American Civil Liberties Union
American legal organization dedicated to protecting individual rights and liberties, particularly First Amendment rights, rights to equal protection under the law, rights to due process, and rights to privacy. The American Civil Liberties Union (ACLU) played an important but conflicted role in challenging the exclusion of Japanese Americans during World War II, hamstrung by an ideological split among its board members and between the national organization and some of its branches.
The ACLU was founded in January 1920 from the remains of a group called the American Union Against Militarism (AUAM), which had formed a few years prior to protect the rights of conscientious objectors in World War I. Roger Baldwin was the founding director, a post he would hold for some thirty years, and the key figure in the organization. In addition to defending conscientious objectors, the new organization took on cases involving free speech, labor organization, and discrimination against African Americans.
On the eve of the war, the ACLU had 5,000 members, but held a higher profile and greater influence than the numbers would suggest. A good part of this influence was due to the organization's gradual transformation from its adversarial roots to a mainstream liberal organization with close ties to the administration of Franklin D. Roosevelt. Baldwin answered to a twenty-five person board of directors that included members harboring diverse political perspectives. The organization was centered in New York—where nearly all of its board members lived—but had branches around the country. Two of the branches were on the West Coast: a Los Angeles branch that was headed by Clinton Taft and that also employed A.L. Wirin as its part time legal counsel; and a San Francisco branch that was led by Ernest Besig. In large part because of the close friendship between Wirin and Baldwin, the former tended to hew to organizational dictates, while the latter often acted independently, with Besig and Baldwin often at odds.
Organizational Split Over Executive Order 9066
A month after the attack on Pearl Harbor, on January 20, 1942, Baldwin was briefed about plans for the mass removal of West Coast Japanese Americans by Justice Department lawyer James Rowe and alerted that the Tolan Committee hearings would be forthcoming. In response, he suggested that West Coast ACLU branches sponsor "public meetings" that might help to increase tolerance. After Executive Order 9066 was issued a month later, he sought a meeting with Western Defense Command head John DeWitt and also tried to meet with Japanese American organizations to offer ACLU's support for any court challenges to the exclusion. Nothing came of these efforts, as DeWitt ignored their requests and no Japanese Americans were willing at that point to step forward and mount a legal challenge. On March 20, as the government prepared plans for mass exclusion, Baldwin on behalf of the board sent a letter to President Franklin D. Roosevelt citing EO9066 as as "open to grave question on the constitutional grounds of depriving American citizens of their liberty and use of their property without due process of law." The letter also called for individual loyalty hearings for Japanese Americans.
The letter triggered a split in the ACLU board. The first group held absolutist views on issues of free speech, was inherently suspicious of the government and favored a direct challenge to EO9066; the second was more reluctant to challenge governmental authority in a time of war. The second group was an unlikely coalition of conservatives who argued for deferring to the president and military, liberals reluctant to challenge liberal icon FDR, and leftists whose priority was to throw their full support behind the war effort to defeat totalitarianism. Some even favored the incarceration of at least some Japanese Americans.
In an attempt to resolve the split, Baldwin had the two sides each produce a resolution for the May 11 board meeting. The more activist faction produced a resolution calling for opposition "in the absence of immediate military authority" of any order giving authority to remove any group of citizens from their homes. The resolution of the more conservative faction acknowledged the government's right to establish military zones from which people may be removed "when their presence may endanger national security." A vote by the board and ACLU national committee resulted in a 2–1 vote in favor of the latter. On June 22, Baldwin sent instructions to the West Coast offices instructing them that "local committees are not free to sponsor cases in which the position is taken that the government has no constitutional right to remove citizens from military areas."
The Test Cases
By this time, the West Coast offices had begun involvement in various test cases, and this decision put in crimp in these challenges. In April, the ACLU learned about the Minoru Yasui case (see Yasui v. U.S.), but opted not to assist, both because they were not asked and because of concerns about Yasui's prewar employment at a Japanese consular office prior to the war. However, the West Coast offices had taken steps to support the cases of Ernest Kinzo Wakayama, Gordon Hirabayashi and Fred Korematsu. (See Hirabayashi v. U.S., and Korematsu v. U.S.) Wirin of the Los Angeles office and the lawyer for Wakayama, obeyed the order agreeing to challenge his exclusion on other grounds. In Hirabayashi's case, a local support committee was formed to continue the case without the Seattle office's direct participation.
However, the Northern California branch continued its steadfast support of the Korematsu case, arguing that, since it had taken on the case before the June 22 decree, the decree did not apply. Besig had also developed a close personal friendship with Korematsu, hardening his and his board's desire to fight on. "We don't intend to trim our sails to suit the Board's vacillating policy," Besig wrote to ACLU General Counsel Clifford Forster on July 10. Wayne Collins, the firebrand lawyer hired by Besig to represent Korematsu, launched a direct attack on the constitutionality of EO9066 in contradiction of the instructions from the national office.
The dispute between the Northern California office and the national board continued through the appeals process. The board refused to support Yasui's appeal over Besig's objections and also refused to file an amicus brief for Hirabayashi's appeal. Collins continued to directly challenge the constitutionality of EO9066 in his arguments on behalf of Korematsu, leading to the board threatening to disaffiliate the San Francisco branch. Later, in 1944, Besig visited post segregation Tule Lake to investigate conditions in the stockade against the wishes of Baldwin and the national board who enjoyed close ties with the War Relocation Authority. Though this action eventually led to the release of those held in the stockade, it further eroded relations between the national board and the Northern California office. While Besig and Collins continued to monitor conditions at Tule Lake (including beatings and the reopening of the stockade in 1945), the national office continued to discourage their efforts. The Northern California affiliate also worked with other disaffected affiliates to mostly unsuccessfully try to increase the influence of local affiliates in the national organization.
The ACLU did eventually support the test cases in the Supreme Court in ways that did not challenge the constitutionality of EO9066. In the Hirabayashi case, the ACLU provided $1,000 in funding, over a third of the budget of the Supreme Court case. ACLU Director Baldwin replaced the lead lawyer in the case and ACLU General Counsel Osmond Fraenkel rewrote the brief in part to conform to ACLU policies. The Northern California ACLU office submitted an amicus brief authored by Wayne Collins that violated ACLU policy and further inflamed the tensions between the Northern California and national offices. A. L. Wirin of the Southern California office was one of the lawyers who argued the Yasui case before the Supreme Court, keeping his arguments within ACLU policy. Baldwin sought to replace Collins on the Korematsu case, failing to do so, but succeeding in at least getting Collins to share his time before the Supreme Court with Charles Horsky, who had submitted an amicus brief on behalf of the ACLU. For the Endo case, the ACLU's Fraenkel authored an amicus brief, while Collins submitted a brief for the Northern California office.
The reasons for the ACLU's not aggressively challenging EO9066 were many. In addition to the close ties many on the national board held with the administration, there were also geographical and racial biases held by the East Coast board on what was seen as a West Coast issue, as well as a desire for propriety that came with the national organization's more mainstream leanings. Legal historian Peter Irons argues that the decision not to directly challenge the constitutionality of EO9066 "crippled the effective presentation of these appeals to the Supreme Court." On the other hand, ACLU historian Samuel Walker, while acknowledging the organization's split, considers their actions to be "a shining moment," since "[a]lmost alone it challenged this wholesale violation of individual rights."
After the war, Collins and Besig defended Nisei renunciants at Tule Lake against the wishes of the national organization. (See renunciation of citizenship.) Working out of the Southern California office, Wirin represented Japanese Americans who successfully challenged alien land laws (see Oyama v. California.) and a law restricting issuing fishing licenses to Issei. Some branches also worked with church groups and social service organizations to assist Japanese American resettlers and returnees to the West Coast.
For More Information
American Civil Liberties Union. http://www.aclu.org//.
American Civil Liberties Union of Northern California. http://www.aclunc.org/.
American Civil Liberties Union of Southern California. http://www.aclu-sc.org/.
Bangarth, Stephanie D. Voices Raised in Protest: Defending Citizens of Japanese Ancestry in North America, 1942–49. Vancouver: UBC Press, 2008.
Drinnon, Richard. Keeper of Concentration Camps: Dillon S. Myer and American Racism. Berkeley: University of California Press, 1987.
Irons, Peter. Justice at War: The Story of the Japanese American Internment Cases. New York: Oxford University Press, 1983.
Kutulas, Judy. "In Quest of Autonomy: The Northern California Affiliate of the American Civil Liberties Union and World War II." Pacific Historical Review 67.2 (May 1998): 201–31.
———. The American Civil Liberties Union & The Making of Modern Liberalism, 1930–1960. Chapel Hill: The University of North Carolina Press, 2006.
Robinson, Greg. "Norman Thomas and the Struggle against Internment." Prospects 29 (2004): 419–34.
Walker, Samuel. In Defense of American Liberties: A History of the ACLU. Second edition. Carbondale: Southern Illinois University Press, 1999.
- Stephanie Bangarth, Voices Raised in Protest: Defending Citizens of Japanese Ancestry in North America, 1942–49. (Vancouver: UBC Press, 2008): 53.
- Peter Irons, Justice at War: The Story of the Japanese American Internment Cases (New York: Oxford University Press, 1983), p. 130; Samuel Walker, In Defense of American Liberties: A History of the ACLU, Second Edition (Carbondale: Southern Illinois University Press, 1999), 140–41.
- Bangarth, Voices Raised in Protest, 58.
- Historian Richard Drinnon describes—and excoriates—the alliance between the ACLU, JACL and WRA; see Drinnon's Keeper of Concentration Camps: Dillon S. Myer and American Racism (Berkeley: University of California Press, 1987).
- Irons, Justice at War, p. ix.
- Walker, In Defense, 135.