Research Report prepared for Presidential Select Committee on JACL Resolution #7
(aka “The Lim Report”)

submitted in 1990 by Deborah K. Lim
© 2002 by Deborah K. Lim

Part II: Internment Period (1942-1945)

IIA. JACL Position on Legal Test Cases

BULLETIN #142

The issue of what JACL’s position on a legal test case was clearly and unequivocally spelled out in Bulletin #142 of the JACL, Office of the National Secretary, dated April 7, 1942. This particular bulletin, issued and signed by Mike Masaoka in his capacity as National Secretary and Field Executive is entitled RE: TEST CASES. It specifically discusses the facts of Min Yasui’s case. The third paragraph of the three page bulletin states:

National Headquarters is unalterably opposed to test cases to determine the constitutionality of military regulations at this time. We have reached this decision unanimously after examining all the facts in light of our national policy of: “the greatest good for the greatest number.”¹¹²

(emphasis in the original)

The Bulletin goes on to discuss the justifications for such a position, especially in light of the fact that:

. . . self-styled martyrs, who are willing to be jailed in order that they might fight for the rights of citizenship, as many of them allege, capture the headlines and the imaginations of many more persons than our seemingly indifferent stand. We realize that many Japanese and others who are interested in our welfare have condemned the JACL for its apparent lackadaisical attitude on the matter of defending the rights and privileges of American citizens with Japanese features.¹¹³

Masaoka goes on to give a ten point argument for opposition to Yasui’s or anyone else’s test case. His ten points are:

1) cooperation with the war effort;
2) the JACL and its members had pledged total cooperation to the President;
3) cooperation with Federal officials will cause reciprocal cooperation;
4) our contribution to the war effort is to accept all army regulations and orders;
5) public opinion is opposed to any challenges of the Army and its authority;
6) we might win the case but lose goodwill in the process;
7) any challenge might result in retaliation by the Army;
8) Attorney General Biddle said there was little chance the courts would challenge the military’s authority;
9) the ACLU decided against a test case, and they are champions of civil liberties;
10) unfavorable publicity as seen in the headlines from the Yasui case.

Masaoka ends by saying that “we are not giving up our rights as citizens by cooperating with the government in the evacuation programs.“¹¹⁴

Ten days later, Min Yasui submitted a document entitled “Discussion of the Ten Points of JACL and explanation of the stand of Minoru Yasui,” dated April 17, 1942. In this document, Yasui responds to Masaoka’s arguments point by point.

There has been speculation that prior to his curfew violation, Min Yasui had sought the assistance of JACL. “Before deciding to test the curfew, Yasui had written to Mike Masaoka in San Francisco stating his intentions, and asking JACL’s support. There is no record the letter was ever delivered.“¹¹⁵ This has been suggested as a reason for what seems to be a rather negative personal attack on Yasui in Bulletin #142.

Yasui did solicit the aid of local JACL chapters as well, although it is unclear exactly when this occurred.

YASUI, who had been an active leader in the Hood River, and later Portland, chapter of the Japanese American Citizens League, asked these chapters to offer moral support to his venture. These chapters were entirely in accord with YASUI, who was encouraged and abetted by one Clarence Edward OLIVER of Portland, Oregon. . . The Seattle Chapter was asked to lend its support, both moral and financial. Refusal on the part of the Seattle chapter to have anything (at least officially) to do with YASUI led to less intimacy between the Washington and Oregon groups, and some split among Seattle members.¹¹⁶

We will continue to Yasui’s story momentarily when examining the impact of the JACL upon the Civil Liberties League, Yasui’s support committee in Minidoka.

SPECIAL EMERGENCY NATIONAL CONFERENCE,
NOVEMBER 17-24, 1942, SALT LAKE CITY, UTAH

The policy of opposition to test cases is subsequently reaffirmed at the Special Emergency National Conference held November 17-24, 1942 in Salt Lake City, Utah. In the Sixth Session of the Conference devoted to “General Japanese American Problems,” National Secretary Mike Masaoka introduced ACLU attorney A. L. Wirin, who proceeded to discuss the various cases pending in court. Wirin reviewed Regan v. King, (effort to take away citizenship of Japanese Americans); Kawata (could alien Japanese sue in court?); Brown v. Oshiro (did military orders cancel or suspend contract obligations of those subject to evacuation?); Yasui (constitutionality of curfew); Wakayama (habeas corpus); Hirabayashi (curfew and evacuation); Korematsu (evacuation); Endo (habeas corpus). After an explanation of the constitutional and legal issues raised in the evacuation cases, the National Secretary states an interest in having JACL appear as a friend of the court (i.e. submit an amicus brief) in the Native Sons’ case (Regan v. King) but not evacuation.

We are particularly interested in the suggestion that the JACL appear as a friend of the court in the Native Sons’ and other suits against our civil rights. That does not refer to the evacuation cases.¹¹⁷

Discussion at the Sixth Session is then focussed on an agenda item entitled “Philosophy of Court Cases.” The National Secretary leads this discussion and explains two differing points of view: 1) push the evacuation cases to determine their constitutionality or; 2) “soft peddle” them because of the danger of losing everything and gaining nothing through a court decision. After outlining these two points, the minutes indicate an off-the-record discussion. Saburo Kido expresses his opinion that “evacuation is over, and we are no longer concerned,” although he, too, weighs the pros and cons of pursuing evacuation test cases. Others present continue discussion until the chair passes to another agenda item.

It isn’t until the Thirteenth Session that any resolution of this issue appears. In addressing the Project Division,” under the project heading of “Civil Rights and Liberties,” the National Secretary outlines as a project, entering the Native Sons of the Golden West lawsuit as amicus curiae. Masaoka states:

Although it is not our function to actively participate in the various court cases which are testing the constitutionality of the evacuation orders, we are bound to take official cognizance of them.¹¹⁸

There was no objection to granting the “National Secretary the discretionary powers to put into effect as he sees fit the national projects on Americanism, Civil Rights and Liberties, Credit Unions, and Contests.”¹¹⁹

CIVIL LIBERTIES LEAGUE

More proof of JACL’s policy on the Yasui case in particular comes to us from a different source and perspective. In a Memorandum from the District Intelligence Officer, Thirteenth Naval District, to the Director of Naval Intelligence, dated January 30, 1943 on the subject of Japanese Activities at Minidoka, Mike Masaoka makes several policy statements, on the Yasui matter. The Memo in question discusses the “Minoru Yasui defense committee’s” recent name change to the “CIVIL LIBERTIES LEAGUE,” made up primarily of former Portland, Oregon residents. The District Intelligence Officer or DIO identifies several Issei involved in fundraising activities for the Yasui committee. The DIO states that Mike Masaoka visited the Minidoka camp on January 23 & 24, 1943.

At a JACL meeting held on January 23^rd, Masaoka declared that the organization of the Civil Liberties League was a “stab in the back” at the efforts of the JACL. Most of the Seattle Chapter leaders of the JACL have opposed the Yasui committee right along, contending that to help Yasui would be un-American. At this meeting all leaders of the Civil Liberties League were present . . . and it was finally brought out that certain leaders among the Civil Liberties group were opposed to the JACL due to its failure to contest the orders of the military authorities in connection with curfew and evacuation. Masaoka, on the other hand, argued that it was the duty of the Nisei to cooperate with the government, not to fight it.¹²⁰

Attached a copy of a circular by the Civil Liberties League outlining Yasui’s case and requesting contributions to its fundraising drive. From the circular, we know that the support committee for Yasui was formed the previous month-approximately December of 1942.

Yet another ONI report fixes the date of the first meeting as December 2, 1942. The meeting attracted some 300 persons, partly in response to the publicity on the case in the Minidoka Irrigator, the camp newspaper. ¹²¹ The same report is given on Mike Masaoka’s reaction to the Civil Liberties League. It does add the following comments though.

The president of the former Seattle chapter of the JACL on being questioned as to his views stated, “You must remember Yasui was a reserve officer in the United States Army while at the same time being admittedly a paid agent for Japan-You must remember this is war, and to aid Yasui is to aid a Japanese agent. Such an act is not American.“¹²²

Jimmie Sakamoto was, most likely, the person referred to who delivered the remarks on Yasui, as he was President of the Seattle Japanese Progressive Citizens League (read JACL) at the time of the evacuation.

Masaoka’s visit to Minidoka and comments directed at the Civil Liberties League served to quash the fledgling organization.

As a result of the attitude of the National governing body and the Seattle chapter of the Japanese American Citizens League, Dr. Tani, the real head of the YASUI committee, stated that the Civil Liberties League would disband and that any further support of Yasui would be “by individuals and as individuals.“¹²³

The Civil Liberties did in fact officially disband, although individuals such as Tani and others continued their fund drive.

Myron Gurnea’s FBI Survey of Japanese Relocation Centers also contained information on this conflict. Referring to a WRA staffer by the name of Townsend, Gurnea writes:

He said that this effort had caused a division between the Japanese-American Citizens group in the camp and other members of the Nisei. He said that the JACL is definitely opposed to any further efforts to help YASUI in the instant case.¹²⁴

CHANGE OF POLICY

When did JACL’s policy towards the evacuation and detention cases change? Interestingly enough, in the Thursday, February 18, 1943 issue of the Pacific Citizen an article on court reviews of evacuation orders indicates that according to Wirin, the JACL, having filed an amicus brief in the Regan case, is considering doing so in the other evacuation test cases if they are taken to the U.S. Supreme Court. ¹²⁵

Official communication of a policy change appears in the March 4, 1943 Bulletin #7, to all JACL leaders and National Board members from National Secretary Masaoka. On page two under the heading of Civil Rights Committee, Masaoka informs the recipients of the Bulletin that the government has been making disturbing claims regarding the unassimilability of Japanese Americans, effect of dual citizenship on allegiance of the Nisei, schooling and indoctrination of Japanese Americans and so forth. As a consequence:

While we did not participate directly in these cases, it now appears necessary that we submit a brief as a friend of the court which does not challenge the constitutionality of the evacuation orders as such but strongly refuting the government’s inferences concerning the loyalty of the Japanese Americans and the other “traits” attributed to the Japanese, citizens and aliens alike. We have instructed Attorney Wirin to prepare such a brief.

Should these cases testing the constitutionality of the evacuation orders be carried to the Supreme Court, we believe that the JACL should, and must, appear as “friends of the court” to question the broad constitutional powers involved. While this may seem to be a reversal of our policy, it actually constitutes an affirmation of our policy that we cooperated with the government in the evacuation program but that we did so under protest and without admitting its constitutionality. Evacuation is now an accomplished fact, and the military are no longer directly concerned, and therefore, by testing the constitutionality of these orders, we are not now hampering the war effort of our government but rather determining for once and for all the basic rights of military groups under our Federal Constitution.¹²⁶

The second paragraph quoted poses several questions for the reader. Certainly, this is a change of policy, at least in regards to the National’s position on test cases and constitutional challenges in court, particularly if any case reached the U.S. Supreme Court. It is curious then that Masaoka chose to phrase this change of policy as an affirmation of the JACL’s overall policy of cooperating with the government in evacuation. Certainly Masaoka’s statement before the Tolan Congressional Committee in February of 1942 confirms that JACL never admitted the constitutionality of evacuation. However, this paragraph is strangely inconsistent with the ten point defense of “unalterable opposition,” particularly given Masaoka’s original concern that such cases were inconsistent with JACL’s pledge of cooperation to Roosevelt, acceptance of all Army regulations as their contribution to the war effort, fear of being labeled fifth columnists, etc.

After the issuance of Bulletin #7, articles in the Pacific Citizen began to publicize National JACL’s amicus briefs and oral arguments in the Yasui and Hirabayashi cases. (April 29, 1943 and May 13, 1943) In the May 27, 1943 issue of the Pacific Citizen wherein A. L. Wirin reports on the Supreme Court Hearings, the role of the JACL is addressed. On page 6 of the issue of the Pacific Citizen, Wirin informs us that:

The JACL, it is to be remembered did not take or press the cases to the Supreme Court; others determined that policy. Once the rights of the Nisei were before the Supreme Court for decision, the JACL felt a duty to make as adequate a presentation as possible to the court of the loyalty of the Nisei and the unjust discrimination of the military orders.¹²⁷

According to Mike Masaoka, “JACL submitted a ‘sociological and human’ brief to the U.S. Supreme Court on curfew” in the Hirabayashi case. ¹²⁸

As for the Korematsu and Endo cases, which were progressing more slowly than the Yasui and Hirabayashi cases, the Pacific Citizen on Saturday, October 14, 1944 announced that JACL filed an amicus brief on the unconstitutionality of evacuation. The 200-page brief was signed by Saburo Kido, National President of JACL, and A. L. Wirin, then special counsel of JACL.

No amicus brief was filed on behalf of Endo, however. The 1946 Biennial Minutes indicate that “since the Endo case was being argued at the same time, we did not think it necessary to file a separate brief on the same points.“¹²⁹/P

End Notes

Abbreviations used:

AAC Anti-Axis Committee
CWRIC Commission on Wartime Relocation and Internment of Civilians
DIO District Intelligence Officer
DNI Director, Naval Intelligence
JACL Japanese American Citizens League
JACL Archives Japanese American Citizens League Archives, San Francisco
JARP Japanese American Research Project, Special Collection, University Research
Library, University of California, Los Angeles
JERS Japanese Evacuation and Resettlement Study, Bancroft Library, University of
California, Berkeley
Merritt Collection Merritt Collection, #122, Special Collection, University Research
Library, University of California, Los Angeles
NA National Archives, Washington, D.C.
ND Naval District
NDC Northern District Council
ONI Office of Naval Intelligence
RG Record Group
SDC Southern District Council
WRA War Relocation Authority

PART II: INTERNMENT PERIOD (1942-1945)

IIA. JACL Position on Legal Test Cases

(112) JACL Bulletin #142, 4/7/42, JACL Archives.
(113) Ibid.
(114) Ibid.
(115) Hosokawa, JACL, p. 176.
(116) Memorandum, DIO, 13th ND, to DNI, ONI, 3/25/43, p. 18, Box 2, Entry 17, RG 210, NA.
(117) JACL Minutes, Special Emergency National Conference, November 17-24, 1942, Sixth Session, p. 31, JACL Archives (hereafter cited as “Minutes, Special Conference, 1942”).
(118) Ibid., p. 101.
(119) Ibid. p. 103.
(120) Memorandum, DIO, 13th ND, to DNI, 1/30/43, Box 2, Entry 17, RG 210, NA.
(121) Memorandum, DIO, 13th ND, to DNI, 3/25/43, Box 2, Entry 17, RG 210, NA.
(122) Memorandum, DIO, 13th ND, to DNI, 1/30/43.
(123) Memorandum, DIO, 13th ND to DNI, 3/25/43.
(124) Myron Gurnea, Interviews with WRA Personnel, Part II, p. 255, Box 1, Entry 17, RG 210, NA.
(125) Pacific Citizen, 2/13/43.
(126) JACL Bulletin #7, 3/4/43, JACL Archives.
(127) Pacific Citizen, 5/27/43.
(128) Masaoka, “Report,” p. 169.
(129) JACL Minutes, 1946 National Convention, p. 9, JACL Archives.