‘Heart Mountain: Conscience, Loyalty and the Constitution’: a reenactment

‘Heart Mountain: Conscience, Loyalty and the Constitution’: a reenactment

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ELIOT KIM: Hello, everyone. I think we’re going to begin. There may be some conference
stragglers still coming in. We’ll excuse them
for being late. Thank you everyone
for being here. My name is Eliot Kim,
and I’m a [INAUDIBLE] here at Harvard Law School. I am a member of
APALSA, and we’re very excited for this event–
the HLS trial reenactment. This is our second
year doing it, and we’re very excited for this. I’m going to introduce
Dean Sells, who’s going to say a few words. The reenactment will
go about an hour, and then we’ll have a
Q&A for about 20 minutes. Dean Sells. [APPLAUSE] DEAN MARCIA SELLS: Hi, I’m
very excited to be here for a second year for the
APALSA Conference, which now is in its 24th anniversary. I’m very excited
about us recreating another presentation that helps
bring law to life and people to understand issues and very
excited on behalf of the law school to welcome
all of you here for this amazing conference. And then for the re-enactment,
I congratulate all the students from APALSA who helped to
make this event possible. I know how many
hours go into that, so I also would
like to encourage a round of applause for the
students and all of their work. [APPLAUSE] And without further
ado, the reenactment. DENNY CHIN: It is
March, 20, 1944. Takeo Ishikawa is
sitting alone at a desk at the Heart Mountain
Relocation Center in Wyoming. He has finished writing a
letter to his local draft board in Palo Alto, California. “TAKEO ISHIKAWA”: Dear
Sir, on March 5th, 1944, I received my pre-induction
physical notice stating that I was to report
on the morning of March 8th to Powell, Wyoming. I did not report. Not because I am trying
to evade the draft, but because of my
firm conviction that what the government is
doing and already has done is wrong. And that our status
should be fully clarified prior to our induction
into the Armed Forces. I was born in the small town
of Mountain View, California. I attended public
school where we were taught to believe in the
Constitution of the United States and the Bill of Rights
and that these instruments would apply to the
minority groups. This was the land of the free– a democracy. And the laws
governing this nation would apply to any
individual, regardless of race, color, or creed. And then, on December 7th,
1941, the so-called sneak attack on Pearl Harbor was perpetrated. We lowly individuals
of Japanese descent were as unaware of any
such plot to attack as were our American neighbors. Outraged by the
deed, many of us, to show our sincerity
and loyalty, bought war bonds,
joined Red Cross units, and donated sums of money,
became blackout wardens whenever allowed, and so forth. Many of the Nisei boys
volunteered for the Armed Forces but were
rejected on account of our racial background. For us, life changed overnight
and became a nightmare. Fear obsessed us. Our bank accounts and
assets were frozen. A curfew was placed on us. Our fathers were interned,
rudely snatched away from their families. Finally came our
evacuation proclamation from the president
and the utterance from General DeWitt that, “GENERAL JOHN DEWITT”:
A Jap is a Jap. “TAKEO ISHIKAWA”: We were
not accused of any crime or charged with any
seditious act or sabotage. Without any trial, we were
ordered to leave our homes. We were uprooted from everything
we held dear and near to us– our homes, friends, and fortune. On May 26, 1942, my aged
mother, my sister, and I left Mountain View for the
famed Santa Anita horse tracks. We were number 32013. That was our number
and still is. We were no longer individuals
in an upright society but merely numbers– the same as any convict. After three long months,
we were transferred here to Heart Mountain. In our present status,
we are not free citizens. As a limited rights citizen,
I protest my drafting into the Selective Service. I want to be a free citizen,
enjoying full citizenship status, enjoying all the
rights and privileges of an American citizen before
I enter the military service. I sincerely hope for a
better clarification. And until such time, I
do not intend to report. But if necessary, I will
contest in the courts the legality and
constitutionality of the Selective Service,
as it pertains to the Nisei. Sincerely Yours, Takeo Ishikawa. KATHY CHIN: Only a
matter of months later, on the morning of
May 15th, 1944, Takeo Ishikawa stood
before a federal judge. And with 62 other
Japanese-American prisoners from the Heart Mountain
Concentration Camp pleaded not guilty to violations
of the Selective Service Act of 1940 for
failure to report for pre-induction
physical examination. Our presentation today
will tell the story of Mr. Ishikawa and the
other draft resisters from Heart Mountain
based on records of the court proceedings
and other contemporaneous documents. Mr. Ishikawa’s
letters were included in the record on appeal
to the Tenth Circuit, as generally reflective of
the views and experiences of all the defendants. DENNY CHIN: The Japanese
attacked Pearl Harbor on December 7, 1941. In the next three days, the
FBI arrested nearly 1,300 Issei, first-generation
Japanese immigrants in Hawaii in the Western states. These were the fathers
described as “snatched away” in Ishikawa’s letter. Under the law at the
time, they could not be naturalized as US citizens
because of their race. The children of the
Issei, the Nisei, have been born in this country. By virtue of the 14th Amendment,
they were US citizens. While shocked by the
arrest of their parents, the Nisei believed that they
would be treated differently. KATHY CHIN: They were mistaken. On February 19th, 1942,
President Roosevelt signed Executive
Order 9066 Order 9066, authorizing military
authorities to designate military areas from which any or
all persons might be excluded. Shortly thereafter, General
John DeWitt, commanding general of the Western Defense Command
issued public proclamation number 4, forbidding any
person of Japanese ancestry in parts of California,
Oregon, Washington, and Arizona to leave their areas
without military permission. In his report
recommending removal of all Japanese-Americans
from these areas, he stated his views,
views mirroring those of politicians and
newspapers of the time. Here are General
DeWitt, a politician, and a newspaper columnist. READER: The Japanese
race is an enemy race. All members of that race
are potential enemies. Even if Americanized, their
undiluted racial strain makes their removal
from the vital Pacific coast absolutely necessary. The fact that no sabotage
has yet taken place only makes it more likely that
such action will be taken. READER: I join the
elected representatives of the other Western
states when I demand that all Japanese,
whether citizens or not, be placed in inland
concentration camps. Why, if an American-born
Japanese is really patriotic, this is his opportunity. He can permit himself to be
placed in a concentration camp. READER: Just to be clear
for all my readers, we should just move
them to the Badlands. I hate the Japanese, and
that goes for all of them. DENNY CHIN: By the
end of March 1942, Japanese-American
families were being told to prepare for removal
from the designated areas and that they could
bring with them only what they could carry. When they reported
as ordered, they were given numbers and
moved to so-called assembly centers, which included
horse stables at racetracks. Some 120,000 people, nearly
two thirds of them US citizens, spent the summer of 1942 in
these centers, located mostly in California. As the federal government
prepared 10 concentration camps in more remote areas
in other states, the governors of these states
were asked for their input. Chase Clark, then
governor of Idaho and later a federal judge,
made his position clear. “CHASE CLARK”: I want to
admit right on the start that I am so prejudiced
that my reasoning might be a little off because I
don’t trust any of them. So they’re not coming to Idaho
unless certain conditions are met. And one of them is that
any Japanese sent to Idaho must be placed under guard
and confined in concentration camps for the safety of
our people, our state, and the Japanese themselves. KATHY CHIN: The
Japanese-American families in the assembly centers
were herded onto trains and shipped to the
camps in the late summer and early fall of 1942. They went quietly
with many apparently adopting the attitude of the
Japanese American Citizens League, the JACL,
an organization created by Nisei
in 1930 to advance the interests of Americans
of Japanese descent. The JACL president, Saburo Kido,
stated the group’s position as follows. “SABURO KIDO”: We are going into
exile as a duty to our country because the president
and military commanders in this area have
deemed it necessary. What great love, what greater
testimony of one’s loyalty can one ask for than this? Leave your homes,
your businesses, and your friends in order
that your country may better fight a war. DENNY CHIN: Six
months later, the JACL convened a conference to
discuss cooperation with the War Relocation Authority. Delegates were
selected by the JACL and granted furloughs
from their camps. Mike Masaoka asked
them to endorse the JACL’s latest
effort to prove Japanese-American loyalty. “MIKE MASAOKA”: It was
a proud time for us when this nation’s first
peacetime draft in 1940 called upon us to serve. 3,500 Nisei were drafted
in the first year. It was humiliating when, in
the wake of Pearl Harbor, we were reclassified as aliens,
ineligible for the draft. We are being deprived
of our biggest chance to prove our loyalty. Somewhere on the field of
battle, in a baptism of blood, we and our comrades
must prove to all who question that we are
ready and willing to die for the one country we know
and pledge allegiance to. KATHY CHIN: The delegates
passed a resolution, asking the federal
government to reclassify the Nisei as draft eligible. The Office of War
information suggested instead a volunteer
Nisei combat team based upon an individualized
test of loyalty. Shortly thereafter,
President Roosevelt announced his approval of
the new all Nisei unit– the 442nd Regimental
Combat Team. Mike Masaoka, called to the
Pentagon to receive the news, was disappointed, but
he volunteered to become the first member of the unit. The loyalty questionnaire
that was distributed at the concentration
camps, as well as this concept of a
segregated combat unit, only added to the dismay
of Japanese-Americans, who had been less
than enthusiastic about the JACL resolution
in the first place. DENNY CHIN: Both the JACL and
the officials at the Pentagon continue to press for
reinstitution of the draft into integrated units. For the Pentagon, integration
was a problematic issue. In part, because
African-Americans were only allowed to
serve in segregated units. Finally, in December
1943, the War Department determined to reinstate
the draft for Nisei into segregated combat units. On January 20, 1944,
the War Department announced that
the Nisei would be reclassified by their
Selective Service boards and called for induction
if physically qualified. KATHY CHIN: The populations
of the different camps reacted in different ways. Some with violent
outrage, while others sent large numbers of volunteers. At the Heart Mountain
Camp, located 60 miles east of Yellowstone National
Park in Northwest Wyoming, 55-year-old Kiyoshi
Okamoto started writing about the
injustices of detention. This led to the creation
of the Fair Play Committee, a collective effort by
detainees at Heart Mountain to openly resist the draft. The FPC spread its
message through bulletins and public meetings,
which became increasingly popular, in
part, because of Okamoto’s blunt and fearless style. The FPC carefully
limited its membership to Japanese-American citizens
who professed loyalty to the United States and
were willing to serve in the military once their
civil rights were restored. DENNY CHIN: The FPC’s
first public meeting on February 8, 1944, was
attended by 60 Nisei, more meetings followed. As the FPC gained
momentum and support, its voice became
louder and more direct. One of the newspapers that
supported the FPC was the Rocky Shimpo, a newspaper based
out of Denver, Colorado that served the Japanese-American
community and was widely read at Heart Mountain. Jimmy Omura, the Shimpo’s
English language editor, printed news reported favorably
on the FPC’s activities and editorials that
questioned the lawfulness and propriety of the draft. On March 1, 1944,
the FPC leaders distributed a bulletin that
described their attitude toward the draft. READER: The FPC
believes we have a right to ask that the discriminatory
features in regards to this Selective
Service be abolished, our status be clarified, and
our rights be fully restored before we are drafted. DENNY CHIN: A few days later,
the group went further. READER: We, the
members of the FPC, are not afraid to go to war. We are not afraid to risk
our lives for our country. We would gladly
sacrifice our lives to protect and uphold
the principles and ideals of our country, as set
forth in the Constitution and the Bill of Rights. But without any hearings,
without due process of law, without any charges
filed against us, without any evidence of
wrongdoing on our part, 110,000 innocent people were
kicked out of their homes, literally uprooted from where
they have lived for the greater part of their life and herded
like dangerous criminals into concentration camps
with barbed wire fences and military police guarding it. And then, without rectification
of the injustices committed against us and without
restoration of our rights as guaranteed by
the Constitution, we are ordered to
join the Army through discriminatory procedures
into a segregated combat unit. We, the members of the
Fair Play Committee, hereby refuse to go to
the physical examination or to the induction if
or when we are called in order to contest the issue. KATHY CHIN: Within
days, five Nisei refused to get on the bus for
their pre-induction physicals– and two days later, seven more. Alarmed, camp
officials reached out to the Department of Justice and
the War Relocation Authority. They held leave
clearance hearings for two of the FPC’s
leaders, even though neither had applied for leave,
and ordered them transferred to another camp. US marshals arrested and
jailed the first 12 Nisei who had refused
to get on the bus for their pre-induction
physicals. Nevertheless, more young
men refused to report. By the end of March 1944, 41
were in Wyoming County jails. And Jimmy Omura, the
Denver newspaperman, was forced to resign. His newspaper was
told that it would be closed unless
Omura was removed as English language editor. DENNY CHIN: Two indictments
were filed with respect to the Heart Mountain
draft resisters, resulting in two trials. The first was United
States versus Fujii, which would become
known as the Mass Trial, as 63 draft resisters
from Heart Mountain would be tried together on the
charge of evading the draft. The second was United
States versus Okamoto, which would become known
as the Conspiracy Trial, as seven of the FPC
leaders at Heart Mountain would be tried together for
conspiracy to counsel, aid, and abet the Heart
Mountain draft resisters. The government charged an eighth
defendant with conspiracy– Jimmy Omura. He had never met any
of the resistors, but was indicted solely on the
basis of his newspaper columns. KATHY CHIN: The
Mass Trial commenced Monday, June 12th, 1944. The government was
represented by Carl Sackett, the United States Attorney
for the District of Wyoming. And the FPC hired Samuel
Menin, a prominent civil rights lawyer from Denver to
represent all 63 defendants. One of Menin’s
first decisions was to waive the defendant’s
right to a jury, a sensible tactic given the
jury pool in Cheyenne, Wyoming. This meant, however, that
the fate of the 63 men was entirely in the hands of
Judge T. Blake Kennedy, who had been the sole federal judge
in the District of Wyoming for over 20 years. Judge Kennedy’s view
of the defendants was apparent from day one,
when he addressed the 63 defendants in open court as, READER: You, Jap boys. DENNY CHIN: The government’s
strategy was straightforward. It only had to prove that
the defendants received notices but failed to report for
a pre-induction physical exam– facts that were not contested. In contrast, Menin sought
to paint a broader picture of injustice and unfairness
by eliciting testimony as to the defendant’s
loyalty to the United States, their loss of freedom,
and their willingness to serve in the army once
their rights had been restored. Menin also tried other
tactics, such as having the defendants give
themselves similar haircuts– crew cuts– and then arguing
that the charges should be dismissed because
the agents could not tell the defendant apart. Judge Kennedy quickly
rejected this argument, ruling that defendants
had identified themselves when they were arrested
and admitting in evidence their fingerprint cards
as proof of identity. KATHY CHIN: The government
called to the stand the clerk of the
local draft board who identified the paperwork proving
that the defendants refused to report for their
physicals and also called the FBI agents who had
interviewed the defendants. One of them was FBI Agent
[? Perry ?] [? McMillan. ?] “PROSECUTION”: Please
describe your investigation in the case regarding
[INAUDIBLE],, including any details of any interview
you had with the defendant. “FBI AGENT”: I interviewed
the defendant on April 6, 1944 at the county courthouse
in Cody, Wyoming. “PROSECUTION”: Would you
please state what you advised them with and so forth? “FBI AGENT”: I asked him
first to give me his name and address. I gave the defendants
my name, advising him that I was with the FBI,
that I want to talk to him. I told him the
interview was to be used in the court proceedings. I further advised him it
was his privilege to not say anything concerning the matter. And I asked him if he had any
objections to the interview in that regard, and he said no. And we went on
with the interview. He gave his age as 20. “PROSECUTION”: Had
he been arraigned? “FBI AGENT”: Yes, sir. He gave his age 20, being
born on April 23rd, 1923, at Sierra Madre, California. He produced his
registration card. And he gave his local
board number as 192 at Pomona California. He came to the Heart
Mountain Relocation Center in August of 1942. And there, he received
first a 4C classification card from his local board, and
then a 1A classification card. He said he received
his pre-induction physical examination notice. He advised me that he did
not report as ordered. I then asked him to
briefly give his reasons for not reporting for his
pre-induction physical examinations, and he replied. READER: It was not fair. The government
treated me as if I were disloyal without even
questioning me or asking me anything about it. The way I was treated– it was not constitutional. If I did not protest, I
would be just as responsible as those who made the decision. A citizen who will accept bad
government without protest is not a good citizen. I would willingly go to the
Army if these matters were cleared up to my satisfaction. DENNY CHIN: Menin
cross-examined. “SAMUEL MENIN”: Now
in your interview with this defendant,
[INAUDIBLE],, wasn’t he courteous to you? “FBI AGENT”: That is correct. “SAMUEL MENIN”: And his
entire attitude towards you was that of desiring to be loyal
to the government, wasn’t it? “FBI AGENT”: That’s
right, Mr. Menin. All these gentlemen
who I interviewed here were courteous and treated me
very nicely, as I treated them. And at no time was
there any act or did they say anything
against the United States or indicate any
disloyal attitude. “SAMUEL MENIN”: At no
time did they indicate any desire to go back to Japan? “FBI AGENT”: That’s right. “SAMUEL MENIN”: Throughout
the entire interview with this particular
defendant, he indicated a desire to
fight for this country if he were restored his
rights as a citizen? “FBI AGENT”: I presume so. There is not one of
them who did not. KATHY CHIN: The
government also called to the stand Douglas Todd,
the Assistant Project Director at Heart Mountain. “PROSECUTION”: Director,
was transportation available for
these 63 defendants to be taken to the
[INAUDIBLE] board? “DOUGLAS TODD”: It was. “PROSECUTION”: Was
there any restriction in the center prohibiting
any of the 63 defendants from going to the
[INAUDIBLE] board and reporting in accordance
with the motion received? “DOUGLAS TODD”: No,
there was no restriction. DENNY CHIN: On cross,
Todd resisted the notion that the defendants’ rights were
curtailed at Heart Mountain. “SAMUEL MENIN”: Is the
Heart Mountain Project patrolled by military police? “DOUGLAS TODD”: No, I
wouldn’t say it was. “SAMUEL MENIN”: Is it
guarded by military police? “DOUGLAS TODD”: There are
military police there, yes. “SAMUEL MENIN”:
And they are there for the purpose of guarding
the project, are they not? “DOUGLAS TODD”: Their function
has to do with the Army. I am not able to say. “SAMUEL MENIN”: Now have
any of the persons who are confined at Heart
Mountain been sent there for violation of the law? “DOUGLAS TODD”: I don’t know. “SAMUEL MENIN”: Do you know
why they were sent there? “DOUGLAS TODD”: No, I do not. “SAMUEL MENIN”: But do you
know that there are those there who are restrained
of their liberties within the confines
of this area? “DOUGLAS TODD”: I
don’t think they are restrained of their liberties. They are not restrained
in any sense. “SAMUEL MENIN”: What
would happen to an evacuee if he would attempt
to leave the center without obtaining a permit? “DOUGLAS TODD”: That
relocation center is a military reservation. The government is
feeding the people, and housing them, and
they would naturally be expected to comply with
such rules and regulations as were set up. “SAMUEL MENIN”: Well,
suppose a person is living at the
Heart Mountain Center, he is supposed to
confine his movements within the barbed
wire enclosures. Is that correct? “DOUGLAS TODD”: No,
that is not correct. “SAMUEL MENIN”: How would it
be possible for him to leave the barbed wire enclosures? “DOUGLAS TODD”: The barbed
wire closure is only a small part of the project. And the people who live
there have the freedom of the area outside of
the barbed wire, which is some 20,000 odd acres. “SAMUEL MENIN”: But they
must be within the confines of these limits. Is that right? “DOUGLAS TODD”: That is
right– without a pass. “PROSECUTION”:
Director, do you know whether any of these
63 men were ever denied the right to leave
the camp to work or to be relocated in any place? “DOUGLAS TODD”: I have
no knowledge of them ever being denied such right. Our main job up here is to
get them out of that center and relocated. “PROSECUTION”: So where are
they permitted to go in the US if they want to relocate
themselves out of the center? “DOUGLAS TODD”: The
Western defense zone includes parts of the streets of
Washington, Oregon, California, and Arizona. They’re excluded from there,
of course, in the evacuation, and they have not been
permitted to return there, except for very few people. “PROSECUTION”: Is a
Japanese-American citizen required to have a travel
permit outside of the center? “DOUGLAS TODD”: To
leave the center, he is required to have what
we call an indefinite pass. “PROSECUTION”: And any
Japanese-American citizen who obtains a pass to leave
the center, as I understand it, can travel without
a travel permit in any of the areas which are
not in the war zones inscribed? “DOUGLAS TODD”: That is correct. “PROSECUTION”: The same
as any other citizen? “DOUGLAS TODD”: That is correct. KATHY CHIN: The defendants
did not call any witnesses and rested at the close
of the government’s case. In his summation, Menin argued, “SAMUEL MENIN”: Placing American
citizens in relocation centers was something Hitler would do. DENNY CHIN: Sackett
responded with outrage and in a very personal manner. “CARL SACKETT”:
The defense counsel has compared the system of
relocation to something Hitler would do, and I resent that. These men and their
families have been housed, clothed, fed, and schooled by
the federal government perhaps better than the court when he
was a young man and, I know, better than I was. When the Jews were
kicked out of Germany, they were left to
shift for themselves. But our government cared for
these men and their relatives. The defendants are using
my money, your money, everybody’s money by having this
trial by saying they will not fight for this country. They want their
freedom, they say. Do they want their freedom so
that they can go out and signal the Japanese submarines? They all admitted they were
loyal American citizens. Is that a cloak,
back of which to hide or an excuse to get
away from the draft? KATHY CHIN: On Monday, June 26,
1944, after six days of trial, Judge Kennedy
announced his decision. He addressed the defendant’s
claim of discrimination, citing the Supreme
Court’s decision in Hirabayashi v. United
States decided in 1943. “JUDGE T. BLAKE
KENNEDY”: The defendants assert that as American
citizens by birth, they have been discriminated
against by various acts of the government. Defendants assert
that they should not be reclassified for
service in the war at least until such time as
their status as citizenship has been clarified. That the regulations
promulgated by Congress and the president are legal
has been definitely determined in Hirabayashi
versus United States. There, the matter litigated
was the constitutionality of the establishment
of a curfew law in which all Japanese-American
citizens were required to report and be restricted
to their residences during certain hours of the day. The Supreme Court
based its conclusion on the exigencies of war
between the United States and the Japanese nation, calling
attention to the sneak attack upon Pearl Harbor,
with an observation that Japanese diplomats
were, at the same time, negotiating with
the State Department to settle differences
between the two countries. The Supreme Court also noted
that the Japanese government recognized a dual
citizenship and maintains that children of
Japanese nationals are citizens of the
Japanese empire– wherever their
place of birth, even among persons of Japanese
ancestry born in this country, and therefore are
citizens of Japan. That there might be logic in
the conclusion that in a case of war, these individuals
would hold their attachments to Japan, and in
a critical hour, these cannot be
effectively segregated so as to relieve a menace to
the national defense and safety. DENNY CHIN: The Supreme Court
has not yet decided Korematsu. Judge Kennedy foresaw that
such a constitutional challenge to the removal,
relocation, and confinement of Japanese-American
citizens would be defeated. “JUDGE T. BLAKE
KENNEDY”: It would seem that the same logic
which led to the conclusion that the curfew
law did not violate the constitutional rights of
citizens of Japanese extraction would justify a like
conclusion in regard to removal and relocation. The discrimination
exercised by the government on account of defendants
Japanese ancestry was legitimate,
justified, and legal, and within the power of Congress
and the President in the war emergency. Defendants’ assertion
that they did not desire to report until their
citizenship had been clarified is without merit,
as to legal basis. It is evident that
what they asserted in the matter of
the clarification of their citizenship
was, in fact, accomplished by the effect of
the order which they disobeyed. When they were placed
in 1A and ordered to report for pre-induction
physical examination, they’re pure American
citizenship was established beyond question. KATHY CHIN: Indeed, as Professor
Eric Mueller has noted, the defendants were free
to die for their country, but not free to enjoy the
same rights and privileges as other citizens. Judge Kennedy
concluded as follows. “JUDGE T. BLAKE KENNEDY”:
Personally, this court feels that the defendants
have made a serious mistake in arriving at their
conclusions which brought about these
criminal prosecutions. If they are truly loyal
American citizens, they should, at least when they
have become recognized as such, embrace the opportunity
to discharge the duties of citizens
by offering themselves in the cause of our
national defense. The finding and
verdict of the court is that each of the
defendants is guilty as charged in the indictment. It is the sentence and
judgment of this court that you and each of
you shall be committed to the custody of
the Attorney General for confinement in
such institution as he may select for a
period of three years. The defendants are all
committed to the custody of the United States Marshal. DENNY CHIN: The
government prosecuted the seven leaders of the Heart
Mountain Fair Play Committee, as well as Jimmy Omura, for
conspiring to counsel, aid, and abet the draft resisters. Judge Eugene Rice, visiting
from the US district court for the Eastern
District of Oklahoma, presided over the trial. A.L. Wirin, a civil rights
attorney from Los Angeles, represented the FPC leaders;
Sidney Jacobs, a Denver attorney, representing Omura. The US Attorney for the District
of Wyoming, Carl Sackett, and assistant US
attorney John Pickett appeared for the government. KATHY CHIN: Defendants
submitted two motions to quash the indictment. The first challenged the
composition of the grand jury on the grounds there were
no Japanese grand jurors. And the second argued
that the defendants were being detained in violation
of their right to due process of law. The court held a hearing on both
motions on August 5th, 1944. “DEFENSE”: Not even one
American of Japanese descent served on the grand jury,
despite the fact that nearly 5% of Wyoming’s population
is now Japanese because of Heart Mountain. Defendants constitutional
rights were therefore violated, and we move to quash
the indictment. “JUDGE EUGENE RICE”:
What do you have to say about this, Mr. Sackett? Can you stipulate to that? “CARL SACKETT”: Your Honor,
no Japanese or American of Japanese descent
was on the grand jury to my knowledge at this time. That’s a fact. But certainly, it is
not to be presumed that this court exercised
in any unfairness in drawing a grand jury among
citizens of the United States. “DEFENSE”: Will you stipulate
that there has never been in this district an
American of Japanese ancestry on a jury? “CARL SACKETT”: No, I
don’t know, so I wouldn’t. I have known Japanese
to be on trial juries. I’ve tried cases where
Japanese were on the jury. On this particular grand jury,
no person of Japanese descent was drawn unless the
resemblance was slight, and I didn’t observe it. But that doesn’t bind the court. “DEFENSE”: Your Honor,
we had some difficulty in reaching the stipulation. So apparently, it’s necessary
that we introduce evidence on this question. I would like to call the
clerk of the court, Charles J. Ownhouse. “JUDGE EUGENE RICE”: So be it. “DEFENSE”: You’re the
clerk of the court, sir? “CLERK”: Yes. “DEFENSE”: For how long
have you been the clerk? “CLERK”: Since November 1989. Before that, I was deputy
clerk since May 1901. “DEFENSE”: During
the time in which you acted as either
clerk or deputy clerk, to your knowledge, has
any Japanese person or American of
Japanese ancestry been a member of any grand jury? “CLERK”: I wouldn’t
want to say definitely without searching the records. I have no recollection of any
American of Japanese descent ever sitting on a grand jury. “CARL SACKETT”: Mr.
Ownhouse, has the court ever adopted any rules prohibiting
an American of Japanese ancestry from sitting on a grand jury? “CLERK”: No. “CARL SACKETT”: Do you
know whether or not there were any names of
persons of Japanese ancestry in the jury box from which
the names were drawn? “CLERK”: I couldn’t say
definitely about that, either. “CARL SACKETT”: Would you know
whether the number of citizens of Japanese descent in the state
of Wyoming is large or small? “CLERK”: My opinion is
that it is very small. “JUDGE EUGENE RICE”:
Prior to the time that these Japanese were
located in the state of Wyoming at this place Heart Mountain,
how many Japanese were there in the city of Cheyenne? “CLERK”: You mean American? “JUDGE EUGENE RICE”: Born
in the United States. “CLERK”: I couldn’t
definitely say– a very small number. “JUDGE EUGENE RICE”: Has there
been any intentional omission of citizens qualified as
jurors of Japanese descent from the jury panel? “CLERK”: There has not. “JUDGE EUGENE RICE”:
The witness is excused. I’m going to overrule the
motion to quash at this time. These Japanese who
have been brought into the state of Wyoming,
probably against their will, are probably not qualified
to act as grand jurors because they are not
residents of the state. They are temporary residents. And prior to that
time, I don’t think there was anything
that would require that a Japanese person
be on the grand jury or on the jury panel. No substantial
showing has been made that there were many Japanese
in the state of Wyoming or that there was any
system of exclusion of that particular group
of jurors from the jury box by reason of their nationality. On the motion to
quash on the ground that defendants were, at the
time of the indictment and are still, deprived of their liberty
without due cause of law, have you reached an
agreement on the facts? READER: No, Your Honor.” If you cannot agree, Mr. Wirin,
you may put on your evidence. “A.L. WIRIN”: The defense
calls defendant Frank Seishi Emi to the stand. DENNY CHIN: Frank Emi was one
of the leaders of the FPC. He had been a successful
grocer in Los Angeles until he was detained and
relocated to Heart Mountain. At Heart Mountain,
he drove a truck and made tofu for
other detainees. “A.L. WIRIN”: What is your name? “FRANK SEISHI EMI”: Frank Emi. “A.L. WIRIN”: You are now
in Wyoming County Jail? “FRANK SEISHI EMI”: Yes, sir. “A.L. WIRIN”: Where
were you before you came to the county jail? “FRANK SEISHI EMI”:
At Heart Mountain? “A.L. WIRIN”: For how long? “FRANK SEISHI EMI”:
Since September of 1942. “A.L. WIRIN”: And very briefly,
how did you arrive, and why did you go? “FRANK SEISHI EMI”:
Prior to that, we were at the Pomona
Assembly Center, where we were evacuated from our homes. “A.L. WIRIN”: Where
was your home? “FRANK SEISHI EMI”: Los Angeles. “A.L. WIRIN”: You were
evacuated under military order? “FRANK SEISHI EMI”: Yes. “A.L. WIRIN”:
Sometime this year, did you attempt to walk out
of the Relocation Center? “FRANK SEISHI EMI”:
Yes, on March 29, 1944. “A.L. WIRIN”: And what happened? “FRANK SEISHI EMI”: When
the draft was instituted and I learned I was
eligible for it, I figured I was now recognized
as an American citizen. So I walked out of the center
with [INAUDIBLE] and Tamesa. An armed military police
officer stopped me and said he would arrest me if
I walked out without a pass. I asked him, if I was
an American citizen, didn’t I have the right to
the freedom of movement? He said no. He said he had
orders to arrest me. I said, suppose I resisted? And he said he would have
to use force, which I thought implied using his gun. After I was arrested, I was
put in the MP guardhouse, and a guard, again, told
me if I tried to get away, I would be shot. “PROSECUTION”: Mr. Emi, Heart
Mountain is a rather large establishment, isn’t it? “FRANK SEISHI EMI”: Yes. “PROSECUTION”: And there
is nothing around it but an ordinary barbed
wire fence, right? “FRANK SEISHI EMI”:
There is a barbed wire fence and guard towers. “PROSECUTION”: You can get
outside through the gates all around? “FRANK SEISHI EMI”: No. “PROSECUTION”: Isn’t there a
rather large portion of land that is farmed
outside of the fences? “FRANK SEISHI EMI”: I think so. “PROSECUTION”: Can’t
people at Heart Mountain go out there to work
and raise their crops? “FRANK SEISHI EMI”: Only
with special passes. “PROSECUTION”: Anybody
who wanted to work had a pass, right? “FRANK SEISHI EMI”: No. “PROSECUTION”:
Have you ever been able to leave Heart
Mountain to work? “FRANK SEISHI EMI”:
I believe one time, a farmer requested my services
during a beet harvest, and I was given a special pass. “PROSECUTION”: How often
did you leave to work? “FRANK SEISHI EMI”: I have
never been out of there except that one time
on a special pass. “PROSECUTION”: Because
of your conduct? They have a stop list there. Were you in the stop list
because of your conduct? “FRANK SEISHI EMI”: I have never
broken any law, except when I walked out of there. “PROSECUTION”: Were you ever
refused a permit to get out of there and go to work? “FRANK SEISHI EMI”: Yes. “PROSECUTION”: Do
you know of anyone else who was refused a pass
to leave and go to work, except these defendants? “FRANK SEISHI EMI”:
There were quite a few. KATHY CHIN: Judge Rice denied
defendants’ second motion to quash as well,
refusing to find the detention unconstitutional. The case proceeded to trial
on October 23rd, 1944. The defense called Minoru
Tamesa, an oyster farmer and mill worker from the
Seattle area, who was one of the leaders of the FPC. “DEFENSE”: Mr.
Tamesa, have you ever complied with orders from
your local draft board? “MINORU TAMESA”: Yes. “DEFENSE”: When? “MINORU TAMESA”:
Before Pearl Harbor. I was born and raised in a
typical American community on the outskirts of
Seattle, Washington. I grew up with some
nice neighbors. When I was living
there, I received a draft notice to report
for a physical examination, and I did. To protect the
security, and happiness, and freedom of my
life there, I was willing to serve my country. “DEFENSE”: Have you ever not
complied with draft orders? “MINORU TAMESA”: Yes. “DEFENSE”: When? “MINORU TAMESA”:
After Pearl Harbor. We were evacuated from Seattle
to a concentration camp. I received the order
from Heart Mountain. It seemed to me that the
Selective Service didn’t mean for me to fight
to protect the security and freedom of a barracks
room in a concentration camp or to go to war while
my family was still imprisoned in the camp,
so I didn’t report. “DEFENSE”: Mr. Tamesa,
are you a member and a leader of the Fair
Play Committee, the FPC? “MINORU TAMESA”: Yes. “DEFENSE”: What is the
mission of the FPC? “MINORU TAMESA”:
To air grievances, improve the situation
of those interned, and test the constitutionality
of the evacuation. “DEFENSE”: What do
you mean by that– to test the constitutionality
of the evacuation? “MINORU TAMESA”:
We wanted to create a test case for the courts. We wanted the government to
clarify our citizenship rights before we joined the military. We thought it was
unconstitutional for the government to imprison
us and strip us of our rights while simultaneously drafting
us to serve and fight for this country. We were willing to serve as soon
as our rights were restored. “PROSECUTION”: Mr.
Tamesa, does this document look familiar to you? “MINORU TAMESA”: Yes, it is
one of the FPC’s publications. “PROSECUTION”: Could you
read the highlighted text? “MINORU TAMESA”: It says,
we, members of the Fair Play Committee hereby refuse to go
to the physical examination or to the induction if
or when we are called, in order to contest the issue. We hope that all
persons whose ideals and interests are with us
do all they can to help us. “PROSECUTION”: So,
Mr. Tamesa, did you and the leadership of the
FPC encourage others at Heart Mountain to evade the draft? “MINORU TAMESA”: Yes, but– “PROSECUTION”: Nothing further. DENNY CHIN: Following
closing arguments, counsel presented their jury
instructions to the court. The Second Circuit had
recently upheld a trial court’s determination that the desire
to test the legality of laws discriminating against a
pro German organization was not a defense to
charges of draft evasion. The Keegan case was
set for oral argument before the Supreme
Court, as Wirin prepared his jury instructions. Looking ahead to the appeal and
hoping that the Supreme Court would reverse the
Second Circuit, Wirin requested a test
case jury instruction. “A.L. WIRIN”: We request
that the court instruct the jury to determine
whether the defendants acted in good faith or in bad
faith and to consider the sincerity or the insincerity
of the defendant’s belief that the citizenship status and
the rights of American citizens of Japanese descent evacuated
from the Pacific coast and detained at Heart
Mountain Relocation Center could be lawfully determined
or clarified by the courts upon prosecution
for their refusal to comply with the draft. If the jury finds that
the defendants sincerely and in good faith entered such
a belief, they should acquit. “JUDGE EUGENE RICE”:
Any objections? “PROSECUTION”: The government
objects, Your Honor. The test case defense
is without merit. That said, the
government would not object if the court
instructed the jury to consider all the
evidence in the case, including any evidence as to the
test case, which might indicate that the defendants did not,
in fact, knowingly conspired together to counsel evasion. “JUDGE EUGENE RICE”: Both
proposed jury instructions are denied. Instead, I will instruct
the jury as follows. A desire to have a
test case does not excuse failure to comply
with the Selective Training and Service Act. It is a violation of
the law for anyone to counsel another to
disobey the draft law or to assist or abet one
to evade the draft law. And I charge you that it
is a violation of the law, even though it is contended
that the purpose was to create a case for the
testing of the constitutionality of the law. KATHY CHIN: On
November 1st, 1944, Judge Rice submitted
the case to the jury. After a short
deliberation, the jury returned a verdict
convicting all seven leaders of the FPC of conspiracy. Jimmy Omura, the newspaper
columnist, was acquitted. The next day, Judge Rice
sentenced the four defendants he saw as the most culpable
to four years imprisonment. He sentenced the others,
whom we concluded played lesser roles, to
two years imprisonment. All seven were sent to the
maximum security federal prison at Leavenworth, Kansas. DENNY CHIN: The draft resistance
movement at Heart Mountain has been described by scholars
as the most articulate reaction recorded to the issues facing
the detainees at the 10 concentration camps. Other cases were
brought with results that very little from the
Heart Mountain experience. Chase Clark, the
Governor of Idaho, who had to man the concentration
camps for any Japanese coming to Idaho was the
federal judge who tried the resisters from the
Minidoka Relocation Center. When one of the resisters
moved to quash the indictment on the grounds that
incarceration rendered unconstitutional the
government’s attempt to draft him, the
court denied the motion without recorded
opinion and proceeded to conduct 33 separate jury
trials over the next 11 days. The jury for each was
selected from a pool of 34 Idaho citizens
so that some jurors sat on as many as 11 cases. One lawyer protested, but Judge
Clark overruled his concerns. At sentencing, those who
had entered guilty pleas received 18 months in prison,
while those who went to trial received three years and
three months and a $200 fine. Some resisters in other camps
did fare better in the courts. KATHY CHIN: Approximately
100 resisters from the Poston Relocation
Center in Arizona were tried and found guilty. But the judge did not
send them to jail, and fined each
defendant one penny. And remarkably, one
federal judge simply dismissed the charges against
the resisters before him on due process grounds
at some personal risk. The Honorable Louis E. Goodman
of the Northern District of California was relatively new
to the bench when he traveled from his chambers in San
Francisco in July 1944 to Eureka to hear the case of
the resisters from Tule Lake. Eureka had been well known
for its anti-Asian sentiment since 1885, when all Chinese
were expelled from the county and banned forever. Not surprisingly,
when Judge Goodman appointed two local
attorneys, their defense consisted of entering guilty
pleas for their clients. After questioning the
defendants himself, Judge Goodman decided to call
on another attorney, a friend from San Francisco,
to represent them. The new attorney moved to
withdraw the guilty pleas and then to quash
the indictment. Laboring on a Friday evening in
a town without a law library, Judge Goodman and his law
clerk put together an opinion and packed their bags
for a quick getaway, fearing a lynching. With their car idling
outside the courtroom, Judge Goodman read his opinion
from the bench on Saturday, July 22, 1944. “LOUIS E. GOODMAN”: It does not
follow that because of the war power may allow the detention
of defendant at Tule Lake. The guarantees of
the Bill of Rights and constitutional
provisions are abrogated by the existence of war. It is shocking to the conscience
that an American citizen be confined on the grounds
of disloyalty and then, while under duress
and restraint, be compelled to serve
in the Armed Forces or be prosecuted for not
yielding to such compulsion. The issue raised by this
motion is without precedent. It must be resolved in the light
of the traditional and historic Anglo-American approach to
the time-honored doctrine of due process. It must not give way to
overzealousness in the attempt to reach, via the criminal
process, those whom we may regard as undesirable citizens. The motion to quash the
indictment is granted, and the proceeding is
dismissed with respect to the Defendant Kuwabara
and the 25 other defendants similarly charged. DENNY CHIN: The
government chose not to appeal Judge
Goodman’s decision, and it was therefore
never reversed. In affirming the conviction
of the Poston resisters, however, the Ninth Circuit
noted that, wherein the reasoning of
the Kuwabara differs with that of this opinion, it
may be taken that we are not in accord therewith. KATHY CHIN: Meanwhile, the Heart
Mountain resisters appealed to the Tenth Circuit in Denver. They gathered funds to hire
Menin to argue the case. Fujiii was the named resister,
but by stipulation, all 63 of the convicted
resisters agreed that their convictions would
be controlled by the outcome of Fujii’s appeal. Menin argued to
the Tenth Circuit. “SAMUEL MENIN”: Can the
government do no wrong? Can it subject people to a loss
of civil rights and property without due process of
law and, at the same time, require compliance
with the Draft Act? What, then, would the Nisei
be drafted to fight for? So that their parents,
sisters, and brothers may continue to remain
behind barbed wire under military guard? If our government cannot trust
American citizens of Japanese ancestry so that we can
accept them on an equal basis and accord them equal
rights, then how can we ask them to fight,
and for what do we ask them to fight? Is it to fight
for a continuation of relocation centers with
armed guards and barbed wire? How can we ask them to
lay down their lives in approval of such
unconstitutional treatment? DENNY CHIN: In an opinion
written by Judge Walter Huxman, the Tenth Circuit
rejected Menin’s arguments and affirmed the
resistors’ convictions. “JUDGE WALTER HUXMAN”: Fujii
was loyal to the United States at all times. There can be no
question about this. He indicated no desire
to live in Japan. He wanted to fight
for this country if his rights as a
citizen were restored. Fujii’s entire appeal is
predicated on the argument that his confinement behind
barbed wire in the relocation center without being charged
with any crime deprived him of his liberty and property
without due process of law. And therefore, he
should not be required to render military service
until his rights were restored. Fujii could have secured
his complete release from the relocation
center at any time by writ of habeas corpus. This would have restored his
freedom and cleared his name. But this, he did not do. Instead, he chose disobeying a
lawful order because he claimed his rights had been invaded. Two wrongs never make a right. One may not refuse to heed a
lawful call of his government merely because in another
way it may have injured him. Fujii was a citizen
of the United States. He owed the same military
service to his country that any other citizen did. Neither the fact that he was of
Japanese ancestry nor the fact that his constitutional
rights may have been invaded by sending
him to a relocation center cancel this debt. The judgment convicting
the 63 Heart Mountain draft resisters is affirmed. KATHY CHIN: The
defendants who had been convicted in the
conspiracy trial also appealed. By the time Wirin argued the
appeal to the Tenth Circuit, the importance of the
instruction he had requested at trial was clear– as he had hoped
the Supreme Court had reversed the Second Circuit
and upheld the test case defense. On December 26,
1945, in an opinion written by Judge Sam
Bratton, the Tenth Circuit reversed the judgments
of conviction and remanded the cases
to the district court. “JUDGE SAM BRATTON”: First,
as to the sufficiency of the evidence claim,
the jury was entitled to resolve the issues of fact. It cannot be said that the
evidence was insufficient to support the
verdict and judgments. Second, as to the
First Amendment claim, freedom of speech,
freedom of the press, and freedom of assembly
are fundamental rights. But, though fundamental, they
are not, in their nature, absolute. These rights are not
unbridled license to speak, publish, or assemble
without any responsibility whatever. The First Amendment does
not protect the speech, publication, or assembly in
furtherance of a conspiracy to promote evasion of an
act reasonably designed to protect the
government against a clear, present, imminent,
extremely serious danger of a substantive evil
here, destruction by a military force. But finally, the
jury instruction issue merits discussion. The Supreme Court
recently reviewed Keegan, the facts of which
are fairly comparable to those presented here. In Keegan, pro-nazi
German-Americans were prosecuted for counseling
draft resistance to preserve their German spirit. The Supreme Court reversed
the convictions in Keegan and approved the test
case instruction holding, one with innocent motives
who honestly believes a law is unconstitutional and
therefore not obligatory may well counsel that the
law shall not be obeyed, that its command shall be
resisted until the court shall have held it valid. But this is not
knowingly counseling, stealthily and by guile,
to evade its command. In light of Keegan, it is clear
that the trial court erred in giving the instruction. The court should have
instructed the jury to consider appellant’s
good faith and sincerity in bringing forth a
test case to determine their status under the act. The judgments convicting
all seven of the FPC leaders are severally reversed
and the causes remanded. DENNY CHIN: On April 29,
1945, the 442nd Regiment, the all Japanese-American
regiment freed prisoners at the
Dachau concentration camp. Germany surrendered on May
8, 1945, Japan on August 15. The Heart Mountain camp
closed on November 10th, 1945. The Heart Mountain
draft resisters continued to serve their
sentences until approximately a year after the war ended and
many months after the closure of Heart Mountain. One resistor never
saw his freedom. Two days before he was
scheduled to be released, Fred Iriye, who worked
as an electrician in the prison power plant,
was training the inmate who was to replace him. He touched an electrical
switch, believing it had been disconnected. He was killed instantly. KATHY CHIN: On
Christmas Eve, 1947, President Truman granted
the draft resisters a full presidential pardon,
restoring all their civil and political rights. On February 19th, 1976,
President Gerald Ford formally rescinded Executive Order 9066. And on August 10th, 1988,
the United States Congress enacted the Civil Liberties Act. On behalf of the
nation, Congress thereby apologized for what it described
as, fundamental violations of basic civil liberties
and constitutional rights of individuals of Japanese
ancestry who were evacuated, relocated, and interned. Representatives Robert
Matsui and Norman Mineta, who had been
interned as children, co-sponsored the legislation. Senator Spark Matsunaga
and Daniel Inouye, both members of
the fighting 442nd pushed for the bill
and the amendments in the Senate, which
ultimately guaranteed funds for reparation payments
to internment survivors beginning in October 1990. DENNY CHIN: What became
of the defendants in the Heart Mountain trials? Jimmy Omura may have
escaped conviction, but his career as a
newspaper man was over. He became a landscape gardener. Upon release from
Leavenworth, Frank Emi became a career civil servant. He worked for the postal
service and the California state employment office. He also taught judo
as an eighth degree black belt. In
the late 1980s, he joined the Japanese-American
redress movement, and publicly spoke out about
his wartime civil disobedience. In 1993, he explained that– “FRANK EMI”: We can either
tuck our tails between our legs like beaten dogs or stand up
like men and fight for justice. KATHY CHIN: Emi passed
away on December 1, 2010, at the age of 94. He was the last surviving
leader of the FPC. Takeo Ishikawa,
whose letter we read at the beginning of our program,
passed away on June 5th, 2016, at the age of 97. DENNY CHIN: All told, some 315
Japanese-American men defied the draft in World War II. They were, by far, the minority,
as the great majority answered their induction
orders, reporting to fight for freedom overseas,
even as they and their families were held in
concentration camps. In some respects,
those who said, no, were just as courageous
as those who fought. They took a stand even as
critics labeled them cowardly, draft dodgers, and there
were whispers that they just didn’t want to get shot at. After the resisters
were arrested, their families were
ostracized and taunted by other camp residents. When the war ended,
those who fought were welcomed home as heroes,
while the resistance remained in prison until they
completed their sentences, and were then released
as convicted felons. Later, when some
of the resisters were drafted again to
fight in the Korean War, they served willingly, for
their rights had finally been clarified when President
Truman granted them a pardon. KATHY CHIN: Most of
the draft resisters were not willing to tell
their stories for decades. For Japanese-Americans, and
for Americans generally, it was the heroism of the
Fighting 442nd that inspired, not the principles of
the draft resisters. Only recently did the resisters
begin to tell their story. And only recently
have even the heroes of the 442nd acknowledged
their contribution. In the forward to Professor
Muller’s book about the draft resisters, Free to
Die for Their Country, Senator Inouye, a
member of the 442nd, described their
experience as follows. “SENATOR DANIEL INOUYE”:
In this climate of hate, many felt the necessity
of stepping forward to volunteer for
service in the military to prove their loyalty
to the United States. These men, for the
most part, carried out their military obligations
with much courage and honor. However, in this
climate of hate, I believe that it took just
as much courage, and valor, and patriotism to stand up
to our government and say, you are wrong. I am glad that there were
some who had the courage to express some of the feelings
that we who volunteered harbored deep in our souls. DENNY CHIN: This reenactment
has provided another way for the draft resisters
to get their story out. It was first performed
in November 2012 at the Annual Conference of the
National Asian Pacific American Bar Association. In June 2014, two of the
original Heart Mountain draft resisters, Yoshito Kuromiya
and Takashi Hoshizaki participated in a presentation
of this re-enactment in Cody, Wyoming, just a few miles from
the site of the Heart Mountain internment camp. They were both in their 90s,
and Mr. Kuromiya played himself. Both are still alive
today, and Mr. Hoshizaki is a board member of the Heart
Mountain Wyoming Foundation. KATHY CHIN: What
about the others who played a role in the
Heart Mountain trials? Samuel Minen continue
to defend the rights of racial minorities, political
dissidents, and the imprisoned. In 1948, when the United
Nations General Assembly promulgated the Universal
Declaration of Human Rights, Minen openly
challenged the country to enforce the Universal
Declaration at home before attempting to
enforce it abroad. A.L. Wirin continued
to represent Japanese and other clients
and civil rights cases, practicing law until he
suffered a heart attack in 1972. Carl Sackett, the
United States Attorney for the District of Wyoming,
left the office in 1949 and was replaced
by his second chair at the last trial, John Pickett. DENNY CHIN: Judge
Goodman, the federal judge who found that the plight of
the Japanese-American draft resisters shocked
the conscience, never lost its concern
for the underdog. One of his law clerks recalled
that the judge was once turned away from a
southern resort hotel because he was Jewish. In a Yom Kippur
sermon he delivered in a San Francisco
temple in 1947, he made the following remarks. “LOUIS E. GOODMAN”: We
must all scrutinize both our Americanism and our faith. If we do that, we find
a common obligation to cherish the cause
of the oppressed or the disenfranchised. Gallantry and intrepidity
in a just cause are the essence of strength. They command respect
and admiration. KATHY CHIN: What
can we take away from the story of the Heart
Mountain draft resisters? It’s a difficult tale
to tell, for it surely suggests the system
doesn’t always work as it should,
despite the best efforts of dedicated
individuals who, years later, still command respect
and admiration. Perhaps the only true lesson
is the need for vigilance. One of the children incarcerated
at the Hilo relocation center was Michiko Nishiura Weglyn,
who graduated from the camp high school in
1944 and was freed when Mount Holyoke College
gave her a full scholarship. She wrote one of
the earlier books about Americans’
concentration camps. And in the preface, she
stated her purpose as follows. “MICHIKO NISHIURA WEGLYN”:
I have taken upon myself the task of piecing
together what might be called the
forgotten, or ignored, parts of the tapestry of these years. This I’ve done not to
awaken disquieting memories or arouse negative
feelings, but because of the clear
responsibility I feel for those whose honor was so
wrongly impugned, many of whom die without vindication. And more significantly, I hope
this uniquely American story will serve as a
reminder to all those who cherish their liberties
of the very fragility of their rights
against the exploding passions of their more
numerous fellow citizens and as a warning that they who
say it can never happen again are probably wrong. [APPLAUSE] ELIOT KIM: Thank you,
everyone, so much. I realize, at the
very beginning, I forgot to thank a
whole bunch of people. And I’m going to do that as
the panelists are setting up. Of course we want to
thank the Dean’s Office for the DOS Student Grant Fund. We also want to
thank ITS events. We want to thank all of our
co-sponsors, BLSA, JLSA, LAMDA, MLSA NALSA, SALSA, and HLS ACLU. And now, we’re going to do
about 20 minutes of the Q&A. You can ask questions
about this particular case or about the writing
process, because all three– Judge Denny Chin here
has been involved in writing this
particular script, as has Judge Matsumoto and,
of course, Ms. Kathy Chin. And we’re going to
walk around with mics if you have any questions. DENNY CHIN: Thank
you, very much. Thanks to Harvard Law
School and Harvard APALSA for inviting us
here to do this again. I also want to thank Eliot,
who has been the coordinator. He’s done a wonderful job of
putting this all together. So we’re going to talk
just for a few minutes. The three of us are part of the
team with the Asian American Bar Association of New York. And so we’re just going
to say a few words each, and then we’ll open it up for
questions from the audience. And I’m going to start with just
a few words about the format– the reenactment of
an historic case. Albany has been doing
these for 11 years. We’ve now done 11 reenactments
featuring cases of importance to the Asian-American community. We’ve always tried to
find historic cases that raise issues that are
still important today. And this case, certainly,
raises issues that have been very important in the last– well, ever since 9/11. And we unveil our programs
at the NAPABA Convention in November every year,
but we encourage audiences to take our scripts and to
go back to their communities and present them in
their own communities. And sometimes the three of us
will fly in and help out a bit. This one– the Heart
Mountain presentation is our second most
popular presentation. Kathy and I have even
performed it in Hawaii. And our most popular is the
Vincent Chin one, which we did last year here at Harvard. The Vincent Chin program
has been re-presented, oh, over 30 times, including
in Switzerland. Kathy and I got to
go to Switzerland and perform with an
international cast. And one of the goals there
was to promote diversity in the profession in Europe. And so it was nice that we were
able to participate in that. But another important
thing and what we look for in these programs,
in these cases, is stories– the stories about the people. And we are trying to help
bring out those stories. And we want to
introduce these cases to a new generation of Asian
Americans and other Americans. It was because of
this conference last year when the students,
and Cathi Choi and others encouraged me to come
to Harvard and teach a seminar on Asian-American
legal history. And so this week, indeed,
I started my seminar. It’s capped at 25
students; but at one point, we had 74 students on
the list, and we also had about nine undergraduate
and graduate students who wanted to cross-register. So there really is a
tremendous interest in this important area. I’m going to ask
Kathy a question now. Kathy, your father was
a Japanese American– a Nisei born in this
country who served in the United States Army. What do you think his reaction
would have been to the Heart Mountain draft resisters? And in fact, what
was your reaction when I came home one
night and suggested this to you as a topic? Kathy and I are married,
if you haven’t gotten that. KATHY CHIN: Well, I think
that my father would have been disappointed in me for
wanting to present this story. And indeed, my
first reaction when Danny suggested this
particular story was to be somewhat
disappointed in the idea. What I had been brought
up with and what I think my father believed
was the important story was that of the 442nd– the heroism of the
Japanese Americans who, even though
their relatives were incarcerated in concentration
camps, went and died in Europe. That was the story that
resonated with him, and that was the story
that I grew up with. I had never heard of the Heart
Mountain draft resisters, frankly. It was not a story that the
Japanese-American community was all that willing to talk about. So literally, I had
never heard about it. But as we got more and more
into the research and learned of the reaction of people like
Senator [INAUDIBLE] who finally recognize that, yeah,
that’s heroic, too– I came around. And I think that, ultimately,
my father, were he still alive– I think he would
come around, too. DENNY CHIN: Judge
Matsumoto, your parents were interned in the camps. Can you tell us where? Can you tell us a little
bit about their experiences? JUDGE MATSUMOTO: Well,
my mother’s family was interned in Topaz, Utah. She lived in San Francisco. She was one of eight
children born there. So she was a US citizen. And as the script
noted, my grandparents were not allowed to naturalize. There were laws against
naturalizing folks from Asia. And so– DENNY CHIN: My seminar is
studying all that right now. JUDGE MATSUMOTO: I’m sure
it’s a popular class, and I hope that
you’ll be able to take more students next semester. But in any event, they
were originally placed at Tanforan Assembly Center. They were given the notice
that they had to evacuate, and it was true. They could only take
what they could carry. My grandfather had
an art goods store. He lost everything. And they carried pots,
and pans, and blankets. They were housed in stalls
that were previously housing horses at the racetrack. There was manure in the,
stalls where they slept. They stuffed mattresses
full of straw. Ultimately, they
were carried by train to Topaz, Utah which was a
very remote part of the desert. And the barbed wire
and guard towers were very much a part
of their reality. My father’s family was
also from San Francisco. His dad had come at the
turn of last century and had learned
English in high school, went to the University
of California and was working with
farmers in the Central Valley of California shipping
produce to the East Coast. He also lost his business. But because he knew so many
folks in the Central Valley, he was able to
relocate temporarily outside the coastal zone. And ultimately, all Japanese
and Japanese-Americans were excluded from the state. So he ended up in Poston. And that was a very
remote area in Utah. It was on an Indian Reservation. And originally, the tribal
council that had the land was very resistant to having
Japanese-Americans incarcerated on their lands, because
they felt that it was wrong that they would be subject to
some of the similar treatment. But my father, who
was 19 at the time and a senior at
UC Berkeley, tried very hard to apply to
colleges and was ultimately released to go and continue
his undergraduate and graduate education. My mother remains in the camp
for the duration of the war. DENNY CHIN: And you’re
now a federal judge. So what, if anything, does
that tell us about our system? JUDGE MATSUMOTO: Well,
my parents were always very open about the experience. And their message to us was,
be aware that this happened and be vigilant that
it not happen again. My father was a professor
in North Carolina, which, at the time,
was very segregated. And my mother made
sure that we were aware that these water fountains
that were designated “colored” were fountains that
we should drink out of to understand and appreciate
that we were people of color. And on the other hand,
she said drink out of the white fountains because
you have the right to do it. You’re no different. Everybody should
have equal rights. So they tried to instill
this sense of equality and equal opportunity in us. And it wasn’t until we moved
back to California, ironically, that we had trouble buying
homes in certain neighborhoods. We were told, you can’t
buy in this neighborhood. And this is years
later, after the war. But I think that the hostility
against Asian-Americans, at least in the early ’60s,
was still very prevalent. DENNY CHIN: Back to Kathy, the
script mentioned a reenactment in Cody, Wyoming, and two of the
original draft resisters came. So you and I were there. Would you tell us
what it was like? KATHY CHIN: It was an unusual
experience, but it was great. I mean, these two
elderly gentlemen– they were both amazing. We originally did a phone
rehearsal with both of them and Tak was Takeo Ishikawa. And just listening to him read
those words from the letter, I was in tears. Sitting in my office, just
listening on the phone, it was amazing to hear them
reciting these words that meant so much to them. And then, we were
out in Cody, Wyoming to do this reenactment
as part of a conference. It was the National
Coalition on Racial and Ethnic Fairness
in the Courts. And this re-enactment was
put in the high school gym in Cody, Wyoming. And as I understand,
our competition that night, in terms of
entertainment– was they were putting on The Music Man
on the other side of town. Nevertheless, there were
lots of people who came to our little re-enactment. There were kids running
around in the back. And it was well-received,
and it was amazing that these gentlemen
were willing to come and participate. Tak, as it turns out, was so
excited by the whole thing that he forgot to drink
enough water during the day and ended up going to
the emergency room right before we started. But he was fine and showed up
at the conference the next day. There was no keeping
that man down. DENNY CHIN: And Mr. [INAUDIBLE]
was really feistiness recall still, even though he
was in his mid 90s. KATHY CHIN: Yeah, he’s the
one who was in the picture. If you notice the picture
of us standing there with an older gentleman,
that was Mr. [INAUDIBLE].. And his wife was even feistier. They were quite a couple. As it should be. DENNY CHIN: And with that,
we’ll take some questions if there are any questions
from the audience. ELIOT KIM: I think we
have time for maybe three questions or so. DENNY CHIN: Questions. AUDIENCE: Hi, I thank you
so much for doing this. I think today we all
recognize Japanese internment as one of the most egregious
scars in American history, but I’m wondering how you
think about your roles as judges, considering that
it was upheld and affirmed in the courts and
justified by judges who work for the government? DENNY CHIN: Well,
you say it’s one of the most egregious scars. There are many people who think
that those decisions are still good law. They’ve never been
actually overturned. They’re not cited very often. In the ’80s, the
convictions were set aside in the Coram Nobis cases but
on grounds of misconduct, not on the grounds
that military necessity is sufficient to justify putting
people in concentration camps without due process. Like all these things, they’re
part of what we’ve studied and who we are. And we’re interested
in these things. If we get a case,
will we be in some way unduly influenced
by our experience of studying these cases? I don’t think so. I hope not. Hopefully, we will look
at the cases on the facts and on the law and decide them. We moderated a panel
of three judges, and I asked the
question, do you think Korematsu was correctly
decided or wrongly decided? Two out of three thought
it was correctly decided, and they were
Asian-American judges. So who knows? It’s a complicated question. JUDGE MATSUMOTO:
You know, I think that we’ve heard rumblings
about the incarceration as recently as the last
three or four years. I think the mayor
of Roanoke, Virginia talked about it with
approval as something that happened in our past. And this came up, I
think, in the context of the travel orders. And since 9/11,
certainly, there has been, understandably,
some reaction, strong reaction to the
attack on our country. But the broad strokes
that some were calling for– to round up
Muslims, or to punish Muslims, or to ban them, I
think is something that we should be aware
of, given our history, and think about the need for
due process and individualized determinations. I have not had a case. There are some cases
pending in my court. I would not be able to
comment because each case has to rise or fall on the
merits, the factual record. But these are difficult times,
certainly, for many people. And our immigration history is
one that is very complicated. And I think we’re
sorting through, as the government sorts
through a revision of the laws, our
jobs, as judges, would be to review if
there are challenges and to decide cases on
the record and on the law as it exists. DENNY CHIN: Next question. ELIOT KIM: Kathy, did you
have a question in front? AUDIENCE: Thank
you so much again. I think one part of this
particular re-enactment that really struck
me was Judge Goodman and how he wrote that opinion
with the car idling and then the later statement that he
made about being critical of your patriotism
and your own fate. And I just wondered, in
the research process, how you found his story and
what your reactions were to reading about this judge. KATHY CHIN: Well, I mean,
as part of the research, we did look into cases
similar to the Heart Mountain experience. And as you notice
in the re-enactment, we must mention
several of these cases. And during the course
of that research, his story stood out because
he was the only judge who threw those charges out. And it was indeed–
it’s a great story. I mean, the idea
that at some risks– at some personal risks, he was
willing to stand up for these Japanese-Americans– I mean, it’s a powerful story. And it’s sort one of the nice
things that comes out of what’s essentially a sad tale. I mean, there were
people who were willing to stand up and
help the Japanese-Americans at some personal risk. It’s the story of the
lawyers who stood up for the draft resisters. I mean, these were
remarkable lawyers. And they put themselves on
the line to do these cases. Lawyers have a very important
role in situations like this. It’s certainly true that
Korematsu is still good law, but there were several
heroic teams of young lawyers who undertook the
coram nobis cases in order to get the convictions
of those individuals overturned. And somebody who was on one of
those teams is in the audience right now– Karen– who is going to be
your keynote speaker tonight. Lawyers can do wonderful things. And it involves sometimes
great personal sacrifice. But your education, as
lawyers, puts you in a position to do good and to help people. And I think that’s one of
the stories that comes out of a reenactment like this. JUDGE MATSUMOTO: One
of the reenactments that Judge Chin and Kathy
drafted and has been performed is the story of James
Meredith and his effort to gain admission. And to hear about Constance
Baker Motley and her courage in going down to the Deep
South and facing, you know, klansmen, and violence– threats
of violence, Justice Thurgood Marshall, who was head
of the NAACP at the time, sent her down
because they thought she would have a more
effective and a less onerous time in some ways than an
African-American male would in the Deep South. But she had a lot of challenges,
and it took great courage for her to go,
really, unaccompanied to fight that case. DENNY CHIN: I think Thurgood
Marshall’s exact words were, I’m going to send
you down because all the white men in the Deep
South had black mammies. And he thought that she
would be a little bit safer. But apart from
that, by that point, she had been involved
in most of the big cases that they had brought. And one of the
interesting things in researching that one– and Kathy did most
of the work on– was when she appeared in
court, it was a spectacle. And all the blacks
would come and watch. Because here was a
black woman standing up to the white establishment. And in terms of the issue
of judges having an effect, there were a lot of judges down
there who were still resistant. This was seven years after
Brown versus Board of Education. There were a lot
of federal judges down there who were not
going to implement Brown versus Board of Education. So it was fascinating
to do that script. We’re going to do it again in
a couple of weeks in New York, and we’re doing it with the
Asian American Bar Association, the Metropolitan Black Bar
Association, and the New York City Bar Association. So another good thing about this
is bringing different groups together to work on something. ELIOT KIM: Thank you very much. I think we have time for one
more question, because I’m told that a lot of
you have someplace important to be at 6 PM. AUDIENCE: Thank you so
much for taking the time to be here today
and to come down and really put a human face
to the Japanese internment. I’m [INAUDIBLE]. I’m first-generation
Japanese-American. My grandmother was interned
for the entirety of the war, and my grandfather
was interned briefly before being told to go east. He moved to the Midwest
and later joined the Army as Lieutenant Colonel and
served in the Korean War as an intelligence officer. My question is mostly
that, as a body, Asian-Pacific
Americans are generally seen as apolitical
and as assimilating. Not to discount the military
service of any of my generation or my ancestry, but a lot of
times what the Japanese adhere to [NON-ENGLISH]—- that’s,
put your head down. It cannot be helped. Assimilate, serve, do what you
need to do to get through it. And so the No-No Boys
and the resisters are kind of an unusual time
in history for Asian-Pacific Americans in that it was a
period of active resistance from a culture and a people that
don’t tend to be those actors. So my question is,
what can we take away from that today in an era
when, obviously, resistance is an important part of
our political atmosphere, or our political dialogue,
and our political language, because there are many
ways that none of us would feel comfortable
assimilating with current practices? So what lessons can we
take from the resisters at Heart Mountain
and the No-No Boys to carry forth today, both
individually and in our roles as APA attorneys? DENNY CHIN: You started off by
talking about the stereotype of submissive Asian-Americans. I’m not sure that that is so. And you go back and you
look, Asian-Americans were challenging racist laws
from the very beginning. They were bringing many
habeas corpus petitions, there were many– they were
able to hire the finest lawyers. They were able to hire
legal dream teams, in part because they had family
associations, merchants associations, and they would
chip in their money together. They were bringing
impact litigation before there were such a
term as impact litigation. And the Japanese during– there were all these cases
challenging the Oyama case, alien land law, the
internment cases– so there are lots
of these cases. And I think one thing
that people can do today is to remember these cases
and how our predecessors and ancestors did not hesitate
to stand up for their rights and to try and get relief from
the courts when appropriate. JUDGE MATSUMOTO: And Kathy’s
point, I think, is well taken. As lawyers or
soon-to-become lawyers, there are a lot of
opportunities where you can make a difference,
not just in your communities but nationwide. One thing my mother
said to me often times is there weren’t
that many lawyers to stand up and challenge
what was happening. And she was very impressed
during the redress movement that so many young lawyers
in this third generation of Japanese-Americans had come
together and said, you know, we need to fix this problem. Let’s vacate these convictions. Let’s seek redress. Let’s get the government to
acknowledge the wrongdoing and issue a formal apology. So I think history– there is a movement
that is afoot called, don’t let
history rewrite itself, or don’t rewrite history– Kathy’s got the pin. Excuse me. It’s– stop repeating– KATHY CHIN: Stop
repeating history. JUDGE MATSUMOTO:
–repeating history. Yes. So there are
opportunities, and there are more Asian-American
lawyers entering the pipeline. And whether you’re
in private practice and can seek out
pro-bono opportunities, or whether you go
into organizations, there are challenges and
opportunities to stand up for our constitution. KATHY CHIN: Yep. Time to stand up and speak out. ELIOT KIM: Well, with that,
we’ll conclude this session. Thank you everyone. [APPLAUSE] I’d like to thank Judge Denny
Chin, Judge Matsumoto, and Miss Kathy Chin, and, of
course, the entire cast. Thank you, Dean Sells, Professor
Reynolds, Yih-Hsien Shen, Professor Mark Wu. I have an important
announcement. I’m told that there are a
lot of coats still at WCC. So if you don’t have
your coat here with you, for the conference attendees,
please go back and get them. Thank you very much.

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