IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff

v.

GORDON KIYOSHI HIRABAYASHI, Defendant

No. 45738

PROPOSED INSTRUCTIONS OF THE DEFENDANT

INSTRUCTION NO. ___

You are instructed that Executive Order No. 9066 of the President and Civilian Exclusion Order No. 57 and Public Proclamation No. 3 of the Military Commander were issued for the purpose of protecting our national defense materials, national defense premises, and national defense utilities against acts of espionage or sabotage.

You are further instructed that before any person could or can be excluded from any military area prescribed by the Military Commander or interned or compelled to obey any curfew regulations prescribed by a military commander, such person must first have been charged with engaging in or committing acts of espionage or sabotage of our national defense materials, premises or utilities; that he must have been given a hearing on such charges before an impartial tribunal where he could defend himself against the charges, have legal counsel to assist him and could produce witnesses on his own behalf; that after such hearing he must have been found guilty of the charge or charges against him; and that without such a hearing on such charges and his conviction thereof he would be under no duty to report to the Civil Control Station described in Count I of the indictment, nor to obey the curfew regulations described in Count II of the indictment.

Therefore, unless you find from the evidence at this trial that the defendant here was so charged with engaging in espionage or sabotage of our national defense materials, premises or utilities and after a hearing on such charges was convicted thereof, you can not find the defendant guilty under either count of the indictment.

INSTRUCTION NO. ___

You are instructed that under a statute enacted by the Congress of the United States, alien enemies are defined as the "natives, citizens, denizens or subjects of the hostile nation or government" which has been declared by the President to be at war with the United States.

You are further instructed that the law presumes that such an alien enemy as above defined will commit acts of espionage or sabotage against the United States, and on the basis of such presumption such an alien enemy can be temporarily restricted in his liberty of movement, or can be temporarily excluded from a military area, or can be temporarily compelled to obey curfew or other regulations relative to his movements and conduct; but that before such restriction of liberty, exclusion from a military area or obedience to such regulations could be made permanent, such alien enemy would first have to be charged with the commission of some act or acts of espionage or sabotage against the United States and have been granted a hearing before an impartial tribunal where he could defend himself against such charges, and must have been found guilty of the act or acts charged.

But you are further instructed that as to citizens of the United States of America no such presumption as above described exists either in law or in fact, and that before any citizen of the United States of American can be temporarily or permanently excluded from a military area or compelled to obey curfew or other regulations or have his liberty of movement restricted, he must first have been charged with some act or acts of espionage or sabotage against the United States, have been granted a hearing on such charges before an impartial tribunal, and have been found guilty of the acts charged.

INSTRUCTION NO. ___

You are instructed that the Congress of the United States of America alone has the power to declare martial law in or over any portion of the United States, and that this power can not be delegated to the President or the Secretary of War or to any military commander designated by him.

You are further instructed that in the present emergency military law has not been declared by the Congress in or over any portion of the United States.

You are further instructed that the existence of a state of war between the United States and a foreign country does not suspend the rights guaranteed by the Constitution that no person can be deprived of his life, liberty or property without due process of law. Such due process of law includes the right of a person to have a public hearing after he has been informed of the nature and cause of the accusation against him and his right to defend against such accusation, have counsel to assist in his defense, and to compel witnesses to testify on his behalf.

You are further instructed that unless you find from the evidence here that the defendant was accused of some unlawful act against the United States, was granted a hearing on such accusation where he was allowed to defend himself, and was found guilty of what he was accused, then I instruct you that the defendant was under no duty to obey Civilian Exclusion Order No. 57, nor Proclamation No. 3 of the Military Commander, and you must find the defendant not guilty.

You are further instructed that the above protection accorded a United States citizen is guaranteed to him by the Constitution of the United States of America, and no discrimination can be made against him in that protection because of his race or color.

You are further instructed that the evidence at this trial proves in this case that the defendant here is a native born citizen of the United States of America, of Japanese ancestry, and that as such he is entitled to the above described constitutional protection regardless of his race, color or ancestry.

Therefore, unless you further find from the evidence here that the defendant was charged with an act or acts of espionage or sabotage against the United States, was granted a hearing on such charges where he was permitted to defend himself, and was found guilty of the act or acts charged, then I instruct you that the defendant owed no duty to obey Civilian Exclusion Order No. 57, nor Proclamation No. 3 of the Military Commander, and you must find the defendant not guilty under either count of the indictment.