Toyosaburo Korematsu v. United States

WILBUR, GARRECHT, DEN- Bеfore MAN, MATHEWS, HANEY, STE- PHENS, Judges. HEALY, Circuit TOYOSABURO KOREMATSU UNITED WILBUR, Judge. Circuit STATES. of, Appellant placed was convicted 10248. probation years for, on for five the offense Appeals, Ninth Circuit. Court Circuit portion Military- remaining in that 2, 1943. Dec. 1, Exclu- Area No. covered Civilian Commanding sion No. 34 of the Order Rehearing 7, 1944. Denied Jan. 1942, General, DeWitt, May 3, L. issued J. Writ of 27, Certiorari Mar. Granted 1943. persons ancestry which all permitted from, are excluded not See 64 S.Ct. 786. in, City Leandro, remain of San Coun- ty Alameda, California, State noon, 9, P.W.T., May o’clock 1942. The appealed. defendant dismiss the The moved to government probationary ground appeal that the on 'order, final hence not a was order diversity appealable. Owing to opinion among Courts the Circuit

of Appeal, Supreme Court certified to the we or not this court of whether appeal from probation jurisdiction of appellant on placing the order prior to sentence. 1943, answered that day June, the 1st affirmative, Korematsu v. question in 432, S.Ct. States, U.S. United Consequently the motion dismiss 1124. is denied. citizen of Appellant a native born America of United States proclamation ancestry that the and claims by him was void.

violated argued com- case with two cases, panion both of were subse- to, by, quently decided certified 1943, Supreme Court on entitled June States, 320 v. United U.S. L.Ed. Yasui v. 63 S.Ct. States, 320 U.S. S.Ct. United These decisions involve 87 L.Ed. Wayne Collins, Francisco, M. of San proclamation portions of the of Gen- Cal., appellant. imposing curfew restrictions DeWitt eral Fahy, Director, Division, upon Japanese citizens of Charles War ancestry. Department Justice, Ennis, Edward States J. 290 ly validity proclama- valid. sustains the curfew restrictions Court held the pass evacuation, in- expressly tion for which .is here Supreme The not Court did volved, necessary the validity order that it is not to labor the evacuation the point. is case at involved the bar. However, the held that Court questions concerning The constitutional government under the Constitution the the authority Congress Pres and of the States, war, prosecuting United subordinate, ident and Gen Lieutenant power necessary

has all to DeWitt, to do that is questions eral of discrimina prosecution al- by successful of a war ancestry tion because of race raised appellant though powers the exercise of tem- also considered and those porarily contrary decided infringe some of inherent to rights appellant, contentions of the reason these and for that and liberties of individual citizens questions require further no recognized guaranteed by which are elaboration this court.2 the Constitution.1 We are of the principle, decided, Judgment thus so clear- affirmed. 1 Supreme Court, through speaking of the wisdom of The their action or substitute Hirabayashi judgment Stone, Chief Justice v. theirs. “* ** States, 81, 1375, appropriate United 320 63 S.Ct. If it U.S. was an exer- * “* * 1382, 1774, power said, validity cise of 87 L.Ed. the war is not power government impaired war of the national because it has restricted citi- power wage successfully’. liberty. every military ‘the war See zen’s Like control Hughes, population dangerous Charles Evans Un War Powers of a zone in A.B.A.Rep. 232, Constitution, time, necessarily war der the it 42 involves some in- every fringement just liberty, 238. tivity matter and ac extends individual substantially police so to war as does the during related establishment of fire lines progress. fire, people affect its conduct and or the confinement of power winning during not restricted to the houses an air raid alarm— repulse thought victories in neither field of en of which cоuld anbe emy infringement phase every right.” forces. It embraces constitutional including protec defense, 2 Kiyoshi the national States, v. United and the members tion of war materials 81, 1375, 1381, 320 U.S. 63 S.Ct. L. 87 injux’y “* * * armed forces Ed. 1774: The conclusion is prosecution dangers x-ise, which attend the inescapable Congress, the Act of [infra]; progress Cases, of war. Prize 21, 97a], [18 March 1942 U.S.C.A. rati- § 268, States, 11 Wall 303- Miller v. United 314, fied and confirmed Executive Order No. Kahn, 135; 11 Stewart v. 20 L.Ed. Amy (The Warwick), 9066. Prize Cases 176; 493, 506-507, Wall L.Ed. Selec 20 635, 671, 17 459; 2 Black L.Ed. Hamilton (Arver Law United tive Draft Cases v. Dillin, 97, 528; 73, 96, 21 v. Wall. 22 L.Ed. 366, 159, States), 62 L. 245 38 S.Ct. U.S. Co., States v. & United Heinszen 206 U.S. L.R.A.1918C, 361, 349, Ed. 1918B, 856; Ann.Cas. 370, 382-384, 1098, 742, S.Ct. 51 L.Ed. 27 McKinley States, v. United 688; Forbes, 11 Ann.Cas. Tiaco 228 U. v. 668; 397, 324, 249 63 L.Ed. U.S. 39 S.Ct. 549, 556, 585, 960; S. ‍‌​‌‌​​‌​​‌​​​​​‌​‌‌‌​‌​​​‌​‌​‌​​​​‌​‌​‌​​​‌​​​​​‍33 S.Ct. 57 L.Ed. 605, Macintosh, U.S. United States v. 283 States, Isbrandtsen-Moller Co. v. 570, 574, 622, 623, L.Ed. 1302. 75 51 S.Ct. 139, 146-148, 407, 300 U.S. 57 S.Ct. 81 L. Ex commits to the the Constitution Since 562; Swayne Hoyt, Ltd., Ed. & v. United Congress and to the exercise ecutive States, 297, 300-303, U.S. 57 S.Ct. power vicissitudes and war in all 659; 478, Mason 81 L.Ed. Co. v. Tax necessarily warfare, it has conditions Comm., 302 U.S. 58 S.Ct. scope given them wide for the exercise lawfully L.Ed. 187. And far so as it determining judgment Congress discretion in could, implement- authorized and of the threatened commanding the nature and extent injury ed such curfew orders as the danger promulgate and in the selection pursuant officer should resisting parte Ex Quir it. means for Executive Order President. The supra, 28, 29, in, 1] 63 S.Ct Congressional [317 U.S. then not one of [infra], —; Cases, delegate L.Ed. cf. Prize to the President 459; Mott, promulgation L.Ed. Martin Black Order, of the Executive but 19, Where, acting whether, cooperation, Congress 6 L.Ed. 537. 12 Wheat. here, call for did the conditions Executive and the have constitutional au- judgment thority impose discretion and for exercise curfew restriction complained of means those branches of of. We must choice here consider al- acting together, Congress whether, which the Government on Constitution responsibility placed desig- of war mak has could leave it to the Exеcutive ing, appraise court to sit review nated commander Rail- Pacific large Southern town on the DENMAN, Judge (concurring Circuit between way Highway National result, dissenting from the and the as- Mateo of San Francisco and San opinion). grounds majority I cannot sembly at Tanforan. stockade myself in regret that I find is with judicial agree taking notice majority of profound disagreement with aid world, “lending facts, known my colleagues in treatment their enemy,” hence and comfort to the unconstitutionality il- and other claims of suppressed. Korematsu’s contentions be herein, Gen- legalities, later considered appeal such a conspicuous In this Kore- eral DeWitt’s to Korematsu. order minority of America’s member of one who, because citizen, matsu is a fellow disposes groups, opinion this court ancestry happening to a common without major contentions of Korematsu’s people with under the dominion of much their considera- mention, their less Government, with which we .Outstanding is avoidance of tion.1 peaceful inter- at war after decades of imprisonment deportation. course, required report im- for euphemism “evacua- is buried assembly prisonment military stockade in a tion,” forced suggestion of without deportation to await further by accomplishment com- character or its imprisonment. pulsory confinement. 70,000 American Along with him are concerning opinion of this court who, women and men, children — citizens' — imprisonment such unmentioned for de- orders, under similar have been torn solely upon interpre- portation an is based homes, places of business farms Supreme tation decision of the imprisoned groups, together large States, Hirabayashi United Court v. As- first wire stockades called in barbed 87 L.Ed. U.S. S.Ct. sembly Centers, then, deportation, validity order. That on the of a places military guard. As distant curfew under analogous order is treated that Court Murphy concurring states his Justice about a to the control of civilians lines States, opinion Hirabayashi v. United police building, by the burning established 1375, 1389, 320 U.S. 63 S.Ct. firemen, requirement of citizens 1774, their treatment is not unlike L.Ed. period during to remain indoors brief confining that of Hitler in so the Jews of a blackout. in his stockades. case, In disposing of his Korematsu The order here under consideration is received has a treatment similar to that step the initial in a unit or- succession of Hirabayashi accorded connection ders, Supreme held Court to be a ques our decision to refuse to decide the “single program,” (cf. infra) ultimately brought tions before us and their certifi to such a cruel leading consummation. cation to Court without stat properly judicial The court should take ing various of his contentions nor notice of the fact the result is that facts on which he relied.1a such forcible confinement of American largest city peace made Poston the third Americans are to citizens at face table Arizona; largest prestige power Manzanar second our which will rest Sierras; city east in California the belief of world questioning 1 Anglo right Saxon law relevant conditions and the basis of of a liti gant appraisal say whether, considering the ap- to a under reasoned place circumstances, recogized contentions on issues raised the time promulgation early propriate of the cur- at least as for the as 1588 Edmund An itself was derson on Queen’s and whether the order Elizabeth’s few order Bench. See carrying lb, Today appropriate means of out the footnote infra. it is an codified in ‘protection judicial for the nineteenth canon of Executive Order espionage ethics against sabotage’ Rep. national the American Bar Association. 62 materials, premises and utilities. Am.BarAssn. p. defense 1a stated, My presently to be we con- Of. reasons dissent Eor States, 10,308 docket, within the constitutional United our that was cluded filed Congress 28, 1943, power which, unreported arm and the executive March because prescribe containing this curfew a consideration of facts the Government pertinent concurring period to this under consideration and dissent order opinion, promulgation by as Exhibit A attached and that delegation part made a hereof. commander involved no unlawful legislative power.” in- with said in connection world said area sincerity, a Caucasian exclusion, a constitutional exercise There no one a billion Asiatics. cludes the President derived from Man- war Postons, eyes to the shut his will zanars and ques- the Constitution and statutes of One Tanforans. (Emphasis supplied.) judicial States?” be what sort tions will of Ameri- minority groups sideration do expressly refused of a courts from the can citizens receive question. Hirabayashi’s in to decide that democracy. claimed charged dictment also order a violation of entirely con different from that one of Supreme Court A. The refused deportation report series of orders with orders to validity sider quotation which the above is concerned. imprisonment. was consoli This case Hirabay upon validity passed What is the of argument dated for ashi question that of 3 of 10,308, the General DeWitt’s Proclamation No. States, on No. v. United 23, curfew, 1942, imposing a De March validity General of but, persons reason, only оn of descent stated Witt’s orders. For the enemy case, general on all aliens for Hirabayashi whom no its certificate It exclusion order has ever been made. required question from a measure arising such espionage places them to remain in of imprisonment prevent as mass their p.m. residence between the hours 8 for of sabotage was “difficult” and which and “this a 6 of no decision” as a.m.2 court knows precedent,1b majority this court avoid of permitted such movement of all para last four ed its decision. Cf. the per- aliens within the tained hours as curfew Instead, my graphs of dissent. attached voluntary to their evacuation of Supreme this court certified to the Court the coastal areas. This court’s following question: that case the certificate in the certified case question validity curfew DeWitt’s Civilian “1. Was Lt. Gen. order, question also because it found the 10, May 1942 Exclusion Order No. 57 precedent. difficult and without persons Japanese ancestry, excluding all question Concerning the of the curfew including American citizens of order, distinguished deporta- noon, from cmcestry, from 12 and after o’clock order, Supreme said, beyond 16, tion investigation inquiry Court “Our May 1942, particular from. a area in go here does not Seattle, Washington Military within Area whether, light in the of all rel- 1 General DeWitt’s No. established preceding evant 2, circumstances and attend- 1 March Proclamation No. promulgation, challenged their or- responsible requiring a member of each statute alone, ders and afforded a reasonable bas- family, living and each individual imposing action taken in May report the order to affected * * * unnecessary to con- curfew. or to the Civil Control Station geographical 1b limits of [in in the Area Resceit. of the resceit The case place again, their shall be within of resi- tervention] was moved and Shuttle- said, dence between the hours of 8:00 P.M. and be worth that he cannot be resceived period A.M., said, writ, 6:00 is hereinafter re- cause he is named books, ferred to as the hours of curfew.” that he had all the searched Nothing paragraph “3. 2 shall be is not one which is there case where he prohibit any may spe- writ, construed of the above named be resceived. persons visiting cified from What that? shall not nearest “Anderson. Office, judgment give United Employment Post ad- States United States it is not we because Office, oper- judged Service before? will office in the bookes wee reason, give judgement according ated or maintained the Wartime Civil Administration, purpose bookes, I will Control in the if bee no reason there transacting any supplied.) making regard (Emphasis business or the not English Reports, them.” reasonably arrangements necessary 75; King’s Bench Book accomplish evacuation; 1019; Gouldsborough, De nor be construed Term. prohibit duly change Reg. travel under issued An. Eliz. Trinitat. permit pro- opinion Judge Stephen’s all of residence notice and travel states that agreed paragraph judges vided for in on the of Public answer to Proc- per- lamations Numbers certified. 2. Travel [voluntary] change A.M., after 6:00 March formed of residence “1. From and prohibited place Japanese, to a outside the and re- all alien all alien Ger- may performed persons mans, Italians, stricted without areas all alien and all he regard being Japanese ancestry residing to curfew with- hours.” teachings find- trast the American sider ings or to what extent between whether personal liberty equality and support differing would orders supplied.) any disloyalty. the con- (Emphasis denial caused On order.” curfew trary, rejected by his Selective Serv- when precedent. Court found Board, spent his own ice $150.00 seen, order As curfew it assimilated the ship and had funds to mechanic’s learn trade brief blackout restric- to the fire lines and Harbor, thereafter, prior Pearl or- resemblance to the tions. Here is no ders industry. employed in a been defense men, imprisonment leading assembly women time made unsuc- and children en masse After that he had attempt deportation. These altered center are cessful his features stockades by plastic surgery, thereby or- “differing hoping to es- orders curfew cape de- minor- der” which the the discrimination ity attempt group citizens. pass. clined to pathetic minority as that of another of our description of from the Hence dissent groups negro those one-sixteenth paragraph the offense first —of hoping blood have not conceal fact merely court’s consisted “passed over” general into Cau- portion Military “of remaining in * * * casian social intercourse. Order Exclu- per- No. 1 covered * * * sion Order 34 sons of in which all 70,000 Japanese remaining Like all the Japanese ancestry excluded citizens, Korematsu became sub- descended in, from, permitted and not remain ject to a series of Ex- Proclamations and Leandro, Alameda, City County of San parts ecutive Orders which a “[are] California, State of after 12:00 o’clock single imprison- program [leading to his noon, 9, T., May P. W. 1942.” judged States, and must be Hira- as such.” ment] bayashi San 320 U.S. Leandro is a town of area small 1375, 1387, S.Ct. and, opinion 87 L.Ed. 1774. anything majority for shows, satisfy all Korematsu had to do to 12, 1942, On when was arrested he June Order was walk for a fеw minutes Leandro, subject in San was Korematsu pass and out of the town’s boundaries. prohibiting to an of General order DeWitt analogy police The with the fire lines is him leaving Military Area No. 1. from obvious and if all, this were 27, 1942,' On March Public Proclamation properly say unnecessary could that it is ordering, finding No. was issued and point.” further “to labor the necessary, “It provide order contention, Korematsu’s effect, orderly and to insure the welfare his conviction was for crime of not and evacuation resettlement of moving out of San imprison- Leandro into migrating Military voluntarily from Area assembly ment in an inspec- An' center. regulate migra- No. to restrict tion of the series of orders him affecting (Emphasis supplied.) tion” position shows his to be well taken. These Therefore orders at required once him not leave “* * * and not to as a matter remain neces- area. sole His imprisonment. sity commencing midnight, alternative was at 12:— P.W.T., March alien all Japanese^ B. facts, and the deportation and persons Japanese ancestry who are imprisonment Korematsu, orders. Fred Military within the limits of Area No. born in parents, California prohibited are hereby be and from was educated in grammar California any purpose area leaving that until schools, high junior school and college, proclama- to the extent a future with white grew up children. He under headquarters this tion or order of shall so Mongolian conditions of a minority permit or direct.” majority, a Caucasian tragic con- trast primary between the high school “voluntary migrating” The words teachings and, of freedom and equality, coupled resettlement” “evacuation his later social and life, economic prohibiting with the words him from leav- limitation and denial of what been limits of ing the Area No. 1 taught him his white more instructors, purpose seem an evasion real fully my considered in attached dissent voluntary departure. refusing any 28, 1943, March in the Hirabayashi case. “resettlement”*, words “evacuation” showing There no suggestion deportation imprisonment that mean in what suffered Korematsu stockade. relocation was not restrict- migration. penalties by Public Law “voluntary” provided criminal regulating approved No. March Congress, 77th denying It was it. 21, 1942.” prohibited from was thus Korematsu seen, As required that order Korematsu California, military area leaving a and all such and the unmarried citizens westerly from 200 miles roughly extending heads of to re- families such citizens Pacific and north the Sierras May 5, port to a Civil Control Station previous Mili- By a for 600 miles. south 1942, to receive directions their im- prohibited he was tary No. 1 Proclamation prisonment May 9, 1942, stockade in a residence” moving “habitual from his called Assembly from which of resi- Center/ filing “change therein without the deportation to be made. He postmaster. with his notice dence” change part of resi- The list instructions made had filed no such notice prohibited from leav- Order No. 34 destruction of and hence was reveals the dence family long life busi- and of established ing it. ness They relations. contemplated de- purposes of the For ordered Military Area was Must portation Following “The Instructions Korematsu smaller areas. Be divided into Observed: Lean- San in an area about himself found responsible “1. A fam- member each County, Simi- California. in Alameda dro family, ily, preferably the head throughout created areas were lar small person name whose most Military Area portions of California in held, property is and each individual liv- the San left Had Korematsu report ing alone, will Civil Control an- area, have entered he Leandro would further instructions. Station receive forbidden other from between 8:00 A. M. and must be done leave. 1942, or 4, 5:00 M. Monday, May P. on and 5:00 P. M. on between 8:00 A. M. Order Evacuation Then followed 5, Tuesday, May re- 34, accompanying directions with its casually de- deportation carry on specting “2. Evacuees must with them para- Center, departure first scribed, Assembly forth, set for property: It opinion. following majority graph of the follows: (no mattress) “(a) Bedding linens family; for each member of No. 34 Exclusion Order “Civilian for member of “(b) Toilet articles each Pub- provisions of Pursuant “1. family; 2, Head- Nos. 1 and lic Proclamations 2, clothing 1942, “(c) March Extra each member March for quarters, dated family; 16, hereby ordered 1942, respectively, it of the noon, W. P. and after o’clock knives, forks, spoons, “(d) Sufficient persons T., May 9, 1942, all Saturday, cups plates, each member bowls ancestry, alien and non- both- family; of the portion alien, from that be excluded personal effects for each “(e) Essential as follows:” Military No. described Area family. member Leandro.) including San area (Descriptive securely pack- will “All items carried be fam- responsible member of each A“2. plainly marked with the aged, tied and alone, in living ily, individual and each and numbered in ac- the owner name of cordance with report be- area will above described at instructions obtained A. and :00 P. the hours of 8:00 M. tween M. The size num- Station. Civil Control 4, 1942, during the Monday, May limited packages is to that which ber of May Tuesday, 5, same hours by the individual or family can be carried located Control Station at: Civil group. any pets per- kind will be - “3. No Street, 920 ‘C’ mitted. Hayward, California. personal items and no house- No “4. person subject this order Any “3. shipped will Assem- goods hold comply any pro- with fails to its who bly Center. pertain- published instructions visions or States Government The United “5. or who is found in the above ing hereto provide will for the of the noon, agencies T., through 12 o’clock P. W. area the owner storage the sole risk at Saturday, May 9, will be liable principle items, Korematsu more such ‍‌​‌‌​​‌​​‌​​​​​‌​‌‌‌​‌​​​‌​‌​‌​​​​‌​‌​‌​​​‌​​​​​‍contends substantial household machines, pianos parte Milligan, 71 iceboxes, and established in Ex U.S. washing applies heavy Wall. a Cooking utensils L.Ed. other furniture. forti- any pro- accepted hearing ori where no kind small items will be and other disloyalty military crated, packed plainly vided to establish storage if way menace of with of the citizens on the marked the name address of the imprisonment, less of Only will much Korematsu. owner. one name address prospective (Emphasis hang- contended that given family.” used a ing Milligan presents no supplied.) difference principle cruelty gross op- mean The order is not free of the military imprisonment deporta- mass pressiveness regimentation often found in tion of In both citizens. cases the minority groups. the Govern- After functioning. civil courts were cas- both stripping ment had so ordered the military es action of was not their im- belongings citizens of their subject soldiers to court martial. prisonment, are informed Neither Milligan’s hanging ordered nor prospective provide warden “will for the imprisonment Korematsu’s result storage belongings at sole risk of judgment aof civil court. the owner.” position His hanging is that if of a apparent disobeyed that what civilian is not legal military on a order actually order no resemblance was bears martial, after court imprison- a fortiori para- to the order in the first described legal ment is not military on a order with- graph opinion. of this court’s Also, out court if, martial. as stated in Milligan case, Congress give cannot C. Korematsu! s contentions. military power to order the hang- Government’s counsel contends that orders a civilian military after a trial, imprisonment proper ex- were a give military cannot to or- ercise of the discretion com- imprisonment der the of civilians without mander such an area Dis- any trial at all. reasonably anticipated trict No. Japanese invasion from the Pacific. It seems clear to me that a decision on police curfew order lines, likened fire hearing, In the course of the the Gov- dispose does not of Korematsu’s conten- ernment admitted that not one of these tion that the principles of the Milligan 70,000 Japanese descended citizen de- apply imprisonment case to such portees de- against any had filed him in fed- portation. eral of this circuit indictment charging espionage, information sab- Korematsu also that contends such im- any otage or act. treasonable This ad- prisonment process violates the due clause mission covered the months five the Fifth Amendment and that Gen- Pearl Harbor to General DeWitt’s de- eral DeWitt’s are orders “lettres de ca- May 10, portation order of 1942. Though Imprisonment chet.” without trial is a the conceding fact, posi- Korematsu’s in so denial of process the due of the Fifth greatly strengthened, majority tion the is Amendment and such orders are equiv- the opinion does not mention admission. the alent of lettres de cachet so far as the lost thus to him. It is physical effect of the bodies of these citi- zens is It concerned. would be like the argued that, assuming Korematsu such phrase hypocrisy “voluntary evacu- imprisonment valid, is otherwise the selec- ation” to contend otherwise. Mongolian-blooded group his tion arbitrary capri- treatment is so argues such Korematsu further that such a racial discrimination that cruel cious it vio- mass “banishment” is a and unusual process due punishment clause of lates the Fifth violation of Eighth argument is Amendment. answered Amendment. That it cruel is and unusual pressed. in the detailed consideration the social not need be further It is none- relationships people legal a matter theless for our consideration with Mongolian blood to surrounding discretionary power Cau- reference population DeWitt, casian in the military Pacific Coast that General causing order my may it states dissent be construed as not finally is “punishment” contemplated by case. decided him in that amend- appeal in that case. ment. 296 Korematsu, ly prevails, necessity furnish con- is shipwelder, there a a further authority, property, a thus substitute for the right his to work civil tends that overthrown, 33, safety preserve 36 e.g. Raich, 38, 239 Truax v. U.S. L.R.A.1916D, 545, army power is left 131, society; as no 60 L.Ed. S.Ct. imprison- military, govern that but the Ann.Cas.1917B, it allowed their rule, deprivation property in martial rule the laws can have until ment is a free process necessity clause of the As due course. creates violation of the duration; for, it gov- limits if this Fifth Amendment. ernment continued are the courts controlling, parte Milligan D. Ex is not reinstated, pow- usurpation is gross it a reasoning is implicit because in its where er. Martial exist rule can never absence actual hypothesis that proper and open, the courts are deliberate and more invasion the slower jurisdic- of their unobstructed exercise a procedures civil courts suffi- locality tion. is also confined to the disloyal рrotection citizens cient supplied.) of actual (Emphasis war.” enemy; and because lending aid to the “necessity covering Since creates the possibility [martial] air invasion rule,” prin- not with the 'is inconsistent hours less than two Indiana state of ciple Milligan case "lurking” established in the minds not even invasion, air sabo- threatened directed the Justices. signals, which in time could teur destroy ifornia, an hour’s Milligan de- years 37 after the It was every court house Cal- sub- federal first Wrights made the cision presents necessity for the flight with craft heavier than successful air, military against such stitute of action years later that aviation 13 sabotage that of civil courts. utility. progressed necessity us of war now before in world that not It was could “lurk” could even the record by move- of an invasion than ceive faster Milligan case. ground ment on the “necessity” holding The extent of is U.S. Wall. held [71 long in that confined es- case : L.Ed. 281] presented tablished rule that matters not “Martial law cannot from a threat- arise considered the court and fortiori necessity ened invasion. must be ac- beyond consideration, possible those real, present; tual and the invasion Fall, 266 Webster v. not there decided. effectually deposes closes the courts 507, 511, S.Ct. L.Ed. U.S. and cases civil administration. cited; K.V.O.S., Inc., As- Press, 269, 270, 57 S.Ct. sociated U.S. “It difficult see how the safety 197, L.Ed. 183. country required martial law in In- plot- diana. If citizens were purposed her E. General DeWitt’s orders treason, imprison ting leading of arrest could to KorematsuJs them, ment, secure until government specific the violative constitu though of prepared trial, impend for their rights when the courts absence tional the of open ready try menace, to them. It was war the reasonable during easy protect a civil expectation as witnesses air invasion are within the before of tribunal; military as military acting there could as a area under their then discretion those of of convict, except paramount on sufficient be no wish constitutional evidence, surely an legal wage ordained power to war. judge better able to established court was imprisonment Korematsu’s stress his military composed than a tribunal of this of claimed constitu- several as violative profession trained the gentlemen of not refer- rights pertinent here with tional of the law. only of to the limits the control of ence compelled by governmental agencies some follows, what been has said “It exercise, common necessity for the safe- subject, that there are occasions on this ty, coercion on the individual a properly applied. rule can

when martial prohibit. rights would otherwise If, foreign war, or civil invasion the example actually time the fire peace im- the of closed, are it is In courts possible or likelihood of justice lines, administer criminal the it is existence law, then, the exclusion of the citi- on the of fire that warrants according theatre military or ballot operations, his home or office box. zen from active where war real- case Constantin latter and made the hence question the violation would No one inapplicable. pres- using the if, right constitutional his de- in a small aof controlled fire ence By Korematsu’s refusing to consider police extend- political building, a tached the contentions, treating are majority the district of large lines around a ed its fire if it had been over- Constantin as case him from prevented adverse voters and had reaching case. by sub ruled With this silentio pоlling his booth. Hira- agree. I Since cannot by bayashi opinion, terms, majority the con- That is entitled Korematsu order, required no particu- confined to a curfew sideration this case. the Constantin supporting the consideration of his lar facts of contention that case more order, the Such curfew considered no exceeds a the coercion discretion,” police ordinary an military than function, exercise is limits “allowable obviously allow- es- “within the be the law as is what I understand to Constantin, military U. able limits discretion.” Sterling tablished had 375. Assume the defense of Coast 77 L.Ed. S. S.Ct. There, general been under the command of some where been de- martial law had Texas, held oblivious to Court so uneducated that he was clared political (1) struggles Japan a acts of to be viola- ex- certain the Governor rising Federal Constitution middle class for creation of tive finally authority government, form of democratic cess of his martial under by military frustrated given him. assassination power declaration (287 group, to ruling held whom had been U. entrusted part pages page education greater at at of a S. S.Ct. the nation’s youth; 375), (2) fact that even 77 L.Ed. law, 75,000 declaration martial over from the fact that “It does follow Japanese, alien, both citizen and are free- discretion, range the executive has ly living their accustomed lives on Oahu necessary be a suppress disorder, incident deemed to power around Pearl Harbor and the mili- Oahu every tary establishments; (3) that, the fact take, may of action no sort the Governor while now Chinese among the most unjustified by exigency matter how respected and minority liked of all our private juris- right and the subversive groups ancestry of alien com- available, courts, оtherwise diction of mercial integrity and sense of social re- execu- conclusively supported mere sponsibility, only years sixty ago, sup- contrary is well established. fiat. The tive port of slogan “The Must Chinese military limits are the allowable What Go,” a passionate blind hatred attributed discretion, cmd or not whether Chinese, people, as a the same es- case, particular overstepped in a been sential treacherous antagonism inherited (Emphasis supplied.) questions.” judicial to the Caucasian and same cruel feroci- take it the exercise of ty soldiers of some former Chinese high state is as a function of “War Lords” of the Tong “hatchet territory over which it government men,” as with which ignorant other exercise jurisdiction as is the of that has power citizens, played upon by often the lower States in politicians, Japan- now all characterize Sterling No. 1. v. Constantin so Area people. ese military powers states’ and its treats then assume that such general Let us Ex supported by parte decidendi is ratio findings had made and orders somewhat supra; Harmony, Mitchell Milligan, v. 13 as follows: 115, 75, and 134, 14 L.Ed. How. “Whereas, Jap 623, 628, I find that a Russell, Jap, and 20 L. Wall. States v. Japanese all descended determining people, male limits all cases Ed. female, They by are alike. heredity and worship military authority. The extra- federal emperor a sun who is the last destined to ordinary during decade increase conquer people all the and rule of administrative federal the exercise of in No education world. American schools regarded having cannot be as controls inherent eradicate this instinct. entities can No changed states from as su- any loy- environment can powers Ameriсan create their reserved as preme in any Jap flag. alty in to our To its America Government within powers, limited Federal they always agencies will be treacherous and be- grant of mere military ob- courage it has "some relation” to fanatical cause a cruel ject sabotage attained. threat of each is a constant espionage; illustration, For similar Con- assume therefore, “Now, it is ordered military gressional legislation with set males of “(1) taking property adult as that That all orders for the impris- deporta- No. be imprisonments Area descent in for the mass stockade, 70,000 wire each as- people. in a barbed Then oned an of these tions at- weight pounds of ten Oregon boot sume a for soldiers need for blankets right Alaska, leg, landing his for tached to where there is a Japanese troops. There are sufficient so con- females be “(2) That all adult Oakland, blankets in a warehouse at Cal- wrists, the by the chained fined and each ifornia, only away, but, re- six miles as weight and suffi- enough in light chains Norway ported of the officers German prepare the length them to cient in to allow countries, occupied and other our officers food, neces- other laundering do men, seize them at night beds sary prisoners and services for all the nearer-by women and homes children offspring.” younger for care their San blankets have Francisco. These seized orders, inconceivable findings Such military only not need, “some relation” as sane American commander such protection” but a direct relation “to DeWitt, postulated as an ex- General be endured Alaska cold to pre- action to treme exercise there our soldiers. sabotage. espionage vent Under the principles Sterling v. Con- established Douglas’ I it take words Justice stantin, supra, only would not we that, are not to be in a construed to mean constitutionality but it sider their prosecution in a civil father court strongly arguable, would convict we resisting taking of the blankets from disobey- descended citizens for children, court must re- wife ing them. gard as stating no defense his offered evi- showing dence such taking claiming majority opinion It is true a violation of the Fifth such Yet Amendment. Hirabayashi case, U.S. S. pri- taking is no more “subversive of states, page Ct. at 87 L.Ed. rights” imprison- vate than these mass “Where, here, did the conditions deportations. Sterling ments and Under judgment call the exercise of and dis- Constantin, supra, difference is cretion and for choice of means military necessity, the absence of with the on which Government those branches easily blankets available in Oakland. responsibil- placed the has the Constitution certiorari No doubt on any court to warmaking, it is not ity of will remove the doubt raised ac- their wisdom of in review sit phrases, opin- majority theirs.” judgment substitute tion or may well be taken to have ion “judgment,” refer This I take mili- resolved favor of uncontrolled ra- within and “wisdom” “discretion” tary autocracy. of war. necessities area tional Japanese so treated concept that reject the permitted as concerns area so far remain in compelled to would be private right,” “subversion General of DeWitt’s present right chains, without compara- orders lie between the that the order contention “any court” tively innocuous restriction and curfew unwarrantably execution descended chaining of such private right” within the “subversive here there has been Whether citizens. Constantin, supra. Sterling v. rule may regarded well subversiоn question. The nearest analo- Douglas’ con- a border-line regard Ido Nor Justice DeWitt’s stockade confine- gy to General (320 U.S. 63 S.Ct. curring statement long-established accepted 1774) is the that “Where ment L.Ed. page at per- quarantining both present process Act have some under the orders dangerous a having such and con- against espionage ‘protection sons relation small-pox and as those ex- tagious disease sabotage,’ our task is at an disease, latter until shown posed to the meaning order, that no mat- end,” as period develop- of its it after the unnecessarily oppressive, free cruel how ter expired. merely has by because ment upheld must fugitives from spies or pected saboteurs or case my In dissent para- hiding landing or commando a from fact grounds of are stated the several identifica- difficulty of Also chutists. reasonably could DeWitt General suspected or Japanese known tion speedily segregate infer that could not descriptions telegraphed aid, by enemy communities from offices.” enforcement written to white engage likely persons Area those hence a sabotage espionage, and treatment cruel always causes some War necessity imprisoned and that all must be war. global the more innocent, them, though deported.3 Nearly all of oth- Supreme and customary for the It is certificate, are from court’s comment, omitted this claims where er federal courts to opinion restated Congressional arising from oppression case, strongly m that but the one most making the as legislation regarded not appealing living neighbor- to one should invalid, .in the claimant that legislation having hood of communities is with- remedy. It Congress for his look to dealings with their commercial houses is where, a war as that practice to state in that expressed dissent omitted. in that deliberately com- necessity, wrongs are such as na- civilized mitted its citizens require that tion, standards ordinary decent “Because of such limitation of social in- in the case as made compensation must be tercourse, people do not become familiar Mon- another treaties with of our broken Mongolian physiognomy. with the One American Indians. group, goloid yellow and, impres- uniform skin on first not be de- hope it will may properly sion, uniformity structure, facial admission involves layed (because it Japs makes ‘all Chinks and look alike to given to descend- until wrong) me’, colloquialism. a common Hence aris- their removed many generations ants a difficulty es for General DeWitt’s sol- ancestors. wronged diers or the federal pick- civil officers in argu- Korematsu’s weight Giving out from the other due crowded of his together of the subversion segregated districts, of the extent ment and in- other, cluding private rights, men constitutional Japan, educated in the sus- Japan’s logical Judge Stephens’ in-we claim that 3 I basis for note discussion declaring Perry’s Japan which, war. her without Admiral though vaded invasion of They might ask, such, logical Amer- well “What would not as offered has a relationship same situation?” Assume icans feel in General DeWitt’s orders. refusing Judge Stephens passed we laws the admission nowhere states Ja- planes pan’s any foreign laws en- vessels and into the forbade vessels tering Japan and known Then assume that her isolationist tinental States. laws, policy. Japan, her In international law it was of such entered defiance eject Perry’s Bay right cruisers, if fleet force and San Francisco with a fleet of so to act it was her and landed on our planes, she had du- fields a fleet of war Perry’s ty peaceful to use it to enforce her laws. for a discussion their repeal laws, invasion invited the use of such force. admiral of the ad- situation, having instruc- our President’s miral the same instructions brought Perry Perry he had tions to when Hirohito as had from the President. Tokyo) My (now harbor of Xedo into the own is that fleet however benefi- is, may Perry purposes, wa- invaded force forbidden claim —that cent we our except force, genie made, use of “Make no out of ters —were “let the bottle.” attacked, defence, least, quo Japan’s for if at a causa sine last resort non self-preservation.” Asia, Philip- seizure of South Western intelligent Japanese agree pines islands, do not and other one I historic Perry’s required regard basis for the hatred of the white man. students regard rightly entry people, wrongly, an act of war. Rather one as not illogical taught it not for them to think for decades that would have historic having that,, hating grounds invited inference make the white race the more resistance, likely among instructions “Make to have their armed descendants except force, citizens, again suffering in the last resort' who are our be- no use attacked,” say Perry, degrading defence, white, if cause not discrimina- “Having Navy, Japan with our invaded tions described Court in laws, you fight Hirabayashi case, may their are to men the dangerously disloyal. Or, who defiance they perform obligation least, their at if them properly infer, offered laws.” This is not DeWitt could so General enforce illogical deportation inference, justification my infer- for his orders. intelligent Japanese not il- and a of an ence civil imposed appeals. courts of this be true of conditions If degrading and of the cases, it criminal citizens, is true a of such him cannot and like it fortiori involving psychological neces- cases as those that, said sity martial considering the my opinion, facts could espionage which, in alone arising danger from the of with discriminating cruelty warrant ex- sabotage, orders General DeWitt’s been Mongoloid people le- which these discretionary powers ceed area of gally to be him in treated. exercised Area No. 1. Entirely apart costs question from the of presentation of a second tri to a distant EXHIBIT A bunal, persons (if these unfortunate In the United Circuit Court States deci granted) have the certificate sion of these from the will Appeals Ninth Circuit questions fact removed appeals which circuit court of Kiyoshi Gordon Hiraba qualified is best I to find them. dissent yashi, from a certification which denies to Hirab Appellant, ayashi* special knowl exercise of our 10,308 vs. edge psychology deported of the 28, 1943 March Amer connection, Supreme citizens. In this States ica, 37(1) provides Court rule “cer that our Appellee. tificate shall contain a statement of the nature of the cause the facts District Court Appeal from the Upon question proposition which such of law or District Western for the the United States (Emphasis arises.” supplied). Division. Northern Washington, If it be a judge unusual for of a court participant in which he is a to dissent from Judge, Circuit Opinion DENMAN, his associates on the matter of certifi- certification from the dissent on his cation, the occasion is even unusual. more Court, and from questions to the penitentiary Under the threat of sen- therefrom. of facts the omission 70,000 tences to these Ameriсan citizens believe, they right who have relied on the DENMAN, Judge (dissenting). Circuit gives them, the Constitution we are driv- least, my seems of One, associates at camps, from their homes to internment not within the opinion that it is alone, deportation not men as with the the court member of participating of a Germans, the Dutch the without their wives of the the decision dissent from children, giving the latter the certify questions to the choice to remain in their homes. areWe section 239 of under Court Code, Judicial businesses, destroying their as if effect, from the con- 28 U.S.C.A. § such citizens enemy aliens. The de- this conten- certificate. With tent of struction of their business connections agree. tion I do many means not be will able vitally judicial is a action Certification areas; effect, to return to their native litigants, since it transfers affecting the as were the French Canadians taken to to another the forum of one tribunal from Louisiana. questions certified. adjudication appellants yet While none been primary argued issues here One interned, deportation order was but descended of classification one step single plan the initial in a ending in from other citizens descended citizens imprisonment in barb wired enclosures un- of countries which we from aliens military guard. der Descended East- validity of such a classifi- at war. The are cation is Asiatics, they imprisoned ern have been entirely large- of fact imprisoned as the Germans the Western judicial ill-defined area no- ly in the Asiatic descended Jews. Supreme Court in civil cases tice. notice laws of judicial takes The first omission of fact from the cer- states, justice yet believes is bet- tificate, several regard prejudicial if ques- such cases in most served appellants, ter the admission respective left circuit Government, tions hearing at here, that not * customary omits the This certification which one of the inferences we disagreement as to doubt statement have no such doubt. questions, to its answers our own

301 hypocrisy in contempt any the same descended 70,000 Japanese of these one neighbors, their white him in treatment their against deportees filed citizen of a claim and same bitter resentment an indict- this circuit any federal inferiority Americans their as espionage, of social charging information ment or have the Nazi claim Nordic racial ad- act. This any sabotage treasonable or supremacy. It is in normal reactions from months the five covered mission beings of human to such treatment de- DeWitt’s General Harbor Pearl problem are found factors in the May I dissent portation order validity of General DeWitt’s orders. admission of such an the absence from certificate. of fact made at the Another admission of fact hearing appearing in record from the and not from the omission I also dissent certificate, presence among or in the facts concern- following certificate of group young im- citizens of a men “present danger of these ing the issue of a Japan and returned to the espionage] or educated and [sabotage evil mediate United States to live in the com- about,”2 which would bring an intent to munities. These men be order, were admitted to ef- warrant General DeWitt’s dangerously sympathetic Japan with in the fect, deportation citizens without present war. imprisonment. immediate trial their pertinent in- They from which are facts peculiarly What is knowledge within our psy- may regarding be drawn ferences is that in our Pacific schools, Coast imрulses impelling and convic- chologic infancy early childhood, and loyalties sympathies personal tions and and freely and Chinese children mix yellow Mongoloid body of liv- of a citizens companions. They with their white are society predominantly in a Caucasian taught flag to revere the with free compul- subject legal and social they doms it connotes. When reach adol sions because race color. escence, with its mating instincts and its affections, inevitable often know which no knowledge It is a matter of common by complexion boundaries set cheek or thinking people ‍‌​‌‌​​‌​​‌​​​​​‌​‌‌‌​‌​​​‌​‌​‌​​​​‌​‌​‌​​​‌​​​​​‍of detached in Pacific eyes, bones or slant de freedom is communities, formerly among living Coast powerful nied them most of human deported citizens, Mongo- that their against instincts the laws intermarriage yellow among loid skins have features many persons high spirit, with the Caucasians.2a- strongest them of the same paternal discipline integrity intellectual and consciousness of is exercised over the They obligation white children. are told it a deg social as have most civilized Oriental; with surrounding redation to mate What Caucasians. pertinent yellow youth also is the fact skinned made to feel persons may excluded, de- The President’s zone and and with re- spect any portation February 19, which, right person order of enter, in, enforcing provisions, remain or leave shall be sub- ject prosecution Secretary -to “Whereas whatever restrictions the successful requires every possible appropriate Military protection the against espionage of War or war Com- (cid:127) * * may sabotage impose mander in his discretion. hereby material, “I national premises, national defense further and direct defense authorize Secretary and national defense utilities as War and the said April 20, 1918, steps defined in Section Commanders to take such Act of other appropriate Military the 1220, of No- he or the 40 Stat. amended Act Commander may 30, 1940, compliance deem advisable to enforce vember 54 Stat. August applicable 21, 1941, with Act of the restrictions Stat. to each Military area 104: hereinabove authorized to § U.S.O.A. designated, Including therefore, “Now, the use of Fed- virtue of the author- troops Agencies, ity eral and other Federal in me as vested President Unit- authority accept States, assistance of Commander in Chief of the ed agencies.” (Emphasis sup- Army hereby Navy, state and local authorize plied.) Secretary War, direct and the Mili- tary may Justice Holmes Abrams v. who from time United 17, Commanders he 616, 628, any States, designate, 250 U.S. 40 S.Ct. to time whenever he or des- ignated 63 L.Ed. 1173. deems such Commander action nec- 60; 2a essary prescribe military desirable, Civil Code § California Idaho 31-206; places § Ann. Montana Gen.Laws Civil and of areas in such such extent as 5702; (1939) appropriate Military Arizona Code Ann. Code § or the Commander may determine, 63-107. § all 302 deported contempt. on the of the now minds some of inferiority in social a racial and determining in citizens. pertinent Such facts are find, is entitled whether General DeWitt and A race discrimination of fourth people suffering an humiliation among a citizens color of these exclusion the equality the of the so with inconsistent the many Nothing but from labor unions. be those flag teachings, there will permits special gives stress of war the perform a citi- who fail to will hesitate or in some which the to work allow Chinese duty against the aiding zen’s in his soldiers the out- Despite of our war industries. spy. sabotеur or Mongoli- standing an of mechanical skill people, skilled the freedom make a powerful most indicium The second living youth taught in our denied by General DeWitt war commanded zone point flag schools to which, at the their hands implied inferi- separateness and racial of promises each told, are of ority people, are the Mongoloid opportun- dignity equality them the owning agri- prohibiting laws from them ity among his fellows. Many Japanese who cultural land.3 immigrated farmers. Yet under here were One with the is not here concerned Japanese parentage these laws no child of dispute vigorous laws, of such as to the wisdom can on be born his alien father’s farm. dispute one hand having on a and State decisions4 show evasions examples persons Europe, employed satisfy farmer’s deceits distinguished in States and Latin America our own hunger, historic land which led to arts, statecraft, and the who the sciences early migrations the last westward blood, immediate of Eurasian both are prop- century. it still a Whether not Japanese Asiatic and other Chinese concept er that the farmers constitute the remotely through the origin, more nation,” 70,000 citi- “backbone of Indian, other the American and on the com- farming zens know those rejects from societies of frustrated separated are their white munities each blood. companions by fundamental social dis- a questions peace table. Such are for the bitter tinction, sometimes more ques- solely The case is concerned with expression by European descended their tion such laws and social and in- whether neighbors superiority because often a regulations have created real dustrial and Japanese energy shown both present danger on eastern littoral agricultural skill. These facts are entitled Pacific, a war to be considered with reference to the like- after, waging caste is with the lihood class among of disaffection a assassination, destroyed aid of an evolv- treated, determining General DeWitt’s democracy, ing Japanese having ideals in dangerous regulations for exclusion of common with our own. people bordering from the areas war As result these and other discrim- Pacific. color, race and inations of distinction, subject long A third Coast and towns live our Pacific cities of in Mongoloid protest repeated quarters. compelled Though segregated Congressional Japan, is in the China gov- there social than to reside rather nationals the exclusion laws for force, many similari- there ernmental immigration quotas of Euro- from the ghettos Europe, among ties with — part West- Semitic peans, the Semitic intermarriage, of land them the denial part Asiatics, Russians of ern Mongoloid participating many owning, Neither General De- blood. manual skill. livelihoods of with the this court is Witt nor concerned limitation such or social in- stig- Because of justification of this political or social tercourse, people not do become familiar Mongolian, both ma on Mongolian physiognomy. The proud spirited its effect on with the with cerned and, impres- yellow skin first Congress. branded uniform people so structure, uniformity facial however, sion, position in a better than court, Japs look Chinks alike to make “all know the effect of facts other

Laws, § 10582. ^[4] People 3 1913 61-102; Act Cal.Stat. 260 5 Washington, Osaki, 1930, ; Oregon Comp.Laws 1 Rem.Rev.Stat. Bearing Cal. Ann. Gen. § v. 286 P. 106 345; Schmuck, 1929, Cal.App. 29, People 1025; People P.2d v. Nakamura, 1932, 288 v. P. Cal. Entriken, 788; Takeuchi Cal.App. P. intact, city’s buildings save Hence aris- frame me,” colloquialism. a common some increase sol- distortions which did difficulty DeWitt’s for General es present pick- hazard, conflagration but the federal civil officers diers or the pieces developed technique shattering crowded the other out from districts, single buildings several acres of segregated together ma- Japan, bomb, sus- of wooden makes the debris including men educated piles succeeding from terial for the in- spies fugitives mere fuel pected or or saboteurs para- projectiles. hiding flammable similar landing or A a commando difficulty flagration danger Pacific exists in all the chutists. of identifica- Also the them, suspected Coast cities. General De- or all tion of of known of aid, by descriptions telegraphed Witt well could fear the added menace enemy of the saboteur’s torches. white enforcement officers. written to certified, effect, questions Since the in the imminence far as concerns So Supreme Pacific transfer the Japanese attack the entire case to the danger of on Court, compelled unjust appellant it is Coast, be omit this court would the summary from has a rational the contentions on find that General DeWitt the relied, except gen- which he his claim a fact of violations of ground to it. is every Japanese provisions air knowledge that in Constitutional eral other than the process military due clause of attack on establish- the fifth Amend- cities Singa- urged ment. He ments, among Chungking, also them such a here — Harbor, pore, Midway, Rangoon, Dutch classification of descended others, Ceylon,— citizens unitary the British naval station in scheme imprisonment planes passed through leading to their enough the defenses without a expectant hearing, (1) commanders to made General of warned and DeWitt’s Con- destroy gressionally conflagration regulation authorized cause a sufficient to a bill of prohibited by attainder Pacific wooden cities our Coast. Article I of the Constitution; (2) merely an incident commonly What known on the Pacific is single plan of a continuing to seize his elsewhere, that, and not is the fact Coast person in violation of the Fourth Amend- unlike London with hundreds of simul- ment, (3) providing scheme brick taneous fires its and stone struc- people deporting from their homes to yet great moving no tures front of imprisoned by Military, without conflagration, Fran- wooden-built San trial, punishment is a cruel and unusual a conflagration cisco there was front in violation of Eighth Amendment. length mile within five hours of the earth- quake nearly of 1906. It was is now ten a coalescence of but months since Gen- There, luckily, deportation fires. eral seven the earth- DeWitt’s order was made. quake placed in highest on lee-side great of the The court of this circuit city, one started fully ques- on its able to decide the submitted side, long Particularly windward maintained tions. it should not avoid wind, because, northwest trade well could have the their decision as stated in the cer- city tificate, they bulk flames in ten are “difficult” hours. and “this court earthquake left precedent.5 exterior of the knows of no decision” The for a hand, The certificate’s recitals are this Court sensible of the fact military “This cause thus raises novel constitu- authorities held the view questions great public military exigencies importance tional of modern war- pertaining pow- imperiling existing to an fare exercise of the war the nation and important regulations beginning ers to enforce two the Pacific Coast at important part present grave form an the war- war were far more than any existing time evacuation of the Pacific Ja- Coast situation hitherto war panese population. foreign familiar with a court is nation. No doubt because Supreme military decisions with the Court authorities’ view the ex- upholding peril facing broad exer- treme States of the United nation this exercise powers powers war of the war Federal cises Federal Govern- hand, however, employed. On the one ment was Government. whether knows of no decision in which this exercise of the war can be rec- residing subject per- in areas citizens onciled traditional standards of required by liberty military guaranteed by have been sonal martial law and freedom Constitution, to observe curfew and ito re- authorities most difficult. This military therefore, pursuant port Court, control stations for exclu- to Judicial military designated by Code, (28 area Section amended sion U.S.C.A. Supreme 346), authorities. On § the other certifies to the Court of right filing certifica- dissent between before The difference time certify decision, decision to filed. tion and after our certiorari by March 1943. diligence if about four weeks is used DENMAN, WILLIAM filing sustaining the Government Judge United States Circuit opposing brief. time no doubt could agreement shortened coun- Opinion by DENMAN, Endorsed: appellants seeking sel for the free- Judge, on his dissent from the Circuit dom of their clients. dif- of this Because questions certification of time, ference in might certiorari cause Court, of facts from the omission Court to reconvene later in 1943, as therefrom. Filed March June,6 im- as it did much lesser September 20, amended 1943. order portant parte Quirin cases of Ex O’Brien, Paul P. Clerk. оthers, July argued July 29 and 1, 1, 317 U.S. 63 S.Ct. 2. STEPHENS, Judge (concur- Circuit Wilbur, opinion by J.) ring the written C. 70,000 Under similar orders all the by long thought majority descended is the the citizens since It that have opinion Supreme case been removed from Dis- of the Court in the the States, 21, trict 1 present Hirabayashi and now danger no v. United June sabotage 1943, 81, 1375, or espionage. opinion L.Ed. my It 320 63 S.Ct. 87 U.S. principles delay, coming 1774, that a month’s the laid down fundamental the after elapse of the ten the case that there- governing months which the instant question order in existence, has been in no extended discussion of them is fore re- does not quired. warrant the avoidance of de- appeals circuit court on cision of this Hirabayashi The case was certified involved of law and of fact the matters States, Supreme the by Court of United the appeals. Attorney after Gen court, suggested the eral had should action I dissent the above reasons from For taken, and I entertain no as to doubt attempt the certification to avoid a the wisdom of this That case action. only questions the involved in decision of presented power certain war constitution avoided, and, appeal the if it is to the welfare of to which questions as al omitting the certificate re- facts the prompt and final au required the nation by Hirabayashi and several of lied answers, court and while this thoritative pertinent his contentions. them, decide our jurisdiction signed by certificate then for and voted pronouncement would be decision majority of this court was first seen and would not be an intermediate yesterday (March 27th) pro- and after me test the case it promptly certifying By final. yesterday sent and sent ordered possible Supreme Court made was to settle the court’s airmail to the Court. Our rule important questions during practice days allows ten to distribute The Spring members term. prior the dissent for its consideration never differed as to of this court decision, filing majority certify. here to any their decisions days requested, Though but two 1 opinions being re cases,* now filed but the there which is abundant time for never been able to they have veal that arrival of certificate reasoning. as to in concert speak sideration before next session opinion concurring preparing this Supreme Court, this court denied States, 81, Hirabayashi 320 United U.S. v. following questions the United States the 1386, 1375, L.Ed. 87 1774. concerning S.Ct. 63 of law which instructions group 1 before this court of cases proper desired for decision of arising are some orders out of (Emphasis supplied.) cause:” “Japanese cases.” to as the referred times 6 adjourn, States, did Hirabayashi not They United v. include ; 21, 1375, 81, until June 1943 hence the time 1943, factor 21, U.S. S.Ct. 320 63 June States, 1774, certiorari on and cer between our decision United Yasui v. L.Ed. 87 1392, negligible. Despite 115, 1943, 21,

tification was haste 63 S.Ct. 320 U.S. June pass 1793, v. that Court declined L.Ed. and Korematsu 1943, in certification 87 432, imprison States, 1, U.S. S. June on the 1124, deport 87 L.Ed. the citizens descent. Ct. necessarily warfare, it DENMAN, conditions has who Judge am aware scope for exercise of them given wide expression of join in the main does determining judgment discretion court, only in the result concurs threatened nature extent of the reasoning in his widely different advances injury danger the selection opinion concurring To his concurrence. parte resisting Ex means it. opinion he filed in annexes 1, 28-29, Quirin, supra, 317 U.S. S.Ct. certification opposition to the Cases, supra, Prize cf. 87 L.Ed. apparent Hirabayashi case.1a 10 - 459; L.Ed. Martin v. Black issues the latter case broad Mott, 19, 29, 6 L.Ed. 537. 12 Wheat opinion does not rе present here. Where, here, conditions concurring did Judge DENMAN’S spond to judgment dis- call for the exercise notice ma case, in this but does cretion choice of means dis contained terial those branches of Government opinion. senting placed which the has the re- Constitution heavily upon Sterling ‍‌​‌‌​​‌​​‌​​​​​‌​‌‌‌​‌​​​‌​‌​‌​​​​‌​‌​‌​​​‌​​​​​‍Appellant relies sponsibility warmaking, not for Constantin, 53 S.Ct. 287 U.S. any court to in review wisdom sit 375, a case in which sub- 77 L.Ed. judgment of their action substitute juris- ject state martial law and for theirs.” regard diction of federal courts there- point perhaps At this it would be well is treated. legality restraining to note that of noteworthy It is or aliens American citizens of Hirabayashi in case did not mention Japanese ancestry case, to War Relocation Cen Sterling fact the quite and this makes it ques not nor ters is in this case judicial was this supreme conclusive that the Hirabayashi tion in the case. involved body regarded ap- the nation of the law DeWitt,2 The of General con plicable actions having to a local as disturbance in case, sidered this analogy power the au legal to the under little of our thority of government Congressional and attempt to Acts Execu subject resist an to steps tive and were people Orders taken as to foreign and the American ato This, my appellant prepara control the opinion, in and others will. is one of the tory military to their removal of from the appellant’s cardinal errors case as presented in which it has been graph to found themselves. para- us. One zone Appellant government’s had resisted the opin- Court’s main Hirabayashi right to take this war move so far as his ion case is sufficient to concerned, person was guide to he was arrested us as of the war pow- extent violating ers of the convicted President order. We Congress asked, effect, to annul and is sufficient to the convic- inform us that we are that in judgment deciding judgment not to sit tion our over the wisdom strategy of defensive the General taken powers. actions under such charge justified quote was not the facts and opinion: We from the main illegal “Since the therefore was unconstitution- Constitution commits to appeal The indicates a lack Congress Executive to al.2a of un- exercise power comparative derstanding rights the war all the vicissitudes and great 1a opinion sailor-diplomat 28,1943, event and of That was March filed my heading September 20, 1943, If comment and was amended it. the Per- again ry expedition appears opinion amended as it in this December as of September 20, Although impress reader should the un I attack proposition opinion appeared a amended not advanced the case. in our advance published Since amendments to the sheets journals various law widely circulated, opinion explain dissent have been made. it has not misunderstanding expedi- published been the official federal re porter. result in a tion could ception monstrous because written comment judges stating Harbor more that Pearl one his dissent to the repayment less a to us in our No- order of own coin. certification was not considered thing case, in a could be was not more erroneous. hence for publishers DeWitt, John warded to Lieutenant-General L. of the Federal Reporter. Commanding General, original The Western Defense which was dissent during widely published, Army, said, Fourth Command and as I have contained period Perry’s regarding considered. comment Admiral ex herein 2а my opinion pedition Japan, orders Disobedience to the General’s gave wrong epochal punishable impression triable is made an offense of that peace times and in in times of stances branches bly individuals of where courts and the other two pow- great reaching and far government war. necessary were immova- prosecution war, aligned er course, Any each other.3 ordinary habits and disturbs the situation would mean the failure always government has customs of the civilian. itself. structure so, brought done war has modern A large part of our Pacific Ocean civil- home to realization that us clearer Navy had peace been wrecked in a time under ians well armed forces as the treacherous by Japan raid and America compulsion cooperation acting the with had immediately. declared war almost duty military mak- necessity. The General charged with the defense of prosecution ing final decisions in the proceeded Western mainland under placed war must somewhere and the Congressional Acts and Executive orders places duty with Con- Constitution to control the movement of na- an- gress How weak in- and the President. tionals and American-born country deed would be in kind of our cestry preparatory their removal from live, in which we if world' before Appellant coastal zone. resisted the certain, war validity regarded could designed accomplish orders ratified strategy orders have to be would these ends. after a trial validated the courts It seems me that the situation as we The Presi- fact as to their necessities. absolutely now see it negatives the idea war, may Congress dent not declare does that the district cir that, President is the Commander- but the jurisdiction pass cuit court has His, as Mr. Chief in-Chief. Justice upon necessity the issue of for the war said, only duty Hughes has is the wage quite preposter action taken. To itme successfully. wage war but war ous that either of the courts mentioned never of that has The border line legal power require should assume genius been is the of our defined. showing public in a trial as to whether representative government great that as or not those ordered excluded possible part a of war action as is shall columnists, zone fifth enemy included in Congressional and be under enactment or formers saboteurs.3a every every in President war we have ever However, Judge DENMAN opposing prosecuted principle. adhered has to this Hirabayashi the certification of the case purse Congress strings The controls the supreme to the court states in his dis- cooper- is sufficient and this alone to make opinion court, senting this which is legis- ation between and the executive up made of men long residing in or near absolutely necessary. lative authorities slope Pacific and who have come in has in been adhered to the action taken contact with espe- is therefore upon brought. which this case There cially qualified to know and understand governmental our no sanction scheme whether or not good there in fact a for the courts overall wis- assume military questioned reason for the actions superior dom and and virtue take unto in this case. themselves visé the Acts of Congress upon If expressed and the President I understand the views war mat- opinion long dissenting as acts ters so not in con- provisions is that case, flict with of the Constitution it district it- court should go speculate try legality self. It is as further idle and General DeWitt’s or- happen upon or to what would should ders evidence necessity in- jurisdiction. punish- pie kindly military govern- civil court Tlie under do not take public ment, dealt out is not claimed to ment be cruel and sentiment remains driving compels unusual and for that reason unconsti- force that its limitations. 3a regard appellant ordering appel- a I As matter fact do not tutional. probation- placed given place stay under lant a six months’ remain in a or to ary given place in a sentence. order to be later evacu- part subsequent There have ated from a been few instances the zone as military which conflict between incarceration has been he evacuat- satisfactory refreshing courts occurred. No ed. to note that not one impasse solution to this been has worked evacuated and thereafter confined in an assembly out. Good sense has come to the rescue center war relocation center peace prosecuted petition most has instances has come without for a writ of ha- victory corpus peo- to either side. beas The American decision. be afforded testimony aid would be doubted that consist of evidence whether the Japaneses nationals invading this forces judicial both and notice or Japaneses citizens sympathizing judgment some should review ancestry. taken and upon the evidence district court historically incorrect However, personal knowl- it is upon judges’ the several necessity Thus, if aft- Japanese people. assume that edge peo- Japanese-blooded found facts should control resident er trial of the it sins of our father’s issuing ple the order had visitation general is the people upon thinking that us. good cause Amer- Perry his small from the with ordered excluded Commodore who were blustering trouble, upon a might was not bent zone cause ican fleet coastal expedition when legal, imperialistic invading other- hold the order courts should Upon Russian, Portu- they The nullify Japan. it. wise should went into there been upon and Dutch had premise English the activities guese, restrictions most limited states long in the Pacific Coast under before great judicially no- legal social humiliating both restrictions. We westerly likely Honolulu opinion dissenting station ticed need (by this produce pro-Japanese ships commerce anti-American or our wherein clippers) could steamships well as these facts there- acts in resentment and time wood, provisions, water, supporting supplied fore evidence “be constitute coal, necessi- intending material to establish articles their order. other As ** may require (Article General’s order II unreasonableness of the ties dissenting treaty negotiated by under attack the author of the Commodore government Perry, statement of 597.) cites a sailors our Stat. pro- response cruelly to a merchant treat- counsel made marine had been Judge him the bench pounded to ed and murdered when scrambled informa- upon Japanese indictment or rocks storm DENMAN that no from their sabotage or trea- espionage, charging wrecked There was no consular tion vessels. sub- through filed those act been or ambassadorial officer sonable has needs, officially express am questioned in we could our ject orders.4 theory. with this was no disagreement working total there mode of communi- through protests cation which our could impelled I feel to cоmment Com- conveyed. Perry expedition was of- Perry’s expedition to the Liu Chiu modore ficially dispatched by the President of the 1853,5 Japanese Islands in because United States under the most in- careful misdescribed as an act of ag- has been structions to communicate our needs and which Pearl gression from Harbor and protest register our the to Government of Japanese hatred more would or less Japan through tact and consideration.6 naturally sufficient, course, flow. of very interesting, to so far we are concerned with A short account of be the case, purposes Perry’s expedition, its that war existed between and ac- issues of this complishments contained in Ambassador Japan and when the United States General book, “Report questioned Joseph Grew’s issued the orders here C. entitled DeWitt Tokyo.” quote I from it in the powerful attempt invade to the and that a margin.7 It could seemed imminent. Coast West 1853-1895,” Japan, I, During period and vol. Stanford there were numerous University Press, press discovery in of the accounts treaty, Perry’s radios, For text of see “Narra cameras arms wave short Expedition of possession tive the of an American the Coast in of Pacific found Squadron Japan,” they long to China Japanese the Seas had been ordered seq. page 440, et in to the authorities. Stu- turned necessary Japanese assess, know “It we now officials’ conduct of dents coolly impassively, equal be in the events of the to of the such officials years ninety they past espionage and knows that nine- fine are of Pacific —the ty elapsed years practice deception that have since in of behind Commo-' excel Perry Japan politeness. gracious with dore ty concluded mask of the trea- way Dennett, opened subsequent Tyler, in “Americans East- family Japan Co., Y., Asia,” of into the of Macmillan N. admission na- ern 1922; M., Barrows, “The Edward Great tions.- today being Commodoré,” given Co., Bobb-Merrill N'. : “We dreadful .evi- process Payson Japan’s 1935; Treat, J.,'“Diplomatic Y., dence that of emer- gence centuries of isolation United States from three Relations Between Upon Perry’s force, necessary he resort return to it will Commodore *** you exhaustive, thoroughly made an docu- should seek them elsewhere. report expedition mented official his establishing yourself of one two con- at * * to his of government, points *, entitled “Narrative venient with the consent Expedition Squadron you of of natives, pursue an American will yourself friendly Japan.” page conciliatory China Seas and most course At * * Narrative, 108 of this supplies the text of Secre- *. Take no from them ex- tary of supple- cept satisfactory purchase, State Edward Everett’s fair for a * * * of Perry printed, mental consideration. Make no use instructions defence, briefly force, except quote last resort for (The orig- therefrom. attacked, if self-preservation.” inal been drawn instructions had Secre- tary Webster, predeces- of State Daniel Perry ready If was for eventualities of Everett.) sor office Mr. “The Presi- poked way when into the his vessels * * * dent you concurs “Yeddo,”8 should was land-locked harbor ports easy secure refuge one more history only light being cautious in the you navy. access. If find that cannot up our to the traditions of living Japanese obtained in the years islands without An vessel before American some

American consular portance ^[*] foreseen, exercise of a met the 31, 1854, ties, However, it contained Japanese United States whaling ships American seamen ed with inconceivable depots in consideration was the need for been pacity China. between the for at least trade of number Perry nation of coast of with China and the bal brief contacts at Government was ameliorate change. her now, tual isolation since * * weaknesses tions is far from of her assimilation * “After incredible obstacles and difficul- treaty ^[*] * community: homogeneity growing history. Commodore they revered shipwrecked was tribal *_ *, (cid:127) * of American immediate needs of the which, although steamships, Japan. Further, and that * * * carry in Japan Japan the individual to also one Japan conditions which purpose commerce of the United concluding which the Pacific possessed * * * dispatched coaling coal, possessed could restock themselves stationing Perry tribal sanctions and feared treaty provision The advent in widely cognizant character. * * * Although from which American American officer. primitive complete. Except into coast of created Japanese waters, with their whaling ships * * presence station intermediate one succeeded on brutality. sending Her with the Japanese the assent very beginning limited in spaced in feature virtues of a tri- had been treat- Japan It was in polity, insistent the American family America and Japan grew primarily and subordi- As a community; vessels had establishing defects and community: been Commodore limited of a the China the trend Japanese moment. intervals had not A in the im- then as nation, March off the out of States scope, of na- large third need and vir- ca- modore.” where boats of our with the weaker formed of tor: because pan ers of any other, onomies, ways Japanese, gation ‘A sible. He He Japanese, did ed to he had dedicated tions ernment a leges helping aim to induct nations would Japan the backward send Harris. sion to customs, sued So * * * ** 8 “The man of patient See long first treaty educated extraordinarily happy prepared and, capital with the information which she need- far more indignities imposed upon brought under the most favorable merge Perry * ignorance, ** Chapter XV, of the most liberal character persuasion, Japan selection the white man in his * ^[*] strictest diplomacy, diplomatic representative, and commerce. He and of their she was acquired stern Dr. Inazo presented deserves Treaty party, and tactful Perry’s coming Japan membership into the world. had the * peoples Japan in confer; * signed. rectitude and than exploitative practices pur- It took Harris two Japanese Justice.’ sense of all his news to them from Japanese anchored but formulated a he never took not entitled a familiar after intolerable himself he, remained the Harris Islands international Barrows “Great Com Nitobe, into the Commerce government, of the East. characteristics; negotiate American But this indeed, epithet and was negotiation prevent dealings for officials in the had been in one. He had wrote of him: * * gentlest dealings family knowledge provided * him of benefac- some time. more than advantage Liu Chiu the exten- a family seclusion, Japanese with ** auspices. law, * * of their task Harris’ * n * treaty. treaty Town- before delays of na- Navi- Shui, privi- years pow- Gov- * * pos- was ano Ja- us, ec- A upon against Japaneses retaliation the score Japanese upon when been had fired legal and social discrimina- restrictions disarmed it had been learned Jap- citizens of peaceful inten- tions American suffered skipper proof of in by Japanese nationals anese descent or and men of Officers tions. dif- great had the United Gunboat Preble States. States had men who ficulty rescuing nineteen were issued DeWitt’s orders General shipwrecked had been held been Japan bent knowledge of light a Japan- prison eighteen for months Gargantuan racial upon accomplishing Perry10 did and What Government.9 ese ” eight corners dream “Hakka chi U men he and his conducted themselves how roof, Japanese of the earth under have Japanese harbor after entered 11a peoples.11, supremacy over all fired, importance. No shot was great powerful nations ideology fatal has driven markedly in his mission succeeded history throughout to commit unmeasured long practically inexhaustible them only to crimes cause unnumbered patience. impotence. Oitr sink dishonor into Japanese knows that Any well-informed knew of monstrous ‍‌​‌‌​​‌​​‌​​​​​‌​‌‌‌​‌​​​‌​‌​‌​​​​‌​‌​‌​​​‌​​​​​‍command na- Perry’s expedition the American with Japanese occupied Chi practices being Japan from it saved tion behind especial danger from na it knew of the cruelly by power- invaded and commerce- upon our western ranks of Kibei12 day hungry grand imperi- nations coast. conquests. al many loyal my There are American citizens upon the considerations bearing their descent who are which General DeWitt acted much uncomplainingly heavy necessity for burden burden more fundamental than —a true, enough, light indeed com- Japaneses retaliation defense Perry pared with that of other incident for a defense thousands. govern- place Perry’s “Narrative,” page 60, their Mikado and his See upon ment as follows: account attack person, Morrison, “1. He is a descended its offi- divine United States Steamer subject Japan- goddess, men, from a cers and when and therefore not it sailed into a guns upon removed, human ese harbor with a mis- laws. amity mercy Japan- “2. He is so aloof affairs sion to return from mundane part shipwrecked that he ese nationals who had does not take direct even in been governing country. shores, Dennett, our Pacific the business of his own only Asia,” page “3. his He acts on the advice of “Americans Eastern See, responsible also, experience Gun- ministers and therefore of United States anything Preble, name. boat “Narrative.” done in his Perry occupies “4. Mathew Culbraith was a mid- He forever, a throne which is estab- shipman fourteen, lished at with continues line of rul- served distinc- ages war of ers ‘unbroken for eternal.’ tion and in the war be the Mexico. His “5. He is destined to ruler of all brother Oliver Haz- Perry nations, peoples ‘eight when all ard Lake Erie fame. Commodore Perry figures brought great corners’ of the world will ranks as one of the under Navy’s glorious history. diplo- ‘one our roof.’ As a Any fought among great war mat he “6. in his ranks call- name is a holy war, anyone ing. iswho killed while Japan fighting Win,” war See becomes “How Kin immortalized as a Plans to god pantheon.” (Translation. Little, oaki the Shinto Matsuo. Brown Co., Boston, 1942.) Kibei—American-born of & de Japan widely See Araki scent who early youth been sent General in their in a circulat- pamphlet setting Japan’s ed indoctrination in out national religious governmental policy, published Kung customs and in Ta Pao. 11a following Ill, beliefs then been returned to taken from Vol. 1, 1943) (Nov. Contemporary China, United States. conception condenses the

Case Details

Case Name: Toyosaburo Korematsu v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 2, 1943

Citation: 140 F.2d 289

Docket Number: 10248

Court Abbreviation: 9th Cir.