Attorney General Kenny files brief with U.S. Supreme Court supporting Pacific Coast Jap evacuation order

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ttorney-General Kenny Files Brief

With U.S. Supreme Court Supporting

Pacific Coast Jap Evacuation Order

Asking that the United States Supreme Court define the powers

which a military commander may exercise over civilians and civil-

ian authorities in time of war, Attorney-General Robert W. Kenny

yesterday filed with the court a brief in which he supported the

validity of Lieutenant-General J. L. DeWitt's order excluding all

persons of Japanese ancestry from the military areas in the States

of Oregon, Washington and California. Kenny was joined in this

brief by Washington and Oregon through their attorneys-general.

The case arises out of the conviction in the United States Dis-

trict Court of the State of Washington of an American-born Japa-

nese, Gordon Kiyoshi Hirabayashi, for violation of the curfew and

evacuation orders of Lieuenant-General J. L. DeWitt.

Kenny's action is the outgrowth of an appeal taken by Hira-

bayashi, who contended that General DeWitt had no authority to

impose curfew and exclusion orders upon American sacemeeaes of

|threat of invasion, provide for

`the defense of the area and to

Japanese ancestry, and that he(R)

and other Japanese-American

citizens had been deprived of

their constitutional rights when

individual hearings for the pur-

pose of determining their loyalty

or disloyalty were denied them,

because martial law had neither

been declared nor did the reason

for martial law exist on the Pa-

cific Coast. Kenny described

General DeWitt's orders as prop-

er measures of limited martial

law.

Invasion Threat

Kenny contended that the

threat of invasion of the Pacific

Coast states following Pearl Har-

bor made immediate action nec-

essary in the exclusion of the

Japanese. Kenny pointed out

that there were over 112,000 per-

sons of Japanese ancestry on the

Pacific Coast at the time of the

war living near prospective land-

ing beaches and within the vi-

cinity of defense plants and mili-

tary installations. "This group,

was largely unassimilated," said

Kenny, "and many within this

area possessed strong religious,

ideological, and family ties with

Japan." He stated that it would

have been impossible to examine

this large group individually as

to their loyalty in the face of the

emergency which required]

prompt action.

"The possibility thatthe ex-

clusion orders might be held in-

valid," said Kenny, "and that

persons of Japanese ancestry

might be permitted to return be-|

fore a time justified by the mili-

tary situation, is of deepest con-

cern to Oregon, Washington and

California."

"The states of the Pacific

Coast," said Kenny, "believe that.

the matter of moving inland the

Japanese population. from mili-

tary areas must be treated solely

from a military viewpoint. This

action was necessary to meet the

protect against sabotage, cep

age and fifth column activities."

Kenny pointed out in his brief

that General DeWitt's orders|

stemmed out of executive order

`lof President Roosevelt of Febru-

`lary 19, 1942, which prescribed

military areas from which all

persons might be excluded based

upon the ground that successful

prosecution of the war required

every possible protection against

sabotage and espionage. Kenny

stated that shortly thereafter

Congress passed a law providing

enforcement in the Federal

`| eourts of all orders issued under

the presidential proclamation.

The brief contained a resume

of the Japanese problem insofar

-----

as it affected the Pacific Coast

states.

"Over 124 separate Japanese

organizations along the Pacific

Coast," Kenny stated, `were en-

gaged in varying degrees in com-

mon pro-Japanese purposes with

local branches of these parent

organizations numbering more

than 310. There were 100 fascis-

tic or militaristic organizations

in Japan having some relation,

either directly or indirectly, with

Japanese organizations or indi-

viduals of the United States.

Many had branch organizations

in the United States and directed

the activities of these branches.

(Continued on Page Eight)

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MS-3580-1127 MS-3580-1127.MODS MS-3580-1127.batch MS-3580-1385 MS-3580-1385-large MS-3580-1385-large.MODS MS-3580-1385.MODS MS-3580-1385.batch MS-3580-1386 MS-3580-1386.MODS MS-3580-1386.batch MS-3580-1387 MS-3580-1387.MODS MS-3580-1387.batch MS-685 MS-685.MODS MS-685.batch MSP-685 MSP-685.MODS add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log ladd WEDNESDAY, MAY 12, 1943 ma

ATTORNEY-GENERAL KENNY FILES BRIEF

WITH U.S. SUPREME

COURT SUPPORTING

PACIFIC COAST JAP EVACUATION ORDER

(CONTINUED FROM PAGE ONE)

A line of control existed from

the Japanese government."

Issei Influence

Kenny cited the powerful in-

fluence wielded by the Issei-

foreign-born Japanese aliens-

over the American-born Japa-

nese.

"There was reason to believe,"

Kenny said, "that there was a

considerable number of Ameri-

can Japanese who were poten-

tially disloyal and because of

their location were capable of

conducting espionage for the en-

emy and committing sabotage to

war plants and utilities in a way

which might have had disastrous

consequences for the Pacific

Coast and have seriously inter-

fered with America's success in

its war with Japan."

Additional anti-American in-

fluences were mentioned by Ken-

ny as the theory of the Japanese

government that many Japanese

may hold Japanese citizenship

although not born in Japan, and

also the former maintenance in

California of Japanese language

schools with a student body of

over 17,000.

Kenny cited numerous Su-

preme Court decisions wherein

it was held that certain civil

rights must be temporarily sus-

pended in times of emergency.

"When the occasion requires,

individual rights such as those

affected by curfew and evacua-

tion orders," said Kenny, "must

temporarily bend to the exercise

of the paramount and funda-

mental constitutional Tent pe Of

the State to preserve itself."

Kenny referred .to the `"disas-

trous error into which many

democracies have fallen-that of

affording more protection to the

civil liberties at home than to

safeguarding them from attack

from without."

"Ordinarily, constitutional

rights," stated Kenny, "privileges

and immunities of American citi-

zens cannot be curtailed by mili-

tary authorities, and local, State

and Federal laws prescribe the

standards of lawful conduct, but

there are occasions in time of

war when to meet an emergency,

the military authorities, in

carrying out the constitutional

function of conducting the war,

may adopt measures directly af-

fecting the conduct of civilians

and temporarily limiting their

constitutional rights."

Some Are Loyal

Kenny stated that there were

many among those excluded who

were undoubtedly loyal and

some, he said, "are now proudly

wearing the American uniform."

Long ago, the United States

Supreme Court ruled in the Mil-

ligan case that military law

could not legally be applied ex-

cept in case of actual invasion.

Kenny pointed out, however,

|this Japanese not guilty of vio-

that the reasoning of this case

should not apply as that case

"fails to meet today's wartime

conditions. It requires an inva-

sion and the complete break-

down of civil government before

the military may act. Long-

range bombing planes and car-

rier-based aircraft and far-mov-

ing submarines place a large por-

tion of our country and states

within the area of threatened

invasion.

"Today, sabotage, espionage

and fifth column technique are

the preludes to invasion. Mea-

sures taken to prevent the use

of these methods of modern war-

fare are within the mandate of

the Federal Government."

Stating that the "genius of

America has been its ability to

accommodate men of different

races, creeds and colors, and to

remove distinctions based on

these difference, Kenny said that

the considerations advanced in

his brief were made with the

realization of the importance of

preserving the fundamental

rights of all citizens regardless

of race or color.

Must Have Choice

"The Commander - in - Chief,'

said Kenny, "and his subordi-

nate military commanders, must

pe allowed a reasonable choice

of the means by which they will

discharge the tremendous re-

sponsibility imposed on them so

that they may achieve the vic-

tory through which constitution-.

al rights once more will be se-,

cured."

Oregon and Washington also

joined Kenny in another brief

to the Supreme Court involving

Minoru Yasui, American - born

Japanese. The trial court held

lating the DeWitt curfew orders

on the basis that martial law|-

had not been declared. Yasui,

however, was found by the trial

court to have accented Japanese |'

citizenship by implication be- |,

cause of his being an employee |

of the Japanese Consulate. Ken-

ny said that the position taken |

by the trial court would jeopar-

dize the position as citizens of

a number of native-born Japa-

nese of the Pacific Coast states,

and that the Supreme Court had

the opportunity of providing

some guide as to the kind of evi-

dence which should be required

before "a court will be justified

in finding that an election to

surrender such a precious thing

as American citizenshio has been

made."

Kenny urged that the "con-

siderations concerning national.

citizenship should be kept. free |

from the considerations which

made the imposition of curfew

a military problem."