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American legal principles and the Magna Carta

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When I saw the Broadway show “Allegiance” recently, I was reminded of Henry Mittwer (1918-2012). The musical depicts the conflicts among the Japanese and Japanese-Americans on the West Coast who, following Japan’s attack on Pearl Harbor in 1941, were incarcerated en masse. Mittwer was one of them.

I wrote about Mittwer’s life three decades ago in my column for the Mainichi Daily News. When Hokubei Mainichi, in San Francisco, reprinted my article, a Nisei lawyer in Berkeley named Raymond Okamura wrote the newspaper, chastising Mittwer over his U.S. experience. Was anything wrong with Mittwer?

He was born in Yokohama, the youngest of three sons of a geisha and an American, Mittwer wrote in his 1983 autobiography, “Sokoku to Bokoku no Hazama de” (“In the Chasm between Fatherland and Motherland”). When he was 9, his father, who was then representing the United Artists in the Orient, got in trouble with his employer and returned to the United States. He took his middle son with him, leaving Henry in Japan with his oldest son, who was sickly, and his wife.

In 1940, Mittwer got money for a one-way ticket to the U.S. He wanted to learn what his neglectful father had in mind for his wife and two sons. In Los Angeles, he found him a pauper. His brother, who was doing well, had no intention of helping his brothers and mother.

When he was moving from one odd job to another to make a living, Japan attacked Pearl Harbor. President Franklin D. Roosevelt issued Executive Order 9066, and a wholesale “exclusion” of people of Japanese descent from the West Coast began.

Racist attitudes were prevalent, at times rabid. Gen. John DeWitt, who demanded the “exclusion,” is remembered for declaring “a Jap is a Jap.” Henry McLemore, a columnist for the San Francisco Examiner, wrote, “Herd ’em up, pack ’em off and give ’em the inside room in the badlands,” adding, “Personally, I hate the Japanese. And that goes for all of them.”

Mittwer’s friends told him, “You look more Caucasian than Oriental; lie low and no one will notice.” But he chose to be herded up. In consequence, he was moved from one internment and detention camp to another, a total of three. McLemore’s wish was fulfilled: the 10 hastily built camps were all in remote and uninhabited hinterlands.

It was in the Gila River Camp in Arizona where Mittwer faced the focal point of “Allegiance,” the “loyalty questionnaire.” When he refused to sign it, his passport was taken away. He was also imprisoned twice.

After the war, he met a Zen master, Nyogen Sonezaki, and in 1961 he went back to Japan. He became a monk at the great Zen temple Tenryu-ji, in Kyoto, and went on to be rather well-known.

But he had no rancor against the U.S., Mittwer wrote. After all, he explained, the Japanese in Japan suffered far worse under U.S. bombings. Also, the Japanese treated “foreigners of enemy countries” and those related to them more harshly than the Americans treated the Japanese and Japanese-Americans they rounded up and interned. His sickly brother was sent to a camp and his dear mother was tortured by the police.

Attorney Raymond Okamura found these thoughts offensive. Mittwer may be “a derivative American citizen,” but he was culturally, educationally, Japanese, Okamura argued, and didn’t understand the values that make the U.S. what it is: “individual rights, presumption of innocence, fair trial by jury, equality under the law, and ‘liberty and justice for all.’ ” Whatever Japan did was “not germane to the issue.”

That was, as I’ve noted, more than 30 years ago. I’ve just recently learned that Okamura had just written for the Journal of Ethnic Studies an article titled “The American Concentration Camps: A Cover-up Through Euphemistic Terminology,” (1982).Okamura had just written for the Journal of Ethnic Studies an article titled “The American Concentration Camps: A Cover-up Through Euphemistic Terminology,” (1982).

But was Okamura right? Wasn’t he merely listing the idealistic legal principles that are supposed to make the U.S. different? Aren’t those principles there to be broken?

With Executive Order 9066, it was none other than Roosevelt who ignored those principles, even though he had already pledged the presidential oath three times by 1941: to “preserve, protect and defend the Constitution of the United States.”

As the civil rights scholar Peter Irons detailed in “Justice at War” (Oxford, 1983), some officials were doubtful about the legality of FDR’s decree.

Francis Biddle, who as U.S. attorney general was the nation’s highest-ranking law enforcement officer, clearly stated that “unless the writ of habeas corpus is suspended, I do not know any way in which Japanese born in this country, and therefore American citizens, could be interned.” Yet he didn’t put up much resistance to War Secretary Henry Stimson, who was willing to go along with Gen. DeWitt’s demand.

Milton Eisenhower, appointed director of the War Relocation Agency, had envisioned a “voluntary migration.” But, faced with the fierce objections of governors and congressmen to accepting such “migrants” in their jurisdictions, resigned in short order.

Among the organizations for legal aid, the American Civil Liberties Union was split among its top officers. Some, grateful to FDR for his liberal domestic policies, weren’t sanguine about challenging his mass exclusion decree.

That left the Japanese American Citizens League for possible help. But it was “fatally compromised,” Irons wrote. Formed as “an avowedly assimilationist and patriot organization,” it was working well before the war with intelligence agencies to compile a list of “subversive” and “dangerous” aliens — among, of course, those of Japanese descent.

As District Judge Jed Rakoff points out in “The Magna Carta Betrayed?” (New York Review of Books, Feb. 11, 2016), Okamura’s legal principles directly come from Chapter 39 of the Great Charter of 800 years ago. But Rakoff’s own answer to the question he poses in the title of his essay is “yes.” And of the important “betrayals” in U.S. history, the Supreme Court’s failure to counter Executive Order 9066 remains “most shameful,” the jurist concludes.

Hiroaki Sato is a translator and essayist in New York.