Japanese Internment Held Improper by Federal Judge

Culminating a 44-year battle by a Japanese-American who refused to be interned during World War II, a federal district judge in Seattle ruled Monday that the federal government engaged in misconduct “of the most fundamental character” in justifying the forced removal of 110,000 American residents of Japanese ancestry to wartime relocation camps.

The judge, Donald S. Voorhees, found that the government withheld from the U.S. Supreme Court in 1943 critical information that might have led the high court to strike down the legal underpinnings of the relocation program, or at least drastically reduce the numbers of citizens of Japanese descent rounded up from their West Coast homes and interned out of a so-called military necessity.

In doing so, Voorhees invalidated the 1942 conviction of Gordon Hirabayashi, one of only three Japanese-Americans who refused to report to military authorities for relocation and who were tried and convicted for their refusal.

The decision was promptly and enthusiastically received in the Japanese-American community, where Hirabayashi’s extraordinary legal effort was widely viewed as the trial that 110,000 others never had.

“We are very happy,” said Roger Shimizu, one of the lawyers in the widely watched case. “It’s a victory. We wanted (Voorhees) to consider misconduct by the government and he found it. The older Nisei carry the feeling they had been considered disloyal and a threat to their government. That score has never been settled.

“But now at least a judge has found government misconduct.”

Government lawyers could not be reached for comment.

After a two-week hearing last June and a review of scores of historical records, some of them only recently disclosed, Voorhees zeroed in on one key issue: Did the government suppress evidence when it argued in Hirabayashi’s appeal to the Supreme Court in 1943 that in the wake of Pearl Harbor, time did not allow for a case-by-case determination of the loyalties of West Coast residents of Japanese ancestry?

In fact, Voorhees found, the military official who deemed relocation necessary, Lt. Gen. John L. DeWitt, had concluded in a written report that for racial reasons, “it was impossible to establish the identity of the loyal and the disloyal with any degree of safety.

“It was not that there was insufficient time . . . it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats’ was unfeasible,” DeWitt said.

Called Important Point

“Nothing would have been more important to (Hirabayashi’s) counsel (in 1943) than to know just why it was that Gen. DeWitt made the decision that he did,” Voorhees added. “Disclosure . . . would have made it most difficult for the government to argue, as it did, that the lack of time made exclusion a military necessity.

“Had the statement of Gen. DeWitt been disclosed to (Hirabayashi’s) counsel, they would have been in a position to argue that, contrary to Gen. DeWitt’s belief, there were in fact means of separating those who were loyal from those who were not. . . . Counsel could have pointed out with very little effort the determination could have been made that tens of thousands of native-born Japanese-Americans--infants in arms, children of high school age or younger, housewives, the infirm and the elderly--were loyal and posed no possible threat to this country.

“More time might have been required to consider the loyalty of those who had spent their adult lives in truck gardening or farming or fishing, but a great number of those, too, could have been rather quickly found to be loyal and of no possible threat,” he said.

One Wins Full Inquiry

While the cases of the two other Japanese-Americans convicted of exclusion-order violations have also been erased in court, Hirabayashi, now 67 and living in Canada, was the only one to win a full judicial inquiry into the government’s actions.

“I feel pretty good,” Hirabayashi told The Times Monday night from Seattle. “We think (Voorhees’ ruling) removes the factual underpinnings for exclusion. It’s a pretty good victory. It was worth waiting 40 years for. Today, justice was served for all Americans.”

He said he was disappointed with the upholding of the curfew conviction but was hopeful the government would eventually consent to its dismissal.

Voorhees’ ruling was the second major legal victory in three weeks for Japanese-Americans. A lawsuit seeking $24 billion for damages sustained by relocated Japanese-American residents was ordered reinstated on Jan. 20 by a federal appeals court in Washington. It had been thrown out by a lower court judge in 1984.

Shimizu expressed hope that Voorhees’ ruling will influence the outcome of that case.