February 21, 2005

Hirabayashi vs. the United States

“If you have to suspend the Constitution every time you [have a problem, it’s] not very useful.” – Gordon Hirabayashi in the documentary film A Personal Matter: Gordon Hirabayashi vs. the United States.

This documentary tells the history of the internment through the experiences of Auburn, WA native Gordon Hirabayashi. Hirabayashi defied alien curfew orders and went to court to argue against the internment, appealing all the way to the Supreme Court.

Immediately after the bombing of Pearl Harbor, 700 Japanese were taken into custody, followed in the next two months by 3,000 more “suspected of loyalty to Japan.” The governors of California, Oregon, and Washington all demanded that Japanese residents be removed from the West Coast.

Every government investigation showed that there were no credible reports of spying or sabotage, and found that the Japanese American community was overwhelmingly pro-U.S. Though the government was well aware that they posed no threat, Executive Order 9066 was signed on February 12, 1942, authorizing military areas “from which any and all persons may be excluded.” The military was then made responsible for transporting, housing and feeding anyone so excluded.

“Any and all” meant Japanese. Though there was a curfew enacted prior to Internment against German and Italian immigrants, the curfew applied to all Japanese, even those born in the U.S.

Hirabayashi was in college at the time, and felt that the curfew violated his 5th Amendment right of due process. He disobeyed it.

When the notices of internment went out, Hirabayashi refused to report to the buses. He went to the FBI instead, explaining that he would not be going. The agent asked Hirabayashi if he’d violated curfew. Hirabayashi asked the agent what he was doing after 8pm the previous night. When the agent said that he’d been out, Hirabayashi responded, “So was I.”

Hirabayashi was charged and jailed in King County for a count of curfew violation and another for refusing to report for internment. He lost every case, with the courts refusing to hear evidence that the internment order itself deprived the Japanese of their liberty without the due process of law, without any evidence of wrongdoing. The courts trusted the government’s assertion of military necessity.

He was convicted, jailed, and ordered to report for internment. By this time, his family was getting negative feedback from other Japanese who thought it was a bad idea to make waves over their treatment. Hirabayashi was undeterred. His final act of defiance was to refuse to pay his own way to the camp, as ordered. He hitched rides through several states, noting that if the government was really worried about him, they surely wouldn't want him running loose and free to commit sabotage.

It took 40 years for a legal scholar reviewing declassified government documents to unearth memos sent by the government lawyers arguing before the Supreme Court to their superiors. In the memos, they complained that they were being forced to tell lies in court about the threat posed by the Japanese.

In 1987, the last of Hirabayashi's convictions was overturned based on this new evidence, though the appeal didn't go as far as the Supreme Court. Though his convictions for defying the curfew and internment orders were voided based on evidence law, none of the resistance cases has yet been retried based on the due process argument, and the Supreme Court decision stands.

The documentary included clips of government films describing the internment as though it were a free vacation. The brashly cheery voice of one announcer even proclaimed that the Japanese were “finding Uncle Sam a loyal master.” There were images of Japanese Americans building the houses they were to occupy for the rest of the war, but they left out the guard towers that lay beyond them.

Posted by natasha at February 21, 2005 04:45 PM | Civil Liberties | Technorati links |