Ochikubo v. Bonesteel, 3834-PH

• Decision Date: 01 June 1945
• Docket Number: No. 3834-PH,3854-PH.,3834-PH
• Citation: 60 F. Supp. 916
• Parties: OCHIKUBO v. BONESTEEL et al. YAMAMOTO et al. v. SAME.
• Court: U.S. District Court — Southern District of California

60 F. Supp. 916

OCHIKUBO v. BONESTEEL et al. YAMAMOTO et al. v. SAME.

Nos. 3834-PH, 3854-PH.

District Court, S. D. California, Central Division.

June 1, 1945.

COPYRIGHT MATERIAL OMITTED

A. L. Wirin, of Los Angeles, Cal., for plaintiff.

Charles H. Carr, U. S. Atty., and Mildred L. Kluckhohn, Asst. U. S. Atty., both of Los Angeles, Cal., and Edward J. Ennis, Director of Alien Enemy Control Unit, of Washington, D. C., for defendants.

HALL, District Judge.

The plaintiffs seek to invalidate and enjoin the enforcement of individual exclusion orders issued by the Commanding General of the Western Defense Command under the authority of Executive Order 9066 of February 19, 1942 (7 F.R. 2320). Appendix I.¹

Any consideration of Executive Order 9066 must also involve Public Law 503, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a. Appendix II.

While the history of Executive Order 9066 and Public Law 503 has been reviewed by the Supreme Court and the Ninth Circuit Court in several cases² wherein different phases than here involved of the exercise of powers under Executive Order 9066 were discussed, it will nevertheless be helpful in pointing up the issues in this case if a brief outline is made here of pertinent historical background.

On December 8, 1941, Congress declared war upon Japan.³ The resolution provided, after formally declaring war, that "The President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the government to carry on war against the imperial government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States."

The resolution still stands upon the statute books unchanged and unrepealed.

December 7th and 8, 1941 by Presidential Proclamations Nos. 2525, 2526 and 2527 (3 C.F.R. Cum.Supp.1944 273 et seq.) under the authority of 50 U.S.C.A. § 21 et seq., all nationals or subjects of the nations with which we are at war were declared to be enemy aliens and certain restrictive measures were applied, including the power to exclude any alien enemy from "any locality" and the power to summarily apprehend and intern any alien enemy "deemed dangerous". Appendix III.

On December 11, 1941, the Western Defense Command was created within the War Department, including the whole of the States of Washington, Oregon, California, Montana, Idaho, Nevada, Utah and Arizona.

On December 12, 1941, Executive Order 8972 (3 C.F.R. Cum.Supp.1944, p. 1038); Appendix III-A, was promulgated. It recited the serious and immediate potential danger from sabotage, and authorized the Army and Navy to establish and maintain military guards and patrols or by other appropriate means to protect "national-defense material", "national-defense premises", and "national-defense utilities", which had been very broadly defined by the Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655, 50 U.S.C.A. §§ 101, 103, 104, 105 and 106.

Between January 2, 1942, and January 5, 1942, there was a conference at San Francisco among representatives of the War and Justice Departments concerning the situation on the West Coast.⁴

On January 4, 1942, the Assistant to the Attorney General who had been designated by the Attorney General to represent him in the conference wrote a communication to the Commanding General of the Western Defense Command containing recommendations about alien enemies (Appendix IV) and on January 5, 1942 the Commanding General responded to that communication (Appendix V) wherein for the first time a question was raised as to the possible treatment of citizens who had dual nationality.

On January 6, 1942, identical memoranda were exchanged between the Commanding General and the Attorney General's representative which treated, however, only with the matter of alien enemies.⁵

On January 14, 1942, by Proclamation No. 2537 (3 C.F.R. 287) issued under Title 50, Section 21 et seq., the registration of alien enemies by the Attorney General was required.

Shortly thereafter, the Attorney General ordered the evacuation of certain limited military zones by only those who were enemy aliens.⁶

On February 2, 1942, the entire Congressional delegation of the West Coast States held a meeting in the office of Senator Johnson to consider the whole problem, which was followed by a number of other meetings.⁷

On February 9, 1942, the Attorney General, by communication, advised the Commanding General he declined to accept the recommendation of the Commanding General concerning mass evacuation for all persons of Japanese ancestry saying as to that "If they have to be evacuated, I believe this would have to be done as a military necessity⁸ in these particular areas. Such action, therefore, should, in my opinion, be taken by the War Department and not by the Department of Justice." Appendix VI.

On February 13, 1942, in a letter to the President, (Appendix VII) the Congressional Delegation of the West Coast States recommended that the "question of citizenship" be eliminated and procedures established "upon the question of loyalty alone." The letter recommended "the immediate evacuation of all persons of Japanese lineage and all others, aliens and citizens alike, whose presence shall be deemed dangerous or inimical to the defense of the United States, from all strategic areas."

It further recommended that military areas be enlarged, and concluded "We make these recommendations in order that no citizen, located in a strategic area may cloak his disloyal or subversive activity under the mantle of his citizenship alone and further to guarantee protection to all loyal persons, alien and citizen alike, whose safety may be endangered by some wanton act of sabotage."⁹

On February 14, 1942, in a memorandum¹⁰ to the Secretary of War the Commanding General recommended among other things general evacuation of all persons of Japanese ancestry regardless of citizenship, as well as other citizens, in the following language:

"b. I now recommend the following

"(1) That the Secretary of War procure from the President direction and authority to designate military areas in the combat zone of the Western Theatre of Operations (if necessary to include the entire combat zone) from which, in his discretion, he may exclude all Japanese, all alien enemies, and all other persons suspected for any reason by the administering military authorities as being actual or potential saboteurs, espionage agents, or fifth columnists. * * * The executive order should further provide that by reason of military necessity the right of all persons, whether citizens or aliens to reside, enter, cross or be within any military area shall be subject to revocation and shall exist on a pass and permit basis at the discretion of the Secretary of War and implemented by the necessary legislation imposing penalties for violations."

On February 19, 1942, the President promulgated Executive Order 9066. See Appendix I. The Order specifically provided it was not a limitation on Executive Order 8972. See Appendix III-A.

Immediately after the promulgation of Executive Order 9066, the War Department, with the approval of the President, requested Congress to "enact legislation to provide sanctions for the enforcement of directives issued under the authority of the executive order," and sent a draft of the proposed Act which subsequently became Public Law 503, Appendix IX.

On February 20, 1942, the Secretary of War designated the Commanding General of the Western Defense Command to carry out the duties and responsibilities imposed by Executive Order 9066, and delegated to him within the area of the Western Defense Command the powers given under the Executive Order 9066. Appendix VIII. And on the same day Assistant Secretary of War McCloy by letter¹¹ sent an outline memorandum suggesting the basis and procedure for dealing with the whole problem. In it there were six classes of persons designated, viz., "Class 1, Japanese aliens; Class 2, American citizens of Japanese lineage; Class 3, German aliens; Class 4, Italian aliens; Class 5, any persons, whether citizens or aliens, who are suspected for any reason by you or your responsible subordinate, of being actually or potentially dangerous either as saboteurs, espionage agents, fifth columnists or subversive persons; Class 6, all other persons who are, or may be within the Western Defense Command."

It was suggested in this memorandum that there should be progressive stages in order to "provide the maximum protection from sabotage and espionage."

On February 21, 1942, the Tolan Special Committee of the House of Representatives began hearings in San Francisco upon the matter of danger to the West Coast from espionage and sabotage and the general defense of the West Coast.¹²

On March 2, 1942, General De Witt established military areas Nos. 1 and 2, and 100 military zones.¹³ 7 F.R. 2320.

On March 10, 1942, he created the Civil Affairs Division of the Western Defense Command.

On March 14, 1942, the Secretary of War transmitted to Congress a letter asking for a change in the wording of the proposed Act which became Law 503, so as to enlarge its sanctions against persons who "commit any act in" the military areas contrary to any order of the appropriate Military Commander whether relating to exclusion or not. Appendix X.

On March 16, 1942, by Proclamation No. 2 (7 F.R. 2405) the Commanding General created military areas Nos. 3, 4, 5 and 6 comprising the states of Idaho, Montana, Nevada and Utah, respectively, and established within them an additional 933 zones.¹⁴

On March 19, 1942, House Report 1911 of the Tolan Committee was filed, and on March 20, 1942, Public Law 503 was passed by Congress and signed by the President on March 21, 1942.

On March 27, 1942, Proclamation No. 4 (7 F.R. 2601)...