vol. 14, no. 9

_ American

Civil Liberties

Union-News

k's

Free Press

Free Speech

_ "Eternal vigilance is the price of liberty."'

Vol. XIV

SAN FRANCISCO, SEPTEMBER, 1949

No. 9

ACLU Gets Honorable

Mention in 1949 Tenney Report

The 1949 Report of the Tenney Committee

(Senate Fact-Finding Committee on Un-Ameri-

can Activities) continues to list the ACLU as a

Communist "front" organization, in the following

language:

"American Civil Liberties Union

"1. Cited as heavily infiltrated with Commun-

ists and fellow-travelers and frequently following

the Communist line and defendiing Communists,

particularly in its Los Angeles unit."

California is the only place in the country

where the ACLU has been labeled by any govern-

ment agency as a C.P. front. Needless to say,

the Tenney Committee reached its conclusiions

without securing the testimony of ACLU officials

or examining the records of `the organization.

Sen. Tenney is now off the committee and on

August 16 Sen. Hugh Burns of Fresno was elected

committee chairman. The committee announced

it has adopted a "new policy'. It intends to "con-

centrate on educational work" by exposing al-

leged subversive groups, and ."soft-pedal investi-

gation of individual persons''.

The committee was voted life for another two

years at the 1949 session of the State Legislature,

at a cost of $50,000 to the taxpayers.

` -_-___9___

Judge Gives 2-Year Sentence

Tho Law Sets 1-Year Penalty

A prisoner at the San Francisco County Jail is .

serving a two-year sentence when the law pro-

vides a penalty of only one-year for the offense (c)

on which he was convicted.

On June 2d, 1948, the prisoner plead guilty to

_ statutory rape, involving a 17-year-old girl. The

law prescribes the punishment as "imprisonment

in the county jail for not more than one year or in

the State prison for not more than fifty years."

_ The prisoner late last month appealed to the

ACLU for help. After verifying the facts, the

matter was called to the attention of the Attorney

General in the hope that the man may be released

without the trouble of filing a petition for a writ

of habeas corpus in the District Court of Appeal.

No matter what the nature of the man's of- .

fense, he is entitled to due process of law. The

Union is investigating claims that there are other

men serving two-year terms at the San Francisco

County Jail when the maximum sentence for any

one offense that can be served at a county jail

is only one year.

ACLU To Aid Man Charged With

Sending Obscene Letter To His Wife

Does a husband have the right to send his wife

a letter containing strong statements relating to

her sexual acts without being charged as using

the U.S. mails for obscene purposes? That is the

issue in the case of Jesse M. Sinclair, a Pennsyl-

vanian, who was sentenced by a Federal District

Court to a year and a day in jail for allegedly de-'

positing such a letter in the mails.

_ The case, which will be reviewed by the U.S.

Supreme Court in the fall, will find the ACLU

intervening in behalf of Sinclair. The ACLU

Board of Directors on July 25th voted to file,a

brief in his support on the grounds that the letter

was a confidential communication, that it was

not obscene, and that prosecution for sending

such a letter is a violation of the right of free

_ speech in the absence of a clear and present

danger.

3 (R)

FEP Under Consideration ih S. F.

The Mayor's Committee on Human Relations

last month recommended that the San Francisco

Board of Supervisors enact an ordinance estab-

lishing a Commission on Equal Employment Op-

portunity and submitted to the Supervisors a pro-

posed ordinance. The matter will next be referred

to committee for consideration.

Nazi-Like Treatment of Nisei Condemned As

Circuit Court Sets Aside Renunciations

In a scathing denunciation of "unnecessarily

cruel and inhuman treatment" of Japanese at the

Tule Lake Center and Gen'l J. L. DeWitt's "Nazi-

like doctrine of inherited racial enmity," the

Ninth Circuit Court of Appeals on August 26 set.

aside the renunciations of citizenship of Miye Mae

Murakami, Tsutako Sumi and Mutsu Shimizu. It

is assumed that the Secretary of State will appeal

the decision to the United States Supreme Court.

The full text of the opinion, written by Chief

Judge William Denman and concurred in by Judge

William E. Orr follows (Judge Stephens, the

third member of the court, did not participate in

the decision of the case.) : i

The Secretary of State appeals from a judg-

ment cancelling the renunciations of citizenship

Prohibit Religious Garbed_

Teachers in Public Schools

A sweeping injunction prohibiting religious-

garbed Catholic teachers from teaching in New

Mexico public schools and outlawing other alleged

sectarian practices has been granted in the U.S.

District Court in New Mexico by Judge E. Turner

Hensley, Jr. The judgment was handed down by

-Judge Hensley-eight months after he decided in

behalf of 27 Protestant taxpayers who had filed

suit two years previous to halt these practices.

The "Dixon case" grew out of a practice by sev-

eral New Mexico local school boards of renting

parochial schools, owned and operated by .the

Catholic Church, as public schools. School autho-

rities had said that school boards were too poor to

maintain their own buildings and that in rural

regions it was difficult to employ qualified lay

teachers. Classrooms in the parochial schools con-

tained religious symbols and other sectarian reli-

gious matter, and the agreement included the

provision that members of the Catholic religious

orders would be employed as teachers and that

the buildings, after regular school hours, could be

used for usual church purposes.

Aside from barring the 124 Catholic nuns, 13

brothers and two priests from teaching in New

Mexico's tax-supported schools, Judge Hensley

enjoined Gov. Thomas Mabry and state education

officials, other defendants in the suit, from pay-

ing tax.money to schools "conducted or operated

under circumstances resulting in a failure to

separate Church and State." The state school

board was also prohibited from issuing texts to

private or parochial schools, from furnishing free

transportation to students attending private or

parochial schools and from issuing "indoctri- -

nated" texts to Catholic schools.

The judgment contains provisions which bar

officials from using buildings for public school

purposes "when said buildings or space in build-

ings does not remain under the absolute control

of the state, or one of its subdivisions, or when

`such building is of a nature to exert a sectarian

influence." It holds also that conducting public

school classes in rooms where religious emblems

are displayed, and housing public schools in build-

ings where parochial schools or private classes

are also held are violations of both the state and

national constitutions.

To date there has been no statement issued by

the defendants regarding an appeal to a higher

- court. :

ee One

"Loyalty" Statistics

The U.S. Civil Service Commission announced

last month that 62 Federal employees had been

dismissed on grounds of disloyalty, while 29 had

been refused employment, out of 9987 cases that

have been heard under the President's Loyalty

Order. The Commission has no record, however,

of the outcome of 914 Army cases.

by appellees, American born of Japanese descent, (c)

made while incarcerated at Tule Lake. The dis-

trict court found that the renunciations were `"`not

as a result of their free and intelligent choice but

rather because of mental fear, intimidation and

coercions depriving them of the free exercise of

their will, (and) said purported renunciations are

void and of no force or effect."

The complaint alleged that appellees, at dates in

and between December, 1944, and March, 1945,

- applied to renounce their citizenship under the

provisions of Section 401 of the Nationality Act

of 1940, as amended, 8 U.S.C. S801 (1), and that

the applications were granted;*that the renun-

ciations were null and void and should be cancell-

ed for the reasons found by the court; that in

1948 they duly applied for passports and that of-

ficers of the State Department had refused to

issue passports to them on the sole ground that |

appellees were no longer citizens,or nationals of

the United States by reason of the aforesaid re- -

nunciations of United States nationality. The

court had jurisdiction under 8 U.S.C. 903 (R.3).

The answer raised as the sole issue the existence

of mental fear, intimidation and coercion as the

cause of the renunciations.

The findings of probative facts of District .

Judge Mathes vividly showing the conditions pre-

vaiiing at Tule Lake Center are contained in Ex-

hibit (1) attached to and made a part of this

opinion. We agree that each of these findings is

supported by the evidence.

Underlying all the particular factors so found

as leading to a condition of mind and spirit of -

the American citizens imprisoned at Tule Lake

Center, which make the renunciations of citizen-.

ship not the free and intelligent choice of appel-

lees, is the unnecessarily cruel and inhuman treat-

ment of these citizens (a) in their deportation for

imprisonment and (b) in their incarceration for

over two and a half years under conditions in

"major respects. as degrading as those of a peni-

tentiary and in important respects worse than in

any federal penitentiary, and (c) in applying to

them the Nazi-like doctrine of inherited racial en-

mity, stated by the Commanding General order-

ing the deportations as the major reason for that

action.

Since the records of this court show the gov-

ernment is contesting some four thousand sim-

ilar cases of deportees who are seeking identical

relief, we are giving consideration to these un-

contested underlying facts, certain to have their

effect upon the minds of the mass of deportees

incarcerated at Tule Lake.

In considering the effect of the government's (c)

treatment on the minds of our deported fellow

citizens, those litigating here and many others

found to be loyal Americans, it must be remem-

bered how highly educated are the Nisei, the

70,000 native born Japanese. According to the

Armv's statistical division, Bulletin 11 of March

15, 1943, the educational level of the Nisei ex-

ceeded that of the native whites of native parent-

age in the four Western States. It is not surprising

`that such eminent educators as Robert Gordon

Sproul, President of the University of California, -

nrotested the Nisei deportations and the De Witt

doctrine of inherited racial enmity, later dis-

cussed.

A. The racial deportation. Its unnecessary hard-

ships and cruelty as affecting the attitude of

scores of thousands of loyal Americans towards

their citizenship in a country so ordering them in-

to imprisonment. - :

- Typical of the deportation orders under which

the citizen prisoners of the Tule Lake Center were

ordered from their homes to their first barbed

wire guarded stockades, euphemistically called

Assembly Centers, is Civilian Exclusion Order No. ~

34 of Major General De Witt of Sunday, May 8,

(Continued on Page 2, Col. 2) ;

Page 2 =

AMERICAN CIVIL LIBERTIES UNION-NEWS

Communist Aliens Granted -

Bail Pending Hearings

Membership in the Communist Party is insuffi-

cient cause in itself to detain aliens without bail

who are held for deportation, Judge William

Bondy ruled in Federal Court on August 8th. At

the same time, Judge Bondy decided that aliens

held on charges of illegal entry into the United

States could be detained without bail, and in an-

other decision upheld the Government's action

in rearresting an alien free on bond and holding

him in higher bail. ;

_ The opinions, which may have a marked affect

on deportation cases of 98 aliens in 15 states,

were handed down in the cases of George Pirin-

sky, former secretary of the American Slav

Congress, Beatrice Johnson, minor functionary of

the Communist Party, and Ferdinad Smith, form-

er secretary of the CIO Maritime Union. The

American Committee for the Protection of Fo-

_ reign Born had sought writs of habeas corpus

_ to free the three detained on Ellis Island.

In the Pirinsky case, Judge Bondy ruled that the

question of whether Communists are deportable

_ at all because of Communist Party membership

will involve "prolonged litigation" and that unless

the Attorney General released Pirinsky on bail of

a "reasonable amount" the habeas corpus writ

must be sustained.

The factor of time was of importance in the

Johnson case. Judge Bondy said she was charged

with illegal entry as well as being a member of

the Communist Party, continuing that the former

charge "can be speedily decided'? and her deten-

tion without bail "does not constitute an abuse

of discretion . . ."' He added, however, that if the

Immigration Service seeks to deport her because

of her Communist affiliation as well "it cannot

deny her bail merely because she may be present-

_ ly affiliated with that party."

Smith, a native of Jamaica, was originally ar-

rested in February, 1948 and released on March

6th in $3,500 bail. He was rearrested last July 6th

and has been held in $10,000 bail since. Judge

_ Bondy ruled that the rearrest and setting of

higher bail did not make his detention "Improper."

He quoted as grounds for his decisions the case

of Gerhardt Eisler, and said that Smith after De-

cember, 1948 had evidenced a strong desire to

_ leave the country.

_ Bail for Pirinsky was set by the Department of

Justice at $25,000, and a plea for reduction was

denied August 9th by Federal Judge Alexander

Holtzoff. He said "I don't know how high bail

should be in these cases, but I do know that some-

times bail too low can be dangerous." Mrs. John-

son is being held for bail of a similar amount, and

in view of the Pirinsky decision, spokesmen for

the American Committee for the Protection of

the Foreign Born said, it was unlikely that addi-

ae legal steps would be taken to reduce the

ail.

The ACLU has entered a strong protest against

the government's action in these cases. In a let-

ter to former Attorney General Tom C. Clark,

general counsel Arthur Garfield Hays said the

ACLU regards the procedures as "unauthorized

by` law." In opposing the Justice Department's

action, Hays said that if the "aliens' activities,

_ other than beliefs and associations, are contrary

to law they should be prosecuted, If they are not,

we do not think that mere belief and association

justify any summary action." ee

_ Release in bail of $5,000 has also been granted

to Peter Harisiades, 46-year-old Greek newspa-

" perman, who has been held since May on deporta-

tion charges that he was a Communist. Federal

Judge Leibell granted the bail pending his deci-

sion on Harisiades' request for a writ of habeas

corpus that would set aside the deportation order

_ and allow him to become a citizen.

Senate Passes Ban on Atomic

Energy Fellowship Scholars

_ The Senate on August 2nd passed an

amendment to the Independent Appropriations

Bill prohibiting allocation of funds for Atomic

Energy Commission fellowships to students found

to be "subversive". The amendment had been

opposed by the ACLU on the grounds that it

penalized students for their political beliefs and

associations, and that ample protection already

existed through regular FBI checks on anyone

working in the atomic energy field. ACLU pro-

tests also pointed out that banning of Commun-

ists from atomic study might hinder potential

developments in health and industria] fields.

`The amendment, as passed, carries an improve-

ment. The section calling on the Attorney Gen-

eral `to pass judgment on whether students are

. loyal or disloyal, which was opposed by ACLU

A because it failed to call for public hearings on the

organizations labeled subversive, was changed

to place the right in the hands of the AEC.

Nazi-Like Treatment of Nisei Condemned As

Circuit Court Sets Aside Renunciations

(Continued From Page 1, Col. 3)

1942. This required them to be so incarcerated not

later than noon of Saturday, May 9, 1942.

What these citizens, their families in a single

group, and individual men, women and children

and babies were commanded to do in this brief

period, less than five days to those not receiving

the notice before Monday noon, is as follows:

"The Following Instructions Must Be Observed:

1. A responsible member of each family, preferably

the head of the family, or the person in whose name

most of the property is held, and each individual liv-`

ing alone, will report to the Civil Control Station to (c)

receive further instructions. This must be done between

8:00 A.M. and 5:00 P.M. on Monday, May 4, 1942, or*

between 8:00 A.M. and 5:00 P.M. on Tuesday, May

5, 1942. ; :

. Evacuees must carry with them on departure for

the Assembly Center, the following property.

: (a) Bedding and linens (no mattress) for each mem-

ber of the family; `

(b) Toilet articles for each member of the family;

(c) Extra clothing for each member of the family;

(d) Sufficient knives, forks, spoons, plates, bowls

and cups for each member of the family;

(e) All items carried will be securely packaged, tied

and plainly marked with the name of the owner and

numbered in accordance with instructions obtained at

the Civil Control Station. The size and number of pack- (c)

ages is limited to that which can be carried by the in-

dividual or family group. .

3. No pets of any kind will be permitted.

4. No personal items and no household goods will be

shipped to the Assembly Center.

5. The United States Government through its agen-

cies will provide for the storage at the sole risk of the

owner of the more substantial household items, such as

iceboxes, washing machines, pianos and other heavy

furniture. Cooking utensils and other small items will

be accepted for storage if crated, packed and plainly

' marked with the name and address of the owner. Only

one name and address will be used by a given family."

(Emphasis supplied.)

One has no difficulty imagining the thousands

of families in which the mother must carry the

babies, measuring the carrying capacity of each

of the other children able to walk against the

sacrifices of one or another household utensil, or

book, or family treasure.

The emotion of free citizens contemplating the

pathetic testing of the carrying capacity of stum-

bling infants lifting their bundles is not pertinent

here. What is pertinent is what our incarcerated -

fellow citizens felt about it in their several years

behind barbed wire under the machine guns of

the soldiers in their prison's turrets. For, so far

as concerns the psychology of the renunciations

to those renouncing and their surrounding com-

panions, the beguiling words "evacuation" meant

deportation, "evacuees" meant prisoners, ``relo-

cation center' meant prison and their single

rooms, some crowding in six persons, meant cells,

as they in fact were. Their true character is rec-

ognized in this opinion. -

The stowage of the remainder of the family

possessions, it will be noted, is "at the sole risk

of the owner." So also it was of the stock in trade

of thousands of small merchants, the agricultural

tools of the thousands of farmers, the professional

books and instruments of lawyers and doctors. No

storage places were provided by General De Witt,

though it is apparent that two months earlier he

contemplated the deportation. It is obvious that

storage warehouses available for all such proper-

ties of the 100,000-odd deportees did not exist.

The inevitable followed, after the meaning of

the De Witt orders were understood. Unscrupul-

ous secondhand dealers bought family possessions

for a song. One can picture a widow bargaining

for the family bedstead and kitchen stove while

measuring the carrying capacity and load of her

infants. Nor can one fail to apprehend the bftter

sense of frustration of a doctor or lawyer at the ,

loss of a long built up practice or that of the farm-

er trying to sell his partially matured crop, the

result of years of soil improvement, to avid buyers

who know the seller is but two or three days

_ from his stockade.

Finally, one has no difficulty in realizing the re-.

peated recitals of such wrongs in the crowded

dust filled halls and cells of the Tule Lake Center

and their effect upon the psychology of those ~

there contemplating the value of an American

citizenship.

B. The incarceration at the Tule Lake stockade.

Its effect upon the minds of our fellow citizens -

as to the value of their citizenship.

The barbed wire stockade surrounding the 18,-

000 people there was like that of the prison camps

of the Germans. There were the same turrets for

the soldiers and the same machine guns for those |

who might attempt to climb the high wiring. How

closely packed they were is shown by the follow-

ing photograph of the United States Army Signal

Corps in evidence. (Here photograph)

The armed turrets are the spots which appear

at the two lower corners and elsewhere on the

surrounding stockade. The imprisoning buildings

shown were constructed by the citizens who were

to occupy them, alongside free carpenters, paint-

ers and plumbers. To drive it in to their. already

shocked spirits that their treatment was to he

like criminals in a penitentiary, they were paid

the prison wage of $12.00 a month to the unskill-

ed and $16.00 to those skilled, while their free fel-

low citizens, working beside them, were paid the

prevailing $12.00 to $20.00 per day of their. re-

spective trades.

The buildings were covered with tarred paper

over green and shrinking shiplap-this for the

low winter temperatures of the high elevation of

Tule Lake. What further was done to shut out (c)

the winter cold was by the occupants to whom

scant material was furnished after long delay. No

federal penitentiary so treats its adult prisoners.

Here were the children and babies as well.

None of the living rooms had running water,

much less toilet facilities. Instead there were out-

side communal latrines shared alike by the gentle

bred college girl and by the prostitute. To reach

the unheated latrines, which were in the center

of the blocks of fourteen buildings, meant leaving

the residential shacks and walking through the

rain and snow-again a lower than penitentiary

treatment, even disregarding the sick and the chil-

dren.

So also was the crowding of the 18,000 people |

in the one-story shacks, all in an area `of 1-14

square miles. Apartments 20 by 25 feet were as-

signed to a group of 6 members; 20 by 20 to

groups of 3 to 5 members; and 12 by 20 to groups

of 2 to 4 members, often without reference to sex,

age, or closeness of relationship. In the cells of a

federal penitentiary there is no such crowding.

The comparatively wide spacing of the streets

in the photograph, supra, was for fire protection,

not sanitation. On the contrary, the streets, were

unpaved. Their dust added to the dust clouds of

the surrounding country, devoid of vegetation to

hold down the soil, was raised by a breeze of any

strength and sifted in through the cracks in: the

shacks' walls. As a visiting Congressman said,

"On dusty days one might just as well be out-

side as in." os

Also lower than many penitentiaries was the

absence of any occupation for a normally active

industrious people of high intelligence. True, some

"of them farmed adjoining land on a 48-hour week

at $16.00 per month, among white farmers paid

the prevailing California wage. Here they were

not permitted to feel they were making the citi-

zens' contribution to public welfare. The farm

product. was insufficient for their own needs.

The sole money contribution of the government

for its forced unemployment of its citizens is a

so-called "unemployment compensation" of $4.25

to $4.75 per month. This against such compensa-

tion for free fellow citizens based upon their going

wage, amounting in California to $20 per week.

(C). General De Witt's doctrine of enemy rac-

ism inherited by blood strain. Its paramount ef-

fect on the minds of the imprisoned citizens. ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 ACLUN_1949.MODS ACLUN_1949.batch ACLUN_1950 ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch ACLUN_test_batch ACLUN_testyear ACLUN_testyear.MODS ACLUN_testyear.bags ACLUN_testyear.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log

The major reason for General De Witt's depor-

tation orders is his belief that these citizens, de-

scended of an eastern Asiatic race, can never be

determined to be loyal Americans. His statements

of this doctrine are as follows:

"A Jap is a Jap."'' "It makes no difference

whether he is an American citizen or not he

is still a Japanese .. . The Japanese race is

an enemy race and while many second and

third generation Japanese born on United

States soil, possessed of United States citi-

zenship, have become `Americanized', `the

racial strains are undiluted." ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 ACLUN_1949.MODS ACLUN_1949.batch ACLUN_1950 ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch ACLUN_test_batch ACLUN_testyear ACLUN_testyear.MODS ACLUN_testyear.bags ACLUN_testyear.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log "But we must

worry about the Japanese all the time until

he is wiped off the map .. ." (Emphasis

supplied)

General De Witt's belief in his doctrine was

clearly apparent to the Nisei. Most alarming

stories were circulated concerning assistance to

the Japanese attack on Pearl Harbor of the people

of Japanese blood strain in the Hawaiian Islands.

The Army high command knew all these stories

were false. It knew that no act of sabotage was

committed in Hawaii, with over 30% of its popu- -

1. It is irrelevant to the issues here that students of

racial origins are agreed that such a doctrine of enmity

to some government inherited through racial strains is an

anthropological absurdity. Cluckhorn, Mirror for Man,

p. 102.

2. The Spoilage, p. 20, by Thomas and Nishimoto, ad-

mitted, in evidence.

3. Final Report, Western Defense Command, p. 34.

4. House Naval Affairs Com. Report, Part 3, pp 739-740,

78th Cong, Ist Session. /

(Continued on Page 4, Col. 2)

AMERICAN CIVIL LIBERTIES UNION-NEWS

sf Page 3

Maryland Anti-Communist

Law Declared Invalid |

The broadest of all anti-subversive state laws,

which outlawed the Communist party, Commun-

ist-front organizations, made their members cri-

minals, and demanded a loyalty pledge from all

public employees, was declared invalid August

15, when Judge Joseph Sherbow in Maryland's

Circuit Court ruled the state's Ober Law uncon-

stitutional. It was the first judicial decision, in the

current wave of anti-communist legislation, to re-

affirm the individual's right to express his poli-

tical beliefs, unorthodox as they might be.

Judge Sherbow asserted that the law violates

the basic freedoms guaranteed by the First and

Fourteenth Amendment of the U.S. Constitution

and due process under the Fifth Amendment. `It

violates the Maryland Constitution and Declara-

tion of Rights. It is an unlawful bill of attainder,

and is too general for a penal statute."' He con-

cluded his decision by quoting Supreme Court

Justice Jackson's statement "if there is any fixed

star in our constitutional constellation, it is that

no official, high or petty, can prescribe what shall

-be orthodox in politics, nationalism, religion or

other matters of opinion or force citizens to con-

fess by words or act their faith therein."

The case was filed by ten college professors, "

' professional and business men. It drew consider-

able attention when three Quakers, who were

state employees, refused to sign the loyalty oath.

Maryland Attorney General Hall Hammond, who

_announced that an appeal would be taken to the

State Court of Appeals, said that under the court

decision the law was invalid and the Quakers

could keep their jobs. The ACLU's local affiliate,

the Maryland Civil Liberties Committee, will file

a brief as friend of the court on the appeal, con-

tending that the law is unconstitutional.

The Maryland judge's opinion attacked the

vagueness of the law's language. Singling out the

section which calls for a five year prison term, a

fine of $5,000, or both, for a person found to be

a member of a subversive organization, knowing

it to be subversive, he said: "Does `knowing' mean

actual knowledge or constructive knowledge. Does

it mean having information in one's possession to

lead a reasonable person to believe the organiza-

tion is subversive. Many reasonable persons differ

on the interpretation of such information." He

cited as an example a union member who knows

that his union is controlled by officers who seek

to use it for seditious purposes. "If that union has

a closed shop agreement with management he

cannot withdraw from the organization without

losing his job. If he remains in the union, he is

guilty of a felony, not because of any act of com-

mission on his part, but because of his associa-

tion with others."

The section which permits dismissal from or

denial of employment in public agencies on "rea-

sonable grounds" that a person is subversive, was

_ sharply criticized by Judge Sherbow. "What kind

of standard is set up by reasonable grounds.

What may seem reasonable to one may seem ex-

tremely unreasonable and arbitrary to another.

Hence an employer need not have evidence that

a prospective employee is subversive. All he needs

is reasonable grounds. No man may be convicted

_ of a crime in Maryland except upon evidence; the

court and jury must be convinced beyond a rea-

sonable doubt."

On those sections requiring loyalty oaths of

public school teachers and loyalty investigations

by state-wide schools, he said "To determine if

such statutes are clear and precise in their terms

so vague and indefinite, one need only turn to the

debates now being waged in academic circles on

the very issue."' Judge Sherbow also ruled that

the special loyalty oath required of all candidates

who seek public office violates the state declara-

tion of rights which prohibits any other oath

MEMBERSHIP APPLICATION

American Civil Liberties Union of No. Calif.,

461 Market St., San Francisco 5, Calif.

1. Please enroll me as a member at dues of

Pe for the current year. (Types of mem-

bership: Associate Member, $3; Annual Mem-

ker, $5; Business and Professional Member,

$10; Family Membership, $25; Contributing ||

Member, $50; Patron, $100 and over. Mem- |f

bership includes subscription to the "American

Civil Liberties Union-News" at $1 a year.)

2. I pledge $............ per months OL per yr,

38. Please enter my subscription to the NEWS, $1

per year).6

Enclosed please find See Please Dill

Pe ULGe. oe ec,

Strects 3)

City, and, ZONeCs 2s

Bee es a! OcCcCupatiOn =

fe

5

5

q

4

other than the one called for in the constitution.

Attorney General's Subversive List

Uphel

_ By a 2-1 vote, the U.S. Court of Appeals ruled

August 11th that former Attorney General Tom

Clark's list of subversive organizations is legal

and upheld the government's loyalty program.

The decision was handed down in the case of the

Joint Anti-Fascist Refugee Committee, which had

appealed from a District Court decision denying

its complaint that the President's Loyalty Order

was unconstitutional.

The Committee claimed that its listing by the

Attorney General caused it "to suffer loss of repu-

tation and `business and patronage;'"' to be de-

prived of its tax exempt status as a charitable

organization, as well as disgracing their members

"to their economic injury." The Committee also

charged "that Section 9A of the Hatch Act, `as

applied by' the Executive Order, and the order

itself are unconstitutional." The Hatch Act pro-

vision makes it unlawful for federal employees

"to have membership in any political party or

organization which advocates the overthrow of

our constitutional form of government in the

United States." ;

The majority decision of Judges James M. Proc-

tor and Bennet Champ Clark held that the com-

plaint failed to present a controversy upon which

relief could be granted. "The Executive Order,"

said the court, "imposes no obligation or restraint

upon the Committee. It commands nothing of the

Committee. It denies the Committee no authority,

privilege, immunity or license. It subjects the

Committee to no liability, civil or criminal. Nor

does the designation by the Attorney General

have any such effect .. . Had the President done

so his action would have been within the realm

of his executive power, not subject to judicial

review." In other words, the court held, in ef-

fect, that the President, through the Attorney

General, was merely enforcing Section 9A of the

Hatch Act and that such exercise of executive

power is not subject to judicial review whether

done by the President or his agent.

The Court nevertheless faces the constitutional

issues and declares, `""We do not doubt validity of

Section 9A of the Hatch Act. Congress may pre-

scribe qualifications of government employees

and attach conditions to their employment.

"We do not doubt validity of the Executive

_ Order. It is the President's duty to take care that

the laws are faithfully executed ...The Executive

Order exhibits a proper effort by the President to |

carry out the provisions of Section 9A... His

Pacifist Naturalization Case

To Be Heard by High Court

Martin Cohnstaedt, a Kansas pacifist, who has

been denied citizenship by the Kansas courts on

the grounds that he would not even accept non-

combatant military service in time of war, will

be supported by the ACLU when his case is

argued before the U.S. Supreme Court this fall.

Although declaring his willingness to remove

wounded from the battlefield, Cohnstaedt was de-

nied. naturalization when he contended that his

conscience would not permit him to accept em-

ployment in a factory making war munitions or to

-supply munitions to troops at the front. The

Kansas Supreme Court cited a Supreme Court rul-

ing in the Girouard case in 1946 which allowed

an alien conscientious objector American citizen-

ship, even though unwilling to bear arms, if he

were willing to accept non-combatant service.

Cohnstaedt's lawyers argue that this is a narrow

interpretation of the decision, and the ACLU ap-

peal will be based on the fact that all CO's should

be granted citizenship without any qualification.

The issue has become clouded by an Iowa U.S.

District Court decision in May which granted

Kenneth Boulding citizenship although he refused

to serve the army in any capacity. The ACLU

pointed out that the Department of Justice in this

case did not appeal.

Cancellation of Citizenship

Reversed by Circuit Court

The Ninth Circuit of Appeals last month re-

stored citizenship to Johannes Frederick Bechtel

} and Paul Fix. In 1944, the District Court in San

Francisco cancelled their citizenship on the

ground that they had mental reservations when

they became citizens. The Government's cases

| against the men were built on the fact that they

joined the Bund a short time after they were

naturalized.

The appellate court decided there was an ab-

sence of `clear, unequivocal and convincing"' evi-

dence that the men had mental reservations when

they took the naturalization oath. They were

represented by attorney Wayne M. Collins of San

Francisco.

"y U.S. Court of Appeals |

directions contained in the Executive Order lay

down the method he has chosen.to discharge his

duty in carrying out the objects and purposes of

Section 9A and the Civil Service Act."

The Court went on to say that "Freedom of

speech and assembly is denied no one. Freedom

of thought and belief is not impaired. Anyone is

free to join the Committee and give it his sup-

port and encouragement. Everyone has a consti-

tutional right to do these things, but no one has

a constitutional right to be a government em-

ployee.

Judge Henry J. Edgerton, in a minority opin-

ion, emphasized that the subversive listing had

caused the organization to lose members, contri-

butions and its reputation. "It has caused the

Committee's members to be subjected to ridicule,

obloquy, and economic loss."

Judge Edgerton's dissent hammered at the

points made in a brief which ACLU filed as friend

of the court. He said "It is neither fair nor neces-

sary to enact and publish a defamatory perma-

nent regulation restricting eligibility for public

employment, restricting the freedom 6f govern-

ment employees, and inflicting damage on many

persons, without giving the accused group an op-

portunity to be heard in its defense. The same

circumstances that make the Attorney General's

investigation less than appropriate make it less

`than due process of law."

He continued that the government's subversive

ruling "is a public warning that sympathetic asso-

ciation" with the Committee "may cause govern-

ment employees to be dismissed." Since this puts

government employees under economic and so-

cial, pressure not to support the Anti-Fascist

Committee's work and to stay away from their

meetings, it constitutes denial of free speech and

assembly, he said.

_ Judge Edgerton concluded his dissent by stat-

ing that the government's right to hire or fire is

not a right to broadcast statements that the Anti-

Fascist Committee, and the members that com-

_ pose it, are criminals or that they are subversive.

The ACLU, in its brief, charged that the At-

torney General's black-list impaired free speech,

press and assembly, involved guilt by association

and that the listing without a hearing was a viola-

tion of due process of law. It emphasized that the

ACLU is "against Communism and unalterably

opposed to any government or organization of so- |

ciety which suppresses these rights."

Conviction of 21 'Objectors'

In Glendora Case Upheld

The Ninth Ciircuit Court of Appeals in San

Francisco on August 5 unanimously sustained

the convictions of the 21 conscientious objectors

in the Glendora C. O. Strike Case, who were (c)

charged with failing to obey orders.

The appellants argued that they were required

to perform work under military rather than civil- -

ian direction, contrary to the Selective Service

Act of 1940, and that establishment of `detention

camps" constituted involuntary servitude. The

court made short shrift of these and other argu-

ments. e

"The fact that the Civilian Public Service con-

tained Army officers on special duty with Selec-

tive Service Headquarters," said the court, "does

not make the camps part of the Army nor con-

stitute them as military in character nor subject

camp personage to military rather than civilian

direction." `

In dismissin the complaint of involuntary

servitude, the court stated as follows: "Drafting

for civilian work was an important aid to the

defense and welfare.of the country during the

war, and a necessary fulfillment of the powers

granted under the Constitution."

The appeal was handled by the Southern Cali-

fornia branch of the A.C.L.U. :

The annual membership meeting of the

American Civil Liberties Union of Northern

California will be held at the California Club,

1750 Clay Street, San Francisco, Friday eve-

ning, October 14, at 8 o'clock. There is no

admission charge. The meeting is open to the

general public.

"Should Communists be permitted to teach

in our colleges?" is the tentative subject

selected for discussion. It is expected that the

meeting will also consider the question of

loyalty oaths at the University of California.

Full details concerning the meeting will ap-

pear in the October issue of the "News."

OCTOBER 14, 1949

Page 4

j

pound

AMERICAN CIVIL LIBERTIES UNION-NEWS

American Civil Liberties Union-News

. Published monthly at 461 Market St., San Francisco 5,

Calif., by the American Civil Liberties Union

of Northern California.

Phone: EXbrook 2-3255

PRUNES Th OBESIG: oo Editor

Entered as second-class matter, July 31, 1941, at the

Post Office at San Francisco, California,

under the Act of March 3, 1879

Subscription Rates-One Dollar a Year,

Ten Cents per Copy -151,

Analysis of Legislature's

Civil Rights Record for 1949

From the civil rights standpoint, the 1949 Cali-

fornia legislative session is particularly note-

worthy because of the defeat of the Tenney

"loyalty" bills. Less publicized, but equally vicious,

were a series of red-hunting measures which Sen.

Tenney introduced but took no action upon. For

example, one bill required "public records of at-

_tendance to be had of-secret meetings of organ-

izations that are totalitarian, communist, fascist

or subversive," another bill denied a person un-

employment insurance if he had been a Com-

munist any time during the five years preceding

the filing of his claim, and still another provided

for the abatement of buildings used as meeting

places for ``subversive" organizations.

Perhaps equally as noteworthy as the defeat

_ of the "loyalty" bills was Sen. Tenney's resigna-

tion from the Senate Fact-Finding Committee on

Un-American Activities, otherwise known as the

"Tenney Committee," on which he had served as

chairman since January, 1941. Sen. Tenney's de-

parture, however, did not result in the demise of

the committee. Its life was extended for two years,

and it received a generous appropriation of $50,-

000. Sen. Hugh M. Burns of Fresno, the new

chairman, has promised to limit the Committee's

activities to exposure of "subversive" groups and

not to smear individuals.

Efforts to assure fair procedures on the part

of such investigating committees were unsuccess-

ful. Assemblyman George Collins of San Fran-

cisco and Sen. Gerald O'Gara, also of San Fran-

cisco, both proposed changes in the rules, but the

problem was finally referred to two committees.

Under a resolution introduced by Sen. O'Gara, the

question will be considered by the Rules Commit-.

tee. A resolution by Sen. Salsman was also adopt-

ed creating the Senate Interim Committee on

Legislative Procedure and appropriating the sum

of $5,000 for its work. The chances are that some

desirable changes in the procedures of investigat-

ing committees will grow out of the work of these

committees.

Outside of a bill barring aliens from securing

real estate brokers licenses, no anti-civil liberties

legislation was adopted. Among the proposals that

were defeated were bills limiting the distribution

of comic books, establishing Bible reading in pub-

lic schools, requiring the fingerprinting of all

State and municipal employees and amending the

Civic Center Act to give School Boards discretion

in charging fees for meeting places.

Very little was accomplished on the credit side

of the ledger, although a wide variety of bills in:

aid of civil liberties were proposed. Most import-

ant is a law authored by Assemblyman Rumford

eliminating racial segregation in the National

_ Guard. As amended, however, it is up to the Gov-

ernor to issue regulations "with due regard to

the power of the Federal Government which are,

or may be exercised over all the militia of the

State, and to the time required to effectuate

changes without impairing the efficiency or mo-

rale of the miltia."'

A second bill signed by the Governor prohibits

"The inclusion of any question relative to an ap-

plicant's race or religion in any application blank

or form required to be filled in and submitted by

an applicant to any department, board, commis-

sion, officer, agent or employee of this State."

Finally, the Labor Code was amended to pro-

hibit employers from discriminating on the basis

of sex in the payment of wages or salaries. The

law is so drawn, however, that it will affect only

the most obvious cases of discrimination.

KIRSTEN FLAGSTAD CASE

For the record, and particularly for the people

outside of San Francisco who may have missed ~

the story in the daily press, we want to report

that the Board of Trustees of the San Francisco

_ War Memorial last month finally voted 6 to 5 to

allow Kirsten Flagstad to appear at the Opera

House during the coming season.

Madam Flagstad's appearance was opposed by

the American Legion, Veterans of Foreign War

and the American Jewish Congress because they

questioned her loyalty to Norway during the war.

The Trustees thereupon decided against her ap-

pearance because she was a "controversial" figure

and in order to protect the Opera House and its

patrons.

Nazi-Like Treatment of Nisei Condemned As

Circuit Court Sets Aside Renunciations

(Continued From Page 2, Col. 3)

lation of such blood strain, (4a) or in the area of

the Western Defense Command in the months

between Pearl Harbor and the deportation in that

Command. However, De Witt was so certain that

a race of such enemy blood strain must commit

sabotage that he stated: ``The very fact that no

sabotage has taken place to date is a disturbing

and confirming indication that such action will

be taken."

Here was high authority to inflame the exist-

ing anti-Japanese sentiment of some of the people

of the Pacific Coast, for General De Witt had

been awarded the Distinguished Service Medal

and membership in France's Legion of Honor for

services as staff supply officer in the first world

war. Also such distinction made more bitter the

shock and resentment of the Nisei and their fear

of violence and even murder if they returned to

their home on the Pacific Coast.

The identity of this doctrine with that of the

Hitler generals towards those having blood

strains of a western Asiatic race as justifying the

gas chambers of Dachau must have been realized

by the educated Tule Lake prisoners of Japanese ~

blood strain. The German mob's cry of "der Jude"

and "the Jap is a Jap" to be "wiped off the map"

have a not remote relationship in the minds of

the scores of thousands of Nisei, whose constant

loyalty has at last been recognized.

Hence one would expect to find, as the record

shows, a high spirited Nisei lad saying of the

imprisonment with him of Nisei soldiers serving

in our armies in the first world war and of his

reasons for renouncing his citizenship.

"War and evacuation forced us American citizens to

leave everything we had worked and slaved for, Yes,

we were bitter, can you blame us?

"My American friends .. . no doubt must have won-

dered why I renounced my citizenship. This decision

was not that of today or yesterday. It takes back to

the day when General De Witt ordered evacuation. It

was confirmed when he flatly refused to listen even to

the voices of the former World War Veterans and it

_ was doubly confirmed when I entered Manzanar. We

who already had proven our loyalty by serving in the

last World War should have been spared. The veterans

asked for special consideration but their requests were

denied. They too had to evacuate like the

`Japanese people, as if they were aliens.

"I did not expect this of the Army, When the West-

ern Defense Command assumed the responsibilities of

the West Coast, I expected that at least the Nisei

would. be allowed to remain. But to General DeWitt, we

were all alike. `A Jap's a Jap. Once a Jap, always 2

Jape 2%

never do another day's work to help this country fight

this war. My decision to renounce my citizenship there

and then was absolute.

"...I did not want to be greedy enough to keep

my United States citizenship and use it when neces-

sary-when necessity claimed me. Since I was dis-

Joyal to the United States I wanted to be honest about

it 795

Such men, for the time so driven to a pro-

Japanese attitude, found in Tule Lake the per-

manently pro-Japanese Kibei, American born but

educated in Japan. From the latter group came

the powerful organization of pro-Japanese there

with their bitter opposition to the loyal Nisei,

leading to the fighting, beatings and reputed

murder of loyal Americans described in succeed-

ing finding 12, 13, 18, 22, 27, 44, 45 and 46, made

a part of this opinion. ;

Fear of reprisal if one failed to renounce his

citizenship was for some the final pressure caus-

ing such renunciations. Such violence. continuing

over a year is another of the worse than peniten-

tiary conditions considered supra.

Others feared such violence as of the German

mobs if they returned to their homes after they

were free to do so. After the return from the

stockades of some of the imprisoned men and

women to their homes following the decision of

the Supreme Court in Ex Parte Endo, 323 U.S.

283, there were such incidents reported in the

press read by the interned men as: `

"(In Caldwell, Idaho) three ruffians, accompanied

by seventeen or eighteen persons, attacked three Nisei

soldiers and their friends and relatives, who numbered

about forty persons ... at 1:30 a.m. (January 7, 1945),

4a WAR DEPARTMENT

`Washington, March 30, 1942

Hon. JOHN H, TOLAN :

House of Representatives,

Washington, D.C,

`DEAR MR. TOLAN: Reference is made to your letter of

March 19, 1942, requesting a statement regarding sabo-

tage activities in Hawaii.

The War Department has received no information, of

sabotage, committed by Japanese during the attack on

Pearl Harbor.

Sincerely yours, :

HENRY L, STIMSON,

Secretary of War.

5. The Spoilage, pp. 348-49. :

rest of the .

I swore to become a Jap 100 percent, and -

while they were waiting for a train... They rushed

into the waiting room, and socked a Nisei soldier .. .

who was standing at the entrance. The attackers shout-

ed obscene words, and some of them said, `God damned

Japs! I'm gonna kill all.' They beat the Japanese at

random and created a scene of utter confusion. 0x00B0

"(In Wells, Nevada), angered by the refusal of a loan

of cash, a Caucasian, working for a railroad, shot and

seriously injured three Japanese on January 20.7

"Efforts to blow up the packing shed of a returned

Japanese-American farmer with dynamite and to inti-

midate him and his .family with gunshots were dis-

closed yesterday by Sheriff Charles Silva of Placer

County. ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 ACLUN_1949.MODS ACLUN_1949.batch ACLUN_1950 ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch ACLUN_test_batch ACLUN_testyear ACLUN_testyear.MODS ACLUN_testyear.bags ACLUN_testyear.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log es

"(Sumio) Doi who returned to his place near New-

-eastle recently from Lamar, Colo., with his parents,

called the sheriff's office early yesterday to report that

several carloads of persons had parked on his pro--

perty. Shots were being fired at the house, he said, in

an effort to keep him and his family indoors." ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 ACLUN_1949.MODS ACLUN_1949.batch ACLUN_1950 ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch ACLUN_test_batch ACLUN_testyear ACLUN_testyear.MODS ACLUN_testyear.bags ACLUN_testyear.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log

This and similar reports were distorted by ru-

mor, and fears about the reception awaiting re-

turnees increased, leading to such statements as:

"Rumor is being circulated that five Japanese were

killed in Fresno. oe y

"People are saying that some Japanese were killed

around Stockton (California). Reading the papers and

considering all other facts, the people have a feeling

of not wanting to return to the Pacific Coast, even

though the exclusion orders were lifted. California is

not exactly dangerous, but still, it's not favorable to

the Japanese.

"California is the last place ''d want to go back to,

with all I've been reading. They say the Army will

back us up. But that's only against mob violence, and

not against what an individual might do. If some per-

son beats us up, we can't do anything about it.

"What do they want us to do? Go back to California

and get filled full of lead? I'm going `to sit here and

watch.' 0x00B0

"The rumors `were that we would.be forced out of

here; whereas, the people outside would take arms and

narm us ...As I am alone here, I was upset ... The

columns in the San Francisco newspapers spoke of

violence displayed toward the returning evacuee.

"Everybody told me that I must renounce my citi-

zenship of the United States, otherwise I will be forced

to go outside of the camp to be murdered. Believe me,

Sir, honest, I was scared and I applied for a renounce- -

ment." 10

The above facts in evidence add to our conclu-

sion that the ultimate fact found of renunciation

because of mental fear, intimidation and coercion

necessarily follows from the probative facts in

the succeeding exhibit (1). ee

We hold not only that the Secretary of State

has not maintained his burden under Federal

Rules of Civil Procedure 52 to show that the find-

ings are clearly erroneous, but that it would have

been clear error had the district court held other-

wise.

The judgment holding the appellees' renuncia-

tions are null, void and cancelled and ordering the

Secretary of State to treat appellees as citizens

of the United States is affirmed.

(The three renunciants were represented by A.

L. Wirin and Fred Okrand. The national office of

the ACLU filed an amicus curiae brief.)

6. Rocky Shimpo, Japanese Section, January 24, 1945,

The Spoilage, p. 346. :

7. Colorado Times, Japanese Section, January 27, 1945,

The Spoilage, p. 347.

8. San Francisco Chronicle, January 20, 1945. The Doi

case was also sensationally reported in the vernacular

press. The Spoilage, p. 347. 2 oe

9. The Spoilage, pp. 346-47. are

10. The Spoilage, p. 349.

a,

Army Answers Charge German

Refugee Party Denied Election License

John McCloy, U.S. High Commissioner for Ger-

many, informed the ACLU last month that refusal

to grant the German Refugee Party a license for

the general German elections on August 14th was

based on a desire to help integrate German refu-

gees into the German community on an' equal

basis. The ACLU had protested as denial of poli-

tical freedom the ban of a party composed of

refugees from Eastern European countries and

Germans whose homes had been destroyed

through Allied bombings in the war.

The authorities informed ACLU Director Roger

Baldwin that the refugee problem was one of the

most serious facing the occupation officials. They

said it was impossible to return them to their

former homes, and it was considered sound po--

licy to integrate them into the community as

quickly as possible. The Military Government was

reluctant to perpetuate what is called "the refu-

gee mentality" by the formation of political

parties dedicated to their special interests. The

letter also said that there was a reluctance to en-

.courage the organization of a multiplicity of

parties in Germany, which they held, was one of

the weaknesses of the German Weimar Republie

after the last war.