In 1920, the first commercial radio station opened in Pittsburgh, Pennsylvania.1 Over the next twenty years, the radio business boomed, bringing the world together across previously unimaginable distances. Like all new technologies, it was quickly adapted for military purposes.2 Governments realized that radio could be used not only for troop communications but also for safely broadcasting propaganda directly into the heart of enemy territory. Radio broadcasts to wide audiences, which were nonexistent during World War I, took on enormous significance in World War II. The government of Nazi Germany, for example, viewed radio propaganda as a vital part of its war effort. As one Nazi propagandist later testified, German broadcasts aimed at American listeners were intended “to build up racial controversies, to create unrest regarding the economic inequalities in the country. . . . [to drive] a wedge between the people and the Roosevelt Administration, and [possibily get] a government elected in the United States which would be against interference in European affairs.”3
Effective propaganda, of course, required fluency in the listener’s own language, so native speakers were essential. In the Pacific Ocean, American service members listened to broadcasts from Radio Tokyo, where English-speaking broadcasters presented programs of popular music and occasional Japanese propaganda. The Americans called the female broadcasters “Tokyo Rose.” In Europe, “Axis Sally” (in reality an American citizen named Mildred Gillars) broadcast propaganda from Nazi Germany. So did the American journalists Douglas Chandler and Robert H. Best. And in Italy, the American poet Ezra Pound conducted propaganda broadcasts on behalf of Mussolini’s fascist government.
All of these Americans would eventually be charged with treason for their broadcasting activities. These cases brought a modern twist to the old charge of aiding the enemy. The defendants did not provide military supplies or financial assistance. Instead, they were charged with sitting in a small room, projecting their voices over invisible radio waves in the direction of American troops.
The most legendary of these broadcasters was “Tokyo Rose.” Popular accounts insisted that a Japanese-American woman named Iva Toguri D’Aquino was the one and only “Tokyo Rose.” In 1949 Toguri was tried and convicted of treason against the United States, and for many Americans her guilt seemed firmly established. Even today, the name “Tokyo Rose” is almost synonymous with traitor. But Toguri’s journey from obscurity to infamy reveals a far more complicated story, one of a young woman who may not have betrayed her country at all.
Nothing about Iva Toguri’s childhood in Southern California suggested that she would someday find herself charged with treason against the United States. She was born in Los Angeles on the Fourth of July, 1916, to parents who had emigrated from Japan. Although her parents were barred from American citizenship by the race-based restrictions then in force, Toguri was an American citizen by birth. In many ways, her childhood was thoroughly assimilated into the American mainstream—English was the primary language in her home, the family attended a Methodist church, she played tennis and was a member of the Girl Scouts, and most of her acquaintances were white.4 As one scholar notes, “in order to become a genuine and true American,” she “seemed to have come to despise everything Japanese, including Japanese foods, especially rice.”5 She attended UCLA, where she was a member of an Asian-American sorority, and graduated in 1940 with a degree in zoology.6
In June 1941, the Toguri family received a fateful letter. Iva Toguri’s aunt, her mother’s twin sister, was mortally ill in Japan. Although Iva’s mother was herself too sick to make the journey, the family decided to send Iva instead. On July 5, 1941, Iva Toguri departed the United States en route to Yokohama. When she arrived, she discovered that she didn’t particularly like Japan, and she was eager to return home in the fall of 1941. But her efforts were hindered by deteriorating relations between the United States and Japan and bureaucratic obstacles arising from her lack of a United States passport. The attack on Pearl Harbor on December 7, 1941, foreclosed the return journey entirely. Toguri was now stuck behind enemy lines, in a country whose language she did not speak and whose culture she only partially understood.7
Desperate for a job, Toguri began working for the Dōmei News Agency, roughly the Japanese equivalent of the Associated Press, as a transcriber of English-language broadcasts.8 Japanese officials encouraged Toguri to renounce her American citizenship and become a citizen of Japan, but she refused to do so.9 Meanwhile, her family back in the United States was sent to an internment camp.
In August 1943, Toguri took a second job as an English-language typist for Radio Tokyo. Later that fall, she was recruited by several Allied POWs who had been forced to broadcast for the Japanese. They hosted an English-language program called “Zero Hour,” which was targeted at American service members in the Pacific. The POWs deliberately tried to sabotage the Japanese propaganda efforts, and they believed Toguri could be trusted to help them. Toguri began broadcasting on “Zero Hour” and identified herself as “Orphan Anne.” The broadcasts, which primarily involved introducing musical selections, continued until the end of the war and were enormously popular with American service members.10 Charles Cousens, the Australian POW who wrote most of the scripts, later testified that he “tried to make a complete burlesque of the program.” Rather than the “feminine seductive voice” that soldiers later attributed to Tokyo Rose, Toguri had a “rough, almost masculine” voice, a “comedy voice” that Cousens “needed for this particular job.”11
The much-discussed “Tokyo Rose” was an imagined amalgam of many people. No announcer on Radio Tokyo ever identified herself as “Tokyo Rose,” and at least five other English-speaking women served as announcers on Radio Tokyo during the war.12 Indeed, Frederick P. Close has argued that “Tokyo Rose” was a legend created out of the fertile imaginations of American servicemen. The name appeared in military reports as early as March 1942, when Radio Tokyo had featured only one woman broadcaster for less than an hour. The legend grew, until she was attributed with almost total omniscience. “Tokyo Rose” supposedly broadcast details about troop movements and military secrets, the names and ranks of individual service members, and even the names of their girlfriends. But none of this was true—no Radio Tokyo broadcast included such details, to which the Japanese did not have access.13 An army intelligence report complained that “countless unfounded rumors” about “Tokyo Rose” were “great headaches” and a form of “unwitting propaganda originated by our own forces.”14
The enormous public significance accorded to “Tokyo Rose,” however, led to intense efforts to identify her at the end of the war. After the Japanese surrender, journalists rushed to Tokyo in an attempt to land the ultimate scoop. A pair of Hearst reporters managed to locate Iva Toguri, and she agreed to give them an exclusive interview for $2,000 (nearly $30,000 in today’s money). In a contract, she foolishly and falsely stated that she was “the one and original ‘Tokyo Rose’ who broadcast from Radio Tokyo” and she had “no feminine assistants or substitutes.” She even signed the contract as “Iva Ikuko Toguri (Tokyo Rose).”15 Not surprisingly, this publicity effort blew up in her face. Toguri was arrested by military officials for treason against the United States and spent over a year in custody in Japan.16
After careful study of her case, however, the Department of Justice concluded that Toguri had not committed treason. She had only introduced musical selections and broadcast “nothing whatever of propaganda, troop movements or any further attempts to break down the morale of the American forces.”17 Her broadcasts, a Justice Department lawyer concluded, “were innocuous and could not be considered giving aid and comfort to the enemy.”18 A 1948 review of the case by Thomas DeWolfe, the Justice Department’s top treason expert, reached the same conclusion, finding that Toguri’s broadcasts were “totally innocuous” and that the government could not prove any disloyal intent. Any prosecution, DeWolfe argued, would likely result in a directed verdict for the defense.19
The Justice Department’s recommendations were informed by substantial experience with treason cases arising out of World War II radio propaganda. In June 1947, the department had prosecuted Douglas Chandler for broadcasting from Nazi Germany. A journalist and a United States citizen, Chandler was viciously anti-Semitic and a firm believer in the Nazi cause. He traveled to Berlin in February 1941, where he volunteered his services to the propaganda ministry, headed by Joseph Goebbels. When Germany declared war on the United States, Chandler voluntarily chose to remain in Germany, continuing to work as a highly paid employee of the German Radio Broadcasting Company. At his trial, the Justice Department introduced twelve recordings of Chandler’s broadcasts into evidence, and presented a dozen witnesses who testified to their personal knowledge of his work at the radio station. The defense never denied that Chandler made the recordings or that he was a Nazi adherent; instead, it attempted an unsuccessful insanity defense. The jury easily convicted Chandler of ten overt acts of treason, and the judge sentenced him to life in prison.20
Similarly, American journalist Robert H. Best had been convicted of treason in the spring of 1948. Best was in Vienna at the time of the Pearl Harbor attack, and was scheduled to be returned to the United States. He refused this offer, however, and went to Berlin, where, like Chandler, he began broadcasting propaganda for the German Radio Broadcasting Company. For Best, “Hitler’s crusade” was a “sacred cause,” and he sought to maximize the effectiveness of German propaganda. Prosecutors introduced seven recordings of Best’s broadcasts, which warned of a Jewish worldwide conspiracy and praised Hitler’s Germany. The jury convicted Best on the twelve counts that were submitted to it, and, like Chandler, he was sentenced to life imprisonment.21
The government was also preparing to prosecute Mildred Gillars, colloquially known as the infamous “Axis Sally.”22 An American actress who moved to Germany in 1934, Gillars was a virulent anti-Semite, and from May 1940 to May 1945, she broadcast Nazi propaganda on German radio. Typical statements included: “damn Roosevelt, damn Churchill and damn all of their Jews who have made this war possible”; “the Jews are sending our men over to Europe to fight so that their money bags will get filled”; “I ask you American women if you brought your boys up to be murderers? Have you? Because that’s what they’re becoming”; “Germany has vision. Germany has culture. Germany has supplied all of Europe, to say nothing of America and other western countries with culture. I ask you Americans, ‘What have you done for posterity?’”; “I’d rather die for Germany than live one hundred years on milk and honey in the Jewish America of today.”23 She was eventually convicted in March 1949 for participating in the broadcast “Vision of Invasion,” a propaganda effort to counter the projected Allied invasion of Europe by depicting a dead American soldier appearing in a dream to his mother. The government not only introduced a recording of the broadcast, it had three witnesses to Gillars’s participation. Gillars was sentenced to ten to thirty years in prison and a $10,000 fine.24
The Justice Department had also worked to build a treason case against the distinguished American poet Ezra Pound. From 1941 to 1943, Pound had broadcast pro-fascist propaganda on Italian radio. The broadcasts, which were so incoherent the Italians suspected they might be coded messages, are perhaps best described as rants; the most consistent theme was a raging anti-Semitism, coupled with denunciations of Allied leaders and claims that the United States should not be in the war.25 In one broadcast, for example, Pound claimed, “I think it might be a good thing to hang Roosevelt and a few hundred yidds IF you can do it by due legal process.”26 In another, he argued that the “reasons for both England and America being in the war are dishonest, basically and fundamentally dishonest.”27
On account of these broadcasts, Pound was indicted by a federal grand jury in 1943 on a charge of treason. Arrested in Italy in 1945 by American military forces, Pound was brought to Washington, DC, for trial. Two witnesses to the same overt act would not be a problem—the FBI had identified five Italian eyewitnesses who could testify to Pound’s broadcasts. A panel of four psychologists, however, found that Pound was mentally incompetent to stand trial, and he was committed to St. Elizabeths Hospital. In April 1958, Pound’s lawyers moved to dismiss the indictment, and the United States government did not object. Released after nearly twelve and a half years in St. Elizabeths, Pound returned to Italy, where he died in 1972.28 Pound was the most famous twentieth-century American to be charged with treason, and if he had been found fit to stand trial, he would likely have been convicted in 1946.29
Compared to these cases, the evidence against Iva Toguri was extremely thin. The government had no recordings of Toguri broadcasting propaganda, no evidence that Toguri had expressed support for the Japanese, and no evidence that Toguri had voluntarily stayed in Japan.
Most of the Radio Tokyo broadcast scripts had been destroyed, and listeners who had only heard the broadcasts would have been unable to identify the speaker. Moreover, all accounts indicated that Toguri’s broadcasts were innocuous—she had merely introduced musical programs, but had not commented on the war in a traitorous manner. Even the few surviving broadcast recordings and scripts contained no forceful propaganda, like that in the Chandler, Best, and Gillars cases, but merely “a little patter and sassy quips.”30 The surviving scripts even indicate that Toguri regularly joked about spreading “propaganda,” which was hardly consistent with a serious propaganda effort.31 Given all of these problems, it is not surprising that the Justice Department initially declined to prosecute Toguri.
But on August 16, 1948, everything changed. United States Attorney General Tom Clark announced that Toguri (now known as D’Aquino after her April 1945 marriage to Felipe D’Aquino) would be tried for treason in San Francisco. It was a presidential election year, and the Truman administration wanted to show that it was tough on disloyalty.32 The prosecution would be led by Thomas DeWolfe, despite his previous conclusion that there was no justification for a treason prosecution.
A fundamental problem for the government was the Constitution’s requirement of two witnesses to the same overt act. Under the 1945 Cramer decision, the overt act had to “show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy.”33 The prosecution managed to find two former Radio Tokyo employees, both American-born Japanese, and potentially subject to treason charges themselves, to testify that Toguri had broadcast the statement, “Now you fellows have lost all your ships. You really are orphans of the Pacific now. How do you think you will ever get home?”34 In 1976, these witnesses admitted that their testimony was false and that Toguri “never broadcast anything treasonable.”35 But in 1949, their testimony, if believed, would be sufficient to sustain a treason charge in front of a jury.
The government viewed the composition of the jury as critical. The FBI conducted extensive investigations of all 221 people on the jury list, prosecutors used their peremptory challenges to exclude Asian-Americans and African-Americans from the jury, and Toguri ended up facing an all-white jury.36 A columnist in the San Franciso Chronicle denounced the prosecution for racially discriminatory conduct, but in 1949 no legal rule barred the prosecution from acting in the way it did.37 Not until 1986 would the United States Supreme Court forbid the use of racially discriminatory peremptory challenges by prosecutors.38
The trial began in early July 1949 and lasted for twelve weeks. Toguri was represented by Wayne Collins, a San Francisco lawyer who had previously represented Fred Korematsu in his challenge to the exclusion of Japanese-Americans from the West Coast. Collins waived his fees and defended the case vigorously, but he may not have been well equipped to handle the intricacies of a treason case. The brief he later filed in her appeal, for example, was described by the appellate court as “almost unintelligible.”39
Most observers of the trial concluded that Toguri was innocent, and the jury initially leaned 11–1 for acquittal.40 But the jury ultimately reached a compromise verdict; Toguri was acquitted on seven of the eight counts, but convicted on the count of broadcasting the “orphans of the Pacific” comment. This was the most plausible count on which to convict; there were two witnesses who testified to this overt act, and Toguri had seemingly admitted the phrase in a 1945 interview with a reporter. Frederick P. Close, who has written the most extensive analysis of the Toguri case, reluctantly concludes that Toguri probably did broadcast the comment.41 On the other hand, the evidence was far less compelling (and the alleged statement far less vituperative) than in the other broadcasting cases. Moreover, there was some evidence that Toguri had acted under duress, and it was not clear that she acted with the requisite intent to betray the United States.
The judge sentenced Toguri to ten years in federal prison and imposed a $10,000 fine. Toguri served six years and two months of the sentence at a women’s prison in West Virginia, before being released on parole. But with the passage of time, her case began to be reconsidered. Amid renewed media interest in the trial, the two principal witnesses against her recanted, and in January 1977 Toguri received a full pardon from President Gerald Ford. Although she would never shake the “Tokyo Rose” label completely, Toguri would be largely rehabilitated. In January 2006, Toguri received the Edward J. Herlihy Citizenship Award from the World War II Veterans Committee, an honor that would have been unthinkable in 1949.42 Eight months later, Toguri died at the age of ninety.
A significant question lingers over the World War II radio broadcasting cases—were the defendants’ broadcasts protected by the First Amendment, which guarantees freedom of speech? Under modern law, it is almost impossible to prosecute people for statements of political opinion. In a letter to United States Attorney General Francis Biddle, Ezra Pound wrote, “Free speech under modern conditions becomes a mockery if it do [sic] not include the right of free speech over the radio.”43
Several of the broadcasting defendants made this argument in court. Their strongest argument was that prior treason cases had suggested that words alone were not treason; there must be some overt act apart from mere words. Here, the defendants had merely expressed unpopular opinions, opinions that in themselves could not constitute treason. Even Attorney General Biddle was initially concerned that this defense would be successful.44
It wasn’t. Every court that considered the argument rejected it. The most extensive analysis came in Douglas Chandler’s case, where the United States Court of Appeals for the First Circuit agreed that, in general, political opinions cannot be prosecuted: “Thus, a citizen in the exercise of his ordinary political rights may—intemperately as he pleases—criticize the President for getting the country into war, hold up to ridicule the bungling and incompetence with which our civilian and military leaders are conducting the war, express the view that we cannot possibly win the war, and that the thing to do is vote in a new administration which will negotiate peace on the best terms obtainable and save the country from a greater disaster. The speech may tend to weaken our country in its war effort by inducing divided counsels and a spirit of defeatism, and in that sense may be of aid and comfort to the enemy.”45
But it was absurd, the First Circuit concluded, to extend that proposition to immunize all words from prosecution for treason. A simple, but powerful, example proved the point. A person who conveys military intelligence to the enemy does so with words alone, but his act is clearly treasonous nonetheless.46 Chandler’s case was similar—he had “trafficked with the enemy and as their paid agent collaborated in the execution of a program of psychological warfare designed by the enemy to weaken the power of the United States to wage war successfully.” The court concluded, “It is preposterous to talk about freedom of speech in this connection. . . . Trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment.”47
Although free speech protections have expanded significantly since World War II, the First Circuit’s conclusion seems intuitively correct. There is a significant difference between spreading antiwar propaganda internally on one’s own volition and doing so as an agent of an enemy nation. The former is part of the free discussion we tolerate in an open and democratic society; the latter is a clear case of giving aid and comfort to the enemy.48
The Iva Toguri case is a powerful reminder of the dangers of treating treason prosecutions as political weapons. By overruling its own prior conclusion that Toguri had not committed treason, the Department of Justice sought to bolster the Truman administration’s national security credentials in a world increasingly concerned about the Cold War with the Soviet Union. But it took little account of the human cost imposed on a woman who had done almost nothing wrong. The “Tokyo Rose” of legend may have committed treason; the Iva Toguri of reality almost certainly did not.