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 . . . 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.*
—FRANKLIN DELANO ROOSEVELT
The Right to a Trial: Military Tribunals and Ex parte Quirin
On July 2nd 1942, by presidential edict, the right to a civilian trial was removed for saboteurs, regardless of whether they were United States citizens:
[A]ll persons . . . who give obedience to or act under the direction of any . . . [nation at war with the United States] and who during time of war enter or attempt to enter the United States or any territory or possession thereof . . . and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law or war, shall be subject to the law of war and to the jurisdiction of military tribunals; and that such persons shall not be privileged to seek any remedy . . . in the courts of the United States, or of its States, territories, and possessions.1
As discussed in chapter 3, the Treason Clause of the Constitution protects persons accused of giving aid and comfort to the enemy or waging war against the United States, alone, in groups, or under enemy direction.2 Further, the Constitution “enshrines this in Article III, for the Judiciary to guard against encroachment of the protections provided for in the Treason Clause.”3 These textually demonstrable protections, however, were insufficient for the Supreme Court and FDR to halt the execution of one U.S. citizen without civilian trial, achieving likely the same result through an unnecessary flexing of executive muscles.
The Increasingly Relevant Case of the Eight Nazi Saboteurs and the U-boats in New York and Florida
Operation Pastorius began in Germany in early 1942.4 Its directive was to train Germans who had lived in America to enter the United States and sabotage the U.S. war effort.5 In charge of the missions was a former U.S. resident and German American Bund member, Lt. Walter Kappe of Abwehr II.* Kappe recruited two army members and ten civilian workers who had lived in America to be part of a team of “secret agents.”6 The recruits were placed in an eighteen-day “crash course” sabotage school seventy-five miles outside Berlin in Gut Quenzsee.7 There they learned how to blend in, to write correspondence in secret, to bomb the most effective places, and to use Jiu-Jitsu.8
After spy school eight of the twelve were split into two teams of four and sent to Lorient in the zone occupée in Vichy France.9 On May 26th 1942, the first group—George J. Dasch, team leader; Ernest P. Burger; Heinrich H. Heinck; and Richard Quirin—left via U-202 for Long Island.10 On May 28th 1942, the second group—Edward Kerling, team leader; Werner Thiel; Herman O. Neubauer; and Herbert H. Haupt—left via U-584 for Florida.11
The Long Island group landed on Amagansett Beach in East Hampton a little after midnight on June 13th, and the Florida group landed outside Jacksonville at Ponte Vedra Beach, Florida, on June 17th.12 Each man wore a German military uniform.13 Both groups, being undertrained, underprepared, and (as will be shown) staffed with the wrong men for the job, would face embarrassing failure, thus discouraging sabotage attempts on the U.S. East Coast for the duration of the war.14
The captain of the U-202, Hans-Heinz Linder, was no great fan of the beaches of Long Island because his submarine—on a secret mission where avoiding detection was key—became stuck on a sand bank.15 Just before dawn, the submarine managed to break free undetected.16
The spy group, however, was detected. A Coast Guardsman walking along the beach happened upon the group while they were burying their insignia and sabotage equipment. One Nazi was reported to still be wearing his bathing suit.17 After bungling a cover story about being a local fisherman, Dasch bribed the Guardsman with $260 to stay quiet.18 His group proceeded to New York City in civilian clothing.19 The Guardsman had taken the money to get rid of the four men and reported the incident to his Coast Guard colleagues.20 They proceeded to dig up boxes of explosives and Nazi uniforms on the beaches, and the hunt was on.21
The Florida group fared better on the beaches, landing successfully and traveling to Jacksonville undetected.22 The group then split into pairs, Kerling and Thiel heading to Cincinnati, and Haupt and Neubauer embarking for Chicago.23 Kerling and Thiel continued on from Cincinnati to New York City.24 Haupt returned to his father’s home in Chicago, where Hans, his father, under false pretenses, helped him get a job in a defense plant and obtain a car, and sheltered him.25 Once they arrived in New York, Kerling reached out to his old roommate, Anthony Cramer, who, after guessing Kerling was a spy, helped him and Thiel hide some of their money.26
Dasch, while in his New York City hotel room, decided that he no longer wished to serve the Third Reich and planned to turn himself in to the FBI.27 He confided in his co-conspirator Burger.28 Dasch alerted the FBI to his presence via telephone on June 14th. On June 19th, Dasch, calling himself “Pastorius,” turned himself in.29 At first, his FBI interrogators did not believe him, but eventually they felt his story was credible.30 After an East Coast manhunt, the remaining seven co-conspirators were arrested by June 27th 1942.31
On July 2nd 1942, FDR issued Proclamation No. 2561 retroactively ensuring that the Nazi saboteurs would never see the inside of a civilian courtroom. His order was published in the Federal Register on July 7th, and the military tribunal opened proceedings against the saboteurs the next day, July 8th.32 The government was represented by Attorney General Biddle and the Army Judge Advocate General, Maj. Gen. Myron C. Cramer.33 FDR-nominee Chief Justice Stone’s son, Maj. Lausen H. Stone, headed the defense.34
During the trial, the defense team decided to engage in a legal tactic called a “collateral attack.” Using the writ of habeas corpus, or other similar operations of law, a defendant can “attack” ongoing proceedings in one court using a different court. On July 28th 1942, all the defendants, except Dasch, petitioned for leave to file for a writ under the theory that Ex parte Milligan was the controlling case and that because civilian courts were open, access should be provided.35 The district court denied leave in Ex parte Quirin, and the Supreme Court agreed to hear the case.36 The Supreme Court heard oral argument the next day, on July 29th. In an act of extreme cowardice, the Court issued an unsigned, one-page order on July 31st, affirming the commission’s legitimacy.37
While this collateral attack was ongoing and despite the “short time that [counsel] had to investigate this matter,”38 the tribunal convicted the saboteurs around August 1st and sentenced them to death.39 The sentence was carried out on August 8th for six of them: Dasch’s and Burger’s sentences were commuted to long prison terms for their roles in thwarting the plot.40 The Supreme Court’s “extended” opinion—providing the actual legal reasoning for the Court’s decision—was filed months after the per curiam order and the executions, on October 31st.41 By the time the dust had cleared in 1947, the Supreme Court had issued three opinions on the facts of this case, dealing with the saboteurs themselves and Haupt’s father and Anthony Cramer, both of whom were convicted of treason.42
In this case, the Supreme Court made one of many poor decisions rendered during this time period. There is a litany of constitutional problems with the Quirin case. The Nazi saboteurs were arrested, detained, and questioned by civilian authorities, mostly in the Southern and Eastern federal court districts of New York, which would have jurisdiction over the crime. This right to a regular trial is contained not only in Article III, section 2, of the Constitution but also in the Hague Conventions.43
Moreover, the order which excluded the Nazis from civilian courts was an ex post facto* presidential edict, without any congressional authority, issued five days after they had been arrested. The Constitution in Article I clearly states that no “ex post facto Law shall be passed.”44 While Article I traditionally constrains only congressional action and Article II constrains presidential action, in Calder v. Bull, a seminal Supreme Court opinion establishing the government’s obligatory fidelity to Natural Law concepts, Justice Samuel Chase wrote, “Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender [is an ex post facto law].”45
President Roosevelt’s order creating the commission provided that the “Commission shall have power to and shall, as occasion requires, make such rules for the conduct of the proceedings . . . as it shall deem necessary for a full and fair trial of the matters before it. Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man.”46 Evidence, in all state and federal courts of law in the United States, must not merely be probative, but must also be lawfully acquired and relevant, so as to avoid introducing evidence that assassinates a defendant’s character, tainting the jury with irrelevant prejudice.47 This distinction between the evidentiary requirements of the Federal Rules of Evidence and military commission rules will prove of great import during the War on Terror.
And what of their citizenship? At the time the Supreme Court heard the case, Haupt, age twenty-two, asserted that he could avoid a military tribunal and was entitled to civilian trial because he was arrested and detained by civilian authorities, on U.S. soil, while a U.S. citizen.48 Herbert Haupt was a U.S. citizen at the time he was captured. He presented a clear-cut case for treason by waging war and giving aid and comfort to the enemy. Traitors, because of the Treason Clause, can never be constitutionally unilaterally killed (except, of course, in self-defense) by a superior or tried by military commission absent exigent circumstances.49
The Supreme Court dismissed Haupt’s citizenship arguments in Ex parte Quirin in just two paragraphs, giving an opaque and circularly reasoned opinion on why his citizenship was unimportant.50 Because he was not wearing his uniform, he was in criminal violation of the laws of war, and because the law proscribing treason says nothing about failing to wear a uniform, no civilian protections were afforded him because he was charged with a violation of the law of war, not treason. Of course, waging war against the United States is the hallmark of treason, and the Constitution’s criminalization of treason supersedes any treaty. In the Court’s opinion, Haupt was not entitled to the due process that the Fifth and Sixth Amendments guarantee to every person. The Nazi saboteurs, even the American among them, had their natural right to a fair and regularly constituted trial violated.
Most of all, the Court handily dismissed the Ex parte Milligan argument that the law of war “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.”51 How did the Court get around this clear rule regarding the primacy of civilian courts for citizens? The Court ruled, “We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here.”52
The Court begs the question to be determined: The military tribunal in Quirin existed to determine whether the saboteurs were associated with the enemy. Therefore, unless the presumption of innocence is changed, the military tribunal would be unable to exercise jurisdiction without determining the verity of the indictment. The Court read Milligan, a jurisdictional case dealing with the predicate of which court’s rule speaks in a certain area, and disingenuously converted it into a choice of laws case, where the question is merely to what law the defendant is subject within the court structure. Additionally, the Milligan Court clearly stated that the question was jurisdictional: “The controlling question in the case is this: Upon the facts stated in Milligan’s petition, and the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to try and sentence him?”53 not whether the laws of war applied to him.
The Court, however, disgracefully fell into the wartime hysteria that had swept the nation in 1942 following the beating our armed forces had taken so far in the war. In a later case, the Court seemingly overruled Quirin, although not expressly, restoring Milligan as guiding the application of irregularly constituted military courts’ jurisdiction to citizens.
In Duncan v. Kahanamoku, a civilian Honolulu stockbroker challenged his conviction by military tribunal for embezzlement.54 He had been tried for embezzlement by a military tribunal because, in the wake of Pearl Harbor, FDR instituted martial law for all crimes in Hawaii, and so, military tribunals were convened for all judicial matters.55 After the war ended, the Court held that the act which authorized martial law and thus, military commissions, “was not intended to authorize the supplanting of courts by military tribunals. . . . We hold that both petitioners are now entitled to be released from custody.”56
In a particularly telling use, the Court cited Quirin twice, once for the proposition that procedural safeguards were important and the other in a footnote, articulating its understanding that Quirin stands for the broad principle that military commissions can try only certain types of captives—“enemy belligerents, prisoners of war, or others charged with violating the laws of war”—in line with the jurisdictional rules of Milligan.57 The “Milligan Rule” was cited eight times.58 Thus, a blow was struck in favor of liberty. As was said in Milligan, “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”59
Executive Fiat: The Japanese Internment Camps
War hysteria hits the hardest along racial lines, and throughout the country, from the president to the military, there was a “pervasive American prejudice against ‘Orientals’ ”; namely, that they were “unassimilable” and would adhere to their emperor.60 Following the attack on Pearl Harbor, the FBI detained more than 9,000 aliens of German, Italian, and Japanese descent.61 The approximately 890,000 remaining enemy aliens registered under the Smith Act were restricted from owning weapons, possessing radios, or moving freely.62 The restrictions were lifted on Italian nationals.63 German nationals were generally left to their own devices.64 The Japanese, however, were interned in concentration camps for the duration of the war.
The Racial History of Executive Order 9066
“In the immediate aftermath of Pearl Harbor, there was no clamor for the mass internment of Japanese aliens and Japanese Americans”;65 however, FDR would sign Executive Order 9066 on February 19th 1942, just two and a half months after the Pearl Harbor attack, permitting the internment of U.S. citizens without cause. Why? Misinformation amplified by racial tension and wartime hysteria caused public sentiment to shift away from condemning internment toward extolling its utmost necessity in just two months.
Gen. John L. DeWitt was the army general in charge of the West Coast defense. In the wake of Pearl Harbor, he and Navy Secretary Frank Knox released several false reports of a Japanese fifth column,* naval and air force activity on the California coast.66 False news reports of fifth-column activity also permeated the marketplace of ideas, dispersing misinformation to fearful people.67 Attorney General Biddle, General DeWitt, and FBI Director Hoover were staunch opponents of mass internment for logistical and legal reasons.68 DeWitt even called the prospect of mass internment “damned nonsense.”69
On January 25th 1942, however, public sentiment shifted with the release of the report by the commission on Pearl Harbor. The report placed blame for the Pearl Harbor incident on the shoulders of “persons of Japanese ancestry” for fifth-column activities in Hawaii that enabled the attack.70
Public sentiment went drastically in favor of internment. California Governor Culbert Olson and California Attorney General Earl Warren, future chief justice of the U.S. Supreme Court, entered the debate, calling for the internment of the Japanese.71 DeWitt flipped on the issue, proclaiming that the “Japanese race is an enemy race”; “the racial strains [of Japanese Americans] are undiluted”; “[w]e must worry about the Japanese all the time until he is wiped off the map,” and most famously, a “Jap’s a Jap.”72 With such “enlightened” discussion from the upper echelons of the military hierarchy, there is no wonder that FDR found comfort in political cover and ordered such a massive rights deprivation to placate a hysterical public whose hysteria his agents flamed and upon which he capitalized so as to enhance presidential power.
On February 14th 1942, DeWitt openly called for the internment of all people of Japanese ancestry, despite their citizenship.73 Biddle attempted to head off the impending order, but FDR silenced him and signed No. 9066 on February 19th, which
[a]uthorize[d] and direct[ed] the Secretary of War, and the Military Commanders whom he may from time to time designate . . . 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.74
“The public rationale for the decision, laid out in General DeWitt’s final report on the evacuation of the Japanese from the West Coast, was that . . . the government had no reasonable way to distinguish loyal from disloyal persons of Japanese descent.”75
Henry Stimson, the secretary of war, designated DeWitt to carry out this act, pursuant to Executive Order 9066 on February 20th 1942.76 DeWitt wasted no time in bringing the West Coast under his thumb. His Public Proclamation Nos. 1 and 2, issued March 2nd and March 16th 1942, created military areas and warned of future possible evacuation for “classes of persons as the situation may require.”77
Executive Order 9102 stepped up the internment process by creating a War Relocation Authority under the OEM to administer Order 9066 by orchestrating the removals.78 More proclamations from DeWitt soon followed. Public Proclamation No. 3, which created curfews from 8:00 p.m. to 6:00 a.m. in Military Areas Nos. 1 to 6 (essentially the entire West Coast), was issued on March 24th 1942.79 Shortly after, his Civilian Exclusion Order No. 1 began the exclusion of Japanese Americans from Puget Sound in Seattle.80 Public Proclamation No. 4 forbade all Japanese Americans from migrating out of any military zone on the West Coast;81 they would eventually be removed by compulsory measures. There would be fifty-six more exclusion orders by May 10th.82 The imprisonment of 120,000 Japanese Americans would finish by August 7th, with the Japanese prisoners prohibited from leaving the camps.83
The devastation to the Japanese Americans was catastrophic. Citizens were ordered from their homes into hastily made camps and their liberty to move restricted by the color of their skin. In terms of the economic devastation of the West Coast diaspora:
Upon return to their “home” towns, many found the belongings they had been forced to leave behind destroyed, vandalized, or missing. For the Issei [First Generation], their entire lives’ earnings, the fruits of decades of hard work, were lost, and it was too late for them to start rebuilding their fortunes. About 20 percent of the surviving Issei were still below the poverty level in 1970. Men of the Nisei [Second Generation] could not complete their college educations because they had to work to support their families.
The losses sustained by the Japanese Americans were great. According to a 1942 estimate by the Federal Reserve Bank of San Francisco, wartime property losses alone for Japanese Americans were by then in excess of $400 million.84
Executive orders, emergency “national security” actions, and a passive Congress took the most fundamental rights—to liberty and property—from a downtrodden American minority, including families with children. Tens of thousands of Italians and Germans were also detained, but released soon after because of a generally held belief that their racial stock was less inclined to adhere to the enemy.85 The sound of such rationale—based on racial stock—whether employed to justify incarceration or liberation is utterly repugnant to the twenty-first-century ear and has largely been swept under the rug by FDR idolaters.
The Supreme Court was given the opportunity to review the actions taken pursuant to Executive Orders 9066 and 9102 in two cases, Hirabayashi v. United States and Korematsu v. United States. What ensued was the greatest human rights debacle in Supreme Court history since the Dred Scott case: The detention of 120,000 West Coast Japanese Americans, mostly citizens, despite not a single verified incident of espionage or sabotage, based solely on their ancestry, was given the imprimatur “constitutional.”86
Kiyoshi Hirabayashi, a native-born U.S. citizen, was convicted under a federal statute that prohibited disobeying the curfew proclamation.87 Hirabayashi broke curfew by being outside “the designated military area between the hours of 8:00 o’clock p.m. and 6:00 a.m.”88 He asserted that his Fifth Amendment due process rights had been violated.
The Court first noted the tactical error of this legal argument. Rejecting Lochner’s substantive due process, it held that 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.”89 The curfew was found to be within the president’s “war power,” and the Court noted, “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.”90
The Court was wrong on two counts. First, due process encapsulates a semblance of equal protection: The process due to a Caucasian American is the same process due to a Japanese American. There is a natural right to equal protection under the laws, which is due any individual under judicial processing. Absent all governments’ equal protection requirements, the laws would be so subjectively administered as to be authoritarian or meaningless. Further, the German Americans were not rounded up, despite the beating that the Atlantic Coast was taking from the Kriegsmarine. Individual rights and personal liberty would need to wait another day for this war to end and the FDR-cowed Court to assure their continued legal existence.
That day appeared as if it might have come in the fall of 1944 when Toyosaburo Korematsu’s appeal reached the Supreme Court.91 Korematsu v. United States was an appeal of an American citizen of Japanese descent who was convicted of “remaining in San Leandro, California,” when a military order said he could not be there because of his race.92 The opinion began by making a large advancement in civil liberties; it required strict scrutiny for racial classifications.93 When the Supreme Court reviews a law that targets a particular group, depending on what type of group it is, the government action must meet a rational basis, intermediate, or strict scrutiny standard of review. Strict scrutiny review is the most exacting standard, requiring a compelling government interest and that the means of accomplishment be the least restrictive possible to achieve that interest. However, as the opinion turned, the government’s action—the mass internment of more than a hundred thousand Japanese Americans without any individualized basis—was constitutional.94 Korematsu’s conviction was upheld.95 The Court opined: “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.”96
Thus, in the face of difficult and trying times, actions that were not justifiable under necessity, but were manifestations of racism, hysteria, and the “herd” mentality lamented in the Bourne essay, were made legal and constitutional. The counter-majoritarian branch, the Court, charged with halting the majority’s encroachment on the civil and natural liberty of personal movement and use of property, had failed miserably in its delegated task. The “constitutional” internment was “the worst blow our liberties have sustained in many years,” and Korematsu was a “disaster.”97
Detaining more than a hundred thousand Americans without charge to investigate their “loyalty” is deplorable in itself.98 However, this issue is compounded further by the demonstrable, patriotic adherence of many Japanese Americans to their country during the war. The 442nd Regiment, or the “Nisei”* Battalion, was composed of Japanese Americans whose families were interred during the war:99 “The 442nd Regimental Combat Team was the most decorated unit for its size and length of service, in the entire history of the U.S. Military. The four thousand men who initially came in April 1943 had to be replaced nearly 3.5 times. In total, about fourteen thousand men served, ultimately earning 9,486 Purple Hearts, 21 Medals of Honor[,] and an unprecedented eight Presidential Unit Citations.”100
The Court, Congress, and FDR were judging the Japanese Americans by the color of their skin and not their actions.
Justice Murphy condemned the Court’s decision to fall into “the ugly abyss of racism.”101 His vigorous dissent would destroy his personal friendship with FDR:
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.102
The Post-War: No Return to Reason
Although no relief may be afforded to Haupt or the saboteurs who likely would not have received a death sentence in civilian court, Congress repealed the War Powers Acts after the war, but not until 1966.103 Title I of the Smith Act and the Espionage Act of 1917, however, remain in the U.S. Code today, changing form over the years and serving initially after World War II as the statutory basis for the congressional investigations of the Second Red Scare. The impending Cold War would impede the recognition of liberty after World War II, paving the way for oppression during the Second Red Scare.
The Japanese Americans did not fare too much better than Haupt in terms of restitution. The FDR administration announced the release of the Japanese Americans from internment on December 17th 1944, when it became apparent that the Allies would defeat Japan.104 Further, one day after FDR announced the close of the internment camps, the Court abrogated the presidential power to issue such directives as Executive Order 9066 in Ex parte Endo, a Supreme Court case on a writ of habeas corpus from an interned Japanese woman, Mitsuye Endo:
Detention which furthered the campaign against espionage and sabotage would be one thing. But detention which has no relationship to that campaign is of a distinct character. Community hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if authority for their custody and supervision is to be sought on that ground . . . [congressional and executive action] offer no support. And none other is advanced. To read them that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption. As the President has said of these loyal citizens: Americans of Japanese ancestry, like those of many other ancestries, have shown that they can, and want to, accept our institutions and work loyally with the rest of us, making their own valuable contribution to the national wealth and well-being. In vindication of the very ideals for which we are fighting this war it is important to us to maintain a high standard of fair, considerate, and equal treatment for the people of this minority as of all other minorities.
Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority.105
In 1948, under the Truman administration, the government made its first stab at righting the wrong of Japanese American incarceration. The Japanese American Evacuation Claims Act was enacted on July 2nd 1948, providing for a limited redress of grievances.106 However, the program administration of the law was “agonizingly slow,” and only twenty-six thousand internees had been compensated by 1958.107 In 1988, after years of Japanese American lobbying, President Reagan signed the Civil Liberties Act of 1988 into law, providing for a more realistic but still unsatisfactory compensation measure of $20,000 per individual and “discourag[ing] the occurrence of similar injustices and violations of civil liberties in the future.”108 Ensuring that “all eligible Japanese American recipients will receive their redress money,” President George W. Bush expanded the compensation totals in 1992.109 Liberty, too late for most and too little for all, had somewhat moved in a better direction.
The federal government’s treatment of Japanese Americans during World War II showed its lack of fidelity to the Constitution in general and FDR’s latent racism in particular. How safe are our liberties if this behavior can be lauded and unremedied?
* Franklin Delano Roosevelt, Exec. Order 9066, 7 Fed. Reg. 1407 (1942), authorizing the internment of Japanese Americans on the West Coast.
* Defense Division 2 (Nazi Sabotage Unit).
* “After the fact,” that is, retroactive.
* Fifth column is a term that originated in the Spanish Civil War for subversive activities—a fifth column in addition to four columns of troops.
* “Second generation (immigrant).”