Japanese American Evacuation Cases

Though the move to evacuate and detain Japanese Americans on the West Coast enjoyed substantial support from most U.S. citizens, it incited significant protests as well. Some critics, such as Eugene V. Rostow, professor and later dean of the Yale Law School, contended that the evacuation program was a drastic blow to civil liberties and that it was in direct contradiction to the constitutional principle that punishment should be inflicted only for individual behavior, not for membership in a particular demographic group. Others, such as Lieutenant Commander Kenneth D. Ringle, of the Office of Naval Intelligence, questioned the validity of De Witt's assertions concerning the disloyalty of Japanese Americans.

In a memorandum written in February 1942 that became known as the Ringle Report, Ringle estimated that the highest number of Japanese Americans "who would act as saboteurs or agents" of Japan was less than 3 percent of the total, or about 3500 in the United States; the most dangerous of these, he said, were already in custodial detention or were well known to the Naval Intelligence service or the FBI. In his summary Ringle concluded that the "Japanese Problem" had been distorted largely because of the physical characteristics of the people and should be handled based on the individual, regardless of citizenship, and not on race.

The Ringle Report was known to De Witt, who thus knew that Naval Intelligence estimated that at least 90 percent of the army's evacuation of Japanese Americans was unnecessary. In addition, the Department of Justice knew of the Ringle Report's conclusions when it filed its briefs in the Hirabayashi and Korematsu cases. A senior JUSTICE DEPARTMENT official, Edward Ennis, had sent a memo to SOLICITOR GENERAL Charles Fahy warning, "I think we should consider very carefully whether we do not have a [legal] duty to advise the Court of the existence of the Ringle memorandum … It occurs to me that any other course of conduct might approximate the suppression of evidence." But Fahy chose not to mention the Ringle Report in the government's brief, instead asserting that Japanese Americans as an entire class had to be evacuated because "the identities of the potentially disloyal were not readily discoverable," and it would be "virtually impossible" to determine loyalty on the basis of individualized hearings (205).

After the end of the war, some Japanese Americans began to seek financial redress for the losses they had suffered as a result of the government's evacuation program. In 1948 Congress passed the American Japanese Evacuation Claims Act (Pub. L. No. 80-886, ch. 814, 62 Stat. 1231 [codified as amended at 50 U.S.C.A. app. § 1981 (1982)]) to compensate evacuees for property damage. The Justice Department received more than 26,500 claims, and the federal government ultimately paid out approximately $37 million. Because the act required elaborate proof of property losses, the amount paid out was much less than full compensation for losses sustained.

By the 1970s and 1980s, the movement to achieve redress had won additional victories. In 1976 President GERALD R. FORD formally revoked Executive Order No. 9066 and proclaimed, "We know now what we should have known then—not only was [the] evacuation wrong, but Japanese Americans were and are loyal Americans" (Proclamation No. 4417, 3 C.F.R. 8, 9 [1977]). In 1980 Congress established the Commission on Wartime Relocation and Internment of Civilians, whose report, released in 1983, concluded that 9066 was not justified by military necessity and that the policies of detention and exclusion were the result of racial prejudice, war hysteria, and a failure of political leadership. The commission recommended several types of redress. In 1988 Congress passed the Civil Liberties Act of 1988 (50 U.S.C.A. app. § 1989 [1988]), which provided for a national apology and $20,000 to each victim to compensate for losses suffered as a result of the evacuation program.

A final major development in the redress movement has been the use of CORAM NOBIS, the common-law writ of error, to reopen the Korematsu, Yasui, and Hirabayashi convictions. A writ of coram nobis allows one who has served time for a criminal conviction to petition the court for a vacation of that conviction. Vacations are granted if there is evidence of prosecutorial impropriety or if there are special circumstances or errors that resulted in a miscarriage of justice. In 1983 U.S. district court judge Marilyn Hall Patel granted a vacation in the Korematsu case. Patel based her decision on the newly discovered evidence that "the Government knowingly withheld information from the Courts when they were considering the critical question of military necessity in this case" (Korematsu, 584 F. Supp. 1406 [N.D. Cal. 1984]). Yasui's and Hirabayashi's convictions were also vacated on this basis (Yasui, No. 83-151 [D. Or. Jan. 26, 1984]; Hirabayashi, 828 F.2d 591 [9th Cir. 1987]).