LOYAL NISEI CAN'T BE HELD IN CAMPS, HIGH COURT RULES
ARMY OUSTER OF JAPANESE HELD VALID

By Associated Press.

WASHINGTON, Dec. 18.--The Supreme Court of the United States today declared justified an order excluding Japanese from the West Coast which the Army applied in March, 1942, and revoked only yesterday.

The court's 6-to-3 opinion by Justice Black on the issues of exclusion did not rule on the constitutional questions involved.

In another opinion, the justices ruled unanimously that an American woman of Japanese descent was entitled to unconditional release from a War Relocation Authority center because she was conceded to be a loyal citizen.

The opinion holding exclusion justified was given in the case of Fred Toyosaburo Korematsu, who was removed from his California home to a War Relocation Authority center in Utah.

Hardships Are Admitted

The court's majority opinion in this case held that the exclusion order should be affirmed "as of the time it was made and when the petitioner (Korematsu) violated it."

"In doing so," Black's opinion said, "we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships.

"All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.

"Citizenship has its responsibilities as well as its privileges and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic government institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger."

The court majority said in reference to the constitutional issues that it was sufficient to pass only upon the order which Korematsu violated by refusing to leave the California area affected by the Army civilian exclusion order.

"To do more," the majority said, "would be to go beyond the issues raised and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case...

"To cast the case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue."

Korematsu was not excluded from the West Coast military area, the majority said, because of hostility to him or his race. It added:

"He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily and, finally, because Congress, reposing its confidence in this time of war in our military leaders--as inevitably it must--determined that they should have the power to do just this.

Three Justices Dissent

"There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great and time was short. We cannot--by availing ourselves of the calm perspective of hindsight--now say that at that time these actions were unjustified."

Justices Murphy, Jackson and Roberts each wrote dissenting opinions. Justice Frankfurter wrote a separate concurring opinion.

Terming the exclusion "an obvious racial discrimination," Murphy said it was "one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law."

No immediate relation to an "immediate" public danger is evident, he said, "to support this racial discrimination."

Murphy said it was essential "that there be definite limits to military discretion, especially where martial law has not been declared."

Mass Action Deplored

"To infer," Murphy said, "that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights."

Murphy said he found no adequate reason given "for the failure to treat these Japanese-Americans" on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry.

"I dissent, therefore," Murphy said, "from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life."

Justice Roberts said he dissented "because I think the indisputable facts exhibit a clear violation of constitutional rights."

Justice Jackson's dissent said:

"A judicial construction of the due process (of law) clause (of the Constitution) that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all.

"But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constituntion [Constitution] to show that the Constitution sanctions an order, he court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle that lies about like a loaded weapon for the hand of any authority that can bring forward a plausible claim of an urgent need."

The ananimous [unanimous] decision by Justice Douglas involved Miss Mitsuye Endo, American citizen of Japanese descent.

No Ruling on Military Law

In the decision by Justice Douglas the court declined, however, to rule on the questions of military law involved in the case.

The Douglas decision explained: "We do not mean to imply that detention in connection with no phase of the (Japanese) evacuation program would be lawful."

In reaching its conclusion, the court said it did not "come to the underlying constitutional issues which have been argued. For we conclude that, whatever power the War Relocation Authority may have to detain other classes of citizens, it has no authority to subject citizens who are concededly loyal to its ... procedure."

The court's decision came just a day after the War Department revoked its order by which persons of Japanese ancestry have been barred from strategic areas of California, Washington and Oregon. The Army revocation did not, however, extend to citizens of Japanese ancestry of known pro-Nipponese symapthies [sympathies].

Born in California

Justice Roberts wrote a separate concurring opinion in which he said he felt that court was "squarely faced" with the constitutional rights of Miss Endo.

Miss Endo was born 24 years ago in Sacramento, Calif. Described by the Justice Department as a loyal citizen, she demanded freedom from the center at Topaz, Utah, and a court declaration that she has the right to go anywhere she pleases.