Ochikubo v. Bonesteel (60 F. Supp. 916, 1945)

HALL, District Judge.

The plaintiffs seek to invalidate and enjoin the enforcement of individual exclusion orders issued by the Commanding General of the Western Defense Command under the authority of Executive Order 9066 of February 19, 1942 (7 F.R. 2320). Appendix I.

Any consideration of Executive Order 9066 must also involve Public Law 503, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a. Appendix II.

While the history of Executive Order 9066 and Public Law 503 has been reviewed by the Supreme Court and the Ninth Circuit Court in several cases wherein different phases than here involved of the exercise of powers under Executive Order 9066 were discussed, it will nevertheless be helpful in pointing up the issues in this case if a brief outline is made here of pertinent historical background.

On December 8, 1941, Congress declared war upon Japan. The resolution provided, after formally declaring war, that “The President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the government to carry on war against the imperial government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.”

The resolution still stands upon the statute books unchanged and unrepealed.

December 7th and 8, 1941 by Presidential Proclamations Nos. 2525, 2526 and 2527 (3 C.F.R. Cum.Supp.1944 273 et seq.) under the authority of 50 U.S.C.A. § 21 et seq., all nationals or subjects of the nations with which we are at war were declared to be enemy aliens and certain restrictive measures were applied, including the power to exclude any alien enemy from “any locality” and the power to summarily apprehend and intern any alien enemy “deemed dangerous”. Appendix III.

On December 11, 1941, the Western Defense Command was created within the War Department, including the whole of the States of Washington, Oregon, California, Montana, Idaho, Nevada, Utah and Arizona.

On December 12, 1941, Executive Order 8972 (3 C.F.R. Cum.Supp.1944, p. 1038); Appendix III-A, was promulgated. It recited the serious and immediate potential danger from sabotage, and authorized the Army and Navy to establish and maintain military guards and patrols or by other appropriate means to protect “national-defense material”, “national-defense premises”, and “national-defense utilities”, which had been very broadly defined by the Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655, 50 U.S.C.A. §§ 101, 103, 104, 105 and 106.

Between January 2, 1942, and January 5, 1942, there was a conference at San Francisco among representatives of the War and Justice Departments concerning the situation on the West Coast.

On January 4, 1942, the Assistant to the Attorney General who had been designated by the Attorney General to represent him in the conference wrote a communication to the Commanding General of the Western Defense Command containing recommendations about alien enemies (Appendix IV) and on January 5, 1942 the Commanding General responded to that communication (Appendix V) wherein for the first time a question was raised as to the possible treatment of citizens who had dual nationality.

On January 6, 1942, identical memoranda were exchanged between the Commanding General and the Attorney General’s representative which treated, however, only with the matter of alien enemies.

On January 14, 1942, by Proclamation No. 2537 (3 C.F.R. 287) issued under Title 50, Section 21 et seq., the registration of alien enemies by the Attorney General was required.

Shortly thereafter, the Attorney General ordered the evacuation of certain limited military zones by only those who were enemy aliens.

On February 2, 1942, the entire Congressional delegation of the West Coast States held a meeting in the office of Senator Johnson to consider the whole problem, which was followed by a number of other meetings.

On February 9, 1942, the Attorney General, by communication, advised the Commanding General he declined to accept the recommendation of the Commanding General concerning mass evacuation for all persons of Japanese ancestry saying as to that “If they have to be evacuated, I believe this would have to be done as a military necessity in these particular areas. Such action, therefore, should, in my opinion, be taken by the War Department and not by the Department of Justice.” Appendix VI.

On February 13, 1942, in a letter to the President, (Appendix VII) the Congressional Delegation of the West Coast States recommended that the “question of citizenship” be eliminated and procedures established “upon the question of loyalty alone.” The letter recommended “the immediate evacuation of all persons of Japanese lineage and all others, aliens and citizens alike, whose presence shall be deemed dangerous or inimical to the defense of the United States, from all strategic areas.”

It further recommended that military areas be enlarged, and concluded “We make these recommendations in order that no citizen, located in a strategic area may cloak his disloyal or subversive activity under the mantle of his citizenship alone and further to guarantee protection to all loyal persons, alien and citizen alike, whose safety may be endangered by some wanton act of sabotage.”

On February 14, 1942, in a memorandum to the Secretary of War the Commanding General recommended among other things general evacuation of all persons of Japanese ancestry regardless of citizenship, as well as other citizens, in the following language:

“b. I now recommend the following

“(1) That the Secretary of War procure from the President direction and authority to designate military areas in the combat zone of the Western Theatre of Operations (if necessary to include the entire combat zone) from which, in his discretion, he may exclude all Japanese, all alien enemies, and all other persons suspected for any reason by the administering military authorities as being actual or potential saboteurs, espionage agents, or fifth columnists. * * * The executive order should further provide that by reason of military necessity the right of all persons, whether citizens or aliens to reside, enter, cross or be within ceny military area shall be subject to revocation and, shall exist on a pass and permit basis at the discretion of the Secretary of War and implemented by the necessary legislation imposing penalties for violations.”

On February 19, 1942, the President promulgated Executive Order 9066. See Appendix I. The Order specifically provided it was not a limitation on Executive Order 8972. See Appendix III-A.

Immediately after the promulgation of Executive Order 9066, the War Department, with the approval of the President, requested Congress to “enact legislation to provide sanctions for the enforcement of directives issued under the authority of the executive order,” and sent a draft of the proposed Act which subsequently became Public Law 503, Appendix IX.

On February 20, 1942, the Secretary of War designated the Commanding General of the Western Defense Command to carry out the duties and responsibilities imposed by Executive Order 9066, and delegated to him within the area of the Western Defense Command the powers given under the Executive Order 9066. Appendix VIII. And on the same day Assistant Secretary of War McCloy by letter sent an outline memorandum suggesting the basis and procedure for dealing with the whole problem. In it there were six classes of persons designated, viz., “Class 1, Japanese aliens; Class 2, American citizens of Japanese lineage; Class 3, German aliens; Class 4, Italian aliens; Class 5, any persons, whether citizens or aliens, who are suspected for any reason by you or your responsible subordinate, of being actually or potentially dangerous either as saboteurs, espionage agents, fifth columnists or subversive persons ; Class 6, all other persons who are, or may be within the Western Defense Command.”

It was suggested in this memorandum that there should be progressive stages in order to “provide the maximum protection from sabotage and espionage.”

On February 21, 1942, the Tolan Special Committee of the House of Representatives began hearings in San Francisco upon the matter of danger to the West Coast from espionage and sabotage and the general defense of the West Coast.

On March 2, 1942, General De Witt established military areas Nos. 1 and 2, and 100 military zones. 7 F.R. 2320.

On March 10, 1942, he created the Civil Affairs Division of the Western Defense Command.

On March 14, 1942, the Secretary of War transmitted to Congress a letter asking for a change in the wording of the proposed Act which became Law 503, so as to enlarge its sanctions against persons who “commit any act in” the military areas contrary to any order of the appropriate Military Commander whether relating to exclusion or not. Appendix X.

On March 16, 1942, by Proclamation No. 2 (7 F.R. 2405) the Commanding General created military areas Nos. 3, 4, 5 and 6 comprising the states of Idaho, Montana, Nevada and Utah, respectively, and established within them an additional 933 zones.

On March 19, 1942, House Report 1911 of the Tolan Committee was filed, and on March 20, 1942, Public Law 503 was passed by Congress and signed by the President on March 21, 1942.

On March 27, 1942, Proclamation No. 4 (7 F.R. 2601) was promulgated by the Commanding General of the Western Defense Command wherein all voluntary migration which had been going on since December, 1941, was ordered stopped as of March 29, 1942.

Following the order of March 27, 1942, the supervised mass evacuation for exclusion and detention of all persons of Japanese ancestry began and was continued to and concluded on July 22, 1942.

This supervised mass evacuation, including as it did only persons of Japanese ancestry, citizen and alien alike, did not, it must be noted, include or concern any other persons or classes of persons. Such other citizens as were considered potentially dangerous by the Commanding General, were, from the beginning of the program, handled on an individual exclusion basis.

The evacuation was conducted by the Western Defense Command, but the administration of the detention centers was under the War Relocation Authority, which agency was set up on March 18, 1942, for that purpose by Executive Order No. 9102 (3 C.F.R. Cum.Supp.1944, 1123). The Order specifically provided it was not a limitation on Executive Order 9066.

On December 17, 1944, by Public Proclamation No. 21 (19 F.R. 53) the Commanding General of the Western Defense Command terminated the group exclusion of persons of Japanese ancestry, effective at midnight on January 2, 1945, and declared that thereafter the exclusion of all potentially dangerous persons would be handled on an individual basis. The proclamation continued in force all existing individual exclusion orders.

It is thus seen that the transfer to and extension of the powers of the Commanding General in military areas, over persons who were and are citizens and not alone over alien enemies, was a gradual process. It was based on “military necessity” as the Attorney General stated it must be in the quoted communication of February 9, 1942 (see Appendix VI), and as stated in each order of the Ccnnmcmding General issued under Executive Order 9066.

While the Assistant Secretary of War designated six classes of persons as above indicated, the exclusion program was conducted generally on the basis only of two classes, those of Japanese ancestry as presenting a group problem, and all other persons as presenting individual problems. No group exclusion having been applied to such other persons, they were allowed to remain in their home area until the Western Defense Command came to the conclusion that their presence in the military area was dangerous, whereupon individual exclusion orders were issued against such persons. It is within the judicial knowledge of the Court that such orders, for instance, were issued against many American citizens who were members of the so-called German American Bund.

During the period, however, of the confinement of the Japanese in the centers, the Western Defense Command completed the individual processing of all Japanese so that at the time of the termination of the mass exclusion on December 17, 1944, a total of approximately 200,000 persons (of whom approximately 120,000 were Japanese) had been individually processed. Appendix XI.

At the time of trial between 9,000 and 10,000 individual exclusion orders had been issued by the Western Defense Command of which something less than a thousand applied to non-Japanese. Of those issued against Japanese, most of them apply to persons who have either asked to be sent back to Japan or renounced their American citizenship, or refused to forswear allegiance to Japan.

All exclusion orders are subject to a “continuing process” of review, by reexamination upon request, but if no such request is made then a periodic review of each file is made at least three times a year.

This processing was done by the Western Defense Command, independent of the War Relocation Authority which began a gradual release of Japanese some time ago, and was evolved and continued without regard to the processing of those alien enemies who were under the jurisdiction of the Attorney General in separate detention centers.

The over-all processing of individual exclusion orders, except for changes from time to time which were minor, involved five general procedural steps by the Western Defense Command, viz.:

First: The gathering, summarizing, analyzing and evaluation of intelligence and investigative reports from military, naval, and civil agencies by the Civil Affairs Division of the Western Defense Command, which data is reviewed by the Civil Affairs Division personnel, and then by the officers in charge of the Civil Affairs Division who recommends for or against exclusion to the Commanding General.

Second: Review by Commanding General who may determine on non-exclusion or exclusion, in which latter event the subject is notified of his exclusion, and also notified he may have a hearing before a special Board of Officers, designated Individual Exclusion Hearing Board. In the notice of hearing there is set forth a list of things upon which special inquiry is to be made and the subject is notified he will be allowed to present witnesses.

Third: Hearing before the Individual Exclusion Hearing Board composed of three high ranking officers selected by the Commanding General, at which hearing the subject may present evidence and witnesses, but is not confronted with witnesses against him nor allowed to examine the file concerning him. The Board then makes written findings and recommendations which together with a transcript of testimony is transmitted again to the Civil Affairs Division.

Fourth: Civil Affairs Division again reviews, summarizes and analyzes entire file and the Officer in Charge makes his final recommendations for or against exclusion and again transmits it, together with entire file, to the Commanding General.

Fifth: After study of entire file Commanding General orders non-exclusion or issues order of exclusion which is transmitted to the subject. This order is final, except for periodic review hereinbefore mentioned.

The order issued against Ochikubo was such a final order. It referred to the temporary exclusion order (Appendix XII) and reads as follows:

“Headquarters Western Defense Command

“Office of the Commanding General

“Presidio of San Francisco, California

21 September 1944

“201 — Ochikubo, George Akira — CAD

“Subj ect: Exclusion.

“To: George Akira Ochikubo, Central Utah Relocation Project, Topaz, Utah.

“1. By letter dated 31 August, 1944, you were advised that under the authority of Executive Order No. 9066, dated 19 February, 1942, and letter of the Secretary of War, dated 26 June 1944, and pursuant to the determination that the action therein set forth was dictated by military necessity, you were, pending a hearing before a Board of Officers and pending the determination of the question considered by the Board, prohibited from being in, remaining in, or entering into Military Area No. 1 and the California portion of Military Area No. 2, Western Defense Command, as defined and designated by Public Proclamations Nos. 1, 2 and 16, Headquarters Western Defense Command, dated 2 March 1942, 16 March 1942, and 2 March 1943, respectively.

“2. On 9 September 1944, you voluntarily appeared before a Board of Officers appointed to determine whether military necessity required your continued exclusion from the above-described areas of the Western Defense Command. After due consideration of the report of the Board and all other data bearing on your case, and pursuant to a determination that the present action is dictated by military necessity, you are hereby notified that your exclusion from the areas described in Paragraph 1, hereof, is continued in full force and effect. This order shall remain in force until revoked in writing by competent authority. The foregoing prohibition shall extend also to any such additional areas as may hereafter be similarly designated, defined and established, but, in such case, a period of ten days from and after the date of the Proclamation or Order establishing additional areas will be permitted for complying with the foregoing requirements as to such additional areas.

“3. Failure to comply with paragraph 2, hereof, will subject you to the criminal penalties provided by^ Public Law 503; 77th Congress; approved 21 March 1942, entitled ‘An Act to provide a penalty for violation of restrictions or orders with respect to persons entering, remaining in, leaving, or committing any act in military areas or zones.’ ”

“C. H. Bonesteel

“C. H. Bonesteel,

“Major General, U. S. A. Commanding.”

The area from which Ochikubo is excluded covers all of the State of California, the Southern portion of Arizona and roughly the coastal half of Oregon and Washington. In the excluded area are approximately nine million of the eleven million population of the Western Defense Command; there is more than thirty per cent of the total national production of aircraft; thirty-nine per cent of merchant ship construction ; almost three thousand naval vessels were constructed during the year 1944; approximately a third of the gross cargo shipment of the United States and approximately a third of the hydro-electric power of the United States. In it there are located approximately five hundred army and navy installations, and ten large dams. Ninety-five per cent of all industry within the exclusion zone is engaged in essential war production, which means that-the facilities thereof are either “national-defense material”, “national-defense premises” or “national-defense utilities.”

There were originally two suits, one wherein the plaintiff Ochikubo was the only party plaintiff and the other wherein the plaintiffs Yamamoto and Shigekawa joined with other plaintiffs who later dismissed. Upon the trial of the action the cases were consolidated for the purpose of hearing evidence. At the conclusion of the trial and upon the motion of the plaintiff for permission to file an amended complaint, which was granted, the cases of Ochikubo, Yamamoto and Shigekawa were consolidated for all purposes.

As thus finally amended the complaint seeks declaratory relief on the assertion that there is an actual justiciable controversy, and also seeks a permanent injunction.

The plaintiff Ochikubo originally sought an injunction pendente lite, but this was denied on the ground that it did not appear from the plaintiff’s complaint that the defendants expected or intended or were likely to use force in carrying out the exclusion order against him. Ochikubo v. Bonesteel, D.C., 57 F.Supp. 513; see also Alexander v. De Witt, 9 Cir., 1944, 141 F.2d 573.

After such denial of the injunction pendente lite the defendant however filed an answer wherein he admitted that “the defendants will, if necessary, prevent the plaintiff by physical and military force from entering or remaining in the military areas from which he has been excluded, including the entire State of California.”

And in the answer to the amended and supplemental complaint filed after the conclusion of the evidence wherein the action continued against only the defendant Pratt and Bonesteel the defendants made a similar statement in paragraph VI that “The defendant will, if necessary, enforce said individual exclusion orders against the plaintiffs and each of them by physical and military force; will, if necessary, prevent the plaintiffs and each of them from entering the State of California and the City of Los Angeles by physical and military force, and if necessary, by physical and military force remove the plaintiffs from said area in the event the plaintiffs or any of them arrive within the State of California or within said County of Los Angeles.”

The contentions of the plaintiff are asserted under two general headings: First, lack of substantive due process and Secondly, lack of procedural due process.

As to the latter, it is claimed, in summary, that procedural due process is lacking for failure to publish in the Federal Register or to make available to the plaintiff the procedures or rules applicable, or to prescribe any standard of conduct; no adequate charge; no fair hearing with confrontation by and right of cross-examination of witnesses or access to adverse information; that plaintiff was entitled to a hearing before a Military Commission, or military tribunal in accordance with Articles 15 and 38 of the Articles of War, 10 U.S.C.A. §§ 1486, 1509, and that the procedure was contrary to and in violation of Articles of War 17, 18, 19, 22, 23, 25, 34, 35, 36, 46, 48, 50%, and 70, 10 U.S.C.A. §§ 1488-1490, 1493, 1494, 1496, 1505-1507, 1517,1519, 1522, 1542, and Army Regulation 420-5, as well as the provisions of the Manual for Court Martial, relating to the jurisdiction and powers of and procedure by Military Commissions and other military tribunals; and that in any event the defendant will carry out the exclusion order by force of arms without giving plaintiff an opportunity to seek or secure judicial review by writ of habeas corpus.

As to plaintiffs’ first contention, it is claimed that substantive due process is lacking in that there is no military necessity on the Pacific Coast warranting the exercise of any military jurisdiction or powers over civilians.

The contentions of the plaintiff that there exists no military necessity on the Pacific Coast warranting the exercise of military jurisdiction over civilians is based upon the assertion that Executive Order 9066 was promulgated at a time when there was imminent danger of military invasion from the enemy, and that such imminent danger of military invasion has now passed.

This contention amounts in substance to a request that this court hold as a matter of fact that the war in which we arelengaged is now in that stage where there is no danger from sabotage or espionage, and conclude as a matter of lam from such fact that the powers conferred upon Executive Order 9066 are no longer in existence, that is that the Commanding General has no power either to prescribe the Pacific Coast as a military area or to exclude any one therefrom.

This contention is based on the “clear and present danger” rule cases, and the doctrine of Ex parte Milligan, 4 Wall 2, 18 L.Ed. 281 and related cases, as best expressed perhaps in Sterling v. Constantin, 278 U.S. 378, 53 S.Ct. 190, 196, 77 L.Ed. 375, in the following language: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”

This power of judicial review is asserted to include the power to determine whether or not the danger is immediate and impending, such as to not admit of delay, as where the action of the civil authorities would be too late in providing the means the occasion calls for. While the plaintiff concedes that the Supreme Court in Hirabayashi v. United States 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, and Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793 (Involving convictions for violation of curfew orders imposed by the Commanding General of the Western Defense Command) and Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193 (involving a conviction under Public Law 503 for violating an exclusion order) held Executive Order 9066 and Public Law 503 to be constitutional and valid, it is nevertheless contended that these decisions are limited to the “conditions” then existing and amount to a holding by the Court that at the time the orders were applied a military invasion of the Pacific Coast was threatened and imminent so as to warrant the issuance of the orders; and that thus this Court must determine at this time that there is in fact now no military danger to justify the exercise of any power under 9066 and hence the orders are void.

As against the contentions of the plaintiff, government counsel assert that there is procedural due process in that there is no requirement for publication in the Federal Register of the procedure or Rules of the Western Defense Command; that all procedures are in compliance with applicable Army Regulations and Military law in that Army Regulations 400-5 permit the establishment of Boards to perform the functions done by the Board here; that the procedure actually followed accords in fact procedural due process; that Executive Order 9066, being constitutional, jurisdiction of this Court is limited to determining whether or not the Commanding General acted arbitrarily or capriciously in the issuance of the orders; and that such is not the fact, which, being so, gives the Commanding General the power to execute his orders by forceful removal; and that in any event the proceeding here accords due process to the plaintiffs.

The position of the United States Attorney and the Attorney General in sponsoring and supporting the assertion in the answer of the power of the Commanding General to execute his orders under 9066 by “physical and military force” is in effect that Law 503 is nothing more than an approval of 9066 and that the sanctions of 503 are a dead letter.

The assertion by the plaintiff that this court has the power to and must determine as a matter of fact that no military necessity exists for their use and hence that the powers delegated under Executive Order 9066 are now at an end, postured against the assertion of the Commanding General that he has the right and power to execute his order issued under Executive Order 9066 by all necessary “physical and military force”, and the contentions arising out of those assertions, create an actual justiciable controversy, as to these two propositions so as to give this court jurisdiction under the declaratory relief statute, 28 U.S.C. § 400, 28 U.S.C.A. § 400.

Whether or not' a justiciable controversy exists as to the other contentions of the parties depends upon the conclusions reached as to these two questions, which must be resolved first.

The mere statement of the positions of the parties indicates the gravity of the questions involved.

But the seriousness of these questions-is heightened when it is considered that, in addition to the above-quoted allegations-in the answer, it was asserted from the witness stand (Appendix XIII) that the Commanding General has the power and right to physically remove by “necessary” military force at any time" of the day or night any person, or all persons from the area of the Western Defense Command who might violate any Order or'Proclamation of the Commanding General, and this power and right is asserted, not alone against persons of Japanese extraction, but is claimed to exist over “every inhabitant” within the area of the Western Defense Command, regardless of the citizenship, occupation, or any other circumstances of the person or persons involved, except the single circumstances that the Commanding General has, as a matter of military necessity, concluded that such person must be excluded as a potentially dangerous person because such person has violated a fiat of the Commanding General; and the testimony that 25 persons, most, if not all, of whom were citizens, only one of whom was of Japanese extraction (See Appendix XIII) had been removed from this area by physical and military force, the last one in October, 1944, by a squad of six armed soldiers and three officers. In the mass evacuation no actual force was used, although it was conducted by the army, and the mass excludees were, and by far the great majority of the presently individually excluded persons are, detained in centers.

The seriousness is further emphasized as, throughout the discussion of counsel and in their briefs, in considering whether or not a plain, speedy, and adequate remedy existed by way of a writ of habeas corpus, the positions of the parties became clear.

The plaintiffs insist that the defendant’s admission that the plaintiffs will be taken into custody and forthwith be physically carried out of the State of California by a squad of soldiers using such force as is necessary to remove them, and then left beyond the jurisdiction of this Court, will deprive them of any possible chance of either filing a petition for a writ of habeas corpus or communicating with either lawyer or friends, and will in effect be a suspension of the right to a writ of habeas corpus as to each of them; and the defendants then assert that once any evacuee is removed beyond the boundaries of the State of California and there set free from actual physical custody of the squad of soldiers — although restrained by force from again returning to the State of California, — h-abeas corpus will not lie because, first, the evacuee is not then in actual physical custody, and secondly, the courts where the evacuee then might be would have no jurisdiction of the Commanding General, inasmuch as he has his residence and headquarters in the State of California where are located the only courts having jurisdiction of the defendant, but from whence the evacuee has just been forcibly banished by the defendants. This contention is supported, say the defendants, under the doctrine of Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277, and the line of cases depending on it.

I.

Before considering the plaintiff’s first contention that there is now, as a matter of fact, no military necessity on the Pacific Coast warranting the exercise o'f any powers under Executive Order 9066, it will be necessary to decide the nature, extent, and scope of the powers of a Military Commander under Executive Order 9066 and Law 503.

If the Commanding General does not have the power to use force to execute his orders as claimed, then it will not be necessary to determine whether or not a writ of habeas corpus would lie under the circumstances as stated.

No such power to execute his orders by military and physical force was claimed or considered in either the Hirahayashi, Yasui or Korematsu cases, supra, as each of them was a prosecution under Law 503.

Under the authority of Executive Order 9066, the eight Western States constituting the Western Defense Command were subdivided into six military areas. Most, if not all of the rest of the United States is, or was, included in other Defense Commands, with similar subdivisions into military areas. So that actually the power under Executive Order 9066 of one Commanding General, or another, of one Defense Command, or another, may extend to every person within the continental United States.

The Commanding General, under the wording of Executive Order 9066 may not only exclude "my or all persons” but he may also subject "any or all persons” who remain in any military area to "zohatever restrictions” by order or proclamation he “may impose in his discretion.” The Military Commander may, under the literal reading of the order, "take such other steps as he * * * may deem advisable to enforce compliance with the restrictions applicable to each Military area * * * including the use of Federal troops * *

If the powers exists as asserted in the answer and claimed on trial and argument, then an effective means has been found for actually suspending the writ of habeas corpus without appearing to do so, as it would only be necessary for a capricious Commanding General to create a military area which would encompass the territory within which the courts are situated having jurisdiction over him, and then to remove therefrom all persons who might violate whatever restrictions he may impose in his discretion. He might, under his contentions as to power, remove the judges of the courts and the civil authorities. It is not suggested that this is likely to happen or that any Commanding General would be apt to do so. But the inquiry is on the question of the extent of his power. And if these possibilities sound startling, it must be remembered that under Executive Order 9066, curfew was imposed upon a class of more than one hundred thousand persons, most of whom were citizens; that blackout and dim-out regulations applied to all persons; that flying regulations are now in existence which apply to all persons; that cameras, radios, and other personal property harmless in themselves were denied to the possession of a designated class of citizens exceeding a hundred thousand in number; and that as recently as January 25, 1945, Civilian Restrictive Order No. 33 (Appendix XIV) was issued which applies to all persons and prohibits any person from transferring or delivering certain designated articles to any excludee, and that as a matter of common knowledge these articles were surrendered to the various sheriffs and Chiefs of Police, so that this order contemplates that if these civil authorities still have such articles in their possession, they are subject to the power of removal by the Commanding General; and that the basis of these, as of every order and proclamation issued by the Commanding General under Executive Order 9066, is his finding that “military necessity” requires them.

If the Military Commander may by military force summarily remove from the State of"California (or any other place for that matter) any person which he may decide has violated any of the orders heretofore or hereafter promulgated by him, then surely his power is of the most drastic and absolute kind.

If Executive Order 9066 were standing alone, and if Congress by resolution had merely approved it, then it seems to me it would have been a delegation, amounting almost to abdication, of power to the military, to exercise complete control over civilians and civilian authorities in domestic territory, as under it the military commander could by restrictions which he might “impose in his discretion”, not only banish the civil authorities as pointed out, but could in fact abrogate any law in any state, and could in fact regulate the lives, conduct, and business of all persons including civilian authorities within his command.

If such were the case, then there would be absolute martial law in designated Military Areas, as martial law is defined in the Manual for Court Martial (which must be taken to be a Congressional definition), Chapter I, Par. 2 “Military Jurisdiction — * * * Military Jurisdiction is exercised •* * * by a government temporarily governing the civil population of a locality through its military forces, without the authority of written law, as necessity may require (martial law).”

But Executive Order 9066 does not stand alone, it must be read with and as a part of Law 503, as held in the Yasui, Hirabayashi and Korematsu cases, supra. And provisions of Executive Order 9066 which authorize the Military Command to take such steps as he may deem advisable to enforce compliance with his restrictions, including the use of troops, must be particularly considered in light of the fact that immediately after the President promulgated Executive Order 9066 he approved the request of the Secretary of War that Congress enact Law 503 “to provide for the enforcement * * * of orders issued under the authority of Executive Order of the President, No. 9066.” See Appendix IX and ante. The authority in Executive Order 9066 to use troops must also be considered in the light of the power to use troops, previously granted in Executive Order 8972, which, as'heretofore noted, was specifically not affected or modified by Executive Order 9066.

Law 503 leaves the Military Commander the power to impose restrictions and prescribe rules of action, i. e., law, which he may consider necessary or desirable to accomplish the mission specifically committed to the military under Executive Order 9066 which was to prevent sabotage and espionage. And the sole standard is what in his judgment is military necessity.

That it is, and has been, difficult to rationalize the powers of the military under Executive Order 9066 is indicated by the various opinions, both concurring and dissenting, not only in the Supreme Court in the Hirabayashi, Korematsu and Endo cases, but in the Circuit Court in the same cases.

I find no way to rationalize the whole matter except to do as is done in other inquiries, i. e., first determine the general field of law which comes closest to covering the situation. As for instance, in damage suits, the inquiry is first whether or not the claim sounds in tort or contract, different legal principles being applicable in the different fields of law.

So here, in endeavoring to find the applicable rules, the inquiry immediately arises as to whether or not the principles of martial law apply, or some other field of law, such as administrative law, applicable to civilian agencies in peacetime.

As war cannot be permitted to establish the patterns and precedents for peace, by the same token neither peace nor peacetime law can provide the patterns or precedents for war.

Certainly the principles applicable to Executive Order 9066 and Law 503 cannot be classified as administrative law, as the “necessity” upon which administrative delegation is founded is foreseen and determined and “canalized” by the Legislature in advance of the action of the administrative agency, whereas, in the field of martial law that necessity obviously cannot be anticipated and defined and “canalized” by the Legislature in advance, because i-t depends on military necessity, which may change in degree from day to day, and may vary from loose and trivial civilian controls to the most comprehensive and rigid civilian control.

Government counsel took the position at the argument that it was unnecessary to determine whether or not martial law is involved and that it was merely a matter of terminology. But I cannot agree with that position, because it seems to me that the power to judicially review an order of a Military Commander made in time of declared war in an area where martial law exists in whole or in part," either after declaration thereof by Congress, or otherwise, is narrower and much more restricted than the power to review any order of an ordinary administrative agency of the Government made in peacetime.

It would be denying the most patent inexorabilities of war to assert that the power of a court in wartime to review a military order, which includes the power to stay and suspend such order while reviewing it, is comparable to the power of the courts to review an order of a civilian agency or officer of the Government promulgated when the country is not under the imperious necessities of war.

In reviewing the exercise of a delegated power of a civilian agency the complete record of the things upon which the exercise of the power is based, is exposed, but surely it cannot be expected that in time of actual declared war that the military should, before taking effective action to meet a danger, expose its plans, its sources of information, and its knowledge to the world by demonstrating all the things in open court which made the military decision necessary.

The Commanding General’s decision is a military-decision committed by Congress in its passage of Law 503 to him to be made solely upon his determination of what is or is not military necessity.

And that it is not a mere matter of terminology whether or not qualified martial law exists is further apparent when it is considered that in the making of military decisions — many of which risk and lose much that is dear and irreplaceable— a Military Commander is not bound by the same rigorous limitations on his judgment as civil agencies in the exercise of their powers.

As stated by Judge Stephens in his concurring opinion in the Korematsu case in the Circuit Court of Appeals on December 2, 1943: “How weak indeed our country would be in the kind of world in which we live, if before their validity could be regarded as certain, war strategy orders would have to be ratified and validated by the courts after a trial of facts as to their necessities * * [140 F.2d 306],

The argument advanced by government counsel that it is not martial law because the Attorney General might have just as well been designated as the Secretary of War, is answered by the fact that the Attorney General was not designated to carry out Executive Order 9066, but that responsibility was placed in the War Department. Moreover, as the Attorney General indicated'in his letter (See Appendix VI) the decisions under Executive Order 9066 would have to be based on "military necessity” which obviously could only be done by those having intimate knowledge of, and skill in, military matters.

While many attempts have been made to describe martial law, and there is much' dispute among text book writers and others concerning it, and while it has been said that it “appears, indeed, incapable of exact definition” (In re Duncan, 9 Cir., 146 F.2d 576, 581 nevertheless I believe it may be said without attempt at exactness or completeness that martial law exists when military authorities carry on government or exercise various degrees of control over civilians or civilian authorities in domestic territory.

Martial law has been said to be a legal concept- by which Anglo-American civil courts have sought in time of disorder to define the limits of executive or military control over civilians in domestic territory.

Wiener (p.' 10) states that martial law in its broad sense is the carrying on of government in domestic territory by military agencies in whole or in part, with the consequent supersession of some or all civil agencies, and further states (p. 12) that where governmental activities are carried on through military instrumentalities, but civil tribunals continue to function, the resulting situation is called qualified martial law.

Fairman (23 Ill.L.Rev. 766, 775) states that martial rule may be said to exist in a domestic community when the military rises superior to the civil power in the exercise of some or all of the functions of the government. And also (in his 2nd edition of The Law of Martial Rule p. 47) that it is not a thing absolute in its nature, a matter of all or nothing. On the contrary, it is measured by the needs of the occasion.

It is doubtful if anyone has improved upon the statement by the Chief Justice in the concurring opinion in Ex Parte Milligan (4 Wall. 2 at page 142, 18 L.Ed. 281) where he said that “martial law * * * is called into action by Congress, or temporarily, * * * by the President, in times of * * * war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.”

It is obvious that the President in promulgating Executive Order 9066, and that Congress in passing, and the President in approving, Public Law 503, did not consider the public safety to be adequately secured against sabotage and espionage by either the long standing statutes against espionage with the penalties ranging from a maximum of ten years’ imprisonment to death or by the 1918 Acts as they were amended in 1940 with the greatly enlarged and broadened definitions of “national-defense material,” “national-defense premises” and “national-defense utilities” (50 U.S. C. § 104, 50 U.S.C.A. § 104), or by Executive Order 8972 (Appendix III-A).

If it is not a state or degree of martial law, i. e., if military necessity was and is not the animating basis of Executive Order 9066 and powers exercised under it, then in each instance the military would have to disclose to the world at some place in a public proceeding — during war — the entire evidence upon which they base their decision, including confidential military information, the names of informers, the sources of information, their ability and facilities for securing it, and in addition, moreover, would have to confront each complainant with that data and information and submit to cross-examination.

Such cannot have been the contemplation of Executive Order 9066 and Law 503, as one of the commonest objects of espionage is to ascertain just what the military knowsj just who informers are, just what the facilities for gathering information are, and the like, all in order that detection can be circumscribed and prevented.

Executive Order 9066 was born of war. Its vitality depends upon the constitutional powers which exist when there is a state of war. Certainly it will not be supposed that any one would urge that if there were no war, the powers assumed and delegated under it would have been approved by Congress or would be sustained by the courts as within Constitutional grants of power from the States and the People to the Federal Government. Without a state of war existing, it would merely be a means of preventing injury to government property, and a means of preventing injury to private property, and it has not yet been suggested that the latter is within the grants of power to the Federal Government under the Constitution, except in time of war. Ordinary criminal sanctions of applicable existing statutes enforceable in the civilian courts of the nation and the states, must in time of peace, be regarded as sufficient to prevent injury to property, either govern-mentally owned or privately owned. Of course all powers exercised by the Federal Government in time of war, do not necessarily involve martial law — but it seems inescapable to me that the delegation of power here involved to a military commander to make orders — laws governing citizens — the sole standard of which is his determination that military necessity requires them, falls naturally and logically into a classification of martial law, and by Law 503, declared by Congress as qualified martial law, which law, as with all laws, it must not be forgotten, was approved by the President, who is also the Commander in Chief of the military forces.

There can be no doubt that if martial law exists it includes the power to promulgate rules of action over civilians in domestic territory based upon military necessity. Then certainly there is qualified martial law to that extent, but to that extent only. Congress by Law 503 approved that power, and in doing so declared that military necessity, as the Military Commander sees it,to be the standard of these rules of conduct, or the basis for exclusion orders, either mass or individual.

To the extent that Executive Order 9066 authorizes a Military Commander to prescribe rules of action — make laws— governing civilians in military areas set up in domestic territory upon the sole standard of military necessity, it is martial law; to the extent that Law 503 approves Executive Order 9066, it is declared martial law; and to the extent that Law 503 limits Executive Order 9066, it is qualified martial law.

I am aware that there are expressions in the Hirabayashi, Korematsu and Endo cases, supra, from which the contrary might be argued.

Repeated statements throughout the opinions indicates the narrowness of the questions decided and in none of them was the right to use force involved. Hence, the expressions in those cases concerning martial law appear to be dicta and not necessary to the decision.

On November 1, 1944 (more than a year after the decision of the Supreme Court in the Hirabayashi case, supra), the Circuit Court of Appeals for the Ninth Circuit said in connection with a discussion of the state of qualified martial law which the court held existed in Hawaii, that in the Pacific Coast States, “ * * * a state of qualified martial law nevertheless existed there more drastic, in certain of its aspects, than that prevailing in Hwuaii * * Ex parte Duncan, 9 Cir., 146 F.2d 576 at pages 582, 583.

In an article published in the July-August 1942 Edition of the California State Bar Journal entitled “War-Time Martial Rule in California”, the Governor of the State of California stated, “Although few realize it, federal martial rule is already partially in effect in California and other sectors of the Pacific Coast.”

In an article in the California Law Review in December 1942 (Vol. 131, No. 1 p. 6 et seq.) Col. W. A. Graham, formerly a Judge Advocate of the United States Army (1917-1939 retired) stated; “At this very moment, though the public generally does not realize it, we in California are living under conditions of martial rule; and we have been so living ever since the 19th day of February, when the President promulgated his Executive Order Number 9066.”

In the same article it is further stated: “The fact that a nominally civilian agency is designated to enforce a military order in nowise affects the nature of that order. It is who makes the rules that matters — not who is designated to enforce them.”

Clearly Executive Order 9066 and Law 503 contemplate and are designed to vest a vast power of decision in the Military Commander, but they also clearly contemplate that the power to enforce such decisions shall he limited to the penalties of Law 503.

Neither Congress nor the Chief Executive, apparently conscious of the constitutional supremacy of the Civil Authorities, in delegating such vast power over the conduct and lives of the entire population, saw fit to permit the use of military force to execute the orders of the military commander on civilians by a squad of soldiers using, such force as is necessary, on the imprimitur of a Military Commander, but preserved the, right of civilians to be tried by a jury in the civilian courts with all the safeguards inherent in such procedure, and made such prosecution the exclusive means of enforcement.

That such a construction of Law 503 and Executive Order 9066 must have been in the minds of each of the various Commanding Generals, as well as the Secretary of War and the President, is indicated by several things; First, the letter of the Secretary of War asking with the approval of the President that a law be enacted to enforce the orders which might be born under 9066 (see Appendix IX and X). Secondly, without exception every Civilian Restrictive Order, every proclamation, every exclusion order, mass as well as individual, provide that violation thereof shall subject the violator to the “penalties of Public Law 503, 77th Congress, approved March 21, 1942, entitled ‘An Act to provide a penalty for violation of restrictions or orders with respect to persons entering, remaining in, leaving, or committing any act in military areas or zones,’ ” although the dim-out and black-out orders also provided that a violator “is subject to immediate exclusion from the territory of the Western Defense Command”; Thirdly, none of the orders, exclusion or otherwise, gave any notice or indication that physical force would be used to execute the orders; Fourthly, the Commanding General sought and obtained numerous municipal and county ordinances, and in some cases State laws, making it an offense to violate such orders.

The Supreme Court in the Hirabayashi case, supra, called attention to the statement on the floor of the House by the Chairman of the Senate Military Affairs Committee, that the purpose of the legislation was “to provide means of enforcement” of orders issued under Executive Order 9066, and the Court held that by Law 503 Congress “implemented” the orders. Now, if the Commanding General had the power under Executive Order 9066 to use force to execute his orders, then he needed no law to “provide means of enforcement” or to “implement” such orders.

That Law 503 was intended to be the exclusive means of enforcing orders issued under Executive Order 9066 is further indicated by the remarks of Congressman Costello in submitting the report on what became Law 503. Among other things he said: “To make such removal effective, it is necessary to provide for penalties in the event of any violation of the orders of restrictions which may be established, as well as to enforce curfews, where they may be required.

The limitation of Law 503 on the power of the military to use force to execute orders promulgated under Executive Order 9066, cannot be taken as a limitation on the power of the military to use force in guarding camps, installations, etc., under Executive Order 8972 which is specifically exempted from the operation of Executive Order 9066 and which as heretofore pointed out is also a measure for the protection of “national-defense material, national-defense premises, and national .defense utilities.”

Executive Order 9066 and Law 503, taken together, were not designed to supplant but to supplement and aid the civil authorities in carrying out their duties of prosecution and punishment under ordinary law as expressed in existing legislation. Title 50 U.S.C. §§ 31, 32, 33, 34, 45, 101,104, 105, 106, 21 and 24, 50 U.S.C.A. 31-34, 45, 101, 104-106 and 21, 24; 8 U.S.C. 451 et seq., 8 U.S.C.A. § 451 et seq.; 18 U.S.C. § 6, 9-14 and 88, 18 U.S.C.A. §§ 6, 9-14, 88, as well as the Acts of Congress which are called the Articles of» War, 10 U.S.C.A. § 1471 et seq.

The limitations of Law 503 on Executive Order 9066 does not however completely prevent the army from using “federal troops” in carrying out orders made under Executive Order 9066. There are Army Regulations which are applicable and which cover such a situation.

In that connection, Army Regulation 600-355 (10 C.F.R.Cum.Supp.1944, page 2692) was promulgated on July 17th, 1942, which was subsequent to Executive Order 9066 of . February 19, 1942, and Law 503 of March 21st, 1942. It must therefore be considered in connection with them and as applicable to the powers conferred by Executive Order 9066. It provides a limitation on the power of the army over persons who are not subject to military law, and it is conceded by the defendants that the plaintiffs are not subject to military law. This regulation limits the power “by members of the Military Establishment” to the power to make an arrest if a misdemeanor of the nature prescribed by Law 503 is being committed, and provides "Restraint. The restraint imposed * * * will not exceed that reasonably necessary (i. e., to make the arrest) nor extend beyond such time as may be required to dispose of the case by orderly transfer of custody to civil authority or otherwise, under the law." Appendix XV.

On this point, I therefore conclude, that, the Commanding General does not have the power to enforce the exclusion order against the plaintiffs by physical and military force as asserted in his answer, but that he does have the power by the terms of Executive Order 9066 and Law 503 to prescribe rules of conduct for — including exclusion of- — -“any person”, or “all persons” within the area of his command, upon a finding by him that “military necessity” requires it; and, he does have the power under Army Regulation 600-355 in' the event of an asserted violation of such an order to arrest the asserted violator, and using such force as is reasonably necessary to bring him before a United States Commissioner or other committing magistrate and swear out a complaint for violation of Public Law 503, or to transfer him to the custody of the United States Marshal to hold for action by the United States District Attorney.

This does not affect the powers of the States or subdivisions thereof to prosecute offenses under laws passed by them making it an offense to violate an order of the Commanding General issued under Executive Order 9066. That question is not here for decision.

Nor is the question here for decision as to the possible liability in damages of members of the military establishment for using military force to execute an exclusion order.

II.

The nature, scope, and extent of the powers of the Commanding General being thus defined under Executive Order 9066 and Law 503, so that a state of qualified martial law exists needing but military necessity as determined by the Commanding General to animate those powers, I will turn to the contention of the plaintiffs that no military necessity now exists on the Pacific Coast or in the area-of the Western Defense Command to warrant the exercise of any powers under Executive Order 9066, in effect that 9066 is now a complete nullity; and that ■hence, the Commanding General has no powers under 9066 either to prescribe military areas or otherwise.

As previously indicated, plaintiffs’ contention that no military necessity now exists so as to vivify the powers of Executive Order 9066 is premised upon the proposition that there is now no danger of military invasion, such as existed at the time of promulgation of Executive Order 9066.

This argument was probably, originally induced by language in Public Proclamation No. 1 (7 F. R. 2320) reading as follows: “Whereas the Western Defense Command embraces the entire Pacific Coast of the United States which by its geographical location is particularly subject to attack, to attempted invasion by the armed force of nations with which the United States is (sic) now at war, and in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations.”

But the argument overlooks several things; first, that in the event of an actual or attempted or even imminent invasion, it is doubtful if any authority by Executive Order or additional statutes would have been, or would be, needed by the appropriate military commander to require even complete evacuation of any particular area; second, Executive Order 9066 says not a word about invasion, either threatened or imminent, — it is in furtherance of the “successful prosecution of the war” and is founded upon the necessity in modern war of preventing sabotage and espionage concerning “national-defense material, national-defense premises, and national-defense utilities”, wherever located; third, the primary purpose of Proclamation No. 1 was to define military areas as authorized by Executive Order 9066; fourth, that Public Proclamation No. 21 (10 F. R. 53) of December 17, 1944, rescinding the mass exclusion order, but continuing in effect all individual exclusion orders, after stating that there was “substantial improvement in the military situation” recited as a fact that: “Whereas, there is still reasonable possibility of hostile acts against the West Coast area of the United States and this possibility of enemy action requires adequate measures to prevent aid and comfort to the enemy and to prevent the commission of sabotage and espionage separately or in connection therewith.”

The contention fails to take into consideration the patent fact, so awful in its consequence, that modern wars are not limited to clashes at arms on particular fields of battle of comparatively insignificant area, but are exertions of the