Densho Digital Archive - Fred Okrand Interview

<Begin Segment 1>

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.

<Begin Segment 2>

FC: Tell me a little about Al Wirin, Abraham Lincoln Wirin.

FO: Well...

FC: Big man, short man?

FO: Well, Al Wirin was big in every way, I mean, compared to me. He was over six feet and compared to me he was a giant, a giant of constitutional law and a man of great compassion. Really great compassion. He was a good PR man, he knew how to, how to tell the public what the case was all about, how to get their sympathy, and a magnificent constitutional lawyer. I met him, as I say, it was 1941 when I met him, shortly after getting out of law school, and we struck up a very cordial, wonderful relationship until he died. We jointly -- I guess you could say later on -- represented the ACLU here in Southern California. He spent probably three-quarters of his time, first at, with no compensation, then with a little bit, and I spent about half of my time. Great lawyer, great lawyer.

<Begin Segment 3>

FC: Was the Los Angeles office chapter of the ACLU, were they the only office looking for a plaintiff?

FO: Oh, no. No, no. San Francisco did, too. They were looking for, and as you may know, Wayne Collins -- who was, got this sort of a Al Wirin kind of a person up there -- sought to do it. And I can't remember whether Wayne represented Hirabayashi and/or Korematsu, I can't remember that. Be in the books, of course, but certainly he was involved, absolutely. And I guess, well, let's see. Hirabayashi was a Seattle person, so that was the curfew, so he probably wasn't involved in that directly. Probably was involved in the Korematsu case. Oh, yeah, but the San Francisco and the Los Angeles office was very definitely involved in getting it tried.

There's, the national office, there was a philosophical debate that went on again as there had been, as to whether the order itself should be challenged as distinguished from the evacuation. I don't know if I made that clear. As I say, many people thought that the ACLU should have challenged the order, Executive Order 9066 and Public Law 503, I think, was the number. I wasn't here during that debate 'cause I was away, but I don't find much, much in that debate at all. As I look back, the order itself, the order itself, which, of course, everybody knows about, 9066, didn't offend me because, again, it was military decision. Whether it was right or wrong, that's another question, but it was a military decision that says that the president said the military commanders can kick anybody out if they, he or she -- he at that time -- felt it was necessary for the national defense. Well, that's, kick anybody out, I mean, all right. It's like, like, I try to analogize, say there's a fire and the fire department makes lines around it and says, "Nobody can come in. They just can't come in." Well, who can really holler about that? But if they say, "Everybody can come in but the Japanese," now you got, now you got something that you can holler about. So I, as I say, I don't find much truck in the argument as to whether the order was bad. What was bad was the evacuation. That was what was bad. But here, here in Los Angeles and San Francisco, we felt both were bad.

<Begin Segment 4>

FC: You could understand the dissension inside Japanese Americans, you said?

FO: Yes, I can.

FC: Talk a little about that.

FO: Well, I -- and I get much of this, I got much of it, of course, from that letter that Wakayama sent me, but also I've done a considerable amount of reading of the literature about what happened in there, and the impression I get and the material that I've read is that there was a great deal of conflict inside the camps themselves as to how the Japanese should comport themselves, what position they should take. There were those who said something like what the JACL, apparently, position was: "look, we're being wrongly treated, but we're not -- and they're calling us disloyal." Not only that, they classified everybody as "enemy aliens" and all that stuff. "They're calling us disloyal, they're wrong, we're not disloyal and we're going to show our patriotism by going along with, with the order. More than that, we're going to try to get people to volunteer for the army," and they got all that stuff, "even though it's a segregated unit, we're going to show that we're patriots and that's how we'll show that they're wrong." On the other hand, there were people like Wakayama and others who were more vociferous than Wakayama, said, "Hey, wait a minute. Look what they're doing to us. We're Americans, we're not enemies, we're not 'enemy aliens', certainly the American citizens are not, and these aliens here were aliens but they're not enemies. It's wrong; we have to resist." And, of course, the pinnacle of the, culmination of that, that idea was the Heart Mountain resisters. And I can certainly understand both of them. I can understand it.

FC: Was Wakayama... was Wakayama a good plaintiff?

FO: Oh, he was a perfect plaintiff, just so perfect. He was a World War I veteran, served his country. He was an American Legionnaire. As I remember, he couldn't speak Japanese -- I don't know what he was doing at that meeting. [Laughs] He spoke English. He'd never been to Japan, he was just the perfect person to test what was being done to him. How can you consider him to be dangerous, this kind of an American? And he was an American person, just a perfect plaintiff We lost him as a plaintiff, is what happened. [Laughs]

<Begin Segment 5>

FC: What attracted you, young lawyer, to join the ACLU? Why not big money, private practice?

FO: Well, I'll tell you. It's a kind of a long, interesting story. I went to undergraduate school at UCLA, and I was on the freshman tennis team. One Saturday morning we had a meet out at UCLA. I lived in Boyle Heights on the east side of town, it was a long trip, didn't have a car, was taking the bus out. And on the seat next to me, I mean, there just happened to be a pamphlet about the ACLU. And I read it, and I was very much interested, and I thought, "Gee whiz." I wasn't quite sure I was going be a lawyer at that time, I didn't know what I was going to do, I was just a freshman. But I said, "That's something that I'd like to think about," and over the years I remembered that. And I went to law school, and as I went to law school, I took constitutional law, and I said, "That's the kind of work I'd like to do. It's just something that I'd like to do." And when I got out, I didn't have any connections at all, I was envious of other guys in my class, they had people they could go to and everything. And I didn't have, I didn't have any money to start my own office. One of my classmates happened to know Al, in a limited sort of way and I talked to him, and he said, "Well, why don't you go up and see if you can get a job in that firm? They had a firm, a small law firm called Gallagher and Wirin. And I went to see... well, the first guy I interviewed with was Gallagher, then I met Wirin. They did have an opening, and I went on at twenty-five dollars a week as a lawyer. And because Al was so involved with the ACLU, and he asked me to be sort of an assistant for him, so I, as much as I could, I did ACLU work and neglected the money part of it. But... and that's all, and I've been, as I say, I was, all my professional life I was with the ACLU, first as a volunteer and then as the director, I was emeritus. But that's, it was just... what attracted me? I don't know what inside attracted me, but that's what I wanted to do. [Laughs]

FC: Has it been worth it?

FO: Absolutely, no question about it. I think that there's no organization that I can think of more worthy of support than the ACLU. And as I mentioned earlier, sooner or later two things happen about, happen about the ACLU: sooner or later they make an enemy of everybody, and sooner or later everybody needs the ACLU. So I think it's a great organization.

<Begin Segment 6>

FC: You had no contact with the JACL during war?

FO: No. I must, I must confess, I didn't know anything about the JACL. Didn't even know it existed until after the war. After the war, we did a lot of work for, with Japanese and with the JACL, and I became acquainted. As a matter of fact, Saburo Kido for a while was in our office, after the war, as a lawyer.

FC: Gallagher and Wirin...

FO: Well, Gallagher was long gone. That's another story. [Laughs] No, Al was there and Frank Chuman.

FC: Oh, yes.

FO: Do you know who the... Frank Chuman was in the office, then I came and Saburo Kido was there and for a while, John Mayeno. Mayeno, another Japanese lawyer. And for a while... forget his first name, he's the father of Mike Yamamoto, who's the present president of the Japanese American Bar Association, we did work with him. So we had a lot of, of Japanese clients, both for domestic problems and over, lot of Japanese were caught, the Kibei were caught in Japan when war came. And we had a lot of work for them, getting them back to the United States. They were first refused by the State Department, the State Department said they had lost their United States citizenship. We had hundreds of cases involving those people. So that's, that's my... so as I say, I became very familiar with Japanese people in general, and with the JACL, Mike, Mike Masaoka.

FC: What did you think of Mike?

FO: Well, I must tell you, I've read some very serious criticism of Mike, but he's probably one of the finest lobbyists that anybody ever had. I mean, he was, he was just great at getting people who would, you'd think would be against what the Japanese were doing, to get, and they got a number of laws passed. You know, the Nationality Act, the First Compensation Act, he was a great lobbyist. I thought he was a great person. I understand the criticism that has been leveled at him by those who felt that the JACL was counterproductive and all that sort of thing, but he was very capable individual. Absolutely.

<Begin Segment 7>

FC: Would you explain the term -- for me who doesn't understand anything Latin -- coram nobis? What's a writ of coram nobis?

FO: A writ of coram nobis is a -- I don't know what the Latin translation is, but the purpose of it is after there's been a conviction, a final conviction, as there was of Korematsu and Hirabayashi, if there are facts which had they been known at the time of the trial, might have or would have caused a different decision to be made, the court will give relief. And that's what happened later on with the Korematsu and the Hirabayashi case. And the fact that was known -- I don't know if you know -- that was not known at the time, was that there wasn't any military necessity. [Laughs] And the thing that is intriguing is that in the brief that the Justice Department presented to the United States Supreme Court in support of the evacuation and of the, of the curfew, there was a footnote that originally said that, virtually said that, and that was changed. When it got to the higher, the lower guys who wrote the brief in the first instance, told the truth. [Laughs] When it got to the higher guys, they changed it around. I don't, I wouldn't exactly call them liars, but they changed it around so that it appeared to the Supreme Court that there was military necessity.

Well, later on, a professor at the university in San Diego, Peter Irons, discovered through the archives and getting historical data, this, this change in the footnote -- it's interesting that a footnote should have such, such significance -- and succeeded in getting the courts to set aside those convictions. So that Korematsu and Hirabayashi are not felons. [Laughs]

FC: You've met some of the resisters from Heart Mountain.

FO: Yes, I did. As a matter of fact, I had the distinct pleasure and honor of presenting them with a citation at the last ACLU garden party. Yes I did, about ten of 'em came for that meeting. They all looked pretty okay to me. [Laughs]

FC: Why were they being given this citation?

FO: Well, as you know, and this, of course, again is just part of history, they were really vilified, by perhaps the JACL people, for taking the position that they did, they were called traitors and so on, and they must have had a hell of a time standing up for principle. And we in the ACLU for years have taken the position that people who stand up for principle ought to be recognized, and so we gave them a citation this last time in recognition of their position. So that's how it came about, and I was chosen -- and I was very happy -- to make the presentation.

<Begin Segment 8>

Male voice: With all of evacuation, though, besides L.A., San Francisco, Seattle, wasn't there someone who said, "Wait a minute, has got to stop," who went further than you guys did?

FO: Well, sure. Hirabayashi refused to stay home during the curfew, so he was prosecuted, and Korematsu refused to evacuate, and so he was prosecuted. So those were the cases, and those were the ones that went up, I don't think there were any others that I can remember. Now, there was another case in the Supreme Court, which shows, it shows something about our jurisprudence. Mitsuye Endo, who was a woman who was evacuated forcefully and she was in camp, and she says, "I want out. I want out of camp. Your order, 9066, Executive Order 9066 and Public Law 503 say that the military commander can kick anybody out of California or out of the Pacific zone, California, Oregon, and Washington, if he wants to. But it doesn't say that you can keep me in jail." And her case came before the Supreme Court, and the Supreme Court said, "You're right." Without... the term was "loyalty." "You can't keep a loyal American in jail."

FC: Hers was a habeas corpus suit, too, wasn't it?

FO: Yeah, hers was habeas corpus. I mean, that was the way to do it, you see. And so what I was saying is, I, that gives me a pretty good deal of comfort about the Supreme Court even at that time, even though they were misled about the military necessity, said, "Hey, wait a minute. Okay, the army says you kick these people out because you think it's necessary for our defense, but you can't keep 'em in jail if they ain't done nothing." So that was good. I thought, I got a good deal of pleasure out of that Endo case.

Male voice: So, but since that was the decision, "you can't keep me in jail," how did they keep 'em in jail?

FO: They didn't. No, no, anybody, anybody really could get out, but there again is the human equation, where are they going to go? Now, there were a bunch of them, as you know, went to New Jersey, to Seabrook Farms, and got jobs. Well, that's fine, and many of 'em went to Chicago, lot of people went out, but a lot of people stayed because where are they going to go? Some of 'em went to, like, Oklahoma, and there'd be, they'd find signs, "No Japs allowed here," and that sort of thing. Well, so they had to stay in camp. They had to, they had no, couldn't get jobs, families were split and all that.

<Begin Segment 9>

FC: What are the alternatives? An obnoxious law comes up. An obnoxious law, I don't like it, you don't like it. You're a lawyer, what can I do to get rid of this obnoxious law?

FO: Well, it depends on what it is. Now, if you're an ACLU chapter or affiliate, or an ACLU lawyer, you go out and get a client. Once in a while -- well, I've been a plaintiff in a lawsuit. Here, I got a call from Carol Sobell, who's one of the lawyers at the affiliate here, and she said, "They're putting up a menorah," you know what a menorah is, a Jewish thing? "And we think it's a violation of the separation of church and state clause of the First Amendment. Will you be a plaintiff?" Well, as a taxpayer, under California law, I could do it. So, so I became a plaintiff. But what you do if you're just an ordinary -- I mean, not ordinary -- if you're not a lawyer and you don't like it, one thing you can do in California is go hire a lawyer and say, "Take my case." But some laws you can't challenge. They may be obnoxious, but they may be legal, and you may go to a lawyer and say, "Hey, I want to challenge it," and they'll say, "You're wasting your money. Don't do that."

FC: By "challenge" you mean break the law?

FO: Well, you can break -- oh, that's, that's an easy way. Sure, if it's, if it has criminal sanctions and you break the law, you'll be charged and you can test it. That's what we tried to do with the Wakayama meeting in the first instance. Yeah, that's, that's one way of challenging. Now, that's a pretty courageous way to challenge the law, because if you lose, you go to jail and you've got a record and all that kind of stuff. That's a, that's a tough decision to make. Some people make it. A lot of the draft resisters, well, the draft resisters did it. They just took that, and fortunately for the them on the criminal side, they had a good lawyer like Al, and they won their case on appeal. But if they'd have lost, they'd have this stigma against them all the time, unless again, the coram nobis would come along, Peter Irons would do his work. [Laughs]

<Begin Segment 10>

FO: There was great emotion at the time, obviously, for sure. Well, when we were representing Wakayama, our office was on Third and Spring. Courthouse was up on Temple, just three blocks away. When I would walk down the street and people would see me coming, they would cross the street, a lot of 'em. Or I remember one instance, they couldn't, the signal wasn't right, so they had to walk past me and I heard 'em under their breath talking, "traitor," "Jap-lover," that sort of thing. So there was great emotion, great fear.

Male voice: The JACL, we've learned when we were in Salt Lake City, at one point offered and suggested that Japanese Americans form suicide squads in the military to prove their loyalty.

FO: Well, I don't know about that. I do know, having read, that the JACL lobbied very, and successfully, from their point of view, to get the Japanese accepted into the army. And I guess it was their idea, the JACL's idea. Might have even been Mike, although Mike was in 442nd, so I don't know whose idea it was, to have a segregated unit. I mean, it was, "We're going to show them," and by God, they received great praise for the work that they did. But there were a lot of Japanese in other places, not only, there were many Japanese in the service, not in 442nd. But I don't remember about the "suicide squads." [Laughs] It's bad enough to be under fire without inviting it.