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Before the relocations of 100,000 - indeed, within 24 hours of Pearl Harbor - a much smaller number of people of Japanese ancestry were arrested and ultimately put into POW camps with captured Axis soldiers. Executive Order 9066 authorized relocation in February 1942 But before that in Hawai'i, 1,100 were arrested in December 1941 and shipped to the mainland for the duration of the war under legal circumstances that the NDAA has recreated. This diary has a complete legal brief, below the fold, filed on behalf of Internee Takaichi "Rupert" Saiki on January 12, 1942, by Harry Irwin, who was the Hawai'i Territorial Attorney General 1918-1922. Money quote:

The Due Process Clause of the Constitution, the constitutional right to be informed of the charges against him, the right to be confronted with the witnesses against him, the right of cross-examination of those witnesses and, apparently, the presumption of innocence have, apparently, been repealed by the declaration of war.
Also repealed was free speech.

Having come to the Republic of Hawaii in 1894 with his parents and living there as an eleven year old boy when the USA took over in 1898 yet denied citizenship for his Japanese birthplace was also a factor in this trial of a 55 year old banker and father of seven. As a contrast, his half-Alsatian, half-Native Hawai'ian wife was granted citizenship at Annexation, when she was also a child, but Saiki was still ineligible for citizenship.

Please continue to read the entire brief.

Before the Internee Hearing Board
Hilo, County of Hawaii
In the Matter of T. R. Saiki, An Internee
Case No.1
BRIEF ON BEHALF OF INTERNEE

To the Honorable the Members of said Board:

I begin the discussion of the case now under consideration with the consciousnesses that  because of the abnormal situation which confronts a lawyer accustomed, for many years, to the normal legal process, I find myself confronted with a problem entirely new to me and outside of the field of previous experience.

Lawyers are accustomed to rely on judicial precedents in their efforts to assist the Court towards a just decision on questions of law and fact but, in the limited time afforded to me for the preparation of this brief, I have been unable to discover any judicial precedents which covers this case and the practice and procedure adopted.

I must frankly admit that, in writing this brief, I am in doubt as to whether or not I can be of any great assistance to this court in its decision of this case.

It is apparent, however, from the proceedings which have taken place, that certain constitutional rights which the Internee could have relied on in ordinary times are no longer available to him.

The Due Process Clause of the Constitution, the constitutional right to be informed of the charges against him, the right to be confronted with the witnesses against him, the right of cross-examination of those witnesses and, apparently, the presumption of innocence have, apparently, been repealed by the declaration of war.

So far, however, as the evidence in the case has disclosed to me up to the present time, the matters under investigation relate to things alleged to have been said or done by the Internee prior to the declaration of war and at a time when the United States and Japan were technically, at least, friendly nations.

Let us assume, for the purpose of this phase of the discussion, that the imputations arising from the evidence against the Internee as disclosed by questions propounded to him on cross-examination during the hearings are true; the questions then arise as to whether or not, under that assumption, the internee committed any violation of the laws of the United States and I think the answer to that question must be in the negative. If the acts or words imputed to the Internee would not constitute offenses against the laws of the United States when they were done or said, can they be converted into such offenses by a later declaration of war? It seems to me clear that this question must also be answered in the negative.

But it may be said that the Internee does not stand charged with any criminal offense but if that is the answer to the problem I still find it difficult to understand how a person can be deprived of his liberty by internment unless he has committed some offense against the laws of our country. If the Internee had said or done what apparently it is charged that he did say or do after the declaration of war or if he had said or done anything which would be a violation of the espionage act (Title 50, U.S.C.A. Chapt. 4) then clearly he would have been subject to punishment, but that is not the case here.

I find it very hard to get away from the legal aspects of the case and I am oppressed with the idea, following the practice adopted, that recognized legal principles will have little, if any, application to the case.

The background of the case is further obscured by the legal fact that the Internee is a Subject of Japan and that he does not or did not owe allegiance to our country and that factor of the case will be referred to in my discussion of the evidence against the Internee so far as I am informed on that matter through the cross-examination of the Internee,

I will now proceed to discuss the evidence as thus indicated.

The evidence against the Internee

So far as my notes show the cross-examination of the Internee seems to show that the Internee is charged as follows:

(1) That in the year 1941, acting on the request of certain residents of Wainaku, he took the sum of $240.00 to Japan and gave that to the Japanese Association for relief and savings. The Internee admits that he took that sum of money to Japan. The evidence of the Internee on this point seems to show that this money was devoted to Red Cross work in Japan or similar relief work. It is suggested that this sum of money was ear-marked for the Japanese army or navy, but the Internee denies knowledge of that fact, if it was a fact.

But assuming it was so earmarked and keeping in mind the fact that the Internee is a Subject of Japan and, presumably, loyal to his own country, can it be said in acting as a messenger for his fellow citizens of Japan resident at Wainaku he did anything which justifies his internment?

I respectfully submit to the court that the residents of Wainaku and the Internee had a legal right to make that contribution at a time when the two nations were at peace with each other. Some of the leaders of our own nation have heretofore openly advocated the sending of food supplies to Germany at a time when the relations between our country and Germany were much more strained than the relations between our country and Japan during the early part of the year 1941; while many of our citizens disagreed with the idea of sending food supplies to Germany yet the proponents of that idea were and are not charged with any disloyalty to our country by reason of that proposal.

The Internee admits the he, himself, made some contributions of the same kind and for the same purpose. Also that he took certain old clothes to Japan which he delivered to the Y.M.C.A. there, and the same argument applies to his own acts in this respect as I have advanced in respect to the contributions made by the Wainaku residents.

(2) It was suggested during the cross-examination that the Internee had received some kind of a decoration from the Japanese Government for "many years of service over seas". This the Internee flatly denies. The determination of this question of fact must rest in the sound discretion of the court; it is assumed that the question will be decided adversely for the detainee only on the basis of credible testimony. We are arguing this phase of the case and and all phases of the case under the disadvantage of not knowing what evidence, if any, and what witnesses, if any, support this and other charges, and we must rest our discussion of this and other charges in the belief that this charge and other charges will be decided adversely for the Internee only upon the basis of credible evidence given by credible witnesses.

(3) Cross-examination of the Internee indicated that, upon his return from Japan in 1941, he attended a meeting of the Japanese Chamber of Commerce in Hilo and made the following statements, in substance and effect:
  (a) that he as impatient with Japan; that he wanted Japan to attack the United States immediately and not wait until the United States became better prepared to resist such an attack;
  (b) that the picture of the Japanese Emperor, the Japanese flag and other emblems should be taken from the wall s of the rooms of the Japanese Chamber of Commerce in Hilo.

The Internee flatly denies that he ever made such statements. I will state to the Court frankly that the line of cross-examination indicated in paragraph (a) above came as a shock and as a surprise to me. The failure of the Internee to advise me of this line of cross-examination and of this possible charge can be accounted for only upon the theory that he was so free from any consciousness of guilt in this respect that he did not think it worthy of any further consideration. Except for the last charge, to be later discussed, the charge  set forth in paragraph (a) above is, in my opinion, the only specification of wrong doing which is worthy of serious consideration by this court.

If the charge set forth in paragraph (a) above is true it so shocks one's sense of right that one's duty as a citizen runs so counter to one's duty as a lawyer that I can justify further argument for the Internee only on the theory that I am bound to believe his sworn denial of this charge until it is controverted by definite credible evidence and upon the theory that he is presumed innocent of any charge now preferred against him.

There seems to be, however, such an inconsistency between the two charges set forth in paragraphs (a) and (b) above that I find it difficult to understand how the same man could make the same statements at or about the same time.

By statement (a) he advocates an immediate attack on the United States by Japan. By statement (b) he recommends that the picture of the Japanese Emperor and other things representing the racial regard for the country of their origin be taken down from the walls of the room.

If the internee had made statement (b) only the implication from the statement would be that he was advising the members of the Japanese Chamber of Commerce to eliminate entirely from further consideration everything connected with their racial origin and to confine their regard to their actual home land.

I find it difficult to understand how a man of the apparent intelligence of the Internee would take such a chance in a public meeting consisting of Subjects of Japan and Citizens of the United States unless he believed that they were all in sympathy with his desire that Japan should forthwith attack the United States and that I cannot believe.

This charge is of such a serious nature that I will rest my argument here in the belief that the Court will find him guilty thereof only upon satisfactory credible evidence offered by credible witnesses.

(4) The cross-examination of the Internee at the hearing developed another very serious element of the case which also came as a complete surprise to his attorney. It appears from questions propounded to the Internee that this element of the case had been the subject matter of prior questions put to him and the only possible explanation of his failure to apprise his attorney of the existence of even a suspicion of such activities on his part is that his consciousness was so free of guilt in respect thereto that he paid no further attention to the subject matter of the charge.

The cross-examination of the Internee in this regard suggests that on Dec. 6th, 1941, the day before the treacherous attack on Pearl Harbor, the Internee had knowledge of that impending attack and was busily engaged in warning his friends that it was about to take place.

This element of the case is undoubtedly the most serious of the charges pending against the Internee. It is so serious that that the mere preferment of the charge against a man who, during practically all of his life, has enjoyed the advantages of living in a free country, has a tendency to arouse such a feeling of hostility as might be prejudicial to a fair and unbiased hearing.

I will frankly say that if this charge is sustained by satisfactory credible evidence it would clearly indicate a hostile enemy attitude toward our country  which would probably continue to exist during a state of war and which would justify internment.

I find it difficult to believe, however, that a man of intelligence would use the public telephone for the purpose disseminating to his fellow aliens any such dangerous information. Such a procedure would certainly be a crude method for the dissemination of any such supposedly secret information.

The Internee denies that he made any such telephone calls and we must rest our defense on this charge on that denial, together with the other evidence which will be discussed in the next feature of this brief.

The evidence offered in behalf of Internee:

The principle evidence in favor of the Internee consist of his sworn denial of all the charges of misconduct which have been suggested throughout the cross-examination.

In addition to those sworn denials we have the background of the Internee's life in Hawaii from the age of 7 years down to the present time, his education in the public schools here, his marriage to a citizen of the United States, his family of American citizens and his many years of service in banking institutions in Hilo in which service he has risen to a position of importance in the Bank of Hawaii, Hilo Branch.

All these facts connote an upright life, a training in American ideals, of life and family associations which would naturally tend to destroy any feelings of obligations or loyalty to the Japanese Emperor.

We have in evidence his voluntary statement made to his wife upon their return from a visit to Japan that he was glad to return to "God's Country". We have in evidence the fact that the Internee, since June, 1941, has been investing some of his savings in United States Bonds and the further fact that he has consistently advised his children and grandchildren to save their pennies and invest them in United States Stamps or Bonds "for the defense of their country". We have the further fact that he has never invested one cent of his money in Japanese Government Bonds.

It may be said that these are all matters of minor importance but, even so, it is difficult to understand how an intelligent man could or would adopt such an inconsistent attitude towards the whole situation.

The charges suggest that the Internee is an active enemy alien working for the benefit and advantage of the Japanese Government, yet the evidence clearly establishes the fact that this suggested enemy alien is investing his own money in bonds of the United States and advising his children and grandchildren to do the same thing for the purpose of assisting the United States in fighting against any and all aggressors, including the Emperor of Japan.

That would seem like a case of Dr. Jekyl and Mr. Hyde. Dr. Jekyl, under such an assumption, would be actively engaged in assisting Japan in her aggressive actions against the United States while Mr. Hyde would be assisting and advising others to assist in the defense of our country against such aggression, Under such a situation it would seem to be logical and fair that the most satisfactory and convincing proof of Dr. Jekyl's activities should be required before these charges against the Internee could be sustained.

The newspapers of Hilo reported a meeting of an emergency committee headed by the Internee and held in Hilo, Hawaii, on Dec. 7th, 1941. While, so far as I know, there is nothing now in the record to support this statement, yet the Hilo Tribune-Herald, published Dec. 7, 1941 contains the following news story:

"HILO TRIBUNE-HERALD SUNDAY, Dec. 7, 1941

Japanese Group Calls Meeting in Hilo Today.

T. R. Saiki, chairman of the emergency committee of the Hilo Japanese Association, announced this morning that his committee planned to meet at 1 p. m. today at the Japanese Association headquarters on Kamehameha Ave. to be on call should there be any help needed of them by either the local army units or the Hilo Police Department.

Mr. Saiki got special permission from Deputy Sheriff Peter N. Pakele, Jr, to use the telephone to call his members together. The committee plans to notify each of the Japanese "Kuiai's" or district organizations to request the Japanese families to remain cool. The most important task ahead of the Japanese emergency committee is to keep the local Japanese families calm in time of present emergency."

The bona fides of that meeting of the emergency committee seems to be well established for, otherwise, the Internee, as the Chairman of that committee would not have given prior public notice of his intention to call the meeting. His action in that regard is not marked as the action of an enemy alien actively or otherwise engaged in acts of hostility to our country.

Conclusion:

If there is any basis in fact for the charges which have been discussed at the hearing, then, in this Internee we have a man with two distinct personalities.

Assuming such a factual basis then the picture disclosed by the evidence shows, on the one side, a man who has actively advocated war by Japan against the United States and a man who had accurate prior knowledge of the treacherous attack to be made on Pearl Harbor. On the other hand the evidence discloses the picture of a man who invests his own money in United States Bonds, advises his relatives to do the same thing and, when the actual emergency arises, notifies the world, through the public press, of his intention to call a meeting of the Emergency Committee to discuss ways and means to assist in the protection of our citizens and residents from the acts of the aggressor nation.

One of these pictures must be a counterfeit presentment of the Internee now under investigation.

It is respectfully requested that an unbiased and impartial consideration of the evidence justifies the conclusion that the second picture is the real one and that the picture which paints the Internee as an active enemy alien is the counterfeit one.

Dated at Hilo, T. H. January 12, 1942

Harry Irwin
Attorney for Internee

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