vol. 8, no. 8

AMERICAN CIVIL LIBERTIES UNION-NEWS

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“Eternal is the price of liberty.”

Vol. VIII SAN FRANCISCO, CALIFORNIA, AUGUST, 1943 No. 8

THE CASE OF A. C. WAMSER

Military Reverses Its Own kxclusion Order After Hearing A. C. Wamser of South Naknek, Alaska, last month was informed by the Fourth Army Command in San Francisco that he may return to Alaska. Wamser, a naturalized citizen, had been excluded on orders of Major General S. B. Buckner, Jr., “by reason of information at hand which shows you to be unfriendly to the government of the United States and friendly to the enemies of the United States.’”? He had been accused of no criminal offense. He was simply required to depart ‘on or before July 15, 1942,” and not to return “unless authorized so to do.”

Excluded Without a Hearing

No hearing of any kind preceded the exclusion order, not even the star chamber type of proceeding under which the mili tary has excluded a couple of hundred citizens from the Pacific and Atlantic coasts. All that Wamser knew about the matter was contained in the typewritten notice served on him by a military officer a couple of days before he was required to leave Alaska telling him the Army had information indicating he was disloyal. v Not only did the exclusion order give no specific basis for the action, but Wamser was never informed by anyone why he was regarded as “‘friendly to the enemies of the United States.”” Wamser insisted the charges were utterly false; that he was loyal in every way, and that he was merely the victim of the machinations of the local managers of the Alaska Packers Association. Finally, at his request, the Fourth Army Command granted him a hearing before a star chamber military board in Seattle on May 5, and a couple of months later Wamser was informed he could return to Alaska.

“Examiner” Referred Case

The case came to the attention of the Northern California branch of the A.C.L.U: in a singular manner last December. Wamser, without avail, had asked various agencies to help him. Finally, he told his story to the San Francisco Examiner and someone at that newspaper sent him to the A.C.L.U.

Anthony J. Dimond, delegate from Alaska in the Congress of the United | States, in answer to the Union’s inquiries, stated, “I know Mr. Wamser quite well, although I have not seen him for many years. It is amazing to learn that he has been excluded from Alaska. ... While my relations with Mr. Wamser were almost entirely concerned with labor union matters, no suggestion was ever made to me by anyone that he was not completely loyal to the United States.”

Because Mr. Wamser’s rights as a citizen had been totally ignored, the local branch of the Union urged the War Department to review the case, but ultimately the request for relief was turned down. It was then that Mr. Wamser petitioned for a hearing by the Army, which finally led to the decision to allow his return to Alaska.

Illuminating Background

The background of the case is especially iluminating. It seems Wamser went to Alaska from San Francisco in 1921, foilowing the Seamen’s strike in which he had been chairman of the San Francisco strike committee. As a result of his active leadership in the strike, he could no longer get a job on the Pacific Coast, so he went to Alaska.

In South Naknek, Alaska, in 1934, he . organized the resident fishermen and thereby incurred the displeasure of the powerful Alaska Packers Association. The resulting conflict was sharpened by Wamser’s ownership, since 1936, of a general store, which competed successfully with a store operated by the Alaska Packers Association. The Association’s managers, according to Wamser, in order to prevent merchandize from reaching his store, even (Continued on Page 3, Col. 1)

ARIZONA COURT VOIDS | ANTI-JAPANESE LAW

A recent state law regulating business with “restricted” persons aimed at Japanese Americans has been declared unconstitutional by the Arizona Superior Court. In voiding the law, the court pointed out that its loose wording, aimed at freezing all persons of Japanese ancestry from business in Arizona, could be interpreted to cover men in the armed forces, since their movements are also “‘restricted.”’ The court pointed out that the law was equally applicable to Chinese, who are also not eligible to citizenship. :

The Superior Court decision came as a result of a test case made by Tsutomo Ikeda of Mesa, Arizona, on the ground that the law prevented him from. buying seed and fertilizer.

Signed by Governor Sidney P. Osborn of Arizona on March 28, 1943, the law required public notice and a report to the secretary of state of any commercial transaction undertaken by anyone with a “‘person whose movements are restricted by operation of law or by an executive or other order authorized by law” or with a person “who is not eligible to citizenship.”

The first trial on the Pacific Coast involving the constitutionality of individual military exclusion orders, directing the exclusion from the western military zone of American citizens, was held recently before Judge Harry A. Hollzer at Los Angeles.

The test case was brought by Homer G. Wilcox, ““Mankind United’’ County Super- intendent at San Diego, who challenged the legality of an exclusion order issued by Lieut. Gen. J. L. DeWitt.

Wilcox filed suit in the Federal Court for an injunction restraining the enforcement of the exclusion order. In June Judge Hollzer reviewed the government’s motion to dismiss the case, and ordered a complete hearing.

At the trial, held early in July, the American Civil Liberties Union, through its counsel, A. L. Wirin, urged that the exclusion order against Wilcox was unconstitutional on the ground that the courts are open, hence there is no need for military orders affecting a citizen’s right to remain on the Pacific Coast. The Union counsel argued further the military exclusion orders violated “due process of law” because they were issued without giving a defendant a fair and full hearing as required by the Federal Constitution.

Evidence at the trial revealed that the military board which heard Wilcox unanimously recommended against his exclusion. The board concluded, “while a majority of the board do not sympathize with his manner of earning a living, and while it is suspicious of his activities, and feels that he may have transgressed against the law in his preaching, nurturing and fostering of the religious organization known as Mankind United, nevertheless, this does not render him potentially dangerous to the military efforts of*the United States, and he .. . should not be excluded.” But Gen. DeWitt, acting on the advice of a former U.S. attorney in charge of prosecuting Wilcox and other ‘Mankind United” leaders in the federal courts for sedition, issued the exclusion order.

MINORU YASUI RESENTENCED AND RELEASED FROM JAIL :

Minoru Yasui, who brought an unsuccegsful suit to test the Military’s right to single out citizens of Japanese ancestry for the imposition of curfew regulations, was re- sentenced last month by Federal Judge Fee, at the suggestion of the United States Supreme Court.

Originally, Yasui was sentenced to one year in jail and $5000 fine. The sentence was changed to 8 months and 10 days in jail, thus allowing Yasui to be released on July 29.

We are reprinting herewith the essential portions of the opinions filed by the United States Supreme Court in the important case of Hirabayashi vs. United States, upholding the curfew imposed by the Military on citizens of Japanese ancestry. The decision was handed down June 21, 1943. Footnotes and citations of cases have been omitted. We call attention particuarly to the concurring opinion of Justice Murphy, which appears in full.

MR. CHIEF JUSTICE STONE: The war power of the national government is “the power to wage war successfully.” 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 protec tion 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. 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 in the selection of the means for resisting it. 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 warmaking, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs. ...

| DEFENSE MEASURES

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 efforts and which might reasonably be ex, pected to aid a threatened enemy invasion. The alter- native which appellant insists must be accepted is for the military authorities te 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 No. 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 onefourth 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.

DANGER OF SABOTAGE AND ESPIONAGE —

In the critical days of March, 1942, the danger to our war production by sabotage and espionage in this area seems obvious. The German invasion of the Western European countries had given ample warning to the world of the menace of the “fifth column.” Espionage by persons in sympathy with the Japanese Government had been found to have been particularly effective in the surprise attack on Pearl Harbor. At a time of threatened Japanese attack upon this country, the nature of our inhabitants’ attachment to the Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent in the United States, citizens and » non-citizens, approximately 112,000 resided in California, Oregon and Washington at the time of the adoption of the military regulations. Of these approximately two-third are citizens because born in the United States. Not only did the great majority of such persons reside within the Pacific Coast states but they were concentrated in.or near three of the large cities, Seattie, Portland and Los Angeles, call in Military Area No. 7.

There is support for the view that social, economic -and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population. In addition, large numbers of children of Japanese parentage are sent to Japanese language schools outside the regular hours of public schools in the locality. Some of these schools are generally believed to be sources of Japanese netionalistic propaganda, cultivating ‘allegiance to Japan. Considerable numbers, estimated to be approximately 10,000, of American-born children of Japanese parentage have been sent to Japan for all or a part of their education.

DUAL CITIZENSHIP

ce “Congress and the Executive, including the military commander, could have attributed special significance, in its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of dual citizenship. Children born in the United States of Japanese alien parents, and especially those children born before December 1, 1924, are under many circumstances deemed, by Japanese law, to be citizens of Japan. No official census of those whom Japan regards as having thus retained Japanese citizenship is available, but there is ground for the belief that the number is large.

The large number of resident alien Japanese, approximately one-third of all Japanese inhabitants of the country, are of mature years and occupy positions of influence in the Japanese communities. The association of influential Japanese residents with Japanese Consulates has been deemed a ready means for the dissemination of propaganda and for the maintenance of the influence of the Japanese Government with the Japanese population in this’ country.

As a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in the Pacific Coast area, there has been relatively little social intercourse between them and the white population. The restrictions, both practical. and legal, atfecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan. and its institutions.

MILITARY HAD GROUNDS FOR ACTION

Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions. These are only some of the many considerations which those charged with the responsibility for the national defense could take into account in determining the nature and extent of the danger of espionage and sabotage, in the event of invasion or: air raid attack. The extent of that danger could be definitely known only after the event and after it was too iate to meet it. Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, 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...

RACIAL DISCRIMINATION EXCUSED

Distinctions between citizens solely -because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.

that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in’ most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures Tor our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. “We must never forget, that it is a constitution we are expounding,” “a constitution intended to endure for ages to come, and, consequently, to: be adapted to the various crises of human affairs.” The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and cir- cumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.

Here the aim of Congress and the Executive was the protection against sabotage of war materials and utilities in areas thought to be in danger of Japanese invasion and air attack. We have stated in detail facts and circumstances with respect to the American citizens of Japanese ancestry residing on the Pacific Coast which support the judgment of the war-waging branches of the Government that some restrictive measure was urgent. We cannot say that these facts and circumstances, considered in the particular war setting, could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States. The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associtions with Japan.

THE ISSUE DECIDED BY THE COURT

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. We cannot close our eyes to the fact, We may assume that these considerations ’ would be controlling here were it not for the fact demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry. Nor can we deny that Congress, and the military authorities acting with its authorization, have constitutional power to appraise the danger in the light of facts of public notoriety. 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. In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national — defense afforded a rational basis for the decision which they made. Whether we would have made it is irrelevant. ...

MR. JUSTICE DOUGLAS, CONCURRING: Since we cannot override the military judgment which lay: behind these orders, it seems to me necessary to concede that the army had the power to deal temporarily with these people on 2 group basis. Petitioner therefore was not justified in disobeying the orders.

But | think it important to emphasize that we are dealing here with a problem of loyalty not assimilation. Loyalty is a matter of mind and of heart not of race. That indeed is the history of America. Moreover, guilt is personal under our constitutional system. Detention for reasonable cause is one thing. . Detention on account of ancestry is another.

In this case the petitioner tendered by a plea in abatement the question of his loyalty to the United © States. | think that plea was properly stricken; military measures of defense might be paralyzed if it were necessary to try out that issue primarily. But a denial of that opportunity in this case does not. necessary mean that petitioner could not have had a hearing on that issue in some appropriate proceeding. Obedience to the military order is one thing.

“Whether an individual member of a group must be atforded at some stage an opportunity to show that, being loyal, he should be reclassified is a wholly different question.

There are other instances in the law where one must obey an. order before he can attack as erroneous the classification in which he has been placed. Thus it is commonly held that one who is a conscientious objector has no privilege to defy the Selective Service Act and to refuse or fail to be inducted. He must submit to the law. But that line of authority holds that after induction he may obtain through habeas corpus a hearing on the legality of his, classification by the draft board. Whether in the present situation that remedy would be available is one of the large and important issues reserved by the present decision. It has been suggested that an administrative procedure has been established to relieve against unwarranted applications of these orders. Whether in that event the administrative remedy would be the only one available or would have to be first exhausted is also reserved. The scope of any relief which might be afforded—whether :the liberties of an applicant could be restored outside the areas in question—is likewise a distinct issue. But if it were plain that no machinery was avail- able whereby the individual could demonstrate his loyaity as a citizen in order to be reclassified, questions of a more serious character would be presented. The United States, however, takes no such position. We need go no further here than to deny the individual the right to defy the law. It is sufficient to say that he cannot test in that way the validity of the orders as applied to him.

MR. JUSTICE MURPHY, CONCURRING: It is not to be doubted that the action taken by the military commander in pursuance of the authority conferred upon him was taken in complete good faith and in the firm conviction that it was required by considerations of public safety and military security. Neither is it doubted that the Congress and the Executive working together may generally employ such measures as are necessary and appropriate to provide for the common defense and to wage war “with all the force necessary to make it effective.” This includes authority to exercise measures of con- trol over persons and property which would. not in all cases be permissible in normal times.

It does not follow, however, that the broad guaranties of the Bill of Rights and other provisions of the. Constitution protecting essential liberties are suspended by the mere existence of a state of war. It has been frequently stated and recognized py this Court that the war power, like the other great substantive powers of government, is subject to the limitations of the Constitution. We give great deference’ to the judgment of the Congress and of the military authorities as to what is necessary: in the effective prosecution of the war, but we can never forget that there are constitutional boundaries which it is our duty to uphold. It would not be supposed, for instance, that public elections couid be suspended or that the prerogatives of the courts could be set aside, or that persons not charged with offenses against the law of war could be deprived of due process of law and the benefits of trial by jury, in the absence of a valid declaration of martial law.

Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war. ‘We! cannot close our eyes to the fact that for centuries the Old World has been torn by racial and religious conflicts and has suffered the worst kind of anguish because of in- equality of treatment for different groups. There (Continued on Page 4, Col. 2)

THE CASE OF | A. C. WAMSER |

(Continued from Page 1, Col. 2)

went to the extent of barricading a road as well as refusing him access to a public wharf.

First Held Ag Enemy Alien

About ten days after the war broke out, Wamser was seized by the Army and held as an enemy alien for a month, despite the . fact that he is.a naturalized citizen. His experiences on that occasion are almost fantastic. He was finally turned loose with- out hearing or explanation, except the admonition that if he opened his mouth about anything he would land in the penitentiary.

The feud with the Alaska Packers’ agents continued after this episode with more vigor than before. Wamser claims he was told repeatedly that he would be driven out of Alaska, and he feels that the Military’s action resulted directly from this enmity. Indeed, at the military board hearing, according to Wamser, the line of questioning revealed that the employees of the company falsely reported him as having made pro-Nazi statements at various times.

Wameer is married and has two sons, one 17 and the other 7 years of age. He owned -a home in Alaska, a fishing boat and the store which carried a stock of between $85,000 and $40,000. Under the circumstances, he has suffered irreparable injury to his business and to his own personal fortune.

National Board Disagrees |

The Wamser case is one that has led to the present differences between the national office of the Union and the local branch. While the local committee voted to intervene, the national board insisted .that the matter came within the terms of the Resolution of October 19, and, consequently, that the branch could not proceed until the case had been approved by the ' Board. After considering the issue for -almost five months, the national board finally pigeon-holed the case by deciding it had insufficient information on which to base intervention. The lack of information was patently not on the denial of civil liberties, which was pretty clear, but on the question which the national board raised as to whether Wamser. had pro-Axis connections. If the Union defends the civil liberties of all without distinction, it is difficult to understand how the national board’s question is relevant.

MASSACHUSETTS CIVIL LIBERTIES UNION DEFENDS SOCIALIST Cc. O.

A federal court in Massachusetts has sentenced Charles Raven, student at the Boston University music school, to three years in a federal penitentiary for failure to report for induction after declaring himself a conscientious objector. The Ameri— can Civil Liberties Union is appealing the — case.

A Socialist and a member of Free India Now, Raven filed papers as a conscientious objector. He was denied 4-E classification on the ground that his pacifism was not the result of his religious training and belief. When he was arraigned for failure to re- port for induction, Alfred Albert, Civil Lib| erties Union attorney in Boston, petitioned for a writ of habeas corpus on his behalf.

The court dismissed the petition without a hearing on its merits. It ruled that one who is. confined under an indictment cannot bring a writ of habeas corpus to test the legality of his imprisonment, since Raven was imprisoned by the order of the court. Appeal on this ruling is now pending.

Meantime Attorney Albert moved to have the trial under the indictment continued until the appeal on the writ of habeas corpus was finally determined. In this he was unsuccessful. Raven was tried, convicted and sentenced to three years.

Civil liberties

Racial, industrial and other ‘‘normal conflicts of our democracy” continue sharply in wartime, but America in World War II is almost wholly free of those violations of civil rights which marked World War I, the national office of the American Civil Liberties Union states in its annual report issued last month under the title, “Freedom In Wartime.”’

Contrasting this war with the last one, the report emphasizes that “our democracy can fight even the greatest of all wars and still maintain the essentials of liberty.”

Reviewing the year from June 1942 to June 1943, the report shows that more civil rights issues and cases have arisen from the “normal conflicts’ than from war pressures, though the war has accentuated some.

The record of anti-labor bills, the report says, was greater than in any recent legis- lative year. The past year was marked by an “incessant drive” to impose by law re- strictions on the right to strike and on trade union activities.

The Government, the ACLU reports, has not in this war resorted to prosecution or censorship on any appreciable scale. A check-up in 19438 of 112 American Civil Liberties Union correspondents in 41 states showed an almost complete lack of repres‘give tendencies, and a surprising freedom of debate and criticism of war measures. —

Worst Single Invasion of Liberties

Reviewing the exceptions to this encouraging war record, the ACLU selects as the “worst single invasion of citizens’ liberties under war pressures” the wholesale evac- uation from the Pacific Coast of over 70,000 Americans of Japanese ancestry, and their subsequent confinement i in “what are virtually concentration camps.’ Another major violation of civil rights,

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Civil Liberties Maintained in Wartime, A. C. L. U. Reports

the report says, has been the removal by the military of individual. citizens from zones where their presence is regarded as dangerous, “an unprecedented power exercised by star-chamber proceedings.”

Among issues arising from “normal conflict,” the race situation holds first place, the ‘ACLU reports. Changed relationships 'and war tensions have brought widely scattered outbreaks of mob violence against Negroes and Mexicans, unprecedented in severity.

On the other hand, the conduct of the government in this war, according to the ACLU, “has tended to allay fear and create the impression that any movements obstructive of the war are well in hand.’

, More C. O.’s In Prison

In principle, conscientious objectors are treated much better today than in 1917, the report says, but more than three times as many have been imprisoned. This is largely due to a “narrow interpretation of ‘religious training and belief’ and reluctance to parole men to useful occupations.”

The ACLU reports that the record of wartime control of press and radio under voluntary codes has been excellent with three exceptions: restraints on the press at the Bermuda and Hot Springs conferences and censorship.of cables by United Nations correspondents, especially those containing news of race relations in this country.

In conclusion, the ACLU report warns that the present encouraging state of civil liberties must not lead to complacency, since “dangers remain great.’”’ The report | points out that undue prolongation of the war, growth of reaction in other fields, a sudden change in public temper might easily reverse the favorable record of civil rights.

JAPANESE DETENTION TEST CASE DISMISSED BY JUDGE ROCHE

Federal Judge Michael J. Roche of San Francisco last month dismissed the petition for a writ of habeas corpus filed by Mitsuye Endo, who is being held at the Tule Lake Relocation Center for Pacific Coast Japanese. Miss Endo’s suit challenges the right of the government to detain citizens of the United States without trial by jury, and the other requirements of due process of law.

Judge Roche wrote no opinion. He signed merely a brief order declaring: 1, that Miss Endo was not entitled to the writ; and, 2, that she had not sought to secure her release under War Relocation Authority regulations. Miss Endo’s counsel is planning an appeal to the Circuit Court of Appeals.

No Offense In Distributing “Isolationist” Literature

In San Francisco on June 29, U. S. District Judge St. Sure dismissed a criminal. prosecution against one Henry Louis Klute, who was charged with failing to register with the Secretary of State as the agent of the German government. The indictment alleged he had distributed before our entry into the war, literature published by and at the expense of the German government.

The court found that the evidence showed Klute had distributed the literature , “of his own volition,” and consequently he had exercised privileges accorded him by the Bill of Rights. Said the court, ‘‘There was nothing secret in what the defendant did. The literature he distributed was plentiful here just prior to our entry into the war. It was of the type used and distributed by numerous prominent American citizens, known as isolationists, in. jan endeavor to keep America out of war.’

Dies Committee Halts Japanese-American Probe

Further investigation of the War Relocation Authority and its relations with the Japanese-American Citizens League has been called off by Rep. John M. Costello, California Democrat and chairman of a Dies subcommittee. The action was taken after a conference with War and Justice Department officials.

Recently forty-two leading liberals under the auspices of the American Civil Liber- ties Union, urged President Roosevelt to condemn Dies Committee activities for the continued detention in relocation camps of Japanese-Americans evacuated from the © western military zone. These activities, they said, are designed to create a wide- spread belief that most Japanese-Americans are disloyal.

On July 3, the Dies sub-committee headed by Congressman Costello opened its hearings in Washington. These were intended to substantiate Dies Committee charges of mass disloyalty among Japanese-Americans and domination of the War Relocation Authority by the JapaneseAmerican Citizens League. —

The hearings did not fulfill Dies Committee expectations. Dies’ representatives failed to produce their promised list of “10,000 Japanese agents” trained in an al- leged Tokyo sabotage school. They did not prove their charge that the War Relocation Authority is releasing “known spies and saboteurs’ from the Centers.

The hearings concluded with sharp attacks against the Dies Committee smear tactics by Dillon 8. Myer, War Relocation ‘Authority Director. He charged that the Dies Committee had taken no steps to ascertain the truth of its wild accusations before making them public, and ignored repeated offers by the War Relocation Authority to aid it in establishing the facts.

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” American Civil Liberties Union-News Published monthly at 216 Pine Street, San Fran- cisco, 4, Calif., by the Northern California Branch of The American Civil Liberties Union. Phone: EXbrook 1816 ERNEST BESIG . Editor Entered as second-class matter, July 31, 1941, at the Post Office at San Francisco, California, under the Act of March 38, 1879. Subscription Rates—Seventy-five Cents a Year. Ten Cents per Copy.

OPEN FORUM

Civil Liberties In War Time

Editor: Please consider me as a Ssupporter in the stand you have taken against relaxation of our efforts for securing civil liberties in war time. It is not enough that someone shall have found grounds for belief that the accused have lent aid or comfort to the enemy. We should lend assistance so that the accused may get their day in court and so that, if possible, an unbiased decision shall be formed as to whether they have lent aid and comfort to the acy

A Pat On the Back

..Editor: We have just read the Annual Report and the July issue of the “NEWS,” and want to tell you how pleased we are with the Union’s work—we think we are getting our full money’s worth for every dollar we contribute, and we are amazed that you are able to accomplish so much with such a small budget.

First, we want to commend you for the dignity and good taste of your Report and of the “NEWS.” There is nothing boastful or arrogant in your recital of the triumphs, nor is there anything bitter or vindictive in your recount of defeats. The style is im- personal, scholarly, reportorial.

‘Second, we are gratified that the Supreme Court has ‘‘seen the light” in the Flag Salute case. It is comforting to have proved again the epigram Ahat “Truth, crushed to earth, shall rise again...”

While we are, of course, deeply disappointed that the Supreme Court took a “racist” viewpoint on the Japanese evacuation case, we are confident.that in the end, if the ACLU and kindred organizations do not give ground, there will be another reversal. When the Chief Justice talked about “ethnic affiliations being a source of danger, he was transplanting to our shores a foreign doctrine—that an American’s ancestry is ground for discrimination. We do not think that such a philosophy will find permanent root in this country.

And because we feel so deeply on the Japanese question—that no minority should be persecuted in America—we commend the Northern California Branch for so stoutly insisting that the issue be raised to the highest court of the land. It must be raised again, and as often as possible, until the Court re-affirms the traditional American doctrine of equality under the law. Lincoln refused to accept the Supreme Court’s decision in the Dred Scott case as the final word on slavery; we cannot permit the recent opinion to stand, but must exert every lawful proper effort to secure a reversal.

SUPREME COURT AGREES TO HEAR C. O. APPEAL

The U. S. Supreme Court on June 21 agreed to hear in the fall the appeal of a Jehovah’s Witness convicted for refusing induction in the army on the ground that he had been erroneously denied a classification as a minister by his draft board. The case raises the same issue on which the Court recently declined to pass in the case of Whitney Bowles, and should settle the question whether draft board errors are subject to judicial review in a criminal prosecution.

‘Court Upholds Curfew Imposed On Citizens Of Japanese Ancestry

(Continued from Page 2, Col. 3)

was one law for one and a different law for another. | Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just and equal laws. To say that any group cannot be assimilated is to admit that the great American experiment has failed, that our way of life has failed when confronted with the normal attachment of certain groups to the lands of their forefathers. As a nation we embrace many groups, some of them among the oldest settlements in our midst, which have isolated themselves for religious and cultural reasons.

SETS PRECEDENT ON RACE DISCRIMINATION

Today is the first time, so far as | am aware, that we have sustained a substantial restriction of the personal liberty of titizens of the United States based upon the accident of race or ancestry. Under ‘the curfew order here challenged no less than 70,000 American citizens have been placed under a special ban and deprived of their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The result is the creation in this country of two classes of citizens for the purpose of a critical and perilous hour—to sanction discrimination between groups of United States citizens on the basis of ancestry. In my opinion this goes to the very brink of constitutional power.

Except under conditions of great emergency a regulation of this kind applicable solely to citizens of a particular racial extraction would not be regarded as in accord with the requirement of due process of law contained in the Fifth Amendment. We have consistently held that attempts to apply regulatory action to particular groups solely on the basis of racial distinction or classification is not in accordance with due process of law as prescribed by the Fifth and Fourteenth Amendments. It is true that the Fifth Amendment, unlike the Fourteenth, contains no guarantee of equal protection of the laws. It is also true that even the guaranty of equal protection of the laws allows a measure of reasonable classification. It by no means follows, however, that there may not be discrimination of such an injurious character in the application of laws as to amount to a denial of due process of law as that term is used in the Fifth Amendment. I think that point is dangerously approached when we have one law for the majority of our citizens and another for those of a particular racial heritage.

MILITARY NECESSITY EXCUSES DISCRIMINATION

In view, however, of the critical military situation which prevailed on the Pacific Coast area in the spring of 1942, and the urgent necessity of taking prompt and effective action to secure defense installations and military operations against the risk of sabotage and espionage, the military authorities should not be required to conform to standards of regulatory action appropriate to normal times. Because of the damage wrought by the Japanese at Pearl Harbor and the availability of new weapons and new techniques with greater capacity for speed and deception in offensive operations, the immediate possibility of an attempt at invasion somewhere along the Pacific Coast had to be reckoned with. However desirable such a procedure might have been, the military authorities could have reasonably concluded at the time that determination as to loyalty and dependability of individual members. of the large and widely scattered group of persons of Japanese extraction on the West Coast could not be made without delay that might have had tragic consequences. Modern war does not always wait for the observance of procedural requirements that are considered essential and appropriate under normal conditions. Accordingly | think that the military men, confronted with the peril of imminent enemy attack and acting under the authority conferred by the Congress, made an allowable judgment at the time the curfew restriction was imposed. Whether such a restriction is valid today is another matter.

LIMITS TO MILITARY NECESSITY

In voting for affirmance of the judgment I do not wish to be understood as intimating that the military authorities in time of war are subject to no restraints whatsoever, or that they are free to impose any restrictions they may choose on the rights and liberties of individual citizens or groups of citizens in those places which may be designated as “military areas.” While this Court sits, it has the inescapable duty of seeing that the mandates of the Constitution are obeyed. That duty exists in time of war as well as in time of peace, and in its performance we must not forget that few indeed have been the invasions upon essential liberties which have not been accompanied by pleas of urgent necessity advanced in good faith by responsible men.

Nor do I mean to intimate that citizens of a particular racial group whose freedom may be curtailed within an area threatened with attack should be generally prevented from leaving the area and going at large in other areas that are not in danger of attack and where special precautions are not needed. Their status as citizens, though subject to requirements of national security and military necessity, should at all times be accorded the fullest consideration and respect. When the danger is past, the restrictions imposed on them should be promptly removed and their freedom of action fully restored.

MR. JUSTICE RUTLEDGE, CONCURRING: concur in the Court’s opinion, except for the sugges- tion, if that is intended, as to which I make no assertion, that the courts have no power to review any action a military officer may “in his discretion’ find it necessary to take with respect to civilian citizens in military areas or zones, once it is found that an emergency has created the conditions requiring or justifying the creation of the area or zone and the institution of some degree of military control short of suspending habeas corpus. Given the generating conditions for exercise of military authority and recognizing the wide latitude for particular applica© tions that ordinarily creates, | do not think it is necessary in this case to decide that there is no action a person in the position of General DeWitt here may take, and which he may regard as necessary to the region’s or the country’s safety, which will call judicial power into play. The officer of course must have wide discretion and room for its operation. But it does not follow there may not be bounds beyond which he cannot go and, if he oversteps them, that the courts may not have power to protect the civilian citizens. But in this case that question need not be faced and | merely add my reservation without indication of opinion concerning it.

Union Deplores Race Basis of Supreme | Court Decision

The Civil Liberties Union, after examining the Supreme Court decision of June 21 in the cases of Japanese Americans put under military restrictions in the Pacific Coast zone, has made public the following comment:

The Union deplores the fact that the Court, for the first time in American history, has justified discrimination against American citizens on the ground of race and ancestry. Although it may seem reasonable to single out persons of Japanese ancestry because of ‘their ethnic affiliations with the enemy” as the Court puts it, it is dangerous doctrine because in other circumstances a similar justification could be urged for discrimination against other groups both in time of war and peace. The fear that the decision might be used in other circumstances it is hoped is answered by Justice Stone’s statement that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”

The unanimous decision of the Court by Chief Justice Stone with three separate concurrences, is confined to the curfew regulations issued by the military. But the basis of the opinion resting upon wartime military necessity in a zone threatened by sabotage and invasion indicates that the Court will also uphold the wholesale evac- uation of all persons of Japanese’ ancestry. Whether the Court would also uphold their detention after evacuation is quite another question. And there are indications in the concurring opinions that some of the Justices at least would regard forcible detention of evacuated American citizens as unwarranted even by alleged military necessity.

TENNESSEE SUPREME COURT RULES AGAINST ANTI-POLL TAX LAW

The Tennessee Supreme Court has affirmed the decision of a lower court declaring unconstitutional the recent law passed py the state legislature repealing the poll

The law was tested in a chancery court which declared that the Tennessee constitution requires the payment of a poll tax as a prerequisite for voting and that only a constitutional amendment can abolish it.

The case was appealed to the Supreme Court on the ground that the Tennessee constitution does not require any specific tax, and that a poll tax to be valid must be specifically provided for. The Supreme Court, however, sustained the lower court decision.