Wilcox v. Emmons (67 F. Supp. 339, 1946)

HALL, District Judge.

This case involves the powers of the Commanding General of the Western Defense Command under Executive Order Feb. 19, 1942, No. 9066, C.F.R. Tit. 3, p. 1092 Cum.Supp; 7 R.F. 1407, and Law-503, 56 Stat. 173, 18 U.S.C.A. § 97a.

On September 6, 1943, the plaintiff was seized in his home in California and ejected by the use of physical and military force from the State of California by a squad of soldiers acting under the orders of the defendant Commanding General of the Western Defense Command, and was thereafter excluded from the State of California for several months, for which he seeks damages in this action.

The ejectment and exclusion were done under an Order directed to the plaintiff, individually, excluding him from Military Areas Numbers 1 and 2 which included among other areas the entire State of California. The defendant, General De Witt, is the only defendant who has appeared. Service has been had upon none of the other defendants, nor have they voluntarily appeared as did General DeWitt.

The defendant, General De Witt, filed a motion for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Thereafter the plaintiff filed a similar motion.

Both motions were noticed and heard together. All matters have been extensively argued and briefed. While subdivision (c) of Rule 56 permits judgment, if “there is no genuine issue as to any material fact” (except as to the amount of damages); and while subdivision (d) requires an order “specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy,” it is nevertheless necessary to ascertain what the material facts are, and what material facts exist without “substantial controversy” or “genuine issue” before either •a final or partial judgment can be rendered.

This is especially true where, as here, the matters involved cover not only the record of the previous case, but also involve so many facts which must be judicially noticed.

After the arguments and after briefs were filed, the parties were requested to file statements of their contentions as to what material facts existed without substantial controversy or genuine issue.

From these statements and the evidence, records and files in the case, I now find the following facts to be material and to exist without substantial controversy or genuine issue:

1. On December 8, 1941, Congress declared war upon Japan, 55 Stat. p. 795, 50 U.S.C.A.Appendix, note preceding section 1. Said Statute is now and ever since said date has been in full force and effect.

2. On December 11, 1941, the Western Defense Command was created within the War Department which included the whole of the States of Washington, Oregon, California, Arizona, Montana, Idaho, Utah, and Nevada, and on the same date tin defendant herein, Lt. General John I.. De Witt, was designated as Commanding General of the Western Defense Command.

3. On December 11, 1941, the Western Defense Command was designated by military authorities as a theater of military operations. Such a theater is defined as an area necessary for military operations and the administration and supply incidem to military operation. The zone closest to the enemy which is required for the actual operation of the combatant forces is designated as a combat zone. The rear area of a theater of operations is known as a zone of communication, in which supply and administrative troops function to provide necessary service for the combat forces. The coastal area of the coastal states of Washington, Oregon, and California was a combat zone, and the remaining area of the Western Defense Command was a zone of communication.

4. On December 12, 1941, Executive Order 8972, 3 CFR Cum.Supp. p. 1038, was promulgated and was in full force and effect at all times herein mentioned. It 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.”

5. On February 14, 1942, the defendant as Commanding General of the Western Defense Command made a report and recommendation to the Secretary of War concerning the “Evacuation of Japanese and Other Subversive Persons From The Pacific Coast” (Final Report Japanese Evacuation From The West Coast, by General De Witt, U. S. Government Printing Office), in which he recommended, among other things, (p. 36) that an Executive Order be procured for, “authority to designate military areas in the combat zone in the Western Theater 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 of being actual or potential sabotuers [sic] espionage agents, or fifth columnists,” and that such legislation be “implemented by the necessary legislation imposing penalties for violation.”

6. February 19, 1942, the President promulgated Executive Order No. 9066 as follows:

“Authorizing the Secretary of War to Prescribe Military Areas

“Whereas, the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1916, 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 (U.S.C. Title 50, Sec. 104):

“Now, Therefore, By virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of'War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the ‘ right of any person to enter, remain in, or leave shall be subject to whatever restriction the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the said Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

“I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal agencies, with authority to accept assistance of state and local agencies.

“I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

“This order shall not be construed as-modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigations of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.”

“Franklin D. Roosevelt

■“The White House, February 19, 1942.”

.7. On February 20, 1942, the Secretary iof War sent a letter to the defendant and enclosed a copy of said Executive Order and designated the defendant “as the military commander to carry out the duties and responsibilities imposed in the Western Defence Command, including such changes in the prohibited and restricted areas heretofore designated by the Attorney General .as you deem proper to prescribe” and giving him other instructions. (For text of letter see De Witt’s Report, pages 25, .26.) On the same day, to wit, February .20, 1940, the Assistant Secretary of War forwarded a memo to the defendant as Commanding General which contained an outline of the suggested method of procedure which might be followed in carrying out an evacuation program. (For full text, see De Witt’s Report, pages 27, 28, 29.)

8. Immediately upon the promulgation of Executive Order No. 9066, the War Department, with the approval of the President, requested the Congress to enact legislation to provide sanctions for the enforcement of directives issued under the authority of the Executive Order. A draft of proposed legislation for this purpose was transmitted by the Secretary of War simultaneously to the Chairman of the Senate Military Affairs Committee, and to the Speaker of the House of Representatives. The concurrence of the Department of Justice as to the form and substance of the bill had been obtained. (P. 29 De Witt Rep.)

The body of such letter of transmittal from the Secretary of War to the Congress read as follows:

“There is enclosed herewith draft of a bill entitled ‘a bill to provide a penalty .for violation of restrictions or orders with respect to persons entering, remaining in, or leaving military areas or zones,’ which the War Department recommends to be enacted into law.

“The purpose of the proposed legislation is to provide for enforcement in the Federal criminal courts of orders issued under the authority of Executive Order of the President No. 9066, dated February 19, 1942. This Executive Order authorizes the Secretary of War to prescribe military areas from which any and all persons may be excluded for purposes of national defense.

“It is impossible to estimate the probable cost to the Government consequent upon the enactment of such legislation.

“The Bureau of the Budget has advised that there is no objection to the submission of this proposed legislation for the consideration of the Congress, as the enactment thereof would not be in conflict with the program of the President.”

While the legislation was under consideration, the Secretary of War, on March 14, 1942, transmitted another letter to the Congress suggesting an amendment and urging immediate enactment. The letter of March 14th is as follows:

“Hon. Andrew J. May,

“Chairman, Committee on Military Affairs,

“House of Representatives.

“Dear Mr. May:

“By telephone on Thursday, March 12, 1942, Lt. Gen. John L. DeWitt, commanding in the Western Defense Command, requested that action be taken to expedite passage of S. 2352 and H. R. 6758, bills to provide penalties for violation of restrictions or orders with respect to persons entering, remaining in, or leaving military areas or zones.

“General DeWitt is strongly of the opinion that the bill, when enacted, should be broad enough to enable the Secretary of War or the appropriate military commander to enforce curfews and other restrictions within military areas and zones. To that end, it is suggested that in line 3, page 1, of H. R. 6758 the word ‘or’ be stricken and that after the word ‘leave’' there be inserted the words, ‘or commit any act in.’

“General DeWitt indicated that he was prepared to enforce certain restrictions at once for the purpose of protecting certain vital national defense interests but did not desire to proceed until enforcement machinery had been set up.

“The War Department recommends immediate passage of the proposed law.

“Sincerely yours,

“Henry L. Stimson

“Secretary of War.” (Pp. 29, 30, De Witt Report)

9. By Proclamation No. 1, dated March 2, 1942, Lt. Gen. John L. De Witt created Military Areas Nos. 1 and 2, upon the finding that the Pacific Coast was particularly subject to attack and attempted invasion by the armed forces with which the United States was at war, and in connection therewith, was subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such military operations. Military Areas Nos. 1 and 2, as then defined, included the states of Oregon, Washington, California, and Arizona. Area No. 1 included approximately the same area as the said combat zone.

10. On March 20, 1942, Congress enacted and on March 21, 1942, the President approved Public Law 503 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.” It read as follows:

“Public Law No. 503

“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.

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.”

11. Subsequent thereto the defendant Commanding General sought and obtained the passage of numerous Municipal and County Ordinances and in some instances State Laws, making it an offense to violate orders promulgated under the authority of Executive Order 9066.

12. On July 2, 1942, the Secretary of War addressed a letter to the Commanding General of the. Western Defense Command and Fourth Army in words and figures as follows:

“War Department “Washington

“July 2, 1942

“The Commanding General

“Western Defense Command and Fourth Army

“Presidio of San Francisco

“California

“Sir:

“By virtue of the authority vested in me as Secretary of War, and pursuant to the provisions of Executive Order 9066, issued and published February 19, 1942, by the President of the United States. I do hereby authorize and direct you as the designated Commanding General of the Western Defense Command and Fourth Army to exclude from Military Areas Nos. 1, 2, 3, 4, 5, and 6 of the Western Defense Command, as defined in Proclamations Nos. 1 and 2, your headquarters, any and all persons whether alien or citizen whose presence therein is determined by you to be inimical to the national security.

“All orders for the exclusion of any such person shall contain a provision prohibiting any such excluded person from entering into or upon any of the several Military Areas prescribed by the designated Commanders of the Southern Defense Command and of the Eastern Defense Command.

“You are further authorized and directed to provide, or cause to be provided, medical aid, hospitalization, food, clothing, transportation, use of land, shelter, supplies, equipment, utilities, facilities and services to such excluded persons within and without the Western Defense Command as may be necessary in your judgment to accomplish the purpose of this order or of any exclusion order published by you.

“/s/ Henry L. Stimson

“Secretary of War”

13. On July IS, 1942, the Secretary of War addressed a communication to the defendant Commanding General in words and figures as follows:

“War Department “Washington

“July 15, 1942

“Dear General Dc Witt:

“I refer to Executive Order of the President No. 9066 dated February 19, 1942 and to your designation as a Military Commander for the Territory of the United States embraced within Western Defense Command to carry out the duties and responsibilities imposed by the mentioned Executive Order and authorizing and empowering you to take whatever steps may be necessary to discharge those duties and responsibilities.

“In order effectively to accomplish the exclusion from Military Areas of the Western Defense Command and from other similar areas, of persons whose presence therein is deemed dangerous to the national security, you are further authorized and empowered within the scope of the cited Executive Order, to prohibit any or all of such persons that is, persons who have been excluded by you from any military area of the Western Defense Command, from entering, being in or remaining in any other Military Areas of the United States prescribed pursuant to said Executive Order, including the Eastern Military Area in Eastern Defense Command and the Military Areas of the Southern Defense Command.

"/s/ Henry L. Stimson.

“Secretary of War”

13. (a) From the date of the declaration of the war, and until the recission of the Exclusion Order against plaintiff on March 22, 1944, there was a continued threat of external enemy attack by land, sea and air on the Pacific Coast, which was particularly in danger of hit-and-run attacks, Commando type raids, and enemy raids conducted for the purpose of destroying and disrupting Pacific Coast war industries. Sabotage and espionage in connection with such attacks were reasonably anticipated. The length of the coast line of Military Area No. 1 was a fact to be considered in estimating the possibility of such attacks being attempted and the precautions which must reasonably be taken to guard against them. At least six attacks by sea and air were made on or off the Pacific Coast by the enemy. Later 5.000 free balloons, carrying high explosives and incendiaries, were launched by the Japanese against the West Coast, and it is estimated that some 194 were actually found.

14. Within Military Areas Nos. 1 and 2, and during the.period last above mentioned, there was a large concentration of national defense material, premises and utilities, consisting of strategic Army and Navy installations and establishments, aircraft contracts being performed in the country, shipyards constructing a large portion of the ships being built in the United States, and many other plants producing vital war material, and vast timber resources which are of vital importance in the construction of war materials. Many thousands of troops were conducting maneuvers within Military Areas Nos. 1 and 2, and troops and supplies in large numbers and amounts were sailing for the ports of the Pacific Coast. Large portions of national defense resources and utilities were located in Military Areas Nos. 1 and 2. The manufacture of military supplies, the movement of ships, men and materials from the Pacific Coast ports to the Pacific battle fronts, and the use of California ports by Naval vessels for repair and outfitting, presented a likelihood of espionage and sabotage which made the prevention of sabotage and espionage within Military Areas Nos. 1 and 2 a matter of military necessity.

15. That plaintiff is a native-born citizen of the United States, and for five years prior to September 6, 1943, he was a resident of the City of San Diego, State of California.

16. It was General De Witt’s responsibility to select the procedure by which he would determine to exclude or not to exclude potentially dangerous persons from the said military areas. The Individual Exclusion Procedure adopted by General De Witt was expressly approved by the Secretary of War as were any amendments to the said procedure. The procedure so adopted and approved was specifically designed to meet the problem of removing from the sensitive areas of the Western Defense Command those persons whose presence within the said military areas would present a danger of espionage and sabotage. The removal of such persons was ordered and undertaken solely for the purpose of preventing the anticipated dangers from materializing.

17. The general overall procedure followed by the Western Defense Command in making individual exclusion orders, except for changes from time to time which were minor, was as follows:

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 recommend 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.

18. On October 18,1942, Assistant Chief of Staff of the Western Defense Command advised Assistant Chief of Staff, Civil Affairs Division, Western Defense Command, that from all the information available from the files of the Federal Bureau of Investigation, Office of Naval Intelligence, and of his own office, he was of the opinion that plaintiff should be excluded from the Western Defense Command; that, as a result, the Civil Affairs Division reviewed the G-2 File on plaintiff and recommended that he appear before an Individual Exclusion Hearing Board for the purpose of determining if military necessity required the exclusion of the plaintiff from military areas.

19. That pursuant to said recommendation of the Civil Affairs Division of the Western Defense Command, plaintiff, on or about October 26, 1942 was served with a summons in the words and figures as follows:

“Plaintiff’s Exhibit No. 1 “lieadquarters Western Defense Command and Fourth Army

“Individual Exclusion Hearing Board

“Presidio of San Francisco, California “October 26, 1942

“To: Homer Wilcox,

“1716 Union St., San Diego, California.

“1. You are hereby notified that a Board of Officers has been appointed by the Commanding General, Western Defense Command and Fourth Army, to consider the question whether military necessity requires the issuance of an order excluding you from certain Military Areas of the Western Defense Command and similar areas prescribed pursuant to Executive Order 9066, dated February 19, 1942, Public Proclamations Nos. 1 and 2, this headquarters dated March 2, 1942, and March 16, 1942, respectively, and special instructions of the Secretary of War.

“2. You are further notified that on Tuesday the 3 day of November, 1942, at the hour of 3:00 P. M., this Board will be convened at Room 935, Bank of America Bldg., San Diego, California, and that you may, if you so elect, appear before it at that time for the purpose of being informed of the general nature and scope of the inquiry and afforded an opportunity to present evidence in your own behalf and to answer questions or make a statement under oath or affirmation. Material in the hands of the Board will not be made available for your inspection.

“3. It is requested that you advise the Board, in writing, at least 24 hours in advance of the hearing whether you will appear.

“4. For your information and guidance the following are pertinent regulations concerning the conduct of this investigation;

“a. All matters pertaining to the inquiry are confidential and no publicity will be given them by the Board.

“b. Your appearance before this Board is optional on your part.

“c. You may be accompanied by counsel to act only as your personal advisor. He will not be heard by the Board nor permitted to examine witnesses. In general, the interrogation of witnesses will be conducted by the Recorder, on behalf of yourself and the Board.

“d. You may refuse to answer any questions asked by the Board, without assigning any specific reason for your refusal.

“e. Any evidentiary statements by you before the Board must be under oath or affirmation.

“f. This inquiry by the Board is in no sense a criminal proceeding; you are not charged herein with the commission of any penal offense. For your information, Congress has by the enactment of Public Law 503, 77th Congress, approved March 21, 1942, provided penalties for the violation of an order of exclusion. The act in question reads as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to i fine of not to exceed $5,000.00 or to imprisonment for not more than one year, or both, for each offense.”

“Frank A. Meek

“Lt. Col. F. A.

“President”

20. That at the time said summons was served on plaintiff, a questionnaire was served on him, which advised him that the information requested therein would be helpful to the Board for determining whether plaintiff should be excluded, which questionnaire plaintiff completed voluntarily and filed with the Board at the time he appeared before it; that said questionnaire contained information relating to his background, association, and activities.

21. That in accordance with the summons aforesaid, the Board of Officers, all of whom were attached to the Western Defense Command and under the command of defendant, Lt. General De Witt, convened at San Diego, California, on November 3, 1942, before whom plaintiff appeared in response to said summons with his counsel and two friends. At the outset of the hearing one of said officers who acted-as President of the Board read to plaintiff a statement similar .to the contents of the summons theretofore served upon him and advised him what the Board was concerned with and extended to him an opportunity to testify and to adduce other evidence “if you wish, in regard to your background, associations and activities in substance as follows: (a) your birthplace, education, occupation, military service, citizenship, marital status and family background; (b) the circumstances surrounding your membership in Mankind United and “the nature of your duties and activities arising out of your position as Bureau Manager for Mankind United.” Plaintiff appeared at said time and place and submitted to interrogation under affirmation. Two witnesses who accompanied plaintiff were not permitted to enter the hearing room, nor be present at the hearing, but plaintiff’s attorney was permitted to be present at the hearing, although not permitted to conduct any interrogation of witnesses other than the plaintiff.

Thereafter at the conclusion of said hearing the said Board of Officers as a result of said hearing on November 3, 1942, made the following findings and recommendations to the Commanding General through the Assistant Chief of Staff, Civil Affairs Division:

“The Board having carefully considered the evidence before it finds:

“That he is a native born American citizen, having been born in Somerton, Belmont County, Ohio, on December 21, 1887.

“That he was vague, indefinite and evasive concerning his marriage but says he has a son now. twenty-nine years of age, from whom he has not heard for the past ten years.

“That he ' is the manager of the local ‘Beacon’ in San Diego, California, of an organization known as ‘Mankind United.’

“That this organization is religious in character, and he, as the manager of the local branch is in what might be termed a-‘religious racket’. The Board is convinced', from the testimony that he is a ‘religious-hypocrite’ using his organization as a means of extricating money from the unwary and. credulous, under the guise of religion.

“That he has no connections, contacts or communication with any person known to-be subversive, or having subversive tendencies.

“That he was diffident, vague and indefinite in the manner in which he gave his testimony in answer to many questions propounded by the Board, and this was undoubtedly based upon a fear that he might be prosecuted for his so-called ‘religious activities’.

“That the file contained no information that he ever taught, preached or spoke against the best interests of the United' States, or that he ever advised any of the ‘members’ of his organization to violate the Selective Training and Service Act, 5ft U.S.C.A.Appendix, § 301 et seq.

“That he is erratic and egotistical, and can very well be termed a ‘crack-pot.’

“While a majority of the Board do not sympathize with his manner of earning a. living and while it is suspicious of his activities, and feels that he may have transgressed against the law in his preaching, nurturing and fostering of the religious-organization known as ‘Mankind United,’ nevertheless, this does not render him potentially dangerous to the military efforts of the United States, and he therefore-should not be excluded.

“Recommendations:

“In view of the above findings the Board recommends:

“1. That no Order of Exclusion be entered against Homer Glen Wilcox.”

23. On November 13, 1942, the United States Attorney for the Southern ^.strict of California advised the Western Defense Command that he had reviewed the proceedings had at the Exclusion Hearing by the above mentioned Board concerning the plaintiff and dissented from the Recommendations of the Board, and recommended that further investigation should be made of the subject.

24. On November 24, 1942, the officers who constituted the Board which conducted the hearing on November 3, 1942, as heretofore set forth, addressed the following communication to the Western Defense Command:

“Western Defense Command and Fourth Army

“Wartime Civil Control Administration “Office of the Director “1231 Market Street “San Francisco, California

“24 November 1942 “201-Wilcox, Homer C. (Civ.)

“Case No. V-7

“Subject: G-2 Memorandum ‘Mankind

United’

“dated November 21, 1942.

“To: Assistant Chief of Staff. CAD.

“1. The Individual Exclusion Hearing Board heard the case of Homer G. Wilcox, Case No. V-7, at San Diego, California, on November 3, 1942, and thereafter prepared its findings and recommendations in which no exclusion was recommended.

“2. On or about November 21, 1942, on the return of the Board to San Francisco, the above-mentioned memorandum prepared by G-2 Section, with attachments, was delivered to the Board.

“3. The Board has carefully considered this memorandum. It has reconsidered the entire file and the evidence adduced at the original hearing, and it is still of the same opinion that no exclusion order should be issued in this case. And, the Board still feels that Wilcox is a harmless ‘crack-pot’ interested in this organization purely for financial reasons. Attention is directed to paragraphs 10 of the above mentioned memorandum which indicates that the F. B. I. is investigating the members of ‘Mankind United’ for mail fraud.

“4. It is worthy of mention that Mr. Hood, Special Agent in Charge of the Los

Angeles office of the F. B. I. on November 8, 1942, informed the then President of the Individual Exclusion Hearing Board that the F. B. I. was presenting evidence against all of the leaders of ‘Mankind United’ looking toward indictments for using the mails to defraud, and he indicated strongly that ‘Mankind United’ was a money-making racket.”

“Frank E. Meek,

“Lt. Col. F. A.

“Harry N. Deyo,

“Lt. Col., J. A. G. D.

“Colbert C. McClain,

“Lt. Col., F. A.”

25. That the Administrative file of the Western Defense Command discloses that on December 17, 1942, plaintiff, together with other persons connected with Mankind United was indicted by the Federal Grand Jury for the Southern District of California for a violation of Section 34, U.S.C.A.; Tille 50 (Conspiracy to Commit Sedition).

26. In conformity with the procedure established and customarily followed by the Western Defense Command with respect to Individual Exclusion cases, which was set up by the Commanding General of the Western Defense Command, the various reports of the Federal Intelligence Agencies of the United States Government, based upon investigations conducted, relating to plaintiff’s activities, which become a part of the Administrative File of the Western Defense Command of Homer Glen Wilcox, the findings and recommendations of the Board, the recommendations of the United States Attorney for the Southern District of California, and the recommendation of the Assistant Chief of Staff, G-2' of the Western Defense Command were reviewed by the Civil Affairs Division of the Western Defense Command, and on December 21, 1942, the Assistant Chief of Staff of the Civil Affairs Division of the Western Defense Command recommended to defendant Lt. Gen. John L. De Witt that an Individual Exclusion Order be issued against plaintiff; that the United States Attorney for the Southern District of California concurred in the recommendation

that plaintiff be excluded from the military-areas; that ultimately such findings and recommendations, and the entire Administrative File of plaintiff were submitted to the Commanding General. The function of the Board of Officers and that of staff sections and officers passing upon plaintiff’s exclusion case was advisory only and was for the purpose of advising the Commanding General as to whether or not those individuals whose cases they reviewed should be excluded.

27. Thereafter, on December 28, 1942, after a study of the Reports of Intelligence Agencies of the United States Government concerning plaintiff, the entire Administrative File of Homer Glen Wilcox, the information received from the questionnaire filed by plaintiff with the Boardj the testimony of the Board hearing on November 3, 1942, the appraisals and recommendations made by the Board, by other staff sections and officers, and by the United States District Attorney for the Southern District of California, defendant, Lt. Gen. John L. De Witt issued Exclusion Order V-7, which order was in words and figures as follows:

“Headquarters Western Defense Command and Fourth Army “Presidio of San Francisco, Calif. “Individual Exclusion Order

“Dec. 28. 1942

“No. V-7

“To: Homer Glen Wilcox “1716 Union Street “San Diego, California “Under authority of Executive Order No. 9066, February 19, 1942 and letter of the Secretary of War, February 20, 1942, and pursuant to a determination that the present action is dictated by military necessity, you are hereby prohibited, after the expiration of ten days from 12:00 o’clock midnight of the day you receive this order, from being in, remaining in -or entering into Military Areas Nos. 1 and 2 (comprising the State of Arizona, California, Oregon and Washington), Western Defense Command, as established by Public Proclamations Nos. 1 and 2, this headquarters, dated March 2, 1942, and March 16, 1942, respectively, and any amendments thereto. This proclamation extends to any zones or areas which may hereafter be similarly designated, defined and established, but as to such additional zones or areas a period of ten days from and after the date of the proclamation establishing such additional zones or areas is permitted you to comply with this prohibition. This prohibition shall continue in force until revoked in writing by proper authority.

“Under authority of Executive Order No. 9066, February 19, 1942, and letter of the Secretary of War, July 15, 1942, and pursuant to a ■ determination that the present action is dictated by military necessity, you are also hereby prohibited from entering into, being in, or remaining in, at any time from and after midnight of the date upon which you receive this order, Eastern Military Area, comprising the States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, the District of Columbia and part of the State of Florida, as defined and designated by Proclamation No. 1, dated May 16, 1942, Headquarters Eastern Defense Command and First Army, Governors Island, New York, H. A. Drum, Lieutenant General, U. S. Army, Commanding, and from entering into, being in, or remaining in, from and after said time and date, Military Area No. 1 of Florida Military Area No. 1 of Alabama, Military Area No. 1 of Mississippi, Military Area No. 1 of Louisiana, Military Area No. 1 of Texas, and Military Area No. 1 of Mexico, as defined and designated by Public Proclamation No. 1, dated May 30, 1942, Headquarters, Southern Defense Command, San Antonio, Texas, Walter Krueger, Lieutenant General, U. S. Army Commanding.

“Within forty-eight hours after service upon you of this order you are required to report in person to a representative of this headquarters at such place as may be designated by the person serving this order, to make arrangements for compliance herewith, and at that time have your photograph, finger prints and a specimen signature taken.

“Prior to your departure in compliance herewith you will communicate in writing to Wartime Civic Control Administration, Western Defense Command and Fourth Army, 1231 Market Street, San Francisco, California, the time of your proposed departure, initial and ultimate destinations, route to be followed and mode of travel; upon arrival at ultimate destination, you will, in person report the fact of your arrival and your address at such destination to the Special Agent-in-Charge of the nearest office of the Federal Bureau of Investigation, Department of Justice.

“Failure to comply with the foregoing will subject you to the criminal penalties provided by Public Law No. 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.”

“/s/ J. L. DeWITT (typed)

“J. L. DeWITT (printex) “Lieutenant General U. S.

“Army

“Commanding.”

28. At no point in any of the proceedings before the said Board or the other military agencies or officers or the United States Attorney was the plaintiff afforded an opportunity to cross-examine witnesses, or to know the source or content of the information against him upon which any of said officers or persons were relying, nor was he afforded any opportunity to meet such adverse information nor was he permitted to know the name of informants against him.

29. Said Individual Exclusion Order V-7 was served on plaintiff on January 22, 1943. At the same time plaintiff was served with another document, a “Stay Order,” dated January 14, 1943, modifying and staying the original Order V-7, permitting him to remain in Military Areas Nos. 1 and 2 under certain security conditions, and requiring him to leave the said areas at the conclusion of the trial of Criminal Case No. 15758, which order was in words and figures as follows:

“Headquarters Western Defense Command and Fourth Army “Presidio of San Francisco, Calif. “Office of the Commanding General “January 14, 1943

“201-Wilcox, Homer “No. V-7

“To: Homer Wilcox

“1716 Union St.,

“San Diego, Calif.

“The United States Attorney for the Southern District of California has informed the Commanding General, Western Defense Command and Fourth Army, that a felony charge of sedition has been filed against you, that arraignment on this charge is set for January 18, 1943, and that the trial date is March 16, 1943, at Los Angeles.

“Permission is hereby given for you to remain in the military areas of the Western Defense Command from which you have been excluded only until the trial is concluded, irrespective of whether Judgment is reached or an appeal taken. Such permission is granted upon the following conditions:

“a. That immediately upon receipt of this letter, you report in person to the Special Agent-in-Charge, Federal Bureau of Investigation, at San Diego or Los Angeles, and inform him of the place at which you will reside during the continuance of your presence in the said Western Defense Command military areas under this conditional permit;

“b. That while within those military areas from which you have been excluded, you are to remain at your place of residence between the hours of 8:00 P. M. and 6:00 A. M., and at all other times, in the absence of special permission obtained from this headquarters, you are to remain within a distance of not more than five miles from your place of residence;

“c. That nothing in paragraph b, above shall be construed to prohibit you from visiting your legal counsel, the United States Attorney at Los Angeles, or the Special Agent-in-Charge, Federal Bureau of Investigation, at San Diego or Los Angeles, for the purpose of transacting any business, or of making any arrangements necessary for your defense to said action

“d. That while within the “prohibited areas” you are to report in person semiweekly to the Special Agent-in-Charge, Federal Bureau of Investigation, at San Diego or Los Angeles;

“e. That you depart from said Western Defense Command military areas from which you have been excluded immediately upon the conclusion of your trial unless you are in confinement by federal authority. If you are thereafter released from such confinement, you will immediately so depart. Prior to such departure, you will report in person to the Special Agent-in-Charge, Federal Bureau of Investigation, at San Diego, and notify him of the hour and date of your departure from San Diego, your destination, your route and means of travel. Upon arrival at your destination you will immediately notify, by telegram, the Special Agent-in-Charge, Federal Bureau of Investigation, at San Diego;

“f. That you travel from San Diego to your destination outside the military areas from which you have been excluded, by the most direct route available, and by common carrier; and

“g. The provisions of the Individual Exclusion Order by which you are excluded from certain military areas remain in full force and effect, and are temporarily modified only to the extent of the special permission granted to you hereby to remain in a portion of said areas for the sole purpose of defending yourself on this charge of sedition.

“Failure to comply with the terms of the Individual Exclusion Order, as modified by the aforementioned conditions, will subject you 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.’

“You will acknowledge receipt of this memorandum on the duplicate copy hereof in the place provided therefor and you will return it to these headquarters in the self-addressed and postage-free envelope provided for your convenience.

“(.Signed) J. L. DéWITT “J. L. DeWITT

“Lieutenant General, U. S. Army “Commanding.”

30. On March 25, 1943, plaintiff filed a complaint in the United States District Court for the Southern District of California at Los Angeles, entitled: “Homer Glen Wilcox, plaintiff, v. Lt. General John L. De Witt, Lt. Colonel Frank E. Meek, Lt. Col. Colbert C. McClain, Lt. Col. Harry N. Dayo, H. Hathan, L. A. Ducommon and F. C. Dorwart, Defendants,” initially numbered 2827-PH Civil and finally designated No. 283 S.D.Civ. Said complaint contained two causes of action. By the first cause of action, the plaintiff Wilcox claimed that the Exclusion Order V-7 of December 28, 1942 (paragraph 27 hereof), and that the Stay Order of January 14, 1943 (paragraph 29 hereof), were both void as being in violation of the Constitutional rights of the plaintiff under the First and Fifth Amendments to the U. S. Constitution.

31. It was alleged in paragraph XIV thereof that “the defendants have since January 22, 1943, enforced and are enforcing said orders at the present time; and they have threatened and they intend to, carry out and enforce said orders and each of them ; and will unless restrained from so doing by order of this Court carry out and execute each of said orders.”

32. By the Second Cause of Action in said complaint plaintiff sought damages asserting that (Paragraph I) “the acts of defendant in issuing and enforcing the orders aforesaid were committed maliciously, wantonly, oppressively and in a reckless disregard of the rights of plaintiff, by virtue whereof the plaintiff is entitled to punitive damages” and in Paragraph II, “that plaintiff has sustained actual damages by reason of the deprivation of his constitutional rights, and of mental pain, anguish, and suffering, and damage to his reputation, in the sum of $50,000.”

33. Said complaint sought ■ a judgment declaring said Exclusion Order and said Stay Order., to be void and unconstitutional and a Temporary Restraining Order and Permanent Injunction restraining llieir enforcement, “directly or indirectly by any means, method or device whatsoever from executing or causing to be executed or compelling plaintiff to execute said orders.”

34. The plaintiff in said action sought judgment for actual damages in the sum of $50,000 and exemplary damages in the sum of $5,000.

35. That the defendant was never generally advised by the United States Department of Justice or the Attorney General that the procedure used by him prior to issuing individual exclusion orders violated the constitutional rights of a subject, but was informed by the War Department in April, 1943, that in connection with the request for the prosecution of said individual excludees of the Eastern and Western Defense Commands under Public Law 503 for violation of Exclusion Orders, the Attorney General had expressed an opinion that the Exclusion Oiders would not be sustained by the Federal Courts in a criminal proceeding under Public Law 503, because the procedure would not permit a full disclosure of all adverse information or permit the subjects to be confronted by the witnesses against them. The Judge Advocate General of tile Army and tile staff Judge Advocate of the defendant Commanding General had advised at the time of the adoption of the individual exclusion procedure that it was constitutional because it accorded to a subject procedural due process of law to the greatest extent commensurate with the accomplishment of the duties delegated to defendant under Executive Order 9066.

36. With respect to the authority of the Army to enforce its exclusion orders, the Attorney General advised as did the Judge Advocate General, that if the Military Authorities believed recalcitrant excludees to be sufficiently dangerous to the military security of military areas they had the express power to exclude them by force under Executive Order 9066.

37. On May 6, 1943, plaintiff and 15 others were convicted of conspiracy to commit sedition in the criminal proceeding bearing number 15759, entitled United States v. Bell et al., D.C.S.D.Cal., 48 F. Supp. 986. Plaintiff was sentenced by the Court to five years in a Federal Penitentiary to be selected by the Attorney General. Plaintiff was one of the four persons convicted who were sentenced for a period of five years. On May 10, 1943, plaintiff (defendant therein) filed a written notice of appeal to the Ninth Circuit Court of Appeals, and upon application to the District Court was released on bail pending said appeal, as were the other appealing defendants.

38. Said appeal is now pending and plaintiff is at liberty on bail. All of the cases of those who had been indicted had been considered by the Counter-Intelligence Branch of the Western-Defense Command, but none of the convicted defendants were excluded from the military areas except plaintiff.

39. That of the four persons so con victed and receiving a sentence of five years, three of them including the affiant were released on bail in the sum of $5,000, and one in the sum of $15,000. None of the said persons except the plaintiff herein and no other associate of Mankind United except the plaintiff herein, was ordered excluded from California or the Pacific Coast, under individual military exclusion orders, or at all.

40. Plaintiff did not leave Military Area Nos. 1 and 2 upon the conclusion of the sedition trial which was contrary to the directions to him contained in the terms of said stay order and said Exclusion Order V-7. The plaintiff’s suit for injunction filed March 25, 1943, was still pending and no Judgment was entered therein until November 15, 1948.

41. On May 12, 1943, the defendant Lt. Gen. John L. De Witt asked the War Department to request the United States Department of Justice to prosecute plaintiff under Public Law 503 for refusing to comply with Individual Exclusion Order V-7 and the “stay order,” which request was conveyed to the Attorney General of the United States by letter dated May 18, 1943.

42. On May 20, 1943, the Hon. Harry A. Hollzer, Judge of the United States District Court in said case of Wilcox v. DeWitt et al., 283, before whom the matter had been assigned for hearing, and after hearing on April 26, 1943, plaintiff’s application for injunction pendente lite and defendant’s motion to dismiss and to strike and for other relief, filed a memo of conclusion as follows:

“Memorandum of Conclusion

“Judge Hollzer, May 20, 1943

“It appearing that the complaint originally filed herein consisted of two counts, that under the first count plaintiff has sought equitable relief, more particularly an injunction decreeing that certain military exclusion orders are void and also an adjudication enjoining the defendants from executing said orders or causing the same to be executed, and that in said first count plaintiff has alleged, among other matters, that the execution of said orders has damaged him financially and that the threatened execution of the same will damage him further financially; and

“It further appearing that under the second count of said complaint plaintiff has sought to recover damages in the sum of $50,000.00 against the defendants by reason of the issuance and enforcement and threatened enforcement of said orders; and

“It further appearing that plaintiff has applied for an injunction pendente lite herein; and

“It further appearing that the only defendants who have been served herein are Lt. Gen. John L. DeWitt, also Messrs. H. Nathan and F. C. Dorward, the latter being agents of the Federal Bureau of Investigation, and that motions have been submitted on behalf of said defendants for an order dismissing the within entitled action, also for an order striking the second count from said complaint, and also for an order striking various portions of the first count; and

“It further appearing that shortly after the conclusion of the oral argument upon said application for an injunction pendente lite and upon said motions counsel for the respective parties joined in a request to the effect that the court defer decision upon said matters until after the conclusion of the trial of that certain criminal cause wherein this plaintiff is one of the defendants, said cause being entitled United States v. Bell et al., D.C., 48 F.Supp. 986, and being designated as number 15759 upon the records of this court, and that thereafter and subsequent to the conclusion of the trial of said criminal cause counsel again requested that a decision upon said matters be deferred until after May 15, 1943, and

“It further appearing that thereafter and by leave of court plaintiff has filed herein a supplemental complaint setting forth, among other matters, that a verdict was returned in said criminal cause on May 6, 1943, finding plaintiff herein guilty of a violation of Section 34, Title 50, United States Code Annotated, also alleging that on May 10, 1943, judgment and sentence were pronounced against said plaintiff in said criminal cause to the effect that he be committed for imprisonment for a period of five years in an institution of the penitentiary type and further alleging that on the same day said plaintiff filed written notice of appeal from said judgment and sentence, and also obtained his release upon bail pending said appeal; and

“It further appearing that thereafter and upon application of said plaintiff an order was made herein dismissing the second count of said complaint; and

“It further appearing that the acts complained of herein, and which plaintiff alleges damaged him financially were performed by the defendants in the course of official duty as officers of the United States, pursuant to military orders issued by virtue of authority granted by the President of the United States to the officer issuing such orders, and under an executive order promulgated by the President in conformity with certain legislation enacted by the Congress of the United States; and

“It further appearing that the acts complained of against the defendants Nathan and Dorward were performed by them in relation to matters committed by law to their supervision and within their jurisdiction and were done in the discharge of official duty; and

“It further appearing that the acts complained of against the defendant General De Witt were performed by him in relation to matters committed by law to his supervision and discretion and within his jurisdiction and were done in the discharge of official duty.

“The Court Concludes that the defendants are not nor is any of them liable in damages to plaintiff for the acts complained of herein.

“The Court Further Concludes that the following portions of the first count should be stricken therefrom, to-wit, beginning with the words, “The execution of said order” on page 10, line 31, down to and including the end of Paragraph XIV of said first count.

“The Court Further Concludes that this cause should be set for an early trial on the merits, to-wit on June 15, 1943 also that plaintiff’s application for Injunction pendente lite should be denied, without prejudice to plaintiff applying for injunctive relief at the trial, and that defendant’s remaining motions should be denied, without prejudice to renewing the same at the trial.

“Copies to counsel.

“[Endorsed] Filed May 20, 1943”

43. On the same day, to wit, May 20, 1943, and prior to filing said memorandum of conclusions, the plaintiff dismissed the •second cause of action for damages without prejudice with the approval of the Court as follows:

“Dismissal Without Prejudice and Order “Comes now the plaintiff and dismisses, without prejudice his Second Cause of Action, denominated in his complaint as, “A separate and further cause of action.”

“Lorrin Andrews,

“Attorney for Plaintiff.

“Order

“Good cause appearing therefor, It is Hereby Ordered that the Plaintiff’s Second Cause of Action be, and hereby is, dismissed without prejudice.

“Dated at San Diego, this 20th day of May 1943.

“H. A. Hollzer,

“United States District Judge”

44. Thereafter, in May, 1943, defendant Lt. Gen. John L. De Witt requested the War Department for authority to physically remove plaintiff by use of military personnel, and pursuant to this request, the War Department authorized Lt. Gen. John L. De Witt to exclude plaintiff from California by force. The Judge Advocate General of the Army advised the War Department that military commanders, designated under Executive Order 9066, had the constitutional authority and power to execute by military force, if necessary, orders which they had issued pursuant to said Executive Order, and that this opinion had been confirmed by recent decisions of the United States Supreme Court.

45. On May 21, 1943, the Assistant Secretary of War, John J. McCloy, by radio, authorized defendant to remove plaintiff from the prohibited areas by means of United States armed guard, if necessary, and to advise the United States District Judge of the plan and purpose thereof, but that if the Judge did not concur, to advise Mr. McCloy pending additional instruction.

46. There is no evidence that the defendant, in compliance therewith or at all did “advise the United States District Judge of the plan and purpose” to remove plaintiff by armed guard or force. And the presumption being that the only evidence before the Judge was record evidence, it must be concluded as an undisputed fact that said plan and purpose to remove plaintiff by force was never communicated to the Judge who has since deceased.

47. On May 31, 1943, the defendant addressed a communication dated May 29, 1943, to the plaintiff further staying the said Exclusion Order V-7 on conditions which were substantially the same as those contained in the Stay Order of January 22, 1943, until the conclusion of the trial of said injunction suit.

48. On June 7, 1943, an answer was filed by defendant in Wilcox v. DeWitt, No. 283, in which by paragraph XI thereof in response to the allegations of paragraph XIV of the complaint in case 283, (Par. 31 hereof) defendant admitted and denied as follows:

“The defendants admit each and every averment of paragraph XIV of the Complaint as modified by order of this Court striking out certain averments, except defendants deny the averment that execution of said orders up to the present time have damaged the plaintiff in excess of the sum of $3,000,000 exclusive of interests and costs.”

49. The allegations of the complaint which were stricken as referred to in said paragraph XI of said answer asserted damages to the plaintiff because of the making of the “Letter-Order” or “Stay Order” (paragraph 29 hereof) as distinguished from the Exclusion Order V-7 (paragraph 27 hereof).

50. Pursuant to the request of the War Department to the Department of Justice to prosecute plaintiff unde