Densho Digital Archive - Peter Irons Interview

Densho Digital Archive
Steven Okazaki Collection
Title: Peter Irons Interview
Narrator: Peter Irons
Location: San Francisco, California
Date: November 11, 1983
Densho ID: denshovh-ipeter-03

<Begin Segment 1>

Q: Peter, do you think you could describe for us the kind of backgrounds that the three men had, Mr. Hirabayashi, Yasui and Korematsu, and how their backgrounds may have influenced them?

PI: Well, I think it's interesting that they're three very different kinds of people, both in their backgrounds and their motivations for opposing the internment. Gordon Hirabayashi, at that time, who was a college senior, came from a family which was very unusual among Japanese Americans. His parents in Japan had belonged to a small religious group which was very much like the Quakers in this country. and so he was raised as a pacifist. This group did not believe in military service, and so Gordon grew up in a very religious kind of environment. He was very active in church groups. When he went to college, he joined the YMCA and the Christian fellowship and was very much influenced by pacifist religious leaders. So that his opposition to internment was really based on a very strong moral commitment, not only to opposing war but also to being unwilling and unable to accept the internment of his family and other Japanese Americans. And one of the things I think that influenced him in opposing internment himself was that he had dropped out of school just before the internment started to work for the American Friends Service Committee which is a Quaker group. And his job was to transport people to the assembly center, and so he would help them pack up their belongings and dispose of their property, drive them down to the centers, and he became more and more appalled at the conditions, the terrible hardships, separation of family and so forth.

Min Yasui, on the other hand, had a very different kind of background. His father was a apple orchard grower who was very assimilated into... the Japanese community where he lived was much smaller and more isolated in Oregon. And so his father was very much a part of the Caucasian society there. But it also was a very traditional kind of family. Min was brought up with a very sort of patriotic American kind of upbringing, and he was a member of the Reserve Officers Training Corps in college, he became an army officer. And when the war began, he'd been working for the Japanese consulate in Chicago. He immediately resigned, the day after the attack on Pearl Harbor, came back to Oregon to report for duty as an army officer, and then was turned down because of his race. But his basic motivation I think was much more a legal -- he was a lawyer, of course -- much more of a legal objection to the discrimination against American citizens as opposed to the, for "enemy aliens," that is, the older generation. So he had a sort of strong understanding of the constitutional problems of internment, of personal revulsion against what he considered an unlawful act.

And Fred Korematsu, the third opponent of the internment, was, unlike Gordon and Min, not brought up in a very strong social or political... he didn't have those personal experiences as a child that made him sensitive to these issues. He had a very personal response to this. It was something that he felt shouldn't have applied to him as an individual. I don't think he was as concerned about the impact on the Japanese American community as his own personal situation. He was then engaged to a Caucasian girl, didn't want to leave the coast without her, felt that it was his right to stay there, but it wasn't a product, I think, of a lot of reflection, conscious planning, as Gordon and Min and done. It was more a very personal objection that he had.

[Interruption]

PI: I think one thing that was very important in Gordon's motivation was his reaction to what happened to his own family and to the other Japanese Americans in the Seattle area. He had been working, taking people to the camps, helping them dispose of their property, actually putting them behind the barbed wire, and he was keeping a diary of this as he went along. And one of the things that I think affected him very much was having to accompany his own parents and his younger brothers and sisters to the camp, the fairgrounds camp that they went to. He hadn't yet been called for the evacuation, so in a sense he had to leave them behind, and it was very, a very real stress on him to do that. His mother in particular felt that he should come with them and stay with the family, but that if it was his decision not to, and to resist, she would support that, but it was obviously, in her mind and in his father's mind, a real tension between their family loyalty and Gordon's principles, which they supported.

In Min's case, a number of things happened. Not only did he come back from Chicago to report for military service, his father in fact had sent him a telegram: "It's your patriotic duty to report for service now that we're at war." But after he came back and was rejected by the army because of his race, his father was picked up by the FBI. He was on the list of people who were considered potentially dangerous and was taken off to an internment camp in Montana. Min went to that camp to represent his father at a loyalty hearing, and his reaction to that was that his father was simply being railroaded into the camp for no good reason. There was no evidence the army presented that he was disloyal. So I think that that combination of factors, both what happened to his father, what happened to himself, made his objection, which was really based on his legal principles, more personal and more strong, and made him more willing to undertake the challenge that he did.

<Begin Segment 2>

Q: Can you tell Jane about the background of Korematsu, about what his family was up to? Could we also go over a little bit more with the girlfriend and the plastic surgery?

PI: You want me to talk about that, plastic surgery?

Q: Why he did it and did he get away with it?

PI: Okay. Fred was in a much different position than either Gordon or Min. For one thing, his family background didn't dispose him to thinking about the internment issue in terms of either morality or legal principles. It was really a very personal decision. He had become more separated from his family, he had moved away on his own when he went to work. There was not a lot of family discussion about this. Fred had another very personal reason, which was that he was then engaged to a Caucasian girl. He didn't want to be separated from her; he felt that he had a right to stay there with her. And his response to that was to change his appearance or attempt to, by having plastic surgery done on his eyes and his nose, thinking that it would make him look Caucasian. He forged a new draft card with a different name. So he, in a sense, tried to evade the internment, partly out of his own feeling that it was wrong, but also because he thought that he could pass as someone who wasn't Japanese American. And so those factors, I think, made his decision to resist the internment not a more personal one, but one that was based less on having thought out the issues, the moral or the legal issues, reacting really as somebody who was more isolated from the Japanese American community than either Gordon or Min was.

Q: Can you tell Jane about the transition, perhaps, with Fred from very personal reasons to going through the whole trial process? Why anyone who just did it for a girlfriend would go and put themselves through all this?

PI: I think when Fred decided to evade the internment, to stay in San Leandro, a lot of that, of course, reflected his own wish to stay with his girlfriend. But as, after he got arrested and he was approached by a lawyer from the American Civil Liberties Union along with three or four other young men who had been picked up for resisting, or for violating the exclusion orders, Fred was the only one who was willing to risk going to jail, bringing a test case, being exposed to the publicity that would obviously result from that. And I think that as he thought about the consequences of that stand, particularly when he was put in the camp awaiting his trial, and he was under a lot of pressure from other internees, "Don't rock the boat, don't bring down a lot of publicity on us," public hostility, he became more and more firm in his conviction that somebody had to stand up and bring a test case. He thought through these issues and I think developed a position that was close to both Gordon's and Min's in its motivation, that is, he had a legal right as an American citizen to be free, he had a moral duty to support his principles...

[Interruption]

Q: Could you tell us about Fred's reason for continuing to put up a fight, even though it was just for personal reasons he resisted the evacuation?

PI: When Fred was first arrested, I don't think he thought through the implications of what he was doing. it was a personal decision on his part, but he reached it without consulting anybody else, talking to his family about it. But as he was approached by the ACLU as a potential test case and decided to go ahead with it, he became, I think, more firm in his convictions and developed a position that was really very much like Gordon's and Min's both, the moral feeling that he had a right as an American citizen to stay where he was, and the feeling that there were, he was standing up for the legal rights of Japanese Americans.

Q: What happened to the girlfriend?

PI: What happened to her? Fred's girlfriend at the time was approached by the FBI who sort of intimated that she might be in danger for harboring a criminal, and their relationship broke up when he went off to the camp. He didn't see her after that.

<Begin Segment 3>

Q: How are they symbols for Japanese American people?

PI: I think all three of these men are symbols for the entire Japanese American community. One respect, that they're the only three out of 120,000 who took a legal challenge to the internment to the Supreme Court. I think that's important to Japanese Americans, particularly because many of them I think feel that there should've been more who challenged. I think that a lot of them feel that they missed their own opportunity to do this. Of course, if it happened again, many more people would have resisted and would have brought legal challenges. So they become special in the sense that there were so few of them, just three. Also in the sense that because the Supreme Court upheld their convictions, they're singled out. They feel that the judicial system in this country marked them for some wrong they had committed. So all of these factors together, I think the Japanese American community looks at Gordon and Fred and Min as very special symbols of what happened to them during the internment.

Q: Can you tell us about maybe some others who were convicted or resisted the orders and what maybe happened to them?

PI: There aren't any real lists of people who resisted the internment or violated the curfew orders. We know from the government records that there are at least several dozen. All of the others, of course, either pleaded guilty

when they were charged or the charges were dropped when they agreed to go to the camps. We don't know much about these people. The few that we do know anything about, for example, when Fred was arrested, there were three or four other Japanese Americans who'd been picked up for violating the exclusion order. One of these was a young student who'd come back from East Coast to pick up his belongings and had got caught. Another one was a guy who had worked as a houseboy for a Caucasian family. When the evacuation order came, rather than report, he hid in the basement of the family and stayed there for three weeks, and he'd come up at night to get food from the kitchen. And one night he was caught when the owner heard noises and came down. He was very weak, and in fact, they had to take him to the hospital to recover. They were all later charged and pleaded guilty and received short sentences. But we really don't know what other kinds of people, and why they weren't willing to press their cases. Because at least the cases in the San Francisco area, the ACLU was willing to represent them, so they had the chance to bring the challenges. We don't know why they weren't willing to do that, why Fred was the only one.

<Begin Segment 4>

Q: Could you give us a bit of a summary of the events that led up to Executive Order 9066?

PI: The decision to authorize the evacuation in Executive Order 9066 was, came about ten weeks after the attack on Pearl Harbor. During that time, though, there wasn't any coordinated planning. It wasn't like a military operation where you have an objective, you formulate plans, implement the plans. It was really chaotic. A lot of people were involved in that decision within the military who had no business dealing at all with Japanese Americans or with civilians. General DeWitt, who was the commander on the West Coast, was pushed and pulled between various forces that wanted him to take a strong position or a weaker position. His own feeling was that, of course he distrusted Japanese Americans, his racist attitudes affected that, but he wasn't sure until near the end of that period that it was something that had to be done. Some of the people who became involved, General Gullion, for example, who was in charge of the army's law enforcement office, had no direct responsibility. They simply took over. Gullion's assistant, Col. Bendetsen, became the influential person between the War Department in Washington and the military on the West Coast. What Bendetsen did, in a sense, was to coordinate the political drive for internment, members of Congress in Washington, to help establish that as a force and factor, and then bring that pressure to bear on DeWitt, so that DeWitt couldn't resist it. Bendetsen framed the basic recommendation himself. Assistant Secretary McCloy, who had been delegated this responsibility by the secretary of war, really allowed his subordinate officers, Gullion and Bendetsen in particular, to assume control of a decision that was not their responsibility. At the same time, the Justice Department was in a bind. Lawyers in the Justice Department objected to evacuation on constitutional grounds. They also didn't think it was necessary as a practical thing, but they deferred to the military instead of asserting their own jurisdiction that they were charged with enforcing the laws. They simply gave it over to the army. They allowed the army to take the heat for evacuation because they were unwilling to do that themselves.

<Begin Segment 5>

Q: With Gordon Hirabayashi, could you kind of describe the statement that he had written, and why he wrote it...

Q2: Just sort of starting with that and going through the process.

Q: Yeah, going up through the rest of the levels.

PI: When Gordon decided that he would challenge the evacuation, he prepared for it by writing a statement. about a four-page statement: "Why I am refusing to report for evacuation." It's a very interesting statement, because it put in his own words his moral objections, reference to his constitutional rights, why he felt that the government had no right to force him into a camp. He prepared this with a lawyer who was a friend of his, a member of the Quaker meeting in Seattle, Arthur Barnett. And they put it together and then went to the FBI. Gordon called the FBI, said he was gonna turn himself in, and he went there, presented them with the statement. They first tried to talk him out of it. They took him to the evacuation center, asked him to sign the forms and go to the camp. He refused to do that. Then they decided to bring a charge against him for violating the evacuation order. But they discovered when he was in the FBI office, an agent went through his briefcase and found the diary that he'd been keeping during this whole period in which Gordon had admitted violating the curfew. He said, "I went out past the forbidden line tonight, it felt very strange. I got a lift out of beating the silly curfew." So they added another charge against him.

[Interruption]

PI: When Gordon first got arrested, turned himself in, he was represented by Art Barnett, who was a young lawyer, felt he didn't have a great deal of experience in constitutional cases, so they recruited an older, more experienced lawyer who they thought would be able to communicate with the judge. The judge in that case, Judge Black, was a very conservative former prosecutor who had already ruled in an earlier case of a woman who attempted to challenge the curfew that Japanese were disloyal by nature. He was, I think, clearly prejudiced against Gordon, and they felt that a more conservative lawyer would have a better chance with that judge. But when the case went to trial, they found first of all that the judge was even more adamant about Gordon's case. He felt that it was disloyal to even challenge the evacuation or the curfew. The jury was composed entirely of elderly retired people, most of them American Legion members. The trial was very short. Gordon testified on his own behalf and he had character witnesses, but it was all a foregone conclusion. The judge instructed the jury to find him guilty. Said, "Based on his admission that he violated the curfew, did not report to evacuation, you have no other choice but to find him guilty." Now, that was a violation of legal rules. The judge isn't entitled to do that, but he got away with it. The jury took ten minutes to convict him.

Q: Do you want to go on further on to the appeals? Can you tell us about his appeal process and what happened?

PI: Well, after Gordon was convicted, his case was appealed along with Fred's and Min's to the Circuit Court of Appeals in San Francisco. All those cases were argued together. The government lawyer who argued before the court was Edward Ennis of the Justice Department in Washington, who personally was opposed to the evacuation. He felt that it was unconstitutional, but he felt an obligation to present the case to the court. He did so without really using inflammatory language, although one of the other government lawyers did say, "There's a danger of this invasion, Japanese can't be distinguished from enemy soldiers," but the court in that case, on the appeal, really felt that these were questions that were so important that they would rather defer them to the Supreme Court. So what they did, rather than deciding the cases, was simply kick them up to the Supreme Court by submitting a list of questions that they wanted the Supreme Court to answer. The Supreme Court then decided rather than answer these constitutional questions, they would decide the cases themselves.

<Begin Segment 6>

Q: In Min Yasui's case, could you describe for us the background leading up to his arrest and then what happened after that?

PI: Okay. Min turned himself in, as Gordon had. In fact, Min was the first -- let me start that over again. Min was the first person to bring the challenge to any of the military orders. The day the curfew became effective, March 28, 1942, Min had decided to get himself arrested for curfew violation. He was supposed to be in his home by 8 p.m. He went downtown in Portland after the curfew hour and walked around the streets, trying to find a police officer to arrest him. He'd go up to the police and say, "I'm a person of Japanese ancestry," he had his birth certificate with him, "here's a copy of the curfew order, I'm violating it. Please arrest me." And the police officer said, "No, we don't want to get you in trouble. Just go on home." He finally had to go down to the central police station and almost beg them to arrest them, which they finally did, put him in jail and held him there over the weekend. When Min's case came up for trial, it was unusual because it was not a jury trial; it was simply before the judge. They'd waived the right to a jury trial. But there was, in a sense, a jury, because the judge had asked eight lawyers in Portland, very prominent lawyers, to sit as advisers to the court on the constitutional issues. The judge in Min's case, in fact, was convinced that the curfew order was unconstitutional as it applied to American citizens, but he also felt that Min wasn't an American citizen, even though he had been born here, because he had worked for the Japanese government until the time of Pearl Harbor. So the case revolved really around those two questions, not whether Min had violated the curfew, which he admitted. And when he decided the case, the judge ruled that the curfew was unconstitutional, which was the only judicial ruling to that effect in any of these cases, but that Min had given up, voluntarily, his American citizenship. The Justice Department didn't even agree with that position, so they appealed the case on both sides because of the inconsistent rulings of that judge.

Q: Could you tell us about the sentence that Min had received?

PI: Min was the first of the defendants to be tried, but the judge held off sentencing him and pronouncing a verdict for several months because he wanted to wait for his constitutional advisers to give him opinions, and I think he also wanted to see what happened in the other cases, Fred's case and Gordon's case. So he wasn't finally sentenced until November of '42. The judge handed down the maximum penalty, a year in jail and a five thousand dollar fine for violating the curfew order. It was actually the stiffest sentence for the least serious crime.

<Begin Segment 7>

Q: Could you tell us about Fred 's arrest and how that came about, and his process?

PI: Okay. Fred's arrest was much different than Gordon's and Min's. He didn't turn himself in as a test case. He was picked up actually standing on a street corner waiting for his girlfriend in San Leandro. He'd gone into a drugstore nearby to buy a pack of cigarettes and Fred thinks that he was recognized by somebody in the store who called the police and said there's a Japanese person at large. so he was picked up by the cops and taken down to the police station, and at first, he refused to identify himself. He had a forged draft card with a different name, he said that he was Spanish Hawaiian ancestry, and after a while in the police stat ion, somebody recognized him and said, "Oh, I know that person, it's Fred Korematsu." So he confessed to who he was. And he was then sent around to three or four different jails. Nobody could really decide what to do with him. He was sent to the military prison, he was sent to the county jail, federal jail, city jail. When Fred's case was tried, it was probably the most interesting of the three trials, because the trial itself took a very short time. The question was, was Fred a person of Japanese ancestry? Yes. Had he violated the exclusion order? Yes. But when the judge convicted him, and he set bail, Fred was free to go on five thousand dollars' bail. And the ACLU lawyer there put up the five thousand dollars, and the judge was going to let Fred go. But there were military police in the audience, and one of them jumped up and grabbed Fred and pulled his pistol on him. Said, "You're coming with me," and everybody got totally flustered. The judge didn't know what to do. He promptly raised his bail to ten thousand dollars. The ACLU put up the $10,000. The MPs kept dragging Fred out of the courtroom. The lawyers were all yelling, you know, "This can't be done." So the judge finally said, "Well, if they have orders to take him, I'll let them go." And so they took Fred back to the military prison.

Q: With the ACLU, could you tell us how they became involved in, say, Fred's case?

PI: The ACLU learned about Fred's case from the newspapers. They'd read about his arrest and the arrest of three or four others for violating the evacuation orders. And Ernie Besig, who was the ACLU director in San Francisco, went to the jail they were being held in and asked these three or four men if they would be willing to let the ACLU represent them as test cases. The others declined. Fred was the only one who agreed to do that. Besig recruited a lawyer to represent Fred, Wayne Collins, who had a very, a one-man practice. Was very passionately committed to Fred's case, but as a lawyer, he was overly emotional, overly rhetorical. The briefs that he wrote to the Supreme Court, I think, were damaging to Fred's case. He threatened the Supreme Court; he said, "If you do not reverse this conviction, the members of this Court will live in infamy." And that kind of rhetoric, I think, is not helpful to your client's case. On the other hand, Collins believed firmly, I mean, he had a real passionate commitment to this case.

<Begin Segment 8>

Q: Can you tell us about the kind of sentence that Min Yasui received?

PI: Min was given a year in prison and a $5,000 fine. And after his sentence was imposed, he was sent to the county jail in Portland. And he spent nine months there in solitary confinement, something that obviously really affected him. And he still talks about rotting in a stinking jail cell for nine months. It must've been a very bad experience. After he was released, I guess at the end of his good time, he was sent to the internment camp in Minidoka, Idaho, and he spent some time there. While he was in the camp, he was reconciled with the JACL, which had not supported his case originally, in fact, had opposed his case. And one of the things he did was to visit the camps in which young men had refused to register for the draft to try to persuade them that it was their patriotic duty to register and go in the army. And he had some very tense and emotional confrontations with these young guys who were being held in jail for resisting the draft. He said, "You have an obligation to support your country. It will show that you are patriotic citizens." And some of these guys said, "But they have my family behind barbed wire. How can I defend a country that's gonna keep my own parents, brothers and sisters, locked up for no good reason?" And so Min had this sort of internal conflict. He opposed the internment, the evacuation, the curfew, as a legal principle, but he also felt the Japanese Americans had a duty to defend the country, to show that they were loyal, patriotic. It's sort of a conflict or contradiction on the surface, but I think what it really reflects is his own feelings that you take a legal stand, but you don't let that stand influence your general duties and obligations to the country.

Q: Can we talk a little about the irony of Min's extreme patriotism and the evacuation and his imprisonment? Do those things really go together?

PI: There is some irony in Min's position, particularly in his initial decision to resist on legal grounds, the curfew, and then trying to persuade the young men to go in the army. But I think it's an irony that is, comes out of his real, his background, his whole approach. I don't think he himself feels that contradiction. He describes himself now as 110% patriot and think that of all of the resisters, he's the one who really displays the most basic attitudes of the Japanese American community, that the whole experience was shameful to them mostly because they were so loyal, they were so patriotic, being singled out, being accused of disloyalty, made them feel humiliated. And I think Min's response to that was to become even more patriotic, even more loyal.

<Begin Segment 9>

Q: While we're on that, can you talk about the JACL's role in the internment, also Mike Masaoka's statement about not supporting Korematsu and Yasui and the antagonism in the Japanese American community against the JACL because of their role?

PI: The Japanese American Citizens League was in a very uncomfortable position. Mike Masaoka, who was their director at the time, was a young guy, didn't have much experience in politics. He was a very forceful person but he didn't have anywhere to look for leadership or guidance. The older Issei were all in the internment camps. The JACL's position was that in order to prevent more serious harm to Japanese Americans, violence against them, they would go into the camps. One consequence of this was they refused to support the legal challenges. The JACL issued a statement that repudiated Min Yasui's curfew challenge. They refused to support Fred's case as well. Inside the camps, the JACL became the focus of a lot of conflict, even violence. JACL members had informed to the FBI on people they considered dangerous or disloyal. The informers were called "inu," the Japanese word for "dog." A lot of them were harassed, several were beaten up. Out of one of these instances, there was a riot in which the military pol ice shot and killed two people. The JACL, I think, was in an almost impossible position. Mass resistance was unthinkable, there simply weren't enough people, there simply wasn't enough leadership or experience. It wasn't like the Civil Rights Movement of the 1960s, where you had a real community base and support. Having decided to cooperate, they were in the position then of being identified with the government, and as conditions in the camp became more difficult and people began to feel that there had to be some protest, the JACL became the focus for a lot of hostility.

<Begin Segment 10>

Q: How did you become interested in these three cases? And can we talk about your initial contact with the three men also?

PI: I started out, initially, to write a book about the cases, simply from a legal perspective. I wanted to look at how the lawyers on both sides, the government lawyers, the defense lawyers, developed their legal strategies and their arguments and how the courts handled the cases. But I also wanted to look at the actual defendants, get some idea of what kind of people they were, how they decided to make their challenges. So I interviewed them as part of the research for my book. And the research that I'd done uncovered the Justice Department records that showed the suppression of evidence in the cases, the destruction of evidence. And when I presented these records, showed them to the defendants during my interviews with them, they said, "Is there any way we can reopen these cases? Do you think we have a grounds for doing that?" And I said, "Well, obviously, you can't guarantee that the cases could be reopened or even reversed. But I think it's worth doing if you're willing to undertake it." And they all were eager to do that, they asked me if I would help represent them. I recruited a large group of Japanese American lawyers, most of them on the West Coast. Obviously, one person couldn't have handled all three of these cases, very complicated, a lot of evidence. So putting together the legal team really made it possible to bring the cases to completion.

Q: What was your contact with Korematsu while [inaudible]? What was his response when you had told him about what you had found?

PI: When I first approached Gordon and Min, they were eager to talk to me; they were very open about their cases, very interested in having them reopened. But Fred Korematsu, I had been told by a number of people, had a policy of not talking to anybody about his case. He had politely but firmly turned down invitations to be interviewed or to speak about his case. So I approached him by saying I was writing a book but also that I had documents that I thought he would be interested in seeing about his case that showed that the government had, in its own words, lied to the Supreme Court about his case. So Fred was very hesitant, very reluctant to talk to me, but when I finally did meet with him, he told me about his trial and how he'd gotten involved and then he looked at the documents I had brought with me, and he read them very carefully, slowly, obviously with a great deal of interest. And when he finished, he looked up at me and he said, "You know, they did me a great wrong." He said, "Would you be willing to represent me?" And I said, "I'd be glad to."

Q: Can you describe your feelings about Fred as a person? What kind of guy he's like.

PI: I think Fred is probably the most, in a sense, typical of the three. He's not a person who thrust himself into the spotlight. He didn't willingly undertake this, it was a personal decision he made by himself. Since his case was decided by the Supreme Court, he led a normal American life. President of the Lion's Club in his town, active in the Little League, holding his job as a draftsman. And I think that from the time that I first met Fred until his case was eventually decided, his conviction was vacated, he's come more and more to think of himself as a person who is a symbol of what happened to Japanese Americans, to accept that role, to expose himself to the public again, to undergo another court hearing. In a sense, I think he is now willing to express all the emotions that he felt for forty years but didn't want to expose to anybody.

<Begin Segment 11>

Q: Could you talk about your uncovering of the suppression of evidence and how you came across it and what it means?

PI: When I started research on this book, the first thing I did was to ask the Justice Department for its files in the cases. It took a while to find them and uncover them. They'd been lost thirty years ago, but the government finally provided them to me. What I was looking for were really the documents that dealt with the government lawyers' strategy in these cases. What kind of arguments they were gonna make, what kind of cases they would cite, how they would develop the cases for the Supreme Court. What I found was totally shocking to me, was virtually the first document in these boxes was a charge by one of the Justice Department lawyers to the Solicitor General of the United States who argues all cases before the Supreme Court, is responsible for them. That crucial evidence in these cases, dealing with the loyalty of Japanese Americans and the military's argument that espionage had been committed was false. That in fact, this evidence was contradicted by the reports of other intelligence agencies. The government's own lawyers said, "There is a suppression of evidence in these cases. We have presented evidence to the Supreme Court that is based on lies and intentional falsehoods." General DeWitt's report justifying the evacuation was at the center of these allegations. DeWitt's report said the Japanese Americans belong to an enemy race whose loyalty cannot be presumed, that Japanese Americans had committed specific acts of espionage, that they had sent illegal radio transmissions to Japanese submarines off the coast, that they had made signals from the coast by light. The government lawyers, when they first found General DeWitt's report, asked the Attorney General to authorize an investigation by the FBI, the Federal Communications Commission, Naval Intelligence, of DeWitt's charges. The reports from those agencies showed beyond doubt that DeWitt had no foundation either for his charges of disloyalty or for his charges of espionage. The lawyers then asked the Attorney General to admit to the U.S. Supreme Court that these charges were false. In other words, to confess to the Supreme Court that they had been misled. Those requests were ignored. The government case presented to the Supreme Court, argued by the Solicitor General, did not admit the existence of the contradictory evidence. It presented the case as if DeWitt's charges were in fact true when they knew that they were not.

<Begin Segment 12>

Q: Can you tell us a little bit about the Supreme Court decisions and some of the government arguments that were presented as well as dissenters? There were some people...

PI: Okay. The Supreme Court issued rulings in four cases dealing with the evacuation and internment. The first two in 1943, the curfew violations of Gordon Hirabayashi and Min Yasui. In those cases the Supreme Court opinions were unanimous. The argument made by the government was basically that there was evidence the Japanese Americans or a significant number of them were disloyal. There was a danger that they would commit espionage and sabotage. The lawyers arguing against the government had no basis on which to challenge those claims, so the Supreme Court basically decided the case on the government's disloyalty and espionage charges, which, of course, they knew were untrue. However, there was a, at that time -- and this of course was when the war was still hanging in the balance -- members of the Supreme Court were very reluctant to break ranks in these cases. That is, even one dissenting opinion would have opened the way for questioning of the internment and its validity. There was a member, Justice Murphy, Frank Murphy, who in fact had written a dissenting opinion in the Hirabayashi case, he was argued out of it. Justice Felix Frankfurter said to him, "If you dissent in this case, you'll be playing into the hands of the enemy." Murphy bowed to that pressure, withdrew his dissenting opinion, and the Court unanimously upheld Hirabayashi and Yasui's convictions. Eighteen months later when Fred Korematsu's case came before the court, along with the, a case involving a habeus corpus petition by a woman who had challenged her internment after she'd gone to the camps, a woman the government had concluded was loyal, there was more of a willingness at the end of 1944, when it seemed certain that the Allies would eventually win the war, for members of the Court to take a second look, have second thoughts about the internment, particularly because the Korematsu case directly challenged the exclusion itself and not just the curfew that proceeded it,

In this case, when the Court met after the arguments which were essentially the same arguments that had been presented a year earlier, the discussion and debate within the Court's secret conference room was much more wide open. Several members of the Court expressed grave reservations about what they had done in the Hirabayashi case. One Justice said, "It was the most agonizing decision I ever had to make." At the conference, four members of the Court, which is not a majority but a very solid minority, voted to reverse Korematsu's conviction. One of those was Justice William Douglas. Douglas, of course, is known as a great civil libertarian. But in this case, his dissent was based on a reading of the facts of the case when Korematsu had been ordered to report, when the orders allowed him to leave the area, rather than remain in the area, Douglas felt that he had been caught in a bind between two conflicting orders. One which said, "You can't stay," the other said, "You can't leave." In that situation, Douglas felt Korematsu could not be convicted of violating an order which left him no alternative. But again, Douglas was talked out of his dissent by Hugo Black who wrote the majority opinion, also a great civil libertarian by reputation. There were, however, three justices who remained firm in their dissents for different grounds. One felt that military orders which discriminated on the basis of race were inherently unconstitutional. Another, Justice Murphy this time, who revised his original dissenting opinion from the Hirabayashi case, basically brought it up to date, said, "General DeWitt's report was so full of contradictions, so full of unsubstantiated charges, that the Court really has not had an opportunity to look at the real facts." Now one thing that was very important in the decision, in the Korematsu case, is that two of the government's lawyers, before the case was argued, had prepared a footnote, a very crucial footnote to the case which explicitly repudiated General DeWitt's report, which said in fact that the Justice Department had evidence about loyalty and espionage that contradicted DeWitt. If that footnote had stayed in the government's brief, there's no question in my mind that the Court would not have upheld his conviction. It would have been a confession of error by the government. The footnote, however, was taken out. Assistant Secretary of War McCloy, when he saw the first printed version of the government's brief, objected strenuously, he said, "We have to support General DeWitt." So the Attorney General approved removing that crucial footnote from the brief. Even with that footnote out, three members of the Court still dissented. So I think that it's clear in retrospect that the outcome of these cases would have been different if the Court had had before it the facts the government were true, that were in its possession but were withheld from the Court.

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Q: Can you give some general background on the ACLU and their involvement in these cases?

PI: American Civil Liberties Union, at that time, was the only national organization which was devoted to protecting constitutional rights. During the 1930s, the ACLU had been very active in supporting the rights of workers to organize. Protesting discrimination against blacks, the use of lynching. At the time the war began, the ACLU was not a very large or strong organization. It only had about five thousand members around the country, only had a few chapters on the West Coast that were active. When the ACLU first learned of these cases, Roger Baldwin, who was its national director and had been since it was founded in 1920s, was very interested in becoming involved, providing legal help for Gordon Hirabayashi and Fred Korematsu in particular. But the ACLU's national board of directors, composed of people who lived in New York City, turned the ACLU against the internment cases. Most of the members of that board were either personal friends or political supporters of President Roosevelt. It was more important to them during wartime to back the President than it was to support a small racial minority on the West Coast. Most of the board members had never had any personal involvement, didn't know Japanese Americans. So that when the cases came before the courts, the ACLU took a position that it would not support any challenge to the constitutionality of Roosevelt's executive order. Their legal defense would be limited to very narrow issues. It made it difficult to argue the cases as completely and directly as lawyers would have wanted to be. So that the AC.LU's role in this, although it wound up supporting the cases before the Supreme Court, earlier during the trials and the initial appeals, the ACLU backed off from the cases, refused to allow its West Coast branches to support them. In fact, came very close to expelling the San Francisco branch because it refused to give up its support for Fred Korematsu. So a lot of internal division and politics that involved in the ACLU's role in these cases. Roger Baldwin himself consistently supported the rights of Japanese Americans, but he was bound to the directives of his board, which had voted by a two to one margin not to support the constitutional challenge.

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Q: Peter, can you tell about what the significance of these cases are today and why not just let it go? It happened a long time ago.

PI: The Supreme Court decisions in these cases forty years ago set forth the principle that military necessity or the claim of military necessity, whether it's true or not, will allow the Court to uphold discrimination on the grounds of race, the internment of an entire group of citizens without any searching judicial review. That is, the Court will not look behind the military's reasons. They won't subject them to the test of evidence, they Won't force the government to prove their charges that the members of this group are dangerous or that their race makes them a danger to the country. Those decisions have never been reversed. They remain on the books, even though most legal scholars, constitutional lawyers, today feel that the Supreme Court decisions were decided wrongly at the time, have been undermined by subsequent decisions. Nonetheless, they're still there. They're in the law books. They can be cited by the government as precedent. They can he used in some future occasion. to justify a similar kind of action against another group, a different crisis. That's why I think that the cases are, as Justice Jackson said, in his dissent in Korematsu, "a loaded weapon lying around for the hand of any authority with a plausible claim." Any loaded weapon is dangerous, even if it's just in a law book, in fact, perhaps more dangerous because it can be used to validate an action that cannot be challenged any other way.

Q: What's been the reaction of the Japanese community to the reopening of the cases?

PI: The Japanese American community has responded, I think, overwhelmingly with support for the reopening of these cases. A lot of the old wounds have been healed, the divisions between the Japanese American Citizens League and its critics. The younger generation of Japanese Americans, many of whom are involved in these cases as lawyers, feel that it's important for them to have the courts look at the cases again, reopen them, and ultimately to reverse them. It's important for symbolic as well as legal reasons. Symbolically, Japanese Americans still feel the stigma of being the only group in the history of this country singled out because of their race for this kind of treatment. What happened to them obviously could affect another group at another time. But personally for them, I think the desire to remove this stigma, the shame and humiliation, is really an important factor, and they have almost totally come together in support.

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Q: Peter, let's move back. The government wants to vacate the charges. Is there any point, do you think the... is the government afraid of this issue of suppression of evidence and having everything out?

PI: The government's response in these cases, essentially the argument that we should let bygones be bygones, put this unfortunate episode behind us, as they put it, I think is simply an evasion of the issues. The issues raised in the petition about the suppression of evidence, the lack of any real evidence the Japanese Americans constituted a danger to the country. The government doesn't want to confront these issues, partly because it knows that the petition is based on its own files. The government's own lawyers made these charges, not the petitioners. So for the government to deal directly with them would require them to admit the facts in the petition, which are incontestable in terms of the evidence they're based on. And secondly, the government, I think, as a political issue, is afraid of raising or reopening these issues for political reasons, it has a desire to portray itself as being sympathetic to minorities, a position which many people disagree with, and I think the government would simply, wants to walk away from these cases.

Q: Were you completely happy with yesterday?

PI: I think what happened in court, in Judge Patel's court, in the Korematsu case, was an amazing, extraordinary kind of judicial happening. It represented, first of all, the first time in history that the district court judge has in fact ruled that a Supreme Court opinion was wrong. Secondly, I think it's of enormous importance to the Japanese American community that the cases were concluded with a reversal. And thirdly, I think that it represents a tremendous amount of courage on Judge Patel's part to face up to these issues, to make the ruling that in effect has little precedent. Because there's never been a case before in which a lawyer court judge has wiped out a Supreme Court ruling.

Q: What, how do you think Fred felt about having won the case yesterday?

PI: Fred's reaction was, I think, understandable. He was overjoyed. He was delighted that he finally had a chance to make his case to the court in a sympathetic setting with the facts on his side, the facts that should have been there to begin with, forty years ago, but which were withheld. His own feeling, I think, is evident in his response when he was questioned afterwards, he said, "I had to do a lot of rethinking before I reopened this case. But now I'm glad I did."

[Interruption]

Q: Peter, how do you feel about having the reversal of the Korematsu case?

PI: I'm delighted, obviously, with the reversal of the Korematsu conviction. I don't think that it depended solely on evidence that I discovered that was the basis of the petition. I think eventually this evidence would have come out, either through the Commission investigations or the press looking at it, but I do think that my own personal satisfaction is that it represents to me the ability of somebody to participate in the legal process in a way that can help change what was one of the most outrageous decisions ever handed down by the U. S. Supreme Court. That, to me, is vindication enough.

Q: Does this affect the redress and reparations at all?

PI: I think the reversal of the Korematsu case and the other cases, obviously, is going to have an impact on the redress question. The judicial declaration by Judge Patel that the internment was not based on military necessity, that the government had suppressed the evidence of loyalty and espionage, is going to make the argument for redress stronger, give it some more backing. When it comes up for debate in Congress, I think that Judge Patel's opinion is going to cited and going to be used as a basis for the argument. Whether that can ultimately bring about the passage of redress legislation is hard to say, but at least it I'll make it easier to do.

Q: Can you foresee any negative reactions from the public in these cases?

PI: I think that every time the internment issue is raised in public, when the Commission was founded, when it issued its report, its recommendations, when these cases were filed, there is a reaction from one part of the public, those who are motivated, I think, partly by racism, partly by their own feeling that Japanese Americans were responsible for the attack on Pearl Harbor, this group will never be satisfied. Their minds cannot be changed. No kind of evidence can convince them that Japanese Americans were unlawfully detained, for no reason other than their ancestry, that they do not share any guilt for the attack on Pearl Harbor, that they were not responsible. But aside from that small and increasingly small group, as time passes, I think a much larger number of Americans are beginning to realize that this was an episode which was not only unfortunate -- which is the government's characterization -- but in fact, a tragedy. A tragedy to the legal system, a moral tragedy, a political tragedy, the kind of thing that requires a lesson. And I think that Judge Patel's opinion, in particular, will form the basis for that lesson, that is, if it's communicated to the public, people read it, people understand it, then the lesson will be learned.