On February 10, U.S. District Judge Donald Voorhees ruled that Gordon Hirabayashi’s World War II conviction for defying a military exclusion order must be reversed due to governmental misconduct and suppression of evidence in hearings before the Supreme Court. In reaching his decision, Judge Voorhees rejected the government’s argument of “military necessity” in the case.

“My 40 year crusade has been vindicated,” Hirabayashi stated on reading the ruling. Even though his second conviction for a curfew violation was left intact, Hirabayashi was pleased with the results.

“The court has recognized the injustice committed against Japanese Americans during World War II,” he said, “particularly with respect to the question of loyalty and our forced removal from the West Coast… I feel today that justice has been served.”

Hirabayashi’s legal team hailed the decision as “a clear victory for and a complete vindication of those of Japanese American descent who suffered the hardships, humiliation and indignities of the evacuation and internment.”

Hirabayashi was a 23-year-old university student when the U.S. military, under authority delegated to it by the President, ordered the mass removal and detention of 120,000 Japanese Americans from the West Coast. Hirabayashi defied those orders because he felt they were unconstitutional and violated his rights as an American citizen.

Hirabayashi was convicted of violating exclusion and curfew orders in 1942, and appealed his convictions all the way to the U.S. Supreme Court. The government argued that the exclusion of Japanese Americans from the West Coast was a military necessity. A “lack of time” to separate the loyal from the disloyal, they said, required prompt and effective action. The Supreme Court deferred to the military on this point, and Hirabayashi lost his appeal in 1943.

Recently, however, new evidence pointing to the racist reasoning underlying the exclusion orders has been uncovered. This evidence was suppressed by the War Department in 1943, but brought to light by Hirabayashi’s legal team in a court hearing last summer.

In his ruling, Judge Voorhees quotes extensively from the documents of Lt. General John L. DeWitt, commander of the Western Defense Command in 1942. DeWitt stated, “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…”

The ruling also cites one of DeWitt’s phone conversation in which he states, “I don’t see how they can determine the loyalty of a Jap by interrogation… or investigation… There isn’t such a thing as a loyal Japanese…”

In yet another conversation with Assistant Secretary of War John J. McCloy, DeWitt says, “We wouldn’t have evacuated these people at all if we could determine their loyalty.”

Knowing DeWitt’s views on the subject, McCloy and the War Department had DeWitt’s final report on the mass evacuation altered to eliminate the racial arguments it contained. The revised report, instead, put out an argument of military necessity based on a lack of time “for determining the loyal and the disloyal with any degree of safety.”

The Justice Department was disturbed by several intelligence reports, notably the Ringle Report from the Office of Naval intelligence, which argued against a mass evacuation. They were never informed of DeWitt’s suppressed statements, however, and ultimately deferred to the War Department on the issue of military necessity.

Thus, in 1943, the Justice Department argued before the Supreme Court that “the classification was not based upon invidious race discrimination.” Voorhees’ ruling indicates that this was, in fact, a false statement and that if the Supreme Court knew the real reason behind DeWitt’s actions, it would not have upheld them.

Roger Shimizu, co-chair of the Committee to Reverse the Japanese American Wartime Cases, has spearheaded fundraising and public outreach efforts for the Hirabayashi case. He feels Judge Voorhees’ decision is “an indictment of government officials who, in their overzealousness, purposely lied to the Supreme Court… It indicts the deference that occurred all along the way, from civilian to military and judicial to military.”

Shimizu said the manipulation of evidence by the War Department and the deference given the military by the Supreme Court led to a breakdown in the democratic system. “The division of powers and the system of checks and balances failed,” he said.

The real importance of Voorhees’ ruling, Shimizu feels, is that “it finds the ‘smoking gun’ that would have changed the course of history, namely the racist basis for the orders. The ruling undermines the entire rationale of the exclusion and detention orders.”

The government attorney in the case, Victor Stone, has not yet responded to Voorhees’ ruling. He can either accept it as it stands, request that Voorhees reconsider his decision or appeal the decision to a higher court. There has been no indication what course of action he will take.

Attorneys for Hirabayashi feel “honored to have played a role not only in Gordon’s vindication, but in the vindication of all Japanese Americans.” They volunteered thousands of hours in preparing his case over the last two years. The team includes Rod Kawakami, Mike Leong, Gary Iwamoto, Kathryn Bannai, Benson Wong, Craig Kobayashi, Dan Ichinaga, Arthur Barnett, Camden Hall, Sharon Sakamoto, Jerry Nagae, Richard Ralston, Nettie Alvarez, Nina Mar and David Sakuma.

“Our efforts have been well rewarded,” they stated. “The long overdue justice which arrived yesterday for Gordon K. Hirabayashi and the Japanese American community restores meaning for all Americans to the phrase, ‘And justice for all.’”

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