered invalid by the fact that it restricts the liberty of citizens. P. 99.
(4) The promulgation of the curfew order by the military commander was based on no unconstitutional delegation of legislative power. P.102.
The essentials of the legislative function are preserved when Congress provides that a statutory command shall become operative upon ascertainment of a basic conclusion of fact by a designated representative of the Government. The Act of March 21, 1942, which authorized that curfew orders be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. P. 104.
Affirmed.
RESPONSE to questions certified by the Circuit Court of Appeals upon an appeal to that court from a conviction in the District Court upon two counts of an indictment charging violations of orders promulgated by the military commander of the Western Defense Command. This Court directed that the entire record be certified so that the case could be determined as if brought here by appeal. See 46 F. Supp. 657.
Messrs. Frank L. Walters and Harold Evans, with whom Messrs: Osmond K. Fraenkel, Arthur G. Barnett, Edwin M. Borchard, Brien McMahon, and William Draper Lewis were on the brief (Mr. Alfred J. Schweppe entered an appearance), for Hirabayashi.
Solicitor General Fahy, with whom Messrs. Edward J Ennis, Arnold Raum John L. Burling, and Leo Gitlin were on the brief, for the United States.
Briefs of amici curiae were filed by Messrs. Arthur Garfield Hays, Osmond K. Fraenkel, and A. L. Wirin on behalf of the American Civil Liberties Union; by Mr. A. L. Wirin on behalf of the Japanese American Citizens League; and by Mr. Jackson H. Ralston on behalf of the Northern California Branch of the American Civil Liberties Union,--in support of Hirabayashi; and by Messrs. Robert W. Kenny, Attorney General of California, I. H. Van Winkle, Attorney General of Oregon, Smith Troy, Attorney General of the State of Washington, and Fred E. Lewis, Chief Assistant and Acting Attorney General of the State of Washington, on behalf of those States, urging affirmance.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of Congress of March 21, 1942, 56 Stat. 173, which makes it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President.
The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.
The indictment is in two counts. The second charges that appellant, being a person of Japanese ancestry, had on a specified date, contrary to a restriction promulgated by the military commander of the Western Defense Command, Fourth Army, failed to remain in his place of residence in the designated military area between the hours of 8:00 o'clock p. m. and 6:00 a. m. The first count charges that appellant, on May 11 and 12, 1942, had, contrary to a Civilian Exclusion Order issued by the military commander, failed to report to the Civil Control Station within the designated area, it appearing that appellant's required presence there was a preliminary step to the exclusion from that area of persons of Japanese ancestry.
By demurrer and plea in abatement, which the court overruled (46 F. Supp. 657), appellant asserted that the indictment should be dismissed because he was an American citizen who had never been a subject of and had never borne allegiance to the Empire of Japan, and also because the Act of March 21, 1942, was an unconstitutional delegation of Congressional power. On the trial to a jury it appeared that appellant was born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never afterward returned to Japan; that he was educated in the Washington public schools and at the time of his arrest was a senior in the University of Washington; that he had never been in Japan or had any association with Japanese residing there.
The evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12, 1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated it had at all times been his belief that he would be waiving his rights as an American citizen by so doing. The evidence also showed that for like reason he was away from his place of residence after 8:00 p. m. on May 9, 1942. The jury returned a verdict of guilty on both counts and appellant was sentenced to imprisonment for a term of three months on each, the sentences to run concurrently.
On appeal the Court of Appeals for the Ninth Circuit certified to us questions of law upon which it desired instructions for the decision of the case. See § 239 of the Judicial Code as amended, 28 U. S. C. § 346. Acting under the authority conferred upon us by that section we ordered that the entire record be certified to this Court so that we might proceed to a decision of the matter in controversy in the same manner as if it had been brought here by appeal. Since the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count, for violation of the curfew order, must be sustained. Brooks v. United States, 267 U. S. 432, 441; Gorin v. United States, 312 U. S. 19, 33.
The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress has been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In passing upon the authority of the military commander to make and execute the order, it becomes necessary to consider in some detail the official action which preceded or accompanied the order and from which it derives its purported authority.
On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against Japan. 55 Stat. 795. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. The Order recited that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655." By virtue of the authority vested in him as President and as Commander in Chief of the Army and Navy, the President purported to "authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion."
On February 20, 1942, the Secretary of War designated Lt. General J. L. DeWitt as Military Commander of the Western Defense Command, comprising the Pacific Coast states and some others, to carry out there the duties prescribed by Executive Order No. 9066. On March 2, 1942, General DeWitt promulgated Public Proclamation No. 1. 7 Federal Register 2320. The proclamation recited that the entire Pacific Coast "by its geographical location is particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations." It stated that "the present situation requires as a matter of military necessity the establishment in the territory embraced by the Western Defense Command of Military Areas and Zones thereof"; it specified and designated as military areas certain areas within the Western Defense Command; and it declared that "such persons or classes of persons as the situation may require" would, by subsequent proclamation, be excluded from certain of these areas, but might be permitted to enter or remain in certain others, under regulations and restrictions to be later prescribed. Among the military areas so designated by Public Proclamation No. 1 was Military Area No. 1, which embraced, besides the southern part of Arizona, all the coastal region of the three Pacific Coast states, including the City of Seattle, Washington, where appellant resided. Military Area No. 2, designated by the same proclamation, included those parts of the coastal states and of Arizona not placed within Military Area No. 1.
Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt, made like recitals and designated further military areas and zones. It contained like provisions concerning the exclusion, by subsequent proclamation, of certain persons or classes of persons from these areas, and the future promulgation of regulations and restrictions applicable to persons remaining within them. 7 Federal Register 2405.
An Executive Order of the President, No. 9102, of March 18, 1942, established the War Relocation Authority, in the Office for Emergency Management of the Executive Office of the President; it authorized the Director of War Relocation Authority to formulate and effectuate a program for the removal, relocation, maintenance and supervision of persons designated under Executive Order No. 9066, already referred to; and it conferred on the Director authority to prescribe regulations necessary or desirable to promote the effective execution of the program. 7 Federal Register 2165.
Congress, by the Act of March 21,1942, provided: "That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military Commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to fine or imprisonment, or both.
Three days later, on March 24, 1942, General DeWitt issued Public Proclamation No. 3. 7 Federal Register 2543. After referring to the previous designation of military areas by Public Proclamations Nos. 1 and 2, it recited that ". . . the present situation within these Military Areas and Zones requires as a matter of military necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese ancestry within said Military Areas and Zones . . ." It accordingly declared and established that from and after March 27,1942, "all alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1 . . . shall be within their place of residence between the hours of 8:00 P. M. and 6:00 A. M., which period is hereinafter referred to as the hours of curfew." It also imposed certain other restrictions on persons of Japanese ancestry, and provided that any person violating the regulations would be subject to the criminal penalties provided by the Act of Congress of March 21, 1942.
Beginning on March 24, 1942, the military commander issued a series of Civilian Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each such order related to a specified area within the territory of his command. The order applicable to appellant was Civilian Exclusion Order No. 57 of May 10, 1942. 7 Federal Register 3725. It directed that from and after 12:00 noon, May 16, 1942, all persons of Japanese ancestry, both alien and nonalien, be excluded from a specified portion of Military Area No. 1 in Seattle, including appellant's place of residence, and it required a member of each family, and each individual living alone, affected by the order to report on May 11 or May 12 to a designated Civil Control Station in Seattle. Meanwhile the military commander had issued Public Proclamation No. 4 of March 27, 1942, which recited the necessity of providing for the orderly evacuation and resettlement of Japanese within the area, and prohibited all alien Japanese and all persons of Japanese ancestry from leaving the military area until future orders should permit. 7 Federal Register 2601.
Appellant does not deny that he knowingly failed to obey the curfew order as charged in the second count of the indictment, or that the order was authorized by the terms of Executive Order No. 9066, or that the challenged Act of Congress purports to punish with criminal penalties disobedience of such an order. His contentions are only that Congress unconstitutionally delegated its legislative power to the military commander by authorizing him to impose the challenged regulation, and that, even if the regulation were in other respects lawfully authorized, the Fifth Amendment prohibits the discrimination made between citizens of Japanese descent and those of other ancestry.
It will be evident from the legislative history that the Act of March 21, 1942, contemplated and authorized the curfew order which we have before us. The bill which became the Act of March 21, 1942, was introduced in the Senate on March 9th and in the House on March 10th at the request of the Secretary of War who, in letters to the Chairman of the Senate Committee on Military Affairs and to the Speaker of the House, stated explicitly that its purpose was to provide means for the enforcement of orders issued under Executive Order No. 9066. This appears in the committee reports on the bill, which set out in full the Executive Order and the Secretary's letter. 88 Cong. Rec. 2722, 2725; H. R. Rep. No. 1906, 77th Cong., 2d Sess.; S. Rep. No. 1171, 77th Cong., 2d Sess. And each of the committee reports expressly mentions curfew orders as one of the types of restrictions which it was deemed desirable to enforce by criminal sanctions.
When the bill was under consideration, General DeWitt had published his Proclamation No. 1 of March 2, 1942, establishing Military Areas Nos. 1 and 2, and that Proclamation was before Congress. S. Rep. No. 1171, 77th Cong., 2d Sess., p. 2; see also 88 Cong. Rec. 2724. A letter of the Secretary to the Chairman of the House Military Affairs Committee, of March 14, 1942, informed Congress that "General DeWitt is strongly of the opinion that the bill, when enacted, should be broad enough to enable the Secretary of War or the appropriate military commander to enforce curfews and other restrictions within military areas and zones"; and that General DeWitt had "indicated that he was prepared to enforce certain restrictions at once for the purpose of protecting certain vital national defense interests but did not desire to proceed until enforcement machinery had been set up." H. R. Rep. No. 1906, 77th Con,-, 2d Sess., p. 3. See also letter of the Acting Secretary of War to the Chairman of the Senate Military Affairs Committee, March 13, 1942, 88 Cong. Rec. 2725.
The Chairman of the Senate Military Affairs Committee explained on the floor of the Senate that the purpose of the proposed legislation was to provide means of enforcement of curfew orders and other military orders made pursuant to Executive Order No. 9066. He read General DeWitt's Public Proclamation No. 1, and statements from newspaper reports that "evacuation of the first Japanese aliens and American-born Japanese" was about to begin. He also stated to the Senate that "reasons for suspected widespread fifth-column activity among Japanese" were to be found in the system of dual citizenship which Japan deemed applicable to American born Japanese, and in the propaganda disseminated by Japanese consuls, Buddhist priests and other leaders, among American-born children of Japanese. Such was stated to be the explanation of the contemplated evacuation from the Pacific Coast area of persons of Japanese ancestry, citizens as well as aliens. SS Con-. Rec. 272226; see also pp. 2729-30. Congress also had before it the Preliminary Report of a House Committee investigating national defense migration, of March 19, 1942, which approved the provisions of Executive Order No. 9066, and which recommended the evacuation, from military areas established under the Order, of all persons of Japanese ancestry, including citizens. H. R. Rep. No. 1911, 77th Cong., 2d Sess. The proposed legislation provided criminal sanctions for violation of orders, in terms broad enough to include the curfew order now before us, and the legislative history demonstrates that Congress was advised that curfew orders were among those intended, and was advised also that regulation of citizen and alien Japanese alike was contemplated.
The conclusion is inescapable that Congress, by the Act of March 21, 1942, ratified and confirmed Executive Order No. 9066. Prize Cases, 2 Black 635, 671; Hamilton v. Dillin, 21 Wall. 73, 96-97; United States v. Heinszen & Co., 206 U. S. 370, 382-84; Tiaco v. Forbes, 228 U. S. 549, 556; lsbrandtsen-Molter Co. v. United States, 300 U. S. 139, 146-4S; Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297, 300-03; Mason Co. v. Tax Comm'n, 302 U. S. 186, 208. And so far as it lawfully could, Congress authorized and implemented such curfew orders as the commanding officer should promulgate pursuant to the Executive Order of the President. The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of. We must consider also whether, acting together, Congress and the Executive could leave it to the designated military commander to appraise the relevant conditions and on the basis of that appraisal to say whether, under the circumstances, the time and place were appropriate for the promulgation of the curfew order and whether the order itself was an appropriate means of carrying out the Executive Order for the "protection against espionage and against sabotage" to national defense materials, premises and utilities. For reasons presently to be stated, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power.
Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution. See Ex parte Quinn, 317 U. S. 1, 25--26. We have no occasion to consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President's action has the support of the Act of Congress, and we are immediately concerned with the question whether it is within the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. The exercise of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2; Ex parte Quinn, supra. Appellant has been tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed.
The war power of the national government is "the power to wage war successfully." See Charles Evans Hughes, war Powers Under the Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303-14; Stewart v. Kahn, 11 Wall. 493, 506--07; Selective Draft Law Cases, 245 U. S. 366; McKinley v. United States, 249 U. S. 397; United States v. Macintosh, 283 U. S. 605, 62223. Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare; it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra, 28-29; cf. Prize Cases, supra, 670; Martin v. Mott, 12 Wheat. 19, 29. Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.
The actions taken must be appraised in the light of the conditions with which the President and Congress were confronted in the early months of 1942, many of which, since disclosed, were then peculiarly within the knowledge of the military authorities. On December 7, 1941, the Japanese air forces lead attacked the United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department ostensibly for the peaceful settlement of differences between the two countries. Simultaneously or nearly so, the Japanese attacked Malaysia, Hong Kong the Philippines, and Fake and Midway Islands. On the following day their army invaded Thailand. Shortly afterwards they sank two British battleships. On December 13th, Guam was taken. On December 24th and 25th they captured Wake Island and occupied Hong Kong. On January 2, 1943, Manila fell, and on February 10th Singapore, Britain's great naval base in the East, was taken. On February 27th the battle of the Java Sea resulted in a disastrous naval defeat to the United Nations. By the 9th of March Japanese forces had established control over the Netherlands East Indies; Rangoon and Burma were occupied; Bataan and Corregidor were under attack.
Although the results of the attack on Pearl Harbor were not fully disclosed until much later, it was known that the damage was extensive, and that the Japanese by their successes had gained a naval superiority over our forces in the Pacific which might enable them to seize Pearl Harbor, our largest naval base and the last stronghold of defense lying between Japan and the west coast. That reasonably prudent men charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion, take measures against it, and in making the choice of measures consider our internal situation, cannot be doubted.
The challenged orders were defense measures for the avowed purpose of safeguarding the military area in question, at a time of threatened air raids and invasion by the Japanese forces, from the danger of sabotage and espionage. As the curfew was made applicable to citizens residing in the area only if they were of Japanese ancestry, our inquiry must be whether in the light of all the facts and circumstances there was any substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. The alternative which appellant insists must be accepted is for the military authorities to impose the curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real.
When the orders were promulgated there was a vast concentration, within Military Areas Nos. 1 and 2, of installations and facilities for the production of military equipment, especially ships and airplanes. Important Army and Navy bases were located in California and Washington. Approximately one-fourth of the total value of the major aircraft contracts then let by Government procurement officers were to be performed in the State of California. California ranked second, and Washington fifth, of all the states of the Union with respect to the value of shipbuilding contracts to be performed.