The evacuation and imprisonment of approximately 120,000 Japanese Americans¹ from the West Coast during World War II is a now-familiar story of racism against a domestic minority.² But until 1996 when Mochizuki v. United States,³ a class action requesting redress for the incarceration of Japanese Latin Americans, was filed in federal district court, few people knew that the U.S. government, in collaboration with various Latin American governments, also kidnapped, transported, incarcerated, and held hostage over 2,000 Japanese Latin Americans. The bulk of these people were Japanese Peruvians.⁴

Map of one of the Texas internment camps where the U.S. government detained the Japanese Peruvians.

Japanese began emigrating to Peru in 1899 for the same reasons they came to the United States-land, jobs, and the opportunity to make a better life for their children.⁵ By the 1930s, many were economically successful and, like Japanese Americans on the West Coast, had become targets of local hostility and racism.⁶ Nonetheless, by 1940, there were at least 25,000 Peruvians of Japanese descent, some of whom were Peruvian citizens.⁷

Although Peru was a non-belligerent during World War II, it entered into an agreement to promote hemispheric unity⁸ and in 1942, acceded to U.S. pressure to break diplomatic ties with the Axis powers.⁹ Peru accepted a U.S. proposal that all Axis officials be repatriated through the United States, and then asked the United States to take non-officials as well.¹⁰ These were civilian men, women, and children, both Japanese and Peruvian citizens.¹¹ Some "volunteered" for repatriation, and many of the women and children left in order to be reunited with their husbands and fathers. Large numbers were simply kidnapped by the Peruvian police, however, and turned over to U.S. officials.¹² Very few of these individuals had been classified as "dangerous" to either Peruvian or U.S. security.¹³ American consuls in Peru were instructed not to issue visas to Japanese Peruvians, and passports and other documents were illegally seized from those who had them.¹⁴ One group of men was sent via Panama, where they spent several weeks at forced labor, clearing jungle in the Canal Zone.¹⁵ Others were shipped directly to San Francisco or New Orleans. Upon arrival, all were turned over to I.N.S. officials who then declared them to be in the country illegally. ¹⁶ The Department of Justice, through the Immigration and Naturalization Service, held the Japanese Peruvians and other Japanese Latin Americans in concentration camps¹⁷ in Texas for the duration of the war.¹⁸

The United States' motivation for going to all of this trouble and expense, most of which violated both U.S. and international law,¹⁹ appears to have been a desire for hostages to be exchanged for Americans held in the Japanese-occupied territories.²⁰ Thus, even though concern about hemispheric security had diminished by October 1942, Secretary of State Hull, noting that there were 3300 American citizens still in China, 3000 in the Philippines, and 700 in Japan proper, recommended that there be no let-up in the hemispheric removals of "all the dangerous Germans and Italians" and "all the Japanese . . . for internment in the United States."²¹ This was not a new idea. In 1936, George Patton, then Chief of Military Intelligence, suggested a plan "[t]o arrest and intern certain persons of the Orange race [Japanese] who are considered most inimical to American interests, or those whom, due to their position and influence in the Orange community, it is desirable to retain as hostages."²² In January 1942, Major Karl Bendetson, the architect of the Japanese American internment, noted that "the `hostage idea' has not been sufficiently explored . . . ."²³

Over 500 Japanese Peruvians were in fact included in the two exchanges that took place in 1942 and 1943.²⁴ Evidence suggests that attempts to arrange a third exchange fell through at least in part because of the Japanese government's reaction to the hostage taking and to the harsh treatment of Japanese Americans held in the Tule Lake camp.²⁵ This left over 1300 Japanese Peruvians imprisoned in the United States.²⁶ At the end of the war, Peru refused to allow these people to return.²⁷ Pressured by the United States, it eventually agreed to the return of those who were either Peruvian citizens or married to citizens.²⁸

In March 1946, a full seven months after Japan's surrender, Acting Secretary of State Dean Acheson asked Attorney General (later Supreme Court Justice) Tom Clark to inform the Japanese Peruvians that, because there was no "clear evidence" that they posed a threat to "the security and welfare of the Americas," they were "no longer subject to restraint."²⁹ Although the U.S. Justice Department recognized that it was illegal to forcibly repatriate the Japanese Peruvians to Japan,³⁰ it refused them permission to stay in the United States.³¹ Ironically, the arrest warrant of one Iwamori Sakasegawa stated that he was to be deported because "he was an immigrant not in possession of a valid immigration visa[,] . . . did not present an unexpired passport[, was] an alien ineligible to citizenship and was not entitled to enter the United States."³² Some "700 men and their dependents" had no choice but to allow themselves to be deported to Japan.³³ The plight of the remaining 365 Japanese Peruvians came to the attention of Wayne Collins, a remarkable attorney who was carrying on a one-man battle against the forced "repatriation" of Japanese Americans.³⁴ Collins eventually got the remaining deportations halted and found employment for many of them at Seabrook Farms in New Jersey, a frozen food processing plant (now Birdseye) that had used German POW labor during the war.³⁵ Some in this final group were later able to legalize their immigration status and become U.S. citizens.³⁶ None of the abducted Japanese Peruvians, even those who became U.S. citizens, received the redress eventually provided to Japanese Americans under the Civil Liberties Act of 1988 because that Act limits redress to persons who, at the time of internment, were American citizens or permanent residents.³⁷ The class action brought in Mochizuki v. United States is challenging that limitation.³⁸

There is no doubt that the kidnapping, deportation, incarceration, holding hostage, and forced repatriation of the Japanese Peruvians violated international law.³⁹ Forcibly transporting civilians from a non-belligerent to a belligerent country and holding them as hostages for exchange was prohibited at that time by the laws and customs of war.⁴⁰ In fact, the drafters of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War noted that they were compelled by the events of World War II to articulate prohibitions on deportations that had previously been considered unnecessary because it was assumed that civilized nations no longer resorted to such practices.⁴¹ John Emmerson, the State Department official who supervised the deportations for the U.S. Embassy in Lima, later acknowledged that the program "was clearly a violation of human rights and was not justified by any plausible threat to the security of the Western Hemisphere."⁴² Interdepartmental correspondence makes it clear that the U.S. State Department was largely unconcerned about the legality of interning Japanese Peruvians, while the Justice Department, although aware that only the internment of individual Axis nationals who were identified as "dangerous to hemispheric security" was even arguably legal, did little to enforce compliance with international law.⁴³

The U.S. government's disregard for international law was facilitated by the racism of American officials, both civilian and military, toward those identified as Japanese, regardless of their citizenship.⁴⁴ This attitude is reflected in a December 1943 memorandum to Secretary of State Hull from Assistant Secretary Long.⁴⁵ After noting that the U.S. had "quite of number of these Japanese (of American nationality) serving in our Army whom we could not in justice kick out of the United States after they had fought with us," Long said:

The Department has a responsibility . . . in connection with the internment camps, relocation centers and prisoners of war camps in this country where Japanese citizens and American citizens of Japanese race are confined. I have appeared before two committees of the Senate where the subject has been discussed and. . . a large-scale operation to get them out of the United States seems to be the hope of the members of those committees.

The problem has been complicated by our laws relating to citizenship and by the constitutional provision regarding the native born character of the citizenship of those born here. The Attorney General is reported to have said recently . . . that he had a formula under one of our statutes by which a native-born Japanese or one naturalized could be divested of his American citizenship - thus making him eligible for deportation. . . . I think the far larger part of official sentiment is to do something so we can get rid of these people when the war is over . . . .But sentiment is liable to wane if the authorization measures are not adopted before the war ends. We have 110,000 of them in confinement here now - and that is a lot of Japs to contend with in postwar days . . . .⁴⁶

Racism against those of Japanese descent allowed the U.S. government to imprison Japanese Americans during World War II and to contemplate expatriation or deportation plans such as that described by Long. The treatment of U.S. citizens and permanent residents in this manner is consistent with policies that endorse abducting Japanese Latin Americans, bringing them to the United States, and holding them in prison camps. In turn, the ease with which the Japanese Latin Americans could be kidnapped and held hostage made it easier for government officials to justify the internment of Japanese Americans in violation of both international and domestic law, and even to consider stripping them of all rights and deporting them after the war was over.

It is interesting to contemplate how differently both Japanese Latin Americans and Japanese Americans would have been treated had the U.S. government adhered to international law. Although the main body of what is now identified as international human rights law was not explicitly articulated until after World War II, there were many provisions of humanitarian law that prohibited such treatment of civilians, even in times of war. Legal challenges to the Japanese American internment were framed in the context of domestic law, and U.S. courts, up to and including the Supreme Court, upheld the constitutionality of the internment.⁴⁹ In the 1980s, after discovering evidence that the War Department had deliberately misled the Court about the existence of a military threat posed by Japanese Americans, coram nobis petitions were brought by Gordon Hirabayashi and Fred Korematsu, challenging their convictions in the earlier cases. Even though their convictions were vacated, the precedent set by the earlier decisions was not overturned.⁵⁰

As a practical matter it is highly unlikely that a federal court during World War II would have stopped either internment just because it violated international law. Nonetheless, had there been forces within the government, the courts, or the public which prevented the United States from interning all but those Japanese Latin Americans who had been individually identified as dangerous, it would have been much more difficult to justify interning all persons of Japanese ancestry from the West Coast. The fact that the United States could have complied with international law in both of these cases is illustrated by the procedures implemented in Hawaii. Although the Japanese had attacked Hawaii, only those persons of Japanese descent who were individually considered dangerous were interned on the urging of the Military Governor. There were no security problems as a result of this policy and, in fact, a high proportion of Japanese Hawaiians volunteered for military service.⁵¹

Notes

1 Two thirds of this number were second generation Japanese Americans who were American citizens by birth. See Ronald Takaki, Strangers From a Different Shore 15 (1989). Because the racial restrictions imposed by the Naturalization Act of 1790 (limiting naturalization to "free white persons" and, after passage of the Fourteenth Amendment, adding persons of African descent) were not fully removed until the Naturalization Act of 1952, the first generation Japanese immigrants were not eligible to become U.S. citizens. See Ian F. Haney Lopez, White by Law: The Legal Construction of Race 1 (1996). Nonetheless, they were in the United States as permanent residents, committed to staying here and raising their children as Americans. Therefore, I use the term "Japanese American" to encompass this entire community, regardless of citizenship.

2 See Korematsu v. United States, 323 U.S. 214 (1944), conviction vacated 584 F. Supp. 1406 (N.D. Cal. 1984); Hirabayashi v. United States, 320 U.S. 81 (1943), conviction vacated 828 F.2d 591 (9th Cir. 1987). For a description of U.S. treatment of Japanese Americans, see generally Commission on Wartime Relocation & Internment of Civilians, Personal Justice Denied (1982); Peter Irons, Justice at War: The Story of the Japanese American Internment Cases (1983) [hereinafter Justice at War]; Japanese Americans: From Relocation to Redress (Roger Daniels et al. eds., 1991); Justice Delayed: The Record of the Japanese American Internment Cases (Peter Irons ed., 1989) [hereinafter Justice Delayed]; Michi Nishiura Weglyn, Years of Infamy: The Untold Story of America's Concentration Camps (1996); Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186 (1985) (reviewing Peter Irons, Justice at War (1983)); Eugene V. Rostow, The Japanese-American Cases-A Disaster, 55 Yale L. J. 489 (1945); and Eric K. Yamamoto, Korematsu Revisited-Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 Santa Clara L. Rev. 1 (1986).

3 Mochizuki v. United States, No. 96-5986 (C.D. Cal., filed Aug. 27, 1996). On July 12, 1998, the U.S. Justice Department announced that it had reached a settlement with the plaintiffs. The settlement consists of a brief letter of regret from President Clinton and an agreement to pay each surviving Japanese Latin American internee $5,000 out of funds allocated under the 1988 Civil Liberties Act after all Japanese American claimants have been paid. Not only is this amount significantly less than the $20,000 paid to each Japanese American internee, but the claims of Japanese Latin American internees are expected to exceed the available funds. A hearing to finalize the settlement is scheduled for November, 1998. See Aurelio Rojas, U.S. Offers Internees Apology, S.F. Chron., June 13, 1998, at A1; Lena H. Sun, U.S. Apologizes for Internment, Wash. Post, June 13, 1998, at A04.

4 See generally John Emmerson, The Japanese Thread 125-49 (1978) (describing the treatment of Japanese Peruvians); C. Harvey Gardiner, Pawns in a Triangle of Hate: The Peruvian Japanese and the United States (1981) (same); Weglyn, supra note 2, at 54-66 (describing treatment of Japanese Latin-Americans).

There were Japanese Latin Americans taken from numerous other countries as well, but by far the largest number came from Peru. See Weglyn, supra note 2, at 60 (eighty percent of the Latin-American Japanese deportees were from Peru); see also Gardiner, supra note 4, at 134, tbl. 9 (showing that only 18 Bolivians and 495 Peruvians of Japanese descent remained in U.S. custody as of Jan. 31, 1946.)

5 See generally Emmerson, supra note 4, at 130-33 (describing Japanese migration to Peru); Gardiner, supra note 4, at 3-11 (same).

6 See Emmerson, supra note 4, at 132 ("[t]he patent success of the Japanese won them enmity"); Gardiner, supra note 63, at 8; Weglyn, supra note 61, at 60.

7 The Peruvian census of 1940 reported 17,598 Japanese citizens and 8,790 second generation Peruvians of Japanese descent, for a total "Japanese" population of 25,888. See Emmerson, supra note 63, at 131; see also Memorandum (no. 7288) from R. Henry Norweb to Secretary of State, encl. No. 1 (July 7, 1943) (on file with author). The State Department files also contain a translation of an article entitled "Japanese in Peru," which states that in 1940 there were 50,000 Peruvians of Japanese descent. See Letter (May 27, 1943) (summarizing Japanese in Peru) (on file with author).

8 See Weglyn, supra note 61, at 58-59; see also Gardiner, supra note 63, at 16-17.

9 See Gardiner, supra note 4, at 18-19.

10 See Gardiner, supra note 4, at 19, 23 tbl. 4.

11 Emmerson says, "From April 4, 1942 until July 9, 1943, during the period I was in Lima, the embassy participated actively in the expulsion from the country and transportation to the United States of 1,024 Japanese, of whom 399 were women and children." Emmerson, supra note 4, at 139; accord Gardiner, supra note 4, at 41 (noting American authorities' insistence that "citizenship should not stand in the way of their efforts to deport individuals from Peru.").

A Department of State, Special War Problems Division [hereinafter "SWP"] report, dated July 6, 1944, states: "Following Peru's severance of diplomatic relations in April 1942 with the Axis nations, 569 Germans and 1,737 Japanese nationals have been removed from Peru for internment in the United States." See U.S. Department of State, SWP, Report No. 6467 (July 6, 1944) (on file with author.)

12 See Gardiner, supra note 4, at 24, 27-29, 67-69; Weglyn, supra note 2, at 61. The SWP memorandum on the "Control of Japanese in Peru," supra note 11, states that "through political influence and bribery," a number of "dangerous Japanese leaders" have avoided deportation. Letter No. 7314, dated July 10, 1943, from the embassy in Lima to the Secretary of State, states that a Mrs. Chieko Nishino had been arrested and sent to join her husband in a U.S. internment camp despite her insistence that she would kill herself if deported. See Letter (No. 7314) from George M. Butler, First Secretary of U.S. Embassy, to U.S. Secretary of State (July 10, 1993) (on file with author).

13 Emmerson says:

Lacking incriminating evidence, we established the criteria of leadership and influence in the community to determine those Japanese to be expelled. We prepared lists, which we presented to the Peruvian authorities. These authorities, committed at least personally if not officially, to the expulsion of all Japanese, treated our proposed lists rather lightly. Emmerson, supra note 4, at 143; accord Gardiner, supra note 4, at 16-17, 27-28, 39-40, 44 tbl. 5, 67-68; Weglyn, supra note 61, at 63.

State Department Memorandum No. 6239 from Ambassador Norweb to the Secretary of State, dated March 3, 1943, indicates that of the 119 Japanese Peruvians who were evacuated on the S/S Frederick C. Johnson on February 24, 1943, 15 were recommended for expulsion by the Embassy. Memorandum from R. Henry Norweb to U.S. Secretary of State (Mar. 3, 1943) (on file with author). Another State Department letter entitled War Problems, dated August 24, 1944, notes that the new Peruvian ambassador had been "sent to the United States to get rid of the Japanese in Peru and to buy matches and that he was not interested in any other matters . . . ." Letter from A.E.C. to Keeley (Aug. 24, 1944) (on file with author).

14 See Gardiner, supra note 4, at 29, 41.

15 Cf. id. at 69 (describing their living conditions in Panama).

16 Cf. id. at 46, 70 (describing claims of their illegal entry); Weglyn, supra note 2, at 64 (same).

17 While some consider this term too harsh, Harold Ickes, Secretary of the Interior, called them "fancy-named concentration camps." Weglyn, supra note 2, at 18; accord Roger Daniels, Concentration Camps USA: Japanese Americans and World War II (1972).

While these camps were far from the death camps run by the Nazis, the parallel was not lost on the world. Michi Weglyn reports: "In his article, `The Man Behind a Famous Court Case,' (Pacific Citizen, February 13, 1970), Ray Okamura wrote: `Gordon [Hirabayashi] had a grim and thought-provoking footnote: "The Nazi defendants at the Nuremberg Tribunal cited the Hirabayashi and Korematsu decisions as a defense."'" Weglyn, supra note 2, at 291 n.14.

18 These camps were located in the Texas towns of Kenedy, Seagoville and Crystal City. See Gardiner, supra note 63, at 29-31, 36-37, 58-61. [Weglyn: at this time, no evid. of mistreatment of Americans held by Japanese].

19 The Alien Enemies Act, 50 U.S.C. § 21-23 (1988), only allowed the executive to intern or deport enemy aliens. See id. § 21. The United States was a party to hemispheric security arrangements, but they only allowed for the restraint or removal of "certain dangerous alien enemies." Proclamation No. 2685, 60 Stat. 1342 (1946) (citing adopted May 21, 1943, Emergency Advisory Committee for Political Defense Res. XX; adopted Jan. 28, 1942, Conference of Foreign Ministers Res. XVII); accord Emmerson, supra note 63, at 126. Weglyn states:

By early 1943, the Justice Department . . . had become greatly alarmed at the number of internees being sent up. Worse, it had come to its attention that many being held under the Alien Enemies Act were not enemy Japanese but Peruvian nationals, thus aliens of a friendly nation; and that little or no evidence supported the Peruvian Government's contention that their deportees were dangerous.

Weglyn, supra note 2, at 63.

20 Weglyn, supra note 2, at 54-56; see also State Department officer A.E. Clattenberg, Outline of Negotiations for Exchange of American Civilians in Japanese Hands (Oct. 12, 1943) (on file with author); Memorandum (June 15, 1942) (on file with author) (summarizing "American-Japanese exchange agreement") (on file with author); Letter from Francis Biddle, Attorney General to Secretary of State (June 28, 1943) (agreeing to withdraw the Justice Department's objections to the repatriation of 12 Japanese nationals to avoid endangering "the entire Japanese repatriation negotiations," in light of "the primary objective of obtaining the return of American nationals.") (on file with author).

21 Weglyn, supra note 2, at 62-63 (emphasis added); accord supra note 78 (regarding the legal implications of imprisoning persons not found to be "dangerous").

22 Weglyn, supra note 2, app. 7, at 182.

23 Id. In August 1941, months before the attack on Pearl Harbor, Congressman John Dingell of Michigan suggested to the President that:

we remind Nippon that unless [Japan allows the departure of one hundred U.S. citizens reportedly detained in Japan] within forty-eight hours, the Government of the United States will cause the forceful detention or imprisonment in a concentration camp of ten thousand alien Japanese in Hawaii; the ratio of Japanese hostages held by America being one hundred for every American detained by the Mikado's Government. It would be well to further remind Japan that there are perhaps one hundred fifty thousand additional alien Japanese in the United States who will be held in a reprisal reserve . . . . Id. at 55.

24 See Gardiner, supra note 4, at 48, 84-85.

25 In June 1944, Secretary of State Hull wrote President Roosevelt that "the detention of [the Japanese Americans] and incidents that have occurred in our detention centers have resulted in protests from the Japanese Government and have supplied that Government with pretexts for refusing to negotiate for further repatriation of our nationals in Japanese custody or for their relief." Weglyn, supra note 2, at 222. The Clattenberg "Outline," points out the "tremendous resentment" and "a lessening of Japanese interest in the exchange of nationals" due, in part, to reports from Japanese repatriated from the U.S. See Clattenberg, supra note 79 (manuscript at 3, on file with author). On the determination of "loyalty" and the segregation at Tule Lake, see Weglyn, supra note 2, at 146-173; cf. Tokyo Makes Most of Tule Lake Riots, Chi. Sun, Nov. 15, 1943, reprinted in id. at 15 (describing reactions to the riots there).

Referring to the forced deportation of Chieko Nishino from Peru, see supra note 12, a State Department memorandum voices concern that the related "unfavorable propaganda" could effect "our exchange negotiations with Japan" should Mrs. Nishino commit suicide. Memorandum from J.K.W. to the Ambassador (July 9, 1943) (on file with author); see also Brief Review of Impressions Obtained at Immigration Detention Stations at Kenedy, Crystal City and Seagoville, Texas (July 9, 1943) (noting that the physical conditions in the camps were so poor as to "most likely produce on the part of the enemy retaliation against our Americans") (on file with author); Memorandum from Spanish Embassy (June 5, 1944), reprinted in Weglyn, supra note 61, at 185 (transmitting Japanese government's protest over the internment of Japanese residents of Peru and Bolivia).

26 See Gardiner, supra note 4, at 116 tbl. 8.

27 A State Department memorandum of Nov. 2, 1945 states that "the Peruvian government has indicated on a number of occasions that it does not look with favor on the return to Peru of the Japanese . . . now interned in the United States." Memorandum (Nov. 2, 1945) (on file with author).

28 See Gardiner, supra note 4, at 169-171; Weglyn, supra note 2, at 64. According to Gardiner, "[f]ewer than 5 percent of the deported Peruvian Japanese-considerably fewer than one hundred persons-were allowed to return to South America." Gardiner, supra note 4, at 174.

29 Gardiner, supra note 4, at 136.

30 A "War Problems" memorandum dated September 1, 1944 noted that the author "was informed by Mr. Ennis [Department of Justice, Director of the Alien Enemy Control Unit] that the law precludes Justice [referring to the Department of Justice] from holding non-alien enemies in an interned status beyond a period of three months." Memorandum (Sept. 1, 1944) (entitled "War Problems") (on file with author). According to Gardiner, the Justice Department "insisted that it could justify the detention of the Latin American Japanese only if some satisfactory means were instituted to determine whether the enemy aliens were dangerous." Gardiner, supra note 4, at 64; accord id. at 73-74.

On July 14, 1945 and April 10, 1946, Presidential Proclamations entitled "Removal of Enemy Aliens" were issued, specifically allowing the deportation of interned Latin Americans pursuant to the Alien Enemy Act. See Proclamation No. 2685, 60 Stat. 1342 (1946); Proclamation No. 2655, 59 Stat. 370 (1945).

31 See Emmerson, supra note 4, at 148-149. A U.S. State Department Notice to the Internees from Latin America, dated Jan. 4, 1946, explained that the internees were being held pursuant to the Alien Enemy Act, and that they could not remain in the U.S. after release from custody because their "entry into the United States was not made under the immigration laws." U.S. Dept. of State, Notice to the Internees from Latin America (Jan. 4, 1946) (manuscript at 3, on file with author); accord Truman Acts on Axis Nationals, Baltimore Sun, Sept. 9, 1945 (from U.S. Dept. of State Alien Enemy Control Section file), noting that the President by proclamation gave the State Department "the authority to get rid of 1,300 Japanese and 900 German aliens who were arrested in Latin America during the war and brought to this country for interment." According to the article, the internees included "spies, saboteurs, provocateurs and propagandists." Id. See also State Department Memorandum of Meeting dated Aug. 31, 1944 on the subject of the "Postwar disposition of interned alien enemies received from the other American republics," anticipating "difficulties in disposing" of them but determining that none of the internees should be allowed to remain in the U.S., despite the fact that "some individuals sent here for internment were undoubtedly relatively harmless." Memorandum of Meeting (Aug. 31, 1944).

32 Gardiner, supra note 4, at 138.

33 See Weglyn, supra note 2, at 64. A letter from the Officer in Charge of the Santa Fe, New Mexico Department of Justice Internment Camp to the State Department, dated April 3, 1946, lists the 81 Japanese Peruvians held in the camp and notes that of that number, only 4 were willing to accept voluntary repatriation to Japan. See Letter from Ivan Williams, Officer in Charge, U.S. Dep't of Justice/I.N.S. Internment Camp, Santa Fe, New Mexico, to Dep't of State, Alien Control Section (Apr. 3, 1946) (on file with author).

34 Collins, who had represented Korematsu and Endo in their challenges to the internment, also represented hundreds of Japanese Americans whom the U.S. government was trying to deport. See Gardiner, supra note 4, at 141-42; Weglyn, supra note 2, at 253-65. Because the majority of the incarcerated Japanese Americans were U.S. citizens, the term "repatriation" is inaccurate. Nevertheless, it is frequently used in this context, furthering the perception that these Americans were "foreign."

35 See Gardiner, supra note 4, at 142; Weglyn, supra note 2, at 64-65; see also Letter from Albert Clattenburg, State Department, to the Peruvian Embassy (Aug. 26, 1946) (identifying eight Japanese Peruvians employed at Seabrook Farms and noting that 355 Japanese from Peru remained in custody) (on file with author).

36 See Weglyn, supra note 2, at 66; cf. Gardiner, supra note 4, at 175 (discussing Japanese Peruvians who became U.S. citizens).

37 See The Civil Liberties Act of 1988, 50 U.S.C. § 1989b-7(2) (1990). Furthermore, the Act excludes persons who "relocated" to a country between Dec. 7, 1941 and Sept. 2, 1945 while the United States was at war with that country. See id.

38 Mochizuki v. United States, No. 96-5986 (C.D. Cal., filed Aug. 27, 1996) (on file with author); see First Amended Civil Rights Complaint, Mochizuki, (filed Feb. 3, 1997) (on file with author).

39 According to a March 1998 submission of International Educational Development to the 54th Session of the United Nations Commission on Human Rights:

At the time this program was in operation, international humanitarian law clearly forbade war-time abduction, incarceration, and deportation of civilians from friendly countries. Exchange of civilians from a friendly country to an enemy third party was viewed as especially serious and in this case, met the criteria of hostage-taking. . . . International law also forbade slavery and forced labour (the conditions of the Latin Americans held in the Panama camps clearly met the then-existing prohibition against slavery and forced labour) whether in peacetime or in war. The Charter of the International Military Tribunal (Nuremberg Charter), the Charter of the Military Tribunal for the Far East (Tokyo Charter) and the earlier Control Council Law 10 set out these acts as war crimes and crimes against humanity at the time of World War II. Arbitrary Detention of Latin Americans of Japanese Ancestry (Mar., 1998) (manuscript at 2, on file with author). See generally LaRae Larkin, The Legitimacy in International Law of the Detention and Internment of Aliens and Minorities in the Interest of National Security (1996) (discussing detention and internment of aliens and minorities in authoritarian and democratic states); Alfred M. de Zayas, International Law and Mass Population Transfers, 16 Harv. Int'l L.J. 207 (1975) (exploring the difference between legal and illegal transfers of populations); Jean-Marie Henckaerts, Deportation and Transfer of Civilians in Time of War, 26 Vand. J. Transnat'l L. 469 (1993) (arguing that states should be prohibited from deporting civilians during time of war).

40 This was recognized by the United States government as early as 1863, when it was stated in General Order No. 100 of the U.S. Army ("Lieber's Code") that "private citizens are no longer murdered, enslaved, or carried off to distant parts. . . ." Richard Shelly Hartigan, Lieber's Code and the Law of War 49 (1983). According to Georg Schwarzenberger, at the Hague Peace Conferences of 1899 and 1907, "[t]o raise the issue of the illegality of the deportation of the population of occupied territories was considered unnecessary; the illegality was taken for granted." Georg Schwarzenberger, 2 International Law as Applied by International Courts and Tribunals 227 (1968). In 1924, the Belgo-German Mixed Arbitral Tribunal stated in Moriaux v. Germany that deportation of civilians was a "`most flagrant and atrocious breach of international law.'" See Schwarzenberger, supra, at 228-29. Beginning in 1921, the International Red Cross began articulating prohibitions on the mass deportation of civilians and the taking of hostages, but these were not finalized before the outbreak of World War II. See Donald A. Wells, War Crimes and Laws of War 50-51 (2d. ed. 1991).

41 "The 1907 Hague Regulations do not provide an explicit prohibition of deportations. The Commentary to Geneva IV explains that this was probably so `because the practice of deporting persons was regarded at the beginning of this century as having fallen into abeyance.'" Henckaerts, supra note 39, at 480; accord de Zayas, supra note 39, at 210-211 (noting that the 1907 Hague Regulations were silent on the issue of deportations because deportations were no longer practiced in "so-called civilized warfare."). It is also interesting to note that one of the defenses raised at the Nuremberg trials was the United States' treatment of Japanese Americans. See Weglyn, supra note 2, at 75.

42 Emmerson, supra note 4, at 149.

43 See supra note 19; see also Memorandum (1943) (Enclosure No. 1 to despatch No. 6239 (Mar. 3, 1943) from the U.S. Embassy in Lima) (on file with author) (describing the deportation of Axis nationals, and outlining the review of State Department procedures by Raymond Ickes of the Alien Enemy Control Unit of the Department of Justice in which Ickes insisted that only "dangerous" enemy aliens could be arrested, and that there was inadequate evidence for some of the proposed deportations).

44 The most famous of these are probably General DeWitt, head of the Western Defense Command, who said "`A Jap's a Jap. It makes no difference whether he is an American citizen or not,'" Weglyn, supra note 2, at 201, and then-Governor of California Earl Warren, who had to be warned by the Army in December 1944 that people of Japanese ancestry had to be allowed safe return to the West Coast. See id. at 192-93 (reprinting of letter to Earl Warren from Robert Lewis).

45 See Weglyn, supra note 2, at 190-91.

46 Id. (emphasis added).

47 Id. at 217.

48 Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting).

49 Various aspects of the internment were upheld in Ex parte Endo, 323 U.S. 283 (1944); Korematsu v. United States, 323 U.S. 214 (1944); Yasui v. United States, 320 U.S. 115 (1943); and Hirabayashi v. United States, 320 U.S. 81 (1943).

50 See Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987); Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984).