Sixty-nine years ago tomorrow, President Roosevelt signed Executive Order 9066, which authorized the military to set in motion a plan for the mass exclusion of people of Japanese ancestry from the West Coast. In the Japanese American community, this sad day is commemorated annually as the “Day of Remembrance.”
It’s a day to reflect on many things, among them the sorry roles that American lawyers played in setting up, operating, and defending the system of racial and ethnic oppression. (Sarah Ludington makes a nice contribution with her recent piece on the silence of the legal academy.)
On a recent research trip to the National Archives, I found a 1944 letter from Justice Department lawyer Edward Ennis to Undersecretary of the Interior Abe Fortas that frames the issue of lawyer responsibility poignantly. I reproduce the letter below.
A word of context: This was a moment when the government was preparing to lift the order excluding Japanese Americans from the coast en masse and replace it with a system of individual orders blocking specific Japanese Americans from returning. By this point in the war, Ennis had spent a couple of years dispiritedly (but successfully) defending mass exclusion and mass incarceration in the federal courts.
He tells Fortas that his office had just finished studying hundreds of cases of individual exclusion orders (directed mostly against German aliens) and concluded that the individual exclusion program “served substantially no security purpose.” This leads Ennis to wonder why the military would be preparing to gear up a program of individually excluding thousands of Japanese Americans. He concludes that the only reason he can think of for individually excluding thousands of Japanese Americans from the coast is to convince whites on the coast to accept the return of the tens of thousands of others who would soon be streaming out of the internment camps.
“The least [the government] could do,” Ennis says to Fortas, is to reject “the military security views which have been again advanced although they have been already abandoned even by the military authorities apart from this special racial application.”
Here’s the kicker: four months later, on February 27, 1945, in a federal courtroom in Los Angeles, Edward Ennis appeared for the Justice Department to defend that individual exclusion program at the trial of Ochikubo v. Bonesteel. Ennis called military witnesses who testified under oath to the very military security rationale that he had derided in the letter to Fortas, and in his own oral and written submissions, he urged the court to accept that military security rationale.
On this year’s Day of Remembrance, take a brief moment to recall that it was lawyers -- some of the brightest members of our own guild -- who made this shameful program run.