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4. Gordon Hirabayashi in the Tucson Federal Prison Camp
- Temple University Press
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CHAPTER 4 Gordon Hirabayashi in the Tucson Federal Prison Camp W HEN GORDON HIRABAYASHI was sentenced after losing his initial court case in October 1942, he knew that he might have to serve prison time for his decision to refuse the government’s exclusion order, but he did not want to spend any more time inside an institution like the King County Jail. He had spent months confined in this short-term facility waiting for his trial and months more waiting for some acceptable form of parole while lawyers worked on his appeals. He could not bear serving his official sentence in a “walled institution.” He preferred the freedom of a road camp. In a humorous end to what Hirabayashi described as a trial that was not so much a trial as a demonstration of “how much unbalance can be caused by fear and hysteria,” he asked for a longer sentence. This request ended up costing him in a way he did not expect. The judge had given him two short consecutive sentences for failure to obey curfew and for failure to obey the exclusion order. But to be admitted to a road camp, Hirabayashi needed at least a ninety-day sentence. Judge Lloyd Black agreed and gave Hirabayashi two ninety-day sentences, set to run concurrently at Dupont, Washington. But Hirabayashi never made it to Dupont, because it was inside the exclusion zone. He would have to serve his sentence elsewhere.1 Judge Black’s decision to replace Hirabayashi’s original consecutive sentences with concurrent sentences allowed the Supreme Court to choose which of the two charges it would address. The justices chose the issue of curfew and delayed ruling on the exclusion order until the Fred Korematsu case came before them a year later. In a unanimous decision, the court upheld Hirabayashi ’s curfew conviction. Supreme Court Justice Frank Murphy had intended to dissent in this case, but the rest of the Court pressured him to change his dissent to a concurring opinion. This was a time of national crisis, the justices told him, when the country needed the Court to demonstrate its undivided support of the government’s wartime powers to defend the country.2 106 CHAPTER 4 The majority opinion, written by Chief Justice Harlan F . Stone, detailed the threat the country was facing at the very time that Hirabayashi was demanding that all Americans be subject to curfew laws or that none be subject to them. In actuality, Hirabayashi was just barely formulating his own position of conscience when he decided to disobey curfew: He had meant to challenge the exclusion order. Nevertheless, in choosing curfew as the Court’s main focus, Chief Justice Stone wrote that in a time when war was spreading throughout Europe and the Pacific; when German sympathizers had aided Germany’s invasion of western European countries; and when, he suggested—based on falsified and inaccurate evidence, unbeknownst to him—Japanese Americans had aided in the successful attack on Pearl Harbor, the country could not take any chances in allowing freedoms for individuals who might be harboring feelings of disloyalty. Stone’s majority opinion recited the most-repeated racial assumptions prevalent at the time: Japanese Americans demonstrated race-based loyalties , an unwillingness to assimilate, and the problem of dual citizenship. The Supreme Court not only perpetuated racial stereotypes in its representation of Japanese Americans as a group but also declared that in a time of war, the Court could not second-guess the military’s judgment, even if this meant excluding from service an entire population on the basis of race and on the assumption that some among them may commit acts of sabotage at some point in the future.3 The broad powers that this decision gave to the military in the name of national defense ended up causing a split decision a year later in the case of Korematsu, who also challenged the exclusion order. The Supreme Court case involving Hirabayashi and the associated cases of Minoru Yasui and Korematsu are the subjects of numerous studies on the ways in which the Court acquiesced to the military in the context of war and how civil rights lawyers and activists found sufficient evidence to exonerate these individuals in federal courts in the 1980s. Lawyers and the various individuals who resisted and who supported their causes hoped that their wartime cases would clarify the constitutional limits of state powers to proscribe citizens’ rights on the basis of race, even during war...