Courts’ historical struggles with citizenship renunciation

The federal government's ignoble mass imprisonment of Japanese-Americans during World War II has a postscript: In 1944 and 1945, thousands of prisoners were pressured to and did renounce their U.S. citizenship. Later, many who had renounced tried to cancel their renunciations. The government's response to these attempted cancellations displayed belated enlightenment, but also displayed inconsistencies and residual stereotyping of Japanese-Americans.

As background, all Japanese-Americans, citizens and aliens alike -- and without any accusation, much less proof, of disloyalty or other wrongdoing -- were subject to Executive Order 9066 and related federal statutes.

Under that authority, beginning in 1942, the U.S. Army imposed a mass curfew on all 110,000 Japanese-Americans living on the U.S. mainland's West Coast. Later that same year, the Army "evacuated" all Japanese-Americans from the West Coast and imprisoned them in euphemistically named "Relocation Centers."

As later recounted in Acheson v. Murakami, 176 F.2d 953, 954-55 (9th Cir. 1949), the imprisonment occurred with less than one week's notice, and Japanese-Americans were required to bring their own bedding, clothing, utensils and other items, all of which had to be hand-carried. "One has no difficulty imagining the thousands of families in which the mother must carry the babies, measuring the carrying capacity of each of the other children able to walk against the sacrifice of one or another household utensil, or book or family treasure."

Inadequate storage was available for household or business goods, with the result that, for example, doctors and lawyers lost "long built up practice[s]" and farmers lost crops after "years of soil improvement."

The Acheson v. Murakami court minced no words about the mass incarceration of supposedly free citizens: "[T]he beguiling words 'evacuation' meant deportation, 'evacuees' meant prison and their single rooms, some crowding in six persons, meant cells, as they in fact were."

The U.S. Supreme Court upheld the curfew's and exclusion's constitutionality in, respectively, Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944). On Dec. 18, 1944, the Supreme Court opined that the Army lacked authority for the mass imprisonment, but the majority opinion failed to reach the imprisonment's constitutionality. Ex parte Endo, 323 U.S. 283 (1944).

The harshest prison was at Tule Lake, in northeastern California. It was "like that of the prison camps of the Germans," a "barbed wire stockade" guarded by soldiers in turrets with machine guns. The Japanese-Americans there were treated with "Nazi-like doctrine of inherited racial enmity." 176 F.2d 954-55

Tule Lake's 18,000 prisoners were crowded into cold and flimsy barracks, fed "unpalatable food," and had to use remote and unheated latrines. As noted by the 9th Circuit, "[N]o federal penitentiary so treats its adult prisoners." 176 F.2d at 856, 960-61.

While other prisons for Japanese-Americans could be similarly condemned, Tule Lake also had a high concentration of Japanese-Americans who were particularly suspected of disloyalty. Several factors contributed to the situation at Tule Lake, the primary one being the government's decision to turn the camp into the Tule Lake Segregation Center. This grew from the "Loyalty Review Program," which principally consisted of a questionnaire administered to internees in all the camps. Two of the questions -- "Are you willing to serve in the armed forces of the U.S. on combat duty ... ?" and "Do you swear unqualified allegiance to the U.S. ...?" -- were designed to identify internees whose loyalty had switched to (or had always been with) Japan. Those who answered those questions "wrong" -- along with, in some cases, their families who were suspected of nothing -- were sent to Tule Lake.

As a result, Tule Lake had a concentration of citizens and aliens who were pro-Japanese and anti-U.S. Beginning in late 1943 and continuing into 1945, these Japanese nationalists formed gangs that terrorized the other Tule Lake prisoners. "[G]oons and strong arm boys" subjected their fellow prisoners to daily intimidation, with a prison-wide "hysterical frenzy" being a result. In 1944 and 1945, nationalist gangs beat, stabbed and even murdered other Tule Lake prisoners who dared oppose the gangs. This intimidation extended to attacks on gang opponents' family members. 176 F.2d at 961-63.

These gang activities were met by the camp administration with measures more commonly used in centers where criminals were detained, including incarceration in a stockade that had acutely inadequate food and heating in the winter. See generally Barbara Takei & Judy Tachibana, "Tule Lake Revisited" (2001), at 17. A final deterioration occurred when a fatal farm truck accident led to a general strike of Tule Lake's farm workers (that is, prisoners who were hired out to local farmers or who worked in Tule Lake's own fields). When the workers elected a negotiating committee, the committee's members were incarcerated in the stockade. When committee members were replaced, the replacements were jailed as well. Mass meetings, which may have been seen by camp administration as mobs, resulted.

In response to the unrest, the government declared martial law at Tule Lake. It increased the U.S. Army's military police presence fivefold, to battalion strength. Even after martial law was lifted, nationalist gangs terrorized other prisoners. In February 1945, "the anxiety and panic of the [Tule Lake] residents reached a new peak. "Lawlessness, gangsterism and hoodlumism prevailed." 176 F.2d at 961-65.

The government recognized the severity of this anti-Americanism. One could even say they pounced on the opportunity to permanently remove the "bad apples." On July 1, 1944, Congress amended the Nationality Act to allow U.S. citizens to renounce their citizenship while on U.S. soil. 8 U.S.C.A. Section 801(i). (Prior to this amendment, renunciation could occur only when the citizen was abroad and renounced at a U.S. embassy or consulate.) The amendment's purpose was to allow U.S. citizens who were pro-Japan/anti-U.S. to renounce their citizenship while imprisoned in the U.S., thereby transforming them into "enemy aliens." Enemy aliens, in turn, could be further segregated and could be subject to the U.S. Department of Justice's jurisdiction, which included deportation. See 176 F.2d at 962.

After enactment of this renunciation amendment, Tule Lake's still-powerful Japanese nationalist gangs intimidated citizens to renounce their citizenship. Tule Lake prisoners were also concerned with outside threats if they remained in the U.S. Japanese-Americans feared mob violence -- even murder -- if they returned to their homes, especially after Army General John De Witt, who supervised the prisons, publically stated, "A Jap is a Jap," and must be "wiped off the map." 176 F.2d at 958.

As a result of the terror inside Tule Lake and the fears about outside, most U.S. citizens at Tule Lake renounced their citizenship. 176 F.2d at 965.

After Tule Lake began to release prisoners in the wake of Endo, after some Japanese-Americans eventually returned to their homes, and after Japan's surrender, many citizens who had renounced their citizenship now changed their minds: They wished to remain in the U.S. as citizens.

In Acheson v. Murakami, Miye Mae Murakami and two other U.S. citizens of Japanese ancestry sued to cancel their 1944 and 1945 renunciations. All three had been married to Japanese aliens, had been imprisoned at Tule Lake and "were free of any suspicion of disloyalty." After narrating the above treatment of these citizens, the 9th Circuit unanimously ruled that the three renunciations had been the result of "mental fear, intimidation and coercion" and were therefore cancelled. 176 F.2d at 959.

While the three Acheson v. Murakami plaintiffs obtained their prayed-for relief, including restoration of their U.S. citizenship, in 1949, the decision did not directly decide the fates of the thousands of other citizens who had renounced.

In McGrath v. Abo, 186 F.2d 766, 773 (1951), the 9th Circuit dealt with a class action, eventually totaling 4,315 plaintiffs who wished to cancel their renunciations. The court ruled that all citizens imprisoned at Tule Lake had been subjected to the same conditions described in Acheson v. Murakami and therefore are entitled to a rebuttable presumption that their renunciations were involuntary. Unless the government presented evidence that a Tule Lake prisoner's renunciation had been truly voluntary (in which case, an individual hearing would be triggered), then the citizen's renunciation would be cancelled without further proceedings.

McGrath v. Abo's procedures have a common-sense appeal and, more important, worked, in that "almost all" Japanese-Americans who sought to cancel their renunciations were successful in regaining their citizenship. See Cherstin Lyon, "Prisons and Patriots" (2012) at 181.

Still, the procedures were imperfect, and the imperfections illustrated that burdens continued to be imposed on Japanese-Americans. First, the court refused to accept a blanket affidavit of 1,400 plaintiffs' "mental and physical fear." The court held that this "omnibus knowledge of the particular mental condition of ... hundreds of persons is a patent absurdity." 186 F.2d at 773. Yet, nine years earlier, in 1942, courts had been willing to accept blanket treatment -- including mass curfew and mass exclusion -- of all Japanese-Americans. In other words, one mental condition (namely, disloyalty) was used against all citizens of Japanese ancestry, but the court stopped short of allowing another mental condition (namely, fear) to be used in favor of the same citizens.

A second flaw was that that court singled out a particular group of U.S. citizens -- "Kibei," that is, citizens who had been sent to Japan for schooling and, hence, "spent their formative years" there -- against whom the government may choose to offer evidence that their renunciations had been voluntary. Why Kibei's renunciation cancellations were particularly suspect was unexplained. 186 F.2d at 774.

A third flaw was that the 128 imprisoned citizens who renounced at locations other than Tule Lake would lack the benefit of any presumption of coercion. See id. Japanese-Americans at other locations endured the same horrific conditions described in Acheson v. Murakami, save for the presence of Japanese nationalist gangs.

A fourth flaw was that citizens who were suspected of any disloyalty would be unable to cancel their renunciations. In Murakami v. Dulles, 221 F.2d 588, 589-90 (9th Cir. 1955), Yoshio Murakami, while imprisoned at Poston, Arizona, had answered no to the two loyalty questions quoted above.

After he was transferred to Tule Lake -- with its "[v]iolent pro-Japanese detainees" who "knife slashed" and murdered fellow prisoners suspected of being "friendly to the United States" -- he renounced his U.S. citizenship and persisted in his renunciation through February, 1945. The court seemed to conclude, without explanation, that Mr. Murakami's earlier expressions at Poston diminished the likelihood that he could have been coerced at Tule Lake.

Perhaps these flaws can be explained by the times. In the early 1950s, when McGrath v. Abo and Murakami v. Dulles were decided, the U.S. was at war in Korea, and the Red Scare -- epitomized by U.S. Senator Joseph McCarthy's destructive demagoguery -- was at its peak. Suspected disloyalty was not easily excused during those years, even by federal judges who had so graphically condemned prior years of mistreatment of Japanese-Americans.