High Court Upholds Jap Curfew, Restores U.S. Citizenship of Red

EXCLUSION JUSTIFIED, SAY JUDGES

Convictions of Two Who Disobeyed Military Order Are Affirmed; Willkie Wins Communist's Case

By Associated Press.

WASHINGTON, June 21. -- The Supreme Court held constitutional today military regulations imposing a West Coast curfew on all persons of Japanese ancestry and excluding them for specified areas.

In another far-reaching opinion today, the court ruled, 5 to 3, that the American citizenship of an alien cannot constitutionally be canceled merely because he was a member of the Communist Party.

After giving today's decisions the court adjourned for the summer.

Chief Justice Stone delivered the opinion on a challenge of the regulations by two American-born persons of Japanese ancestry, who contended they were citizens of this country against whom the restrictions could not constitutionally be applied. The opinion was unanimous.

Stone asserted that "in a case of threatened danger requiring prompt action it is a choice between inflicting obviously needless hardship on the many or sitting passive and unresisting in the presence of the threat."

"We think," Stone added, "that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility for our national defense have reasonable ground for believing that the threat is real."

"The challanged [challenged] orders," Stone said, "were defense measures for the avowed purpose of safeguard the military area in question, at a time of threatened air raids and from the danger of sabotage and espionage."

Seattleite Involved

Those challenging the regulations were Gordon Kiyoshi Hirabayashi of Seattle and Minoru Yashi of Portland, Or. Hirabayashi, a senior at the University of Washington at the time of his arrest, was sentenced to three months' imprisonment for violating the curfew regulation and for failing to report to an evacuation center. Yasui, a graduate of the University of Oregon, was sentenced to one year's imprisonment and fined $5,000 for violating the curfew regulation.

Approximately 70,000 American citizens of Japanese ancestry were said to have been evacuated from their homes under the orders.

A.L. Wirin, Los Angeles attorney for Yasui, told the Supreme Court that "racial prejudice" on the part of Lieut. Gen. John L. DeWitt, in charge of the Western Defense Command, was responsible for the regulations.

Solicitor-General Charles Fahy, the government spokesman, denied this and said the restriction were imposed because of military necessity following the Pearl Harbor disaster.

Action Called Imperative

"It was imperative," Fahy asserted, "that those charged with the defense of our shores take adequate protective measures against a possible invasion and against potential saboteurs and fifth-columnists."

Hirabayashi and Yasui were convicted in separate federal district courts of violating an act of Congress passed March 21, 1942, which made it a misdemeanor for anyone to violate restrictions imposed by a military commander on movements within a military zone.

President Roosevelt, on February 19, 1942, had issued an executive order authorizing the Secretary of War and military commanders to exclude "any and all persons" from military zones if that action should be deemed necessary.

The curfew restriction, requiring all persons of Japanese ancestry to remain in their homes between 8 p.m. and 6 a.m., was imposed on March 24 and the exclusion orders came a few weeks later.

Justice Murphy, who delivered the majority opinion in the communist's case, asserted that cancellation of citizenship was not justified by imputing a "reprehensible interpretation" of an organization to a member unless there were "overt acts" committed by the member "indicating that such was his interpretation."

Chief Justice Stone, and Justices Roberts and Frankfurter dissented. Justice Jackson, a former attorney-general who handled the litigation in the Justice Department, did not participate.

The long-awaited decision constituted a victory for Wendell L. Willkie, the 1940 Republican presidential nominee, who represented the Communist involved before the Supreme Court.

Clear Evidence Required

Murphy declared that "clear, unequivocal, and convincing" evidence was required for setting that such evidence had not been presented against William Schneiderman, state secretary of the Communist Party for California and a native of Russia, who became a citizen in 1927.

"Were the law otherwise," Murphy said, "valuable rights would rest upon a slender reed, and the security of the status of our naturalized citizens might depend in considerable degree upon the political temper of majority thought and the stresses of the times. Those are consequences foreign to the best traditions of this nation, and the characteristics of our institutions."

Murphy said the tribunal did not consider whether Schneiderman "was a believer in, and a member of an organization teaching disbelief in organized government, and that his oath of allegiance was false." Murphy said "these issues are outside the scope of the complaint."

(In 1940 Congress provided specifically that no person should thereafter be naturalized who advocated or belonged to an organization that advocated "the overthrow by force or violence of the government of the United States.")

Views of Russia Immaterial

Explaining that the court reviewed the case "because of its importance and its possible relation to freedom of thought," Murphy added:

"The question is whether the naturalization of petitioner, an admitted member of the Communist Party of the United States, was properly set aside by the courts below some 12 years after it was granted.

"We agree with our brethren of the minority that our relations with Russia, as well as our views regarding its government and the merits of Communism, are immaterial to a decision of this case.

"Our concern is with what Congress meant by certain statutes and whether the government has proved its case under them.

"While it is our high duty to carry out the will of Congress, in the performance of this duty we should have a jealous regard for the rights of petitioner. We should let our judgment be guided, so far as the law permits, by the spirit of freedom and tolerance in which our nation was founded, and by a desire to secure the blessings of liberty in thought and action to all those upon whom the right of citizenship has been conferred by statute, as well as to the native born."

Beliefs Are Personal

Murphy said that "under our traditions, beliefs are personal and not a matter of mere association" and that "men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.

"The constitutional fathers, fresh from a revolution, did not forge a political strait jacket for the generations to come," Murphy said. "Instead they wrote Article V., and the First Amendment, guaranteeing freedom of thought, soon followed."

Schneiderman came to this country in 1908 at the age of 3, became an American citizen in 1927, and his citizenship was ordered canceled in 1940 by the Federal District Court at San Francisco on the ground that he had concealed his Communist connection.

Fahy said the Naturalization Act required that an alien who obtained citizenship be "attached to the principles of the Constitution" and be "well disposed to the good order and happiness of the United States."

Fahy Cited Party's Aims

Fahey added that the evidence established that in 1927 the Communist Party and Schneiderman "believed in advocated and taught the overthrow of this government by force and violence."

Willkie argued Schneiderman had given "unimpeached testimony" that he had never believed in or advocated the use of force or violence or disbelieved in organized government. He added that government attorneys admitted that the constitution of the Communist Party of America, adopted in 1938, did not advocate force or violence.

The Federal District Court at San Francisco held that Schneiderman had obtained citizenship illegally because he failed to reveal that during a five-year probationary period he belonged to an organization advocating violent overthrow of the United States government.

In upholding the cancellation, the Federal Circuit Court said:

"The trial court believed that appellant's (Schneiderman) testimony as to his support of our Constitution and allegiance to this country was incredible in view of his admission that he fully believed in and supported the principles of the Communist Party, and in view of the principles of such party. He cannot say that the trial court's conclusions are clearly erroneous in view of the substantial evidence in the record before us."