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FO: When the evacuation took place, and the Japanese were first sent here in Southern California to the Santa Anita Assembly Center, the local affiliate of the American Civil Liberties Union -- at that time, it was called the Southern California chapter of the ACLU -- took the position that the evacuation was unconstitutional, and they passed a resolution seeking to challenge the order, and to challenge the evacuation. Not so much the order itself but the evacuation, because it was only against the Japanese. I was a young lawyer in an office known as Gallagher and Wirin, Al Wirin, who was a fantastic constitutional lawyer, represented the ACLU. And I was just out of law school maybe about a year, was with the firm maybe six or eight months, so I was designated the task of going out to Santa Anita and finding a plaintiff. I was engaged in what the lawyers call champerty, you find a, find a plaintiff, which under some circumstances is unethical, but not under these.

I came out to Santa Anita and I couldn't get in, they wouldn't let me in, I didn't know who to talk to, there was barbed wire and lots of people. All of a sudden I saw a fellow with whom I went to UCLA, an undergraduate, Johnny Yamasaki, and he was a minister, had his white collar on, and I said, "Johnny, what are you doing in there?" as if I didn't know. And we talked, we were talking through the wire and I told him what I, what I was out there for, that we wanted to find somebody who would be willing to challenge the evacuation, and we needed somebody who was, had what we called sex appeal, somebody who was, would make a good public relations person. Now, whether or not it was Johnny who put us in touch, I don't know. But not too much later after I'd been out there, Ernest Wakayama and a few other persons were arrested. There had been an order sent down -- and I'm not sure who promulgated it -- but the effect of it was that the inmates, the internees at these camps, could not hold meetings at which a language other than English was spoken, and they could not discuss the current war. They couldn't discuss the war with Japan, they couldn't discuss the war at all. And so they did discuss the war.

FC: What constituted a meeting? How many?

FO: Well, three or more, I guess that was a meeting. And they were charged, they were criminally charged and indicted for violating that law or that order. And as I say, I'm not sure how we heard about it but we did, and Al Wirin and a wonderful old gentleman who had been general counsel for the Santa Fe Railroad, who was doing volunteer work for the ACLU, E.W. Camp, and I, said we were going to represent them in their, in their criminal case.

Well, attorney General Biddle heard about, obviously, sooner or later the news trickles up -- sometimes it doesn't trickle down -- heard about the indictment and immediately said to dismiss the indictment because it was such a foolish thing. Which left us with no challenge, we were going to use the criminal case as the basis to challenge the evacuation, but then we didn't, they didn't have the criminal case, so what to do? Again, how it came about I don't know, but sooner or later, we, Al and I and Mr. Camp, represented Ernest Wakayama and his wife Toki, we filed a petition for writ of habeas corpus challenging, directly, the evacuation, the evacuation. And the order to -- incidentally, there was a, there was somewhat of a conflict of opinion among the pundits as to whether the evacuation order itself was invalid. I really didn't care much about that because that was an order that was handed down that theoretically applied to everybody, but when they only applied it to the Japanese, that made it clearly unconstitutional. So we filed this petition for writ of habeas corpus, the object being it's just a legal term and object being to challenge the evacuation and get an order, that it was unconstitutional. And we were going on pretty well, we resisted motions to dismiss. And then I, I was drafted and went into the service, and I kept in touch with the office.

One day I was in Texas at Camp Howe, I got a letter from Wakayama, from Ernest Wakayama, and he said, "I've had to withdraw the lawsuit. My wife and I have decided to do that," and he explained, he said, "There's been, there was such dissension in the camp, there was such disagreement among us, among the Japanese who were in the camp, as to what the right thing was to do, whether to challenge it, whether to go along. There was no question in my mind that it should be challenged, but my family was physically threatened with physical harm and I just decided I didn't want them to suffer that." And that was the end of it. So that case would have been -- 'cause we were the first ones -- we would have gone, our case would have gone to the Supreme Court and challenged the evacuation. I suppose it would have, the result would have been the same as in the Korematsu and Hirabayashi cases, but those are the cases that got to the Supreme Court.

FC: If this habeas corpus case had gotten to the Supreme Court, what do you think would have been the result?

FO: Well, judging from the past history of what happened in Korematsu and Hirabayashi, the Court would have ruled against it as they did in the Korematsu case was a criminal case. But the issues are the same. In habeas corpus you tell the court, "My person is unconstitutionally, illegally being detained, I want him freed -- or her," and the court has to make that decision, "Yes I'll let that person out from detention or not." In a criminal case you tell the court, "They want to put my man in jail, he shouldn't be put in the jail." So in answer to your question, the result undoubtedly would have been the same; the legal issues are the same. The personnel would have been different, but the results would have been the same.

FC: Had Wakayama not withdrawn his case, how far would it have gone?

FO: Oh, it would have gone to the Supreme, there was no question about it. We were prepared and Al was prepared to go. The way, the legal scenario would be something like this, we'd have a hearing, present our legal arguments, they would present their arguments. Oh, I want to, I want to just mention one thing. We had a number of legal, legal points to present, the main one, of course, was there wasn't military necessity. You see, the reason I want to bring that up now is because that was the ground that the United States Supreme Court allowed the, the evacuation to be sustained, on the ground that the military had said there was legal, there was military necessity, national defense necessity for the evacuation. Therefore the Supreme Court said, "Well, we're just nine old men up here, we're not going to, we're not going to overrule a military decision." But we took the position that there was no military necessity and later on in the coram nobis cases, you know, that's what, that finally came out. Anyway, the scenario is we'd present our arguments, the court would say, "Petition for writ of habeas corpus granted, at which case the Wakayamas walk out of the, walk out of the camps. Of course, the government would have said, "Hey, wait a minute, wait minute. Give us a stay of execution, or stay of that order," and they would stay in camp and they would appeal to the United States, to the United States Court of Appeals for the 9th Circuit, then office in San Francisco. Or it could have been the other way. "The petition for writ of habeas corpus is denied," says the trial judge here in Los Angeles, in which case we would appeal. Go to the 9th Circuit, have a hearing, either way it certainly would have gone to the Supreme Court by way of petition for writ of certiorari. So the, that's the way it would have gone, it didn't.

<End Segment 1> - Copyright © 1995, 2005 Frank Abe and Densho. All Rights Reserved.