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MR. JUSTICE BLACK
delivered the opinion of the Court.
MR. JUSTICE FRANKFURTER,
concurring.
MR. JUSTICE ROBERTS, MR. JUSTICE MURPHY,
and MR. JUSTICE JACKSON, dissenting.
MR. JUSTICE ROBERTS dissenting.
I, because I think the indisputable facts exhibit
a clear violation of Constitutional rights.
This is not a case of keeping people off the
streets at night as was Hirabayashi v. United States, 320 U.S.
81, nor a case of temporary exclusion of a citizen from an area
for his own safety or that of the community, nor a case of offering
him an opportunity to go temporarily out of an area where his
presence might cause danger to himself or to his fellows. On the
contrary, it is the case of convicting a citizen as a punishment
for not submitting to imprisonment in a concentration camp, based
on his ancestry, and solely because of his ancestry, without evidence
or inquiry concerning his loyalty and good disposition towards
the United States. If this be a correct statement of the facts
disclosed by this record, and facts of which we take judicial
notice, I need hardly labor the conclusion that Constitutional
rights have been violated.
The Government's argument, and the opinion
of the court, in my judgment, erroneously divide that which is
single and indivisible and thus make the case appear as if the
petitioner violated a Military Order, sanctioned by Act of Congress,
which excluded him from his home, by refusing voluntarily to leave
and, so, knowingly and intentionally, defying the order and the
Act of Congress.
The petitioner, a resident of San Leandro,
Alameda County, California, is a native of the United States of
Japanese ancestry who, according to the uncontradicted evidence,
is a loyal citizen of the nation.
A chronological recitation of events will make
it plain that the petitioner's supposed offense did not, in truth,
consist in his refusal voluntarily to leave the area which included
his home in obedience to the order excluding him therefrom. Critical
attention must be given to the dates and sequence of events.
December 8, 1941, the United States declared
war on Japan.
February 19, 1942, the President issued Executive Order No. 9066, 1 which, after stating the reason for issuing the order as "protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities," provided that certain Military Commanders might, in their discretion, "prescribe military areas" and define their extent, "from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions" the "Military Commander may impose in his discretion."
February 20, 1942, Lieutenant General DeWitt
was designated Military Commander of the Western Defense Command
embracing the westernmost states of the Union, -- about one-fourth
of the total area of the nation.
March 2, 1942, General DeWitt promulgated Public
Proclamation No. 1, 2 which
recites that the entire Pacific Coast is "particularly subject
to attack, to attempted invasion . . . and, in connection therewith,
is subject to espionage and acts of sabotage." It states
that "as a matter of military necessity" certain military
areas and zones are established known as Military Areas Nos. 1
and 2. It adds that "Such persons or classes of persons as
the situation may require" will, by subsequent orders, "be
excluded from all of Military Area No. 1" and from certain
zones in Military Area No. 2. Subsequent proclamations were made
which, together with Proclamation No. 1, included in such areas
and zones all of California, Washington, Oregon, Idaho, Montana,
Nevada and Utah, and the southern portion of Arizona. The orders
required that if any person of Japanese, German or Italian ancestry
residing in Area No. 1 desired to change his habitual residence
he must execute and deliver to the authorities a Change of Residence
Notice.
San Leandro, the city of petitioner's residence,
lies in Military Area No. 1.
On March 2, 1942, the petitioner, therefore,
had notice that, by Executive Order, the President, to prevent
espionage and sabotage, had authorized the Military to exclude
him from certain areas and to prevent his entering or leaving
certain areas without permission. He was on notice that his home
city had been included, by Military Order, in Area No. 1, and
he was on notice further that, at sometime in the future, the
Military Commander would make an order for the exclusion of certain
persons, not described or classified, from various zones including
that in which he lived.
March 21, 1942, Congress enacted 3
that anyone who knowingly "shall enter, remain in, leave,
or commit any act in any military area or military zone prescribed
. . . by any military commander . . . contrary to the restrictions
applicable to any such area or zone or contrary to the order of
. . . any such military commander" shall be guilty of a misdemeanor.
This is the Act under which the petitioner was charged.
March 24, 1942, General DeWitt instituted the
curfew for certain areas within his command, by an order the validity
of which was sustained in Hirabayashi v. United States, supra.
March 24, 1942, General DeWitt began to issue
a series of exclusion orders relating to specified areas.
March 27, 1942, by Proclamation No. 4, 4
the General recited that "it is necessary, in order to provide
for the welfare and to insure the orderly evacuation and resettlement
of Japanese voluntarily migrating from Military Area No. 1, to
restrict and regulate such migration"; and ordered that,
as of March 29, 1942, "all alien Japanese and persons of
Japanese ancestry who are within the limits of Military Area No.
1, be and they are hereby prohibited from leaving that area for
any purpose until and to the extent that a future proclamation
or order of this headquarters shall so permit or direct."
5
No order had been made excluding the petitioner
from the area in which he lived. By Proclamation No. 4 he was,
after March 29, 1942, confined to the limits of Area No. 1. If
the Executive Order No. 9066 and the Act of Congress meant what
they said, to leave that area, in the face of Proclamation No.
4, would be to commit a misdemeanor.
May 3, 1942, General DeWitt issued Civilian
Exclusion Order No. 34 6 providing
that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry,
both alien and nonalien, were to be excluded from a described
portion of Military Area No. 1, which included the County of Alameda,
California. The order required a responsible member of each family
and each individual living alone to report, at a time set, at
a Civil Control Station for instructions to go to an Assembly
Center, and added that any person failing to comply with the provisions
of the order who was found in the described area after the date
set would be liable to prosecution under the Act of March 21,
1942, supra. It is important to note that the order, by its express
terms, had no application to persons within the bounds "of
an established Assembly Center pursuant to instructions from this
Headquarters . . ." The obvious purpose of the orders made,
taken together, was to drive all citizens of Japanese ancestry
into Assembly Centers within the zones of their residence, under
pain of criminal prosecution.
The predicament in which the petitioner thus
found himself was this: He was forbidden, by Military Order, to
leave the zone in which he lived; he was forbidden, by Military
Order, after a date fixed, to be found within that zone unless
he were in an Assembly Center located in that zone. General DeWitt's
report to the Secretary of War concerning the programme of evacuation
and relocation of Japanese makes it entirely clear, if it were
necessary to refer to that document, -- and, in the light of the
above recitation, I think it is not, -- that an Assembly Center
was a euphemism for a prison. No person within such a center was
permitted to leave except by Military Order.
In the dilemma that he dare not remain in his
home, or voluntarily leave the area, without incurring criminal
penalties, and that the only way he could avoid punishment was
to go to an Assembly Center and submit himself to military imprisonment,
the petitioner did nothing.
June 12, 1942, an Information was filed in
the District Court for Northern California charging a violation
of the Act of March 21, 1942, in that petitioner had knowingly
remained within the area covered by Exclusion Order No. 34. A
demurrer to the information having been overruled, the petitioner
was tried under a plea of not guilty and convicted. Sentence was
suspended and he was placed on probation for five years. We know,
however, in the light of the foregoing recitation, that he was
at once taken into military custody and lodged in an Assembly
Center. We further know that, on March 18, 1942, the President
had promulgated Executive Order No. 9102 7
establishing the War Relocation Authority under which so-called
Relocation Centers, a euphemism for concentration camps, were
established pursuant to cooperation between the military authorities
of the Western Defense Command and the Relocation Authority, and
that the petitioner has been confined either in an Assembly Center,
within the zone in which he had lived or has been removed to a
Relocation Center where, as the facts disclosed in Ex parte Endo
(post, p. 283) demonstrate, he was illegally held in custody.
The Government has argued this case as if the
only order outstanding at the time the petitioner was arrested
and informed against was Exclusion Order No. 34 ordering him to
leave the area in which he resided, which was the basis of the
information against him. That argument has evidently been effective.
The opinion refers to the Hirabayashi case, supra, to show that
this court has sustained the validity of a curfew order in an
emergency. The argument then is that exclusion from a given area
of danger, while somewhat more sweeping than a curfew regulation,
is of the same nature, -- a temporary expedient made necessary
by a sudden emergency. This, I think, is a substitution of an
hypothetical case for the case actually before the court. I might
agree with the court's disposition of the hypothetical case. 8
The liberty of every American citizen freely to come and to go
must frequently, in the face of sudden danger, be temporarily
limited or suspended. The civil authorities must often resort
to the expedient of excluding citizens temporarily from a locality.
The drawing of fire lines in the case of a conflagration, the
removal of persons from the area where a pestilence has broken
out, are familiar examples. If the exclusion worked by Exclusion
Order No. 34 were of that nature the Hirabayashi case would be
authority for sustaining it. But the facts above recited, and
those set forth in Ex parte Endo, supra, show that the exclusion
was but a part of an over-all plan for forceable detention. This
case cannot, therefore, be decided on any such narrow ground as
the possible validity of a Temporary Exclusion Order under which
the residents of an area are given an opportunity to leave and
go elsewhere in their native land outside the boundaries of a
military area. To make the case turn on any such assumption is
to shut our eyes to reality.
As I have said above, the petitioner, prior
to his arrest, was faced with two diametrically contradictory
orders given sanction by the Act of Congress of March 21, 1942.
The earlier of those orders made him a criminal if he left the
zone in which he resided; the later made him a criminal if he
did not leave.
I had supposed that if a citizen was constrained
by two laws, or two orders having the force of law, and obedience
to one would violate the other, to punish him for violation of
either would deny him due process of law. And I had supposed that
under these circumstances a conviction for violating one of the
orders could not stand.
We cannot shut our eyes to the fact that had
the petitioner attempted to violate Proclamation No. 4 and leave
the military area in which he lived he would have been arrested
and tried and convicted for violation of Proclamation No. 4. The
two conflicting orders, one which commanded him to stay and the
other which commanded him to go, were nothing but a cleverly devised
trap to accomplish the real purpose of the military authority,
which was to lock him up in a concentration camp. The only course
by which the petitioner could avoid arrest and prosecution was
to go to that camp according to instructions to be given him when
he reported at a Civil Control Center. We know that is the fact.
Why should we set up a figmentary and artificial situation instead
of addressing ourselves to the actualities of the case?
These stark realities are met by the suggestion
that it is lawful to compel an American citizen to submit to illegal
imprisonment on the assumption that he might, after going to the
Assembly Center, apply for his discharge by suing out a writ of
habeas corpus, as was done in the Endo case, supra. The answer,
of course, is that where he was subject to two conflicting laws
he was not bound, in order to escape violation of one or the other,
to surrender his liberty for any period. Nor will it do to say
that the detention was a necessary part of the process of evacuation,
and so we are here concerned only with the validity of the latter.
Again it is a new doctrine of constitutional
law that one indicted for disobedience to an unconstitutional
statute may not defend on the ground of the invalidity of the
statute but must obey it though he knows it is no law and, after
he has suffered the disgrace of conviction and lost his liberty
by sentence, then, and not before, seek, from within prison walls,
to test the validity of the law.
Moreover, it is beside the point to rest decision
in part on the fact that the petitioner, for his own reasons,
wished to remain in his home. If, as is the fact, he was constrained
so to do, it is indeed a narrow application of constitutional
rights to ignore the order which constrained him, in order to
sustain his conviction for violation of another contradictory
order.
I would reverse the judgment of conviction.
---- Begin EndNotes ----
1 7 Fed. Reg. 1407
2 7 Fed. Reg. 2320.
3 56 Stat. 173.
4 7 Fed. Reg. 2601
5 The italics in the quotation are mine. The use of the word "voluntarily" exhibits a grim irony probably not lost on petitioner and others in like case. Either so, or its use was a disingenuous attempt to camouflage the compulsion which was to be applied.
6 7 Fed. Reg. 3967.
7 7 Fed. Reg. 2165.
8 My agreement
would depend on the definition and application of the terms "temporary"
and "emergency." No pronouncement of the commanding
officer can, in my view, preclude judicial inquiry and determination
whether an emergency ever existed and whether, if so, it remained,
at the date of the restraint out of which the litigation arose.
Cf. Chastleton Corp. v. Sinclair, 264 U.S. 543.
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