Ex parte Mitsuye Endo

• Decision Date: 18 December 1944
• Docket Number: No. 70,70
• Citation: 65 S.Ct. 208,323 U.S. 283,89 L.Ed. 243
• Parties: Ex parte MITSUYE ENDO
• Court: U.S. Supreme Court

323 U.S. 283

65 S.Ct. 208

89 L.Ed. 243

Ex parte MITSUYE ENDO.

No. 70.

Argued Oct. 12, 1944.

Decided Dec. 18, 1944.

Mr. James C. Purcell, of San Francisco, Cal., for Mitsuye endo.

Mr. Charles Fahey, Sol. Gen., of Washington, D.C., for Eisenhower, Director.

Mr. Justice DOUGLAS delivered the opinion of the Court.

This case comes here on a certificate of the Court of Appeals for the Ninth Circuit, certifying to us questions of law upon which it desires instructions for the decision of the case. Judicial Code § 239, 28 U.S.C. § 346, 28 U.S.C.A. § 346. Acting under that section we ordered the entire record to be certified to this Court so that we might proceed to a decision, as if the case had been brought here by appeal.

Mitsuye Endo, hereinafter designated as the appellant, is an American citizen of Japanese ancestry. She was evacuated from Sacramento, California, in 1942, pursuant to certain military orders which we will presently discuss, and was removed to the Tule Lake War Relocation Center located at Newell, Modoc County, California. In July, 1942, she filed a petition for a writ of habeas corpus in the District Court of the United States for the Northern District of California, asking that she be discharged and restored to liberty. That petition was denied by the District Court in July, 1943, and an appeal was prefected to the Circuit Court of Appeals in August, 1943. Shortly thereafter appellant was transferred from the Tule Lake Relocation Center to the Central Utah Relocation Center located at Topaz, Utah, where she is presently detained. The certificate of questions of law was filed here on April 22, 1944, and on May 8, 1944, we ordered the entire record to be certified to this Court. It does not appear that any respondent was ever served with process or appeared in the proceedings. But the United States Attorney for the Northern District of California argued before the District Court that the petition should not be granted. And the Solicitor General argued the case here.

The history of the evacuation of Japanese aliens and citizens of Japanese ancestry from the Pacific coastal regions, following the Japanese attack on our Naval Base at Pearl Harbor on December 7, 1941, and the declaration of war against Japan on December 8, 1941, 55 Stat. 795, 50 U.S.C.A.Appendix note preceding section 1, has been reviewed in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. It need be only briefly recapitulated here. On February 19, 1942, the President promulgated Executive Order No. 9066, 7 Fed.Reg. 1407. It recited that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to nationaldefense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of No- vember 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104).' And it authorized and directed 'the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order.'

Lt. General J. L. De Witt, Military Commander of the Western Defense Command, was designated to carry out the duties prescribed by that Executive Order. On March 2, 1942, he promulgated Public Proclamation No. 1 (7 Fed.Reg. 2320) which recited that the entire Pacific Coast of the United States 'by its geographical location is particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations.' It designated certain Military Areas and Zones in the Western Defense Command and announced that certain persons might subsequently be excluded from these areas. On March 16, 1942, General De Witt promulgated Public Proclamation No. 2 which contained similar recitals and designated further Military Areas and Zones. 7 Fed.Reg. 2405.

On March 18, 1942, the President promulgated Executive Order No. 9102 which established in the Office for Emergency Management of the Executive Office of the President the War Relocation Authority. 7 Fed.Reg. 2165. It recited that it was made 'in order to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security.' It provided for a Director and authorized and directed him to 'formulate and effectuate a program for the removal, from the areas designated from time to time by the Secretary of War or appropriate military commander under the authority of Executive Order No. 9066 of February 19, 1942, of the persons or classes of persons designated under such Executive Order, and for their relocation, maintenance, and supervision.' The Director was given the authority, among other things, to prescribe regulations necessary or desirable to promote effective execution of the program.

Congress shortly enacted legislation which, as we pointed out in Kiyoshi Hirabayashi v. United States, supra, ratified and confirmed Executive Order No. 9066. See 320 U.S. at pages 87—91, 63 S.Ct. at pages 1379—1381, 87 L.Ed. 1774. It did so by the Act of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a, which provided: 'That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.'

Beginning on March 24, 1942, a series of 108 Civilian Exclusion Orders¹ were issued by General De Witt pursuant to Public Proclamation Nos. 1 and 2. Appellant's exclusion was effected by Civilian Exclusion Order No. 52, dated May 7, 1942. It ordered that 'all persons of Japanese ancestry, both alien and non-alien' be excluded from Sacramento, California,² beginning at noon on May 16, 1942. Appellant was evacuated to the Sacramento Assembly Center on May 15, 1942, and was transferred from there to the Tule Lake Relocation Center on June 19, 1942.

On May 19, 1942, General De Witt promulgated Civilian Restrictive Order No. 1 (8 Fed.Reg. 982) and on June 27, 1942, Public Proclamation No. 8. 7 Fed.Reg. 8346. These prohibited evacuees from leaving Assembly Centers or Relocation Centers except pursuant to an authorization from General De Witt's headquarters. Public Proclamation No. 8 recited that 'the present situation within these military areas requires as a matter of military necessity' that the evacuees be removed to 'Relocation Centers for their relocation, maintenance and supervision', that those Relocation Centers be designated as War Relocation Project Areas, and that restrictions on the rights of the evacuees to enter, remain in, or leave such areas be promulgated. These restrictions were applicable to the Relocation Centers within the Western Defense Command³ and included both of those in which appellant has been confined—Tule Lake Relocation Center at Newell, California, and Central Utah Relocation Center at Topaz, Utah. And Public Proclamation No. 8 purported to make any person who was subject to its provisions and who failed to conform to it liable to the penalties prescribed by the Act of March 21, 1942.

By letter of August 11, 1942, General De Witt authorized the War Relocation Authority⁴ to issue permits for persons to leave these areas. By virtue of that dele gation⁵ and the authority conferred by Executive Order No. 9102, the War Relocation Authority was given control over the ingress and egress of evacuees from the Relocation Centers where Mitsuye Endo was confined.⁶

The program of the War Relocation Authority is said to have three main features: (1) the maintenance of Relocation Centers as interim places of residence for evacuees; (2) the segregation of loyal from disloyal evacuees; (3) the continued detention of the disloyal and so far as possible the relocation of the loyal in selected communities.⁷ In connection with the latter phase of its work the War Relocation Authority established a procedure for obtaining leave from Relocation Centers. That procedure, so far as indefinite leave⁸ is concerned, presently provides⁹ as follows:

Application for leave clearance is required. An investigation of the applicant is made for the purpose of ascertaining 'the probable effect upon the war program and upon the public peace and security of issuing indefinite leave' to the applicant.¹⁰ The grant of leave clearance does not authorize departure from the Relocation Center. Application for indefinite leave...