ACLU Posed Challenge to War Internments

More than 50 years after it began, the World War II internment of Japanese Americans still generates controversy--most recently the inaccurate assertion that the American Civil Liberties Union in California stood by without taking action.

The controversy surfaced in this space with publication of a Counterpunch by a former ACLU of Southern California board member, Carl B. Pearlston Jr. (“Not a Shining Chapter in ACLU History,” Dec. 26). Pearlston criticized the release by the ACLU of a new lithograph and poster by artist Robbie Conal that calls attention to notable ACLU achievements--specifically its work in challenging the internment.

Pearlston says this work never occurred. I know differently. I was one of the attorneys who took part, challenging government action that was popular at the time and even divided the membership of the ACLU. That some ACLU members--even board members--were passive in regard to the government action was the reality of the time, but it did not prevent the ACLU from taking the highly unpopular position that the internment was constitutionally flawed and should be challenged.

In August 1942, as ACLU lawyers on behalf of two Japanese Americans who were incarcerated, A. L. Wirin, E. W. Camp and I filed habeas corpus petitions in federal court, directly challenging the constitutionality of the evacuation. Our documents argued that the detainees were being held against their will, had committed no crime and that “military necessity”--which was the alleged justification for the evacuation and detention--did not exist.

We later were joined by five other attorneys, including counsel from the national ACLU, as well as one Japanese American lawyer, Walter T. Tsukamoto, who was himself interned. Before we could argue the cases, however, our clients withdrew from the litigation, saying there was such disagreement about how to proceed within the Japanese American community that they had decided not to go forward with the suits.

In his Counterpunch, Pearlston contends--again, inaccurately--that the ACLU joined in only two of four other challenges to the constitutionality of the evacuation. In fact, the ACLU participated in all four--both through its Southern California affiliate and its national legal department.

The two most famous cases were Korematsu and Hirabayashi. Pearlston notes that both of these cases were “lost in the Supreme Court.” He fails to mention that, years later, the courts, in effect, apologized for those decisions. The convictions of both Korematsu and Hirabayashi were overturned by a procedure called corum nobus, the equivalent of the judiciary admitting a mistake. The legal reasoning closely tracked briefs submitted by the ACLU years before.

In addition, Wirin and I, for the ACLU of Southern California, were involved in suits to restore the citizenship of some Japanese Americans who had renounced it as a result of the oppressive conditions in one of the camps. The court ruled that the renunciations had been coerced and were therefore invalid.

Beyond the extensive involvement by the ACLU in litigation, it engaged from the beginning in public debate and made direct appeals to the government against the evacuation. Even before the evacuations began, the ACLU petitioned President Roosevelt, saying: “This unprecedented order, in our judgment, is open to grave question on the constitutional grounds of depriving American citizens of their liberty and use of their property without due process of law.”

In May 1942, Dr. John Haynes Holmes, ACLU president, made a public statement comparing the Japanese American detention to “what the Nazis have done to Jews in Poland and elsewhere.” This statement, as well as the petition to President Roosevelt, were dutifully reported in Open Forum, the ACLU of Southern California’s newspaper.

Whether what the ACLU did was enough or whether it could have been more effective are questions historians must answer. However, neither the ACLU nationally nor the ACLU of Southern California can be faulted for their conduct during, or about, the evacuation.