Three who resisted - Japanese internment case reopens

Repudiated by Congress and decried by Americans generally, the shabby treatment of Japanese residents on the West Coast during World War II continues to prick the nation's conscience.

Three Japanese-Americans who were convicted in 1942 of violating provisions of President Franklin D. Roosevelt's order evacuating people of Japanese ancestry from the Pacific coast and placing most of them in what FDR himself later called ''concentration camps,'' have filed suit to have their convictions reversed.

Basing their case on new information acquired through the 1966 Freedom of Information Act, attorneys for the three charge that in considering their appeals the US Supreme Court was deprived of information that could have affected its ruling. In a 6-to-3 decision, the high court on June 21, 1943, upheld the conviction and imprisonment of Gordon Hirabayashi. On the same day, citing the Hirabayashi decision, the court upheld the conviction of Minoru Yasui. And on Dec. 18, 1944, the court ruled against Fred Korematsu, again based on the Hirabayashi decision.

John J. McCloy, who was assistant secretary of war in 1942 and later served as military governor and US high commissioner in occupied West Germany, is a key figure in the new case. So is Edward J. Ennis, who was director of the Alien Enemy Control Unit of the US Department of Justice. Mr. Ennis is a practicing attorney in New York City. Mr. McCloy, retired and also a New York resident, still defends the 1942 presidential order as ''a rational decision.''

Specifically, attorneys Peter H. Irons and Dale Minami, who head a team of lawyers representing the three plaintiffs, charge that newly acquired material shows McCloy ordered a change in a report justifying the internment which could have misled the court. The original ''final report'' by Army Lt. Gen. John L. DeWitt stated, according to documents released to Irons and Minami, that ''it was impossible to establish the identity of the loyal and disloyal with any degree of safety. It was not that there was insufficient time in which to make a determination: It was simply a matter of facing the reality that a positive determination could not be made, that an exact separation of the 'sheep from the goats' was unfeasible.''

McCloy, the attorneys charge, concerned that General DeWitt's words would undermine the government's contention that there was insufficient time in which to make loyalty determinations, had that changed to say there was ''no ready means'' to separate the disloyal from the loyal.

The petition also alleges that DeWitt's initial report was destroyed.

Ennis comes into the case in connection with a memorandum he wrote to the US solicitor general stating that a footnote to the government's brief in the case should be seen by the court. That note refers to statements by FBI Director J. Edgar Hoover and Federal Communications Commission chairman James L. Fly which directly contradict DeWitt's contention that there were known shore-to-ship signals and radio transmissions to Japanese submarines. At the War Department's urging, according to the San Francisco petition, this footnote was deleted.

Mr. Hirabayashi, who was a student at the University of Washington in 1942, says he violated the government order after asking himself: ''Why am I rushing home from the library when other students are not?'' He later returned to finish his doctorate in sociology and now teaches at the University of Alberta, Canada.

Mr. Korematsu, who was a welder in a San Francisco shipyard when he was arrested for failing to report to an assembly center for evacuation, is a draftsman in the Bay area.

Mr. Yasui, now a resident of Denver, was a practicing attorney in Portland, Ore. when the 1942 order was issued. He says he felt it was unconstitutional and decided to test it after consulting other lawyers. ''I violated the curfew order on purpose because I thought it was wrong,'' he declares. He spent 13 months in jail - nine in solitary confinement.

These men say they not only want their convictions reversed and expunged from the record, but also want to vindicate all who were oppressed under Executive Order 9006.

Their lawyers point out that the June 1943 Supreme Court decision upholding the President's order ''still stands as a precedent'' that could someday endanger the rights of other Americans.