Clash of Legal Arguments in “Civil Liberties Case of the Century:” Final briefs filed in Hirabayashi v. U.S.

by Frank Abe
special to the Pacific Citizen
(scheduled for publication November 15, 1985)

A U.S. District Court Judge in Seattle is expected to rule sometime before Christmas in the case of Gordon Hirabayashi, a Seattle-area native who accuses the wartime U.S. Government of withholding evidence that could have changed the outcome of his Supreme Court challenge to the forced expulsion and incarceration of 120,000 Japanese Americans.

The ruling will focus on narrow grounds – Hirabayashi’s appeal of his convictions for violating military curfew and evacuation orders – but the findings entered by Judge Donald Voorhees could clear the legal record surrounding the Japanese American wartime cases.

Attorneys made their final arguments in written briefs filed with the court.  Many witnesses were called in a two-week trial held in June, but the case hinges on thousands of pages of documents.

In closing briefs filed on July 31 and October 4, Hirabayashi’s attorneys contend the U.S. Government in 1943 developed a “win-at-all-costs campaign” in its earnestness to have the Supreme Court find its curfew and evacuation orders to be constitutional. They accuse the government of suppressing “vast amounts of information, including military and intelligence reports, which directly refuted Government claims of military necessity.” They also argue the government in 1985 has raised “transparently groundless” issues in its “unwillingness to acknowledge its own misconduct” of 42 years ago.

Justice Department attorneys argue no misconduct occurred, that the allegedly suppressed reports represent nothing more than “internal dissenting policy views which were not adopted” by the government. In a brief delivered September 4, they also contend that purportedly new information used to bring Hirabayashi’s “collateral attack” on his conviction was available to him as early as 1949, so that Hirabayashi has failed to “carry the heavy burden he must bear to overturn these forty year old misdemeanor convictions.”

Hirabayashi’s lead attorney, Rod Kawakami, argues the government “carefully tailored” its evidence “to paint a false and misleading picture of imminent threat to the security of the West Coast,” despite receipt of military and intelligence reports that repudiated the need for a program of mass exclusion for Japanese Americans. Those reports, recently discovered in the government’s own archives, were filed by Lt. Cmdr. Kenneth Ringle of the Office of Naval Intelligence, Agriculture Department employee and businessman. Curtis Munson. the Federal Communications Commission, the F.B.I., and Army Intelligence.

Kawakami says Munson was part of an “informal intelligence system” operated for the personal benefit of President Roosevelt through journalist John Franklin Carter, “who helped Roosevelt obtain information and estimates by exploiting sources outside the Government.” The attorney says Munson gathered intelligence “under the guise of being a Government official.” Kawakami
portrays Ringle as “an expert on the Japanese American population” working for the agency “primarily responsible for investigation of the ethnic Japanese population” – Naval Intelligence. According to Kawakami, both operatives concluded that the great majority of Japanese Americans were loyal to the United States and that “the potentially disloyal were readily identifiable,” consisting mostly of the Kibei – second generation Americans educated in Japan – and members of actively pro-Japan organizations. Kawakami says the Munson and Ringle reports concluded the government should institute only a selective evacuation, not a wholesale one.

The F.C.C. and F.B.I. reports, says Kawakami, do not substantiate a single allegation of shore-to-ship signaling or illicit radio transmission, nor, he says, do they provide a shred of evidence to bear out suspicions of espionage or sabotage on the part of Japanese Americans.

Kawakami says Hirabayashi’s criminal convictions were upheld on the basis of “racist characterizations” which the government told the high court should be accepted as facts. Among those characterizations: that Japanese Americans were by race, religion and culture predisposed to disloyalty; that Japanese Americans were somehow involved in the attack on Pearl Harbor; and that disloyal Japanese Americans were organized into a “fifth column” ready to aid an “imminent” Japanese attack on the West Coast. Should the government have been required back up those assertions in court, Kawakami says the Ringle, Munson, F.C.C., F.B.I., and Army Intelligence reports would have refuted them.

Hirabayashi’s star witness, former Justice Department official Edward Ennis, testified this summer that his office knew of the disputed reports but did not disclose them at the time to the Court or to Hirabayashi. He also testified that he too believed only a selective roundup was necessary.

Government attorney Victor Stone argues the views of Ringle and Munson were those of lower-level officials which were not adopted by their superiors. Their reports, according to Stone, contain no “hard intelligence data … which could have been considered exculpatory.”

Internal F.B.I. memos offered by Stone show that Curtis Munson once admitted having “no knowledge of … investigative work,” that 26 years prior to World War II he’d been employed as a “cub reporter for three months,” and that two days after Pearl Harbor he’d bragged to an F.B.I. field chief that “he had better access to President Roosevelt than the director of the F.B.I.” Stone dismisses Munson’s reports as “colorful and unprofessional,” and he says F.B.I. memos found Munson’s conclusions to be “purely theoretical and conjectural.” Stone argues the Ringle report was circulated under a disclaimer that it did not represent the final views of Naval Intelligence. He also points out that a shortened version of Ringle’s report was submitted to the Court in the form of an unsigned article published in Harper’s magazine.

DeWitt’s Report

Kawakami contends the West Coast commander’s Final Report on the incarceration originally stated a racial – and therefore unconstitutional–basis for the curfew and evacuation orders. In the first version of his report, General John DeWitt is shown to have insisted that the loyalty of individual Japanese Americans could never be determined no matter how long they were interviewed or interrogated. In a cover letter to his Final Report, DeWitt spoke of “an urgent need” for his material by the Supreme Court as it heard Hirabayashi’s constitutional challenge.

In telephone transcripts and telegrams offered by Kawakami, Assistant Secretary of War John J. McCloy appears alarmed at the racial implications of De Witt’s statements.    Kawakami believes this “true expression of the racial basis for DeWitt’s curfew and exclusion orders should have been disclosed. Instead, Kawakami argues “a trail of documents” shows McCloy and Army Colonel Karl Bendetsen – DeWitt’s aide – collaborated to remove from DeWitt’s report the tinge of racial bias; the government’s new premise, according to Kawakami, was that it did not have the time or “the ready means” with which to sort out the loyal from the disloyal.

The alteration of the Final Report and the subsequent recall and destruction of nearly all copies of the printed and bound first version, Kawakami contends, “allowed the government to present after-the-fact, tailored and more defensible arguments to the Court rather than the actual indefensible justifications,” which Kawakami contends were more racial than military. In the end, DeWitt’s report was not shown in any form to the Supreme Court in Hirabayashi’s case.

The government’s Stone casts a different light on those events, arguing the War Department considered the first version of DeWitt’s Final Report to be nothing more than “a galley proof and not meant to constitute ‘a thing of finality.'” He also contends DeWitt “decided to make his own changes,” adopting “most of the War Department’s suggestions.”

Stone acknowledges that most copies of the early drafts and their printing plates were recalled and destroyed, but he says the very discovery of the allegedly hidden documents is proof that “two copies of the first printing and two copies of the second printing were each carefully preserved and inventoried … all the documents still exist. None have been intentionally destroyed.” All other copies of the first version of DeWitt’s Final Report were destroyed, says Stone, in accordance with the procedures then prevailing in World War II.

MAGIC cables

Stone urged the judge to lend greater weight to the thousands of intercepted Japanese diplomatic cables which were given the overall code name MAGIC. Stone argues the deciphered messages show that the Japanese in 1941 believed they had “recruited some ‘second generation’ Japanese Americans in West Coast airplane factories and in the United States Army” as spies.

By tracing the distribution of this “most important source of wartime intelligence data,” to DeWitt, McCloy, Bendetsen, Naval Intelligence and the F.B.I., Stone purports to show that the information gleaned from the MAGIC cables “lay behind the fears of the leaders of the professional intelligence community” –  fears that the Japanese American community harbored spies or saboteurs ready to undermine U.S. defenses. Stone says it was accepted at the time that the then-classified material could not be brought out in public at a time when the U.S. was still fighting the war. What the government faced in 1942, according to Stone, was a “difficult decision during wartime in a declared war zone, and under those conditions its actions were rational and therefore minimally acceptable.”

At trial the government’s witness, David Lowman, testified that the cables named “a half-dozen or so” Japanese Americana, but a rebuttal witness, retired Lt. Col. Jack Herzig, dismissed five of the six names as those of Japanese consular employees, not Japanese Americans (see “WW2 accusation still haunts Nisei attorney,” Pacific Citizen, July 19, 1985.)

Kawakami attacks the MAGIC cables as “totally irrelevant” to the issues of government misconduct and denial of due process. “There is not a single cable nor group of cables taken collectively,” he argues, “which can reasonably demonstrate that recruitment efforts were successful. There was never any evidence of a second generation espionage network which operated for Japan. No Japanese American was ever convicted of espionage or sabotage activities in the U.S.”

He characterizes the data that was transmitted to Tokyo as “publicly available information,” such as the Congressional testimony of a Boeing Company president, the public statements of General DeWitt, and military plane production figures copied out of the Los Angeles Times. Kawakami also contends “there is no evidence which even suggests that DeWitt utilized … the information from the intercepts as a basis for his decision to order evacuation.” He points out that Naval Intelligence and the F.B.I. – the two agencies responsible for domestic security – concluded after further investigation that there was still “no factual basis or need for the military orders.”

In closing, Stone recites the legal barriers to reopening a case simply to take advantage of more favorable treatment in the climate of later years. He says two books, Carey McWilliams’ 1944 Prejudice: Japanese Americans – Symbol of Racial Intolerance and Morton Grodzin’s 1949 Americans Betrayed, recount “in great detail” the internal government controversies involving the F.C.C., F.B.I., and Ringle reports. The essence of the Ringle report, he adds, was published in Harper’s magazine in 1942.

Stone compares Hirabayashi’s case to the class action lawsuit filed by William Hohri and the National Council for Japanese American Redress.  With essentially the same books and public records offered by the government in that case, Stone says the judge decided that “documents concealed from the Supreme Court in 1944 became public and were available to diligent plaintiffs from the late 1940’s onward.” In that case, which is now on appeal, the judge rejected the suit on the grounds that “forty years after the camps were closed … much time has passed, memories have dimmed, and many of the actors have died.”

In rebuttal, Kawakami attacks the government’s failure to call two first-hand witnesses who are still alive, John J. McCloy and Karl Bendetsen. “Instead,” says Kawakami, “the Government paraded a series of witnesses whose testimonies provide absolutely no insight into the real issues at hand.” Given the lapse of time, Kawakami urges the judge to depart from any procedural rules barring Hirabayashi’s petition because of what he calls the government’s “unclean hands” in the case, a “shocking and indefensible pattern of government misconduct” which Kawakami believes “constitutes a fraud upon the court.”

“Given the Government’s unwillingness to acknowledge its own misconduct,” adds Kawakami, “it is imperative that the Court speak clearly through its ruling and declare to the Government that suppression of exculpatory evidence will not be condoned.” He concludes, “No document the Government put into evidence even suggests the misconduct …. did not in fact occur. No document in evidence legally justifies the misconduct.”

Bringing in matters outside the evidence, Kawakami reminds the judge of a World War II veteran who interrupted court to exclaim, “It was a threat of invasion,” in answer to a question directed to a trial witness. Kawakami said that incident, hate letters  received by Hirabayashi, and the recent slaying of Vincent Chin in Detroit, all dramatize that distinctions are still not always made between Japan and Japanese Americans.

A law clerk says Judge Voorhees  has begun working on his decision, and expects to issue it sometime between mid-November and the Christmas holiday. The judge can either give his ruling orally, issue a written decision, or call for further oral arguments.

Hirabayashi’s legal team, which worked without pay, consisted of Kawakami, Camden Hall, Benson Wong, Kathryn Bannai, Michael Leong, Craig Kobayashi, Daniel Ichinaga, and Arthur Barnett. Historian Peter Irons laid the legal foundation for the coram nobis petition, as well as testifying at the hearing.

Representing the U.S. Department of Justice were Stone and Richard Edwards, attorneys in the Department’s litigation and legal advice section.

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