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Executive Order 9066: A Specter of the Past in Today’s War on Terrorism?

iiExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?

EXECUTIVE ORDER 9066: A SPECTER OF THE PAST IN TODAY’S WAR ON TERRORISM?

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iiiExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?

TABLE OF CONTENTS

Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

1. Yasui v. United States: From 1941 to Today—Making the Case for the Constitution . . . . 1–i— Peggy Nagae, Peggy Nagae Consulting, Portland, Oregon

2. America’s War on Terror: Can Our Legal System Prevent History from Repeating Itself? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–i— The Honorable John Acosta, U.S. District Court for the District of Oregon, Portland,

Oregon— Sharia Mayfield, Oregon Department of Justice, Salem, Oregon— Peggy Nagae, Peggy Nagae Consulting, Portland, Oregon— Ron Silver, Portland, Oregon— Steven Wax, The Innocence Project, Portland, Oregon

ivExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?

vExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?

SCHEDULE

8:55 WelcomeMichael Levelle, 2017 Oregon State Bar President

9:00 Yasui v. United States: From 1941 to Today—Making the Case for the ConstitutionPeggy Nagae, Peggy Nagae Consulting, Portland

10:00 Break

10:15 America’s War on Terrorism: Can Our Legal System Prevent History from Repeating Itself?Moderator: The Honorable John Acosta, U.S. District Court for the District of Oregon, PortlandSharia Mayfield, Oregon Department of Justice, SalemPeggy Nagae, Peggy Nagae Consulting, PortlandRon Silver, PortlandSteven Wax, The Innocence Project, Portland

11:30 Adjourn

viExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?

viiExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?

FACULTY

The Honorable John Acosta, U.S. District Court, District of Oregon, Portland. Judge Acosta was appointed a magistrate judge for the United States District of Oregon on March 5, 2008, and maintains chambers in Portland. Prior to his appointment, Judge Acosta served as Senior Deputy General Counsel for TriMet, the public transportation authority for metropolitan Portland, and before that he was in private practice in Portland and Alaska.

Sharia Mayfield, Oregon Department of Justice, Salem. Ms. Mayfield is an attorney with the Oregon Department of Justice. She worked for two years as an intelligence fellow and adviser for Senator Ron Wyden. She has appeared on Fox Business and been published in the UC Berkeley Comparative Literature Undergraduate Journal. Ms. Mayfield coauthored with her father, Brandon Mayfield, Improbable Cause: The War on Terror’s Assault on the Bill of Rights, a book about his wrongful arrest and governmental overreach.

Peggy Nagae, Peggy Nagae Consulting, Portland. Ms. Nagae founded her consulting practice in 1991. Prior to starting her own company, Ms. Nagae practiced law as a trial attorney, served as the Director of Associates for a Seattle-based litigation firm, and held the position of Assistant Dean for Academic Affairs at the University of Oregon School of Law.

Ron Silver, Portland. Mr. Silver recently retired from the U.S. Attorney’s Office after 33 years and handled many civil rights cases during his career. The Oregon Trial Lawyers Association awarded him its Public Justice Award for his enforcement of the federal Fair Housing Act. He has taught the history of the civil rights movement in Oregon and Washington schools and numerous federal agencies. He has also led student groups to Mississippi and Alabama to study the movement firsthand.

Steven Wax, The Innocence Project, Portland. Mr. Wax served as Oregon’s Federal Public Defender from 1983 to 2014 and was one of the longest-serving public defenders in the country. Mr. Wax and his federal defender team successfully represented six men formerly held as “enemy combatants” in Guantanamo. He has taught at Lewis & Clark Law School, serves as an ethics prosecutor for the Oregon State Bar, and lectures throughout the country. Mr. Wax is a fellow in the American College of Trial Lawyers. Kafka Comes to America, his book about his work representing Portland attorney Brandon Mayfield and the men in Guantanamo, has won four national awards, including the prestigious ABA Silver Gavel.

viiiExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?

Chapter 1

Yasui v. United States: From 1941 to Today—Making the Case for the Constitution

Peggy Nagae

Peggy Nagae ConsultingPortland, Oregon

Contents

“Five of the Greatest: A Tribute to Outstanding Lawyers in Colorado History—Minoru Yasui” . . . . 1–1

Minoru Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793 (1943) . . . . . . . . . . . . . 1–7

Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) . . . . . . . . . . 1–9

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) . . . . . . . . . 1–25

United States District Judge Belloni’s 1984 Order in Yasui Vacating Conviction . . . . . . . . . . . 1–41

Hirabayashi v. U.S., 828 F.2d 591 (C.A.9 (Wash.), 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 1–43

Memorandum in Support of Minoru Yasui’s Nomination for a 2015 Presidential Medal of Freedom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–63

House Bill 4009 (2016) (Introduced) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–77

Chapter 1—Yasui v. United States: From 1941 to Today—Making the Case for the Constitution

Executive Order 9066: A Specter of the Past in Today’s War on Terrorism? 1–ii


Executive Order 9066: A Specter of the Past in Today’s War on Terrorism? 1–1

Five of the Greatest: A Tribute to Outstanding Lawyers in Colorado History

Minoru Yasui1 Minoru Yasui, the third son of Masuo and Shidzuyo Yasui, was born on October 19, 1916, in Hood River, Oregon. He attended school in Hood River and graduated valedictorian from high school in 1933. He graduated from the University of Oregon in 1937 with Phi Beta Kappa honors. Min, as he liked to be called, received his law degree with honors from the University of Oregon School of Law in 1939 and became the first Japanese-American graduate of that institution. He was admitted to practice law in Oregon in that same year, but was unable to find employment with any of the established law firms in Oregon. In 1940, Min accepted a position as a Consular attaché for the Consulate General of Japan in Chicago. He wrote letters and speeches and performed other work requiring the use of English. Immediately following the bombing of Pearl Harbor by Japan on December 7, 1941, Min resigned his position with the Consulate and returned to Oregon, where he volunteered for the U.S. Army. Min had been commissioned a second lieutenant in the U.S. Army Reserves after graduating from the University of Oregon, where he had been a ROTC cadet. He received orders to report to Fort Vancouver in Washington, but upon reporting was told that his services would not be accepted because of his ancestry. Returning to Oregon after his rejection by the U.S. Army, Min opened a law practice in Portland to help those members in the community of Japanese descent during the chaotic and turbulent times immediately following the Japanese attack on Pearl Harbor. At the time, Min was the only practicing attorney of Japanese ancestry in Oregon. He was inundated with requests for legal assistance from the Japanese-American community.

Test Case On February 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066.1 Approximately one month later, Lt. General John L. DeWitt, Military Commander of the Western Defense Command, issued Public Proclamation No. 3.2 This order imposed travel restrictions and a curfew for German, Italian, and Japanese nationals. However, the Proclamation applied to American citizens of Japanese descent as well, but not American citizens of German or Italian ancestry. Min viewed this order as unlawful discrimination based on racial grounds and a clear violation of the U.S. Constitution. Min volunteered himself to become the test case to challenge these restrictions. On March 28, 1942, Min deliberately violated Public Proclamation No. 3. He left his law office at 8:00 P.M. that evening and walked the streets of Portland, Oregon, in clear violation of the curfew imposed by Public Proclamation No. 3. Min had instructed his secretary to call the Federal Bureau of Investigation and the Portland police to let them know that he would be out on the streets that evening. After wandering around for a couple of hours, he finally spotted a policeman and approached him. Min insisted that the patrolman arrest him for the curfew violation and showed him a copy of the Public Proclamation. The patrolman refused. Min finally went directly to the Portland police station, where he was arrested. After spending the weekend in jail, he was released on bail. Min’s trial began on June 12, 1942, before Judge James Alger Fee in the U.S. District Court for the District of Oregon.

1 Reproduced by permission of the Colorado Bar Association from Vol. 27, No. 7, The Colorado Lawyer (July 1998). All rights reserved. By Kerry S. Hada and Andrew S. Hamano. Kerry S. Hada is in private practice in Englewood, Colorado. Andrew S. Hamano is Regional Counsel for The Nature Conservancy in Boulder, Colorado.



The trial lasted only one day. The facts of the curfew violation were quickly established, and the remainder of the trial focused on the loyalty of Minoru Yasui to the United States of America. Attempting to establish his disloyalty, the prosecution focused on his employment with the Japanese Consulate, and statements that Min had made during enemy alien hearings for his father. Considered somewhat of a maverick, Judge Fee actively took a role in questioning Min, focusing his questions on Min’s upbringing and his understanding of the Shinto religion. Since Min was a Methodist, he answered that his understanding was that Shinto was the national religion of Japan, but that he did not know its precepts. The trial ended at 5:00 P.M. and Judge Fee reserved ruling to consider the evidence. After the trial, Min was taken to the Portland Assembly Center, where other persons of Japanese descent in the Portland area had been ordered to report by the military, pending relocation. Min spent the remainder of the summer of 1942 at this Center behind barbed wire, talking about his case with other internees and doing legal work for free. While still waiting for a ruling from Judge Fee, Min was sent to the Minidoka Relocation Camp in Idaho in September 1942. In November 1942, Min was taken from Minidoka and driven back to Portland, Oregon, to hear Judge Fee’s decision in his case. On November 15, 1942, Min arrived in Portland and was taken to an isolated cell in the Multnomah County Jail. The next day Min was taken from his cell in handcuffs, chained around the waist, and walked in humiliation to the courtroom, which was one block away. Judge Fee ruled that the curfew order as applied to American citizens, even those of Japanese ancestry, was unconstitutional. However, he then went on to find that Minoru Yasui was not a United States citizen. Judge Fee concluded that Min’s actions, particularly his work for the Japanese Consulate in Chicago, effectively resulted in a renunciation by Min of his U.S. citizenship. As an “alien” of Japanese ancestry, Min had disobeyed a lawful regulation governing enemy aliens and was guilty as charged. Dumbfounded by this ruling, Min was escorted back to his cell at the county jail to await sentencing. The next day, the court imposed the maximum fine of $5,000 and sentenced Min to the maximum one year in jail. Min immediately instructed his lawyers to appeal his conviction. Min spent the next nine months in solitary confinement in a six-by-eight-foot windowless cell in the Multnomah County Jail. He was not allowed to leave his cell to bathe or even exercise for the first month and a half of his confinement. Min was not allowed scissors to cut his hair or fingernails nor razors to shave. Sometime after Christmas, he was taken out of his cell for the first time since his sentencing to bathe, shave, and have his hair cut. During the remainder of his confinement at the Multnomah County Jail, Min was only allowed to bathe and shave once a month. In spite of these barbarous conditions, Min never wavered in his conviction that he would be vindicated. The Ninth Circuit Court of Appeals certified Min’s appeal directly to the U.S. Supreme Court. The Supreme Court reversed the findings of Judge Fee.3 The Court found that the lower court erred in its finding that Minoru Yasui had lost his United States citizenship.4 It also found that the lower court erred in ruling the curfew order unconstitutional as applied to United States citizens.5 Consistent with its analysis, the Court then upheld the lower court’s conviction of Min and the fine of $5, 000, but freed him from further incarceration.6

New Beginnings Min was released from jail and taken to Minidoka Relocation Camp. During the summer of 1944, Min was released from Minidoka for employment in Chicago. He worked for a time as a laborer in an ice plant, as well as other odd jobs. In September 1944, Min moved to Denver, Colorado. He sat for the Colorado bar examination in 1945. Although .he received the highest scores among the group of candidates



that sat for the bar examination that year, Min was denied admission to the Colorado bar because of his criminal conviction .Represented by Samuel L. Menin of the American Civil Liberties Union, Min appealed to the Colorado Supreme Court. Min was admitted to practice law in Colorado in January 1946. In November 1946, he married True Shibata. True was originally from California, but had been interned at the Amache Relocation Camp in Granada, Colorado. She relocated to Denver after her release from Amache. They had three children—Iris, Laurel and Holly.

Law and Community Involvement Min began his law practice in Colorado with his brother-in-law, Toshio Ando, in an office located at 1917 Lawrence Street in Denver. Min soon started his own practice and moved to an office at 1225 20th Street. Long hours and low pay characterized his practice. Many of his clients could only afford to pay Min in-kind. His widow, True, recounts one year in the 1950s when Min was given a live turkey by a client in payment for legal services. True kept the turkey in the family garage and fed it quite well for several months in hopes of having a plump turkey for Thanksgiving dinner. Even though the turkey fattened nicely by November, True didn’t have the heart to kill and eat it. Instead, she gave the turkey to another family. Min continued his fight against racial bigotry and hatred in Colorado. In 1945, a bill was introduced in the Colorado General Assembly to prohibit aliens from owning land. Based on the rhetoric used in support of this piece of legislation, it was clear that the intent of this bill was to keep Japanese aliens from resettling in Colorado and purchasing land. At a time when anti-Japanese sentiment was strong, Min spoke vigorously against this piece ·of legislation at personal risk to himself. Min was a founding member and board member of the Urban League of Denver, a group dedicated to addressing issues of concern to the African-American community. He assisted in founding the Latin American Research and Service Agency (‘‘LARASA”). In addition, Min helped organize Denver Native Americans United. True Yasui recalls that Min was involved in as many as seventy-five organizations. Min’s active involvement in the community to improve human relations led to his appointment to Denver’s Community Relations Commission in 1959. He served on this Commission for eight years and held the positions of vice-chairman and chairman during this period. In 1967 he was appointed by the Mayor of Denver to be the Executive Director of the Community Relations Commission. He held that position until he retired in 1983.During his tenure as Executive Director, Min instituted a monthly community volunteer award to recognize individuals in the community who volunteered their time to worthy causes. In 1976, this award was renamed the Minoru Yasui Community Volunteer Award (“MYCVA’’), in recognition of Min’s tireless spirit of volunteerism. Later, the Denver City Council passed an ordinance making MYCVA an official organization. Min also was active in the Japanese American Citizens League (“JACL’’) for fifty-three years. He was a member of the Mile Hi Chapter of the JACL and helped guide it for many years. He was elected District Governor of the Mountain-Plains District of JACL during his involvement with the organization. One of the causes he kept close to his heart was the redress of the terrible injustice that had been inflicted on the Japanese-American community during World War II. In 1948, Min lobbied for passage of the Evacuation Claims Act7 by the U.S. Congress. After passage of the Act, he worked countless hours helping file claims for Japanese Americans who had suffered economic losses because of their forced evacuation. However, only about 4 percent of the economic losses suffered by individuals eligible to apply was compensated.8 Min vehemently believed that the U.S. government needed to acknowledge the wrong that had been committed against the Japanese-American community and pay reparations for the economic losses suffered by those forcibly relocated. For several years, he served as Chairman of the National JACL Redress Committee. However, Min died on November 12, 1986,



before seeing the culmination of his hard work by the enactment of the Civil Liberties Act of 1988,9 providing redress, reparation, and an official apology from the government to the thousands of Japanese Americans incarcerated or relocated under duress during World War II. Min also lobbied for passage of the McCarran-Walter Act of 1952,10 which removed the prohibition on Japanese aliens applying for U.S. citizenship. Prior to passage of the Walter-McCarran Act, Japanese aliens in the United States were deemed aliens ineligible for citizenship. After passage of this Act, Min helped many elderly Japanese aliens in Colorado through the naturalization process to become U.S. citizens. In addition to his untiring commitment to the community, Min also remained adamant in his desire to see his conviction for the curlew violation overturned. The release of previously classified documents11 under the Freedom of Information Act provided a basis for Min to file a writ of error coram nobis in the U.S. District Court for the District of Oregon in 1983.12 Min’s petition requested the court to vacate his conviction, dismiss the underlying indictment, make findings of governmental misconduct, and declare unconstitutional Public Proclamation No.3, under which he had been convicted.13 The government did not oppose the vacation of Min’s conviction, but it opposed all the other claims for relief sought by Min. On January 26, 1984, Judge Robert C. Belloni issued his ruling on the writ. He vacated Min’s conviction, but agreed with the government and dismissed the petition as to the remaining issues.14 Min believed that the mere reversal of his conviction was not sufficient, and he appealed Judge Belloni’s decision concerning the dismissal of the remainder of his writ. While the appeal was pending before the Ninth Circuit Court of Appeals, Min passed away. The government immediately moved to dismiss the appeal on the grounds that the plaintiff was deceased and, therefore, the case was moot. The Ninth Circuit granted the government’s motion to dismiss,15 and the case was appealed to the U.S. Supreme Court. On October 5, 1987, the Court upheld the lower court’s ruling and ended Min’s dream of complete vindication.16

Faith in the Legal System Min’s passionate faith in the U.S. Constitution and the American legal system is best summarized in the statement he wrote the night before his sentencing before Judge Fee and delivered prior to sentence being imposed. “Your Honor—if the Court please, I should like to say a few words. There is no intent to plead for leniency for myself or to request a mitigation of the punishment that is about to be inflicted upon me. ‘‘Despite the circumstances, I am compelled to pay tribute and give my unreserved respect to this honorable court for its clear-cut and courageous reaffirmation of the inviolability of the fundamental civil rights and liberties of an American citizen. “As an American citizen, it was for a clarification and the preservation of those rights that I undertook this case, confident that the American judiciary would zealously defend those rights, war or no war, in order to preserve the fundamental democratic doctrines of our nation and to perpetuate the eternal truths of America. “My confidence has been justified and I feel the greatest satisfaction and patriotic uplift in the decision of this honorable court, for it is full of significance for every American, be he humble or mighty. “I say that I am glad, regardless of the personal consequences to me, because I believe in the future and in the ultimate destiny of America. Ever since I was a child, I have been inculcated in the basic concepts and the traditions of those great patriots who founded our nation.



“I have lived, believed, worked and aspired as an American. With due respect to this honorable court, in all good conscience, I can say that I have never, and will never, voluntarily relinquish my American citizenship. ‘The decision of this honorable court to the contrary notwithstanding, I am confident that I can establish in law and in fact that I am an American citizen, who is not only proud of that fact, but who is willing to defend that right. ‘‘When I attained majority, I swore allegiance to the United States of America, renouncing any and all other allegiances that I may have unknowingly owed. That solemn obligation to my native land has motivated me during the past 12 months upon three separate and distinct occasions to volunteer for active service in the United States army, wheresoever it may be fighting to preserve the American way of life. “For I would a thousand times prefer to die on a battlefront as an American soldier in defense of freedom and democracy, for the principles which I believe, rather than to live in relative comfort as an interned alien Jap. “The treacherous attack on Pearl Harbor, the bombing of Manila, the aggressor policies of the war lords of Japan are just as reprehensible to me as to any American citizen. “If America were invaded today, I and 70,000 other loyal American citizens of Japanese ancestry would ·be willing, eager, to lay down our lives in the streets, down in the gutters, to defend our homes, our country, and our liberties! ‘‘Be that as it may; I reiterate, regardless of the personal consequences, even though it entail the sacrifice of my American citizenship which I regard as sacred and more dear than life itself, I pay homage and salute this honorable court and my country, the United States of America, for the gallant stand that has been taken for the preservation of the fundamental principles of democracy and freedom!”17

NOTES 1. Executive Order 9066, 7 Fed.Reg. 1407 (1942), stated in pertinent part:

[B]y virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas . . . from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.

2. Public Proclamation No. 3 was issued on March 24, 1942, pursuant to the Act of March 21, 1942, 56 Stat. 173 (1942). Public Law No. 503, 56 Stat. 173, provided in pertinent part:

[W]hoever shall enter, remain in, leave or commit any act in any military area . . . contrary to the restrictions applicable to any such area . . . shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.

3. Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392 (1943). 4. Id. 5. Id. 6. Id. 7. 50App. U.S.C.A. §§ 1983 et seq.



8. Yasui, The Yasui Family of Hood River Oregon (Williamsport, Penn.: 1987) at 65. 9. 50 App. U.S.C.A. §§ 1989(b) et seq. 10. 8 U.S.C. §§1101 et seq. 11. The released documents were FBI and Naval Intelligence Reports from 1942 that categorically refuted General DeWitt’s justification for the evacuation orders. These documents showed that there was no military justification for the military orders issued by the Western Defense Command in relation to the curfew orders and evacuation. See Yasui, supra, note 8 at 70. 12. Yasui v. United States, Civil No. 83-151-BE (D.Or. 1983). 13. Id. at 2. 14. Yasui v. United States, Civil No. 83-151-BE, slip opinion (D.Or. Jan. 26, 1984). 15. 772 F.2nd 1496 (9th Cir. 1984). 16. 484 U.S. 971, 108 S.Ct. 471 (1987). 17. Dodds, Varieties of Hope—An Anthology of Oregon Prose (Corvallis, Or.: Oregon State University Press, 1993), at 117–18.



320 U.S. 115 63 S.Ct. 1392 87 L.Ed. 1793

MINORU YASUI v.

UNITED STATES. No. 871.

Argued May 10, 11, 1943. Decided June 21, 1943.

Messrs. E. F. Bernard, of Portland, Or., and A. L. Wirin, of Los Angeles, Cal., for Yasui in No. 871. Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for the United States. Mr. Chief Justice STONE delivered the opinion of the Court. This is a companion case to Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. —-, decided this day. The case comes here on certificate of the Court of Appeals for the Ninth Circuit, certifying to us questions of law upon which it desires instructions for the decision of the case. § 239 of the Judicial Code as amended, 28 U.S.C. § 346, 28 U.S.C.A. § 346. Acting under that section we ordered the entire record to be certified to this Court so that we might proceed to a decision, as if the case had been brought here by appeal. 63 S.Ct. 860, 87 L.Ed. —-. Appellant, an American-born person of Japanese ancestry, was convicted in the district court of an offense defined by the Act of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a. The indictment charged him with violation, on March 28, 1942, of a curfew order made applicable to Portland, Oregon, by Public Proclamation No. 3, issued by Lt. General J. L. DeWitt on March 24, 1942. 7 Federal Register 2543. The validity of the curfew was considered in the Hirabayashi case, and this case presents the same issues as the conviction on Count 2 of the indictment in that case. From the evidence it appeared that appellant was born in Oregon in 1916 of alien parents; that when he was eight years old he spent a summer in Japan; that he attended the public schools in Oregon, and also, for about three years, a Japanese language school; that he later attended the University of Oregon, from which he received A.B. and LL.B degrees; that he was a member of the bar of Oregon, and a second lieut nant in the Army of the United States, Infantry Reserve; that he had been employed by the Japanese Consulate in Chicago, but had resigned on December 8, 1941, and immediately offered his services to the military authorities; that he had discussed with an agent of the Federal Bureau of Investigation the advisability of testing the constitutionality of the curfew; and that when he violated the curfew order he requested that he be arrested so that he could test its constitutionality. The district court ruled that the Act of March 21, 1942, was unconstitutional as applied to American citizens, but held that appellant, by reason of his course of conduct, must be deemed to have renounced his American citizenship. D.C., 48 F.Supp. 40. The Government does not undertake to support the conviction on that ground, since no such issue was tendered by the Government, although appellant testified at the trial that he had not renounced his citizenship. Since we hold, as in the Hirabayashi case, that the curfew order was valid as applied to citizens, it follows that appellant's citizenship was not relevant to the issue tendered by the Government and the conviction must be sustained for the reasons stated in the Hirabayashi case. But as the sentence of one year's imprisonment—the maximum permitted by the statute—was imposed after the finding that appellant was not a citizen, and as the Government states that it has not and does not now controvert his citizenship, the case is an appropriate one



for resentence in the light of these circumstances. See Husty v. United States, 282 U.S. 694, 703, 51 S.Ct. 240, 242, 75 L.Ed. 629, 74 A.L.R. 1407. The conviction will be sustained but the judgment will be vacated and the cause remanded to the district court for resentence of appellant, and to afford that court opportunity to strike its findings as to appellant's loss of United States citizenship. So ordered. Conviction sustained; cause remanded for resentence.



320 U.S. 81 63 S.Ct. 1375 87 L.Ed. 1774

KIYOSHI HIRABAYASHI v.


Argued May 10, 11, 1943. Decided June 21, 1943.

Messrs. Frank L. Walters, of Seattle, Wash., and Harold Evans, of Philadelphia, Pa., for Hirabayashi.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for the United States.

Mr. Chief Justice STONE delivered the opinion of the Court.

Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of Congress of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a, which makes it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President. The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment. The indictment is in two counts. The second charges that appellant, being a person of Japanese ancestry, had on a specified date, contrary to a restriction promulgated by the military commander of the Western Defense Command, Fourth Army, failed to remain in his place of residence in the designated military area between the hours of 8:00 o'clock p.m. and 6:00 a.m. The first count charges that appellant, on May 11 and 12, 1942, had, contrary to a Civilian Exclusion Order issued by the military commander, failed to report to the Civil Control Station within the designated area, it appearing that appellant's required presence there was a preliminary step to the exclusion from that area of persons of Japanese ancestry. By demurrer and plea in abatement, which the court overruled (C.C., 46 F.Supp. 657), appellant asserted that the indictment should be dismissed because he was an American citizen who had never been a subject of and had never borne allegiance to the Empire of Japan, and also because the Act of March 21, 1942, was an unconstitutional delegation of Congressional power. On the trial to a jury it appeared that appellant was born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never afterward returned to Japan; that he was educated in the Washington public schools and at the time of his arrest was a senior in the University of Washington; that he had never been in Japan or had any association with Japanese residing there. The evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12, 1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated it had at all times been his belief that he would be waiving his rights as an American citizen by so doing. The evidence also showed that for like reason he was away from his place of residence after 8:00 p.m. on May 9, 1942. The jury returned a



verdict of guilty on both counts and appellant was sentenced to imprisonment for a term of three months on each, the sentences to run concurrently. On appeal the Court of Appeals for the Ninth Circuit certified to us questions of law upon which it desired instructions for the decision of the case. See § 239 of the Judicial Code as amended, 28 U.S.C. § 346, 28 U.S.C.A. § 346. Acting under the authority conferred upon us by that section we ordered that the entire record be certified to this Court so that we might proceed to a decision of the matter in controversy in the same manner as if it had been brought here by appeal. 63 S.Ct. 860, 87 L.Ed —-. Since the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count, for violation of the curfew order, must be sustained. Brooks v. United States, 267 U.S. 432, 441, 45 S.Ct. 345, 347, 69 L.Ed. 699, 37 A.L.R. 1407; Gorin v. United States, 312 U.S. 19, 33, 61 S.Ct. 429, 436, 85 L.Ed. 488. The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress has been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In passing upon the authority of the military commander to make and execute the order, it becomes necessary to consider in some detail the official action which preceded or accompanied the order and from which it derives its purported authority. On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against Japan. 55 Stat. 795, 50 U.S.C.A.Appendix, preceding section 1 note. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. The Order recited that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (50 U.S.C.A. § 104)'. By virtue of the authority vested in him as President and as Commander in Chief of the Army and Navy, the President purported to 'authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.' On February 20, 1942, the Secretary of War designated Lt. General J. L. DeWitt as Military Commander of the Western Defense Command, comprising the Pacific Coast states and some others, to carry out there the duties prescribed by Executive Order No. 9066. On March 2, 1942, General DeWitt promulgated Public Proclamation No. 1. 7 Federal Register 2320. The proclamation recited that the entire Pacific Coast 'by its geographical location is particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations'. It stated that 'the present situation requires as matter of military necessity the establishment in the territory embraced by the Western Defense Command of Military Areas and Zones thereof'; it specified and designated as military areas certain areas within the Western Defense Command; and it declared that 'such persons or classes of persons as the situation may require' would, by subsequent proclamation, be excluded from certain of these areas, but might be permitted to enter or remain in certain others, under regulations and restrictions to be later prescribed. Among the military areas so designated by Public Proclamation No. 1 was Military Area No. 1, which embraced, besides the southern part of Arizona, all the coastal region of the three Pacific Coast states, including the



City of Seattle, Washington, where appellant resided. Military Area No. 2. designated by the same proclamation, included those parts of the coastal states and of Arizona not placed within Military Area No. 1. Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt, made like recitals and designated further military areas and zones. It contained like provisions concerning the exclusion, by subsequent proclamation, of certain persons or classes of persons from these areas, and the future promulgation of regulations and restrictions applicable to persons remaining within them. 7 Federal Register 2405. An Executive Order of the President, No. 9102, of March 18, 1942, established the War Relocation Authority, in the Office for Emergency Management of the Executive Office of the President; it authorized the Director of War Relocation Authority to formulate and effectuate a program for the removal, relocation, maintenance and supervision of persons designated under Executive Order No. 9066, already referred to; and it conferred on the Director authority to prescribe regulations necessary or desirable to promote the effective execution of the program. 7 Federal Register 2165. Congress, by the Act of March 21, 1942, 18 U.S.C.A. § 97a, provided: 'That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable' to fine or imprisonment, or both. Three days later, on March 24, 1942, General DeWitt issued Public Proclamation No. 3. 7 Federal Register 2543. After referring to the previous designation of military areas by Public Proclamations No. 1 and 2, it recited that '* * * the present situation within these Military Areas and Zones requires as a matter or military necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese ancestry within said Military Areas and Zones * * *.' It accordingly declared and established that from and after March 27, 1942, 'all alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1 * * * shall be within their place of residence between the hours of 8:00 P.M. and 6:00 A.M., which period is hereinafter referred to as the hours of curfew'. It also imposed certain other restrictions on persons of Japanese ancestry, and provided that any person violating the regulations would be subject to the criminal penalties provided by the Act of Congress of March 21, 1942. Beginning on March 24, 1942, the military commander issued a series of Civilian Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each such order related to a specified area within the territory of his command. The order applicable to appellant was Civilian Exclusion Order No. 57 of May 10, 1942. 7 Federal Register 3725. It directed that from and after 12:00 noon, May 16, 1942, all persons of Japanese ancestry, both alien and non-alien, be excluded from a specified portion of Military Area No. 1 in Seattle, including appellant's place of residence, and it required a member of each family, and each individual living alone, affected by the order to report on May 11 or May 12 to a designated Civil Control Station in Seattle. Meanwhile the military commander had issued Public Proclamation No. 4 of March 27, 1942, which recited the necessity of providing for the orderly evacuation and resettlement of Japanese within the area, and prohibited all alien Japanese and all persons of Japanese ancestry from leaving the military area until future orders should permit. 7 Federal Register 2601. Appellant does not deny that he knowingly failed to obey the curfew order as charged in the second count of the indictment, or that the order was authorized by the terms of Executive Order No. 9066, or that the challenged Act of Congress purports to punish with criminal



penalties disobedience of such an order. His contentions are only that Congress unconstitutionally delegated its legislative power to the military commander by authorizing him to impose the challenged regulation, and that, even if the regulation were in other respects lawfully authorized, the Fifth Amendment prohibits the discrimination made between citizens of Japanese descent and those of other ancestry. It will be evident from the legislative history that the Act of March 21, 1942, contemplated and authorized the curfew order which we have before us. The bill which became the Act of March 21, 1942, was introduced in the Senate on March 9th and in the House on March 10th at the request of the Secretary of War who, in letters to the Chairman of the Senate Committee on Military Affairs and to the Speaker of the House, stated explicitly that its purpose was to provide means for the enforcement of orders issued under Executive Order No. 9066. This appears in the committee reports on the bill, which set out in full the Executive Order and the Secretary's letter. 88 Cong.Rec. 2722, 2725; H.R. Rep. No. 1906, 77th Cong. 2d Sess.; S. Rep. No. 1171, 77th Cong., 2d Sess. And each of the committee reports expressly mentions curfew orders as one of the types of restrictions which it was deemed desirable to enforce by criminal sanctions. When the bill was under consideration, General DeWitt had published his Proclamation No. 1 of March 2, 1942, establishing Military Areas Nos. 1 and 2, and that Proclamation was before Congress. S.Rep. No. 1171, 77th Cong., 2d Sess., p. 2; see also 88 Cong.Rec. 2724. A letter of the Secretary to the Chairman of the House Military Affairs Committee, of March 14, 1942, informed Congress that 'General DeWitt is strongly of the opinion that the bill, when enacted, should be broad enough to enable the Secretary of War or the appropriate military commander to enforce curfews and other restrictions within military areas and zones'; and that General DeWitt had 'indicated that he was prepared to enforce certain restrictions at once for the purpose of protecting certain vital national defense interests but did not desire to proceed until enforcement machinery had been set up'. H.R. Rep. No. 1906, 77th Cong., 2d Sess., p. 3. See also letter of the Acting Secretary of War to the Chairman of the Senate Military Affairs Committee, March 13, 1942, 88 Cong.Rec. 2725. The Chairman of the Senate Military Affairs Committee explained on the floor of the Senate that the purpose of the proposed legislation was to provide means of enforcement of curfew orders and other military orders made pursuant to Executive Order No. 9066. He read General DeWitt's Public Proclamation No. 1, and statements from newspaper reports that 'evacuation of the first Japanese aliens and American-born Japanese' was about to begin. He also stated to the Senate that 'reasons for suspected widespread fifth-column activity among Japanese' were to be found in the system of dual citizenship which Japan deemed applicable to American-born Japanese, and in the propaganda disseminated by Japanese consuls, Buddhist priests and other leaders, among American-born children of Japanese. Such was stated to be the explanation of the contemplated evacuation from the Pacific Coast area of persons of Japanese ancestry, citizens as well as aliens. 88 Cong.Rec. 2722-2726; see also pp. 2729, 2730. Congress also had before it the Preliminary Report of a House Committee investigating national defense migration, of March 19, 1942, which approved the provisions of Executive Order No. 9066, and which recommended the evacuation, from military areas established under the Order, of all persons of Japanese ancestry, including citizens. H.R. Rep. No. 1911, 77th Cong., 2d Sess. The proposed legislation provided criminal sanctions for violation of orders, in terms broad enough to include the curfew order now before us, and the legislative history demonstrates that Congress was advised that curfew orders were among those intended, and was advised also that regulation of citizen and alien Japanese alike was contemplated. The conclusion is inescapable that Congress, by the Act of March 21, 1942, ratified and confirmed Executive Order No. 9066. Prize Cases (The Amy Warwick), 2 Black 635, 671, 17 L.Ed. 459; Hamilton v. Dillin, 21 Wall, 73, 96, 97, 22 L.Ed. 528; United States v. Heinszen & Co., 206 U.S. 370, 382-384, 27 S.Ct. 742, 744, 745, 51 L.Ed. 1098, 11 Ann.Cas. 688; Tiaco v. Forbes, 228 U.S. 549, 556, 33 S.Ct. 585, 586, 57 L.Ed. 960; Isbrandtsen-Moller Co. v. United



States, 300 U.S. 139, 146-148, 57 S.Ct. 407, 411, 81 L.Ed. 562; Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 300-303, 57 S.Ct. 478, 479, 480, 81 L.Ed. 659; Mason Co. v. Tax Comm'n, 302 U.S. 186, 208, 58 S.Ct. 233, 244, 82 L.Ed. 187. And so far as it lawfully could, Congress authorized and implemented such curfew orders as the commanding officer should promulgate pursuant to the Executive Order of the President. The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of. We must consider also whether, acting together, Congress and the Executive could leave it to the designated military commander to appraise the relevant conditions and on the basis of that appraisal to say whether, under the circumstances, the time and place were appropriate for the promulgation of the curfew order and whether the order itself was an appropriate means of carrying out the Executive Order for the 'protection against espionage and against sabotage' to national defense materials, premises and utilities. For reasons presently to be stated, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution. See Ex parte Quirin, 317 U.S. 1, 25, 26, 63 S.Ct. 2, 9, 10, 87 L.Ed. —-. We have no occasion to consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President's action has the support of the Act of Congress, and we are immediately concerned with the question whether it is within the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. The exercise of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Ex parte Quirin, supra. Appellant has been tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed. The war power of the national government is 'the power to wage war successfully'. See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A.Rep. 232, 238. 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 protection 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. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303, 314, 20 L.Ed. 135; Stewart v. Kahn, 11 Wall. 493, 506, 507, 20 L.Ed. 176; Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668; United States v. Macintosh, 283 U.S. 605, 622, 623, 51 S.Ct. 570, 574, 75 L.Ed. 1302. 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 and in the selection of the means for resisting it. Ex parte Quirin, supra, 317 U.S. 28, 29, 63 S.Ct. 10, 11, 87 L.Ed. —-; cf. Prize Cases, supra, 2 Black 670, 17 L.Ed. 459; Martin v. Mott, 12 Wheat. 19, 29, 6 L.Ed. 537. 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 it judgment for theirs. The actions taken must be appraised in the light of the conditions with which the President and Congress were confronted in the early months of 1942, many of which since disclosed, were then peculiarly within the knowledge of the military authorities. On December 7, 1941, the Japanese air forces had attacked the United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department ostensibly for the peaceful settlement of differences between the two countries. Simultaneously or nearly so, the Japanese attacked Malaysia, Hong Kong, the Philippines, and Wake and Midway Islands. On the following day their army invaded Thailand. Shortly afterwards they sank two British battleships. On December 13th, Guam was taken. On December 24th and 25th they captured Wake Island and occupied Hong Kong. On January 2, 1942, Manila fell, and on February 10th Singapore, Britain's great naval base in the East, was taken. On February 27th the battle for the Java Sea resulted in a disastrous naval defeat to the United Nations. By the 9th of March Japanese forces had established control over the Netherlands East Indies; Rangoon and Burma were occupied; Bataan and Corregidor were under attack. Although the results of the attack on Pearl Harbor were not fully disclosed until much later, it was known that the damage was extensive, and that the Japanese by their successes had gained a naval superiority over our forces in the Pacific which might enable them to seize Pearl Harbor, our largest naval base and the last stronghold of defense lying between Japan and the west coast. That reasonably prudent men charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion, take measures against it, and in making the choice of measures consider our internal situation, cannot be doubted. 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 effort and which might reasonably be expected to aid a threatened enemy invasion. The alternative which appellant insists must be accepted is for the military authorities to 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 one-fourth 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.1 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.2 At a time of threatened Japanese attack upon this country, the nature of our inhabitants' attachments 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-thirds 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, Seattle, Portland and Los Angeles, all in Military Area No. 1.3 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.4 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 nationalistic propaganda, cultivating allegiance to Japan.5 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.6 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.7 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.8 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 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.9 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, affecting 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. 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 late 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. Appellant does not deny that, given the danger, a curfew was an appropriate measure against sabotage. It is an obvious protection against the perpetration of sabotage most readily



committed during the hours of darkness. If it was an appropriate exercise of the war power its validity is not impaired because it has restricted the citizen's liberty. Like every military control of the population of a dangerous zone in wartime, it necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines during a fire, or the confinement of people to their houses during an air raid alarm neither of which could be thought to be an infringement of constitutional right. Like them, the validity of the restraints of the curfew order depends on all the conditions which obtain at the time the curfew is imposed and which support the order imposing it. But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Detroit Bank v. United States, 317 U.S. 329, 337, 338, 63 S.Ct. 297, 301, 87 L.Ed. —-, and cases cited. Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 227, 34 S.Ct. 856, 58 L.Ed. 1288. 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. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. We may assume that these considerations would be controlling here were it not for the fact 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 for 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'. McCulloch v. Maryland, 4 Wheat. 316, 407, 415, 4 L.Ed. 579. 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 circumstances 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. Cf. State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115, and cases cited. 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 warwaging 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 associations with Japan. 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, 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 need not now attempt to define the ultimate boundaries of the war power. 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. What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution, Art. 1, § 1, that all legislative power granted 'shall be vested in a Congress' has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy. The purpose of Executive Order No. 9066, and the standard which the President approved for the orders authorized to be promulgated by the military commander—as disclosed by the preamble of the Executive Order—was the protection of our war resources against espionage and sabotage. Public Proclamations No. 1 and 2, by General DeWitt, contain findings that the military areas created and the measures to be prescribed for them were required to establish safeguards against espionage and sabotage. Both the Executive Order and the Proclamations were before Congress when the Act of March 21, 1942, was under consideration. To the extent that the Executive Order authorized orders to be promulgated by the military commander to accomplish the declared purpose of the Order, and to the extent that the findings in the Proclamations establish that such was their purpose, both have been approved by Congress. It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order—the necessity of protecting military resources in the designated areas against espionage and sabotage. And by the Act, Congress gave its approval to that standard. We have no need to consider now the validity of action if taken by the military commander without conforming to this standard approved by Congress, or the validity of orders made without the support of findings showing that they do so conform. Here the findings of danger from espionage and sabotage, and of the necessity of the curfew order to protect against them, have been duly made. General DeWitt's Public Proclamation No. 3, which established the curfew, merely prescribed regulations of the type and in the manner which Public Proclamations No. 1 and 2 had announced would be prescribed at a future date, and was thus founded on the findings of Proclamations No. 1 and 2. The military commander's appraisal of facts in the light of the authorized standard, and the inferences which he drew from those facts, involved the exercise of his informed judgment. But as we have seen, those facts, and the inferences which could be rationally drawn from them, support the judgment of the military commander, that the danger of espionage and sabotage to our military resources was imminent, and that the curfew order was an appropriate measure to meet it. Where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the public are assured that the orders, in the judgment



of the commander, conform to the standards approved by the President and Congress, there is no failure in the performance of the legislative function. Opp Cotton Mills v. Administrator, 312 U.S. 126, 142-146, 657, 61 S.Ct. 524, 531, 533, 85 L.Ed. 624, and cases cited. The essentials of that function are the determination by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution. The very necessities which attend the conduct of military operations in time of war in this instance as in many others preclude Congress from holding committee meetings to determine whether there is danger, before it enacts legislation to combat the danger. The Constitution as a continuously operating charter of government does not demand the impossible or the impractical. The essentials of the legislative function are preserved when Congress authorizes a statutory command to become operative, upon ascertainment of a basic conclusion of fact by a designated representative of the Government. Cf. The Aurora, 7 Cranch 382, 3 L.Ed. 378; United States v. Chemical Foundation, 272 U.S. 1, 12, 47 S.Ct. 1, 5, 71 L.Ed. 131. The present statute, which authorized curfew orders to be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. Under the Executive Order the basic facts, determined by the military commander in the light of knowledge then available, were whether that danger existed and whether a curfew order was an appropriate means of minimizing the danger. Since his findings to that effect were, as we have said, not without adequate support, the legislative function was performed and the sanction of the statute attached to violations of the curfew order. It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order. The conviction under the second count is without constitutional infirmity. Hence we have no occasion to review the conviction on the first count since, as already stated, the sentences on the two counts are to run concurrently and conviction on the second is sufficient to sustain the sentence. For this reason also it is unnecessary to consider the Government's argument that compliance with the order to report at the Civilian Control Station did not necessarily entail confinement in a relocation center.

Affirmed.

Mr. Justice DOUGLAS concurring.

While I concur in the result and agree substantially with the opinion of the Court, I wish to add a few words to indicate what for me is the narrow ground of decision. After the disastrous bombing of Pearl Harbor the military had a grave problem on its hands. The threat of Japanese invasion of the west coast was not fanciful but real. The presence of many thousands of aliens and citizens of Japanese ancestry in or near to the key points along that coast line aroused special concern in those charged with the defense of the country. They believed that not only among aliens but also among citizens of Japanese ancestry there were those who would give aid and comfort to the Japanese invader and act as a fifth column before and during an invasion.1 If the military were right in their belief that among citizens of Japanese ancestry there was an actual or incipient fifth column, we were indeed faced with the imminent threat of a dire emergency. We must credit the military with as much good faith in that belief as we would any other public official acting pursuant to his duties. We cannot possibly know all the facts which lay behind that decision. Some of them may have been as intangible and as imponderable as the factors which influence personal or business decisions in daily life. The point is that we cannot sit in judgment on the military requirements of that hour. Where the orders under the present Act have some relation to 'protection against espionage and against sabotage', our task is at an end. Much of the argument assumes that as a matter of policy it might have been wiser for the military to have dealt with these people on an individual basis and through the process of



investigation and hearings separated those who were loyal from those who were not. But the wisdom or expediency of the decision which was made is not for us to review. Nor are we warranted where national survival is at stake in insisting that those orders should not have been applied to anyone without some evidence of his disloyalty. The orders as applied to the petitioner are not to be tested by the substantial evidence rule. Peacetime procedures do not necessarily fit wartime needs. It is said that if citizens of Japanese ancestry were generally disloyal, treatment on a group basis might be justified. But there is no difference in power when the number of those who are finally shown to be disloyal or suspect is reduced to a small per cent. The sorting process might indeed be as time-consuming whether those who were disloyal or suspect constituted nine or ninety-nine per cent. And the pinch of the order on the loyal citizens would be as great in any case. But where the peril is great and the time is short, temporary treatment on a group basis may be the only practicable expedient whatever the ultimate percentage of those who are detained for cause. Nor should the military be required to wait until espionage or sabotage becomes effective before it moves. It is true that we might now say that there was ample time to handle the problem on the individual rather than the group basis. But military decisions must be made without the benefit of hindsight. The orders must be judged as of the date when the decision to issue them was made. To say that the military in such cases should take the time to weed out the loyal from the others would be to assume that the nation could afford to have them take the time to do it. But as the opinion of the Court makes clear, speed and dispatch may be of the essence. Certainly we cannot say that those charged with the defense of the nation should have procrastinated until investigations and hearings were completed. At that time further delay might indeed have seemed to be wholly incompatible with military responsibilities. 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 a group basis. Petitioner therefore was not justified in disobeying the orders. But I 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. I think that plea was properly stricken; military measures of defense might be paralyzed if it were necessary to try out that issue preliminarily. But a denial of that opportunity in this case does not necessarily mean that petitioner could not have had a hearing on that issue in some appropriate proceeding. Obedience to the military orders is one thing. Whether an individual member of a group must be afforded 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.2 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 only outside the areas in question—is likewise a distinct issue. But if it were plain that no machinery was available whereby the individual could demonstrate his loyalty 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.' United States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302. This includes authority to exercise measures of control over persons and property hich would not in all cases be permissible in normal times.1 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 by this Court that the war power, like the other great substantive powers of government, is subject to the limitations of the Constitution. See Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. 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 could 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 (see Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. —-) 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. Cf. Ex parte Milligan, supra. 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 inequality of treatment for different groups. There 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. Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal liberty of citizens 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 purposes 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. Cf. Yick Wo. v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220; Yu Con Eng v. Trinidad, 271 U.S. 500, 524—528, 46 S.Ct. 619, 625, 626, 70 L.Ed. 1059. See also Boyd v. Frankfort, 117 Ky. 199, 77 S.W. 669, 111 Am.St.Rep. 240; Opinion of the Justices, 207 Mass. 601, 94 N.E. 558, 34 L.R.A.,N.S., 604. It is true that the Fifth Amendment, unlike the Fourteenth, contains no guarantee of equal protection of the laws. Cf. Currin v. Wallace, 306 U.S. 1, 14, 59 S.Ct. 379, 386, 83 L.Ed. 441. 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.2 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. 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 determinations as to the 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 I think that the military arm, 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. 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. Cf. Mr. Justice Brandeis concurring in Whitney v. Cal fornia, 274 U.S. 357, 372, 47 S.Ct. 641, 647, 71 L.Ed. 1095. 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.

I concur in the Court's opinion, except for the suggestion, 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 applications that ordinarily creates, I do not think it is necessary in this case to decide that there is no action a person in the position of General De Witt 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 citizen. But in this case that question need not be faced and I merely add my reservation without indication of opinion concerning it. 1 State Distribution of War Supply and Facility Contracts June 1940 through December 194 (issued by Office of Production Management, Bureau of Research and Statistics, January 18, 1942); Ibid.—Cumulative through February 1943 (issued by War Production Board, Statistics Division, April 3, 1943). 2 See 'Attack upon Pearl Harbor by Japanese Armed Forces', Report of the Commission Appointed by the President, dated January 23, 1942, S.Doc. No. 159, 77th Cong., 2d Sess., pp. 12, 13. 3 Sixteenth Census of the United States, for 1940, Population, Second Series, Characteristics of the Population (Dep't. of Commerce): California, pp. 10, 61; Oregon, pp. 10, 50; Washington, pp. 10, 52. See also H.R.Rep. No. 2124, 77th Cong., 2d Sess., pp. 91-100. 4 Federal legislation has denied to the Japanese citizenship by naturalization (R.S. § 2169; 8 U.S.C. § 703, 8 U.S.C.A. § 703; see Ozawa v. United States, 260 U.S. 178, 43 S.Ct. 65, 67 L.Ed. 199), and the Immigration Act of 1924 excluded them from admission into the United States. 43 Stat. 161, 8 U.S.C. § 213, 8 U.S.C.A. § 213. State legislation has denied to alien Japanese the privilege of owning land. 1 California General Laws (Deering, 1931), Act 261; 5 Oregon Comp. Laws Ann. (1940), § 61-102; 11 Washington Rev.Stat.Ann. (Remington, 1933), §§ 10581, 10582. It has also sought to prohibit intermarriage of persons of Japanese race with Caucasians. Montana Rev.Codes 1935, § 5702. Persons of Japanese descent have often been unable to secure professional or skilled employment except in association with others of that descent, and sufficient employment opportunities of this character have not been available. Mears, Resident Orientals on the American Pacific Coast (1927), pp. 188, 198-209, 402, 403; H.R.Rep. No. 2124, 77th Cong., 2d Sess., pp. 101-138. 5 Hearings before the Select Committee Investigating National Defense Migration, House of Representatives, 77th Cong., 2d Sess., pp. 11702, 11393-11394, 11348. 6 H.R.Rep. No. 1911, 77th Cong., 2d Sess., p. 16. 7 Nationality Law of Japan, Article 1 and Article 20, § 3, and Regulations (Ordinance No. 26) of November 17, 1924,—all printed in Flournoy and Hudson, Nationality Laws (1929), pp. 382, 384-387. See also Foreign Relations of the United States, 1924, vol. 2, pp. 411-413. 8 Statistics released in 1927 by the Consul General of Japan at San Francisco asserted that over 51,000 of the approximately 63,000 American-born persons of Japanese parentage then in the western part of the United States held Japanese citizenship. Mears, Resident Orientals on the American Pacific Coast, pp. 107-08, 429. A census conducted under the auspices of the Japanese government in 1930 asserted that approximately 47% of American-born persons of Japanese parentage in California held dual citizenship. Strong, The Second-Generation Japanese Problem (1934), p. 142. 9 H.R.Rep. No. 1911, 77th Cong., 2d Sess., p. 17.



1 Judge Fee stated in United States v. Yasui, D.C., 48 F.Supp. 40, 44, 45, the companion case to the present one, 'The areas and zones outlined in the proclamations became a theatre of operations, subjected in localities to attack and all threatened during this period with a full scale invasion. The danger at the time this prosecution was instituted was imminent and immediate. The difficulty of controlling members of an alien race, many of whom, although citizens, were disloyal with opportunities of sabotage and espionage, with invasion imminent, presented a problem requiring for solution ability and devotion of the highest order.' 2 See United States v. Powell, D.C., 38 F.Supp. 183; Application of Greenberg, D.C., 39 F.Supp. 13; United States v. Baird, D.C., 39 F.Supp. 392; Micheli v. Paullin, D.C., 45 F.Supp. 687; United States v. Embrey, D.C., 46 F.Supp. 916; In re Rogers, D.C., 47 F.Supp. 265; Ex parte Stewart, D.C., 47 F.Supp. 410; United States v. Smith, D.C., 48 F.Supp. 842; Ex parte Robert, D.C., 49 F.Supp. 131; United States v. Grieme, 3 Cir., 128 F.2d 811; Fletcher v. United States, 5 Cir., 129 F.2d 262; Drumheller v. Berks County Local Board No. 1, 3 Cir., 130 F.2d 610, 612. For cases arising under the Selective Draft Act of 1917, 50 U.S.C.A. Appendix § 201 et seq. see United States v. Kinkead, 3 Cir., 250 F. 692; Ex parte McDonald, D.C., 253 F. 99; Ex parte Cohen, D.C., 254 F. 711; Arbitman v. Woodside, 4 Cir., 258 F. 441; Ex parte Thierit, 6 Cir., 268 F. 472, 476. And see 10 Geo.Wash.L.Rev. 827. 1 Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; United States v. Bethlehem Steel Corp., 315 U.S. 289, 305, 62 S.Ct. 581, 589, 86 L.Ed. 855; Northern Pac. Ry. Co. v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897; Dakota Cent. Tel. Co. v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Highland v. Russell Car & Snow-plow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688; Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856. 2 For instance, if persons of an accused's race were systematically excluded from a jury in a federal court, any conviction undoubtedly would be considered a violation of the requirement of due process of law, even though the ground commonly stated for setting aside convictions to obtained in state courts is denial of equal protection of the laws. Cf. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, with Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84.





323 U.S. 214 65 S.Ct. 193 89 L.Ed. 194

TOYOSABURO KOREMATSU v.


Argued Oct. 11, 12, 1944. Decided Dec. 18, 1944.

Rehearing Denied Feb. 12, 1945.

Mr. Wayne M. Collins, of San Francisco, Cal., and Mr. Charles A. Horsky, of Washington, D.C., for petitioner.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari. It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a, which provides that '* * * whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.' Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. * * *' One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed



as a 'protection against espionage and against sabotage.' In Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage. The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack. In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them. Here, as in the Hirabayashi case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, 87 L.Ed. 1774, '* * * we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.' Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.2 We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed.



841; Block v. Hirsh, 256 U.S. 135, 154, 155, 41 S.Ct. 458, 459, 65 L.Ed. 865, 16 A.L.R. 165. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kumezo Kawato, 317 U.S. 69, 73, 63 S.Ct. 115, 117, 87 L.Ed. 58. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. It is argued that on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands. There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time 'until and to the extent that a future proclamation or order should so permit or direct.' 7 Fed.Reg. 2601. That 'future order', the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did 'direct' exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 27 and May 3rd orders, whether he remained in or left the area. It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as 'assembly centers', in order 'to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration.' Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand. We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the



lawfulness of the others. This is made clear when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. There is no reason why violations of these orders, insofar as they were promulgated pursuant to congressional enactment, should not be treated as separate offenses. The Endo case (Ex parte Mitsuye Endo) 323 U.S. 283, 65 S.Ct. 208, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected. Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us. Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid. It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified. Affirmed.



Mr. Justice FRANKFURTER, concurring.

According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own. The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.' Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382, 87 L.Ed. 1774 and see Home Bldg. & L. Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. 'The war power of the United States, like its other powers * * * is subject to applicable constitutional limitations', Hamilton v. Kentucky Distilleries, Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047; Id., 155 U.S. 3, 15 S.Ct. 19, 39 L.Ed. 49, and Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

Mr. Justice ROBERTS.

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights. This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to



himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated. The Government's argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave and, so, knowingly and intentionally, defying the order and the Act of Congress. The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation. A chronological recitation of events will make it plain that the petitioner's supposed offense did not, in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him therefrom. Critical attention must be given to the dates and sequence of events. December 8, 1941, the United States declared war on Japan. February 19, 1942, the President issued Executive Order No. 9066,1 which, after stating the reason for issuing the order as 'protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities', provided that certain Military Commanders might, in their discretion, 'prescribe military areas' and define their extent, 'from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions' the 'Military Commander may impose in his discretion.' February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union,—about one-fourth of the total area of the nation. March 2, 1942, General DeWitt promulgated Public Proclamation No. 1,2 which recites that the entire Pacific Coast is 'particularly subject to attack, to attempted invasion * * * and, in connection therewith, is subject to espionage and acts of sabotage'. It states that 'as a matter of military necessity' certain military areas and zones are established known as Military Areas Nos. 1 and 2. It adds that 'Such persons or classes of persons as the situation may require' will, by subsequent orders, 'be excluded from all of Military Area No. 1' and from certain zones in Military Area No. 2. Subsequent proclamations were made which, together with Proclamation No. 1, included in such areas and zones all of California, Washington, Oregon, Idaho, Montana, Nevada and Utah, and the southern portion of Arizona. The orders required that if any person of Japanese, German or Italian ancestry residing in Area No. 1 desired to change his habitual residence he must execute and deliver to the authorities a Change of Residence Notice. San Leandro, the city of petitioner's residence, lies in Military Area No. 1. On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that in which he lived. March 21, 1942, Congress enacted3 that anyone who knowingly 'shall enter, remain in, leave, or commit any act in any military area or military zone prescribed * * * by any military commander * * * contrary to the restrictions applicable to any such area or zone or contrary to



the order of * * * any such military commander' shall be guilty of a misdemeanor. This is the Act under which the petitioner was charged. March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra. March 24, 1942, General DeWitt began to issue a series of exclusion orders relating to specified areas. March 27, 1942, by Proclamation No. 4,4 the General recited that 'it is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1 to restrict and regulate such migration'; and ordered that, as of March 29, 1942, 'all alien Japanese and persons of Japanese ancestry who are within the limits of Military Area No. 1, be and they are hereby prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct.'5 No order had been made excluding the petitioner from the area in which he lived. By Proclamation No. 4 he was, after March 29, 1942, confined to the limits of Area No. 1. If the Executive Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor. May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 346 providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry, both alien and non-alien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, supra. It is important to note that the order, by its express terms, had no application to persons within the bounds 'of an established Assembly Center pursuant to instructions from this Headquarters * * *.' The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution. The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document,—and, in the light of the above recitation, I think it is not,—that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order. In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing. June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty and convicted. Sentence was suspended and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 91027 establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation



Authority, and that the petitioner has been confined either in an Assembly Center, within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Mitsuye Endo, 323 U.S. 283, 65 S.Ct. 208, demonstrate, he was illegally held in custody. The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34 ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument then is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature,—a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case with the court's the court. I might agree with the court's disposition of the hypothetical case.8 The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature the Hirabayashi case would be authority for sustaining it. But the facts above recited, and those set forth in Ex parte Metsuye Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality. As I have said above, the petitioner, prior to his arrest, was faced with two diametrically contradictory orders given sanction by the Act of Congress of March 21, 1942. The earlier of those orders made him a criminal if he left the zone in which he resided; the later made him a criminal if he did not leave. I had supposed that if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that under these circumstances a conviction for violating one of the orders could not stand. We cannot shut our eyes to the fact that had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation instead of addressing ourselves to the actualities of the case? These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that where he was subject to two conflicting laws he was not bound, in order to escape violation of one of the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter. Again it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute but must obey it though he knows it is no law and, after he has suffered the disgrace of conviction and



lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law. Moreover, it is beside the point to rest decision in part on the fact that the petitioner, for his own reasons, wished to remain in his home. If, as is the fact he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him, in order to sustain his conviction for violation of another contradictory order. I would reverse the judgment of conviction.

Mr. Justice MURPHY, dissenting.

This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism. In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation. At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.' Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 196, 77 L.Ed. 375. The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627, 628, 20 L.Ed. 474; Mitchell v. Harmony, 13 How. 115, 134, 135, 14 L.Ed. 75; Raymond v. Thomas, 91 U.S. 712, 716, 23 L.Ed. 434. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast 'all persons of Japanese ancestry, both alien and non-alien,' clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an 'immediate, imminent, and impending' public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law. It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all



persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption. That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area.1 In it he refers to all individuals of Japanese descent as 'subversive,' as belonging to 'an enemy race' whose 'racial strains are undiluted,' and as constituting 'over 112,000 potential enemies * * * at large today' along the Pacific Coast.2 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,3 or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group. Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be 'a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.'4 They are claimed to be given to 'emperor worshipping ceremonies'5 and to 'dual citizenship.'6 Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,7 together with facts as to certain persons being educated and residing at length in Japan.8 It is intimated that many of these individuals deliberately resided 'adjacent to strategic points,' thus enabling them 'to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.' 9 The need for protective custody is also asserted. The report refers without identity to 'numerous incidents of violence' as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the 'situation was fraught with danger to the Japanese population itself' and that the general public 'was ready to take matters into its own hands.'10 Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,11 as well as for unidentified radio transmissions and night signalling. The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.12 A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.13 The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even



more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group 'were unknown and time was of the essence.'14 Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these 'subversive' persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be. Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,15 a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved—or at least for the 70,000 American citizens—especially when a large part of this number represented children and elderly men and women. 16 Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals. I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

Mr. Justice JACKSON, dissenting.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority.



This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, § 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it. But the 'law' which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine. It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law. But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.



In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint. Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a farm more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.'1 A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case. It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience. In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: 'Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.' 320 U.S. at page 101, 63 S.Ct. at page 1386, 87 L.Ed. 1774. 'We decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.' 320 U.S. at page 102, 63 S.Ct. at page 1386, 87 L.Ed. 1774. And again: 'It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.' 320 U.S. at page 105, 63 S.Ct. at page 1387, 87 L.Ed. 1774. (Italics supplied.) However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.



I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner.

1 9 Cir., 140 F.2d 289. 2 Hearings before the Subcommittee on the National War Agencies Appropriation Bill for

1945, Part II, 608—726; Final Report, Japanese Evacuation from the West Coast, 1942, 309—327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37—42, 49—58. 1 7 Fed.Reg. 1407. 2 7 Fed.Reg. 2320. 3 56 Stat. 173, 18 U.S.C.A. § 97a. 4 7 Fed.Reg. 2601. 5 The italics in the quotation are mine. The use of the word 'voluntarily' exhibits a grim irony probably not lost on petitioner and others in like case. Either so, or its use was a disingenuous attempt to camouflage the compulsion which was to be applied. 6 7 Fed.Reg. 3967. 7 Fed.Reg. 2165. 8 My agreement would depend on the definition and application of the terms 'temporary' and 'emergency'. No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841. 1 Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J. L. De Witt. This report is dated June 5, 1943, but was not made public until January, 1944. 2 Further evidence of the Commanding General's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739—40 (78th Cong., 1st Sess.): I don't want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. * * *



The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. * * * But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. * * *' 3 The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that 'while it was believed that some were loyal, it was known that many were not.' (Italics added.) 4 Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States. 5. Final Report, pp. 10—11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown. 6 Final Report, p. 22. The charge of 'dual citizenship' springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Freeman, 'Genesis, Exodus, and Leviticus; Genealogy, Evacuation, and Law,' 28 Cornell L.Q. 414, 447—8, and authorities there cited; McWilliams, Prejudice, 123—4 (1944). 7 Final Report, pp. 12. We have has various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121—3 (1944). 8 Final Report, pp. 13. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement—the actions and membership of which are well known to our Government agents. 9 Final Report, p. 10 see also pp. vii, 9, 15—17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, 119 121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59—93. 10 Final Report, pp. 8. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1—2. Cf. House Report No. 2124 (77th Cong., 2d Sess.) 145—7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944).



11 Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942—a considerable time after the Japanese American had been evacuated from their home and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3. 12 Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154—6; McWilliams, Prejudice, 126—8 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that 'We're charged with wanting to get rid of the Japs for selfish reasons. We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. * * * They undersell the white man in the markets. * * * They work their women and children while the white farmer has to pay wages for his help,. If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either.' Quoted by Taylor in his article 'The People Nobody Wants,' 214 Sat. Eve. Post 24, 66 (May 9, 1942). 13 See notes 4—12, supra. 14 Final Report, p. vii; see also p. 18. 15 The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, 'The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.' Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage. 16 During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a 'friendly enemy.' About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, 'The Enemy Alien Problem in the Present War,' 34 Amer. Journ. of Int. Law 443, 444—46; House Report No. 2124 (77th Cong., 2d Sess.), 280—1. 1 Nature of the Judicial Process, p. 51.







828 F.2d 591 Gordon K. HIRABAYASHI, Petitioner-Appellant,

v. UNITED STATES of America, Respondent-Appellee.

Gordon K. HIRABAYASHI, Petitioner-Appellee, v.

UNITED STATES of America, Respondent-Appellant. Nos. 86-3853, 86-3887.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 2, 1987. Decided Sept. 24, 1987.

Rodney L. Kawakami, Kathryn Bannai, Arthur G. Barnett, Jeffrey A. Beaver, Camden M. Hall, Daniel J. Ichinaga, Gary D. Iwamoto, Craig T. Kobayashi, Michael Leong, Nina L. Mar, Karen Narasaki, Sharon A. Sakamoto, Roger H. Shimizu, Benson D. Wong, Seattle, Wash., for petitioner/appellant/cross-appellee.

Victor D. Stone, Washington, D.C., for respondent/appellee/cross-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges.

SCHROEDER, Circuit Judge:

I. INTRODUCTION

Gordon Hirabayashi is an American citizen who was born in Seattle, Washington, in 1918, and is currently Professor Emeritus of Sociology at the University of Alberta. He is of Japanese ancestry. In 1942 he was living in Seattle and was therefore subject to wartime orders requiring all persons of Japanese ancestry, whether citizens or not, to remain within their residences between 8:00 p.m. and 6:00 a.m. He was also subject to subsequent orders to report to a Civilian Control Station for processing requisite to exclusion from the military area. Hirabayashi refused to honor the curfew or to report to the control station because he believed that the military orders were based upon racial prejudice and violated the protection the Constitution affords to all citizens. The Supreme Court reviewed his conviction for violating the curfew order and unanimously affirmed. In an opinion by Chief Justice Stone, the Court accepted the government’s position that the curfew was justified by military assessments of emergency conditions existing at the time. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Because Hirabayashi had received a concurrent sentence for violating the exclusion order, the Court affirmed that conviction as well. Id. at 105, 63 S.Ct. at 1387. The following year, a majority of what was by then a sharply divided Court applied the same military emergency rationale to uphold explicitly the exclusion of all citizens of Japanese ancestry from the West Coast. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

The Hirabayashi and Korematsu decisions have never occupied an honored place in our history. In the ensuing four and a half decades, journalists and researchers have stocked library shelves with studies of the cases and surrounding events. These materials document historical judgments that the convictions were unjust. They demonstrate that there could have been no reasonable military assessment of an emergency at the time, 1 that the orders were based upon racial stereotypes, 2 and that the orders caused needless suffering and shame for thousands of



American citizens. 3 The legal judgments of the courts reflecting that Hirabayashi and Korematsu had been properly convicted of violating the laws of the United States, however, remained on their records. Petitioner filed this lawsuit in 1983 to obtain a writ of error coram nobis to vacate his convictions and thus to make the judgments of the courts conform to the judgments of history.

The event which triggered the lawsuit occurred in 1982, when an archival researcher discovered the sole remaining copy of the original report prepared by the general who issued the curfew and exclusion orders. This report was intended to explain the basis for those orders. War Department officials revised the report in several material respects and tried to destroy all of the original copies before issuing the final report. The Justice Department did not know of the existence of the original report at the time its attorneys were preparing briefs in the Hirabayashi and Korematsu cases.

In his coram nobis petition Hirabayashi contended that the original report, the circumstances surrounding its alteration, and recently discovered related documents provided the proof, unavailable at the time of his conviction, that the curfew and exclusion orders were in fact based upon racial prejudice rather than military exigency. Hirabayashi further alleged that the government concealed these matters from his counsel and the Supreme Court, and that had the Supreme Court known the true basis for the orders, the ultimate decision in the case would probably have been different.

The district court held a full evidentiary proceeding on Hirabayashi’s claims. It reviewed hundreds of documents and heard the testimony of several witnesses. They included Edward Ennis, who had been the Director of the Alien Enemy Control Unit at the Department of Justice and a principal author of the government’s briefs in both the Hirabayashi and Korematsu cases; William Hammond, who had been the Assistant Chief of Staff for the entire Western Defense Command; Aiko Herzig-Yoshinaga, a researcher for the Commission on Wartime Relocation and Internment of Civilians from 1981 to 1983 and the person who discovered the original version of the final report.

In a careful opinion containing detailed findings of fact, the district court confirmed Hirabayashi’s contentions in virtually every factual respect. See Hirabayashi v. United States, 627 F.Supp. 1445 (W.D.Wash.1986). It rejected as factually and legally unsupported the government’s arguments that Hirabayashi had not been prejudiced by the concealment of the newly discovered material, that Hirabayashi could and should have made the same claims years earlier, and that there was no remaining case or controversy because Hirabayashi suffered no continuing adverse consequences from the original convictions.

The district court held that Hirabayashi’s conviction for violating the exclusion order resulted in a violation of due process and ordered it vacated. 627 F.Supp. at 1457. Another district court has reached the same result in the Korematsu case, Korematsu v. United States, 584 F.Supp. 1406 (N.D.Cal.1984), and there has been no appeal. 4 The district court in this case, however, concluded as a matter of law that the curfew conviction should not be vacated. It ruled that because the curfew order less significantly infringed Hirabayashi’s freedom, the Supreme Court would have distinguished it from the exclusion order and would have affirmed the conviction even if it had known the racial basis of the order. Hirabayashi, 627 F.Supp. at 1457.

Both Hirabayashi and the government appeal. In reviewing the district court’s decision, we must uphold the findings of fact unless they are clearly erroneous, and review the legal issues de novo. United States v. McConney, 728 F.2d 1195, 1200 n. 5 & 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We agree with the district court’s factual and legal analysis leading to its vacation of the exclusion conviction. We



disagree with the court’s conclusion that the curfew conviction rests upon a legal foundation different from the exclusion conviction. We therefore hold that both convictions should be vacated.

II. FACTUAL BACKGROUND This proceeding is a collateral attack upon convictions for violating military orders promulgated in 1942. The facts underlying this litigation thus form a very small part of the great mosaic of American participation in World War II. In order to resolve the contentions of both parties on appeal, we must first understand the nature and origin of the crimes of which the petitioner was convicted; the posture of the case as it was presented to the United States Supreme Court; the material which the government suppressed from the Court; and the relevance of that material to the Supreme Court’s analysis.

A. The Military Exclusion Orders and Hirabayashi’s Conviction. On December 7, 1941, President Roosevelt issued Presidential Proclamation No. 2525, reprinted in H.R.Rep. No. 2124, 77th Cong., 2d Sess. (1942); R. Daniels, supra note 1, at 61, delegating broad authority to the Attorney General and the Secretary of War to promulgate and enforce regulations aimed at curtailing the liberties of enemy aliens following the declaration of war against Japan, Italy, and Germany. A subject of immediate governmental internal debate was whether or not our Constitution permitted similar action with respect to citizens, and specifically, whether or not the evacuation of citizens of Japanese ancestry from the West Coast was appropriate. The Justice Department consistently took the view that civilian authorities could not authorize the exclusion of citizens and that the matter should be left to military judgment. 5

Consistent with that view, President Roosevelt signed Executive Order No. 9066 on February 19, 1942. It authorized the Secretary of War or his designees to prescribe military areas from which any or all persons, citizens as well as aliens, might be excluded. Exec. Order No. 9066, 3 C.F.R. 1092 (1938-1943 Comp.). The next day, Secretary of War Stimson delegated his authority under the Executive Order to Lt. Gen. John L. DeWitt, the Commanding General of the Western Defense Command. On March 2, 1942, General DeWitt issued Public Proclamation No. 1, designating “Military Areas” within the western states. 7 Fed.Reg. 2320 (1942). On March 21, President Roosevelt signed legislation making it a misdemeanor to disregard restrictions imposed by a military commander. Pub.L. No. 77-503, 56 Stat. 173 (1942).

Based upon the authority of the Executive Order and the criminal statute, General DeWitt began issuing orders requiring certain persons to obey curfew restrictions and report at designated times and places for evacuation from military areas. Two of these orders provided the basis for Hirabayashi’s convictions.

In Public Proclamation No. 3, dated March 24, 1942, General DeWitt proclaimed “as a matter of military necessity” that all German and Italian aliens and all persons of Japanese ancestry, whether aliens or American citizens, within established military zones would be required beginning March 28, 1942, to remain within their place of residence between 8 p.m. and 6 a.m. 7 Fed.Reg. 2543. That same day, General DeWitt began issuing a series of Civilian Exclusion Orders, each relating to a specified area within the territory of his command. Order No. 57, pertaining to Seattle, issued May 10, 1942, required the petitioner to report either May 11 or May 12 to a designated civilian control station as a prerequisite to exclusion from the military area on May 16. 7 Fed.Reg. 3725. Hirabayashi went instead to the FBI where he volunteered that he had not abided by the curfew restrictions and that he, as a matter of



conscience, would not register with the civilian control station. Hirabayashi’s actual loyalty to this country has apparently never been questioned before, during or since World War II. 6

A grand jury indicted petitioner on May 28, 1942. Count I charged that he had failed to report pursuant to Civilian Exclusion Order 57. Count II charged the curfew violation. He was tried by a jury in October 1942, found guilty, and sentenced to three months on each count to be served concurrently. 7 On appeal, this court certified issues to the Supreme Court, and the Supreme Court on April 5, 1943, certified the entire record to it. Hirabayashi, 320 U.S. at 84-85, 63 S.Ct. at 1378.

B. The Supreme Court Proceedings. Briefing to the Supreme Court took place in the spring of 1943. In his brief, Hirabayashi argued that there was no emergency justifying a racially based classification and that the orders had been issued upon invidious racial prejudice. For example, Hirabayashi’s brief stated:

Whatever may have been the panicky notion about a Japanese invasion of the West Coast right after Pearl Harbor, it was quite evident by the time the orders here in question were promulgated that the Japanese were not easily going to be able to do this. They had not invaded Australia; had not even attacked Hawaii a second time. [footnote omitted] The picture of Japanese paratroops hiding among the Japanese residents of the West Coast to assist at an invasion is pure fantasy. The truth of the matter is that there was no military necessity, nor even reasonable ground for belief that such necessity required either general curfew regulations or wholesale evacuation orders.

Brief for Appellant at 19, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) (No. 870).

The Justice Department justified the exclusion and curfew orders upon what it said was a reasonable judgment of military necessity. It argued that because of cultural characteristics of the Japanese Americans, including religion and education, it was likely that some, though not all, American citizens of Japanese ancestry were disloyal. Brief for United States at 18-32. It then argued that because of the military exigencies, the government did not wait to segregate the loyal from the disloyal. The government’s brief stated:

The classification was not based upon invidious race discrimination. Rather, it was founded upon the fact that the group as a whole contained an unknown number of persons who could not readily be singled out and who were a threat to the security of the nation; and in order to impose effective restraints upon them it was necessary not only to deal with the entire group, but to deal with it at once.

Id. at 35. Later in its brief, the government stated that “[w]hat was needed was a method of removing at once the unknown number of Japanese persons who might assist a Japanese invasion, and not a program for sifting out such persons in the indefinite future.” Id. at 62.

The government claimed that the “operative fact” on which the classification was made was the danger arising from the existence of over 100,000 persons of Japanese descent on the West Coast. Id. at 63. It acknowledged, however, that the “record in this case does not contain any comprehensive account of the facts which gave rise to the exclusion and curfew measures here involved.” Id. at 10-11. The government therefore made extensive use of judicial notice in order to convey its position that those responsible for the orders reasonably regarded an emergency situation to exist. It argued that “historical facts” and “facts appear[ing] in official documents ... are peculiarly within the realm of judicial notice.” Id. at 11.



The government’s argument that the urgency of the situation made individual hearings to determine loyalty impossible was the subject of special concern. Solicitor General Charles Fahy filed a post-argument memorandum stressing that the hearings could not have been utilized because the “situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings.” (emphasis added). 8

The Supreme Court decided the case on June 21, 1943. The government’s view prevailed; Chief Justice Stone deferred to the military assessment of necessity. The Court saw the racial classification as justifiable only as a matter of military expediency, and indicated that it had to accept the judgment of the military authorities that the exigencies of time required the entire Japanese population to be treated as a group. The Court concluded:

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 warmaking 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....

320 U.S. at 99, 63 S.Ct. at 1385.

The problem for the Court was stated with greater anguish in Justice Douglas’ concurring opinion where he pointed out that “guilt is personal under our constitutional system. Detention for reasonable cause is one thing. Detention on account of ancestry is another.” 320 U.S. at 107-08, 63 S.Ct. at 1389 (Douglas, J., concurring). He nevertheless rejected Hirabayashi’s argument, concluding that expediency so required.

Much of the argument assumes that as a matter of policy it might have been wiser for the military to have dealt with these people on an individual basis and through the process of investigation and hearings separated those who were loyal from those who are not. But the wisdom or expediency of the decision which was made is not for us to review.... [W]here the peril is great and the time is short, temporary treatment on a group basis may be the only practicable expedient whatever the ultimate percentage of those who are detained for cause.

Id. at 106-07, 63 S.Ct. at 1388 (Douglas, J., concurring).

C. The Coram Nobis Proceedings: General DeWitt’s Report and Other Matters Developed in the Record Below.

Hirabayashi filed this coram nobis proceeding early in 1983, alleging that new material had come to light in this decade which showed that the Department of War had suppressed evidence from both Hirabayashi and the Justice Department during the crucial period when the case was being presented to the Supreme Court, and that this material required the court to grant the unusual writ of coram nobis to vacate the convictions. The government, recognizing that the circumstances surrounding Hirabayashi’s convictions may have been unjust, 9 nevertheless asked the district court to refrain from considering the facts, and to dismiss the petition for coram nobis. It asked the court instead to utilize the provisions of Fed.R.Crim.P. 48, permitting termination of a prosecution by dismissal of the indictment, to vacate the conviction. The district court denied the government’s motion to dismiss and held a full evidentiary hearing on Hirabayashi’s claims.

The principal factual matter developed at the trial concerned the suppressed report of General DeWitt. This report set forth the basis for his promulgation of the orders of which Hirabayashi stood convicted. At the time General DeWitt issued his series of orders regarding



curfew and exclusion in 1942, neither he nor the War Department provided any factual explanation of the reasons for the orders. After they were issued, General DeWitt prepared such a report. The official version of the report, Final Report: Japanese Evacuation from the West Coast 1942, was dated June 5, 1943, but was not made public until January 1944. Recent historical research, however, has uncovered in the National Archives a previously unknown copy of an original version of that report. That copy reflects that General DeWitt transmitted his original report to the War Department in Washington on April 15, 1943. See Hirabayashi, 627 F.Supp. at 1449, 1455-56 (describing circumstances surrounding discovery and transmittal).

The original version differed materially from the official version. Most significantly, the original report did not purport to rest on any military exigency, but instead declared that because of traits peculiar to citizens of Japanese ancestry it would be impossible to separate the loyal from the disloyal, and that all would have to be evacuated for the duration of the war. Other documents in the record below show that officials in the War Department were alarmed when they received the original report. The district court observed that Assistant Secretary of War John J. McCloy was “more than a little exercised because the Final Report had been printed in final form and distributed without any prior consultation by the Western Defense Command with the War Department about its contents.” 627 F.Supp. at 1450.

McCloy and Colonel Karl Bendetsen, who was in charge of the Wartime Civil Control Administration of the Western Defense Command, had a number of communications with General DeWitt in order to persuade him to change the report. Id. at 1450-53. At first intransigent, DeWitt stated “[I] [h]ave no desire to compromise in any way govt case in Supreme Court.” 627 F.Supp. at 1451 (quoting Letter of May 5, 1943, from General DeWitt to Brigadier General Barnett). He eventually capitulated. The result was that the report was changed in several substantive respects after the War Department suggested some fifty-five alterations. The changes most relevant to this case were summarized by the district court as follows:

Page iii, paragraph 2, second sentence: Eliminate the words “and will continue for the duration of the present war.” Page iii, paragraph 2, end of the second sentence: Insert “The surprise attack at Pearl Harbor by the enemy crippled a major portion of the Pacific Fleet and exposed the West Coast to an attack which could not have been substantially impeded by defensive fleet operations. More than 120,000 persons of Japanese ancestry resided in colonies adjacent to many highly sensitive installations. Their loyalties were unknown, and time was of the essence.”

Page 9. Strike the following: “It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats’ was unfeasible.”

And replace with the following: “To complicate the situation, no ready means existed for determining the loyal and the disloyal with any degree of safety. It was necessary to face the realities--a positive determination could not have been made.”

627 F.Supp. at 1451-52.

The revised, official version of the report was dated June 5, 1943. The War Department tried to destroy all copies of the original report when the revised version was prepared. This record contains a memo by Theodore Smith of the Civil Affairs Division of the Western Defense



Command, dated June 29, 1943, certifying that he witnessed the burning of “the galley proofs, galley pages, drafts and memorandums of the original report of the Japanese Evacuation.”

Edward Ennis, the Director of the Alien Enemy Control Unit of the Justice Department and a principal author of the government’s 1942 brief, testified extensively in these proceedings. He testified as to his efforts in 1943 and 1944 in briefing both the Korematsu and Hirabayashi cases, and other efforts on the part of the Justice Department to obtain the full materials from the War Department supporting General DeWitt’s decisions. While preparing the government’s brief in Hirabayashi, Ennis learned that a report had been written but when he asked for a copy, the War Department gave him only a few selected pages. The district court observed, in denying the Government’s Petition for Rehearing in this case, that it found Ennis entirely credible and that it believed that had Ennis had the original report showing the true rationale of DeWitt, he would have informed the Supreme Court of its contents.

On the basis of the evidence before it, the district court entered an extensive opinion setting forth the reasons for its decision to vacate the exclusion conviction. Judge Voorhees based that decision upon the factual record developed before him. He found first, that while the Supreme Court based its decision in Hirabayashi upon deference to military judgment of the need for expediency, General DeWitt, the person responsible for the racially based confinement of American citizens, had made no such judgment. The district court further found that the United States government doctored the documentary record to reflect that DeWitt had made a judgment of military exigency. Finally, the court found that had the suppressed material been submitted to the Supreme Court, its decision probably would have been materially affected. The government appeals the grant of relief.

The district court refused, however, to grant coram nobis relief with respect to the curfew conviction. It based that decision upon its conclusion that the Supreme Court would have drawn a legal distinction between the curfew and exclusion orders. It is from that denial of relief that Hirabayashi appeals. We consider first the contentions of the government.

III. THE GOVERNMENT’S CONTENTIONS IN ITS APPEAL The government’s contentions in its appeal from the district court’s decision to vacate the exclusion conviction can be classified in four general categories. They are, first, that certain factual determinations of the district court are clearly erroneous; second, that the claims are barred by laches; third, that the case is moot because Hirabayashi does not continue to suffer from any adverse consequences from the convictions; and, finally, that the district court abused its discretion in reaching the merits of the petition by not granting the government’s motion to vacate the convictions pursuant to Fed.R.Crim.P. 48.

A. Factual Challenges. We turn to the government’s challenge to certain of the district court’s factual findings. The government first takes issue with the district court’s finding that it was General DeWitt who made the decision that exclusion of all persons of Japanese ancestry from the West Coast was required by military necessity. 627 F.Supp. at 1456. Support for the finding that the decision was General DeWitt’s is abundant in this record. Secretary of War Stimson delegated his authority to General DeWitt pursuant to the power delegated to Stimson by the President. See Public Proclamation No. 1, 7 Fed.Reg. 2320 (1942). There has been no showing that General DeWitt even consulted with War Department officials in Washington before issuing the orders Hirabayashi refused to obey. It is now clear that DeWitt did not consult with Washington before preparing his final report. Hirabayashi, 627 F.Supp. at 1450. As one commentator wrote soon after the orders were issued: “The Japanese question had political and economic angles, but the President’s Executive Order of February 19 treated it as fundamentally a military problem



and placed responsibility squarely upon the Commanding General.” Fairman, The Law of Martial Rule and the National Emergency, 55 Harv.L.Rev. 1253, 1299 (1942).

The government points to uncontroverted evidence in the record that there were those in the War Department who did not agree with the reasons given by General DeWitt for the order and would have justified the order on other grounds. This evidence, however, merely underscores the critical nature of General DeWitt’s decision and his report. It was because General DeWitt had exercised the authority, and because his judgment was essential, that the War Department suppressed the original version of his report in the first place. Indeed, Solicitor General Fahy in his oral argument in 1944 in Korematsu conceded that it was the views of the Commanding General which counted, and that if his orders had been based upon racist precepts, they would have been invalid. The following colloquy took place in which Justice Frankfurter and the Solicitor General discussed the revised version of DeWitt’s report without knowledge of the existence of the original version.

MR. JUSTICE FRANKFURTER: Suppose the commanding general, when he issued Order No. 34, had said, in effect, “It is my judgment that, as a matter of security, there is no danger from the Japanese operations; but under cover of war, I had authority to take advantage of my hostility and clear the Japanese from this area.” Suppose he had said that, with that kind of crude candor. It would not have been within his authority, would it?

MR. FAHY: It would not have been.

MR. JUSTICE FRANKFURTER: As I understand the suggestion, it is that, as a matter of law, the report of General DeWitt two years later proved that that was exactly what the situation was. As I understand, that is the legal significance of the argument.

MR. FAHY: That is correct, Your Honor; and the report simply does nothing of the kind.

To support its position the government cites language in the Supreme Court’s opinion in Hirabayashi, referring to the judgment of Congress and military authorities, in order to suggest that somehow the Supreme Court made a factual finding contrary to the district court’s finding. Hirabayashi, 320 U.S. at 99, 63 S.Ct. at 1385. Neither the Supreme Court’s opinion nor the record before it in 1943 supports such an argument. The district court’s decision correctly reflects the historical record that the orders were the direct result of General DeWitt’s exercise of the authority delegated to him. The district court’s finding that it was General DeWitt who decided that the curfew and exclusion orders were required is not clearly erroneous.

The government next challenges as factually erroneous the district court’s finding that the Supreme Court in 1943 would probably have reached a different result in the exclusion case if it had known the true basis for the General’s decision. The government disagrees with the following portions of the district court’s opinion:

Had the statement of General DeWitt been disclosed to petitioner’s counsel, they would have been in a position to argue that, contrary to General DeWitt’s belief, there were in fact means of separating those who were loyal from those who were not; that the legal system had developed through the years means whereby factual questions of the most complex nature could be answered with a high degree of reliability. Counsel for petitioner could have pointed out that with very little effort the determination could have been made that tens of thousands of native-born Japanese Americans--infants in arms, children of high



school age or younger, housewives, the infirm and elderly--were loyal and posed no possible threat to this country.

* * * * * *

Had counsel for petitioner known and been able to present to the Supreme Court the [initial] reason stated by General DeWitt for the evacuation of all Japanese, [and] ... [i]f the military necessity for exclusion was the impossibility of separating the loyal from the disloyal, the Supreme Court would not have had to defer to military judgment because this particular problem, separating the loyal from the disloyal, was one calling for judicial, rather than military, judgment.

627 F.Supp. at 1456-57.

The government characterizes its challenge as one to a factual finding, which we must uphold unless clearly erroneous. To the extent, however, that the government is asking us to assess the district court’s judgment as to the legal materiality of the suppressed evidence, it is also raising a question of law, and we review with greater latitude. See McConney, 728 F.2d at 1204 (adopting functional analysis for mixed questions of law and fact).

In making this challenge, the government agrees with petitioner and the district court that the Supreme Court in Hirabayashi deferred to a military judgment that circumstances required the prompt evacuation of all Japanese Americans, and that there was not enough time to attempt to separate the loyal from the disloyal. The government also agrees with petitioner and the district court that General DeWitt acted on the basis of his own racist views and not on the basis of any military judgment that time was of the essence. What the government contends in this appeal is that on the basis of the record before it, the Supreme Court should have known both that General DeWitt was a racist, and that he made no military judgment of emergency. The government asks us to hold, therefore, that the Supreme Court probably would have reached the same erroneous result even if the government had not suppressed the evidence and had accurately represented to the Court the basis of General DeWitt’s decision.

There are several problems with this position. First, as the district court observed when it denied rehearing, the material in the record before the Supreme Court showing General DeWitt’s racism was limited primarily to a newspaper clipping. More importantly, it was principally Hirabayashi and those amici who supported him, not the government, who presented the evidence of racial bias to the Court and who argued that the decisions must have been based upon racism rather than military necessity. By contrast, the information now in the public record constitutes objective and irrefutable proof of the racial bias that was the cornerstone of the internment orders.

The basis for General DeWitt’s decision was a very crucial issue which divided the government and Hirabayashi. For illustration, Hirabayashi’s brief referred to testimony by DeWitt indicating that “prejudice dominated his thinking,” and quoted him as stating: “It makes no difference whether the Japanese is theoretically a citizen ... A Jap is a Jap.” San Francisco News, April 13, 1943, at 1, cited in Reply Brief for Appellant at 1 n. 2. Extracts from the newspaper article were reproduced in the appendix to that brief. The Amicus Brief of the American Civil Liberties Union, in support of Hirabayashi’s position, also suggested that the order was based upon the racist view that it was impossible to segregate the loyal from the disloyal:

There were those, of course, who claimed that it would have been impossible to tell the loyal from the disloyal; who said that all persons of Japanese ancestry look alike. It is a challenge to the intelligence of this nation that such childish opinions actually carried the day.



Brief for American Civil Liberties Union at 13. Similar arguments were made by the Japanese American Citizens League in their Amicus Brief in support of Hirabayashi.

The government, on the other hand, through the device of judicial notice asked the Supreme Court to recognize that the judgment made was one of exigency; the “principal danger to be apprehended was a Japanese invasion.” Brief for United States at 65. It argued that the “situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings.” Post-Argument Memorandum of Solicitor General Fahy. In deciding the case against Hirabayashi, the Supreme Court obviously accepted the government’s view of the facts as the government presented them in 1943, and rejected Hirabayashi’s.

In asking us to hold that the Supreme Court would have reached the same result even if the Solicitor General had advised Hirabayashi and the Court of the true basis for General DeWitt’s orders, the government ignores the fact that in 1943 it was clearly in a better position to know that basis than was the defense. It also ignores the traditionally special relationship between the Supreme Court and the Solicitor General which permits the Solicitor General to make broad use of judicial notice and commands special credence from the Court. 10 The record here shows that Ennis, in preparing the government’s brief, felt that responsibility keenly. 11

The importance which the Supreme Court attached to the statements of the government regarding the factual situation at the time was brought out during the course of the proceedings in Korematsu, decided a year after Hirabayashi. By the time Korematsu was briefed and argued, the revised version of DeWitt’s report had been made public. Justice Department attorneys with access to contemporaneous intelligence reports had had misgivings about the accuracy of even that version. This apprehension was reflected in a footnote to the government’s brief in Korematsu limiting reliance on the report. 12 The footnote came up during oral argument, the transcript of which is in this record. Solicitor General Fahy denied that the footnote was a repudiation of the military necessity of the evacuation and reaffirmed the government’s position in Hirabayashi. 13

The Court’s divided opinions in Korematsu demonstrate beyond question the importance which the Justices in Korematsu and Hirabayashi placed upon the position of the government that there was a perceived military necessity, despite contrary arguments of the defendants in those cases. The majority in Korematsu reaffirmed the Court’s deference in Hirabayashi to military judgments. Justice Murphy’s dissent highlighted the difference between his position and the majority’s. He expressly faulted the majority’s acceptance of the government’s justification that “time is of the essence.” We now know this very phrase was inserted by the War Department into DeWitt’s final report and was not a concept upon which DeWitt himself based his decision. Justice Murphy said:

No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. [citation omitted] It is asserted merely that the loyalties of this group “were unknown and time was of the essence.”

Korematsu, 323 U.S. at 241, 65 S.Ct. at 205 (Murphy, J., dissenting) (emphasis added). Justice Jackson’s dissent zeroed in on the majority’s acceptance of General DeWitt’s revised report. He stated:

So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.



Id. at 245, 65 S.Ct. at 207 (Jackson, J., dissenting).

The majority decision in Korematsu was a reaffirmation that it would defer to a military judgment of necessity in upholding first the curfew and then the exclusion orders.

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground.

Id. at 218-19, 65 S.Ct. at 195. The claimed emergency preventing the separation of loyal from disloyal Japanese Americans was critical to the Supreme Court’s decisions upholding the internment of Hirabayashi and Korematsu. This was clearly evidenced when the Court subsequently held that detention of a concededly loyal Japanese American citizen was unlawful. See Ex Parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944).

We cannot hold that the district court erred in deciding that the reasoning of the Supreme Court would probably have been profoundly and materially affected if the Justice Department had advised it of the suppression of evidence which established the truthfulness of the allegations made by Hirabayashi and Korematsu concerning the real reason for the exclusion order.

B. Coram Nobis Requirements: the Issues of Laches and Mootness. Hirabayashi has filed a petition for a writ of error coram nobis asking the court to vacate his 1942 misdemeanor convictions. In United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), the Supreme Court held that coram nobis relief is available to challenge the validity of a conviction, even though the sentence has been fully served, id. at 503-04, 74 S.Ct. at 248-49, “under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. at 252. As we recently explained in Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985), the coram nobis writ “fills a void in the availability of post-conviction remedies in federal criminal cases.” A convicted defendant who is in federal custody and claims that his sentence “was imposed in violation of the Constitution or laws of the United States ... or is otherwise subject to collateral attack” may move to have his sentence vacated under 28 U.S.C. § 2255. Such habeas corpus relief is not available, however, to a defendant who has served his sentence and has been released from custody. In such a situation, “no statutory avenue to relief [exists] from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact.” Yasui, 772 F.2d at 1498. See Morgan, 346 U.S. at 512-13, 74 S.Ct. at 253 (noting potential collateral consequences; “[s]ubsequent convictions may carry heavier penalties, civil rights may be affected”). Nor is a motion for a new trial based on newly discovered evidence available to petitioners who have long since served their sentences because such a motion must be filed within two years of the date of the final judgment in the original proceeding. See Fed.R.Crim.P. 33; United States v. Dellinger, 657 F.2d 140, 144 (7th Cir.1981).

Thus, the coram nobis writ allows a court to vacate its judgments “for errors of fact ... in those cases where the errors [are] of the most fundamental character, that is, such as rendered the proceeding itself invalid.” United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914). Although Federal Rule of Civil Procedure 60(b) expressly abolishes the writ of coram nobis in civil cases, the extraordinary writ still provides a remedy in criminal proceedings where no other relief is available and sound reasons exist for failure to seek appropriate earlier



relief. Morgan, 346 U.S. at 505 n. 4, 74 S.Ct. at 249 n. 4. See also James v. United States, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 615 (1982) (opinion of Justice Brennan supporting denial of petition for writ of certiorari explaining purpose of coram nobis). The Court in Morgan held that district courts have the power to issue the writ under the All Writs Act, 28 U.S.C. § 1651(a). See 346 U.S. at 506-09, 74 S.Ct. at 250.

Based on the authority discussed above, the district court determined that a petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. 14 The government challenges the court’s conclusions under (2) and (3).

The government argues that the district court should have dismissed the petitioner’s claim on the ground of laches. It argues that the material upon which the petitioner relies had been a matter of public record for decades, or, alternatively, that petitioner by due diligence should have found the material earlier. For the reasons we have discussed in the preceding section of this opinion, the district court’s decision to grant the writ was clearly based upon material which was not known until very recently. The key document upon which the district court relied was the suppressed report of General DeWitt. The district court squarely confronted the government’s laches contention by stating as follows:

[T]he government argues that all of the factual material presented on behalf of petitioner has been a matter of public record for nearly forty years and that petitioner is hence bound by the doctrine of laches from seeking to overturn his convictions.... At no place in [the 1949 Grodzins book] is there any reference to the statements made by General DeWitt in the initial version of his Final Report. In none of the other publications submitted by the government is there any such reference.

627 F.Supp. at 1455. These findings are clearly supported.

The suppressed DeWitt Report is not the only evidence which has surfaced as a result of research during this decade. There are memos, which have only recently come to light, by Justice Department lawyers Ennis and Burling relating to the War Department’s suppression of the revised report, and their doubts about the accuracy of the report. See supra notes 11-12. The discovery of these materials recently caused the District of Columbia Circuit to hold that the government’s fraudulent concealment tolled the statute of limitations in cases brought by Japanese Americans for civil damages arising out of their internment. Hohri v. United States, 782 F.2d 227, 246 (D.C.Cir.1986), vacated on jurisdictional grounds, --- U.S. ----, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). It appears from both the district court opinion, 586 F.Supp. 769 (D.D.C.1984), and the court of appeals opinion in Hohri, decided before publication of the district court’s opinion in this case, that the original DeWitt Report was not a part of the Hohri record. Thus, ours is an even stronger case against the government. In addition, because this is a collateral attack upon a criminal conviction, there is no statute of limitations. The petitioner does not have to prove fraud.

As to the diligence of Hirabayashi in finding the material, we must agree with the district judge who heard direct evidence on this issue and found that “petitioner cannot be faulted for not finding and relying upon [the only surviving copy of the initial version of the report] long before he brought this action in early 1983.” 627 F.Supp. at 1455. Professional historians had failed to discover it as well, and the difficulty for a lay person to locate the initial version was documented in the record by testimony concerning its discovery. Id. at 1453-56.



Regarding the mootness issue, the district court, although noting that misdemeanor convictions do not present the same adverse consequences as do felony convictions, was satisfied that the case or controversy requirement was fulfilled. The court found that (1) Hirabayashi’s credibility might be impeached in a jurisdiction that allows the use of misdemeanor convictions for that purpose, and (2) that a judge could take the convictions into account when sentencing Hirabayashi if he were ever convicted of another crime. 627 F.Supp. at 1455.

The government contends that “ordinary misdemeanors have no ‘collateral consequences’ and therefore are not subject to post-conviction attack absent some special legal disability.” For the following reasons, we find no support for such a per se rule and conclude that the case is not moot.

Modern application of mootness principles to criminal cases must draw upon the Supreme Court’s opinion in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), where the Court determined that it had jurisdiction to hear Sibron’s appeal even though he had completely served his six-month sentence for unlawful possession of heroin. The Court held that “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Id. at 57, 88 S.Ct. at 1900. In Sibron the Court discussed its previous holding in Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), where

the Court abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed.... Stat[ing] that “convictions may entail collateral legal disadvantages in the future,” id., at 358, [77 S.Ct. at 484], the Court concluded that “[t]he possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.” Ibid. The Court thus acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. [footnote omitted] The mere “possibility” that this will be the case is enough to preserve a criminal case from ending “ignominiously in the limbo of mootness.” Parker v. Ellis, 362 U.S. 574, 577, [80 S.Ct. 909, 911, 4 L.Ed.2d 963] (1960) (dissenting opinion).

Sibron, 392 U.S. at 55, 88 S.Ct. at 1898-99.

The Court acknowledged that it was applying the Pollard presumption and then went on to state:

This case certainly meets that test for survival. Without pausing to canvass the possibilities in detail, we note that New York expressly provides by statute that Sibron’s conviction may be used to impeach his character ... [and must be considered in subsequent sentencing]. There are doubtless other collateral consequences.

Sibron, 392 U.S. at 55-56, 88 S.Ct. at 1899. The government argues that this language and an accompanying footnote require a petitioner to show specific legislative disability. Id. at 56 n. 17, 88 S.Ct. at 1899 n. 17. 15 The Sibron opinion creates no such requirement. This is reflected in our own coram nobis decisions which consistently apply the Sibron “no possibility of any collateral legal consequences” test. See, e.g., Chavez v. United States, 447 F.2d 1373, 1374 (9th Cir.1971) (per curiam); Byrnes v. United States, 408 F.2d 599, 601 (9th Cir.), cert. denied, 395 U.S. 986, 89 S.Ct. 2142, 23 L.Ed.2d 775 (1969). We have repeatedly reaffirmed the presumption that collateral consequences flow from any criminal conviction. See, e.g., Byrnes, 408 F.2d at 601. As we stated in Holloway, coram nobis relief is available to prevent manifest



injustice “even where removal of a prior conviction will have little present effect on the petitioner.” Holloway v. United States, 393 F.2d 731, 732 (9th Cir.1968).

No court to our knowledge has ever held that misdemeanor convictions cannot carry collateral legal consequences. Any judgment of misconduct has consequences for which one may be legally or professionally accountable. See Miller v. Washington State Bar Ass’n, 679 F.2d 1313, 1318 (9th Cir.1982) (letter of admonition in attorney’s permanent record for which he is professionally accountable constitutes sufficient adverse consequence for Article III).

Moreover, the government’s argument here that “ordinary” misdemeanors should not carry the presumption of adverse consequences is misplaced. Hirabayashi’s conviction was for no ordinary misdemeanor. His conviction was one which has been the subject of controversy for more than four decades. A United States citizen who is convicted of a crime on account of race is lastingly aggrieved.

C. The Government’s Motion to Vacate and Dismiss. The government contends that the trial court erred by denying its motion to vacate Hirabayashi’s convictions and dismiss the underlying indictments pursuant to Fed.R.Crim.P. 48(a).

Rule 48(a) provides:

The Attorney General or the United States attorney may by leave of the court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.

The rule vests the courts with the discretion to accept or deny the prosecution’s motion. See, e.g., United States v. Weber, 721 F.2d 266, 268 (9th Cir.1983) (per curiam); United States v. Cowan, 524 F.2d 504, 510-11 (5th Cir.1975), cert. denied sub nom. Woodruft v. United States, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976). We therefore review the district court’s decision for an abuse of discretion. Rinaldi v. United States, 434 U.S. 22, 32, 98 S.Ct. 81, 86 (1977) (per curiam).

In denying the government’s motion, the district court correctly stated that Rule 48(a) provides for dismissal only by leave of the court. The court then determined that “where petitioner seeks to have his petition considered on its merits, the Court is of the opinion that it is not in the public interest, over the objection of petitioner, to grant the government’s motion.” The government argues that the trial court erroneously relied on the second sentence of Rule 48(a) in requiring Hirabayashi’s consent to dismissal because the rule only addresses the accused’s consent during trial. It asserts that no consent is necessary once the trial is over.

The district court, however, did not base its denial on a belief that Hirabayashi’s consent was necessary. Rather, it exercised its discretion under the first sentence of Rule 48(a) which requires the prosecutor to have the leave of court to file a dismissal. The district court correctly acted within its discretion in refusing to grant the government’s motion. There is no precedent for applying Rule 48 to vacate a conviction after the trial and appellate proceedings have ended. The cases cited by the government involve a prosecutor’s motion made before or during the pendency of a direct appeal. See Rinaldi, 434 U.S. at 24-25, 98 S.Ct. at 82-83 (motion made when case was on direct appeal); Weber, 721 F.2d at 267 (motion made when case was on direct appeal); United States v. Hamm, 659 F.2d 624, 625 (5th Cir.1981) (en banc) (motion made before sentencing); Cowan, 524 F.2d at 513 (motion made before trial).

In a case similar to this one, Korematsu v. United States, 584 F.Supp. 1406 (N.D.Cal.1984), a district court judge recently held that the government could not move under



Rule 48(a) to vacate a conviction following the lapse of 40-odd years. There, Judge Patel pointed out that Rule 48(a) had its roots in the common law doctrine of nolle prosequi. “As the literal translation of nolle prosequi--’I am unwilling to prosecute’--makes clear, the primary purpose of the doctrine was to allow the government to cease active prosecution.” Id. at 1410-11 (discussing in detail the development of Rule 48). The court concluded that

the prosecutor has no authority to exercise his nolle prosequi prerogatives at common law or to invoke Rule 48(a) after a person has been subject to conviction, final judgment, imposition of sentence and exhaustion of all appeals and, indeed, after a lapse of many years. At that stage, there is no longer any prosecution to be terminated.

Id. at 1411.

We need not decide whether Rule 48 precludes a district court from ever granting a post-appeal dismissal. Based on the record in this case we cannot find that the district court abused its discretion in denying the government’s motion and considering the merits of Hirabayashi’s request that an injustice be corrected.

IV. HIRABAYASHI’S APPEAL OF THE DISTRICT COURT’S REFUSAL TO VACATE THE CURFEW CONVICTION

The district court vacated Hirabayashi’s conviction for violation of the exclusion order but left standing the conviction for violation of the curfew order. This was a result which neither side sought and which neither strenuously defends in this court.

The district court based its distinction on the premise that the curfew was a lesser restriction on freedom than the exclusion. It does not follow, however, that the Supreme Court would have made such a distinction had it been aware of the suppressed evidence. The Supreme Court in 1943 reviewed only the curfew order and clearly saw it as a serious deprivation of liberty. The Court therefore held that it would be justified only on the basis of a reasonable military judgment of military necessity. 320 U.S. at 99, 63 S.Ct. at 1385.

The government suggests that the Justices in the Hirabayashi decision might have made a distinction between the two orders because the dissenting Justices later in Korematsu distinguished the level of infringement of freedom in Korematsu from that in Hirabayashi. Korematsu, 323 U.S. at 246-47, 65 S.Ct. at 207-08 (Jackson, J., dissenting). The relevant issue, however, is not whether a minority of the Justices might have made a distinction, but whether a majority would have. The majority of the Court in Korematsu followed exactly the same rationale that was followed in Hirabayashi and made no such distinction. The majority of the Court in Korematsu said “[n]othing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either [the exclusion or the curfew].” 323 U.S. at 218, 65 S.Ct. at 195.

We have seen that Hirabayashi’s two convictions were based upon simultaneous indictments, were tried together, briefed together, and decided together. In its brief to the Supreme Court, the Justice Department argued a single theory of military necessity to support both the exclusion and curfew orders. At the evidentiary hearing before the district court in this case, Ennis explained why:

Q.... Did the Department’s arguments on those two points [curfew and exclusion] differ somewhat?

A. No, not substantially.

Q. Well,--



A. Because although one was a lesser restriction, it was equally based on what was in our view the difficulty of classifying American citizens--including American citizens. That’s for general curfew of the whole area.

The district court erred in distinguishing between the validity of the curfew and exclusion convictions.

CONCLUSION The judgment of the district court as to the exclusion conviction is affirmed. The judgment as to the curfew conviction is reversed and the matter is remanded with instructions to grant Hirabayashi’s petition to vacate both convictions.

1 See, e.g., P. Irons, Justice at War (1983); R. Daniels, The Decision to Relocate the Japanese Americans (1975); M. Grodzins, Americans Betrayed (1949); Yamamoto, Korematsu Revisited--Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 Santa Clara L.Rev. 1 (1986).

2 See, e.g., A. Fisher, Exile of a Race (1970); C. McWilliams, Prejudice (1944); Rostow, The Japanese American Cases--A Disaster, 54 Yale L.J. 489 (1954); Dembitz, Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions, 45 Colum.L.Rev. 175 (1945).

3 See, e.g., R. Daniels, S. Taylor & H. Kitano, Japanese Americans: From Relocation To Redress (1986); M. Weglyn, Years of Infamy (1976); D. Myer, Uprooted Americans (1971).

4 Hirabayashi’s case was one of three wartime Japanese internment cases in which the Supreme Court upheld the government’s orders. Fred Korematsu violated a California exclusion order in May 1942, approximately the same time as Hirabayashi. Because of an intervening jurisdictional problem which was certified to the Supreme Court, we did not address the merits of his appeal until December 1943. Korematsu v. United States, 140 F.2d 289 (9th Cir.1943). Thus, his conviction was not affirmed by the Court until a year and a half after the Hirabayashi decision. The Court also affirmed Minoru Yasui’s conviction for violating an Oregon curfew order. The Court handed down its decisions in Hirabayashi and Yasui on the same day. Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793 (1943). In February 1983 Yasui filed a petition for coram nobis relief, which was dismissed by the district court upon the government’s motion to dismiss the indictment and vacate the conviction. We held that Yasui’s appeal was untimely and remanded the case to allow Yasui to make a showing of excusable neglect. Yasui v. United States, 772 F.2d 1496, 1499-1500 (9th Cir.1985). Although we specifically retained jurisdiction over the appeal, it was subsequently dismissed as moot due to Yasui’s death.

5 See, e.g., Letter of February 12, 1942, from Attorney General Biddle to Secretary of War Stimson reprinted in R. Daniels, supra note 1, at 107-08; Letter of January 4, 1942, from Assistant to the Attorney General Rowe to General DeWitt, quoted in M. Grodzins, supra note 1, at 238.

6 Hirabayashi was born in the United States. His parents were born in Japan, but came to the United States in the early 1900s at the age of 19. They were married in this country and never returned to Japan. Hirabayashi had never been to Japan and had never even corresponded with anyone there. See Hirabayashi, 627 F.Supp. at 1447 (detailing petitioner’s personal background, education, community activities, etc.)



7 Hirabayashi’s three month sentence was served after the Supreme Court affirmed his convictions. He had already been incarcerated for nine months; five pending trial and four more pending appeal before bail terms were agreed upon.

8 The memorandum from Solicitor General Fahy to the Supreme Court on May 14, 1943, states more fully:

Our position is not that hearings are an inappropriate method of reaching a decision on the question of loyalty. The Government does not contend that, assuming adequate opportunity for investigation, hearings may not ever be appropriately utilized on the question of the loyalty of persons here involved. It is submitted, however, that in the circumstances set forth in our brief, this method was not available to solve the problem which confronted the country. The situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings. In any event, the method of individual hearings was reasonably thought to be unavailable by those who were obliged to decide upon the measures to be taken.

See Hirabayashi, 627 F.Supp. at 1453-54 (quoting memo).

9 In its “response and motion,” the government said it would be inappropriate to defend the convictions, noting that both the legislative and executive branches have “long since concluded that the curfew and mass evacuation were part of an unfortunate episode in our nation’s history.” The government cited President Ford’s 1976 proclamation formally rescinding Executive Order 9066, and the 1980 congressional creation of the Commission on Wartime Relocation and Internment of Civilians, along with the repeal in 1976 of Pub.L. No. 77-503 (then codified at 18 U.S.C. § 1383) which Hirabayashi was convicted of violating in 1942.

10 Traditionally, the Supreme Court has shown great respect for the views of the Solicitor General--”an advocate whom the Court can trust.” See Jenkins, The Solicitor General’s Winning Ways, 69 A.B.A.J. 734 (1983); Note, Government Litigation in the Supreme Court: The Roles of the Solicitor General, 78 Yale L.J. 1442 (1969). Thus, he owes a special obligation to the Court as well as his client. See O’Connor, The Amicus Curiae Role of the U.S. Solicitor General in Supreme Court Litigation, 66 Judicature 256 (1983); Note, The Solicitor General and Intragovernmental Conflict, 76 Mich.L.Rev. 324 (1977). See also Speech by Rex Lee, Solicitor General of the United States 1981-85, Ohio State University College of Law (March 19, 1986) Lawyering for the Government: Politics, Polemics & Principle, reprinted in 47 Ohio St. L.J. 595 (1986) (discussing multiple roles of Solicitor General).

11 As the Justice Department prepared its brief, Ennis came into possession of the intelligence work of Lt. Commander Kenneth D. Ringle, an expert on Japanese intelligence in the Office of Naval Intelligence. Ringle had reached conclusions directly contradicting the two key premises in the government’s argument. Ringle found (1) that the cultural characteristics of the Japanese Americans had not resulted in a high risk of disloyalty by members of that group, and (2) that individualized determinations could be made expeditiously. See K. Ringle, Report on the Japanese Question 3 (Jan. 26, 1942). Ennis therefore concluded:

I think we should consider very carefully whether we do not have a duty to advise the Court of the existence of the Ringle memorandum and of the fact that this represents the view of the Office of Naval Intelligence. It occurs to me that any other course of conduct might approximate the suppression of evidence.

Memorandum from Ennis to Solicitor General Re: Japanese Brief, April 30, 1943. Notwithstanding Ennis’ plea, the Justice Department’s brief in Hirabayashi made no mention of Ringle’s analysis.



12 The footnote actually inserted in the government’s brief was as follows:

The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944), hereinafter cited as Final Report, is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice, and we rely upon the Final Report only to the extent that it relates to such facts.

Korematsu, Brief for the United States at 11 n. 2. Based upon the revised report, and without knowledge of the existence of the original version, lawyers within the Justice Department had pushed for a stronger footnote which would have at least partially discredited the report. The proposal for this footnote was contained in a memorandum from John L. Burling to Assistant Attorney General Herbert Wechsler dated September 11, 1944, reprinted in Appendix B, Korematsu, 584 F.Supp. at 1423. The full text of the footnote he proposed was:

The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944) is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. The recital of the circumstances justifying the evacuation as a matter of military necessity, however, is in several respects, particularly with reference to the use of illegal radio transmitters and to shore-to-ship signalling by persons of Japanese ancestry, in conflict with information in possession of the Department of Justice. In view of the contrariety of the reports on this matter we do not ask the Court to take judicial notice of the recitals of those facts contained in the Report. (emphasis added).

13 After being asked to make copies of the DeWitt report available to the Court, Solicitor General Fahy agreed and said:

It is even suggested that because of some foot note in our brief in this case indicating that we do not ask the Court to take judicial notice of the truth of every recitation or instance in the final report of General DeWitt, that the Government has repudiated the military necessity of the evacuation. It seems to me, if the Court please, that that is a neat little piece of fancy dancing. There is nothing in the brief of the Government which is any different in this respect from the position it has always maintained since the Hirabayashi case--that not only the military judgment of the general, but the judgment of the Government of the United States, has always been in justification of the measures taken; and no person in any responsible position has ever taken a contrary position, and the Government does not do so now. Nothing in its brief can validly be used to the contrary.

14 627 F.Supp. at 1454-55. Relying on a footnote in Dellinger, 657 F.2d at 144 n. 9, the court required a showing that “it is probable that a different result would have occurred had the error not been made.” We note here that neither the Supreme Court nor this circuit has imposed such a requirement. In Dellinger, the Seventh Circuit cited Bateman v. United States, 277 F.2d 65, 68 (8th Cir.1960), which in turn relied on the dissent in Morgan, 346 U.S. at 516, 74 S.Ct. at 255. The majority in Morgan never required a showing of prejudice. We need not decide whether there is as high a test as the Dellinger footnote suggests because petitioner has satisfied the higher standard.

The district court also stated, citing Morgan, 346 U.S. at 507 n. 9, 74 S.Ct. at 250 n. 9, that the petition must be brought in the convicting court. Hirabayashi satisfied this condition by



bringing his petition in the Western District of Washington, the district in which he was convicted.

15 The Sibron footnote provides:

We note that there is a clear distinction between a general impairment of credibility, to which the Court referred in St. Pierre, see 319 U.S., at 43, [63 S.Ct. at 911], and New York’s specific statutory authorization for use of the conviction to impeach the “character” of a defendant in a criminal proceeding. The latter is a clear legal disability deliberately and specifically imposed by the legislature.

The government also cites Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), for the proposition that there must be statutory consequences from a conviction to permit coram nobis relief. The case is distinguishable on several grounds. Lane did not involve a coram nobis petition. It did not even involve a challenge to a criminal conviction. It was an effort through habeas corpus to attack mandatory parole requirements which the court held could not be pursued beyond the expiration of the parole term. Contrary to the government’s view, the Court in Lane reaffirmed the Sibron standard, quoting the no possibility of any collateral legal consequences test and explicitly stating that Sibron was not applicable to that case. Id. at 632, 102 S.Ct. at 1327.





Do not copy without explicit written permission from Peggy Nagae

1

The President The White House 1600 Pennsylvania Avenue Washington, D.C. 20500 Re: Memorandum in Support of Minoru Yasui’s Nomination for a 2015 Presidential Medal of Freedom Dear Mr. President:

We recognize that the nation’s highest civilian honor, the Presidential Medal of Freedom, is presented to “individuals who have made especially meritorious contributions to the security or national interests of the United States, to world peace, or to cultural or other significant public or private endeavors.”1 The late Minoru “Min” Yasui merits this prestigious honor in recognition of his lifelong courage and principled, passionate commitment to defending, promoting, and achieving civil and human rights for all Americans. Lauded as “the ideal candidate to receive this highest honor”2 and as “a visionary ahead of his time [who]...had a unique understanding of the path America needed to take” to reach its potential,3 Yasui was a leader for many individuals, communities, and social causes from the 1940s until his death in 1986. He spent his life overcoming barriers, challenging injustices to and taking action for Japanese Americans and other marginalized groups, and building bridges across and with many diverse communities. Yasui “personifies the characteristics the Presidential Medal of Freedom seeks to recognize”4 and “belongs in any conversation of those courageous Americans who helped ground our moral compass in the principles of equality and fair treatment we aspire to as a nation.”5

I. AN EMERGING LEADER

The third son of Japanese immigrants Masuo and Shidzuyo Yasui, Minoru Yasui was born on

October 19, 1916, in Hood River, Oregon. His family had settled in this bucolic town along the Columbia River with other Japanese immigrant families longing to pursue the American dream. When his father, Masuo, came to the United States as a teenager, he envisioned becoming a U.S. citizen and studying law. Unfortunately, federal law barred Asian immigrants from citizenship,6 which was required to enter the legal profession, so Masuo had to pursue other goals.7 Masuo and his brother opened a small store in downtown Hood River, serving other Japanese immigrants who worked the valley’s logging camps, sawmills, and orchards. Over time, the Yasui brothers’ store achieved much success and also stood as an important social center for the local Japanese community. Masuo rose to prominence as a community 1 Executive Order 11085, 28 Fed. Reg. 1759 (1963). 2 Bennet, Senator Michael. Letter to President Barack Obama. 18 Dec. 2014. TS. United States Senate, Washington, DC. 3 Alonzo, Christine. Letter to President Barack Obama. 16 Dec. 2014. TS. Colorado Latino Leadership, Advocacy & Research Organization, Denver, CO. 4 Blumenauer, Representative Earl. Letter to President Barack Obama. 23 Dec. 2014. TS. Congress of the United States, Washington, DC. 5 Bender, Steven W. Letter to President Barack Obama. 22 Dec. 2014. TS. Seattle University School of Law, Seattle, WA. 6 Naturalization Act of 1790, 1 Stat. 103. 7 Fujikura, Yuka Yasui. Letter to President Barack Obama. 20 Dec. 2014. TS. Gaithersburg, MD.




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leader, with his mastery of the English language facilitating his role as a translator and advocate when his fellow immigrants needed the services of the Caucasian community. Setting an example that his son Minoru would later follow in his own life, Masuo became a “trusted intermediary” between the two communities.8

While Hood River provided opportunity and stability for the Yasui family, it was also deemed an

“epicenter of anti-‐Japanese activity” through the early 20th century and in the years following the U.S.’s entry into World War II.9 Many local stores had signs pronouncing “NO JAPS,” and businesses often refused service to Japanese and Japanese Americans.10 These early experiences contextualize Yasui’s lens on social issues and mettle in the face of adversity.

From an early age, Yasui exhibited exceptional ambition and dedication to leadership. At the age

of 15, he founded the Mid-‐Columbia (Hood River) Chapter of the Japanese American Citizens League (JACL) and served as its president. He graduated salutatorian of his high school in 1933, followed by graduation from the University of Oregon in 1937 with Phi Beta Kappa honors. In 1939, he distinguished himself as the first Japanese American graduate of the University of Oregon School of Law and the first Japanese American member of the Oregon State Bar. Nonetheless, Yasui was unable to find employment with any of the state’s law firms.11 Months later, he finally accepted a position as a consular attaché for the Consulate General of Japan in Chicago, which enabled him to use his bilingual versatility to bridge the Consulate’s communication with the mainstream community.

The bombing of Pearl Harbor by Japan on December 7, 1941, led Yasui to resign his position in

Chicago and return to Oregon, where he sought enlistment in the U.S. Army. An ROTC cadet at the University of Oregon and commissioned second lieutenant upon his graduation, Yasui had received orders to report to Fort Vancouver, “but there he was told that his service was unacceptable because of his ancestry.”12 At the time, all Japanese American men of draft age, except those already in the armed forces, were classified as 4-‐C, enemy aliens, and forbidden from military service.13 Undaunted by multiple rejections from military service and determined to do what he could during this turbulent time, Yasui opened a law practice in Portland to help the Japanese American community.14 He was inundated with requests for legal assistance as the state’s only practicing attorney of Japanese ancestry.15

II. A LIFE OF PRINCIPLE, PASSION, AND COURAGE

8 “The Yasui Legacy.” The Many Faces of Oregon's Workers, circa 1900-‐1940. N.p., n.d. Web. 8 Feb. 2015. <http://library.uoregon.edu/ec/exhibits/manyfaces/yasui.html>. 9 Kessler, Lauren. “Behind Barbed Wire.” Stubborn Twig: Three Generations in the Life of a Japanese American Family. New York: Random House, 1993. 238. Print. 10 Kessler. “The Overachievers,” 240-‐41. 11 Hada, Kerry S., and Andrew S. Hamano. “Five of the Greatest: Yasui.” Colorado Lawyer. July 1998: 9-‐12, 9. Print. 12 Iwasaki, Ron. Letter to President Barack Obama. 28 Dec. 2014. TS. Oregon Nisei Veterans, Inc., Hillsboro, OR. 13 “Fighting for Democracy: Japanese Americans.” PBS. PBS, n.d. Web. 11 Feb. 2015. <http://www.pbs.org/thewar/at_war_democracy_japanese_american.htm>. 14 Yasui, Minoru. Thoughts on Evacuation. 25 Aug. 1982. TS. Collection of Japanese American Citizens League National Committee for Redress, 6-‐9. 15 Ibid., 9.




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Yasui’s early choices signaled what would be common themes in his life: courage; a commitment to justice and equality; and service – especially to those least able to fight for themselves. In a hostile era when Japanese Americans were expressly denied constitutionally guaranteed rights of liberty and due process, Yasui bravely took a stand for himself and his community at great personal and professional risk to himself. He followed his conscience – and the law – even when doing so was illegal or perceived as unpopular or unwise. He adhered to these principles throughout his life, which he committed to justice and equality for all Americans.

a. World War II

The attack on Pearl Harbor forever changed the lives of the Yasui family and other Japanese immigrants and their U.S.-‐citizen children who faced the ensuing backlash. On February 19, 1942, bowing to public hysteria and unsupported fears of Japanese American loyalty to Japan, President Franklin D. Roosevelt signed Executive Order 9066, which authorized the Secretary of War to “prescribe military areas...from which any or all persons may be excluded.”16 Ten days later, Lieutenant General John L. DeWitt, in charge of the Western Defense Command, issued Public Proclamation No. 1, designating the entire U.S. West Coast as a military zone which, in a matter of months, led to the forced removal of “all persons of Japanese ancestry” to internment camps farther inland.17 On March 24, 1942, General DeWitt issued Public Proclamation No. 3, imposing a curfew and travel and contraband restrictions on all persons of Japanese descent.18

The promulgation of the military curfew order was a critical turning point in Yasui’s life. Viewing

it as unconstitutional discrimination against American citizens on the basis of race, Yasui knew the order had to be challenged in court. Noted by his lead coram nobis attorney, Peggy Nagae, as the one “who most explicitly aimed to vindicate constitutional liberties,”19 Yasui was the first Japanese American to intentionally violate the military curfew order as part of the integrally connected trio of individuals who independently resisted the World War II curfew and internment. The other two men, Fred Korematsu and Gordon Hirabayashi, have both received Presidential Medals of Freedom.20 Yasui later wrote of his motivation to initiate a test case in his unpublished memoirs: “If we believe in America, if we believe in equal democracy, if we believe in law and justice – then, each of us, when we see or believe such errors are being made, have an obligation to make every effort to correct such mistake[s]...”21

On March 28, 1942, after instructing his secretary to inform the FBI and local police of his

intentions, Yasui deliberately walked the streets of Portland after curfew hours. Eventually spotting a police officer in the late evening, Yasui presented a copy of the curfew order and insisted on being

16 7 Fed. Reg. 1407 (1942). 17 7 Fed. Reg. 2320 (1942). 18 7 Fed. Reg. 2543 (1942). 19 Nagae, Peggy. Letter to President Barack Obama. 7 Feb. 2015. TS. Peggy Nagae Consulting, Portland, OR. 20 Fred Korematsu received the honor in 1998 from President Clinton, and Gordon Hirabayashi was posthumously awarded in 2012 by President Obama. 21 Yasui, Thoughts, 11.




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arrested. When the officer refused, Yasui went directly to the police station, where he was arrested and his legal ordeal began.22

While awaiting his trial, Yasui was held at the Portland Assembly Center, where the government had confined Portland-‐area Japanese Americans pending their removal and incarceration. Yasui’s one-‐day trial on June 12, 1942, before the Federal District Court of Oregon primarily focused on the question of Yasui’s loyalty to the United States. Following the trial, Yasui was taken back to the Assembly Center, where he provided free legal services and educated other internees about his legal challenge. In September 1942, Yasui and the others at the Assembly Center were sent to the Minidoka Internment Camp in Hunt, Idaho.23 On November 16, 1942, the District Court issued its decision in Yasui’s case. In an unexpected double-‐twist, the Court declared the curfew unconstitutional as imposed on U.S. citizens, but found that Yasui had renounced his citizenship by working for the Japanese Consulate and was therefore an enemy alien.24 Holding that the curfew applied to non-‐U.S. citizens, the court convicted Yasui and sentenced him to a one-‐year imprisonment.25 Yasui spent the next nine months in jail under solitary confinement.26 On appeal, the Ninth Circuit certified Yasui’s case to the U.S. Supreme Court, which chose to review the case as a companion to Hirabayashi’s similar constitutional challenge to the curfew order and other military orders leading to the mass incarceration of Japanese Americans.27 On June 21, 1943, deferring to General DeWitt’s supposed military judgment and resting its analysis on racial prejudices, unconfirmed innuendos, and tenuous speculations, the Court upheld the constitutionality of the curfew order in Hirabayashi’s case.28 Based on Hirabayashi, the Court then summarily affirmed Yasui’s curfew violation, but did find that Yasui had not abrogated his U.S. citizenship, thus rendering the citizenship issue irrelevant. The Court remanded Yasui’s case to the District Court for resentencing.29 On remand, the District Court struck its finding that Yasui had renounced his citizenship and reduced Yasui’s sentence to 15 days or time served since he had already spent nine months in jail.30 Released from jail, Yasui was taken back to Minidoka and stayed there until his release in 1944.

b. Forty Years of Service to Diverse Communities Yasui’s wartime legal challenge was only one chapter in a life passionately dedicated to civil and

human rights and justice under the law. Rather than “[going] silently into the night, ‘get[ting] on’ with

22 Ibid., 11-‐12. 23 Hada, 9. 24 See Yasui v. United States, 320 U.S. 115, 116-‐117 (1943). 25 Ibid. 26 Yasui, Thoughts, 24. 27 Yasui, 320 U.S. at 116. 28 Hirabayashi v. United States, 320 U.S. 81 (1943). 29 Yasui, 320 U.S. at 117. 30 United States v. Yasui, 51 F.Supp. 234 (D. Or. 1943).




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his career as a lawyer, bury[ing] his belief in the Constitution or – like so many of those interned – never again talk[ing] about what had happened,” Yasui “put his principles to work.”31

Following a brief time in Chicago after leaving Minidoka, Yasui moved to Denver. In 1945, he

took the Colorado State Bar examination, and although he received the highest score of all candidates, he was denied admission to the Colorado State Bar because of his criminal conviction.32 Represented by the American Civil Liberties Union (ACLU), Yasui appealed the denial to the Colorado Supreme Court, which ruled in his favor.33 This ruling enabled Yasui to set down permanent roots in Colorado. He married his fiancée, True Shibata, and they later had three daughters – Iris, Laurel, and Holly.

In Colorado, Yasui embarked upon a tireless career as a champion for civil liberties and human

rights that ended only because of his death. He started his own law practice in downtown Denver – a veritable one-‐man legal aid office characterized by long hours and low pay, serving Japanese Americans seeking to recoup economic losses from their forced wartime evacuation, as well as other clients unable to afford legal representation elsewhere.34 Yasui also extended his commitment to civil and human rights far beyond the Japanese American community to include African Americans, Latinos, Native Americans, other Asian Pacific Americans, youth, those with disabilities, seniors, and the international human rights community. A “visionary well ahead of his time, [Yasui] recognized the struggle of all marginalized people and dedicated his life to advocating [on their behalf].”35

i. Cross-‐Racial and Cross-‐Cultural Leadership Distinguishing himself not only with his commitment to serve Japanese Americans, in his 40 years of public service after World War II Yasui demonstrated equal passion for justice on behalf of other marginalized groups. Denver’s current mayor, Michael B. Hancock, states in his letter endorsing this nomination that Yasui “had an inclusive nature and was concerned for all people,” and that he “knew how to build bridges in the community, realizing that to create change, partnerships and mechanisms for representation had to be in place.”36

Yasui broke down barriers and became a leader for diverse communities. In 1946, he helped found and served for eight years on the board of the Urban League of Metropolitan Denver, a group dedicated to assisting local African Americans and others of all ethnic and cultural backgrounds to “secur[e] a first class education, achiev[e] economic opportunity, and obtain[] equal respect of civil rights by providing exceptional programs and services in a highly diversified city.”37 In 1963, Yasui assisted in the founding of the Latin American Research and Service Agency (now the Colorado Latino 31 Romero, Anthony. Letter to President Barack Obama. 6 Jan. 2015. TS. American Civil Liberties Union, New York, NY. 32 Hada, 10. 33 Ibid. 34 Ibid. 35 Morial, Marc H. Letter to President Barack Obama. 9 Feb. 2015. TS. National Urban League, New York, NY. 36 Hancock, Mayor Michael B. Letter to President Barack Obama. 10 Dec. 2014. TS. Office of the Mayor, Denver, CO. 37 Brewer, Moses. Letter to President Barack Obama. 2 Jan. 2015. TS. Urban League of Metropolitan Denver, Denver, CO.




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Leadership, Advocacy and Research Organization, or CLLARO), an organization formed to “develop research and provide services to help strengthen the economic conditions of the Latino community.”38 Yasui’s leadership with CLLARO underscored his knowledge of “the importance of having community representation for all and by all,” and the organization drew lessons from Yasui’s “courage to take stances unpopular to the masses” that “[stood him] unwaveringly on the right side of history.”39 In 1968 he helped to organize Denver Native Americans United (now Denver Indian Center), an organization dedicated to “empowering youth, families and communities through self-‐determination, cultural identity and education.”40 Yasui established this organization when Denver, as one of five relocation cities for Native Americans searching for stability and opportunity, needed a “gathering place” to respond to the needs of a growing multi-‐cultural Native community.41

Yasui also dedicated his legal skills to civil rights cases that reached the U.S. Supreme Court. He

contributed to amicus curiae briefs filed by the National JACL supporting those who had been discriminatorily targeted because of their race, nationality, and ethnicity. The cases included Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368 (1949), to defend the rights of Chinese schools and individuals to teach the Chinese language in the then-‐Territory of Hawaii, and McLaurin v. Oklahoma State Regents for Higher Education, et. al., 339 U.S. 637 (1950), a precursor to the landmark Brown v. Board of Education case, that addressed the right of an African American University of Oklahoma doctoral student to have equal accommodations on campus.42 Not surprisingly, Yasui also became a community leader for particular social issues affecting citizens of all races. From the 1970s until his death, he chaired Denver’s Anti-‐Crime Council, an independent city commission that organized preventative and rehabilitation projects and promoted police-‐community relations,43 and was a board member of Employ-‐Ex, a program for formerly incarcerated individuals.44 He also served as a board member for his local chapter of the American Red Cross, and was a board member and chairman for Denver Opportunity, a War on Poverty program.45

Yasui’s commitment to taking action against discrimination and working across racial communities led to his appointment to key municipal leadership positions. In 1946, Denver’s then-‐Mayor Benjamin Stapleton enlisted Yasui to help explore and establish a Commission on Community Relations (now Agency for Human Rights and Community Partnerships). From 1959 to 1967, Yasui served as a commissioner and later as elected vice-‐chairman and then chairman. In 1967, the mayor appointed Yasui as Executive Director of the Commission, a position Yasui held until his retirement in 1983. During his leadership tenure, the Commission oversaw police-‐community relations, affirmative action programs in employment, Denver’s fight against crime, youth services, and senior services, to

38 Alonzo, sup. 39 Ibid. 40 Lake, Donald E. Letter to President Barack Obama. 19 Nov. 2014. TS. Denver Indian Center, Inc., Denver, CO. 41 Ibid. 42 Ling, Christopher, and Toan Nguyen. Letter to President Barack Obama. 16 Jan. 2015. TS. Oregon Minority Lawyers Association and Oregon Asian Pacific American Bar Association, Portland, OR. 43 1977 Final Narrative Report. Rep. Denver: Denver Anti-‐Crime Council, 1978. Print. 44 Yasui, Minoru. Biographical Data. 31 Dec. 1983. Collection of Minoru Yasui Family, 3. 45 Ibid.




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name a few.46 Yasui’s Commission years also saw him intimately involved with the Denver Public Schools, including calming the contentious confrontations over desegregation in the late 1960s.47 His time at the Commission’s helm was “without question, the most challenging that any [of the agency’s heads] have faced,” given the “[existing] internal social conflicts in [the area’s] communities.”48

Yasui also served on the Colorado State Advisory Committee of the U.S. Commission on Civil

Rights, an independent agency established by Congress to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.49 Assisting the Commission with fact-‐finding, investigations, and information dissemination on state and local civil rights issues,50 Yasui was a member of the Advisory Committee from 1975, and later elected as chairman in 1979, a position he held until his death. In these positions, Yasui worked on issues of race relations, police-‐community relations, immigration, and cross-‐racial and cross-‐cultural collaborations.51 Notably, the 1950s to 1970s was a turbulent era in both the national and local landscape, with shifting economic and social issues and the birth of the civil rights movement. Mayor Hancock describes Yasui’s leadership as being “...famously credited with avoiding the racial riots [in Denver] that ignited in other major U.S. cities after the 1968 assassination of [Dr. Martin Luther King, Jr.] because he had built strong relationships with the city’s other minority groups.”52 A former colleague with the Commission on Community Relations says that Yasui’s “commitment to serving the civil and human rights of others was unparallel[ed] to any other person serving the Denver community.”53

Beyond the pursuit of justice and civil rights on U.S. soil, Yasui was also ardently committed to world peace and international human rights. In 1976, he helped found and served as president of People-‐to-‐People Corporation of Denver (later changed to Denver Sister Cities International). For more than a decade, from the mid-‐1970s until his death, he was a member of the National Association of Human Rights Workers and Agencies, which encourages education, training, research, and networking toward the improvement of intergroup relations,54 and he served as a board member of the Colorado Council on International Organizations during the early 1980s.

46 Armstead, David E. Letter to President Barack Obama. 26 Dec. 2014. TS. Louisville, CO. 47 Annual Report 1968-‐1969. Rep. Denver: Commission on Community Relations, 1970. 4. Print. 48 Okubo, Derek P. Letter to President Barack Obama. 4 Dec. 2014. TS. Agency for Human Rights and Community Partnerships, Denver, CO. 49 “USCCR: About Us: Mission.” United States Commission on Civil Rights, n.d. Web. 9 Feb. 2015. <http://www.usccr.gov/about/index.php>. 50 “USCCR: About Us: State Advisory Committees.” United States Commission on Civil Rights, n.d. Web. 9 Feb. 2015. <http://www.usccr.gov/about/sac.php>. 51 See Hearing Before the United States Commission on Civil Rights: Hearing Held in Denver, Colorado February 17-‐19, 1976. Washington, DC: United States Commission on Civil Rights, 1977. Hathi Trust Digital Library. Web. <http://catalog.hathitrust.org/Record/011395171>. 52 Hancock, sup. 53 Armstead, sup. 54 See “WHAT IS NAHRW?” Home. National Association of Human Rights Workers, n.d. Web. 15 Feb. 2015. <http://www.nahrw.org/>.




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Yasui’s extensive contributions to diverse communities were recognized beyond the specific efforts that he led or helped to lead. In 1983, the ACLU of Oregon honored Yasui with the E.B. McNaughton Civil Liberties Award for his lifetime commitment to and impact on civil liberties.55 The following year, the ACLU of Northern California recognized him, along with Gordon Hirabayashi and Fred Korematsu, with the Chief Justice Earl F. Warren Civil Liberties Award for “being a prominent civil libertarian.”56 In 1984, the ACLU of Colorado presented Yasui with its highest honor, the Carle Whitehead Award, named after one of the organization’s founders and given annually to an advocate who has demonstrated “unswerving devotion to the cause of human justice.”57 On March 3, 1984, Colorado’s then-‐Governor Richard Lamm and Denver’s then-‐Mayor Federico Peña – later U.S. Secretary of Transportation and Energy under President Clinton – proclaimed the day “Minoru Yasui Day” “...[i]n part, for being an active member of the civil rights movement in Denver, with his efforts cutting across ethnic lines addressing concerns of every ethnic minority to emerge in Denver.”58 These examples of the wide recognition Yasui received during his lifetime illustrate his influential impact on the broader changing civil and human rights landscape.

ii. Commitment to the Japanese American Community

Alongside his decades of service to diverse communities, Yasui continued to be a leader for

Japanese Americans, building a lifetime of work that earned him recognition by the National JACL as “Nisei of the Biennium” in 1952 and, 30 years later, as “JACLer of the Biennium” in 1982.59 Today the organization continues to recognize Yasui as “an exemplary American and authentic national hero.”60

During his early years in Colorado, when anti-‐Japanese sentiment remained strong, Yasui was an outspoken advocate for the community. He lobbied vigorously against a state law prohibiting land ownership by Japanese immigrants.61 He also lobbied for the federal Evacuation Claims Act of 1948,62 for which he filed hundreds of claims for losses incurred by the wartime evacuation, and for the McCarran-‐Walter Act of 1952, which finally enabled his own parents and others of their generation, the Issei, to become U.S. citizens. After passage of the McCarran-‐Walter Act,63 Yasui helped many elderly Issei in Colorado through the naturalization process.64

55 Romero, sup. 56 Ibid. 57 “ACLU of Colorado’s Carle Whitehead Bill of Rights Dinner Award Nomination Form.” ACLU of Colorado. N.p., n.d. Web. 15 Feb. 2015. <http://aclu-‐co.org/wp-‐content/uploads/files/imce/2014%20Nominations%20Form%20and%20Former%20Awardees.pdf>. 58 Peña, The Honorable Federico. Letter to President Barack Obama. 7 Jan. 2015. TS. N.p. 59 Yasui, Minoru. Biographical Data. 31 Dec. 1983. Denver, CO. 60 A Resolution of the National Council of the Japanese American Citizens League Relating to Endorsement of the Minoru Yasui Medal of Freedom Nomination and Campaign. 10 July 2014. Japanese American Citizens League. JACL National Convention Council Meeting, San Jose, CA. Print. 61 Hada, 10. 62 Pub. L. No. 80-‐886, ch. 814, 62 Stat. 1231 (1948). 63 Pub. L. 82-‐414, 66 Stat. 163 (1952). 64 Hada, 10.




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Yasui also never relinquished the fight that ignited his lifelong passion for justice, continuing to pursue broader redress for Japanese Americans who were deprived of their liberty during World War II. In the 1970s, as a founding member of the JACL National Committee for Redress, he helped build the movement that culminated in the passage of Civil Liberties Act of 1988,65 signed into law by President Ronald Reagan two years after Yasui’s death.

In 1981, while Yasui was advocating for legislative redress, researchers discovered evidence in long-‐buried government archives showing that the government had deliberately lied to the Supreme Court in the internment cases. This evidence refuted General DeWitt’s claim that the forced removal and incarceration of Japanese Americans was justified by military necessity. In 1983, the astonishing discoveries led Yasui, along with Gordon Hirabayashi and Fred Korematsu, to file identical coram nobis petitions in their original courts of conviction to have their wartime convictions set aside based on the government’s monumental fraud on the Court.66

The government moved to dismiss the original indictments, hoping to render the petitions moot

and avoid any inquiry into the charges of fraud as it affected the constitutional validity of the internment. In Korematsu’s and Hirabayashi’s cases, the courts rejected the government’s ploy and granted the petitions.67 In 1984, however, treating the charges as a dead issue, the Federal District Court of Oregon granted the government’s motion and dismissed Yasui’s petition, thereby vacating his conviction but denying an evidentiary hearing on the claims of governmental misconduct.68 Yasui passed away while his appeal was pending. The Ninth Circuit dismissed the appeal as moot, and the Supreme Court denied review.69

Only his death silenced Yasui and prevented him from continuing his decades-‐long fight for the justice that he had always believed would prevail. As Korematsu’s legal team said in its endorsement of this nomination: “If people saw in Fred the best of the Common Man, and in Gordon a moral foundation of our nation’s values, Min was the warrior patriot carrying on the spirit of Thomas Paine.”70 The National Council of Asian Pacific Americans, a coalition of 34 prominent and ethnically diverse national Asian Pacific American organizations, has also endorsed Yasui’s nomination, noting that his relentless fight against the wartime treatment of Japanese Americans “represents the best of American optimism, determination, and engagement, even in the face of injustice.”71

65 Pub. L. No. 100-‐383, 102 Stat. 904 (1988). The Act formally apologized for the wartime deprivations of liberty imposed on Japanese Americans and granted redress of $20,000 to each of the thousands who had been unjustly interned. 66 See Nagae, sup.; Kai, Karen N. Letter to President Barack Obama. 4 Jan. 2015. TS. San Francisco, CA; Kawakami, Rodney L. Letter to President Barack Obama. 5 Jan. 2015. TS. The Law Offices of Rodney L. Kawakami, Seattle, WA. These letters were submitted on behalf of the coram nobis legal teams in the Yasui, Korematsu, and Hirabayashi cases. 67 See Korematsu v. United States, 584 F.Supp. 1406 (N.D. Cal. 1984); Hirabayashi v. United States, 627 F.Supp. 1445 (W.D. Wash. 1986); Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987) (granting the petition in full). 68 Yasui v. United States, Civ. No. 83-‐151 BE (D. Or. 1983). 69 Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985), cert. den. 484 U.S. 971 (1987). 70 Kai, sup. 71 Letter to President Barack Obama. 18 Sept. 2014. TS. National Council of Asian Pacific Americans, Washington, DC. This letter was submitted on behalf of 18 member organizations.




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IV. AN ENDURING LEGACY While Yasui was rightly recognized during his lifetime for his contributions to and

accomplishments in the civil and human rights community, especially significant is how his legacy has remained vibrant nearly 30 years after his death.

Since his passing, Yasui has received extensive honors. For example, in 1994, he received an

inaugural Trailblazer Award (now the Daniel K. Inouye Trailblazer Award) from the National Asian Pacific American Bar Association, the organization’s most prestigious honor.72 Yasui is also the namesake for several awards and titles that promote the values by which he lived. In Denver, the Minoru Yasui American Inn of Court helps lawyers and judges rise to higher levels of community engagement and professionalism: “There was no namesake more apropos to remind the legal community of these values than Minoru Yasui.”73 The Minoru Yasui Community Volunteer Award, founded more than 40 years ago, continues to be bestowed today to “unsung hero[es]” serving the Denver community and is a “living tribute to the high principals and courage of an outstanding American citizen.”74 The Asian Pacific American Bar Association of Colorado annually presents the Minoru Yasui Community Service Award, which “honors an individual or organization whose goal of community service exemplifies the achievements of Yasui,” and the Minoru Yasui Memorial Scholarships, which recognize law students continuing Yasui’s work of promoting civil rights and public service.75 In 2002, the University of Oregon School of Law established a Minoru Yasui Endowment for Human and Civil Rights Law to “[remember] the courage of one of the law school’s most visionary alumni, and encourage[] young lawyers and academics to advance his legacy of justice in the years to come.”76

Yasui’s story has also inspired efforts to educate new generations about heroism in the face of

injustice. Several productions document Yasui’s life, including Unfinished Business (1986) by Academy Award-‐winning filmmaker Steven Okazaki, Family Gathering (1989) by Lise Yasui, Citizen Min (1983) by Mike Goldfein, and a tribute film by Holly Yasui to be completed later this year. A staged reading, The Constitution in a Time of War: The Trial of Minoru Yasui, with narration written by Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit, has been presented to audiences throughout the United States. In addition, Hood River teacher Sarah Segal led her sixth-‐ and seventh-‐grade class in an “Unsung Hero” project about Yasui during Fall 2014. The students interviewed Yasui family members, created a walking tour of Yasui’s life, and wrote a letter and created an accompanying video endorsing this nomination for the Presidential Medal of Freedom.

72 “Daniel K. Inouye Trailblazers Past Recipients.” National Asian Pacific American Bar Association, n.d. Web. 15 Feb. 2015. <http://www.napaba.org/?page=TBpastrecipients>. 73 Pratt, The Honorable Charles M. Letter to President Barack Obama. 31 Dec. 2014. TS. Minoru Yasui American Inn of Court, Denver, CO. 74 Silver, Darlene. Letter to President Barack Obama. 12 Dec. 2014. TS. Minoru Yasui Community Volunteer Award: A Program of the Denver Foundation, Denver, CO. 75 Wang, Andrea, and Andrew S. Hamano. Letter to President Barack Obama. 22 Jan. 2015. TS. Asian Pacific American Bar Association of Colorado and Colorado Asian Pacific American Bar Foundation, Denver, CO. 76 Moffitt, Michael. Letter to President Barack Obama. 26 Dec. 2014. TS. Office of the Dean, University of Oregon School of Law, Eugene, OR.




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Yasui has also received official recognition in both Oregon and Colorado. Oregon’s then-‐Governor Neil Goldschmidt issued a proclamation recognizing March 28, 1990, as “Minoru Yasui Recognition Day,” because Yasui’s “actions and words have helped to ensure and to strengthen civil rights for all Americans.”77 In 1999, then-‐Mayor Wellington Webb, Denver’s first African American mayor, dedicated a downtown city building “Minoru Yasui Plaza,” explaining in his letter of endorsement for this nomination that “generations should be aware of his courage and public service.”78 Yasui is also listed as a “Civil Rights Leader” in the Oregon Blue Book, an official fact book that includes a list of 75 “Notable Oregonians” who achieved significance in their pursuits.79 Yasui occupies that list alongside other luminaries such as explorer Merriweather Lewis, Chief Joseph of the Nez Perce tribe, and U.S. Senator Mark O. Hatfield.80

Today, elected leaders in Yasui’s home states strongly endorse the nomination of Yasui for a Presidential Medal of Freedom. These leaders include U.S. Senators Jeffrey Merkley (OR),81 Ron Wyden (OR),82 and Michael Bennet (CO),83 and U.S. Representatives Mike Coffman (CO),84 Diana DeGette (CO),85 Jared Polis (CO),86 Earl Blumenauer (OR),87 Suzanne Bonamici (OR),88 and Peter DeFazio (OR).89 U.S. Representative Greg Walden (OR), who shares Yasui’s hometown of Hood River, has known members of the Yasui family for decades and reflects in his endorsement letter that “[Yasui’s] life and work continue to inspire [his] own public service.”90 Other state and local officials supporting Yasui’s nomination include Colorado Governor John Hickenlooper,91 Colorado Attorney General John Suthers,92 Colorado 77 “Japanese-‐American Honored.” The Oregonian [Portland] 29 Mar. 1990. Print. 78 Webb, The Honorable Wellington E. Letter to President Barack Obama. 19 Dec. 2014. TS. Webb Group International, Denver, CO. 79 “Notable Oregonians: Minoru Yasui -‐ Civil Rights Leader.” Oregon Blue Book. N.p., n.d. Web. 15 Feb. 2015. <http://bluebook.state.or.us/notable/notyasui.htm>. 80 “Other Notable Oregonians.” Oregon Blue Book. N.p., n.d. Web. 15 Feb. 2015. <http://bluebook.state.or.us/notable/notother.htm>. 81 Merkley, Senator Jeff. Letter to President Barack Obama. 13 Jan. 2015. TS. United States Senate, Washington, DC. 82 Wyden, Senator Ron et al. Letter to President Barack Obama. 26 Jan. 2015. TS. United States Senate, Washington, DC. 83 Bennet, sup. 84 Coffman, Representative Mike. Letter to President Barack Obama. 5 Jan. 2015. TS. Congress of the United States, Washington, DC. 85 Honda, Representative Michael M. et al. Letter to President Barack Obama. 9 Feb. 2015. TS. Congress of the United States, Washington, DC. 86 Polis, Representative Jared. Letter to President Barack Obama. 23 Dec. 2014. TS. Congress of the United States, Washington, DC. 87 Blumenauer, sup. 88 Bonamici, Representative Suzanne. Letter to President Barack Obama. 5 Jan. 2014. TS. Congress of the United States, Washington, DC. 89 DeFazio, Representative Peter A. Letter to President Barack Obama. 31 Dec. 2014. TS. Congress of the United States, Eugene, OR. 90 Walden, Representative Greg. Letter to President Barack Obama. 3 Feb. 2015. TS. Congress of the United States, Washington, DC. 91 Hickenlooper, Governor John W. Letter to President Barack Obama. 19 Dec. 2014. TS. Office of the Governor, Denver, CO. 92 Suthers, Attorney General John. Letter to President Barack Obama. 5 Jan. 2015. Office of the Attorney General, Denver, CO.




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Attorney General-‐Elect Cynthia Coffman,93 Oregon Attorney General Ellen Rosenblum,94 and Multnomah County (OR) Chair Deborah Kafoury.95

Elected leaders outside of Colorado and Oregon have also recognized Yasui as a national hero

meriting a Presidential Medal of Freedom. The array of leaders crossing racial, ethnic, and party lines includes U.S. Senators Mazie Hirono (HI), Barbara Boxer (CA), Maria Cantwell (WA), Mike Enzi (WY), and Dianne Feinstein (CA),96 and U.S. Representatives Mike Honda (CA), Judy Chu (CA), Juan Vargas (CA), Jim McDermott (WA), Tony Cardenas (CA), Joaquin Castro (TX), Sheila Jackson Lee (TX), Ted Lieu (CA), Beto O’Rourke (TX), Gregory W. Meeks (NY), Doris O. Matsui (CA), Eleanor Holmes Norton (DC), David Reichert (WA), Raul Ruiz (CA), Gregorio Kilili Camacho Sablan (MP), Robert “Bobby” Scott (VA), Adam Smith (WA), Mark Takano (CA), and Maxine Waters (CA).97 Utah’s Attorney General, Sean D. Reyes, has also submitted a letter of endorsement for this nomination.98 The profound national reach of Yasui’s legacy is perhaps illustrated most clearly in the invaluable lessons he left for the broader community that now carries on the mantle of justice and equality. Yasui’s courage to build relationships and work across racial and ethnic communities, to break new ground, and to challenge the status quo “helped lay the foundation and shape the work that many [civil and human rights leaders] are engaged in today.”99

The cross-‐racial, cross-‐cultural, and grasstops-‐to-‐grassroots collaborations that were integral to Yasui’s vision for achieving equality were revolutionary at the time, yet are recognized as fundamental to social justice work even today. The Leadership Conference on Civil and Human Rights, a coalition with a diverse membership of more than 200 national organizations,100 notes in its letter of endorsement that Yasui had a “prescient understanding of the need for civil rights leaders to work for equality and justice across boundaries of race, class, disability status, and religion.”101 Denver’s first Latino mayor Federico Peña observes:

Minoru Yasui was decades ahead of his time and a true pioneer in the cross-‐racial and cultural fight for civil rights and human rights...He stands for taking action to effect positive change at all

93 Coffman, Attorney General-‐Elect Cynthia. Letter to President Barack Obama. 5 Jan. 2015. Office of the Attorney General, Denver, CO. 94 Rosenblum, Attorney General Ellen. Letter to President Barack Obama. 21 Jan. 2015. TS. Department of Justice, Salem, OR. 95 Kafoury, Chairwoman Deborah. Letter to President Barack Obama. 2 Dec. 2014. TS. Multnomah County, Portland, OR. 96 Wyden et al., sup. 97 Honda et al., sup. 98 Reyes, Attorney General Sean D. Letter to President Barack Obama. 11 Feb. 2015. TS. Office of the Attorney General, Salt Lake City, UT. 99 Romero, sup. 100 “Coalition Members of The Leadership Conference on Civil and Human Rights.” The Leadership Conference on Civil and Human Rights. N.p., n.d. Web. 15 Feb. 2015. <http://www.civilrights.org/about/the-‐leadership-‐conference/coalition_members/>. Many member organizations have independently submitted letters of endorsement. 101 Henderson, Wade. Letter to President Barack Obama. 15 Jan. 2015. TS. Leadership Conference on Civil and Human Rights, Washington, DC.




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levels – from the local to the national to the international, and from the grass roots to the Halls of Congress.”102 Recognizing Yasui’s significant contributions to diverse communities, the dozens of prominent

organizations and public figures endorsing this nomination for a 2015 Presidential Medal of Freedom stand as a testament to both the unique and universal influence Yasui has left on their work and for future generations. V. CONCLUSION Minoru Yasui’s bravery, bold initiative, and undaunted actions to achieve justice touched a rare breadth of American society and imparted lasting lessons that are carried by peers and a new generation of leaders from every background, walk of life, and corner of the country. “His life reflects his deep love of country and constitution and his unspeakable faith in the greatness of our nation” and “his extraordinary efforts to ensure a more perfect union for us all.”103 Civil rights attorney Dale Minami, who led Fred Korematsu’s coram nobis team, said of Yasui:

His life was a testament to the commitment to live a life to breathe spirit into the Constitution, to help those whose disadvantages could be overwhelming, to speak for those who could not speak for their selves. And he did these powerful things daily, for the rest of his life, until he left us physically but with a monumental legacy of good.104 For this lasting legacy, Minoru Yasui is a true American hero meriting a Presidential Medal of

Freedom. Others have been justly honored for their courageous defiance of the World War II curfew and internment orders in furtherance of our nation’s most valued principles. Yasui is equally deserving of that same honor – not only for his actions to challenge these injustices, but also for the life he led in pursuit of civil rights and liberties and equality for all Americans.

Most Respectfully,

Peggy A. Nagae, Chair

Minoru Yasui Tribute Project

102 Peña, sup. 103 DeFazio, sup. 104 Minami, Dale. Letter to President Barack Obama. 23 Dec. 2014. TS. Minami Tamaki LLP, San Francisco, CA.





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78th OREGON LEGISLATIVE ASSEMBLY--2016 Regular Session

House Bill 4009Sponsored by Representatives CLEM, GILLIAM (Presession filed.)

SUMMARY

The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subjectto consideration by the Legislative Assembly. It is an editor’s brief statement of the essential features of themeasure as introduced.

Designates March 28 of each year as Minoru Yasui Day.Declares emergency, effective on passage.

A BILL FOR AN ACT

Relating to a day to honor Minoru Yasui; and declaring an emergency.

Whereas 100 years ago, in 1916, Minoru Yasui was born in Hood River, Oregon, to Masuo and

Shidzuyo Yasui, Japanese immigrants, making him a second generation Japanese American, or

Nisei; and

Whereas in 1933, Minoru Yasui graduated salutatorian from Hood River High School, and in

1937 graduated Phi Beta Kappa from the University of Oregon and was commissioned a Second

Lieutenant in the United States Army; and

Whereas in 1939, Minoru Yasui became the first Japanese American graduate of the University

of Oregon School of Law and the first Japanese American member of the Oregon State Bar; and

Whereas on March 28, 1942, Minoru Yasui violated a military curfew imposed under Executive

Order 9066—the order that led to the incarceration of 120,000 Japanese Americans during World

War II; and

Whereas Minoru Yasui deliberately challenged that curfew by walking the streets of Portland,

Oregon, and then turned himself in to the Portland police so that he could test the constitutionality

of such discriminatory regulations; and

Whereas Minoru Yasui lost his case in the United States District Court for the District of

Oregon and spent nine months in solitary confinement in a six-foot-by-eight-foot cell in the

Multnomah County Jail awaiting his appeal to the United States Supreme Court; and

Whereas the United States Supreme Court ruled against Minoru Yasui in regard to the military

curfew, and he was released from jail only to be incarcerated in the Minidoka War Relocation

Center in Idaho; and

Whereas after his release from Minidoka in 1944, Minoru Yasui settled in Denver, Colorado,

where he practiced law and helped found and participated in many organizations, including the Ur-

ban League of Metropolitan Denver, the Latin American Research and Service Agency, Denver

Native Americans United and various War on Poverty programs; and

Whereas Minoru Yasui was appointed to the Denver Commission on Community Relations, for

which he served as vice-chair, chair and executive director, and as such was an active advocate for

civil and human rights whose efforts cut across ethnic and religious lines and addressed the con-

cerns of all minorities and marginalized people; and

Whereas Minoru Yasui was an active member of the Japanese American Citizens League (JACL)

NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted.

New sections are in boldfaced type.

LC 231



HB 4009

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throughout his life, taking on leadership roles at both the local and national level, and was a

founding member of the Mile High Chapter of JACL in Colorado and the Mid-Columbia Chapter of

JACL in Hood River, Oregon; and

Whereas Minoru Yasui reopened his World War II Supreme Court case in 1983 under a writ of

error coram nobis in the United States District Court for the District of Oregon; and

Whereas as chair of the JACL National Redress Committee, Minoru Yasui helped build and lead

the movement seeking an official apology and reparations for the injustices perpetrated against

Japanese Americans during World War II, actions that led to passage of the Civil Liberties Act of

1988 two years after his death; and

Whereas Minoru Yasui is buried in his beloved hometown of Hood River, Oregon, despite his

many years based in Denver; and

Whereas President Barack Obama awarded Minoru Yasui the Presidential Medal of Freedom

on November 24, 2015, for devoting his life “to fighting for basic human rights and the fair and equal

treatment of every American”; and

Whereas when presenting the medal, President Obama said, “Min’s legacy has never been more

important. It is a call to our national conscience, a reminder of our enduring obligation to be the

land of the free and the home of the brave, an America worthy of his sacrifices”; now, therefore,

Be It Enacted by the People of the State of Oregon:

SECTION 1. March 28 of each year is designated as Minoru Yasui Day.

SECTION 2. This 2016 Act being necessary for the immediate preservation of the public

peace, health and safety, an emergency is declared to exist, and this 2016 Act takes effect

on its passage.

[2]





Chapter 2

America’s War on Terror: Can Our Legal System Prevent History from Repeating Itself?

Moderator: the hoNorable JohN acosta

U.S. District Court for the District of OregonPortland, Oregon

sharia Mayfield

Oregon Department of JusticeSalem, Oregon

Peggy Nagae

Peggy Nagae ConsultingPortland, Oregon

roN silver

Portland, Oregon

steveN Wax

The Innocence ProjectPortland, Oregon

Contents

Executive Order 9066, Authorizing the Secretary of War to Prescribe Military Areas, February 19, 1942 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1

“D-Day: 50 Years Later—A Profile in Courage” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–3

Executive Order 13769, Protecting the Nation from Foreign Terrorist Entry into the United States, January 27, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5

U.S. District Court for the Western District of Washington Temporary Restraining Order in State of Washington v. Trump, Case No. C17-0141JLR . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–11

U.S. Court of Appeals for the Ninth Circuit Order in State of Washington v. Trump, D.C. No. 2:17-cv-00141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–19

Chapter 2—America’s War on Terror: Can Our Legal System Prevent History from Repeating Itself?

2–iiExecutive Order 9066: A Specter of the Past in Today’s War on Terrorism?


2–1Executive Order 9066: A Specter of the Past in Today’s War on Terrorism?

Executive Order No. 9066

The President

Executive OrderAuthorizing the Secretary of War to Prescribe Military Areas

Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104);

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.

I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.

Franklin D. Roosevelt

The White House, February 19, 1942.





D-Day: 50 Years Later—A Profile in Courage1

Minoru Yasui was an OSB member who was commissioned in the Army Reserves, but fate took a different turn for him for one reason: his Japanese ancestry.

Yasui was born an American citizen in 1916 in Hood River, the son of Japanese immigrants. After attending Oregon schools, he was admitted to the Oregon bar, then was hired by the Japanese Consulate in Chicago. Yasui quit the day after the Pearl Harbor attack and returned to Oregon intending to enlist in the U.S. Army, but he was unsuccessful. By March 1942, the Army applied a curfew order to people of Japanese ancestry in Portland. On March 28, 1942, Yasui walked into the police station in Portland, one of the areas restricted by the curfew. He was arrested and incarcerated for the next nine months in the Multnomah County jail.

The government indicted him for violating the curfew order, to which he pled not guilty. Yasui found himself in the courtroom of Judge James Fee. Yasui contended he was not guilty because the curfew order was unconstitutional. The court asked local attorneys to brief the legal questions involved, and a half-dozen did so. In a vitriolic opinion which perhaps is a barometer of the times, the court found that by visiting his grandfather in Japan one summer as a boy and by working for the Japanese consulate before the Pearl Harbor attack, Yasui had chosen allegiance to Japan. The court declared the curfew order unconstitutional, but found that since Yasui had renounced his citizenship, he was an alien and thus guilty.

Yasui’s brother Homer Yasui describes the ruling as “first-degree bull----” by a prejudiced judge. Both he and Minoru Yasui’s later attorney, Peggy Nagae, say Yasui was a patriot who wanted to serve in the U.S. Army and who decided to put democracy to the test. Yasui appealed to the U.S. Supreme Court, which confirmed the conviction on grounds the curfew order was valid. Yasui was resentenced to 15 days in jail, then transferred to an “assembly center” at the Portland Livestock Exposition.

While interned in camps in Idaho and Hart Mountain, Wyo., until 1944, Yasui practiced pro bono law, advising interned Japanese-Americans on their rights to seized property. While at Hart Mountain, the internees filled out “loyalty questionnaires,” and many were then transferred to “disloyal camps,” such as the one at Tule Lake, Calif. Yasui was allowed to travel there and to Hart Mountain to counsel internees. While this was going on, the Army was pressuring the Selective Service System to reclassify Japanese-American men as enemy aliens. A draft resistance movement sprung up in the camps. Homer Yasui states that his brother counseled draft resisters to obey the law because of the severe penalties.

1 By Timothy W. Grabe. From the Oregon State Bar Bulletin, June 1994. Reprinted with permission.



After the war, Minoru Yasui drove an ice truck, then tried to hang out his shingle in Colorado. His application for bar membership was denied because of his conviction, but he successfully appealed to the Colorado Supreme Court.

Forty years later he was back in Oregon federal court—this time on his petition for a writ of error coram nobis—an archaic common law motion which enables wrongfully-convicted people to seek relief after the sentence has been served. Through his attorney, Peggy Nagae, he contended the government had suppressed and manipulated evidence to create the false impression of a serious wartime threat from Japanese-Americans. He requested that the court declare unconstitutional the curfew order that he had been convicted of violating, dismiss his indictment and vacate his conviction. The government this time beat him to the punch, moving to vacate the conviction and dismiss the indictment. The government’s order was granted, but Judge Belloni refused to find Yasui’s rights had been violated.

Yasui died in 1986 while his case was on appeal, and the government successfully moved to vacate the appeal as moot. His attorney feels that his patriotic “give ’em hell” attitude served to protect the civil liberties of us all.



Presidential Documents

8977

Federal Register

Vol. 82, No. 20

Wednesday, February 1, 2017

Title 3—

The President

Executive Order 13769 of January 27, 2017

Protecting the Nation From Foreign Terrorist Entry Into the United States

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nation-als who entered the United States after receiving visitor, student, or employ-ment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including ‘‘honor’’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Home-land Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President

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8978 Federal Register / Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents

a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organi-zation visas, C–2 visas for travel to the United Nations, and G–1, G–2, G–3, and G–4 visas).

(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Sec-retary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Sec-retary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C–2 visas for travel to the United Nations, and G–1, G–2, G–3, and G–4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries rec-ommended for similar treatment.

(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order. Sec. 4. Implementing Uniform Screening Standards for All Immigration Pro-grams. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity docu-ments proffered by applicants to ensure that duplicate documents are not


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used by multiple applicants; amended application forms that include ques-tions aimed at identifying fraudulent answers and malicious intent; a mecha-nism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively con-tributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order. Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admis-sions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admis-sion do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.

(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.

(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.

(e) Notwithstanding the temporary suspension imposed pursuant to sub-section (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest— including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship—and it would not pose a risk to the security or welfare of the United States.


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(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.

(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdic-tions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement. Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.

Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Ter-rorist Attacks Upon the United States.

(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational. Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.

(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fel-lows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected. Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with re-spect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.

Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:


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(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism- related activity, affiliation, or material support to a terrorism-related organi-zation, or any other national security reasons since the date of this order or the last reporting period, whichever is later;

(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and

(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and

(iv) any other information relevant to public safety and security as deter-mined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses. (b) The Secretary of State shall, within one year of the date of this

order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels. Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and

subject to the availability of appropriations.


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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE, January 27, 2017.

[FR Doc. 2017–02281

Filed 1–31–17; 11:15 am]

Billing code 3295–F7–P

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Case 2:17-cv-00141-JLR Document 52 Filed 02/03/17 Page 1 of 7























FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

STATE OF WASHINGTON; STATE OF MINNESOTA,

Plaintiffs-Appellees,

v.

DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W.TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA,

Defendants-Appellants.

No. 17-35105

D.C. No.2:17-cv-00141

ORDER

Motion for Stay of an Order of theUnited States District Court for the

Western District of WashingtonJames L. Robart, District Judge, Presiding

Argued and Submitted February 7, 2017

Filed February 9, 2017

Before: William C. Canby, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges

Per Curiam Order



2 STATE OF WASHINGTON V. TRUMP

COUNSEL

August E. Flentje (argued), Special Counsel to the Assistant Attorney General; Douglas N. Letter, Sharon Swingle, H. Thomas Byron, Lowell V. Sturgill Jr., and Catherine Dorsey, Attorneys, Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Noel J. Francisco, Acting Solicitor General; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellants.

Noah G. Purcell (argued), Solicitor General; Marsha Chien and Patricio A. Marquez, Assistant Attorneys General; Colleen M. Melody, Civil Rights Unit Chief; Anne E. Egeler, Deputy Solicitor General; Robert W. Ferguson, Attorney General; Attorney General’s Office, Seattle,Washington; for Plaintiff-Appellee State of Washington.

Jacob Campion, Assistant Attorney General; Alan I. Gilbert, Solicitor General; Lori Swanson, Attorney General; Office of the Attorney General, St. Paul, Minnesota; for Plaintiff-Appellee State of Minnesota.

ORDER

PER CURIAM:

At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and



STATE OF WASHINGTON V. TRUMP 3

temporarily enjoined enforcement of the Executive Order.The Government now moves for an emergency stay of the district court’s temporary restraining order while its appeal of that order proceeds.

To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.

Background

On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Executive Order”). 82 Fed. Reg. 8,977. Citing the terrorist attacks of September 11, 2001, and stating that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes” since then, the Executive Order declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Id. It asserts, “Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United




States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” Id.

The Executive Order makes several changes to the policies and procedures by which non-citizens may enter the United States. Three are at issue here. First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. 82 Fed. Reg. 8,977-78 (citing the Immigration and Nationality Act (INA) § 217(a)(12), codified at 8 U.S.C. § 1187(a)(12)). Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program. 82 Fed. Reg. 8,979. Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality. Id. Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees. Id. Sections 3(g) and 5(e) of the Executive Order allow the Secretaries of State and Homeland Security to make case-by-case exceptions to these provisions “when in the national interest.” 82 Fed. Reg. 8,978-80. Section 5(e) states that situations that would be in the national interest include “when the person is a religious minority in his country of nationality facing religious persecution.” 82 Fed. Reg. 8,979. The Executive Order requires the Secretaries of State and Homeland Security and the Director of National Intelligence to evaluate the United States’ visa, admission, and refugee programs during the periods in which entry is suspended. 82 Fed. Reg. 8,977-80.

The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were




immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained. Three days later, on January 30, 2017, the State of Washington filed suit in the United States District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the Executive Order, naming as defendants the President, the Secretary of the Department of Homeland Security, the Secretary of State, and the United States (collectively, “the Government”). Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Washington also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do.

Washington asked the district court to declare that the challenged sections of the Executive Order are illegal and unconstitutional and to enjoin their enforcement nationwide. On the same day, Washington filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Executive Order. Two days later, Washington’s Complaint was amended to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment. Washington and Minnesota (collectively, “the States”) jointly filed an amended motion for a TRO. The Government opposed the




motion the next day, and the district court held a hearing the day after that.

That evening, the court entered a written order granting the TRO. Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful. Id. at *2. The district court enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c) in their entirety. Id. It enjoined section 5(e) to the extent that section “purports to prioritize refugee claims of certain religious minorities,” and prohibited the government from “proceeding with any action that prioritizes the refugee claims of certain religious minorities.” The court also directed the parties to propose a briefing schedule for the States’ request for a preliminary injunction and denied the Government’s motion to stay the TRO pending an emergency appeal. Id. at *3.

The Government filed a notice of appeal the next day and sought an emergency stay in this court, including an immediate stay while its emergency stay motion was under consideration. We denied the request for an immediate stay and set deadlines for the filing of responsive and reply briefs on the emergency stay motion over the next two days.1

Washington v. Trump, No. 17-35105, 2017 WL 469608 (9th Cir. Feb. 4, 2017). The motion was submitted after oralargument was conducted by telephone.

1 We have also received many amicus curiae briefs in support of both the Government and the States.




Appellate Jurisdiction

The States argue that we lack jurisdiction over the Government’s stay motion because the Government’s appeal is premature. A TRO is not ordinarily appealable. See Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002). We may nonetheless review an order styled as a TRO if it “possesses the qualities of a preliminary injunction.” Serv. Emps. Int’l Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010). This rule has ordinarily required the would-be appellant to show that the TRO was strongly challenged in adversarial proceedings before the district court and that it has or will remain in force for longer than the fourteen-day period identified in Federal Rule of Civil Procedure 65(b). See, e.g., id.

We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction. The parties vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court. The district court’s order has no expiration date, and no hearing has been scheduled. Although the district court has recently scheduled briefing on the States’ motion for a preliminary injunction, it is apparent from the district court’s scheduling order that the TRO will remain in effect for longer than fourteen days. In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO




should be considered to have the qualities of a reviewable preliminary injunction.2

Standing

The Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue. We have an independent obligation to ascertain our jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and we consider the Government’s argument de novo, see, e.g., Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016). We conclude that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.

Article III, section 2 of the Constitution allows federal courts to consider only “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “Those two words confine ‘the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’” Id. (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). ”Standing is an essential and unchanging part of the case-or-controversy requirement” and is therefore a prerequisite to our jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The “gist of the question of standing” is whether the plaintiff has a sufficiently “personal stake in the outcome of the controversy” to ensure that the parties will be truly adverse and their legal

2 Our conclusion here does not preclude consideration of appellate jurisdiction at the merits stage of this appeal. See Nat’l Indus., Inc. v. Republic Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982).




presentations sharpened. Massachusetts, 549 U.S. at 517 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Id.(citing Lujan, 504 U.S. at 560-61).

Because standing is “an indispensable part of the plaintiff’s case,” it “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. At this very preliminary stage of the litigation, the States may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden. See id. With these allegations and evidence, the States must make a “clear showing of each element of standing.” Townley v. Miller,722 F.3d 1128, 1133 (9th Cir. 2013).3

The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. See, e.g., Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor,620 N.W.2d 680, 683 (Minn. 2001).

3 Our decision in Townley concerned a motion for a preliminary injunction, but the legal standards applicable to TROs and preliminary injunctions are “substantially identical.” Stuhlbarg Int’l Sales Co., Inc.v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).




Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.

According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.

Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the




rights of the students, scholars, and faculty affected by the Executive Order. See Singleton v. Wulff, 428 U.S. 106, 114-16 (1976) (explaining that third-party standing is allowed when the third party’s interests are “inextricably bound up with the activity the litigant wishes to pursue”; when the litigant is “fully, or very nearly, as effective a proponent of the right” as the third party; or when the third party is less able to assert her own rights). Vendors, for example, “have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren, 429 U.S. 190, 195 (1976). Likewise, doctors have been permitted to assert the rights of their patients. See, e.g.,Griswold v. Connecticut, 381 U.S. 479 (1965). And advocacy organizations such as the NAACP have been permitted to assert the constitutional rights of their members. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).

Most relevant for our purposes, schools have been permitted to assert the rights of their students. See, e.g.,Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) (“It is clear that the schools have standing to assert these arguments [asserting free-association rights, privacy rights, and ‘a parent’s right to direct the education of his children’] on behalf of their patrons.”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 536 (1925) (allowing a school to assert the “right of parents to choose schools where their children will receive appropriate mental and religious training [and] the right of the child to influence the parents’ choice of a school”); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir. 1995) (citing Pierce and rejecting the argument that the plaintiff school had no standing to assert claims of discrimination against its minority students); see also Ohio Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996) (citing similar authorities). As in those cases, the interests




of the States’ universities here are aligned with their students. The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them. Singleton, 428 U.S. at 115. And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.4

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.

4 The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. Even if we assume that States lack such rights, an issue we need not decide, that is irrelevant in this case because the States are asserting the rights of their students and professors. Male doctors do not have personal rights in abortion and yet any physician may assert those rights on behalf of his female patients. See Singleton, 428 U.S. at 118.




We therefore hold that the States have standing.5

Reviewability of the Executive Order

The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” (quoting Fiallo v. Bell,430 U.S. 787, 792 (1977))); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (explaining that courts should defer to the political branches with respect to national security and foreign relations). Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the

5 The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States’ proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments.




judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton,566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally




permissible means of implementing that power”).6 Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).

Kleindienst v. Mandel, 408 U.S. 753 (1972), does not compel a different conclusion. The Government cites Mandel for the proposition that “‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.’” The Government omits portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority. In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the

6 See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954) (reaffirming the broad power of Congress over immigration, but observing that “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process”); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (reaffirming, in the context of adjudicating a constitutional challenge to an immigration policy, that “this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution”); Chae Chan Ping v. United States, 130 U.S. 581, 604 (1889) (“The powers to declare war, make treaties . . . and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”).




application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard; as cases like Zadvydas and Chadha make clear, courts can and do review constitutional challenges to the substance and implementation of immigration policy. See Zadvydas, 533 U.S. at 695; Chadha, 462 U.S. at 940-41.

This is no less true when the challenged immigration action implicates national security concerns. See Ex parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”);Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”). We are mindful that deference to the political branches is particularly appropriate with respect to national security and foreign affairs, given the relative institutional capacity, informational access, and expertise of the courts. See Humanitarian Law Project, 561 U.S. at 33-34.

Nonetheless, “courts are not powerless to review the political branches’ actions” with respect to matters of national security. Alperin v. Vatican Bank, 410 F.3d 532, 559 n.17 (9th Cir. 2005). To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that




the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war. Humanitarian Law Project, 561 U.S. at 34 (quoting id. at 61 (Breyer, J., dissenting)); see also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”); Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“[S]imply because a statute deals with foreign relations [does not mean that] it can grant the Executive totally unrestricted freedom of choice.”).

Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict. See, e.g., Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal courts of jurisdiction over habeas petitions filed by non-citizens being held as “enemy combatants” after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001); Aptheker v. Sec’y of State, 378 U.S. 500 (1964) (holding unconstitutional a statute denying passports to American members of the Communist Party despite national security concerns); Ex parte Endo, 323 U.S. 283 (1944) (holding unconstitutional the detention of a law-abiding and loyal American of Japanese ancestry during World War II and affirming federal court jurisdiction over habeas petitions by such individuals).As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United




States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (plurality opinion).

In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

Legal Standard

The Government moves to stay the district court’s order pending this appeal. “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder,556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’” Id. (quoting Virginian, 272 U.S. at 672-73) (alterations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34.

Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434). “The first two factors . . . are the most critical,” Nken, 556 U.S. at 434, and the last two steps are reached “[o]nce an applicant satisfies the first two




factors,” id. at 435. We conclude that the Government has failed to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay. We emphasize, however, that our analysis is a preliminary one. We are tasked here with deciding only whether the Government has made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in light of the relative hardships and the public interest.

The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims. We express no view as to any of the States’ other claims.

Likelihood of Success—Due Process

The Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Government may not deprive a person of one of these protected interests without providing “notice and an opportunity to respond,” or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered. United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014); accordCleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1073 (9th Cir. 2015).

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive




Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.

In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States. The district court held generally in the TRO that the States were likely to prevail on the merits of their due process claims, without discussing or offering analysis as to any specific alleged violation.

At this stage of the proceedings, it is the Government’s burden to make “a strong showing that [it] is likely to” prevail against the States’ procedural due process claims. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). We are not persuaded that the Government has carried its burden for a stay pending appeal.

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their




presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. See id. (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry. See id. at 35 (“[T]he courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”).

The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order




signed by the President and now challenged by the States, and that proposition seems unlikely.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clearthat the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel,408 U.S. 753, 762-65 (1972). Accordingly, the Government has not demonstrated that the States lack viable claims based




on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.

The Government argues that, even if the States have shown that they will likely succeed on some of their procedural due process claims, the district court nevertheless erred by issuing an “overbroad” TRO. Specifically, the Government argues that the TRO is overbroad in two independent respects: (1) the TRO extends beyond lawful permanent residents, and covers aliens who cannot assert cognizable liberty interests in connection with travelling into and out of the United States, and (2) the TRO applies nationwide, and enjoins application of the Executive Order outside Washington and Minnesota. We decline to modify the scope of the TRO in either respect.

First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas,533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. See Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting) (six Justices declining to adopt a rule that would categorically bar U.S. citizens from asserting cognizable liberty interests in the receipt of visas by alien spouses). There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.




Second, we decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy. Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves, but we cannot say that the Government has established that a contrary view is likely to prevail. Moreover, even if limiting the geographic scope of the injunction would be desirable, the Government has not proposed a workable alternative form of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.

More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. See United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 479 (1995) (declining to rewrite a statute to eliminate constitutional defects); cf. Aptheker v. Sec’y of State, 378 U.S. 500, 516 (1964) (invalidating a restriction on freedom of travel despite the existence of constitutional applications). The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.

Likelihood of Success—Religious Discrimination

The First Amendment prohibits any “law respecting an establishment of religion.” U.S. Const. amend. I. A law that has a religious, not secular, purpose violates that clause,




Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), as does one that “officially prefer[s] [one religious denomination] over another,” Larson v. Valente, 456 U.S. 228, 244 (1982). The Supreme Court has explained that this is because endorsement of a religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000) (quoting Lynch v. Donnelly,465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). The Equal Protection Clause likewise prohibits the Government from impermissibly discriminating among persons based on religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978).

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-




68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).

The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

The Balance of Hardships and the Public Interest

The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has




perpetrated a terrorist attack in the United States.7 Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.8 We disagree, as explained above.

To the extent that the Government claims that it has suffered an institutional injury by erosion of the separation of powers, that injury is not “irreparable.” It may yet pursue and vindicate its interests in the full course of this litigation. See, e.g., Texas v. United States, 787 F.3d 733, 767-68 (5th Cir. 2015) (“[I]t is the resolution of the case on the merits, not whether the injunction is stayed pending appeal, that will affect those principles.”).

7 Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.

8 In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justiceprocedures to protect classified materials in civil cases); 28 C.F.R. § 17.46(c) (“Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information . . . .”); W.D. Wash. Civ. L.R. 5(g) (providing procedures governing filings under seal).




By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.” Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries andeven irreparable harms. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns,427 U.S. 347, 373 (1976))).

The Government suggests that the Executive Order’s discretionary waiver provisions are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when? Moreover, as we have explained above, the Government has not otherwise explained how the Executive Order could realistically be administered only in parts such that the injuries listed above would be avoided.

Finally, in evaluating the need for a stay, we must consider the public interest generally. See Nken, 556 U.S. at 434. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from




discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.

Conclusion

For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.

