1/19/2024 0 Comments Mitsuye endo vs united statesThere is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 27 and May 3rd orders, whether he remained in or left the area. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. That 'future order', the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did 'direct' exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9 furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the MaAct of Congress. There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time 'until and to the extent that a future proclamation or order should so permit or direct.' 7 Fed.Reg. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. But hardships are part of war, and war is an aggregation of hardships. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. We uphold the exclusion order as of the time it was made and when the petitioner violated it. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.
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