JPRI Working Paper 110 (October 2006)
The Japanese-American Renunciants: Due Process and the Danger of Making Laws During Times of Fear
by Ellen Clare Kennedy

This paper seeks to explore the intersections of law-making, race, due process, and judicial review afforded to United States citizens during times of national stress by focusing on a less-known sub-chapter of the Japanese Internment of World War II in which the United States government sought to strip Americans of their citizenship. I will argue that the 1944 renunciation program was unconstitutional under the due process and equal rights clauses of the Fifth Amendment because it was instituted in an unacceptable manner based on ignorant and racist assumptions aimed at depriving these Americans of Japanese ancestry of their precious right of United States citizenship during a time when they, and the nation, were under intense pressures.

Loss of their birthright of citizenship was particularly acute for Japanese-American citizens because, once stripped of citizenship, they were ineligible, under naturalization laws then in force, to again become citizens in the United States of America.[1] The racial restriction that barred persons categorized as non-white or non-African from becoming naturalized citizens was not removed until 1952.[2]

These war-time decisions, based on racism, war-time hysteria, and lack of leadership,[3] against Japanese-American citizens, not only had kept them interned for years, but also worked to label them as disloyal , based on an ambiguous administrative questionnaire, without benefit of hearings or access to counsel.[4] Those who answered the questionnaire in a unsatisfactory manner were then physically removed from the internment camps they had lived in and were segregated in the Tule Lake Center to further emphasize the characterization of disloyalty .[5] Along with those so branded, came innocent spouses and children, all of whom were subjected to the same coercive renunciation program whose ultimate goal was deportation.[6] Under these pressures, and because a small number were pro-Japanese, some Japanese-American citizens requested repatriation to Japan.[7] The United States Congress was quick to accommodate them.[8]

To institute the program, Congress had to create new law as no statute existed that allowed U. S. citizens to renounce that citizenship while on home soil.[9] The Nationality Act of 1940 was amended when Congress adopted subsection (i) to Section 401: "A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality: . . . (6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense."[10]

Although neutral in its language, this section was created specifically to strip Japanese-Americans of their citizenship.[11] These included minor children, the elderly and the blind and was passed for mostly war-related, racially-motivated reasons as evidenced by the testimony of the Congressional Hearings leading to its adoption.[12] The War Relocation Authority (WRA), the civilian agency that ran the camps, and the officials of the Department of Justice (DOJ) who wrote and implemented the law, knew that it targeted innocent loyals but proceeded with the program nonetheless.[13]

Some, but not all, of the renunciations were later held void by the courts despite government opposition.[14] The court cited government acts that created duress conditions under which citizens signed the renunciation forms as well as government inaction over coercive conduct by pro-Japanese groups, such as the Black Dragons and the Hokoku , whom the authorities knew were employing coercive tactics to make people sign up for renunciation and repatriation to Japan.[15]

Although these incidents occurred almost sixty years ago, subsection (i) remains a valid law.[16] Like the more famous holding of Korematsu v. United States , establishing strict scrutiny as a judicial standard for race-implicated statutes -- subsection (i) remains as another legacy of the Japanese-American internment and impacts the law regarding the basic civil liberties of citizens.[17] Additionally, Subsection (i), like the less scrutinized holding of Korematsu -- that in time of war, for national security reasons, a group of persons may be targeted based on race -- is implicated in dissenting Justice Jackson's metaphor, that this principle lies, like a "loaded weapon," ready for government use against United States citizens.[18]

As America faces threats of international terrorism, and possible sabotage from within, these issues remain relevant for our own times. The government has once again used the renunciation statute to facilitate Yaser Hamdi's renunciation of his citizenship as a condition of release from his detention as an enemy combatant .[19] And, the powers given the DOJ by the Patriot Act seem to be being used selectively against Arab and Muslim immigrants.[20] In Hamdi v. Rumsfeld , the United States Supreme Court once again addressed the issue of what due process rights are to be afforded to those labeled enemy combatants who are also United States citizens and what level of judicial review such decisions would receive.[21]

This paper will examine the government's implementation of the renunciation program, and will argue that it was done in an unconstitutional fashion. It will review the court cases that the renunciation program generated as Japanese-American citizens fought the government to regain their citizenship, and how the government, long after the guns of war were silent, continued its attempt to strip loyal Americans of their citizenship. Finally, I shall argue that these issues remain relevant in a post-9/11 America where government officials are again using administrative labeling, unfair proceedings, and writing laws that can, and in some cases are, being used against minority populations in the name of national security.

Most are familiar with the story of the internment of the Japanese-American population from the west coast of the United States during World War II but some retelling of this episode is necessary to contextualize how Japanese-Americans reacted to questions of loyalty and renunciation that were later to confront them. Despite recent attempts to revive the theory,[22] military necessity had nothing to do with exclusion and imprisonment of Japanese aliens and citizens of Japanese ancestry.[23] Anti-Asian racism played a (if not the ) leading role in the decisions to first exclude and then to imprison.[24] Californian politicians,[25] "yellow peril" press coverage,[26] General DeWitt's fabrications,[27] and naked greed all played a role.[28] But the final decision was up to President Roosevelt and he signed Executive Order 9066 on February 19, 1942 which gave authority for "military commanders in the West to issue whatever orders were necessary for national security."[29] Once total exclusion from the West Coast was decided upon, the idea was to move the Japanese to inland western states to centers from whence they could resettle in the intermountain states.[30] Milton Eisenhower, the future President's brother, was appointed to head the War Relocation Authority and proceeded to recruit the aid of the governors at a conference held on April 7, 1942.[31] The plan was dashed, however, when the governors of the western states rejected the introduction of this population into their states and "literally began shouting" at Eisenhower.[32] And, so the plan for internment camps was formulated and the camps hastily assembled.[33] Eventually, "120, 313 people would be under WRA control."[34]

By any civilized standard, the camps were terrible. Built with fresh green lumber which shrank and left holes the dust could fly into, covered with tar paper, these apartments (typically 20 by 20 feet) had "no kitchen, water faucet, shower, or toilet. Each block had a mess hall, a recreation hall, public toilets and shower rooms for men and for women, a laundry room, and an ironing room."[35] The Tule Lake population, which would climb to 18,700 persons, was "confined to an area of about one-and-a-quarter square miles, encircled by a barbed-wired fence and guarded by military police in watchtowers placed at intervals near the fence. No one could pass through the gate to the farm, which lay across the highway, without a work permit."[36]

Almost immediately relations between the internees and the camp administrators went downhill as promises were broken and "intragroup antagonisms flared up."[37] Abrupt policy changes, such as the institution of censoring internees' mail by the military police and deterioration in the quantity and quality of food caused resentment.[38]

Dillon Myer, new head of the WRA,[39] wanted to speed up the process of resettlement, so when the War Department decided to have "all male citizens of Japanese ancestry, of appropriate ages, execute 'loyalty' questionnaires as a preliminary to the formation of a combat team of Japanese-American volunteers," they decided to create a questionnaire to determine eligibility for all internees at the same time.[40] In this way individuals thought to be disloyal to the United States were labeled, removed, and segregated.[41]

The program of determining loyalty was fought by General DeWitt of the Western Defense Command (WDC) because it would eviscerate his entire rationale for the internment, namely that it was impossible to distinguish loyal from disloyal among the "inscrutable Orientals."[42] Although the War Department would insist on the program going forward, and down-played any internal dissension, DeWitt's opposition and his adamant reluctance to allow even Japanese-Americans soldiers in uniform into the exclusion zone may have played a role in his removal from command of the WDC in the fall of 1943.[43]

The interesting history and theories regarding the concepts of loyalty and citizenship are beyond the scope of this paper.[44] However, some discussion is necessary to understand not only the disloyalty and renunciation program initiated against the Japanese-Americans but for their relevance today. As Lawson and Kelly point out:

It was wrong in the 1940s to intern 120,000 Japanese-American without charges, evidence, trials, or the ability to demonstrate their allegiance to America. It was wrong in the 1950s to arrest, harass and destroy the reputations of American 'communists' without evidence of traitorous intent or false allegiance. It is wrong today to snatch Americans off the street, designate them 'enemies,' and throw them into military brigs without access to counsel, courts, the evidence against them, or the opportunity to refute the designation, be they Taliban, communists, or Japanese.[45]

David Cole points out that the recurring error in all these "historic overreactions, [] is characterized by many of the same mistakes of principle -- namely, targeting vulnerable groups not for illegal conduct but because of their group identity or political affiliation."[46] And, these overreactions occur within the discourse of loyalty/disloyalty for which "[h]uman societies have always saved the harshest punishments for betrayal and disloyalty, for the crimes turn the knife in the vitals of the social organism."[47]

Although most modern Americans probably embrace the values that the ancient Greek Plato had about citizenship: "justice for all, the dignity of the individual, obligations as well as benefits, moral conduct and education to prepare for proper participation in the affairs of government," our conceptions and legal attitudes about citizenship also derive, as does most of our common law, from England.[48] As stated by Lord Coke in Calvin's Case,[49] "the relationship between the king and the subject was a natural one, as with a parent and his child, and therefore once a subject always a subject. To the king must the subject bow."[50] Inevitably America's Founding Fathers had to "move away from the conception of immutable allegiance."[51]

Instead the Declaration of Independence and the Preamble to the Constitution rest on "the basic premise that faith and loyalty are owing only to a government founded on contract and consent, and working for the common interest."[52] As Schaar notes, this theory "smashed the ancient English notions and built anew on consent rather than forced conformance. This conception of loyalty . . . is a living force even in the present day."[53] These concepts are important because, unlike in a totalitarian state which "sees loyalty as virtually identical with unquestioning acceptance of established authority,"[54] to be loyal in a democratic state is to be "loyal to the 'best interests' of your country but the free citizen has the right to determine what that is and it might not be the status quo."[55]

Of course, in 1943, the War Department and the WRA did not appreciate these subtle concepts of loyalty but rather based their determination of Japanese-American loyalty largely on the answers to questions number twenty-seven and twenty-eight.[56] That some Japanese-Americans might have been thinking of Thomas Jefferson's exhortation that "[r]esistance to tyrants is obedience to God" as they marked their no-no answers or requested renunciation was beyond their ability or desire to comprehend.[57] DeWitt supported segregation as he thought all Kibei (American citizens who had spent their educational years in Japan) should be stripped of their citizenship and Issei (first generation Japanese Nationals now designated enemy aliens) should be deported to Japan as soon as possible.[58] Although the WRA rejected DeWitt's plan,[59] it devised a plan in response to growing outside pressures.[60] Potential segregants included five categories:

those who had applied for expatriation or repatriation to Japan and had not withdrawn their application before July 1, 1943;

those who answered "no" to the loyalty question or refused to answer it during registration and had not changed their answers;

those who were denied leave clearance due to some accumulation of adverse evidence in their records;

aliens from Department of Justice internment camps whom that agency recommended for detention; and

family members of segregants who chose to remain with the family.[61]

Rehearings for those with a "'wrong' loyalty answer" produced few changes and between "mid-September and mid-October [1943], thirty-three trips transferred 6,289 people from Tule Lake and 8,559 to Tule Lake from other centers."[62] Eventually 18,422 evacuees were at Tule Lake of which 68 percent were citizens and "[t]hey were disproportionately rural people and unmarried farm laborers."[63] There was immediate conflict between the incoming groups and those who had been at Tule Lake for years.[64] Labor disputes and work stoppages began in October and demands were made but Camp Director Raymond Best not only didn't address the concerns effectively but took actions that aggravated the tension within the camp.[65] Tensions were very high when WRA Director Myer came to visit on November 1, 1943 and a large group gathered to makes demands of him.[66] On November 4, what has come to be known as the riot occurred when some internees attempted to "prevent the removal of food for volunteer farm workers from other centers. They fought with the internal security force and a staff member was injured. When the rioters moved toward the project director's house, the military guard was called in."[67] Martial law was then declared, the Army moved in and retained control until January 15, 1944.[68] Some 200 internees "were arrested and held in stockades without formal charges or trial."[69] Tanks and jeeps kept constant patrol "in a show of force designed to harass and frighten the detainees."[70] There were unannounced and frequent barrack inspections, and troops fired tear gas at small groups of unarmed internees.[71] "These repressive measures lasted two or three months and resulted in nightmarish fear, particularly among the very young and the very old detainees."[72]

The disturbances also received the attention of Congress and the Dies' Committee to Investigate Un-American Activities.[73] Attorney General Biddle was called to testify and he recommended the enactment of legislation to permit the voluntary renunciation of American citizenship.[74] The matter was taken up by the House of Representatives, which began four days of hearings entitled Expatriation of Certain Nationals of the United States beginning on January 20, 1944.[75] In considering different statutes to strip Japanese-Americans of their citizenship, the commentary is illustrative of the pitfalls of making laws targeting a single vulnerable group in time of war.

During times of war, people tend to de-humanize the enemy and that is reflected in the comment of Mr. A. Leonard Allen of Louisiana, who said, "It probably would not be well to say for the record just what I would be willing to do to these people."[76]

California politicians reflected well the racist nativist attitude that had been prevalent there against Asians for decades. Mr. J. Leroy Johnson of California testified:

According to the law of every Western state no Japanese can marry a white person. And that means no matter how long these people are here, if they are here a hundred years or 200 years or 500 years, if that policy is continued they will always be a group set apart with other racial characteristics, and that situation will be a focal point of friction. We cannot melt every single colored person into our population. We have serious race problems now."[77]

The Chairman responded, "Now, Mr. Johnson, you and I see eye to eye when it deals with a naturalized citizen."[78]

Mr. Johnson's racist motives were apparent in response to a question noting the obvious loyalty of the Japanese serving in the Army in Italy. He responded, "Yes, I am not disputing that. But I want you to see that those people are entirely different from the people from Poland and Sweden and Ireland. The very fact that they are law-abiding is because they think they are a superior race."[79]

Another Californian, Congressman Clair Engle said, "We do not want those Japs back in California; and the more of them we can get out of this country the better. If we can forfeit the citizenship of those who have asked to be deported and those who have stated their loyalty to Japan, we can, as part of the peace treaty . . . ship them all back."[80]

Mr. Norrell of Arkansas expressed his willingness to ignore constitutional safeguards and to deport any Japanese-American, whether loyal or not, by testifying:

From the discussion here this morning I take it that there is no argument but what we will deport the noncitizen Japs. There has been no discussion as to that. There has been quite a discussion about the citizen Jap, the men and women who were born here. I do not believe it is so complicated. An American citizen loses his right to citizenship when he is convicted of a felony. A felony is what the statute says it is. I would give them a trial by this deportation commission and provide no bail. I think American citizens should run this country. They ought to take charge and run it.[81]

The following exchange between Mr. Stockman of Oregon and Attorney General Biddle is indicative of the level of ignorance about Japanese-Americans that existed, even in a Congressman whose state included a sizeable Japanese population. Stockman asked, "Mr. Biddle, you stated a while ago that there was quite a group of young Japanese in this country that did not even speak the Japanese language. I was not aware that there were any like that in this country. I wonder if you will elucidate a little."[82] Biddle replied, "The age of the population at these camps is rather low. There are old people dying off and young people being born. Many of the young Japanese go to our schools. They speak English and cannot talk Japanese at all."[83] Stockman replied incredulously, "Do you know that without question?"[84] When Biddle replied affirmatively, Stockman admitted, "I was not aware of that. I thought they all talked Japanese."[85]

Such were the motives and means by which new law was created to strip the Japanese-Americans of their citizenship. Biddle presented the bill which became 401(i), the House and Senate passed the bill, and President Roosevelt signed it on July 1, 1944.[86]

In October, Biddle announced he was ready to accept applications for renunciation of citizenship.[87] Despite the fact that the internees of Tule Lake center were now near "mass hysteria,"[88] only slightly more than one hundred applications arrived in November and by mid-December this number had risen to only six hundred.[89]

On December 17, everything changed for the residents of Tule Lake when Biddle made two announcements.[90] First came the announcement that the Western Defense Command rescinded the order excluding Japanese-Americans from the West Coast.[91] The second was that all relocation camps would be closed within six months to a year.[92] To implement these decisions, all Japanese-Americans, inside or outside the camps, were to be classified into two groups: those who could settle anywhere in the United States and those who would receive individual exclusion notifications and would continue to be restricted.[93] The decisions to individually exclude would then be reviewed by Army hearing boards and the determination was subject to revocation upon favorable recommendations.[94]

Rather than joy, the statements, sometimes conflicting, from the WRA, Army and the Project Director, "imperiled the security of thousands of residents who, at the price of being branded 'disloyal', believed they had attained war-duration refuge. For all of them, forced resettlement, . . . loomed if not as certainties at least as disturbingly high probabilities."[95]

Army teams began to hold hearings at the rate of 400 to 500 a day, asking the same loyalty questions.[96] Rumors spread that irrespective of the statements made or answers given, almost everyone was being issued an individual exclusion order. And, contrary to expectations, this didn't mean continued detention, but rather that one would only be allowed to resettle outside the zones of exclusion.[97]

Army officers asked participants, "Do you want to go out or do you want to renounce citizenship?" which served to reinforce people's belief that renunciants would not be forced to resettle.[98] The number of requests for renunciations sky-rocketed much to the alarm of DOJ.[99]

Issei parents continued to believe that security for the whole family could be achieved if their children renounced.[100] One Issei explained that:

People are going to swing in the direction that will keep them safe here. . . . If you're a Hakujin (Caucasian) you take this matter of soiling your loyalty record seriously and would never say anything to [soil] it. But if you're a Jap and nobody believes your loyalty in this country anyway, you'll think about your future and your family. . . .We're going to have our [our children] renounce citizenship just to stay here."[101]

At the same time the administration continued to allow the Black Dragons, Hokoku . and other pro-Japanese factions to intensify their "nationalistic activities, coercive and terroristic tactics directed against dissenters, and extensive propaganda. Under their new leadership,[102] resegregationists discarded all restraint and became openly defiant. Morning exercises, goose-stepping, 'Washsho' chants, bugling, were stepped up to fantastic proportions."[103] One informant reported a rumor that "all those persons who have not renounced their citizenship by January 20 will summarily be kicked out of camp."[104] The first removal of Hokoku leaders on December 27 had the opposite effect of what it might have if done long before. Rather than remove pressure to renounce, it made the internees believe that renunciation truly was their only ticket to escape "evacuation in reverse."[105]

The WRA's next move didn't help either. On January 5, 1945 it issued an official pamphlet which said it was going to be wonderful on the outside, that there were plenty of war jobs still available, and that each family would be given "coach fare for five days ($25.00) for each member of the family, plus $3.00 per person per day of travel for meals."[106] Reactions by people who had lost everything were not positive. One internee said, "WRA wants us to get out with twenty-five dollars. But that's not going to get us anywhere. They got a lot of nerve to offer us that."[107] A man with six children, a wife, and two parents worried about housing and reasoned, "We want some assurance, if we're to go out. By staying here, I'll have a roof over my children's heads and enough to eat, . . . People with large families are worrying themselves to death. After all the wrongs they have done to the Japanese, nothing they do now will do any good."[108]

Further disincentive was provided by the reports from outside. All the internees knew of the outside world after more than two and half years of imprisonment was through newspapers and radio reports,[109] and these reports implied that America was hostile and dangerous.[110] Typical of California newspapers, the San Francisco Chronicle reported on December 13, 1944 that, "We believe that because California is required to make an all-out war effort, that to allow the Japanese to return during the war is inadvisable because it would cause riots, turmoil, bloodshed and endanger the war effort." Despite attempted words of encouragement from now friendly government officials,[111] news of proposed boycotts filtered in from anti-Japanese groups such as the "Remember Pearl Harbor" League and the Monterey Bay Council on Japanese Relations, whose stated purpose was "to discourage the return of persons of Japanese ancestry to the area."[112]

Reports of actual violence as well as rumors also reached the camp. "[In Wells, Nevada], angered by the refusal of a loan of cash, a Caucasian, working for a railroad, shot and seriously injured three Japanese on January 20.[113] One Nisei woman asked, "What do they want us to do? Go back to California and get filled full of lead? I'm going to sit here and watch."[114]

The DOJ, perhaps ignorant prior to late 1944 of the prevailing conditions within Tule Lake, had never expected the number of applications for renunciation it now received.[115] It had sponsored Section 401(i) for the three reasons: "(1) the belief that continued detention in camps of American citizens not charged with a crime would be declared unconstitutional; (2) the fear that . . . the 'militantly disloyal' (i.e., Hokoku members) would be forthwith released, contrary to 'the real and demonstrable interests of national safety;' and (3) the hope . . ."[116] that Hokoku members would renounce.[117] "The Department had not expected other classes of the population to renounce."[118] This last fact, however, demonstrates DOJ's knowledge that innocent persons were seeking security from reverse evacuation and makes more unjust their hard-line attitude in later court battles to enforce the renunciations of those who were not members of Hokoku and posed no danger to America.

In January 1945 John Burling and four hearing officers returned to Tule Lake to begin processing the now over six thousand applications.[119] The fast-paced hearings took place from January 12 to March 17, 1945 and approved 5,589 application, of which 5,461 came from Tuleans and 128 individuals in other centers."[120] Shortly thereafter, many approved renunciants began to have second thoughts and wrote to the DOJ.[121] In reply they received a form letter saying that it was not within the Attorney General's power to restore citizenship once it was lost through the procedure followed.[122] Instead the DOJ prepared for deportation. "On July 13, 1945, under the authority of the Alien Enemy Act of 1798, President Truman issued Proclamation 2655 which provided that all interned alien enemies deemed by the Attorney General to be dangerous to peace and safety . . . be subject . . . to removal from the United States."[123]

Startled renunciants turned to lawyer Wayne M. Collins of Oakland, California, who filed suit on November 5, 1945 to halt the deportations.[124] His initial roster of 987 plaintiffs grew in the following weeks to 4,322.[125] In response, the DOJ announced on December 10 that it would hold "mitigation" hearings.[126] 5,045 persons were still being held at Tule Lake and their hearings, at which they were forbidden the right to counsel , took place from January until April, 1946.[127] The hearings determined that only 406 renunciants and their 43 family members would receive deportation orders and that all the other applicants were unconditionally free.[128] However, although free now to leave Tule Lake, they left without their United States citizenship.

The lawsuits that Collins filed consisted of a writ of habeas corpus, Abo v. Williams [129] to remove the threat of deportation and a plea in equity, Abo v. Clark , to declare void their renunciations.[130] In both cases, plaintiffs alleged that their "renunciations were procured by coercion attributable to the United States while they were held in an internment camp at Tule Lake."[131] In both cases, the district court found in their favor.

Judge Goodman held that the renunciants were not alien enemies whether their renunciations were valid or not and, therefore, could not be deported under the Alien Enemy Act.[132] The Court held that when an American citizen renounces citizenship he doesn't automatically become an alien until he leaves the country.[133] The Court pointed out that subsection (i) purported to terminate American citizenship but did not automatically affix a new nationality on the expatriate.[134]

In Abo v. Clark , Judge Goodman agreed with Collins that the circumstances of internment at Tule Lake "cast the taint of incompetency upon any act of renunciation made under their influence by American citizens interned without Constitutional sanction."[135] Judge Goodman found the case to be analogous to his earlier case of United States v. Kuwabara (regarding internees who refused to be inducted into the Army)[136] and so re-paraphrased similar language he had used there to say that "[i]t is shocking to the conscience that an American citizen be confined without authority, and then, while so under duress and restraint, for his government to accept from him a surrender of his constitutional heritage."[137]

Although the court declined to decide whether subsection (i) was unconstitutional, Judge Goodman wrote extensively about the unfairness of its purpose and its use by the government under the conditions at Tule Lake. The court noted that 801(i)[138] was created at the request of "the Chairman of the Sub-Committee of the House Select Committee To Investigate Un-American Activities"[139] as there was "no constitutional means by which American citizens, not charged with crime and not under martial law could be detained by administrative, military or civil officials or upon a mere administrative determination of loyalty ."[140]

The court said that wartime expediencies could not "remove the taint of unfairness with which the renunciations, subsequently executed, were clothed, because of the admitted objective of subsection (i)."[141] Noted as well was the fact that Attorney General Biddle had accepted the renunciations knowing not only the "purpose of subsection (i) but also of all the conditions existing at Tule Lake Camp at the time."[142]

Rejecting the government's argument that detrimental reliance had to be shown, the court stated it had "adequate power in equity to right the wrong done to the plaintiffs -- a wrong inherent in the objective of Section 801(i) and demonstrated by the admitted circumstances of renunciation."[143]

The court, however, rejected plaintiff's argument that the renunciation hearings themselves were unfair because 801(i) didn't require any hearings at all. Further, it allowed the Government the opportunity to submit evidence that any "of the plaintiffs individually acted freely and voluntarily despite the present record facts."[144] The court then proceeded to cancel all the renunciations and declared plaintiffs once again to be citizens.[145]

In the meantime, another case was decided that would have significance for Collins's cases. In Acheson v. Murakami , decided in 1949, the Ninth Circuit found that the renunciations of three Japanese-American women, Miye Mae Murakami, Tsutako Sumi, and Mutsu Shimizu were void because they were "not as a result of their free and intelligent choice but rather because of mental fear, intimidation, and coercions depriving them of the free exercise of their will."[146] In a strongly-worded opinion, Judge Denman wrote that internment and the conditions at Tule Lake amounted to:

unnecessarily cruel and inhuman treatment of these citizens (a) in the manner of their deportation for imprisonment and (b) in their incarcerations for over two and half years under conditions in major respects as degrading as those of a penitentiary and in important respects worse than in any federal penitentiary, and (c) in applying to them the Nazi-like doctrine of inherited racial enmity, stated by the Commanding General ordering the deportations as the major reason for that action. [147]

Denman wrote that "one has no difficulty in realizing the repeated recitals of such wrongs in the crowded and dust filled halls and cells of the Tule Lake Center and their effect upon the psychology of those there contemplating the value of an American citizenship."[148] He seemed to particularly empathize with former World War One veterans and others that they could understandably be bitter enough to renunciate, stating:

Such men, for the time so driven to a pro-Japanese attitude, found in Tule Lake the Kibei, many permanently pro-Japanese. They were the American born but educated in Japan. From the latter group and the disaffected Nisei came the powerful organization of pro Japanese there with their bitter opposition to the loyal Nisei, leading to the fighting, beatings, and reputed murder of loyal Americans.[149]

Further, Denman acknowledged the Collins's plaintiffs by stating the court was aware that there were some "four thousand similar cases of deportees who are seeking identical relief, [so] we are giving consideration to these uncontested underlying facts, certain to have [had] their effect upon the minds of the mass of deportees incarcerated at Tule Lake."[150]

One might think that Murakami would be cause for celebration. However, there is an argument that the Los Angeles case undermined Collins's case by focusing on the pro-Japanese groups, rather than the government, as the agent of coercion[151] A mere sixteen months later, Judge Denman would overturn thousands of the renunciations that the district court had held void, forcing many renunciants to fight for their citizenship in individual cases.[152]

In response to the District Court's earlier invitation to the government to produce evidence regarding any particular individual, on February 25, 1949, the government filed a "Designation of Plaintiffs"[153] which divided plaintiffs into categories from which it claimed it would show their renunciations were voluntary. In addition to affidavits by Burling and the other renunciation hearing officers, the government placed each plaintiff in one or more of the following categories:

a Kibei; had been a leader of a pro-Japanese organization at Tule Lake; had applied for repatriation or expatriation either before or after renunciation; had been segregated at Tule Lake because of a negative answer to question 28 or because of a denial by the WRA of leave clearance; had gone to Tule Lake Center voluntarily to be with his or her family; was now in Japan; was under alien-enemy removal orders.[154]

Judge Goodman rejected the Designation as inadequate proof to overcome the presumption that the renunciations were the result of coercion and pressure.[155] The government appealed.[156] In 1951, the Ninth Circuit reversed most of Goodman's decisions and remanded the case for further proceedings.[157] The court did affirm Goodman's decision as to all minors, eight persons of insufficient mental capacity, and rejected government arguments that it had sustained its burden of proof in the case of fifty-eight family members who simply accompanied a renunciant loved one to Tule Lake.[158]

However, the Ninth Circuit reversed the renunciations of eighty-three non-Tulean renunciants,[159] all "designated" (against whom the government was prepared to submit additional evidence) and all other competent adult renunciants.[160] It allowed the government ninety days to file further evidence and "[i]f within this ninety-day period of time, any of the renunciants were not designated by the Government by further evidence, the judgment invalidating the renunciation was to become final"[161]

In summary, what the Ninth Circuit did was revalidate the citizenships of approximately twenty-five percent of the plaintiffs.[162] Additionally, because the court agreed that "the oppressive conditions prevailing [at Tule Lake] . . . were in large part caused or made possible by the action and inaction of those government officials responsible" it established a rebuttable presumption for all Tuleans that their renunciations were involuntary.[163] But, once the government had met this burden, the burden shifted back to each plaintiff to show that his or her individual renunciation had been coerced.[164]

Unlike its findings in Murakami , the court now felt the "record shows the certainty that many of the 4315 plaintiffs who voluntarily renounced were disloyal to the United States."[165] This hardened attitude was reflected in a quotation of language approved of by the Supreme Court , that "the forsaking of American citizenship, even in a difficult situation, as a matter of expediency, with attempted excuse of such conduct later when crass material considerations suggest that course, is not duress."[166]

Interestingly, this quote was originally from the Doreau case, where the Third Circuit remanded a lower court decision voiding the citizenship of an ill and then pregnant American citizen, who, in France during the war, faced with the threat of going to a concentration camp, renounced her citizenship.[167] The Doreau court, in advising the lower court, in the sentences immediately prior to those chosen by Judge Denman, wrote:

If by reason of extraordinary circumstances amounting to true duress, an American national is forced into the formalities of citizenship of another country, the sine qua non of expiration is lacking. There is not authentic abandonment of his own nationality. His act, if it can be called his act, is involuntary. He cannot be truly said to be manifesting an intention of renouncing his country.[168]

Judge Denman, however, apparently wasn't thinking of World War II but of current conflicts when he wrote that in "a cold war, already existing when the cases were tried and now with the hot war in Korea, the federal courts should be more vigilant than ever that the massing of 4315 plaintiffs in two suits does not conceal the facts as to such enemy minded renunciants."[169] Judge Denman also quoted a 1948 opinion upholding the deportation of a German alien under the Alien Enemy Act where Justice Frankfurter wrote that "[i]t is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief . . . when the guns are silent but the peace of Peace has not come."[170]

Judge Denman held that the government had dual obligations to accept and apply the presumption of conditions at Tule Lake as found in the Murakami case and to prevent a restoration of citizenship to the disloyal.[171] In his new spirit of deference to the DOJ, Denman accepted "their good faith in discharging their obligation to the individual loyal renunciants and their duty to prevent the restoration of citizenship to the disloyal."[172]

What was the ultimate outcome of all this fear of enemy-minded Japanese-Americans lurking among the renunciants? "By spring 1959, of the 5,409 who applied for restoration of their citizenship, 4,987 were successful. By the time Collins concluded his efforts, March 6, 1968, nearly all of the 5,461 who renounced at Tule Lake had regained their citizenship. Nakamura estimates that all but 40 or 50 of those who sought restoration of their citizenship regained it."[173]

The story of the Japanese-American renunciants remains relevant today because government actors are once again making administrative decisions, now inside INS hearing rooms rather than an internment camp, that are depriving legal resident aliens of their ability to stay in this country for minor infractions.[174] Their story remains relevant because these citizens, by being labeled extra-judicially as disloyal were deprived of their due process rights, just as citizens now being labeled enemy combatants were.[175] In many instances Japanese-Americans were labeled disloyal because of an organization they belonged to,[176] the religion they professed,[177] or because they protested in one of the only ways they could against the total deprivation of their constitutional rights.[178] And, of course, they were initially characterized based simply on their race.[179]

Amitai Etzioni has labeled the invocation of the Japanese-American internment to present conditions regarding Arab and Muslim Americans as one of "extreme advocacy"[180] stating that "we have made great progress in this matter, to the point that no one -- not even on the extreme right -- as much as mentioned anything remotely resembling such acts."[181] I respectfully disagree.

After 9/11, we witnessed sporadic violence against anyone thought to be an Arab Muslim as well as irresponsible talk of revenge and retribution. It should be remembered that part of the cause of the internment was overwhelming public fear, as well as racism, and subsequent pressure on politicians to solve the Japanese problem. If another 9/11-type, or worse, attack were to take place, I fear that the extreme acts that Etzioni calls "repugnant" could once again become viable options for government.[182]

Caleb Carr has compared the time after Pearl Harbor to post 9/11 America by saying that:

for roughly eleven months after Pearl Harbor the severity of this sense of being victimized by a darkly mysterious and powerful enemy from the other side of the world threw America into roughly the same condition in which it found itself after September 11: confused, trying to marshal its forces without knowing exactly how, and not at all sure it could weather the storm intact.[183]

How did America in that comparable time react? We firebombed Japanese civilians in the Doolittle air raids.[184] As Carr notes, "[t]he age-old logic, that to fight a dirty enemy one must become dirty oneself had surfaced again."[185]

David Cole gives another historical example in the Palmer raids of 1919-1920 when, in response to politically motivated bombings, the DOJ rounded up "6,000 to 10,000 suspected immigrants in thirty-three cities across the country [many of whom turned out to be citizens and] . . . [i]n the end, 556 were deported, but for their political affiliations, not for their part in the bombings."[186]

Given these historical examples, if a biological or dirty bomb goes off in downtown San Francisco, it is obvious that the American public would demand swift and strong action from the government.[187] And, if it was further discovered that the deed was done by Arab Muslims operating out of the Oakland Islamic Center mosque, what options would the government consider? In that hypothetical situation, would the rounding up of some of the Bay Area's approximately 200,000 Muslim Arabs as a precautionary measure, maybe even under the pretext that it was for their own protection, be unthinkable?[188] American Muslims wouldn't doubt it. Certainly not the approximately 5,000 who were picked up after 9/11.[189] Responding to the fact that local mosques were under FBI surveillance after 9/11, Hatem Bazian, a UC Berkeley lecturer said, "It seems that the assumption, the attitude, is that Muslims are guilty and it is just a matter of catching them in the act."[190] And, isn't that exactly what history shows the Japanese-Americans in 1942 experienced?[191] Is it not possible that the FBI has already compiled the lists, just as it did prior to Pearl Harbor, that enabled it to round up the initial group of Japanese-Americans within a day?[192]

The fact that the most repressive Patriot Act measures so far have been aimed mostly at noncitizens should not make us complacent. As David Cole notes, "[v]irtually every significant government security initiative implicating civil liberties -- including penalizing speech, ethnic profiling, guilt by association, the use of administrative measures to avoid the safeguards of the criminal process, and preventive detention -- has originated in a measure targeted at noncitizens."[193]

In these uncharted waters of a "war" that is undeclared and perhaps never-ending, against an enemy who is unconventional and elusive, history must be our teacher. Japanese-American internment survivors are making pleas for us to see the similarity between what they went through and the potential threat to Arabs and Muslims today.[194] Should we not credit the wisdom they so painfully earned?

The experience of the Japanese internment and the renunciants contains valuable lessons regarding a host of fundamental issues. Not only should it alert Americans to be on watch to prevent the erosion of all people's civil liberties but it invites an opportunity to demand that our institutions live up to their duties in regard to the Constitution. Eugene Rostow, hardly an extreme advocate, in his seminal paper of 1945 regarding the internment cases, accused the Supreme Court of "establishing a precedent which may well be used to encourage attacks on the civil rights of citizens and aliens, and may make it possible for some of those attacks to succeed."[195] Although recognizing the war powers, as Chief Justice Hughes did, to be the power to wage war successfully, Rostow noted that "it is the power to wage war, not a license to do unnecessary and dictatorial things in the name of the war power."[196]

The story of the Japanese-American renunciants, of the manner and purpose for which 401(i) was passed and implemented, and of the over-two-decade-long legal battle the government waged against innocent citizens, is the epitome of injustice in the name of national security. Without citizen vigilance and "an appropriate procedure for reviewing decisions taken in the name of the war power" by the judiciary, democratic values in the post-9/11 America could be the next casualty.[197]

In 1798, James Madison wrote in a letter to Thomas Jefferson, "Perhaps it is a universal truth that the loss of liberty is to be charged to provisions against danger, real or pretended, from abroad." [198] Because our founding fathers understood this temptation, they wisely built into our Constitutional system of checks and balances protections for civil liberties. As the experience of the Japanese-American renunciants demonstrates, we should be wary that perceived danger does not cause us to yield to the temptation of security at any cost and, therefore, repeat our past mistakes.

ELLEN CLARE KENNEDY worked in retail stock brokerage firms before returning to school and obtaining a history degree from UC San Diego, and then a law degree from UC Hastings College of the Law. At Hastings she took a class with Professor C. Keith Wingate called "The Japanese Interment and the Law." She comments, "We were lucky enough to have Japanese-American visitors to our class and they are the ones who first emphasized the similarities between what is happening to Muslim-Americans now and their own experience. One gentleman was a "no-no" boy, now in his 80s, but I was struck by his fierce pride and the resentment he still felt as the "no-no" boys were shunned by those both within and outside the Japanese community for many years. Only now is that wound beginning to heal. It is a fascinating history."


1. See Ozawa v. United States, 260 U.S. 178, 192-195 (1922) (interpreting the Naturalization Act of June 29, 1906 to mean that only "white persons" and those of African nativity and descent were eligible for citizenship and that the "framers did not have in mind the brown or yellow races of Asia"). [Return to Text]

2. The McCarran-Walter Act of 1952 finally removed the "ineligible for citizenship" prohibition against Asians becoming American citizens. Eric K. Yamamoto, Et Al., Race, Rights and Reparation: Law and the Japanese American Internment 262 (2001) [hereinafter RRR]. [Return to Text]

3. These causes were determined and reported by the United States Commission on Wartime Relocation and Interment of Civilians in their report Personal Justice Denied: Report of the Commission on Wartime Relocation and Internment of Civilians (1997) [hereinafter CWRIC]. [Return to Text]

4. See Frank H. Wu, Difficult Decisions During Wartime: A Letter from a Non-Alien in an Internment Camp to a Friend Back Home , 54 Case W. Res. L. Rev. 1301, 1337-44 (2004) (capturing the confusion generated by the Selective Service and Leave Clearance questionnaires); RRR, supra note 2, at 215-22; Dorothy S. Thomas & Richard Nishimoto, The Spoilage: Japanese-American Evacuation and Resettlement During World War II 54-83 (1969) [hereinafter Spoilage ] (explaining the "loyalty/disloyalty" process as well as reactions to it which varied in each of the ten camps in a comprehensive, day-by-day fashion). [Return to Text]

5. "Tule Lake, in the Klamath Falls Basin just south of the Oregon border, was the biggest of the camps -- the first to open, in 1942, and the last to close, in 1946." Lornet Turnbull, WWII Brought Hard Choice for Some Japanese-American Internees, Seattle Times, June 30, 2004, jacitizen30m.html; RRR, supra note 2, at 225-26; Spoilage , supra note 4, at 84-85. [Return to Text]

6. Segregation from the other nine camps to Tule Lake and departure of "loyals" from Tule Lake occurred during the fall of 1943 and caused the center to become "a very complex, tense community." Barbara Takei & Judy Tachibana, Tule Lake Revisited: A Brief History and Guide to the Tule Lake Internment Camp Site 15 (2001). [Return to Text]

7. The initial number of persons requesting repatriation to Japan or renunciation is unclear. One Japanese-American newspaper reported that, "Attorney General Biddle testified that there were between '300 and 1000' persons of Japanese ancestry who had expressed a desire to renounce their citizenship and asked [for] expatriation." RRR, supra note 2, at 227. [Return to Text]

8. Hearings to consider Bills to Expatriate Certain Nationals of the United States; To Create a Japanese Deportation Commission, and to Deport Disloyal Japanese were held in January, 1944. Expatriation of Certain Nationals of the United States, House Committee on Immigration and Naturalization, House of Representatives, 78th Cong. (1944), microformed on CIS No. 78 H1008-9 (Cong. Info. Serv.)[hereinafter Hearings ). [Return to Text]

9. The reason no law existed was the fear that citizens would renounce their citizenship to avoid citizenship obligation such as military service or paying taxes. Hearings, supra note 8, at 34. [Return to Text]

10. Former Section 401(i) is now codified at 8 U.S.C. § 1481(6) (2005). [Return to Text]

11. The fact that Japanese-Americans were the target of the new exemption from the general rule that citizens on United States soil can not renounce their citizenship is well demonstrated by the commentary of Congressman and officials participating in the hearings. Hearings, supra note 8, at 1-64. [Return to Text]

12. Id. [Return to Text]

13. Id. [Return to Text]

14. See Acheson v. Murakami, 176 F.2d 953 (9th Cir. 1949); Barber v. Abo, 186 F.2d 775 (9th Cir. 1951); McGrath v. Abo, 186 F.2d 766 (9th Cir. 1951). [Return to Text]

15. Murakami, 176 F.2d at 954 (concluding that the conditions at Tule Lake made the renunciations void because they were "not the free and intelligent choices of appellees."). The issues surrounding the pro-Japanese Hokoku group is explored in Teruko Imai Kumei's " Skeleton in the Closet": The Japanese-American Hokoku Seinen-dan and Their "Disloyal" Activities at the Tule Lake Segregation Center during World War II, 7 Japanese J. of Am. Studies 67 (1996) This fascinating paper is based on interviews with eighteen former members of an organization, a variant of the Black Dragons, established at the Tule Lake Segregation Center. One Masaru Hashimoto is quoted as saying "we never threatened anyone." Id. at 81. See also for the viewpoint of the internment draft resistors movement. [Return to Text]

16. 8 U.S.C. § 1481(6) (2005). [Return to Text]

17. Korematsu v. United States, 323 U.S. 214, 216 (1944). [Return to Text]

18. Id. at 246. Justice Jackson warned prophetically in his dissent that: once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. Id. [Return to Text]

19. Richard Boucher, Spokesman, U.S. Department of State, Daily Press Briefing. Washington, DC (Oct. 12, 2004),1014-briefing.shtm. [Return to Text]

20. See David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003). [Return to Text]

21. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). Because the plea bargain with Hamdi was made after the submission of the case to the Court, the issue of renunciation was not part of the Court's considerations, although his due process rights as a citizen were. [Return to Text]

22. See Michele Malkin's controversial web site and book, IN DEFENSE OF INTERNMENT: THE CASE FOR " RACIAL PROFILING " IN WORLD WAR II AND THE WAR ON TERROR (2004) books.htm. Criticism of Ms. Malkin's book by scholars of the internment, Eric Muller and Greg Robinson, can be found at http// Fred Korematsu has also written an editorial in response to Ms. Malkin's book, saying, "It is painful to see reopened for serious debate the question of whether the government was justified in imprisoning Japanese-Americans during World War II. It was my hope that my case and the cases of other Japanese-American internees would be remembered for the dangers of racial and ethnic scapegoating." The full editorial is available at archive/2004/09/16/EDGP28P0T11.DTL. One of the most salient facts contradicting the military necessity argument is the example of the Hawaiian Japanese who represented 37% of the population, who were not interned and whose lives were "not dramatically interrupted by the war." Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans 379 (1990) In response to a DOJ report citing the Hawaiian Japanese situation as dangerous, the Military Governor of Hawaii, Commanding General Delos Emmons "dismissed the report as 'so fantastic it hardly needs refuting.'" Takaki, at 381. [Return to Text]

23. See generally CWRIC, supra note 3. [Return to Text]

24. There is now a voluminous scholarship on Asian Racism in California and the internment. A small sampling includes Keith Aoki, N o Right to Own?: The Early Twentieth-Century "Alien Land Laws" As a Prelude to Internment , 40 B.C. L. Rev. 37 (1998); Angelo N. Ancheta, Race, Rights and the Asian American Experience (1998); Sucheng Chan, This Bittersweet Soil: The Chinese in California Agriculture: 1860-1910 (1986); Cletus E. Daniel, Bitter Harvest: A History of California Farmworkers 1870-1941 (1981); Peter Irons, Justice At War: The Story of the Japanese American Internment Cases (1983); Carey McWilliams, Factories In The Field: The Story of Migratory Farm Labor in California (4th ed. 2000) (1935); Only What We Could Carry: The Japanese American Internment Experience (Lawson Fusao Inada, ed., 2000); Ronald Takaki, Ethnicity and Class in Hawaii: The Plantation and Labor Experience, 1835-1920, in Labor Divided: Race and Ethnicity in Unites States Labor Struggles, 1835-1960 (Robert Asher, et al. eds., 1990); Karl G. Yoneda, Ganbatte: Sixty-Year Struggle of a Kibei Worker (1983). [Return to Text]

25. At hearings held in San Francisco prior to the evacuation, then California State Attorney General (and shortly to be Governor), Earl Warren said that most law enforcements officers believed there was "more potential danger among the group of Japanese who were born in this country than from the alien Japanese who were born in Japan." Yoneda, supra note 24, at 121. "The boards of supervisors of sixteen California counties, including Los Angeles County, passed resolutions urging removal." Takaki, supra note 22, at 389. When Congressman John Ford heard that Attorney General Biddle was urging reason and restraint he said, "I phoned the Attorney General's office . . . and told them to stop fucking around. I gave them twenty-four hours notice that unless they would issue a mass evacuation notice I would drag the whole matter on the floor of the House and of the Senate and give the bastards everything we could with both barrels." Takaki, supra note 22, at 391. [Return to Text]

26. Examples include a L.A. Times editorial that stated, "A viper is nonetheless a viper wherever the egg is hatched -- so a Japanese American, born of Japanese parents -- grows up to be a Japanese, not an American." Takaki, supra note 22, at 391; and the oft-repeated quote from Hearst columnist Henry McLemore "I am for the immediate removal of every Japanese on the West Coast to a point deep in the interior. I don't mean a nice part of the interior, either. Herd 'em up, pack 'em off and give them the inside room in the badlands. Let 'em be pinched, hurt, hungry and dead up against it . . . Personally, I hate the Japanese. And that goes for all of them." Raineri, supra note 26, at 188. The national press joined in when Life magazine ran a degrading illustrated article entitled, How to Tell Japs From the Chinese on Dec. 22, 1941. Yoneda, supra note 22, at 119. [Return to Text]

27. Unfortunately the Western Command was led by Lieutenant General John L. DeWitt and Colonel Karl Bendetsen, Director of the Wartime Civil Control Administration (WCCA). DeWitt lied to the public that the Japanese-Americans were involved in sabotage and espionage as he was in possession of reports of investigations, from both the Office of Naval Intelligence and the FBI, that concluded that there was no sabotage or espionage and found that any proposed mass evacuation could not be justified for security reasons. RRR , supra note 2, at 294-318. FBI Director Hoover's opinion was that DeWitt's decision was based "primarily upon public and political pressure rather than on factual data." Takaki, supra note 20, at 386-87; DeWitt is infamous for his statement that, "A Jap is a Jap . . . It makes no difference whether he is an American; theoretically he is still a Japanese and you can't change him. . . . You can't change him by giving him a piece of paper." RRR , supra note 2, at 38; When asked by a Maryknoll priest, who ran an orphanage which included Eurasian children, which children should be sent to the relocation centers, "Colonel Bendetsen's reply was, 'I am determined that if they have one drop of Japanese blood in them, they must all go to the camp." Vivian McGuckin Raineri, The Red Angel: The Life and Times of Elaine Black Yoneda, 1906-1988 207-08 (1991) . The rule became one sixteenth of Japanese blood. Yoneda, supra note 24, at 129-30. [Return to Text]

28. Japanese-Americans were wildly successful farmers in California and competition for white farmers. So, when the Saturday Evening Post printed the following reaction of the manager of the Salinas Vegetable Grower-Shipper Association, he was simply stating the obvious. "We're charged with wanting to get rid of the Japs for selfish reasons . . . We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. . . . If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either. Wu, supra note 4 ,at 1321. [Return to Text]

29. RRR, supra note 2, at 39. Although some said Roosevelt was just too busy, ill or indifferent to the problems of the Japanese of California, it is interesting to note that in 1936, Roosevelt wrote in a memorandum to the Chief of Naval Operations: One thought occurs to me -- that every Japanese citizen or non-citizen on the island of Oahu who meets these Japanese ships or has any connection with their officers or men should be secretly but definitely identified and his or her name on a special list of those who would be the first to be placed in a concentration camp in the event of trouble. Thus, five years before the attack on Pearl Harbor, Roosevelt was already devising a plan for the imprisonment of Japanese aliens and citizens in a 'concentration camp' without due process of law." Takaki, supra note 22, at 390. [Return to Text]

30. RRR , supra note 2, at 196. [Return to Text]

31. Id. [Return to Text]

32. Milton S. Eisenhower, The President is Calling 117 (1974). Eisenhower reported that one governor "walked close to me, shook his fist in my face, and growled through clenched teeth: 'if you bring the Japanese into my state, I promise you they will be hanging from every tree'" Id. Only the Governor of Colorado, Ralph Carr "took a moderate and reasonable position" but he was the exception. Id. [Return to Text]

33. Id. Eisenhower reported that he "brooded about this whole episode on and off for the past three decades, for it is illustrative of how an entire society can somehow plunge off course." Eisenhower, supra note 32 at 125-26. [Return to Text]

34. RRR , supra note 2, at 194. "Of these, 90,491 were transferred from assembly centers; 17,491 were taken directly from their homes; 5,918 were born to imprisoned parents; 1,735 were transferred from INS internment camps; 1,579 were moved there after being sent from assembly centers to work crops, 1,275 were transferred from penal and medical institutions; 1,118 were taken from Hawaii; and 219, mostly non-Japanese spouses, entered voluntarily." Id . Caucasian, Korean, Chinese, Mexican and African American spouses "voluntarily" joined their spouses in the camps. Only, supra note 24, at 154. [Return to Text]

35. Spoilage, supra note 4, at 29. Most were located in remote desert areas with extreme temperatures of heat and cold. Takaki, supra note 22 , at 395. Camps were scattered through California (Manzanar, Tule Lake), Idaho (Minidoka), Utah (Topaz), Arizona (Posten, Gila River), Wyoming (Heart Mountain), Colorado (Granada), and Arkansas (Jerome, Rohwer). RRR , supra note 2, at 196. [Return to Text]

36. Takei, supra note 6, at 15; Spoilage, supra note 4, at 29. "Beneath the superficial appearances of normality, internees struggled with anger, despair, fear and anxiety. Camp life was monotonous, rife with exasperating and petty discomforts. There was drinking and gambling, and occasional beatings when temper flared." Takei, supra note 6, at 12-13. [Return to Text]

37. Spoilage supra note 4, at 40. Examples of early problems were wages being paid weeks late, clothing for those who performed dirty tasks didn't come, agricultural and industrial planning was scaled down, and schools for Japanese children had to wait while housing for Caucasian personnel came first. Id. [Return to Text]

38. Id. [Return to Text]

39. Eisenhower, supra note 32, at 122-125. Milton Eisenhower left the WRA after only three months and suggested Dillon Myer of the Department of Agriculture be his successor. Id. Myer would remain Director for the duration of the life of the agency. RRR , supra note 2, at 196. [Return to Text]

40. Spoilage, supra note 4, at 40. [Return to Text]

41. RRR , supra note 2, at 196. "By 1943, the WRA had designated four other categories of internees who would be allowed to leave the camps for specific purposes; 1) seasonal leave workers; 2) students; 3) those who found nonseasonal employment; 4) armed services volunteers." Id . at 197. [Return to Text]

42. CWRIC, supra note 3, at 217. DeWitt's assistant, Bendetsen, in preparing comments for DeWitt said, "Maybe our ideas on the Oriental have been all cock-eyed. . . . Maybe he isn't inscrutable." Id. One could posit a similar unspoken rationale behind current efforts to indiscriminately deport Muslim aliens on the flimsiest of INS violations. [Return to Text]

43. CWRIC, supra note 3, at 215-27. DeWitt wrote to General Marshall: "I feel that I wouldn't be loyal to you or honest to you, if I didn't say that it is a sign of weakness and admission of an original mistake. Otherwise - we wouldn't have evacuated these people at all if we could determine their loyalty." Id. at 216. In April of 1943, Dewitt, appearing before a House Committee on a different issue, took the opportunity to say that he saw as a problem "the development of a false sentiment on the part of certain individuals and some organizations to get the Japanese back on the West Coast. I don't want any of them here. They are a dangerous element. There is no way to determine their loyalty. . . . I am opposing it with every proper means at my disposal." DeWitt was politically astute enough not to directly state that the individuals he opposed were his superiors in the War Department. Id. at 221-23. [Return to Text]

44. See generally John H. Schaar, Loyality in America (1957); Henry S. Matteo, DeNationalization v. The " Right to Have Rights ": The StAndARD of Intent in Citizenship Loss (1997). [Return to Text]

45. Raneta Lawson Mack & Michael J. Kelly, Equal Justice in the Balance: America's Legal Responses to the Emerging Terrorist Threat 205 (2004). [Return to Text]

46. David Cole, Let's Fight Terrorism, Not the Constitution in Rights vs. Public Safety After 9/11: America in the age of terrorism 37 (Amitai Etzioni & Jason H. Marsh, eds. 2003). [Return to Text]

47. Schaar, supra note 44, at 17-18. "He who suffers this affliction [of being condemned as disloyal] is cast beyond the pale of society; he is Homer's 'tribeless, lawless, hearthless one,' and his path thereafter must move in those dark and shaded regions outside the friendly fires of clan and kin." Id. [Return to Text]

48. Matteo , supra note 44, at 12. [Return to Text]

49. Id. at 19 (citing 7 Co. Rep. 1a (1608)). Schaar notes that England's Treason Act of 1351 "cover[ed] motive as well as action, and ranged from mere utterances of seditious words to seduction of the queen and her daughters . . [and could be] stretched by ingenious royal judges and lawyers until, as Weyl put it, it would 'fit any neck'" Schaar, supra note 44, at 59. [Return to Text]

50. Schaar, supra note 44, at 59. [Return to Text]

51. Id. [Return to Text]

52. Id. [Return to Text]

53. Id. [Return to Text]

54. Id. at 31-32. Schaar notes that in Nazi Germany "conformity and 'loyalty' . . . [were] rated among the highest virtues." Id. at 32. [Return to Text]

55. Id. at 33-34. Schaar points out that citizens must also "shoulder the burden of responsibility for [their] judgment . . . if the majority acts immorally or imprudently it is your duty as a loyal citizen to agitate for the reversal of wrong or unwise actions. Until such agitation triumphs, you have but two choices: you may (you usually will) acquiesce in the decision, or you may take Thoreau's perilous path of civil disobedience." Id. at 36. [Return to Text]

56. CWRIC, supra note 3, at 245. "The loyalty questionnaire brought each evacuee a choice: would he believe the country's rhetoric and hope for his own future in the United States, or protest the squalid injustice of camp life and the betrayal of American promises?" Id. The questionnaires (one for draft-age Nisei and one for everyone else) "became one of the most divisive and wrenching episodes of the internment." RRR, supra note 2, at 216. The controversial questions were: Are you willing to serve in the armed forces of the United States on combat duty, wherever ordered? [and] Will you swear unqualified allegiance to the United States of America and faithfully defend the United States from any or all attack by foreign or domestic forces, and forswear any form of allegiance or obedience to the Japanese emperor, or any other foreign government, power or organization? RRR, supra note 2, at 216. A "no" answer to either question made you "an evacuee [that] was viewed with suspicion, determined to be disloyal, and possibly eventually segregated from the other internees." Id . For thousands of Japanese-Americans, the answers given would be the first step on the way to segregation, loss of citizenship, and a one-way trip to Japan. [Return to Text]

57. Schaar, supra note 44, at 61. This concept was even beyond the thinking of the Supreme Court in the Korematsu opinion where the "only concrete item pointed out to show disloyalty among evacuees was the fact that approximately 5,000 American citizens in the relocation camps had refused to swear unqualified allegiance to the United States, a fact that is meaningless without understanding conditions within the camps." CWRIC, supra note 3, at 238. [Return to Text]

58. CWRIC, supra note 3, at 206. The Enemy Alien Act of 1798 remains good law today. [Return to Text]

59. Id. at 207. DeWitt's plan called for surprise raids into the camps, putting segregants on trains to the Poston, Arizona and then deportation. Id. DeWitt would include all "who wished repatriation; parolees from detention or internment camps; or relocation camps; others whom intelligence services thought dangerous; and immediate families of segregants. The plan anticipated about 5,600 segregants." Id. The WRA rejected the plan because it "called for secrecy, military control, cancellation of normal activities, and it raised the probability of rioting and bloodshed." Id. [Return to Text]

60. Id. "Senator Chandler's Senate Committee recommended segregation, which [Assistant Secretary of Defense John J.] McCloy publicly (and Secretary [of Defense] Stimson privately) endorsed. The JACL [also] favored it." Id. at 208. [Return to Text]

61. CWRIC, supra note 3, at 209. It should be remembered that many who requested repatriation did so to avoid internee registration because the Tule Lake administration told them "registration is compulsory except for those had requested repatriation." Spoilage, supra note 4, at 75-76. [Return to Text]

62. CWRIC, supra note 3, at 209. At Tule Lake, they erected a "double eight-foot fence," increased the guard to a battalion, and lined up six tanks "conspicuously." Id. [Return to Text]

63. Id . "Most were there because they had requested repatriation or expatriation (39 percent), answered the loyalty questionnaire unsatisfactorily (26 percent) or were family of someone who was segregated (31 percent)." Id. The interesting fact that many of these internees were rural and unmarried farm laborers is worthy of additional study as to the extent that educational levels and either their lack of family ties or being the only son of Issei may have contributed to their willingness to renunciate. [Return to Text]

64. Id. Newcomers complained as their quarters had been stripped (even wood being ripped from walls), the best jobs were taken, and the food and environment of Tule Lake was inferior to their prior camps. Id. [Return to Text]

65. Id. In response to a work stoppage among farm workers, the administration solved the problem by announcing it was "firing the farm employees and bringing in a group of 'loyal' evacuees from other camps. Compounding the insult, food from evacuee warehouses was requisitioned to feed the new farm workers." Id. [Return to Text]

66. CWRIC, supra note 3, at 209-10. [Return to Text]

67. Id. These events did not go unreported by California's newspapers which reported events with headlines such as Ex-Official Describes Jap Riot in which an unidentified Tule Lake official said, "I quit because I like my sleep, and you can't sleep when you don't know when you're going to have your throat cut." S.F. Examiner , Nov. 5, 1943, at 1. The reporter went on to opine that concessions made show "that the Japs, not the WRA, run the Tule Lake Camp. The Japs are top dog and they know it. They are insolent,. and worse, to Caucasians. Their favorite indignity is to spit on white employes. [sic] Their youngsters take stations and wait for the school bus to drive past with children of the employes [sic]. Then the Japs bombard the bus with rocks." Id. [Return to Text]

68. CWRIC, supra note 3, at 211. [Return to Text]

69. Frank F. Chuman, The Bamboo People: The Law and Japanese-Americans 266 (1981). [Return to Text]

70. CWRIC, supra note 3, at 211. [Return to Text]

71. Id. They confiscated "contraband such as kitchen paring knives, sewing scissors, carpenters' and gardeners' tools." [Return to Text]

72. Id. [Return to Text]

73. Jacobus Ten Broek et al., Prejudice, War and the Constitution 175 (1968) [hereinafter Ten Broek]. Congressman Martin Dies, Jr., Democrat of Texas, was Chairman of the House Un-American Activities Committee from 1938 to 1945. [Return to Text]

74. Id. "[R]epresentatives in Congress from the West Coast sought measures to deprive the 'disloyal' of their American citizenship" as well. Id. [Return to Text]

75. Hearings, supra note 8. The four days of Congressional hearings and later Senate consideration represent more time than the almost complete lack of debate during passage of the USA Patriot Act in 2001, despite its civil liberties implications. Russell Feingold, the only Senator to vote against the Act, spoke of his frustration at the rush to pass this legislation: As some of you know, I raised a few of these issues during our debate on the bill on Thursday night. I had to wage war with my own leadership over the previous two days to get that opportunity. The leadership of both parties wanted to take this bill, which was never considered or voted on in the Judiciary Committee, and rammed it through the U.S. Senate without a single amendment being offered. In the end, the high water mark for my three amendments was 13 votes - that was on the amendment to the computer trespass provision. Prior to that vote the majority leader of the Senate stood up and implored the Senate to vote down all of my amendments, not on their merits, but because a deal had been struck on this bill. This was not, in my view, the finest hour for the United States Senate. The debate on a bill that may have the most far reaching consequences on the civil liberties of the American people in a generation was a non-debate. The merits took a back seat to the deal." Senator Russell Feingold, Address at the Associated Press Managing Editors Conference (Oct. 12, 2001). The balance of Senator Feingold's remarks are available online at http://www.[Return to Text]

76. Hearings, supra note 8, at 5. [Return to Text]

77. Hearings, supra note 8, at 13-14. [Return to Text]

78. Id. at 16. [Return to Text]

79. Id. at 20. [Return to Text]

80. Id. at 32. [Return to Text]

81. Hearings, supra note 8 at 21-23. [Return to Text]

82. Id. at 46. [Return to Text]

83. Id. There were 5,961 births in the internment camps and 1,862 deaths which included suicides. War Relocation Authority, The Evacuated People: A Quantitative Description (1946). [Return to Text]

84. Hearings, supra note 8, at 46. [Return to Text]

85. Id. [Return to Text]

86. Ten Broek, supra note 72, at 176. [Return to Text]

87. Id. The form required "some biographical data about the applicant and included the statement, 'I fully understand that if permitted to renounce my United States nationality I will divest myself of all rights and privileges thereunto pertaining." Id. [Return to Text]

88. Id. During the summer of 1944 the "pro-Japanese opposition at Tule Lake emerged from an underground pressure group to a highly formalized, institutionalized organizations, with a frankly nationalistic and exhibitionalistically disloyal program." Id. These activities were carried on with the full knowledge and acquiescence of the administration at Tule Lake. [Return to Text]

89. Ten Broek, supra note 73, at 176-77. [Return to Text]

90. Spoilage , supra note 4, at 333. [Return to Text]

91. Id. Some White House and Supreme Court coordination seems evident as the exclusion rescission was ordered just hours before the Supreme Court handed down, on December 18, the Korematsu and Endo decisions. RRR , supra note 2, at 232. [Return to Text]

92. Spoilage , supra note 4, at 333-34. [Return to Text]

93. Id. at 334. [Return to Text]

94. Id. "No explanation of the basis of classification was made to the evacuees other than that 'those who have definitely indicated they are not loyal to the United States or are considered potentially dangerous to the military security . . . will continue to be excluded." Id. [Return to Text]

95. Id . Some residents didn't believe these orders would affect them and others were anxious. One young Nisei Hokoku member asked, "Does this mean that they're quickly going to call off the whole party; that the last few years [they] have just been kidding around; that repatriation and segregation, . . . which we were told to take seriously, is just a big joke?" Id. at 336. [Return to Text]

96. Spoilage , supra note 4, at 336-37. Most aliens answered affirmatively to the loyalty question and the Nisei maintained their negative answers. Adding to the confusion, a rumor started that the Army Hearings were really all about induction because the Army issued no orders and held no hearing for females. Id. [Return to Text]

97. Id . People testified that "A friend of my brother told the soldier that he was a repatriate and loyal to Japan, but he was still handed a permit to leave camp provided he does not go to certain excluded areas." Id. at 337. [Return to Text]

98. Id. at 338. [Return to Text]

99. Ten Broek, supra note 73, at 177. In Jan. 1945, 3,400 citizens at Tule Lake applied for renunciation. [Return to Text]

100. Spoilage , supra note 4, at 338-39. [Return to Text]

101. Id. at 339. [Return to Text]

102. Spoilage , supra note 4, at 341. When DOJ official John Burling arrived at Tule Lake to begin renunciation hearings, he was introduced to the Hokoku members and proceeded to investigate the group. "He made it apparent, both to them and to other residents, that their activities were subversive and, if continued, would lead to internment in a Department of Justice camp for potentially dangerous enemy aliens." Id. at 332; Upon his return to Washington he advised Biddle to accept the Hokoku applications for renunciation immediately and on December 27, "seventy members. . . (sixty-four of whom were officers) were removed to the detention camp at Santa Fe for internment as 'undesirable enemy aliens.'" Why Tule Lake Director Best, the directors before him, or WRA head Dillon Myer had not recommended this move long before is unknown. On the contrary, Best had provided Hokoku with office space to carry on its pro-renunciation activities that put additional pressure on the internees. Takei, supra note 6, at 18. [Return to Text]

103. Spoilage , supra note 4, at 341. One internee reported: "All of us wanted to get away from this pressure. So we shaved our heads to act as if we belonged to the Hokoku . At one time, there were only three long-haired men in my block. A lot of people will start looking for trouble, trying to be sent to Santa Fe." Id. at 342. Another reported that "even the old ladies are running around in slacks yelling 'Wash-sho!'" Id. [Return to Text]

104. Id. at 342. [Return to Text]

105. Id. at 339, 345. The punishment of being sent to Santa Fe was viewed by those afraid to go outside the camps as a reward . The Hokoku leaders "were being removed from the now insecure Tule Lake to haven of an internment camp from which resettlement and military induction were alike impossible." Id. at 339. [Return to Text]

106. Id. at 343. [Return to Text]

107. Spoilage , supra note 4, at 344. [Return to Text]

108. Id. [Return to Text]

109. Id. at 345. [Return to Text]

110. Id. [Return to Text]

111. Id. Even Governor Earl Warren was now calling upon "'all Americans' to comply 'loyally, cheerfully, and carefully' with the War Department on revoking the mass Japanese evacuation." Id. at 345-46. [Return to Text]

112. Id. at 345-46 (citing the Pacific Citizen as of Jan. 27, 1945). [Return to Text]

113. Spoilage , supra note 4, at 346 (citing the Colorado Times , Japanese Section, Jan. 27, 1945). [Return to Text]

114. Id. at 347. [Return to Text]

115. Id. at 355-56. [Return to Text]

116. Id. [Return to Text]

117. Id. [Return to Text]

118. Id. (citing correspondence from Edward J. Ennis, Chief of DOJ's Alien Enemy Control Unit, to Ernest Besig, Director of the American Civil Liberties Union Northern California, Aug. 22, 1945). [Return to Text]

119. Ten Broek, supra note 73, at 178. [Return to Text]

120. Ten Broek, supra note 73, at 178 . This author's crude calculations based on a seven day week, ten-hour day would mean that someone could lose their citizenship in an average of 23 minutes. In reality much of the testimony of internees indicates they spent much less time with the hearing officers. See generally Spoilage , supra note 4. Despite being told by Biddle to be extra vigilant for signs of coercion, over 93% of the renunciations were approved. Id. [Return to Text]

121. Ten Broek, supra note 72, at 178 . [Return to Text]

122. Id. [Return to Text]

123. I d. at 178-79. [Return to Text]

124. Id. Wayne Mortimer Collins (1900-1974) became a hero to many Japanese-American renunciants and would continue to battle in court for their citizenship rights until 1968. His papers are located at UC Berkeley's Bancroft Library and the finding aid to that collection is online at [Return to Text]

125. Ten Broek, supra note 72, at 179. [Return to Text]

126. Id. at 179-80. [Return to Text]

127. Id. "Through February 23, 1946, a total of 4,406 residents of Tule Lake had also left. Of these, 1,116 were renunciants who did not apply for a mitigation hearing, 1,523 were aliens, and 1,767 were American citizens. Of the citizens, all but 49 were the minor children of aliens or renunciants. By July, 4,724 persons had left for Japan from Tule Lake and other centers. All in all, some eight thousand persons of Japanese descent left for Japan between V-J Day and mid-1946." Id. at 180-81. [Return to Text]

128. Id. at 180. Many renunciants were now in a "legal status without precedent." CHUMAN, supra note 69, at 269. Those "born after 1924 and whose parents had not formally registered their births with the Japanese consul were now stateless. Those born before 1924 and who had been dual citizens were now aliens ineligible for citizenship in the land of their birth." Id. [Return to Text]

129. Abo v. Williams, 76 F. Supp. 664 (1947) ( partially aff'd and partially rev'd, Barber v. Abo, 186 F.2d 775 (9th Cir. 1951). To avoid confusion since both companion cases begin with Abo, I have cited both parties names for clarification. Note also the subsequent substitution of INS Director Barber's name for former INS Director Williams. Additionally, the part of Judge Goodman's opinion addressing the issue of deportation was reported in Ex parte Abo, 76 F. 2upp 664 (1947). [Return to Text]

130. 77 F. Supp. 806 (1948) ( partially aff'd and partially rev'd, McGrath v. Abo, 186 F.2d 776) (9th Cir. 1951). Note the subsequent substitution of Attorney General McGrath's name for former Attorney General Clark. Wayne Collins' plaintiffs began with a core group of 975. This expanded to approximately 2300 by 1948, including 264 who were not released but scheduled for deportation. By the time the group reached the Ninth Circuit in McGrath v. Abo, the plaintiffs numbered 4,315. [Return to Text]

131. Barber v. Abo, 186 F.2d 775, 776 (9th Cir. 1951). [Return to Text]

132. Ex parte Abo, 76 F. Supp. at 665. [Return to Text]

133. Id. at 666-67. [Return to Text]

134. Id. at 667. [Return to Text]

135. Abo v. Clark, 77 F. Supp 806, 808 (1948) (listing factors including internal pressures by pro-Japanese factions, parental pressures, fear of community hostility on release, and the belief that the government would deport them anyway). [Return to Text]

136. Kuwabara, 56 F. Supp. 716 (1944). [Return to Text]

137. Abo v. Clark, 77 F. Supp at 808. [Return to Text]

138. Section 401(i) was recodified as 801(i) in 1944. [Return to Text]

139. Abo v. Clark, 77 F. Supp at 808. [Return to Text]

140. Id. at 809 (emphasis added). [Return to Text]

141. Id. at 810. [Return to Text]

142. Id. [Return to Text]

143. Abo v. Clark, 77 F. Supp . at 811. The court might also have added Justice Holmes's comments in Union Pac. R.R. Co. v. Public Serv. Comm'n, 248 U.S. 67, 70 (1918) explaining that ''conduct under duress involves a choice, it always would be possible for a State to impose an unconstitutional burden by the threat of penalties worse than it in case of a failure to accept it, and then to declare the acceptance voluntary." [Return to Text]

144. Id. [Return to Text]

145. Id. at 812. [Return to Text]

146. Murakami, 176 F.2d at 965-966. [Return to Text]

147. Murakami, 176 F.2d at 954. [Return to Text]

148. Id. at 955. [Return to Text]

149. Id. at 958. [Return to Text]

150. Id. at 954. Hence, the court attached as an exhibit the entire Findings of Fact and Finding of Law of District Court Judge Mathes to its opinion. These findings outlined the many oppressive conditions and incidents of violence and coercion that led people to renunciate. Id. at 960-66. [Return to Text]

151. From a Silk Cocoon: A Japanese-American Renunciation Story, 4 (2004) http.//www.fromasilkcocoon. com/renunciant.html. This website quotes Tetsujiro "Tex" Nakamura, who worked with Wayne Collins, as saying that the Murakami decision allowed the DOJ to create "an administrative procedure to cull the 'loyal' from the 'disloyal'" and led to the Ninth Circuit decision to find that Judge Goodman "erred in lumping the renunciant cases, leaving Collins to battle the 'disloyal' designation the DOJ assigned to his individual clients." From a Silk Cocoon", a documentary film about the renunciants, made its World Premiere at the 23rd San Francisco International Asian American Film Festival (SFIAAFF) on Monday, March 14th, 2005. [Return to Text]

152. McGrath v. Abo, 186 F.2d 766 (9th Cir. 1951). [Return to Text]

153. Ten Broek, supra note 73, at 182. [Return to Text]

154. Id. The vilification of all Kibei ignores that many served honorably during WWII. Yoneda, supra note 24 at 145-46. [Return to Text]

155. Ten Broek, supra note 73, at 182. [Return to Text]

156. Id. [Return to Text]

157. Ten Broek, supra note 73, at 183. [Return to Text]

158. Id. at 318. [Return to Text]

159. McGrath v. Abo, 186 F.2d at 774. The Court stated that "it was obvious such persons do not have the benefit of any presumption arising from the defendant's action at Tule Lake." Id . [Return to Text]

160. Id. The Court held that it was error for the lower court not to have consider the government's proof regarding this group which included "Kibei who spent their formative years in Japan and had been active members of pro-Japanese groups at Tule Lake." Id. [Return to Text]

161. Chuman, supra note 69, at 275-76. [Return to Text]

162. Ten Broek, supra note 73, at 318. [Return to Text]

163. McGrath v. Abo, 186 F.2d at 774. [Return to Text]

164. McGrath v. Abo, 186 F.2d at 774. [Return to Text]

165. Id. at 772. Judge Denman seemed particularly disturbed that some renunciants had not request their citizenship back "until after the atomic bombing of Hiroshima and Nagasaki had made it clear that the Japanese cause was hopeless." Id. [Return to Text]

166. McGrath v. Abo, 186 F.2d at 772 (citing Savorgnan v. United States, 338 U.S. 491, 502 (1950) quoting Doreau v. Marshall, 170 F.2d 72, 724 (1948)). Savorgnan dealt with an American woman who, before marrying an Italian citizen, applied for Italian citizenship thereby also signing an oath, in Italian, expressly renouncing her American citizenship and swearing her allegiance to the King of Italy. Except for six months spent in Germany, she lived with her husband in Italy from 1941 to 1945. The Supreme Court held that she had voluntarily renounced her citizenship. Perhaps Murakami is the inexplicable opinion and the McGrath viewpoints were closer to Judge Denman's normal mindset. After all, Judge Denman dissented in the certification of Hirabayashi which had urged the validity of the relocation orders and which were later upheld in Korematsu . Murakami, 176 F.2d at 966. [Return to Text]

167. Doreau v. Marshall, 170 F.2d 721 (1948). [Return to Text]

168. McGrath, 186 F.2d at 724. [Return to Text]

169. Id. at 772. If this was truly Denman's concern, might not a more equitable solution have been to remand for more substantial evidence of enemy-mindedness rather than put thousands of loyal Japanese-Americans through the hardships his decision would dictate. Why did he ignore the outcome of the DOJ's mitigation hearings where the DOJ had already decided who was truly dangerous? While these must remain unanswered questions, I would argue that it is not pure speculation to credit at least part of Denman's change of heart to the fact that America was once again at war with Asians in Korea who were being assisted by the Communist Chinese. [Return to Text]

170. Ludecke v. Watkins, 335 U.S. 160, 170. (1948). This case further held that barring questions of interpretation and constitutionality, the Alien Enemy Act of 1798 precluded judicial review. [Return to Text]

171. McGrath v. Abo, 186 F.2d at 771. [Return to Text]

172. Id. at 774. [Return to Text]

173. From a Silk Cocoon: A Japanese-American Renunciation Story , supra note 151, at 5. [Return to Text]

174. Cole, supra note 46, at 40 (explaining that the Patriot Act allows the INS to detain aliens indefinitely, even where they have prevailed in their removal proceedings). Speaking of the detentions following 9/11, Attorney General Ashcroft "noted than when Robert Kennedy was attorney general, it was said that he would arrest mobsters for 'spitting on the sidewalk.' Ashcroft updated the warning, telling 'terrorists' that if they overstayed their visas -- 'even by one day' -- they would be arrested and detained." Cole, supra note 20, at 22. [Return to Text]

175. The Hamdi court held that citizens detained as enemy combatants have due process rights, including the right to notice of the factual basis for that classification by a neutral decisionmaker, and the right to challenge that classification at an appropriate hearing with counsel, none of which was given to the Japanese-Americans. Hamdi, 1245 S. Ct. at 2635-2651. [Return to Text]

176. RRR , supra note 2, at 96. The "ABC" list compiled by the FBI before Pearl Harbor included more than 2,000 Japanese immigrants who were "leaders of Japanese-American civic groups, businessmen, language teachers, . . . and martial arts instructors." Id. [Return to Text]

177. Id. The "ABC" list also included Buddhist priests. Id. [Return to Text]

178. Beside renunciation, refusal to be drafted was a path that some Japanese-Americans took to protest the degradation of their rights. Although the resistors would be pardoned in 1947 and have all their civil rights restored, their ostracism within the Japanese-American community is only now, a half century later, beginning to heal. See Eric L. Muller . Free to Die for Their Country (2001); supra note 15; Heart Mountain Symposium Article, 1 Wyo. L. Rev. 471 (2001). [Return to Text]

179. See supra text accompanying note 3. [Return to Text]

180. Amitai Etzioni, Introduction: Rights and Responsibilities, Post 9/11 in Amitai Etzioni & Jason H. Marsh, Editors Rights vs. Public Safety After 9/11: America in the age of terrorism xiv (2003). [Return to Text]

181. Id. [Return to Text]

182. Etzioni, supra note 180, at xiv. [Return to Text]

183. Caleb Carr, The Lessons of Terror, 179 (2002). [Return to Text]

184. Id. at 179. [Return to Text]

185. Id. at 181. [Return to Text]

186. Cole, supra note 46, at 36-37. [Return to Text]

187. Anthony Lewis, GIVE ME LIBERTY: INDIVIDUAL RIGHTS IN A TIME OF WAR 13 Media L. & Pol'y 6 18 (2004). Fear is a powerful motivator. Commenting on Americans' lack of outrage at the Guantanamo prisoners, Lewis opines:The basic reason for the lack of American public concern must be fear. The attacks of September 11 were traumatic, making us feel more vulnerable than we had in living memory. And the fact is that there is more reason to fear more terrorist outrages than to fear critical speech in World War I or disloyalty by Japanese-Americans in World War II. The repression of civil liberty accompanying the present fear is especially dangerous, I think, because it has no time limit. Wars are usually over in a few years. After them, Americans have tended to regret abuses done in the name of security. We eventually apologized to the Japanese-Americans who were removed from their homes on the West Coast and confined in desert camps. But it is hard to imagine or even define an end to the war on terror. The terrorists are not going to sign a surrender. Id. [Return to Text]

188. Jonathan Curial, Muslims Find Bay Area Leans Toward Tolerance But Even Here, Many Experience 9/11 Backlash, S.F. Chron. , Sept. 10, 2004. http: 09/10/MUSLIMS.TMP. [Return to Text]

189. Lewis, supra note 184, at 13. Lewis estimates that in weeks after 9/11, Attorney General Ashcroft ran a program of mass detention of aliens, targeting mainly Muslims and Arabs, on suspicion that they had a connection to terrorism. . . . [and that] [t]he total number detained in this and other Ashcroft programs is probably around 5,000. Many of those arrested were held for long periods in jail, weeks or months. In the words of a New York Times legal writer Adam Liptak, their treatment "inverted the foundation principles of the American legal system." They were arrested essentially at random, without probable cause to believe they were supportive of terror. They were held for long periods without charges. They were treated as guilty until proven innocent - detained, that is, until a lengthy F.B.I. process concluded that they 'posed no danger to the United States.' Eventually, nearly all were charged with violations of immigration law, such as overstaying visas or a visiting student failing to inform the government of a change of courses. Many were held for months after judges ordered them released or after they had agreed to leave the country. What was done to those detainees in prison is hard for an American - this one, anyway - to believe." Id. [Return to Text]

190. Tanya Schevitz, FBI Watch on Mosques No Surprise to SF Bay Area Muslims, S.F. Chron. , Oct. 5, 2002. [Return to Text]

191. Yoneda, supra note 24, at 117. On Dec. 11, 1942, Karl Yoneda, a San Franciscan resident, saw a large poster being sold that said, "Jap Hunting Licenses -- Issued Here -- Open Season Now -- No Limit." After receiving no relief from law enforcement, Yoneda located the printer and got him to stop printing them. Id. . Yoneda purchased the fifteen-cent poster and brought it home to his wife. He also reported that "[r]umors about Japanese spies infiltrating military areas were growing thicker and daily slanderous radio attacks on Nikkei were getting more vicious. Chinese and Koreans began wearing 'Chinese American' and 'I'm a Korean' buttons . . . [and] 'Remember Pearl Harbor' bumper stickers appeared on vehicles." Id. [Return to Text]

192. RRR , supra note 2, at 96. See supra text accompanying note 174. [Return to Text]

193. Cole, supra note 20, at 85. [Return to Text]

194. The author heard firsthand internment survivors' concerns expressed for Muslim Americans during their visit to Professor C. Keith Wingate's "Law and the Japanese Internment" seminar in Fall, 2004 at UC Hastings College of the Law. [Return to Text]

195. Eugene Rostow, The Japanese American Cases -- A Disaster, 54 Yale L.J. 489, 491 ( 1945). [Return to Text]

196. Id. at 530. [Return to Text]

197. Id. at 531 . See also Erik K. Yamamoto, Korematsu Revisited -- Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time For a Better Accommodation on National Security Concerns and Civil Liberties, 26 Santa Clara L. Rev. 51-59 (1986). [Return to Text]

198. Cole, supra note 20, at 8. [Return to Text]

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