The Japanese American Cases - A Bigger Disaster Than We Realized (2006)

The Japanese American Cases - A Bigger Disaster Than We Realized

Professor Eric Muller has assembled some of the many additional threads of litigation around the wartime actions directed at Japanese Americans. As a whole, the government was quite unsuccessful at proving disloyalty, despite the outcomes of in Korematsu and Hirabayashi. Muller concludes that taken as a whole these cases were a "litigative disaster" and a "debacle" that represented "an important failure of a larger executive effort to enlist the federal courts in a program of racial suspicion and repression during a time of crisis." 

The whole article, recommended but not required, is linked here. In particular, Fujii and Okamoto are addressed in Part III.A. and B. (pp. 443-451), and d'Aquino in V.C. (pp. 467-470). Part VI. reflecting on Korematsu and Hirabayashi and the conclusion situate these cases back in a larger context. 

Here is Muller's overview and coverage: 

[T]here are many other wartime "Japanese American cases" to remember than Korematsu, Hirabayashi, and even Endo. The cases that made their way to the Supreme Court were really just one small part of a much broader program of litigation in which the U.S. government sought both to capitalize on and to reinforce the image of Japanese Americans as disloyal subversives. In addition to the government's efforts to enforce the military's curfew, exclusion, and detention orders, the litigation included criminal prosecutions of Japanese Americans for serving as unregistered agents of Japan; criminal prosecutions of Japanese Americans for counseling noncompliance with government orders; criminal prosecutions of Japanese Americans for refusing to be drafted into the military from behind barbed wire; criminal prosecutions of Japanese Americans for treason; and litigation to enforce Japanese Americans' coerced renunciations of their American citizenship. Many of these cases produced no published opinions, and none reached the Supreme Court. For these reasons, and due to the passage of time, they now lie submerged in our legal memory, but they constitute most of the iceberg of which Korematsu and Hirabayashi are just the visible tip.

"In Part I, the Article reviews the failure of the government's cases against Japanese Americans for allegedly assisting Japan in the buildup to war. Part Il recounts the prosecutions of several hundred Japanese American internees for resisting the draft, of which more than one-third resulted in outright loss or embarrassing rebuke for the U.S. government. Part III tells the stories of the failed prosecutions of a number of Japanese American internees and a Japanese American journalist for counseling resistance to the draft. Part IV documents the stinging judicial rejection of the executive's efforts to enforce the renunciations of citizenship that some Japanese American internees filed under stress and duress behind barbed wire between 1943 and 1945. In Part V, the Article relates the stories of the three treason prosecutions the government brought against Japanese Americans for conduct during World War Il, only one of which has stood the test of time. Part VI briefly compares this record of rebuke and failure with the government's limited successes in defending the curfew, exclusion, and detention of Japanese Americans.

"The Article concludes that the overall litigative project was a misadventure in using the law, especially the criminal law, to tar a racial group with the badges of disloyalty during wartime. While Korematsu and Hirabayashi naturally — and justifiably — draw our attention, the Article contends that our focus on them leaves us with the distorted impression that the federal government was largely successful in enlisting the support of the judicial branch in its programs. The executive's repressive efforts were not a success. The Japanese American cases — all of them — were truly a disaster."