III.     ARGUMENT

A.      False Allegations of a Threatened Coastal Invasion Were Central to the Government’s Defense of Its Curfew and Mass Exclusion Orders in Hirabayashi as well as to the Supreme Court’s Approval of the Curfew.

The concept of "invasion" played a central rhetorical and legal role in the government’s defense of the curfew and mass removal orders in Hirabayashi. The term appeared not as a passing reference but as the linchpin of the argument that these measures were necessary to protect the United States from a foreign military threat. Crucially, the government advanced this argument without opening its rationale to scrutiny, relying on the doctrine of judicial notice to encourage the Court to accept its characterizations.[5]

The references to “invasion” in the government’s Supreme Court brief in Hirabayashi are too numerous to quote here in their entirety, but the following passages capture their centrality and urgency:

●       “The principal danger to be apprehended was a Japanese invasion, and the possible assistance to attacking Japanese forces would be most likely to come from the Japanese residing on the West Coast.”[6]

●       “At the time of the initiation of the evacuation program here in issue, it was the utmost military importance to prepare against an invasion of the Pacific Coast.”[7]

●       “Faced with the responsibility of repelling a possible Japanese invasion which might have threatened the very integrity of our nation... it was the duty of the commanding general to take into account the plain fact that over 100,000 Japanese were grouped along the coast.”[8]

●       “What was needed was a method of removing at once the unknown number of Japanese persons who might assist a Japanese invasion.”[9]

●      “[A] disloyal minority, if only a few hundreds or thousands, strategically placed, might spell the difference between the success or failure of any attempted invasion.”[10]

At oral argument on May 10, 1943, U.S. Solicitor General Charles Fahy amplified this theme, insisting on a “threat of invasion.”[11] “[I]t was not unreasonable,” he argued, “for those charged with the defense of the West Coast to fear that in case of an invasion there would be among this group of people a number of persons who might assist the enemy.”[12] He continued: “The challenged orders were defense measures for the avowed purpose of safeguarding the military area in question, at a time of threatened air raids and invasion by the Japanese forces, from the danger of sabotage and espionage.”[13]

The Supreme Court embraced the government’s representations about an invasion in upholding the curfew.[14] Writing for the Court, Chief Justice Stone proclaimed that it “c[ould] not be doubted” that the “men charged with the responsibility of our national defense had ample grounds for concluding that they must face the danger of invasion [and] take measures against it.”[15] Justice Douglas, concurring in the Court’s opinion, put the matter bluntly. “After the disastrous bombing of Pearl Harbor,” he wrote, “[t]he threat of Japanese invasion of the west coast was not fanciful, but real.”[16]

Belief in threat of invasion was not incidental to the Court’s analysis—it was the linchpin. The Court acknowledged that “a discrimination based on race alone” would ordinarily be “odious,” “irrelevant,” and “prohibited,”[17] but a different rule was appropriate in “a time of war and threatened invasion.”[18] The Court “could not close [its] eyes” to what it saw as “the fact … that, in time of war, residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry.”[19] Without that claimed threat, the constitutional justification for the racial curfew would have collapsed.

B.       Contemporaneous Military Assessments Refuted the Claim of a Threatened Invasion.

 The military assessments available to the highest levels of government in early 1942 left no doubt: a Japanese invasion of the continental United States was neither expected nor regarded as a serious possibility. This conclusion is not a matter of historical hindsight. It was the judgment of the War Department and its intelligence divisions at the time the curfew and exclusion policies were being developed and implemented.[20]

1. Army Intelligence (G-2) Reports

The Army’s G-2 intelligence division issued regular evaluations of Japanese capabilities in the weeks following Pearl Harbor. These confidential reports, dated between December 1941 and March 1942, consistently concluded that Japan had neither the intention nor the capacity to launch an invasion of the West Coast. At most, G-2 envisioned isolated submarine attacks or possible air raids by carrier-based planes—limited acts of harassment that posed no genuine threat to territorial control.

For example, a December 23, 1941, G-2 report noted sporadic submarine activity off the Pacific coast but found no evidence of plans for invasion, predicting only harassment of shipping in the western half of the Pacific Ocean and intensified attacks on Malaya, Borneo, and the Philippines.[21] Subsequent bulletins in January and February of 1942 noted minor shifts in Japanese capabilities but did not budge from the overall assessment that significant Japanese military activity would remain confined to the western Pacific.[22] 

Between late January of 1942 and February 19, 1942, the day President Roosevelt signed the executive order empowering the Army to uproot Japanese Americans, G-2 repeatedly noted that “no hostile ground forces [we]re believed to be nearer than … about 2,000 miles west by south of the Hawaiian Islands.”[23] The only predicted enemy activity in the Pacific during this time period was intensified attacks along its western rim; G-2 did not anticipate “surprise attacks” along the West Coast of the United States by air or sea, harassment of shipping, or attacks on Siberia.[24] G-2 saw no realistic prospect of a Japanese invasion of the west coast—and not even of Oahu. In its six-month projection dated January 30, 1942, G-2 anticipated only air and naval raids, along with the potential capture of an undefended island to use as a staging ground for a future assault on Oahu.[25] The assessment was clear and emphatic: Japan’s military was not believed to have the capacity to invade Hawaii, much less mount an attack on California, more than 2,500 miles farther east.

2. Views of Military Leadership

Senior military officials shared the view that no invasion of the coast was expected. On February 20, 1942, British Field Marshal John Dill relayed to U.S. military leadership the opinion of the British Chiefs of Staff that “[s]o long as the United States maintain a battle fleet in the Pacific, large scale seaborne expeditions against the western seaboard of North America … are considered impracticable.”[26] “In view of the great distances over which … operations would have to be undertaken,” argued the British, “it is probably not necessary to provide a strong scale of defence [sic] except at selected points of great importance.”

Brigadier General Dwight D. Eisenhower responded to the British on behalf of his superior, Army Chief of Staff George C. Marshall: “I am in concurrence with the conclusions of the British Chiefs of Staff with reference to the Japanese threat to the West Coast.”[27] Thus, when the Western Defense Command’s nervous senior officer, Lieutenant General John DeWitt, requested a large influx of troops to support coastal defense as 1942 began, Army command denied the request, with a member of the general staff commenting that there would “very little or nothing” for such troops to defend against.[28]

In January of 1942, Army Chief of Staff Marshall ordered Brigadier General Mark W. Clark to undertake an inspection tour of conditions in the Western Defense Command. Clark returned with the recommendation that the region should lose its designation as a “theater of operations” due to the lack of an appreciable threat to the coast.[29] Three months later, the Army and Navy assessed West Coast conditions as part of an inquiry into unity of command in the event of enemy action there. They concluded on April 18, 1942, that the entire Pacific Coast should be deemed in “a state of non-invasion,” which meant “a condition where operations of the enemy are not projected …, except by raids, submarine operations, or sporadic attacks.”[30] This non-invasion status remained in place along the coast for the duration of the war.[31]

These views of the situation on the coast were not confined to internal Army communications. On February 3, 1942, General Clark and Admiral Harold Stark appeared before an informal House-Senate Committee on Defense of the West Coast convened to consider plans for coastal defense. Their testimony was unequivocal: “an invasion effort was out of the question” and “was not expected by the military or naval administration.”[32] “[I]t would be impossible,” Admiral Stark testified, “for the enemy to engage in a sustained attack on the Pacific Coast at the present time.”[33]

The picture that emerges from this array of military, intelligence, and legislative sources is clear: there was no actual threat of Japanese invasion in early 1942, and the responsible military officials knew it. They told Congress so. They documented it in their internal communications. They formalized it through strategic reclassifications. Yet the public narrative advanced by the government before the Supreme Court—and ultimately adopted by the Court itself—suggested precisely the opposite. It would take more than forty years for the government to acknowledge that the actions against Japanese Americans in World War II “were carried out without adequate security reasons … and were motivated by racial prejudice, wartime hysteria, and a failure of political leadership.”[34]

C.      The Court Should Heed the Lesson of Hirabayashi

The tragic lesson of Hirabayashi is not only that courts can be misled by the executive in times of perceived crisis, but that when they are, the consequences for individual liberty and constitutional principle can be profound and enduring. The government then, as now, urged the judiciary to accept at face value its assertion that the nation was confronting an “invasion.” Then, as now, that assertion came untethered from any serious evidentiary foundation. In Hirabayashi, the Court deferred. In doing so, it lent its authority to a policy of racial discrimination, imprisonment without trial, and the suppression of rights in the name of national defense.

This Court faces a moment of similar import. The government once again invokes the language of invasion to justify sweeping deprivations of liberty. It again urges deference. But history advises scrutiny, and the Constitution demands it.[35] Amicus respectfully urges the Court not to repeat the error of Hirabayashi—an error that time has laid bare, but that only judicial vigilance could have prevented.

Respectfully submitted,

LAW CENTER OF AMY E. DAVIS PR, LLC

 /s/ Amy E. Davis______

Amy E. Davis

Texas Bar No. 24007083

151 Calle de San Francisco

Ste. 200, PMB 1263

San Juan, PR 00901

Counsel of Record for Amicus Curiae

On the Brief: 

/s/ Eric L. Muller_____

Eric L. Muller

Dan K. Moore Distinguished Professor

UNC School of Law

Author and Amicus Curiae 

Not admitted to the U.S. Fifth Circuit Court of Appeals

[5] See Brief for the United States in Hirabayashi v. United States, May 8, 1943, at 11, 1943 WL 71885

[6] Id. at 65 (emphasis added).

[7] Id. at 15 (emphasis added).

[8] Id. at 61 (emphasis added).

[9] Id. at 62 (emphasis added).

[10] Id. at 61 (emphasis added).

[11] Id. at 3347.

[12] Id.

[13] Id.

[14] The Supreme Court in Hirabayashi addressed only the curfew, deferring the question of mass exclusion for resolution in Korematsu v. United States, 323 U.S. 214 (1944).

[15] Hirabayashi, 320 US at 94.

[16] Id. at 105 (Douglas, J., concurring).

[17] Id. at 100.

[18] Id.

[19] Id. at 101.

[20] What follows is a synopsis of certain key archival findings. They are supplemented and contextualized more fully in Eric L. Muller, Hirabayashi and the Invasion Evasion, 88 N.C. L. Rev 1333, 1357 (2010).

[21] G-2 Estimate No. 17, 4:00 PM Dec. 22 to 10:00 PM Dec. 23, at 2, Records of the U.S. Army Ground Forces, RG 499, Entry 128, National Archives at College Park, Md.

[22] See Muller, Hirabayashi and the Invasion Evasion, 88 N.C. L. Rev. at 1357.

[23] See G-2 Periodic Report, 12:00 Noon Jan. 31, 1942, at 1, Records of the U.S. Army Ground Forces, RG 499, Entry 125, National Archives at College Park, Md; G-2 Periodic Report, 12:00 Noon Feb. 7, 1942, at 1, Records of the U.S. Army Ground Forces, RG 499, Entry 125, National Archives at College Park, Md; G-2 Periodic Report, 12:00 Noon Feb. 14, 1942, at 1, Records of the U.S. Army Ground Forces, RG 499, Entry 125, National Archives at College Park, Md.

[24] See G-2 Periodic Report, 12:00 Noon Jan. 31, 1942, at 1; G-2 Periodic Report, 12:00 Noon Feb. 7, 1942, at 1; G-2 Periodic Report, 12:00 Noon Feb. 14, 1942, at 1.

[25] See Letter from Col. Ralph G. Smith, Exec. Officer, Assistant Chief of Staff, G-2, to Assistant Chief of Staff, War Plans Div. (Jan. 30, 1942), RG 165, WPD Gen. Correspondence, Box 254, No. 4544-43, National Archives at College Park, Md.

[26] Letter from Field Marshal J.G. Dill, British Army, to Gen. George C. Marshall, Chief of Staff, War Dep’t (Feb. 20, 1942), microformed on Reel 27, Item 1157 (Marshall Center Microfilm).

[27] Memorandum from Gen. Dwight D. Eisenhower, Assistant Chief of Staff, War Dep’t, to Field Marshal J.G. Dill, British Army (Feb. 20, 1942), microformed on Reel 27, Item 1157 (Marshall Center Microfilm).

[28] See Letter from Lt. Gen. L.J. McNair, U.S. Army, to Commanding Gen., Field Forces (Dec. 23, 1941), microformed in RG 165, Item 4612-5, Box 259, National Archives at College Park, Md.

[29] Telegram from Gen. George C. Marshall, Chief of Staff, U.S. Army, to Commanding Officer, Barksdale Field (Jan. 18, 1942), microformed on Reel 17, Item 706 (Marshall Center Microfilm).).

[30] Western Sea Frontier Gen. Order No. 1-43, at 3 (Dec. 24, 1942), RG 499, Entry 118, National Archives at College Park, Md.

[31] See Stetson Conn et al., Guarding the United States and its Outposts 43 (2000).

[32] Memorandum from Sen. Homer T. Bone (Feb. 4, 1942), microformed on Records of the Japanese Evacuation and Resettlement Study, Reel 4, Frame 277b (Bancroft Library).

[33] Letter from Sen. Rufus C. Holman to Sen. Hiram W. Johnson (Feb. 9, 1942), microformed on Records of the Japanese Evacuation and Resettlement Study, Reel 4, Frames 283b–284a (Bancroft Library).

[34] Civil Liberties Act of 1988 § 4202(a), Pub. L. No. 100-383, 102 Stat. 903, 904 (codified at 50 U.S.C. § 4212(a) (2018)).

[35] Cf. Miller–El v. Cockrell, 537 U. S. 322, 340 (2003) (deference in reviewing discrimination claims “does not imply abandonment or abdication of judicial review”).