Judge
Hall Orders Injunction to Restrain Western Defense Commander From Using Military Force to Prevent Return of
Litigants to Coast
LOS
ANGELES - Ruling that the military authorities had no power to enforce
exclusion orders against Americans of Japanese descent, or of any descent,
Judge Peirson M. Hall, of the Federal District Court at Los Angeles, last Friday
ordered an injunction to issue
restraining Major General H. C. Pratt, Western Defense commander, from
interfering with or preventing by military or physical force the right of Elmer
Yamamoto, Dr.
George Ochikubo, and Kiyoshi Shigekawa
to return to California and the Pacific Coast.
All are American citizens of Japanese
ancestry. Yamamoto is an attorney, residenced and practicing law at Los Angeles
before his evacuation, and is now in the Poston
Relocation Center. Shigekawa is a former San Pedro, Cal., resident, active in
the Fishermen's Union, American Federation of Labor, and Dr. Ochikubo is a
practicing dentist,
formerly from Oakland, and now at the Topaz Relocation Center. The test cases were
supported by the American Civil Liberties Union to secure a court ruling as to
whether the exercise of military force in the enforcement of military exclusion
orders is constitutional.
Judge Hall took the view took it was
unnecessary for him to decide whether the individual exclusion orders issued by
the military authorities of themselves were unconstitutional, since he ruled
that the military orders can legally be enforced only in the Federal and Civil
Courts, and that when a subject of an exclusion order is prosecuted
in the Federal Courts for a violation of an Act of Congress, which makes it a crime
to disobey a military order, he would be then giving full opportunity to have
his claim that the military order was unconstitutional passed upon by the
Federal Courts.
Although holding that the courts could not
pass upon the question of military necessity, and that the question was for the
decision by the military authorities, Judge
Hall outlined the grave consequences of the unlimited exercise of military
power over the entire civilian population along the Pacific Coast as well as
throughout the
entire United States. Of the sweeping power claimed by the military
authorities, Judge Hall said:
"It was
asserted from the witness stand that the commanding general has the power and
right to physically remove by 'necessary' military force at any time of the day
or night any person, or all persons from the area of the Western Defense
Command who might violate any order or proclamation of the commanding general,
and this power and right is asserted, not alone against persons of Japanese
extraction, but is claimed to exist over 'every inhabitant' within the area of
the Western Defense Command, regardless of the citizenship, occupation or any
other circumstances of the person or
persons involved, except the single circumstance that the commanding general
has, as a matter of military necessity, concluded that such person must be
excluded as a potentially dangerous person because -such person has violated a
fiat of the commanding general; and the testi- mony that 25 persons, most, if
not all, of whom were citizens, only one of whom was of Japanese extraction,
had been moved from this area by physical and military force, the last one in
October, 1944, by a squad of six armed soldiers and three officers."
He noted that: "Actually,
the power ... of one commanding general, or another, of one defense command, or
another, may extend to every person within the continental United States."
Of
this power, Judge Hall stated:.
."If the powers exist as asserted then an effective means has been found
for actually suspending the writ of habeas corpus without appearing to do so,
as it would only be necessary for a capricious commanding general to create a
military area which would encompass the territory within which the courts are
situated having jurisdiction over him, and then to remove therefrom all persons
who might violate whatever restrictions he may impose in his discretion. He
might, under his contentions as to power, remove the judges of the courts and
the civil authorities. It is not suggested that this is likely to happen or
that any commanding general would be apt to do so. But the inquiry is on the
question of the extent of his power. And if these possibilities sound
startling, it must be remembered that under Executive Order 9066, curfew was
imposed upon a class of more than one hundred thousand persons, most of whom
were citizens; that blackout and dimout regulations applied to all persons;
that flying regulations are now in existence which apply to all persons; that cameras,
radios and other personal property
harmless in themselves were denied to the possession of a designated class of
citizens exceeding a hundred thousand in number, and that as recently as
January 25, 1945, Civilian Restrictive Order No. 33 was issued which applies to
all persons and
prohibits any person from transferring or delivering certain designated
articles to any excluded, and that as a matter of common knowledge these
articles were surrendered to the various sheriffs and chiefs of police, so that
this order contemplates that if these civil authorities still have such
articles in their possession, they are subject to the power of removal by the
commanding general; and that the basis of these, as
of every order and proclamation issued by the commanding general under
Executive Order 9066, is his finding that 'military necessity' requires them.
"If the military commander may by
military force summarily remove from the State of California (or any other
place for that matter) any person which he may decide has violated any of the orders
heretofore or hereafter promulgated by him, then surely his
power is of the most drastic and absolute kind. According to Judge Hall, the
power to enforce military orders was lodged exclusively in the civil, not in
the military, authorities.
The federal jurist thus put it:
"Neither
congress nor the chief executive, apparently
conscious of the constitutional supremacy of the civil authorities, in
delegating such vast power over the conduct and lives of the entire population, saw fit to permit the
use of military force to execute the orders of the military commander on
civilians by a squad of soldiers using such force as is necessary, on the imprimatur
of a military commander, but preserve the right of civilians to be tried by a
jury in the civilian courts with all the safeguards inherent in such procedure,
and made such prosecution the exclusive means of enforcement."
Of the federal legislation on the subject,
Judge Hall said: "Executive Order 9066 and Law 503, taken together, were
not designed to supplant but to supplement and aid the civil authorities in
carrying out their duties of prosecution and punishment under ordinary
law as expressed in existing legislation."
A. L. Wirin, legal representative for the
Nisei, declared:
"The noteworthy and courageous opinion
of Judge Hall represents the first favorable decision by a judge of any court
on the Pacific Coast involving the military exclusion orders
upon persons of Japanese descent."
The military authorities appeared in court
through the United States attorney for southern California, Charles H. Carr,
and Edward J. Ennis of the Department of Justice at Washington, D. C.
Source Pacific Citizen, Saturday June 9,
1945, page 5
