Legal Protests

Japanese Americans filed several legal challenges during World War II in an effort to reclaim their constitutional and human rights. These cases ranged from several draft resisters’ lawsuits such as Fujii vs. the United States to a number of renunciation lawsuits such as McGrath vs. Abo.

Some lawsuits had to be withdrawn. This was the case with Ernest Kinzo and his wife Toki Wakayama. Ernest was a U.S. citizen, born in the Territory of Hawaii, and a veteran of the First World War. He filed a writ of habeas corpus in August 1942 while imprisoned at the Santa Anita Assembly Center. Shortly after, Ernest was arrested with several others at Santa Anita for holding alleged secret meetings in the Japanese language in an effort to organize a protest against camp conditions.

A.L. Wirin filed Wakayama’s lawsuit as a test case on behalf of the Southern California ACLU. However, at the Tule Lake Segregation Center, Wakayama gained notoriety as one of the faction leaders of the Sokuji Kikoku Hoshi Dan, which supported a return to Japan. He had also become a central figure in the controversy over the Japanese Evacuation and Resettlement Study project involving Rosalie Hankey Wax, who admitted turning over information to the FBI that resulted in Wakayama’s deportation.

After the war, Tetsujiro “Tex” Nakamura visited Wakayama in Japan. At that time, Wakayama told Nakamura he had been forced at gun-point at Tule Lake to renounce his U.S. citizenship, which allowed the U.S. government to deport him.

From among the others who legally challenged their forced removal and imprisonment, four stand out as landmark cases. These include lawsuits filed by Mitsuye Endo, Gordon Kiyoshi Hirabayashi, Fred Toyosaburo Korematsu and Minoru Yasui.

 


 

Ex Parte Endo

Attorney James C. Purcell filed a writ of habeas corpus on behalf of Mitsuye Endo on July 12, 1942. She was considered the ideal person for this case since she was a U.S. citizen, had worked for the State of California as a Department of Motor Vehicles employee, had never visited Japan, neither spoke nor read the Japanese language, was a Methodist and even had a brother serving in the U.S. Army.

Since the outcome of Endo’s case would affect the status of more than 70,000 Americans of Japanese descent imprisoned in camps, Northern California Federal District Court Judge Michael J. Roche dragged his feet and did not issue a ruling until a year later, on July 3, 1943. At that time, the judge granted the government attorney’s motion to dismiss the case, and Purcell immediately filed an appeal.

On Dec. 18, 1944, the Supreme Court issued a unanimous decision that a U.S. citizen of Japanese descent with unquestionable loyalty should not be detained against their will and should not be subjected to the leave clearance program regulations administered by the War Relocation Authority (WRA). In essence, the Court had ruled that the WRA was overstepping its power by compelling loyal citizens to comply with a WRA-authorized program that determined who qualified to leave the camps.

The Supreme Court, however, did not rule over the question of whether the actions of the President, Congress or military were constitutional.

To head off the Supreme Court’s ruling, the War Department issued a press release a day before the Court’s opinion went public. In it, the War Department announced that people of Japanese ancestry, who met the Army’s requirements as to their loyalty, would be released from the camps and allowed to move about the country as any U.S. citizen or alien, as of January 2, 1945.

 


 

Minoru Yasui

Before the U.S. entered World War II, attorney Minoru Yasui had been working for the Japanese consul general’s office in Chicago but quit after Japan attacked Pearl Harbor. He, then, attempted to volunteer for the U.S. Army but was turned away due to his ancestry.

At the same time, Yasui’s immigrant father was among the Japanese leaders arrested by the FBI shortly after Pearl Harbor.

Disturbed by the turn of events, Yasui challenged the government’s curfew against people of Japanese descent on March 28, 1942 and became the first Japanese American to challenge the military orders of Gen. John L. DeWitt.

On Nov. 16, 1942, Oregon Federal District Judge James Alger Fee ruled that a curfew order against U.S. citizens was unconstitutional but that because Yasui had worked for the Japanese consulate, he had forfeited his U.S. citizenship and became an enemy alien.

Fee felt that Yasui switched his allegiance to the Japanese Emperor when Yasui started working at the Japanese consulate general’s office, and disregarded Yasui’s birth in Oregon, his membership in the Bar in both Oregon and Illinois, and his service in the U.S. Army Reserve.

As a result, the judge found Yasui guilty of violating the curfew order and sentenced Yasui to one year in prison and a $5,000 fine. The ruling was appealed.

The Supreme Court heard Yasui’s case along with Hirabayashi’s case on June 21, 1943.

Because the Supreme Court affirmed the verdict in the Hirabayashi case in which a U.S. citizen was found guilty of violating the curfew, the Court reversed Judge Fee’s decision that a curfew order against U.S. citizens was unconstitutional but also found that Yasui had not forfeited his U.S. citizenship when he became employed at the Japanese consulate. The case was remanded to Fee for re-sentencing.

Yasui spent nine months in jail and was then shipped to the Minidoka War Relocation Authority camp.

After Yasui’s unsuccessful legal challenge, he became active with the Japanese American Citizens League (JACL), the same organization that had criticized Yasui during his court challenge. When Japanese American men began protesting being drafted out of the camps, Yasui and JACL leader Joe Grant Masaoka visited various draft resisters awaiting trial in the county jails in an effort to change their minds and join the U.S. Army. Their findings were reported to the government.

 


 

Gordon Kiyoshi Hirabayashi

When the U.S. entered World War II, the government issued a curfew order against people of Japanese ancestry living on the West Coast. Gordon K. Hirabayshi, then a senior at the University of Washington, initially complied with the curfew order but later decided to challenge it. However, since no one reported him, Hirabayashi was never picked up for violating the curfew.

Once the government issued the mass removal order, Hirabayashi decided to turn himself in, rather than go quietly into camp.

On May 16, 1942, Hirabayashi went to the local FBI office, accompanied by Arthur Barnett, a Quaker lawyer. Hirabayashi presented a statement titled, “Why I Refuse to Register for Evacuation.”

Before the FBI charged him with violating the exclusion order, Hirabayashi was given the chance to register to go into camp but he refused. He was, then, sent to the King County jail to await his trial.

During his preliminary hearing, Hirabayashi was offered bail at $5,000 under the condition that he go into the Puyallup Assembly Center as other local Japanese Americans were doing. Hirabayashi chose to remain at the King County jail. Incidentally, Hirabayashi became popular among the inmates and was voted as the jail’s “mayor” to negotiate issues between the inmates and jail officials.

On May 28, 1942, the FBI added a second count against Hirabayashi, that of violating Public Law 503, the curfew order. This charge was tacked on after the FBI had confiscated Hirabayashi’s briefcase and read through his diary where Hirabayashi had documented the days he had violated the curfew.

Had Hirabayashi’s trial been written as fiction, readers would, most likely, find it unbelievable. His parents, who were to act as witnesses in the trial, were thrown into jail with Hirabayashi, since the area was restricted to Japanese Americans; Hirabayashi served as an interpreter for his father during his own trial; the judge ordered the jury to find Hirabayashi guilty on the two counts; and Hirabayashi hitchhiked from Washington State to Arizona to serve his jail time at a Tucson prison camp.

Hirabayashi immediately appealed the guilty verdict, and his case, along with the Fred Korematsu and Minoru Yasui cases, went before the San Francisco Court of Appeals on Feb. 19, 1943.

At the same time, the Department of Justice attorneys were eager to get the Hirabayashi, Korematsu and Yasui cases before the Supreme Court, ahead of the Endo case since they feared the strength of the Endo case would affect the outcome of the other three cases. To speed the process, the government lawyers used an obscure procedure called “certification,” whereby the Supreme Court would only answer constitutional questions raised by the appellate court.

On June 21, 1943, the Supreme Court issued a ruling on the Hirabayashi and Yasui cases. The Court upheld the curfew violation but did not rule on the exclusion order violation.

Hirabayashi did his prison time at the Catalina Federal Honor Camp in Tucson, Ariz., where Japanese American draft resisters from Amache (Granada), Poston (Colorado River) and Topaz (Central Utah) were also imprisoned.

After his release, Hirabayashi returned to Washington, whereupon he received the so-called loyalty questionnaire from the War Department, which was titled, “Statement of United States Citizens of Japanese Ancestry,” DSS (Department of Selective Service) Form 304A.

Hirabayashi refused to fill out the questionnaire based on the premise that he felt singling out only Japanese Americans to fill out the form was racially discriminatory.

Hirabayashi’s local draft board contacted the War Department for further instructions, and the War Department permitted the draft board to disregard Hirabayashi’s explanations. The draft board, then, ordered Hirabayashi to appear for his pre-induction physical, which Hirabayashi promptly ignored. Hirabayashi also disregarded the draft board’s orders to get on a train that would take him to a camp for conscientious objectors since he was classified as I-E, conscientious objector.

As a pacifist, Hirabayashi chose not to support the government’s war machine, which, he felt, included being drafted to labor at a camp for conscientious objector.

Hirabayashi was again picked up by the FBI. At his court hearing, Hirabayashi served as his own lawyer. He was tried and convicted in 1944 of violating the Selective Service Act and sentenced to one-year at the McNeil Island federal correctional institute, along with Japanese American draft resisters from Heart Mountain and Minidoka.

 


 

Fred Toyosaburo Korematsu

When the U.S. government issued orders for the forced removal of all people of Japanese ancestry from the West Coast, Fred T. Korematsu wanted nothing more than to marry his Italian American fiancée, Ida Boitano, and move to the Midwest.

In March 1942, Korematsu had plastic surgery on his nose and eyes in an attempt to erase his Asian features.

However, Korematsu could not move immediately since he had lost his job as a welder shortly after Japan attacked Pearl Harbor and did not have enough money to pay for a wedding or for a move out of California.

When his family entered the Tanforan Assembly Center on May 9, 1942, Korematsu did not join them. He was arrested on May 20, 1942, in San Leandro, Calif., for violating the exclusion order. At that time, he tried to pass himself off as someone of Spanish-Hawaiian descent.

Meanwhile, Ernest Besig with the Northern California ACLU was visiting the San Francisco County jail in search of test cases to challenge the constitutionality of the government’s action against the Japanese Americans. Korematsu volunteered to be a test case.

Attorneys Wayne Collins and Clarence Rust took on Korematsu’s case. His case went to trial on Sept. 8, 1942, where he was found guilty of violating the exclusion order and sentenced to five years of probation. Collins announced his intentions to file an appeal immediately and covered Korematsu’s $2,500 bail.

With bail posted, Korematsu was technically a free person while the appeal worked its way through the court system. However, a military officer pulled out a gun and insisted he had orders to take Korematsu into custody. Following a legal argument, Korematsu was taken to the Tanforan Assembly Center after his trial.

Korematsu appeared before the court of appeals on Feb. 19, 1943, along with Gordon Hirabayashi and Minoru Yasui. Since the Department of Justice lawyers were eager to get these three cases before the Supreme Court ahead of the Endo case, which they feared losing, they filed an obscure procedure called “certification.” Under this process, the Supreme Court had only to answer the constitutional questions raised by the appellate court. In Korematsu’s case, the question posed was whether his sentence of probation could be appealed.

On May 10, 1943, Korematsu appeared before the Supreme Court with Hirabayashi and Yasui. The Supreme Court ruled in favor of the government in the Hirabayashi and Yasui cases.

In Korematsu’s case, the Supreme Court issued a ruling on June 1, 1943, that it found it acceptable that the probation sentence could be appealed and sent the case back to the appellate court to rule on the exclusion order.

Meanwhile, an intense debate was occurring between the Justice Department and the War Department over General John L. DeWitt’s 618-page Final Report, which was set to be released to the public.

Edward Ennis and John Burling with the Justice Department had used the findings from the Final Report to get the convictions of Hirabayashi and Yasui upheld. However, they discovered that the final version of the Final Report differed from what they had been given earlier from the War Department. In essence, the War Department had withheld crucial sections of the Final Report that would have affected the Hirabayashi and Yasui cases and would now impact the Korematsu case.

To determine the validity of DeWitt’s report, the Justice Department contacted the FBI and the Federal Communications Commission (FCC). Both refuted DeWitt’s accusation in the final version of the Final Report that Japanese Americans had committed acts of espionage after Pearl Harbor. In the FCC’s case, the agency found no evidence that Japanese Americans were making radio contact with Japanese submarines along the West Coast.

In the end, however, the Justice Department signed off on a toned-down version of a government brief in the Korematsu case that stated in a footnote that the military’s action were based more on opinions rather than facts.

The Korematsu case, along with the Endo case, went before the Supreme Court on Oct. 11, 1944. By this time, the tide was turning in the war with Japan losing ground.

On Dec. 18, 1944, the Supreme Court upheld Korematsu’s conviction that he violated the military exclusion order.

 


 

Postwar Coram Nobis Cases

In 1981, Peter Irons, then a legal historian, visited the National Archives and Research Administration (NARA) in Washington D.C., with the intent on writing an account of the four wartime Supreme Court cases of Mitsuye Endo, Gordon Hirabayashi, Fred Korematsu and Minoru Yasui.

While examining the papers, Irons came across documents where the Department of Justice attorneys were complaining about suppressed evidence and accusing their superiors of lying to the Supreme Court in the cases of Hirabayashi, Korematsu and Yasui.

Irons felt these three cases merited a second look, and a team of 20 attorneys, including Japanese American lawyers, were called together.

Since Irons felt the petitions should be filed in the same cities in which they had originally been tried, attorney Dale Minami headed the San Francisco legal team (Korematsu); Peggy Nagae, the Portland legal team (Yasui); and Katherine Bannai, the Seattle team.

In January 1983, the legal team filed a writ of error coram nobis, an obscure legal procedure, which translates to the “error before us.” It is used when a defendant has been convicted and released from custody, but later, it is discovered that the prosecution withheld evidence from the judge and the defense.

At the same time, the Commission on Wartime Relocation and Internment of Civilians (CWRIC) was conducting hearings across the nation on the wartime experiences of Japanese Americans.

The CWRIC had hired Aiko Herzig-Yoshinaga to locate documents that would shed light on the government’s conduct during the war. Earlier, Herzig-Yoshinaga had provided documents that helped the National Council for Japanese American Redress file a class action lawsuit that had gone all the way to the Supreme Court, only to lose on a technicality.

Herzig-Yoshinaga became a pivotal figure in the coram nobis cases when she located Gen. John DeWitt’s original Final Report.

During the war, 10 copies of DeWitt’s Final Report had been sent to various officials in Washington D.C. However, the War Department had ordered the original 10 copies to be destroyed and a revision to be made to tone down the racial bigotry in the original report.

Close to four decades later, Herzig-Yoshinaga followed the paper trail of telephone conversation transcripts, memos, letters and cablegrams, and came to the conclusion that only nine copies of the 10 had been destroyed.

Herzig-Yoshinaga was able to locate the 10th copy of DeWitt’s Final Report, which proved that government officials had knowingly suppressed evidence from the Supreme Court. This helped vacate the wartime convictions of Hirabayashi, Korematsu and Yasui, and added momentum to push for a public apology and a token reparation to surviving camp inmates.

 


 

For more information:

Hirabayashi, Gordon. A Principled Stand: The Story of Hirabayashi v. United States. Edited by James Hirabayashi, and Lane Ryo Hirabayashi. Seattle & London: University of Washington Press, 2013.

Irons, Peter. Justice at War: The Story of the Japanese American Internment Cases. New York: Oxford Press, 1983.

Lyon, Cherstin M. Prisons and Patriots: Japanese American Wartime Citizenship, Civil Disobedience, and Historical Memory. Philadelphia: Temple University Press, 2012.