Korematsu v. United States

No. 22

Argued October 11, 12, 1944

Decided December 18, 1944

323 U.S. 214

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus



1. Civilian Exclusion Order No. 34 which, during a state of war with

Japan and as a protection against espionage and sabotage, was

promulgated by the Commanding General of the Western Defense Command

under authority of Executive Order No. 9066 and the Act of March 21,

1942, and which directed the exclusion after May 9, 1942, from a

described West Coast military area of all persons of Japanese ancestry,

held constitutional as of the time it was made and when the petitioner

-- an American citizen of Japanese descent whose home was in the

described area -- violated it.



2. The provisions of other orders requiring persons of Japanese ancestry

to report to assembly centers and providing for the detention of such

persons in assembly and relocation centers were separate, and their

validity is not in issue in this proceeding.   [323 U.S. 215]



3. Even though evacuation and detention in the assembly center were

inseparable, the order under which the petitioner was convicted was

nevertheless valid.



140 F.2d 289, affirmed.



CERTIORARI, 321 U.S. 760, to review the affirmance of a judgment of

conviction. BLACK, J., lead opinion



MR. JUSTICE BLACK delivered the opinion of the Court.



The petitioner, an American citizen of Japanese descent, was convicted

in a federal district court for remaining in San Leandro, California, a

"Military Area," contrary to Civilian Exclusion Order No. 34 of the

Commanding General [323 U.S. 216] of the Western Command, U.S. Army,

which directed that, after May 9, 1942, all persons of Japanese ancestry

should be excluded from that area.  No question was raised as to

petitioner's loyalty to the United States.  The Circuit Court of Appeals

affirmed, and the importance of the constitutional question involved

caused us to grant certiorari.



It should be noted, to begin with, that all legal restrictions which

curtail the civil rights of a single racial group are immediately

suspect.  That is not to say that all such restrictions are

unconstitutional.  It is to say that courts must subject them to the

most rigid scrutiny.  Pressing public necessity may sometimes justify

the existence of such restrictions; racial antagonism never can.



In the instant case, prosecution of the petitioner was begun by

information charging violation of an Act of Congress, of March 21, 1942,

56 Stat. 173, which provides 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 a fine of not to exceed $5,000 or to

imprisonment for not more than one year, or both, for each offense.



Exclusion Order No. 34, which the petitioner knowingly and admittedly

violated, was one of a number of military orders and proclamations, all

of which were substantially [323 U.S. 217] based upon Executive Order

No. 9066, 7 Fed.Reg. 1407.  That order, issued after we were at war with

Japan, declared 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. . . .



One of the series of orders and proclamations, a curfew order, which,

like the exclusion order here, was promulgated pursuant to Executive

Order 9066, subjected all persons of Japanese ancestry in prescribed

West Coast military areas to remain in their residences from 8 p.m. to 6

a.m.  As is the case with the exclusion order here, that prior curfew

order was designed as a "protection against espionage and against

sabotage."  In Hirabayashi v. United States, 320 U.S. 81, we sustained a

conviction obtained for violation of the curfew order.  The Hirabayashi

conviction and this one thus rest on the same 1942 Congressional Act and

the same basic executive and military orders, all of which orders were

aimed at the twin dangers of espionage and sabotage.



The 1942 Act was attacked in the Hirabayashi case as an unconstitutional

delegation of power; it was contended that the curfew order and other

orders on which it rested were beyond the war powers of the Congress,

the military authorities, and of the President, as Commander in Chief of

the Army, and, finally, that to apply the curfew order against none but

citizens of Japanese ancestry amounted to a constitutionally prohibited

discrimination solely on account of race.  To these questions, we gave

the serious consideration which their importance justified.  We upheld

the curfew order as an exercise of the power of the government to take

steps necessary to prevent espionage and sabotage in an area threatened

by Japanese attack.



In the light of the principles we announced in the Hirabayashi case, we

are unable to conclude that it was beyond the war power of Congress and

the Executive to exclude [323 U.S. 218] those of Japanese ancestry from

the West Coast war area at the time they did.  True, exclusion from the

area in which one's home is located is a far greater deprivation than

constant confinement to the home from 8 p.m. to 6 a.m.  Nothing short of

apprehension by the proper military authorities of the gravest imminent

danger to the public safety can constitutionally justify either.  But

exclusion from a threatened area, no less than curfew, has a definite

and close relationship to the prevention of espionage and sabotage.  The

military authorities, charged with the primary responsibility of

defending our shores, concluded that curfew provided inadequate

protection and ordered exclusion.  They did so, as pointed out in our

Hirabayashi opinion, in accordance with Congressional authority to the

military to say who should, and who should not, remain in the threatened

areas.



In this case, the petitioner challenges the assumptions upon which we

rested our conclusions in the Hirabayashi case.  He also urges that, by

May, 1942, when Order No. 34 was promulgated, all danger of Japanese

invasion of the West Coast had disappeared.  After careful consideration

of these contentions, we are compelled to reject them.



Here, as in the Hirabayashi case, supra, at p. 99, . . . 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.  We

cannot say that the war-making branches of the Government did not have

ground for believing that, in a critical hour, such persons could not

readily be isolated and separately dealt with, and constituted a menace

to the national defense and safety which demanded that prompt and

adequate measures be taken to guard against it.



Like curfew, exclusion of those of Japanese origin was deemed necessary

because of the presence of an unascertained number of disloyal members

of the group, most of [323 U.S. 219] whom we have no doubt were loyal to

this country.  It was because we could not reject the finding of the

military authorities that it was impossible to bring about an immediate

segregation of the disloyal from the loyal that we sustained the

validity of the curfew order as applying to the whole group.  In the

instant case, temporary exclusion of the entire group was rested by the

military on the same ground.  The judgment that exclusion of the whole

group was, for the same reason, a military imperative answers the

contention that the exclusion was in the nature of group punishment

based on antagonism to those of Japanese origin.  That there were

members of the group who retained loyalties to Japan has been confirmed

by investigations made subsequent to the exclusion.  Approximately five

thousand American citizens of Japanese ancestry refused to swear

unqualified allegiance to the United States and to renounce allegiance

to the Japanese Emperor, and several thousand evacuees requested

repatriation to Japan.



We uphold the exclusion order as of the time it was made and when the

petitioner violated it.  Cf. Chastleton Corporation v. Sinclair, 264

U.S. 543, 547; Block v. Hirsh, 256 U.S. 135, 155.  In doing so, we are

not unmindful of the hardships imposed by it upon a large group of

American citizens.  Cf. Ex parte Kawato, 317 U.S. 69, 73.  But hardships

are part of war, and war is an aggregation of hardships.  All citizens

alike, both in and out of uniform, feel the impact of war in greater or

lesser measure.  Citizenship has its responsibilities, as well as its

privileges, and, in time of war, the burden is always heavier. 

Compulsory [323 U.S. 220] exclusion of large groups of citizens from

their homes, except under circumstances of direst emergency and peril,

is inconsistent with our basic governmental institutions.  But when,

under conditions of modern warfare, our shores are threatened by hostile

forces, the power to protect must be commensurate with the threatened

danger.



It is argued that, on May 30, 1942, the date the petitioner was charged

with remaining in the prohibited area, there were conflicting orders

outstanding, forbidding him both to leave the area and to remain there. 

Of course, a person cannot be convicted for doing the very thing which

it is a crime to fail to do.  But the outstanding orders here contained

no such contradictory commands.



There was an order issued March 27, 1942, which prohibited petitioner

and others of Japanese ancestry from leaving the area, but its effect

was specifically limited in time "until and to the extent that a future

proclamation or order should so permit or direct."  7 Fed.Reg. 2601. 

That "future order," the one for violation of which petitioner was

convicted, was issued May 3, 1942, and it did "direct" exclusion from

the area of all persons of Japanese ancestry before 12 o'clock noon, May

9; furthermore, it contained a warning that all such persons found in

the prohibited area would be liable to punishment under the March 21,

1942, Act of Congress.  Consequently, the only order in effect touching

the petitioner's being in the area on May 30, 1942, the date specified

in the information against him, was the May 3 order which prohibited his

remaining there, and it was that same order which he stipulated in his

trial that he had violated, knowing of its existence.  There is

therefore no basis for the argument that, on May 30, 1942, he was

subject to punishment, under the March 27 and May 3 orders, whether he

remained in or left the area.



It does appear, however, that, on May 9, the effective date of the

exclusion order, the military authorities had [323 U.S. 221] already

determined that the evacuation should be effected by assembling together

and placing under guard all those of Japanese ancestry at central

points, designated as "assembly centers," in order to insure the orderly

evacuation and resettlement of Japanese voluntarily migrating from

Military Area No. 1, to restrict and regulate such migration. Public

Proclamation No. 4, 7 Fed.Reg. 2601.  And on May 19, 1942, eleven days

before the time petitioner was charged with unlawfully remaining in the

area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for

detention of those of Japanese ancestry in assembly or relocation

centers.  It is now argued that the validity of the exclusion order

cannot be considered apart from the orders requiring him, after

departure from the area, to report and to remain in an assembly or

relocation center.  The contention is that we must treat these separate

orders as one and inseparable; that, for this reason, if detention in

the assembly or relocation center would have illegally deprived the

petitioner of his liberty, the exclusion order and his conviction under

it cannot stand.



We are thus being asked to pass at this time upon the whole subsequent

detention program in both assembly and relocation centers, although the

only issues framed at the trial related to petitioner's remaining in the

prohibited area in violation of the exclusion order.  Had petitioner

here left the prohibited area and gone to an assembly center, we cannot

say, either as a matter of fact or law, that his presence in that center

would have resulted in his detention in a relocation center.  Some who

did report to the assembly center were not sent to relocation centers,

but were released upon condition that they remain outside the prohibited

zone until the military orders were modified or lifted.  This

illustrates that they pose different problems, and may be governed by

different principles. T he lawfulness of one does not necessarily

determine the lawfulness of the others.  This is made clear [323 U.S.

222] when we analyze the requirements of the separate provisions of the

separate orders.  These separate requirements were that those of

Japanese ancestry (1) depart from the area; (2) report to and

temporarily remain in an assembly center; (3) go under military control

to a relocation center, there to remain for an indeterminate period

until released conditionally or unconditionally by the military

authorities.  Each of these requirements, it will be noted, imposed

distinct duties in connection with the separate steps in a complete

evacuation program.  Had Congress directly incorporated into one Act the

language of these separate orders, and provided sanctions for their

violations, disobedience of any one would have constituted a separate

offense.  Cf. Blockburger v. United States, 284 U.S. 299, 304.  There is

no reason why violations of these orders, insofar as they were

promulgated pursuant to Congressional enactment, should not be treated

as separate offenses.



The Endo case, post, p. 283, graphically illustrates the difference

between the validity of an order to exclude and the validity of a

detention order after exclusion has been effected.



Since the petitioner has not been convicted of failing to report or to

remain in an assembly or relocation center, we cannot in this case

determine the validity of those separate provisions of the order.  It is

sufficient here for us to pass upon the order which petitioner violated.

 To do more would be to go beyond the issues raised, and to decide

momentous questions not contained within the framework of the pleadings

or the evidence in this case.  It will be time enough to decide the

serious constitutional issues which petitioner seeks to raise when an

assembly or relocation order is applied or is certain to be applied to

him, and we have its terms before us.



Some of the members of the Court are of the view that evacuation and

detention in an Assembly Center were inseparable.  After May 3, 1942,

the date of Exclusion [323 U.S. 223] Order No. 34, Korematsu was under

compulsion to leave the area not as he would choose, but via an Assembly

Center.  The Assembly Center was conceived as a part of the machinery

for group evacuation.  The power to exclude includes the power to do it

by force if necessary.  And any forcible measure must necessarily entail

some degree of detention or restraint, whatever method of removal is

selected.  But whichever view is taken, it results in holding that the

order under which petitioner was convicted was valid.



It is said that we are dealing here with the case of imprisonment of a

citizen in a concentration camp solely because of his ancestry, without

evidence or inquiry concerning his loyalty and good disposition towards

the United States.  Our task would be simple, our duty clear, were this

a case involving the imprisonment of a loyal citizen in a concentration

camp because of racial prejudice.  Regardless of the true nature of the

assembly and relocation centers -- and we deem it unjustifiable to call

them concentration camps, with all the ugly connotations that term

implies -- we are dealing specifically with nothing but an exclusion

order.  To cast this case into outlines of racial prejudice, without

reference to the real military dangers which were presented, merely

confuses the issue.  Korematsu was not excluded from the Military Area

because of hostility to him or his race.  He was excluded because we are

at war with the Japanese Empire, because the properly constituted

military authorities feared an invasion of our West Coast and felt

constrained to take proper security measures, because they decided that

the military urgency of the situation demanded that all citizens of

Japanese ancestry be segregated from the West Coast temporarily, and,

finally, because Congress, reposing its confidence in this time of war

in our military leaders -- as inevitably it must -- determined that they

should have the power to do just this.  There was evidence of disloyalty

on the part of some, the military authorities considered that the need

for [323 U.S. 224] action was great, and time was short.  We cannot --

by availing ourselves of the calm perspective of hindsight -- now say

that, at that time, these actions were unjustified.



Affirmed. FRANKFURTER, J., concurring



MR. JUSTICE FRANKFURTER, concurring.



According to my reading of Civilian Exclusion Order No. 34, it was an

offense for Korematsu to be found in Military Area No. 1, the territory

wherein he was previously living, except within the bounds of the

established Assembly Center of that area.  Even though the various

orders issued by General DeWitt be deemed a comprehensive code of

instructions, their tenor is clear, and not contradictory.  They put

upon Korematsu the obligation to leave Military Area No. 1, but only by

the method prescribed in the instructions, i.e., by reporting to the

Assembly Center.  I am unable to see how the legal considerations that

led to the decision in Hirabayashi v. United States, 320 U.S. 81, fail

to sustain the military order which made the conduct now in controversy

a crime.  And so I join in the opinion of the Court, but should like to

add a few words of my own.



The provisions of the Constitution which confer on the Congress and the

President powers to enable this country to wage war are as much part of

the Constitution as provisions looking to a nation at peace.  And we

have had recent occasion to quote approvingly the statement of former

Chief Justice Hughes that the war power of the Government is "the power

to wage war successfully."  Hirabayashi v. United States, supra, at 93,

and see Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 426. 

Therefore, the validity of action under the war power must be judged

wholly in the context of war.  That action is not to be stigmatized as

lawless because like action in times of peace would be lawless.  To talk

about a military order that expresses an allowable judgment of war needs

by those entrusted with the duty of conducting war as "an [323 U.S. 225]

unconstitutional order" is to suffuse a part of the Constitution with an

atmosphere of unconstitutionality.  The respective spheres of action of

military authorities and of judges are, of course, very different.  But,

within their sphere, military authorities are no more outside the bounds

of obedience to the Constitution than are judges within theirs.  "The

war power of the United States, like its other powers . . . is subject

to applicable constitutional limitations," Hamilton v. Kentucky

Distilleries Co., 251 U.S. 146, 156.  To recognize that military orders

are "reasonably expedient military precautions" in time of war, and yet

to deny them constitutional legitimacy, makes of the Constitution an

instrument for dialectic subtleties not reasonably to be attributed to

the hard-headed Framers, of whom a majority had had actual participation

in war.  If a military order such as that under review does not

transcend the means appropriate for conducting war, such action by the

military is as constitutional as would be any authorized action by the

Interstate Commerce Commission within the limits of the constitutional

power to regulate commerce.  And, being an exercise of the war power

explicitly granted by the Constitution for safeguarding the national

life by prosecuting war effectively, I find nothing in the Constitution

which denies to Congress the power to enforce such a valid military

order by making its violation an offense triable in the civil courts. 

Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447; 155

U.S. 3, and Monongahela Bridge Co. v. United States, 216 U.S. 177.  To

find that the Constitution does not forbid the military measures now

complained of does not carry with it approval of that which Congress and

the Executive did.  That is their business, not ours. ROBERTS, J.,

dissenting



MR. JUSTICE ROBERTS.



I dissent, because I think the indisputable facts exhibit a clear

violation of Constitutional rights.



This is not a case of keeping people off the streets at night, as was

Hirabayashi v. United States, 320 U.S. 81, [323 U.S. 226] nor a case of

temporary exclusion of a citizen from an area for his own safety or that

of the community, nor a case of offering him an opportunity to go

temporarily out of an area where his presence might cause danger to

himself or to his fellows.  On the contrary, it is the case of

convicting a citizen as a punishment for not submitting to imprisonment

in a concentration camp, based on his ancestry, and solely because of

his ancestry, without evidence or inquiry concerning his loyalty and

good disposition towards the United States.  If this be a correct

statement of the facts disclosed by this record, and facts of which we

take judicial notice, I need hardly labor the conclusion that

Constitutional rights have been violated.



The Government's argument, and the opinion of the court, in my judgment,

erroneously divide that which is single and indivisible, and thus make

the case appear as if the petitioner violated a Military Order,

sanctioned by Act of Congress, which excluded him from his home by

refusing voluntarily to leave, and so knowingly and intentionally

defying the order and the Act of Congress.



The petitioner, a resident of San Leandro, Alameda County, California,

is a native of the United States of Japanese ancestry who, according to

the uncontradicted evidence, is a loyal citizen of the nation.



A chronological recitation of events will make it plain that the

petitioner's supposed offense did not, in truth, consist in his refusal

voluntarily to leave the area which included his home in obedience to

the order excluding him therefrom.  Critical attention must be given to

the dates and sequence of events.



December 8, 1941, the United States declared war on Japan.



February 19, 1942, the President issued Executive Order No. 9066, which,

after stating the reason for issuing the [323 U.S. 227] order as

"protection against espionage and against sabotage to national defense

material, national defense premises, and national defense utilities,"

provided that certain Military Commanders might, in their discretion,

"prescribe military areas" and define their extent, 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 "Military Commander may impose in his discretion."



February 20, 1942, Lieutenant General DeWitt was designated Military

Commander of the Western Defense Command embracing the westernmost

states of the Union -- about one-fourth of the total area of the nation.



March 2, 192, General DeWitt promulgated Public Proclamation No. 1,

which recites that the entire Pacific Coast is "particularly subject to

attack, to attempted invasion . . . , and, in connection therewith, is

subject to espionage and acts of sabotage."  It states that, "as a

matter of military necessity," certain military areas and zones are

established known as Military Areas Nos. 1 and 2.  It adds that "[s]uch

persons or classes of persons as the situation may require" will, by

subsequent orders, "be excluded from all of Military Area No. 1" and

from certain zones in Military Area No. 2.  Subsequent proclamations

were made which, together with Proclamation No. 1, included in such

areas and zones all of California, Washington, Oregon, Idaho, Montana,

Nevada and Utah, and the southern portion of Arizona.  The orders

required that, if any person of Japanese, German or Italian ancestry

residing in Area No. 1 desired to change his habitual residence, he must

execute and deliver to the authorities a Change of Residence Notice.



San Leandro, the city of petitioner's residence, lies in Military Area

No. 1. [323 U.S. 228]



On March 2, 1942, the petitioner, therefore, had notice that, by

Executive Order, the President, to prevent espionage and sabotage, had

authorized the Military to exclude him from certain areas and to prevent

his entering or leaving certain areas without permission.  He was on

notice that his home city had been included, by Military Order, in Area

No. 1, and he was on notice further that, at sometime in the future, the

Military Commander would make an order for the exclusion of certain

persons, not described or classified, from various zones including that,

in which he lived.



March 21, 1942, Congress enacted that anyone who knowingly shall enter,

remain in, leave, or commit any act in any military area or military

zone prescribed . . . by any military commander . . . contrary to the

restrictions applicable to any such area or zone or contrary to the

order of . . . any such military commander shall be guilty of a

misdemeanor.  This is the Act under which the petitioner was charged.



March 24, 1942, General DeWitt instituted the curfew for certain areas

within his command, by an order the validity of which was sustained in

Hirabayashi v. United States, supra.



March 24, 1942, General DeWitt began to issue a series of exclusion

orders relating to specified areas.



March 27, 1942, by Proclamation No. 4, the General recited that it is

necessary, in order to provide for the welfare and to insure the orderly

evacuation and resettlement of Japanese voluntarily migrating from

Military Area No. 1, to restrict and regulate such migration, and

ordered that, as of March 29, 1942, all alien Japanese and persons of

Japanese ancestry who are within the limits of Military Area No. 1, be

and they are hereby [323 U.S. 229] prohibited from leaving that area for

any purpose until and to the extent that a future proclamation or order

of this headquarters shall so permit or direct.



No order had been made excluding the petitioner from the area in which

he lived.  By Proclamation No. 4, he was, after March 29, 1942, confined

to the limits of Area No. 1.  If the Executive Order No. 9066 and the

Act of Congress meant what they said, to leave that area, in the face of

Proclamation No. 4, would be to commit a misdemeanor.



May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34

providing that, after 12 o'clock May 8, 1942, all persons of Japanese

ancestry, both alien and nonalien, were to be excluded from a described

portion of Military Area No. 1, which included the County of Alameda,

California.  The order required a responsible member of each family and

each individual living alone to report, at a time set, at a Civil

Control Station for instructions to go to an Assembly Center, and added

that any person failing to comply with the provisions of the order who

was found in the described area after the date set would be liable to

prosecution under the Act of March 21, 1942, supra.  It is important to

note that the order, by its express terms, had no application to persons

within the bounds "of an established Assembly Center pursuant to

instructions from this Headquarters . . ."  The obvious purpose of the

orders made, taken together, was to drive all citizens of Japanese

ancestry into Assembly Centers within the zones of their residence,

under pain of criminal prosecution. [323 U.S. 230]



The predicament in which the petitioner thus found himself was this:  he

was forbidden, by Military Order, to leave the zone in which he lived;

he was forbidden, by Military Order, after a date fixed, to be found

within that zone unless he were in an Assembly Center located in that

zone.  General DeWitt's report to the Secretary of War concerning the

programme of evacuation and relocation of Japanese makes it entirely

clear, if it were necessary to refer to that document -- and, in the

light of the above recitation, I think it is not, -- that an Assembly

Center was a euphemism for a prison.  No person within such a center was

permitted to leave except by Military Order.



In the dilemma that he dare not remain in his home, or voluntarily leave

the area, without incurring criminal penalties, and that the only way he

could avoid punishment was to go to an Assembly Center and submit

himself to military imprisonment, the petitioner did nothing.



June 12, 1942, an Information was filed in the District Court for

Northern California charging a violation of the Act of March 21, 1942,

in that petitioner had knowingly remained within the area covered by

Exclusion Order No. 34.  A demurrer to the information having been

overruled, the petitioner was tried under a plea of not guilty, and

convicted.  Sentence was suspended, and he was placed on probation for

five years.  We know, however, in the light of the foregoing recitation,

that he was at once taken into military custody and lodged in an

Assembly Center.  We further know that, on March 18, 1942, the President

had promulgated Executive Order No. 9102, establishing the War

Relocation Authority under which so-called Relocation Centers, a

euphemism for concentration camps, were established pursuant to

cooperation between the military authorities of the Western Defense

Command and the Relocation Authority, and that the petitioner has [323

U.S. 231] been confined either in an Assembly Center within the zone in

which he had lived or has been removed to a Relocation Center where, as

the facts disclosed in Ex parte Endo (post, p. 283) demonstrate, he was

illegally held in custody.



The Government has argued this case as if the only order outstanding at

the time the petitioner was arrested and informed against was Exclusion

Order No. 34, ordering him to leave the area in which he resided, which

was the basis of the information against him.  That argument has

evidently been effective.  The opinion refers to the Hirabayashi case,

supra, to show that this court has sustained the validity of a curfew

order in an emergency.  The argument, then, is that exclusion from a

given area of danger, while somewhat more sweeping than a curfew

regulation, is of the same nature -- a temporary expedient made

necessary by a sudden emergency.  This, I think, is a substitution of an

hypothetical case for the case actually before the court.  I might agree

with the court's disposition of the hypothetical case.  The liberty of

every American citizen freely to come and to go must frequently, in the

face of sudden danger, be temporarily limited or suspended.  The civil

authorities must often resort to the expedient of excluding citizens

temporarily from a locality.  The drawing of fire lines in the case of a

conflagration, the removal of persons from the area where a pestilence

has broken out, are familiar examples.  If the exclusion worked by

Exclusion Order No. 34 were of that nature,  the Hirabayashi case would

be authority for sustaining it.  [323 U.S. 232] But the facts above

recited, and those set forth in Ex parte Endo, supra, show that the

exclusion was but a part of an over-all plan for forceable detention. 

This case cannot, therefore, be decided on any such narrow ground as the

possible validity of a Temporary Exclusion Order under which the

residents of an area are given an opportunity to leave and go elsewhere

in their native land outside the boundaries of a military area.  To make

the case turn on any such assumption is to shut our eyes to reality.



As I have said above, the petitioner, prior to his arrest, was faced

with two diametrically contradictory orders given sanction by the Act of

Congress of March 21, 1942.  The earlier of those orders made him a

criminal if he left the zone in which he resided; the later made him a

criminal if he did not leave.



I had supposed that, if a citizen was constrained by two laws, or two

orders having the force of law, and obedience to one would violate the

other, to punish him for violation of either would deny him due process

of law.  And I had supposed that, under these circumstances, a

conviction for violating one of the orders could not stand.



We cannot shut our eyes to the fact that, had the petitioner attempted

to violate Proclamation No. 4 and leave the military area in which he

lived, he would have been arrested and tried and convicted for violation

of Proclamation No. 4.  The two conflicting orders, one which commanded

him to stay and the other which commanded him to go, were nothing but a

cleverly devised trap to accomplish the real purpose of the military

authority, which was to lock him up in a concentration camp.  The only

course by which the petitioner could avoid arrest and prosecution was to

go to that camp according to instructions to be given him when he

reported at a Civil Control Center.  We know that is the fact.  Why

should we set up a figmentary and artificial situation, instead of

addressing ourselves to the actualities of the case? [323 U.S. 233]



These stark realities are met by the suggestion that it is lawful to

compel an American citizen to submit to illegal imprisonment on the

assumption that he might, after going to the Assembly Center, apply for

his discharge by suing out a writ of habeas corpus, as was done in the

Endo case, supra.  The answer, of course, is that, where he was subject

to two conflicting laws, he was not bound, in order to escape violation

of one or the other, to surrender his liberty for any period.  Nor will

it do to say that the detention was a necessary part of the process of

evacuation, and so we are here concerned only with the validity of the

latter.



Again, it is a new doctrine of constitutional law that one indicted for

disobedience to an unconstitutional statute may not defend on the ground

of the invalidity of the statute, but must obey it though he knows it is

no law, and, after he has suffered the disgrace of conviction and lost

his liberty by sentence, then, and not before, seek, from within prison

walls, to test the validity of the law.



Moreover, it is beside the point to rest decision in part on the fact

that the petitioner, for his own reasons, wished to remain in his home. 

If, as is the fact, he was constrained so to do, it is indeed a narrow

application of constitutional rights to ignore the order which

constrained him in order to sustain his conviction for violation of

another contradictory order.



I would reverse the judgment of conviction. MURPHY, J., dissenting



MR. JUSTICE MURPHY, dissenting.



This exclusion of "all persons of Japanese ancestry, both alien and

non-alien," from the Pacific Coast area on a plea of military necessity

in the absence of martial law ought not to be approved.  Such exclusion

goes over "the very brink of constitutional power," and falls into the

ugly abyss of racism.



In dealing with matters relating to the prosecution and progress of a

war, we must accord great respect and consideration [323 U.S. 234] to

the judgments of the military authorities who are on the scene and who

have full knowledge of the military facts.  The scope of their

discretion must, as a matter of necessity and common sense, be wide. 

And their judgments ought not to be overruled lightly by those whose

training and duties ill-equip them to deal intelligently with matters so

vital to the physical security of the nation.



At the same time, however, it is essential that there be definite limits

to military discretion, especially where martial law has not been

declared.  Individuals must not be left impoverished of their

constitutional rights on a plea of military necessity that has neither

substance nor support.  Thus, like other claims conflicting with the

asserted constitutional rights of the individual, the military claim

must subject itself to the judicial process of having its reasonableness

determined and its conflicts with other interests reconciled. What are

the allowable limits of military discretion, and whether or not they

have been overstepped in a particular case, are judicial questions.

Sterling v. Constantin, 287 U.S. 378, 401.



The judicial test of whether the Government, on a plea of military

necessity, can validly deprive an individual of any of his

constitutional rights is whether the deprivation is reasonably related

to a public danger that is so "immediate, imminent, and impending" as

not to admit of delay and not to permit the intervention of ordinary

constitutional processes to alleviate the danger.  United States v.

Russell, 13 Wall. 623, 627-628; Mitchell v. Harmony, 13 How. 115,

134-135; Raymond v. Thomas, 91 U.S. 712, 716.  Civilian Exclusion Order

No. 34, banishing from a prescribed area of the Pacific Coast "all

persons of Japanese ancestry, both alien and non-alien," clearly does

not meet that test.  Being an obvious racial discrimination, the [323

U.S. 235] order deprives all those within its scope of the equal

protection of the laws as guaranteed by the Fifth Amendment.  It further

deprives these individuals of their constitutional rights to live and

work where they will, to establish a home where they choose and to move

about freely.  In excommunicating them without benefit of hearings, this

order also deprives them of all their constitutional rights to

procedural due process.  Yet no reasonable relation to an "immediate,

imminent, and impending" public danger is evident to support this racial

restriction, which is one of the most sweeping and complete deprivations

of constitutional rights in the history of this nation in the absence of

martial law.



It must be conceded that the military and naval situation in the spring

of 1942 was such as to generate a very real fear of invasion of the

Pacific Coast, accompanied by fears of sabotage and espionage in that

area.  The military command was therefore justified in adopting all

reasonable means necessary to combat these dangers.  In adjudging the

military action taken in light of the then apparent dangers, we must not

erect too high or too meticulous standards; it is necessary only that

the action have some reasonable relation to the removal of the dangers

of invasion, sabotage and espionage.  But the exclusion, either

temporarily or permanently, of all persons with Japanese blood in their

veins has no such reasonable relation.  And that relation is lacking

because the exclusion order necessarily must rely for its reasonableness

upon the assumption that all persons of Japanese ancestry may have a

dangerous tendency to commit sabotage and espionage and to aid our

Japanese enemy in other ways.  It is difficult to believe that reason,

logic, or experience could be marshalled in support of such an

assumption.



That this forced exclusion was the result in good measure of this

erroneous assumption of racial guilt, rather than [323 U.S. 236] bona

fide military necessity is evidenced by the Commanding General's Final

Report on the evacuation from the Pacific Coast area.  In it, he refers

to all individuals of Japanese descent as "subversive," as belonging to

"an enemy race" whose "racial strains are undiluted," and as

constituting "over 112,000 potential enemies . . . at large today" along

the Pacific Coast.  In support of this blanket condemnation of all

persons of Japanese descent, however, no reliable evidence is cited to

show that such individuals were generally disloyal, or had generally so

conducted themselves in this area as to constitute a special menace to

defense installations or war industries, or had otherwise, by their

behavior, furnished reasonable ground for their exclusion as a group.



Justification for the exclusion is sought, instead, mainly upon

questionable racial and sociological grounds not [323 U.S. 237]

ordinarily within the realm of expert military judgment, supplemented by

certain semi-military conclusions drawn from an unwarranted use of

circumstantial evidence.  Individuals of Japanese ancestry are condemned

because they are said to be "a large, unassimilated, tightly knit racial

group, bound to an enemy nation by strong ties of race, culture, custom

and religion."  They are claimed to be given to "emperor worshipping

ceremonies," and to "dual citizenship."  Japanese language schools and

allegedly pro-Japanese organizations are cited as evidence of possible

group disloyalty, together with facts as to [323 U.S. 238] certain

persons being educated and residing at length in Japan.  It is intimated

that many of these individuals deliberately resided "adjacent to

strategic points," thus enabling them to carry into execution a

tremendous program of sabotage on a mass scale should any considerable

number of them have been inclined to do so. The need for protective

custody is also asserted.  The report refers, without identity, to

"numerous incidents of violence," as well as to other admittedly

unverified or cumulative incidents.  From this, plus certain other

events not shown to have been connected with the Japanese Americans, it

is concluded that the "situation was fraught with danger to the Japanese

population itself," and that the general public "was ready to take

matters into its own hands."{10}  Finally, it is intimated, though not

directly [323 U.S. 239] charged or proved, that persons of Japanese

ancestry were responsible for three minor isolated shellings and

bombings of the Pacific Coast area,{11} as well as for unidentified

radio transmissions and night signaling.



The main reasons relied upon by those responsible for the forced

evacuation, therefore, do not prove a reasonable relation between the

group characteristics of Japanese Americans and the dangers of invasion,

sabotage and espionage.  The reasons appear, instead, to be largely an

accumulation of much of the misinformation, half-truths and insinuations

that for years have been directed against Japanese Americans by people

with racial and economic prejudices -- the same people who have been

among the foremost advocates of the evacuation.{12}  A military judgment

[323 U.S. 240] based upon such racial and sociological considerations is

not entitled to the great weight ordinarily given the judgments based

upon strictly military considerations.  Especially is this so when every

charge relative to race, religion, culture, geographical location, and

legal and economic status has been substantially discredited by

independent studies made by experts in these matters.{13}



The military necessity which is essential to the validity of the

evacuation order thus resolves itself into a few intimations that

certain individuals actively aided the enemy, from which it is inferred

that the entire group of Japanese Americans could not be trusted to be

or remain loyal to the United States.  No one denies, of course, that

there were some disloyal persons of Japanese descent on the Pacific

Coast who did all in their power to aid their ancestral land.  Similar

disloyal activities have been engaged in by many persons of German,

Italian and even more pioneer stock in our country.  But to infer that

examples of individual disloyalty prove group disloyalty and justify

discriminatory action against the entire group is to deny that, under

our system of law, individual guilt is the sole basis for deprivation of

rights.  Moreover, this inference, which is at the very heart of the

evacuation orders, has been used in support of the abhorrent and

despicable treatment of minority groups by the dictatorial tyrannies

which this nation is now pledged to destroy.  To give constitutional

sanction to that inference in this case, however well intentioned may

have been the military command on the Pacific Coast, is to adopt one of

the cruelest of the rationales used by our enemies to destroy the

dignity of the individual and to encourage and open the door to

discriminatory actions against other minority groups in the passions of

tomorrow. [323 U.S. 241]



No adequate reason is given for the failure to treat these Japanese

Americans on an individual basis by holding investigations and hearings

to separate the loyal from the disloyal, as was done in the case of

persons of German and Italian ancestry.  See House Report No. 2124 (77th

Cong., 2d Sess.) 247-52.  It is asserted merely that the loyalties of

this group "were unknown and time was of the essence."{14}  Yet nearly

four months elapsed after Pearl Harbor before the first exclusion order

was issued; nearly eight months went by until the last order was issued,

and the last of these "subversive" persons was not actually removed

until almost eleven months had elapsed.  Leisure and deliberation seem

to have been more of the essence than speed.  And the fact that

conditions were not such as to warrant a declaration of martial law adds

strength to the belief that the factors of time and military necessity

were not as urgent as they have been represented to be.



Moreover, there was no adequate proof that the Federal Bureau of

Investigation and the military and naval intelligence services did not

have the espionage and sabotage situation well in hand during this long

period.  Nor is there any denial of the fact that not one person of

Japanese ancestry was accused or convicted of espionage or sabotage

after Pearl Harbor while they were still free,{15} a fact which is some

evidence of the loyalty of the vast majority of these individuals and of

the effectiveness of the established methods of combatting these evils. 

It [323 U.S. 242] seems incredible that, under these circumstances, it

would have been impossible to hold loyalty hearings for the mere 112,000

persons involved -- or at least for the 70,000 American citizens --

especially when a large part of this number represented children and

elderly men and women.{16}  Any inconvenience that may have accompanied

an attempt to conform to procedural due process cannot be said to

justify violations of constitutional rights of individuals.



I dissent, therefore, from this legalization of racism.  Racial

discrimination in any form and in any degree has no justifiable part

whatever in our democratic way of life.  It is unattractive in any

setting, but it is utterly revolting among a free people who have

embraced the principles set forth in the Constitution of the United

States.  All residents of this nation are kin in some way by blood or

culture to a foreign land.  Yet they are primarily and necessarily a

part of the new and distinct civilization of the United States.  They

must, accordingly, be treated at all times as the heirs of the American

experiment, and as entitled to all the rights and freedoms guaranteed by

the Constitution. JACKSON, J., dissenting



MR. JUSTICE JACKSON, dissenting.



Korematsu was born on our soil, of parents born in Japan.  The

Constitution makes him a citizen of the United States by nativity, and a

citizen of California by [323 U.S. 243] residence.  No claim is made

that he is not loyal to this country.  There is no suggestion that,

apart from the matter involved here, he is not law-abiding and well

disposed.  Korematsu, however, has been convicted of an act not commonly

a crime.  It consists merely of being present in the state whereof he is

a citizen, near the place where he was born, and where all his life he

has lived.



Even more unusual is the series of military orders which made this

conduct a crime.  They forbid such a one to remain, and they also forbid

him to leave.  They were so drawn that the only way Korematsu could

avoid violation was to give himself up to the military authority.  This

meant submission to custody, examination, and transportation out of the

territory, to be followed by indeterminate confinement in detention

camps.



A citizen's presence in the locality, however, was made a crime only if

his parents were of Japanese birth.  Had Korematsu been one of four --

the others being, say, a German alien enemy, an Italian alien enemy, and

a citizen of American-born ancestors, convicted of treason but out on

parole -- only Korematsu's presence would have violated the order.  The

difference between their innocence and his crime would result, not from

anything he did, said, or thought, different than they, but only in that

he was born of different racial stock.



Now, if any fundamental assumption underlies our system, it is that

guilt is personal and not inheritable.  Even if all of one's antecedents

had been convicted of treason, the Constitution forbids its penalties to

be visited upon him, for it provides that "no attainder of treason shall

work corruption of blood, or forfeiture except during the life of the

person attainted."  But here is an attempt to make an otherwise innocent

act a crime merely because this prisoner is the son of parents as to

whom he had no choice, and belongs to a race from which there is no way

to resign.  If Congress, in peacetime legislation, should [323 U.S. 244]

enact such a criminal law, I should suppose this Court would refuse to

enforce it.



But the "law" which this prisoner is convicted of disregarding is not

found in an act of Congress, but in a military order.  Neither the Act

of Congress nor the Executive Order of the President, nor both together,

would afford a basis for this conviction.  It rests on the orders of

General DeWitt.  And it is said that, if the military commander had

reasonable military grounds for promulgating the orders, they are

constitutional, and become law, and the Court is required to enforce

them.  There are several reasons why I cannot subscribe to this

doctrine.



It would be impracticable and dangerous idealism to expect or insist

that each specific military command in an area of probable operations

will conform to conventional tests of constitutionality.  When an area

is so beset that it must be put under military control at all, the

paramount consideration is that its measures be successful, rather than

legal.  The armed services must protect a society, not merely its

Constitution.  The very essence of the military job is to marshal

physical force, to remove every obstacle to its effectiveness, to give

it every strategic advantage.  Defense measures will not, and often

should not, be held within the limits that bind civil authority in

peace.  No court can require such a commander in such circumstances to

act as a reasonable man; he may be unreasonably cautious and exacting. 

Perhaps he should be.  But a commander, in temporarily focusing the life

of a community on defense, is carrying out a military program; he is not

making law in the sense the courts know the term.  He issues orders, and

they may have a certain authority as military commands, although they

may be very bad as constitutional law.



But if we cannot confine military expedients by the Constitution,

neither would I distort the Constitution to approve all that the

military may deem expedient.  That is [323 U.S. 245] what the Court

appears to be doing, whether consciously or not.  I cannot say, from any

evidence before me, that the orders of General DeWitt were not

reasonably expedient military precautions, nor could I say that they

were.  But even if they were permissible military procedures, I deny

that it follows that they are constitutional.  If, as the Court holds,

it does follow, then we may as well say that any military order will be

constitutional, and have done with it.



The limitation under which courts always will labor in examining the

necessity for a military order are illustrated by this case.  How does

the Court know that these orders have a reasonable basis in necessity? 

No evidence whatever on that subject has been taken by this or any other

court.  There is sharp controversy as to the credibility of the DeWitt

report.  So the Court, having no real evidence before it, has no choice

but to accept General DeWitt's own unsworn, self-serving statement,

untested by any cross-examination, that what he did was reasonable.  And

thus it will always be when courts try to look into the reasonableness

of a military order.



In the very nature of things, military decisions are not susceptible of

intelligent judicial appraisal.  They do not pretend to rest on

evidence, but are made on information that often would not be admissible

and on assumptions that could not be proved.  Information in support of

an order could not be disclosed to courts without danger that it would

reach the enemy.  Neither can courts act on communications made in

confidence.  Hence, courts can never have any real alternative to

accepting the mere declaration of the authority that issued the order

that it was reasonably necessary from a military viewpoint.



Much is said of the danger to liberty from the Army program for

deporting and detaining these citizens of Japanese extraction.  But a

judicial construction of the due process clause that will sustain this

order is a far more [323 U.S. 246] subtle blow to liberty than the

promulgation of the order itself. A military order, however

unconstitutional, is not apt to last longer than the military emergency.

 Even during that period, a succeeding commander may revoke it all.  But

once a judicial opinion rationalizes such an order to show that it

conforms to the Constitution, or rather rationalizes the Constitution to

show that the Constitution sanctions such an order, the Court for all

time has validated the principle of racial discrimination in criminal

procedure and of transplanting American citizens.  The principle then

lies about like a loaded weapon, ready for the hand of any authority

that can bring forward a plausible claim of an urgent need.  Every

repetition imbeds that principle more deeply in our law and thinking and

expands it to new purposes.  All who observe the work of courts are

familiar with what Judge Cardozo described as "the tendency of a

principle to expand itself to the limit of its logic."*  A military

commander may overstep the bounds of constitutionality, and it is an

incident.  But if we review and approve, that passing incident becomes

the doctrine of the Constitution.  There it has a generative power of

its own, and all that it creates will be in its own image.  Nothing

better illustrates this danger than does the Court's opinion in this

case.



It argues that we are bound to uphold the conviction of Korematsu

because we upheld one in Hirabayashi v. United States, 320 U.S. 81, when

we sustained these orders insofar as they applied a curfew requirement

to a citizen of Japanese ancestry.  I think we should learn something

from that experience.



In that case, we were urged to consider only the curfew feature, that

being all that technically was involved, because it was the only count

necessary to sustain Hirabayashi's conviction and sentence.  We yielded,

and the Chief Justice guarded the opinion as carefully as language [323

U.S. 247] will do.  He said: Our investigation here does not go beyond

the inquiry whether, in the light of all the relevant circumstances

preceding and attending their promulgation, the challenged orders and

statute afforded a reasonable basis for the action taken in imposing the

curfew. 320 U.S. at 101. We decide only the issue as we have defined it

-- we decide only that the curfew order, as applied, and at the time it

was applied, was within the boundaries of the war power. 320 U.S. at

102.  And again:  "It is unnecessary to consider whether or to what

extent such findings would support orders differing from the curfew

order."  320 U.S. at 105.  (Italics supplied.)  However, in spite of our

limiting words, we did validate a discrimination on the basis of

ancestry for mild and temporary deprivation of liberty.  Now the

principle of racial discrimination is pushed from support of mild

measures to very harsh ones, and from temporary deprivations to

indeterminate ones.  And the precedent which it is said requires us to

do so is Hirabayashi.  The Court is now saying that, in Hirabayashi, we

did decide the very things we there said we were not deciding.  Because

we said that these citizens could be made to stay in their homes during

the hours of dark, it is said we must require them to leave home

entirely, and if that, we are told they may also be taken into custody

for deportation, and, if that, it is argued, they may also be held for

some undetermined time in detention camps.  How far the principle of

this case would be extended before plausible reasons would play out, I

do not know.



I should hold that a civil court cannot be made to enforce an order

which violates constitutional limitations even if it is a reasonable

exercise of military authority.  The courts can exercise only the

judicial power, can apply only law, and must abide by the Constitution,

or they cease to be civil courts and become instruments of military

policy. [323 U.S. 248]



Of course, the existence of a military power resting on force, so

vagrant, so centralized, so necessarily heedless of the individual, is

an inherent threat to liberty.  But I would not lead people to rely on

this Court for a review that seems to me wholly delusive.  The military

reasonableness of these orders can only be determined by military

superiors.  If the people ever let command of the war power fall into

irresponsible and unscrupulous hands, the courts wield no power equal to

its restraint.  The chief restraint upon those who command the physical

forces of the country, in the future as in the past, must be their

responsibility to the political judgments of their contemporaries and to

the moral judgments of history.



My duties as a justice, as I see them, do not require me to make a

military judgment as to whether General DeWitt's evacuation and

detention program was a reasonable military necessity.  I do not suggest

that the courts should have attempted to interfere with the Army in

carrying out its task.  But I do not think they may be asked to execute

a military expedient that has no place in law under the Constitution.  I

would reverse the judgment and discharge the prisoner. Footnotes BLACK,

J., lead opinion (Footnotes)



1. 140 F.2d 289.



2. Hearings before the Subcommittee on the National War Agencies

Appropriation Bill for 1945, Part II, 608-726; Final Report, Japanese

Evacuation from the West Coast, 1942, 309-327; Hearings before the

Committee on Immigration and Naturalization, House of Representatives,

78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain

nationals of the United States, pp. 37-42, 49-58. ROBERTS, J.,

dissenting (Footnotes)



1. 17 Fed.Reg. 1407.



2. 7 Fed.Reg. 2320



3. 56 Stat. 173.



4. 7 Fed.Reg. 2601.



5. The italics in the quotation are mine.  The use of the word

"voluntarily" exhibits a grim irony probably not lost on petitioner and

others in like case.  Either so or its use was a disingenuous attempt to

camouflage the compulsion which was to be applied.



6. 7 Fed.Reg. 3967.



7. 7 Fed.Reg. 2165.



8. My agreement would depend on the definition and application of the

terms "temporary" and "emergency."  No pronouncement of the commanding

officer can, in my view, preclude judicial inquiry and determination

whether an emergency ever existed and whether, if so, it remained at the

date of the restraint out of which the litigation arose.  Cf. Chastleton

Corp. v. Sinclair, 264 U.S. 543. MURPHY, J., dissenting (Footnotes)



1. Final Report, Japanese Evacuation from the West Coast, 1942, by

Lt.Gen. J. L. DeWitt.  This report is dated June 5, 1943, but was not

made public until January, 1944.



2. Further evidence of the Commanding General's attitude toward

individuals of Japanese ancestry is revealed in his voluntary testimony

on April 13, 1943, in San Francisco before the House Naval Affairs

Subcommittee to Investigate Congested Areas, Part 3, pp. 739 40 (78th

Cong., 1st Sess.):



I don't want any of them [persons of Japanese ancestry] here.  They are

a dangerous element.  There is no way to determine their loyalty.  The

west coast contains too many vital installations essential to the

defense of the country to allow any Japanese on this coast. . . .  The

danger of the Japanese was, and is now -- if they are permitted to come

back -- espionage and sabotage.  It makes no difference whether he is an

American citizen, he is still a Japanese.  American citizenship does not

necessarily determine loyalty. . . .  But we must worry about the

Japanese all the time until he is wiped off the map.  Sabotage and

espionage will make problems as long as he is allowed in this area. . .

.



3. The Final Report, p. 9, casts a cloud of suspicion over the entire

group by saying that, "while it was believed that some were loyal, it

was known that many were not."  (Italics added.)



4. Final Report, p. vii; see also pp. 9, 17.  To the extent that

assimilation is a problem, it is largely the result of certain social

customs and laws of the American general public.  Studies demonstrate

that persons of Japanese descent are readily susceptible to integration

in our society if given the opportunity.  Strong, The Second-Generation

Japanese Problem (1934); Smith, Americans in Process (1937); Mears,

Resident Orientals on the American Pacific Coast (1928); Millis, The

Japanese Problem in the United States (1942).  The failure to accomplish

an ideal status of assimilation, therefore, cannot be charged to the

refusal of these persons to become Americanized, or to their loyalty to

Japan.  And the retention by some persons of certain customs and

religious practices of their ancestors is no criterion of their loyalty

to the United States.



5. Final Report, pp. 10-11.  No sinister correlation between the emperor

worshipping activities and disloyalty to America was shown.



6. Final Report, p. 22.  The charge of "dual citizenship" springs from a

misunderstanding of the simple fact that Japan, in the past, used the

doctrine of jus sanguinis, as she had a right to do under international

law, and claimed as her citizens all persons born of Japanese nationals

wherever located.  Japan has greatly modified this doctrine, however, by

allowing all Japanese born in the United States to renounce any claim of

dual citizenship and by releasing her claim as to all born in the United

States after 1925.  See Freeman, "Genesis, Exodus, and Leviticus: 

Genealogy, Evacuation, and Law," 28 Cornell L.Q. 414, 447-8, and

authorities there cited; McWilliams, Prejudice, 123-4 (1944).



7. Final Report, pp. 12-13.  We have had various foreign language

schools in this country for generations without considering their

existence as ground for racial discrimination.  No subversive activities

or teachings have been shown in connection with the Japanese schools. 

McWilliams, Prejudice, 121-3 (1944).



8. Final Report, pp. 13-15.  Such persons constitute a very small part

of the entire group, and most of them belong to the Kibei movement --

the actions and membership of which are well known to our Government

agents.



9. Final Report, p. 10; see also pp. vii, 9, 15-17.  This insinuation,

based purely upon speculation and circumstantial evidence, completely

overlooks the fact that the main geographic pattern of Japanese

population was fixed many years ago with reference to economic, social

and soil conditions.  Limited occupational outlets and social pressures

encouraged their concentration near their initial points of entry on the

Pacific Coast.  That these points may now be near certain strategic

military and industrial areas is no proof of a diabolical purpose on the

part of Japanese Americans.  See McWilliams, Prejudice, 119-121 (1944);

House Report No. 2124 (77th Cong., 2d Sess.), 59-93.



10. Final Report, pp. 8-9.  This dangerous doctrine of protective

custody, as proved by recent European history, should have absolutely no

standing as an excuse for the deprivation of the rights of minority

groups.  See House Report No.1911 (77th Cong., 2d Sess.) 1-2.  Cf. House

Report No. 2124 (77th Cong., & Sess.) 145-7.  In this instance,

moreover, there are only two minor instances of violence on record

involving persons of Japanese ancestry.  McWilliams, What About Our

Japanese-Americans?  Public Affairs Pamphlets, No. 91, p. 8 (1944).



11. Final Report, p. 18.  One of these incidents (the reputed dropping

of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942 -- a

considerable time after the Japanese Americans had been evacuated from

their homes and placed in Assembly Centers.  See New York Times, Sept.

15, 1942, p. 1, col. 3.



12. Special interest groups were extremely active in applying pressure

for mass evacuation.  See House Report No. 2124 (77th Cong., 2d Sess.)

154-6; McWilliams, Prejudice, 128 (1944).  Mr. Austin E. Anson, managing

secretary of the Salinas Vegetable Grower-Shipper Association, has

frankly admitted that We're charged with wanting to get rid of the Japs

for selfish reasons. . . .  We do.  It's a question of whether the white

man lives on the Pacific Coast or the brown men.  They came into this

valley to work, and they stayed to take over. . . .  They undersell the

white man in the markets. . . .  They work their women and children

while the white farmer has to pay wages for his help.  If all the Japs

were removed tomorrow, we'd never miss them in two weeks, because the

white farmers can take over and produce everything the Jap grows.  And

we don't want them back when the war ends, either. Quoted by Taylor in

his article "The People Nobody Wants," 214 Sat.Eve.Post 24, 66 (May 9,

1942).



13. See notes 4-12, supra.



14. Final Report, p. vii; see also p. 18.



15. The Final Report, p. 34, makes the amazing statement that, as of

February 14, 1942, "The very fact that no sabotage has taken place to

date is a disturbing and confirming indication that such action will be

taken."  Apparently, in the minds of the military leaders, there was no

way that the Japanese Americans could escape the suspicion of sabotage.



16. During a period of six months, the 112 alien tribunals or hearing

boards set up by the British Government shortly after the outbreak of

the present war summoned and examined approximately 74,000 German and

Austrian aliens.  These tribunals determined whether each individual

enemy alien was a real enemy of the Allies or only a "friendly enemy." 

About 64,000 were freed from internment and from any special

restrictions, and only 2,000 were interned.  Kempner, "The Enemy Alien

Problem in the Present War," 34 Amer.Journ. of Int.Law 443, 414-416;

House Report No. 2124 (77th Cong., 2d Sess.), 280-281. JACKSON, J.,

dissenting (Footnotes)



* Nature of the Judicial Process, p. 51.

