Due Process? Executive Order 9066

Summary

History As It Happens: Due Process? Executive Order 9066 Released: May 9, 2025 | Host: Martin DeCaro

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Introduction

In the May 9, 2025 episode of History As It Happens, host Martin DeCaro delves into one of the darkest chapters of American history: the enforcement of Executive Order 9066 and the subsequent internment of Japanese Americans during World War II. Drawing parallels to contemporary immigration policies under President Donald Trump, DeCaro and his guest, historian David M. Kennedy, explore how fear and paranoia can lead to significant violations of civil liberties.

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The Genesis of Executive Order 9066

The episode opens with historical audio from Milton Eisenhower, who narrates the aftermath of the Japanese attack on Pearl Harbor. This attack, described as "a date which will live in infamy" (03:08), set the stage for drastic governmental actions against Japanese Americans.

Milton Eisenhower: "The United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan."

In response to this perceived threat, President Franklin D. Roosevelt signed Executive Order 9066 on February 19, 1942. Contrary to popular misconception, the order did not explicitly mandate the incarceration of Japanese Americans but authorized the military to designate areas from which "any or all persons may be excluded."

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Implementation and Civilian Suffering

Historian David M. Kennedy elaborates on the widespread repercussions of the executive order:

Kennedy: "Were forcibly removed from their homes and placed in makeshift internment camps. This action was taken without trial, without jury. It was based solely on race." (01:54)

From March to August 1942, approximately 112,000 individuals of Japanese ancestry—both citizens and non-citizens—were relocated to assembly centers. These were often racetracks or fairgrounds where internees awaited transfer to more permanent camps in states like Arkansas, Arizona, and Wyoming.

Milton Eisenhower: "Evacuees cooperated wholeheartedly... felt that this was a sacrifice they could make in behalf of America's war effort." (03:53)

However, this facade of cooperation masked the severe infringement of civil liberties. The campaign against Japanese Americans was fueled by "nativist suspicions, paranoia, racism," creating a blanket association between immigrants and disloyalty.

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Parallels to Contemporary Immigration Policies

DeCaro draws a direct comparison between the wartime internment and contemporary policies under President Trump, emphasizing the recurring theme of marginalizing and dehumanizing immigrants.

DeCaro: "Immigrants who are in the country illegally are synonymous with crime and cultural death and have no rights he must respect." (01:18)

Recent policies include the unprecedented invocation of the Alien Enemies Act during peacetime, aiming to deport immigrants en masse without due process. DeCaro highlights President Trump's reluctance to uphold constitutional rights, quoting an interview where Trump ambiguously addresses due process.

Donald Trump: "I don't know. I'm not a lawyer. I don't know." (06:33)

The discussion underscores the dangers of political rhetoric that dehumanizes immigrants, drawing chilling similarities to the justifications used during World War II.

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Legal Battles and Miscarriages of Justice

A significant portion of the episode focuses on landmark legal cases, particularly that of Fred Korematsu, who defied internment orders and took his case to the Supreme Court.

Kennedy: "The Supreme Court ruled against him, but 39 years later, he had his conviction overturned in federal court." (40:16)

Korematsu's case became emblematic of the fight for civil liberties, highlighting the Supreme Court's controversial decisions during a time of national panic. Kennedy also introduces Mitsuya Endo's case, where a citizen challenged her wrongful termination due to her Japanese heritage, further illustrating the legal system's failures.

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Governmental and Institutional Failings

The episode critically examines the roles of various government officials and departments in perpetuating the internment.

Historian: "Secretary of War Stimson... realized this was a bad idea, but the aura of his authority intimidated others who knew this was a bad idea." (30:20)

Key figures like Milton Eisenhower and John J. McCloy are scrutinized for their roles in enforcing the evacuation and internment without substantial evidence of espionage or sabotage. The historian emphasizes that the Justice Department internally recognized the lack of evidence supporting these actions but ultimately failed to challenge them effectively.

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Reflections and Lessons Learned

In concluding the episode, DeCaro and Kennedy reflect on the enduring lessons from Executive Order 9066. They caution against complacency in the face of governmental overreach and underscore the importance of safeguarding civil liberties, especially during times of crisis.

Kennedy: "When institutions and leadership amplify and exploit that human frailty for political purposes, then is the time to get up on our hind legs and utilize whatever political, legal, social tools we have to fight it." (21:46)

DeCaro reinforces the notion that history often repeats itself if its lessons are forgotten, urging listeners to remain vigilant against discriminatory policies masquerading as national security measures.

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Notable Quotes

• Milton Eisenhower (03:08): "A date which will live in infamy. The United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan."

• Historian (01:54): "Were forcibly removed from their homes and placed in makeshift internment camps. This action was taken without trial, without jury. It was based solely on race."

• Donald Trump (06:33): "I don't know. I'm not a lawyer. I don't know."

• David M. Kennedy (40:16): "In the long history of our country's constant search for justice, some names of ordinary citizens stand for millions of souls."

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Conclusion

History As It Happens masterfully intertwines historical narrative with contemporary analysis to shed light on the persistent threats to civil liberties posed by governmental overreach and societal paranoia. By revisiting Executive Order 9066 and drawing parallels to modern immigration policies, the episode serves as a poignant reminder of the fragility of justice in times of fear.

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Timestamp Guide

• 03:08 Milton Eisenhower's narration of Pearl Harbor attack.
• 01:54 Historian David M. Kennedy on Japanese American internment.
• 03:53 Milton Eisenhower on evacuees' cooperation.
• 06:33 Donald Trump on due process.
• 21:46 Historian David M. Kennedy on combating governmental exploitation of prejudice.
• 30:20 Discussion on Secretary Stimson and governmental failings.
• 40:16 Kennedy on Fred Korematsu's legacy.

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For more insightful episodes and historical analyses, tune in every Tuesday and Friday. Subscribe to Martin DeCaro's newsletter at [e-mail].

Transcript

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[Martin DeCaro]

History as it happens May 9, 2025 due process executive order 9066 we interrupt.

[Milton Eisenhower]

This broadcast bring you this important bulletin from the United Press Flash Washington. The White House announces Japanese attack on Pearl Harbor. Ya's. Bright Sunday becomes a black Sunday. High overhead, Jap raiders are on the loose. A date which will live in infamy. The United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan. Neither the army nor the War Relocation Authority relished the idea of taking men, women and children from their homes, their shops and their farms. So the military and civilian agencies alike determined to do the job as a democracy should.

[Martin DeCaro]

President Trump's unprecedented invocation of the Alien Enemies act during peacetime is one part of his effort to round up immigrants and deport them, due process be damned. Immigrants who are in the country illegally are synonymous with crime and cultural death and have no rights he must respect. Nativist suspicions, paranoia, racism are not new, as we'll learn by looking at one of the most egregious violations of civil rights in US History with important parallels to the current moment. Next with David M. Kennedy as we report history as it happens. I'm Martin DeCaro.

[David M. Kennedy]

Were forcibly removed from their homes and placed in makeshift internment camps. This action was taken without trial, without jury. It was based solely on race.

[Historian]

Let's remember there's a very, very important distinction in terms of context between that moment and this one. This was wartime and the United States had officially declared war, which had only done five times in its entire history. And World War II happens to be the last one. And once war is officially declared by the Congress, which the Congress has the power to make that declaration, all kinds of legal and structural and institutional arrangements fall into place behind that. There's nothing like that compar going on today. What's unprecedented about the scope and scale and velocity of the current situation? It's not wartime and it's not any kind of comparable crisis.

[Martin DeCaro]

In 1943, the US government released this propaganda film, narrated by Milton Eisenhower, brother of Dwight, to inform the public about what the government had been doing to Japanese Americans start. The previous spring, when the Japanese attacked.

[Milton Eisenhower]

Pearl harbor, our west coast became a potential combat zone. Living in that zone were more than 100,000 persons of Japanese ancestry, 2/3 of them American citizens.

[Martin DeCaro]

From the end of March to August 1942, about 112,000 people, Alien and citizen alike, their only crime that they were of Japanese ancestry, were sent to assembly centers, racetracks with old stables or fairgrounds where they waited to be sent to a long term relocation center. About 10 permanent camps incarcerated 120,000 Japanese Americans in Arkansas, Arizona, California, Colorado, Idaho, Utah and Wyoming. But the propaganda film made it look like it wasn't so bad.

[Milton Eisenhower]

The army provided fleets of vans to transport household belongings and buses to move the people to assembly centers. The evacuees cooperated wholeheartedly. The many loyal among them felt that this was a sacrifice they could make in behalf of America's war effort.

[Martin DeCaro]

Milton Eisenhower did not mention that he had resigned as director of the War Relocation Authority because he was so troubled by his involvement in it. And according to historian David M. Kennedy in his Pulitzer Prize winning Freedom from Fear, Eisenhower advised his successor, Dylan Meyer, to take the job only if his conscience would allow it.

[Milton Eisenhower]

Neither the army nor the War Relocation Authority relished the idea of taking men, women and children from their homes, their shops and their farms. So the military and civilian agencies alike determined to do the job as the democracy should.

[Martin DeCaro]

You know, Executive Order 9066, signed by President Roosevelt on February 19, 1942, says nothing about incarcerating people in concentration camps. It authorized the military to exclude civilians from military zones, an evacuation order, and it made no mention of any race or ethnicity. And at first, Japanese Americans voluntarily departed their homes on the west coast to move inland until those new places made clear they did not want them, at least not living among their white residents. They belonged in concentration camps, as one governor put it, and that is where they wound up. Even though the War and Justice Departments produce not a strand of evidence of espionage or sabotage or disloyalty against a single person, 43 years after the end of the Second World War, the United States apologized.

[David M. Kennedy]

Yes, the nation was then at war, struggling for its survival. And it's not for us today to pass judgment upon those who may have made mistakes while engaged in that great struggle. Yet we must recognize that the internment of Japanese Americans was just that, a mistake. For throughout the war, Japanese Americans in the tens of thousands remained utterly loyal to the United States.

[Martin DeCaro]

So what should our country have learned from this terrible injustice? Well, here's one way of looking at it that the Constitution is just words on a piece of paper. And if our leaders are bent on violating it, they'll find a way to do it to justify it in some warped legal reasoning. On NBC's Meet the Press last week, President Donald Trump was asked if he is obligated to uphold the Constitution, to respect people's rights to due process. Your Secretary of state says everyone who's.

[Donald Trump]

Here, citizens and noncitizens, deserve due process.

[GoDaddy Representative]

Do you agree, Mr. President?

[Donald Trump]

I don't know. I'm not. I'm not a lawyer. I don't know.

[Historian]

Well, the Fifth Amendment sets.

[Donald Trump]

I don't know. It seems. It seems, it might say that, but if you're talking about that, then we'd have to have a million or 2 million or 3 million trials. We have thousands of people that are some murderers and some drug dealers and some of the worst people on earth, some of the worst, most dangerous people on earth. And I was elected to get him the hell out of here, and the courts are holding me from doing it.

[Martin DeCaro]

But even given those numbers that you're.

[GoDaddy Representative]

Talking about, don't you need to uphold the Constitution of the United States as President?

[Donald Trump]

I don't know. I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said. What you said is not what I heard the Supreme Court said. They have a different interpretation.

[Martin DeCaro]

The context today may be different. So are the circumstances. But like the Japanese Americans In World War II, undocumented immigrants have been turned into a category of undesirables, undeserving of rights. And where there are no facts, you just make them up. In an interview with ABC's Terry Moran, President Trump insisted that the man he wrongfully deported to an El Salvador gulag, Kilmar Abrejo Garcia, had to be a gang member. He just had to be. Because of a photo of MS.13 tattooed or superimposed on his knuckles? Well, it was Photoshopped.

[Donald Trump]

We have to get him out, and we're doing it by law. And you'll pick out one man. But even the man that you picked.

[Historian]

Out, he's got a.

[Donald Trump]

He said he wasn't a member of a gang, and then they looked, and on his knuckles he had MS.13.

[David M. Kennedy]

There's a dispute.

[Donald Trump]

Wait a minute, wait a minute. He had MS.13 on his knuckles. He had some tattoos that are interpreted that way. But let's move on. Wait a minute. Okay, Terry, Terry. He did not have the letter MS.13. It says MS.13. That was photoshopped so let me. That was Photoshopped, Terry. You can't do that. Hey, they're giving you. You the big break of a lifetime. You know, you're doing the interview. I picked you because, frankly, I never heard of you. But that's okay. I picked you, Terry, but you're not being very nice. He had ms.13 tattoo. We'll agree to disagree. I want to move on to something else. Terry, do you want me to show you the picture? I saw the picture. We'll Photoshop.

[Historian]

Here we go. Here we go.

[Donald Trump]

Don't Photoshop it. Go look at his hand. He did have tattoos that can be interpreted that way. I'm not an expert on them. I want to turn to you.

[David M. Kennedy]

To Ukraine.

[Martin DeCaro]

I want to get to Ukraine.

[Donald Trump]

No, no, no, no. He had Ms. As clear as you can be. Not interpreted. This is why people no longer believe. Well, the news. Because when he was photographed in El Salvador.

[Martin DeCaro]

In.

[Donald Trump]

In El Salvador. They aren't there, but let's just go. They aren't there when he's in El Salvador. Oh, they weren't there now, right? No, but they're in your picture, Terry. Ukraine. Sir, he's got MS.13 on his knuckles. All right, okay.

[Historian]

We'll take a look.

[Donald Trump]

It's. You do such a disservice. We'll take a look. Why don't you just say, yes, he does, and, you know, go on to.

[Martin DeCaro]

Something else contested and in the president's budget proposal. $45 billion to build detention centers to house the people he wants to mass deport from our country. We've also learned the administration's been planning to deport migrants to Libya during the Second World War. The official justification for evacuating Japanese Americans was military necessity. Military necessity justified violation of their constitutional right to live where they pleased. The aclu, which is defending immigrants today, came to the Japanese Americans defense taking up the case of Fred Korematsu. But when the Supreme Court proceeded to deliberate on his case, they did not know that the Justice Department's own lawyers had privately concluded that the allegations of espionage, sabotage, and treason against an entire minority group were bogus. Historian David M. Kennedy will fill us in on this dispute between the War and Justice Departments and much more. He is professor emeritus of History at Stanford, author of the aforementioned Freedom from the American People in Depression and War. He is not only one of my favorite historians, he is one of the great scholars in our country today. Our conversation next.

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[Martin DeCaro]

David Kennedy, welcome back.

[Historian]

Happy to be with you, Martin.

[Martin DeCaro]

So let's start with this. I try to avoid using the term unprecedented because few things are truly unprecedented in American political life. But I will acknowledge that using the Alien Enemies act during peacetime is, in fact, unprecedented. Whatever the case, what we're witnessing right now with immigration or the college students who have been arrested for criticizing Israel is that it's part of an American tradition of political repression or political persecution, that in our society we go through periods, periods like this when we turn on the other. There's paranoia in a crisis, real or imagined.

[Historian]

Well, I think there's something to that, Martin, but I don't think this is a behavior or a property exclusive to our society. I think it's just part of human nature. And in fact, even in the episode we're about to discuss, which I agree with you at the outset, is a pretty sad story. But even that story on close examination, the story of Japanese internment during World War II, even that on close examination reveals not just the darker elements in this society's history when it comes to the other, but also some reassuring elements. So it's a more nuanced and complicated story than it usually gets credit for.

[Martin DeCaro]

Well, I just interviewed Lawrence Reese on my most recent episode about Nazism and us versus them, thinking. So you're right, Americans are not unique in this respect. But what's happening here in our country is galling if you're an American citizen, because unlike Nazi Germany, we're supposed to have civil liberties that stop things like this from happening. And of course, there is a court system, and these cases are being heard in court. At the time of the Japanese internment, these same arguments were raised by people who opposed it. We can't do this. We're not allowed to just take American citizens and put them behind barbed wire.

[Historian]

Well, absolutely. And let's remember there's a very, very important distinction in terms of context between that moment and this one. This was wartime, and the United States had officially declared war, which had only done five times in its entire history. And World War II happens to be the last one. And once war is officially declared by the Congress, which. So the Congress has The power to make that declaration, all kinds of legal and structural and institutional arrangements fall into place behind that. There's nothing like that comparable going on today. What's unprecedented about the, the scope and scale and velocity of the current situation. It's not wartime and it's not any kind of comparable crisis. So that I think exposes what's going on today to a lot more effective blowback and pushback than we had in the World War II period. But even, even in World War II, the situation of the Japanese population on the west coast and in Hawaii, that's where most Japanese were concentrated at the time. Right from the outset there was a misgiving about the evacuation order and later the internment. And those are two separate matters. It's very important to keep in mind the incarceration or internment or whatever you're going to call it in the camps was never formally adjudicated. And people often mistake the famous Korematsu case for a judgment about the camps. It's not Korematsu case was about the evacuation order. There's a big, big difference between order to evacuate and then the order to report to internment camps. So the fact is that when the war broke out on December 7, 1941, the attack on Pearl harbor, there was panic up and down the West Coast. So for example, the following day, December 8, 1941, Eleanor Roosevelt was flying out to the west coast on a previously scheduled trip and her plane was grounded by design somewhere, I think it was in Denver, might have been Salt Lake. Because there was an imminent fear of attack on the West Coast. They didn't want her to be in the attack zone. The Rose bowl, which is scheduled for 1st of January 1942, was moved to North Carolina because of fears that there was going to be a follow up attack on the West Coast. And here's this is a little known fact about the history of my university. But in the immediate aftermath of the Pearl harbor attack, painters were ordered to seal against the light the skylight of a reading room in the Stanford Library, great big translucent skylight. And they painted it shut or painted it so no light could escape because they thought the light might be a beaconing signal to Japanese bombers that were coming in. And people forgot about that until the library was damaged in the 1989 earthquake and they had to rebuild it. And they realized what they thought, they thought for decades was a ceiling, was in fact the skylight.

[Martin DeCaro]

How about that?

[Historian]

But that's the degree to which panic was in the air. And we need to remember that when we remember this terrible chain of events that led to the Japanese removal.

[Martin DeCaro]

A Stanford historian who is Japanese got swept up in all of this. And you mentioned the difference between evacuation and incarceration. The order itself doesn't mention what should happen. Right. There's no mention of camps in it.

[Historian]

None at all? None whatsoever. The executive order came down from the War Department through the President, of course, in response to reports from this military commander, General John DeWitt, head of the military command on the west coast. And he alleged that there were all kinds of documented instances of sabotage and espionage and so on. And again, we're getting ahead of the story here, but every single one of those alleged instances was later proved to be fictitious. That's a big part of the later story, but we're getting ahead of ourselves. The President signed the order and gave the responsibility to the War Department Secretary of War, Henry Stimson, who in turn handed off operational responsibility to his assistant secretary, John J. McCloy, to evacuate these potential saboteurs and spies from the west coast military district. That's as far as the order went. And it's interesting that the person who was put in charge of the evacuation, the first person, was Milton Eisenhower, who, yes, indeed, he was Dwight Eisenhower's brother, and at that particular moment in history, probably at least as famous as his brother. And the reason Milton Eisenhower ended up as the first person in charge of the relocation was he came from the Agricultural Department, not the War Department. And it was thought that Japanese who were skilled at farming and vegetable farming, fruit farming, so on, floral farming, could be removed into the interior and employed in agriculture. Well, so Milton Eisenhower takes himself to a meeting in Salt Lake City In April of 1942, just a few weeks after the order came down. And he's trying to provide for the orderly evacuation of these people into employment in agriculture in the interior west, outside the military exclusion going on the West Coast. And he's told no, in no uncertain terms by officials in the western interior, that we don't want the. And there's all kinds of really nasty things said about if you bring them here, we'll hang a Jap, as he would have said, from every pine tree and so on. So that's when the construction of the camps comes into focus. The original evacuation order was not intended to. There was no intention to build the camps. It was when it became impossible to carry out the orderly evacuation into employment in the Interior west that the camps were built. And again, a little known fact, but there's several thousand. It's not a large number. I Don't know exactly, but let's say somewhere in the range of 5 or 10,000 Japanese on the west coast who evacuated into the interior west or further even into the east without trouble and spent the rest of the war there and were unmolested. I happen to know a family whose parents were both physicians and they got the evacuation order and they went to the Mayo Clinic in Rochester, Minnesota and spent the war there practicing medicine and never had another problem. So the original idea was not a wholesale interment of the Japanese population, but just to get them out of this zone on the allegation that they were potential saboteurs and spies.

[Martin DeCaro]

Here's that quote you mentioned. I know we're jumping around the chronology here a little bit, but that's all right. The governor of Wyoming, there would be Japs hanging from every pine tree if his state became their destination. We want to keep this a white man's country, said the Attorney General of Idaho, urging that all Japanese should be put in concentration camps. This was the period of voluntary evacuation. So one other present issue before we dive into the history again, it's connected to the history and that is how President Trump, and we'll call it the nativist faction in our government right now, or the pro deportation faction, they have turned immigrants into a category of undesirable people onto which we can project our own resentments and grievances or say blame them for crime, blame them for this, blame them for that. Even in a liberal democracy, once something like that has happened, once there is government sanction to treat an entire group of people. Today it's undocumented immigrants who, although they're in the country illegally, are still entitled to due process. Or In World War II, all Japanese Americans and Japanese immigrants, about 120,000 living on the mainland. Once that happens, you can see things like we're seeing now where the President's budget calls for like $45 billion to build detainment centers.

[Historian]

Yeah, well, again, to me, the starkest and most legally dispositive difference between then and now is that things are then done under the authority granted to the President under wartime conditions. A formal declaration of war. There's no such thing in the present situation. And I think the legal basis for what's happening is highly challeng. I expect we will see lots of very effective challenges to it. And again, going back to your point, Martin, nativism, resentment of the other and so on, it's a fact of human life. It's not a particular sin of our society. It's there's a fancy name for this or for the opposite of. It's called homophily, which means the. The love of things like oneself. And it's just a natural piece of human psychology that we're more comfortable with people that are more like ourselves, and we get more suspicious of people the more they're different from us. And that's just unfortunately a piece of human psychology, I'm afraid. But when. When institutions and leadership amplify and exploit that human frailty for political purposes, then. Then is the time to get up on our hind legs and utilize whatever political, legal, social tools we have to fight it.

[Martin DeCaro]

Yeah, there is no war or national emergency right now. We haven't been attacked by Venezuela, for instance. But there is paranoia, there is a sense of alarm, and it's been created in large part by President Trump himself with his public statements he's been making for the last 10 years about the threat, as he sees it, that immigrants pose to the United States in Springfield.

[Donald Trump]

They'Re eating the dogs, the people that came in, they're eating the cats. They're eating. They're eating the pets of the people that live there. And this is what's happening in our country, and it's a shame.

[Martin DeCaro]

So anti Japanese or anti Asian discrimination or suspicion just didn't come out of nowhere on December 8, 1941. There wasn't very much Japanese emigration to the United states in the 19th century. It really picks up at the end of the 19th century. 1894, there's something called the Treaty of Commerce and Navigation. What was the significance of this?

[Historian]

Well, let's go back even a bit further in time. The 1850s, when Commodore Perry sails into Tokyo Bay and essentially forces Japan to enter into trade and commercial relationship with the United States. And that goes hand in glove with what in Japanese history is called the Meiji Restoration. When Japan gets rid of the shogunate, the military system that had governed the country for centuries, and really at a highly accelerated basis, Japan tries to catch up with the Western world, become an industrial country and join the world commercial industrial system. And it does so very, very effectively, so fast. That has happened in other rapidly industrializing places like Europe in the 19th century as well. A lot of local population was displaced. Much of it is reabsorbed from Japanese countryside into Japanese cities and moves from agricultural to industrial employment. That's the old European pattern as well. But some has not have become candidates for overseas migration. So roughly 350,000 or so Japanese end up in the United States. About 200,000 go to Hawaii by the time World War II, there's about 120,000, as you said earlier, people of Japanese descent, either citizen or non citizen, in the three west coast states and a handful in Latin America as well, and in Canada for that matter. That population has certain characteristics that are worth pausing on for a moment. When Japan got into the business of overseeing and superintending immigration from Japan, something that most European countries, Italy being a conspicuous exception, did not do, that is let people go. But Japan tried to superintend immigration from Japan. And one thing they took note of was that the Chinese immigration to the United States and the beginning the Gold Rush era was overwhelmingly male. In fact, the sex ratio male to female in the Chinese community by 1900 is about 19 males for every one female. So Japan was determined not to let that happen to its overseas migrants. So they encouraged families to migrate and people with a little bit of education, a skill set to migrate. So the Japanese population By World War II era has a different demographic profile from the Chinese population. It's families and it's a lot of people who've remained and become citizens. That's the second generation or so called Nisei. So they have a different character from other immigrant populations that preceded them. And all the more tragic that when this big heavy hand of government comes down on them, it disrupts not just employees, but whole families wholesale.

[Martin DeCaro]

Yeah, there was a lot of tension between the US and Japan during these years, especially in the early 20th century, had dealt with foreign policy issues, but also domestic ones. So there was something called the Gentleman's Agreement 1907, 1908, where the Japanese agreed to stop their people from emigrating to the United States in exchange for a couple of things. One of those was Teddy Roosevelt, he made San Francisco stop segregating its schools, sending Japanese and Chinese to a so called Oriental school.

[Historian]

Yeah, that's correct. The gentleman's agreement, to my understanding, did not absolutely stop Japanese immigration United States, but it slowed it down quite markedly. And in return, Roosevelt undertook to see to it that the San Francisco in particular, but the west coast states in general, behaved better toward the Japanese communities that were already in the country.

[Martin DeCaro]

Among other things that Japanese Americans were unhappy with. They were excluded from joining the American Federation of Labor. Then there was something in 1905 called the Asiatic Exclusion League, founded with the goal of putting a stop to Japanese and Koreans coming to the United States. So there is discrimination against Asian immigrants in the US Prior to the First World War.

[Historian]

Absolutely. And we shouldn't conclude this part of the discussion without mentioning the Chinese Exclusion Act.

[Martin DeCaro]

That's right.

[Historian]

Of 1882, which was probably the most egregious and just simply unambiguous declaration. Declarations that no more people from this country can enter the United States. And that stays in place until World War II, when, as a gesture to China, as at that moment an ally, we revised that statute and allowed, get this, 140 Chinese to enter the country.

[Martin DeCaro]

140. How generous of us. And you're right about the gentleman's agreement. It did not stop Japanese immigration to the US if you were already here, your wife could come and join you. And the postcard wives, where Japanese men in the US Would pick a woman out of a postcard or a magazine photo or whatever, that woman would then come to the US to marry this stranger. But that was a way of getting around the restrictions.

[Historian]

Yeah. Sometimes also called mail order brides.

[Martin DeCaro]

Yes.

[Historian]

Same idea.

[Martin DeCaro]

After Pearl harbor, the aforementioned General John DeWitt, Chief of the Army's Western Defense Command, he said it was nonsense to talk about evacuating Japanese from the west coast, especially citizens. He said, an American citizen, after all, is an American citizen.

[Historian]

Yeah. And then just a few weeks later, he said, a Jap is a Jap.

[Martin DeCaro]

He makes up this story that there are these strange radio signals that were helping the Japanese identify every single naval ship as it left the mouth of the Columbia river, or something like that. This was complete nonsense. It was exposed by people in the government, inside the government at the time, as complete nonsense. Yet. Yet Francis Biddle, the Attorney General, kind of goes, or he does go along with all this.

[Historian]

Right.

[Martin DeCaro]

Tell us what happens here internally in the government as they're debating what to do amid all these rumors.

[Historian]

This is a terribly complicated story, and I'll try to do it justice. Briefly, when Secretary of War Stimson, who was charged with implementing the evacuation order through the War Department, when he heard about the executive order he wrote in his diary, he said, I'm afraid this will blow a great big hole in our Constitution. So from the very moment when the policy is first set, there are people already worrying that this is really the wrong thing to do. And Francis Biddle, who was the Attorney General and a rather new attorney General, he'd just taken office weeks or months earlier, he said, the Department of Justice will not participate in any evacuation or internment order. And then there was this famous meeting at Biddle's home, February 17, 1942, when the Department of Justice people came to represent to the War Department people that the order was unconstitutional and a very bad idea. And the War Department people, especially Assistant Secretary McCloy, insisted that military necessity required the evacuation. And the Department of Justice people buckled. And most of them who were there regretted it ever after. One of the assistant attorneys general said he almost wept when he left the home because he understood what was going to follow. And later in his memoir, Francis Biddle, the attorney general, wrote about this episode, in essence apologized for not standing his ground there on that evening of February 17th in his own home. And he said, I can quote it. He said, I was new to the Cabinet and disinclined to insist on my view to an elder statesman that Stimson, whose integrity and wisdom I greatly respect. So it was the aura of Stimson, who had been Secretary of State in the Hoover administration, now Secretary Ward and Secretary Warren, the Taft administration. He's one of the most respected people in the American establishment. It was the aura of his authority that intimidated others who knew this was a bad idea, but they didn't have the guts to stand up to it.

[Martin DeCaro]

I neglected to mention Supreme Court Justice Owen Roberts put out a report on espionage that completely lacked evidence. And even major newspaper columnists joined the chorus of rumor. Walter Lippman and others who had been sane just weeks before now calling for emergency measures. So after listening to your answer there, David M. Kennedy, my next question has to be, where the heck is Franklin Roosevelt in all of this?

[Historian]

Well, to the best of our knowledge, he paid very little attention to this. He took the recommendation from General DeWitt at face value and thought there was a real possibility of sabotage and espionage, not an altogether crazy assumption. And he handed the baton, as it were, to the authority, to Secretary Stimson. And to the best of our knowledge, there's very little documentation that Roosevelt himself paid close attention to this matter. And the people in the war department, especially DeWitt's aide at the time, a major by the name of Carl Ben Datson, later becomes a colonel. He's one of the real villains in this because he put together that original report alleging all these instances of sabotage and espionage, including the ones you mentioned about radio transmissions alerting the Japanese Navy to ships exiting the Columbia river and so on. He wrote a report published a year or so later. There was a litany of all these allegations, and the FBI and the Federal Communications Commission and the Office of Naval Intelligence, all of them reviewed these allegations and came to the unanimous and unambiguous conclusion that there was nothing to any of them, not a single one of them was accurate. But nonetheless, that report, when the Supreme Court eventually comes to adjudicate the case, particularly famously in the Korematsu Case, 1944. That report becomes the basis for, to use the lawyerly term, the facts in evidence about how the Court should judge the matter. People in the Justice Department knew at this time that the report was totally without basis and should not be allowed into evidence. And I can quote you for exactly what they inserted a footnote.

[Martin DeCaro]

That's right, the brief that they were.

[Historian]

Obliged as the lawyers for the government to bring forward. And in their footnote, they said explicitly that the so called Ben Debson report, 1942 report, also sometimes called the final report, the report was not based on fact. And here's the operative sentence. They said, in view of the contrariety of the reports on this matter, we do not ask the Court to take judicial notice of the recital of those facts contained in the report. In other words, they were saying, do not base your judgment on the things that lies in the report. Once again, representatives of the War Department, John J. McCloy, Assistant Secretary, again comes into the picture. He persuaded the Justice Department lawyers to take that footnote out of their brief. So when the Supreme Court justices confronted the case, they were denied reliable statement that the factual basis of their case was not factual at all.

[Martin DeCaro]

Yeah, this is the Korematsu case. So the Justice Department has to go there even if they don't want to, the lawyers and defend the government's position. But they're gonna put in this footnote saying we don't have a case. So the War Department says, you can't do that. Get that footnote out of there. But the Supreme Court goes along with this too, even though the Justices could see this was a terrible miscarriage of justice.

[Historian]

Justice well, some did and some didn't. There's a divided core. Monster is not a unanimous vote. There are some other earlier cases where the Supreme Court did rule unanimously in favor of the evacuation order and of a related order for curfew imposed on Japanese people on the West Coast. Famous case is Hirobayashi. It's the name of the guy who was deliberately violated the curfew in Seattle as a young student at the University of Washington. He belonged to a pacifist religious group and he was up in arms about it right from the beginning. So the Court repeatedly affirmed the legitimacy of the evacuation order as a matter of military necessity. The Court never formally ruled on the actual internment. And this is a lot of misconception about that. Out there. You often hear Korematsu is sanctioning the internment. That's actually not the case at all. So Fred Korematsu becomes the poster boy for all this. The single most famous case that comes out of this body of litigation. But there's another person who I think deserves to be better recognized. A young woman named Matsuya Endo. She was a native born American, born in this country, so had citizenship. She was a Christian, she was a Methodist, she had a brother in the armed services. And she was, at the time the order came down, she was working for the Department of Motor Vehicles in Sacramento, California, and the Governor of California. Again, the ironies in this just keep multiplying. At that time was Earl Warren, who later becomes Chief justice of the Supreme Court and famous for all kinds of civil liberties cases. He ordered the legislature of California ordered that all Japanese working for the state of California be fired. So she was fired and she brought a case and she asked for habeas corpus. What's the evidence with which I'm formally charged that deprives me of employment? And she found a lawyer in San Francisco whom to the best by now she never met this lawyer, but they corresponded or they had intermediaries. And he took up her case against the Department of Motor Vehicles and then he took up her case against the evacuation. When that eventually came down, she was a citizen. And she kept asking for what's the formal charge against me? That's what habeas corpus is all about. You can't detain me without formal indictment. And this case was decided on the same day as Korematsu. She was interred first at Tule Lake, I think, and then the Topaz camp. And she was offered her freedom if she would agree not to go back to Sacramento. She said, no, I'm going to take this case to its final conclusion. So she voluntarily stayed in the camp. Fred Korematsu got out of the camp and he worked in Chicago and so all kinds of freedom. But Mitsuya Endo, this young woman stayed in the camp just to make her case still alive. She wasn't going to move the case by leaving the camp. Decided on the same day as the Korematsu case. William O. Douglas, then a Supreme Court justice, writes the the opinion and he says unambiguously, the evacuation order that contained not a speck of legitimacy to inter loyal citizens. Again, I can read you, if you permit me, just a couple of steps from that decision because it's really important. He says, this is William O. Douglas, now great champion of all kinds of civil liberties. He said, if we assume as we do that the original evacuation was Justified its lawful character was derived from the fact that it was an espionage and sabotage measure, not that there was community hostility to this group of American citizens. Now, remember, it's that Salt Lake meeting in February of 1942 that convinces Milton Eisenhower orderly evacuation into the interior is not going to happen. And then Douglass goes on to say, detention, which furthered the campaign against espionage and sabotage, would be one thing, but detention, which has no relationship to that campaign, is of a distinct character. This is as close as the court got to saying that the detention or internment of loyal citizens was absolutely unconstitutional, but it never quite took that final step.

[Martin DeCaro]

That's amazing.

[Historian]

So the internment has never been adjudicated formally. It's something to keep in mind.

[Martin DeCaro]

It's hard to believe that Roosevelt, when it came to something as important as this, would have paid so little attention. This has to be Franklin Roosevelt's greatest failing.

[Historian]

Well, we could argue about that again. If we project ourselves back insofar as we're capable, project ourselves back into Roosevelt's mind in late 1941, 1942, you have to imagine he had orders of magnitude more pressing and urgent issues on his plate than this one. Particularly when it only gradually through the springtime of 1942 became evident that the camps were going to be a necessary feature of the whole business. When it just looked like evacuation, especially orderly evacuation, you have to imagine he just. There's no particularly urgent reason why he'd pay attention to it. You know, when Milton Eisenhower heard those statements, you quoted one of them from those people, the interior governors in the west, he resigned his position and he turned it over again. Dylan Meyer, who also, as it happens, came from the Agriculture Department. So the idea was still there that somehow or other these people could be employed in the interior. And he said to Meyer something to the effect that, you know, I'm handing you a terrible assignment here. I hope you'll be able to sleep at night, because I can't. So the people right down on the ground in this thing, right from the beginning, from Secretary Simpson on down, knew that they were playing fast and loose with some of the most sacred principles of individual dignity and liberty and freedom that we honor.

[Milton Eisenhower]

First, attention was given to the problems of sabotage and espionage. Now, here at San Francisco, for example, convoys were being made up within sight of possible Axis agents. There were more Japanese in Los Angeles than in any other area the near future. Nearby San Pedro houses and hotels occupied almost exclusively by Japanese were within a stone's throw of a naval air base. Shipyards, foil wells, Japanese fishermen had every opportunity to watch the movement of our ships. Japanese farmers were living close to vital aircraft plants. So as a first step, all Japanese were were required to move from critical areas such as these. But of course, this limited evacuation was a solution to only part of the problem. The larger problem, the uncertainty of what would happen among these people in case of a Japanese invasion, still remained.

[David M. Kennedy]

Fred Korematsu boldly opposed the forced internment of Japanese Americans during World War II. After being convicted for failing to report for relocation, Mr. Korematsu took his case all the way to the Supreme Court. The high court ruled against him, but 39 years later, he had his conviction overturned in federal court, empowering tens of thousands of Japanese Americans and giving him what he said he wanted most of the chance to feel like an American once again. In the long history of our country's constant search for justice, some names of ordinary citizens stand for millions of souls. Plessy, Brown, Parks. To that distinguished list. Today we add the name of Fred Korematsu.

[Martin DeCaro]

Coming up on History as it happens, we're going to take a look at the war between India and Pakistan, also what happened to the Palestinian Authority. And also, though May is a very important month in Russia, it is victory day for the former Soviet Union over Nazi Germany. Military historian Antony Beevor says in some ways, the narratives of World War II are still contested, with serious implications for foreign affairs. All that and more coming up on HISTORY AS IT Happens. New episodes every Tuesday and Friday. My newsletter every Friday. Sign up at history@it happens.com.

[Historian]

SA.