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Executive Order 9066 gave the military the power to issue orders, but it could not impose sanctions for failure to obey them. The Roosevelt Administration quickly turned to Congress to obtain that authority. By February 22, 1942, three days after the order was signed, the War Department sent draft legislation to the Justice Department for review and comment. General DeWitt wanted mandatory imprisonment and a felony sanction because "you have greater liberty to enforce a felony than you have to enforce a misdemeanor, viz. You can shoot a man to prevent the commission of a felony." [2] On March 9, Secretary of War Stimson sent the proposed legislation to Congress where the bill was introduced immediately by Senator Robert Reynolds of North Carolina, Chairman of the Senate Committee on Military Affairs, and by Representative John M. Costello, a friendly California Democrat on the House Committee of Military Affairs. [3]

Executive Order 9066 represented what the west coast Congressional delegation had demanded of the president and the War Department. Congressman John H. Tolan of California, who chaired the House Select Committee Investigating National Defense Migration that examined the evacuation from prohibited military areas during hearings on the west coast between February 21 and March 12, 1942, characterized the order as "the recommendation in almost the same words of the Pacific coast delegation." [4]

The Tolan Committee hearings were instituted at the behest of Carey McWilliams, Chief of the California Division of Immigration and Housing, with the intent of forestalling mass evacuation by giving a forum to moderate voices. The hearings, however, boomeranged. Members of the Tolan Committee continued to support the implementation of Executive Order 9066 after the hearings. They began the hearings persuaded that espionage and fifth column activity by Issei and Nisei in Hawaii had been central to the success of the Japanese attack on Pearl Harber. Censorship in Hawaii meant that the only authoritative news from the islands was official government sanctioned information. With regard to sabotage and fifth column activity, that version of events was still largely made up of two pieces: Secretary Knox's firmly stated December views that local sabotage had substantially aided the attack, and the Roberts' Commission's silence about fifth column activity Thus, there was no effective answer to be made when Tolan challenged pro-Nisei witnesses. Not privy to the facts in Hawaii, advocates of Japanese American loyalty, such as the Japanese American Citizens League, were frequently reduced to arguing lamely that the mainland Nisei were different from, and more reliable than, the residents of Hawaii. This view of Pearl Harbor explains in part the continuing argument, repeated by the Tolan Committee, that the lack of sabotage only showed that enemy loyalists were waiting for a raid or invasion to trigger organized activity. [5]

During the Tolan Committee hearings, the Nisei spoke in their own defense, a few academics, churchmen, and labor leaders, supporting them. The strongest statements in support of the Japanese Americans came from A. L. Wirin, Counsel for the Southern California Branch of the American Civil Liberties Union, and Louis Goldblatt, Secretary of the State Congress of Industrial Organizations. In his testimony, Wirin observed:

....there must be a point beyond which there may be no abridgement of civil liberties and we feel that whatever the emergency, that persons must be judged, so long as we have a Bill of Rights, because of what they do as persons We feel that treating persons, because they are members of a race, constitutes illegal discrimination, which is forbidden by the fourteenth amendment whether we are at war or peace. [6]

Much of the testimony before the Tolan Committee, however, assumed that mass evacuation was a fait accompli, and addressed secondary issues such as treatment during evacuation. Traditional anti-Japanese voices, such as the California Joint Immigration Committee, testified in support of the executive order, reiterating the historical catalogue of anti-Japanese charges. The press encouraged anti-Japanese sentiments by reporting primarily testimony that supported evacuation. [7]

Several events occurred on the west coast soon after the Tolan Committee hearings began, heightening public war hysteria and adding urgency to the demands for immediate mass evacuation. On February 23, four days after the signing of Executive Order 9066 and two days after the hearings commenced, an oil refinery at Goleta on the California coast near Santa Barbara, north of Los Angeles, was shelled by a surfaced Japanese submarine, identified after the war as the I-17 commanded by Kozo Nishino, a captain in the Japanese navy This was the occasion for the publication of eye-witness accounts identifying the craft as a Japanese submarine and spurious reports of signaling activities on shore. Two days later, on February 25, in the "Battle of Los Angeles," one to five unidentified planes were reported over the city which was blacked out. Antiaircraft guns were fired. None of the planes (if there were any) over Los Angeles were ever identified as Japanese. However, the two incidents received widespread coverage in the press and provided increased support to demands for the immediate removal of all persons of Japanese descent from the west coast. [8]

Earl Warren, then Attorney General of California and preparing to run for governor of the state later that year, strongly supported the anti-Japanese forces during his testimony at the Tolan hearings. One of the first witnesses, Warren presented his views at length to the committee. He candidly admitted that California had made no sabotage or espionage investigation of its own and that he had no evidence of sabotage or espionage. In place of evidence Warren offered extensive documentation concerning Japanese American cultural patterns and ethnic organizations as well as the opinions of California law enforcement officers, illustrating his testimony with maps showing Nisei land ownership. Among other things, he observed:

I do not mean to suggest that it should be thought that all of these Japanese who are adjacent to strategic points are knowing parties to some vast conspiracy to destroy our State by sudden and mass sabotage. Undoubtedly, the presence of many of these persons in their present locations is mere coincidence, but it would seem equally beyond doubt that the presence of others is no coincidence. It would seem difficult, for example, to explain the situation in Santa Barbara County by coincidence alone.

After stating that Japanese farmers and property owners flanked virtually every principal military installation, utility, airfield, bridge, telephone and power line, harbor entrance, oil field, and open stretch of beach in Santa Barbara County suited for landing purposes, Warren noted that "there were no Japanese on the equally attractive lands between these points." He concluded:

Such a distribution of the Japanese population appears to manifest something more than coincidence. But, in any case, it is certainly evident that the Japanese population of California is, as a whole, ideally situated, with reference to points of strategic importance, to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them be inclined to do so. [9]

As late as February 8, Warren had advised the state personnel board that it could not bar Nisei employees on the basis that they were children of enemy alien parentage, stating that such action was a violation of constitutionally-protected liberties. [10] This earlier position undoubtedly provided his testimony before the Tolan Committee with special effectiveness. Although Warren may have presented his views to General DeWitt earlier in February, it is interesting to note that the aforementioned War Department's Final Report, prepared principally by DeWitt and published in 1943, repeated much of Warren's presentation to the Tolan Committee virtually verbatim without attribution as the central arguments for the issuance of Executive Order 9066. [11]

Although Warren's presentation before the Tolan Committee provided no proof or evidence, the overpowering mass of his data — maps and letters and lists from all parts of the state — gripped the public imagination and turned the discussion to fruitless argument about such questions as whether land was bought before or after a power line or plant was built. These were not weeks of calm reflection on the west coast, and there was little or no focus on the meaning or significance of this "evidence." [12]

In late February and early March, the Tolan Committee assumed that Secretary Knox had evidence to substantiate his "Fifth Column" charges and that President Roosevelt had based his signing of Executive Order 9066 on informed factual analysis. The views of anti-Japanese witnesses added substance and confirmed what was already publicized and suspected. Although the committee was eager to see that the property of aliens was safeguarded by the government and wanted the Army to be concerned about hardship cases in an evacuation, it returned to Washington unwilling to challenge the need for Executive Order 9066 and the evacuation. Despite its support of the executive order, however, the Tolan Committee would issue reports during the next several months in which it began to raise questions about the policy underlying exclusion and removal. [13]

In the aftermath of the Tolan Committee hearings, Congress took up the matter of legislation that would put teeth into enforcement of the new evacuation program, making criminal any violation of Executive Order 9066. There was no civil liberty opposition in Congress, and the Nisei, few of whom were of voting age, had no voice in that legislative body Thus, debate over the bill to formalize the order as a federal statute focused only on the inclusive wording of the bill, no one publicly questioning the military necessity of the action or its intrusion into the fundamental liberties of American citizens. Senator Robert A. Taft of Ohio spoke briefly against the bill, although he did not vote against it:

I think this is probably the "sloppiest" criminal law I have ever read or seen anywhere. I certainly think the Senate should not pass it. I do not want to object, because the purpose of it is understood. . . .

[The bill] does not say who shall prescribe the restrictions. It does not say how anyone shall know that the restrictions are applicable to that particular zone. It does not appear that there is any authority given to anyone to prescribe any restriction. . . .

I have no doubt an act of that kind would be enforced in war time. I have no doubt that in peacetime no man could ever be convicted under it, because the court would find that it was so indefinite and so uncertain that it could not be enforced under the Constitution. [14]

The debate was no more pointed or cogent in the House, where there seemed to be some suggestion that the bill applied to aliens rather than citizens. [15] The bill became Public Law 503, passing by voice vote in both houses on March 19, and it was signed into law by President Roosevelt on March 21, 1942. [16] The law stated:

That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive Order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such areas or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense. [17]

This ratification of executive branch actions under Executive Order 9066 was significant, because another independent branch of the federal government now stood formally behind the exclusion and evacuation of Japanese Americans. During 1943 and 1944, the Supreme Court gave great weight to the Congressional action in upholding the imposition of a curfew as well as the evacuation itself. [18]

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Last Updated: 01-Jan-2002