The Lies of Executive Order 9066

Barbara Engstrom, Executive Director, King County Law Library

February 19, 2022 marked the 80th anniversary of FDR’s signing Executive Order 9066, which authorized the forceable removal and incarceration of 120,000 Japanese Americans in concentration camps during World War II. Most of us were likely taught about the internment as part of our history curriculum in middle school or high school and read Korematsu in law school, but the full picture of how the internment came to fruition and the actual story behind how it came to be discredited is not as well known.

In order to help illuminate this history, the King County Law Library, in conjunction with the King County Bar Association, and the Asian Bar Association of Washington will present a free CLE with a screening of Alternative Facts: The Lies of Executive Order 9066 followed by a panel discussion with filmmaker Jon Osaki, King County Superior Court Presiding Judge Patrick Oishi, Professor Lori Bannai of Seattle University School of Law’s Korematsu Center, and moderated by Serin Ngai from Sound Family Solutions.

Filmmaker Jon Osaki’s documentary, Alternative Facts: The Lies of Executive Order 9066, takes an in-depth look at the legal rationale and evidence that undergirded the issuance of E.O. 9066 and Korematsu v. United States,1 the subsequent U.S. Supreme Court Case that upheld its constitutionality. Using historical footage, documents, and interviews, Alternative Facts covers the forces and players that brought E.O. 9066 into being, the work of researchers who uncovered evidence unmasking the manipulated record submitted to the Supreme Court in Korematsu, and the work of the attorneys pursuing coram nobis cases to vacate the convictions of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui.

For me, one of the most eye-opening aspects of the documentary was the role that then California Attorney General, gubernatorial candidate, and subsequent U.S. Supreme Court Chief Justice Earl Warren played in the internment. While, as a state official, he didn’t have direct impact on the decision to establish E.O. 9066, he campaigned on his support of removal of Japanese Americans from California, and as Governor advocated for not allowing interned citizens of California back into the state after their release.

Even after Warren became a civil rights icon for Brown v. Board of Education and other civil liberties cases, he never publicly disavowed his support of the wartime exclusion of Japanese Americans. In his memoirs, published posthumously, Warren did, however, express regret. 2  The most interesting figure of the film, however, is Aiko Herzig-Yoshinaga. An honors student, Aiko was called into her principal’s office in 1942 and told “You don’t deserve to get your high school diploma because your people bombed Pearl Harbor.”3 She quickly married her high school sweetheart to avoid being separated when they were forcibly removed from their homes and imprisoned.

By 1943, Aiko was 18 years old with a newborn baby and living 1,800 miles from her parents, who were imprisoned in Jerome, Arkansas. After the war and her release, she moved to New York and began working with anti-war protests and other activist groups including the Asian Americans for Action. This work and the people she met, including Japanese-American activist Michi Weglyn, spurred her to start thinking more critically about the injustice of her experience in the concentration camps. After remarrying and moving to Washington D.C., Aiko began researching in the National Archives to find out more about her family’s incarceration.

After first finding personal files — school, medical and other records related to her family’s time in camp — she was told of other government records concerning the wartime incarceration. “I started to examine those records, and they grabbed me,” she said in a 1997 interview. Joined by Jack Herzig, by then her husband, she dove into the vast web of documents recording the events leading up to the incarceration, implementing it and then defending it.4

Working independently, Aiko kept meticulous records of her findings, indexing connections between disparate documents. Because of the knowledge acquired during her independent research, when the Congressional Commission on Wartime Relocation and Internment of Civilians was created in 1981, Aiko was hired as a researcher.

A 1943 official War Department report by General John DeWitt provided the justification for the removal and imprisonment of Japanese Americans. During Aiko’s research she came across an unbound version of the DeWitt report with handwritten notes in the margins. Upon examining this report, Aiko soon recognized that this was DeWitt’s original report that countered the official rationale for internment. Another researcher, attorney Peter Irons, had been able to find other documents that showed that the War Department had suppressed evidence and insisted on revisions to DeWitt’s original report to push their justifications for internment, but all copies of the original report had been ordered to be destroyed. Aiko, however, had heard rumors that one copy had gone missing. Because of her meticulous knowledge of the archive, she immediately understood that this was the missing original report and understood its significance as a smoking gun.

Her finding became key evidence in the commission’s report, “Personal Justice Denied,” published in 1982 and ’83. It concluded that the “internment” was based on “race prejudice, war hysteria and a failure of political leadership.” (Herzig Yoshinaga pushed the commission, and later the public, to use the term “concentration camps” to describe the experiences of Japanese-Americans, a majority of them United States citizens, imprisoned without cause or trial, behind barbed wire, surrounded by watchtowers and armed guards.)5

The Personal Justice Denied commission report also had broader impacts. It was instrumental in President Ronald Reagan’s issuing an apology in 1988 which included reparations of $20,000 for each survivor. Aiko’s work also enabled Peter Irons and several co-counsel including Dale Minami and Don Tamaki to bring coram nobis cases to overturn the convictions of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui. The film features interviews with Peter Irons, Dale Minami, Don Tamaki, and several of the other attorneys who worked on the coram nobis cases. Our CLE panelist, Lori Bannai, was also one of the attorneys on the coram nobis team. A recent law school graduate at the time, she had the opportunity to work on the case of a lifetime.

Please join us for the screening of this powerful film and for what I’m sure will be an equally enlightening panel discussion on Friday, April 29 and May 6, 2022. For information about registering visit https://kcll.org/classes[1]at-the-law-library/classes/cles/.

1 323 U.S. 214 (1944).

2 See G. Edward White, The Unacknowledged Lesson: Earl Warren and the Japanese Relocation Controversy, 55 Virginia Quarterly Review (1979).

3 See Maggie Jones, Aiko Herzig Yoshinaga: From Deep in the Archives, She Brought Justice for Japanese Americans, New York Times Magazine (Dec 27, 2018) available at https://www.nytimes.com/interactive/2018/12/27/magazine/lives-they-lived-aiko-herzig[1]yoshinaga.html

4 Id.

5 Id.