Eric Muller, professor of law, went looking for a little color to enliven constitutional law lectures and wound up writing a book—Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II. Poring over archival materials about draft resisters from Japanese American internment centers, Muller found a story he couldn’t ignore—a story resonant with themes from his family’s history. (Muller’s family is German Jewish and fled to America only to be classed as enemy aliens when America entered World War II.)

The story on these pages is an excerpt from a lecture that Muller gave on the occasion of receiving the 2000 Philip and Ruth Hettleman Prize for Artistic and Scholarly Achievements by Young Faculty. The lecture was based on his book, which was published by the University of Chicago Press in September 2001.

y January 1944, the United States government had placed almost impossible burdens on its West Coast citizens of Japanese ancestry. In March 1942, in the wake of the Japanese attack on Pearl Harbor, the government had first confined them to their homes from dusk to dawn and then rounded them up and warehoused them over the summer in "assembly centers"—filthy sheds hastily thrown up at local fairgrounds and racetracks. That fall, the government shipped them off for indefinite detention behind barbed wire in desolate camps such as the Minidoka Relocation Center in Idaho, the Heart Mountain Relocation Center in Wyoming, and the Tule Lake Relocation Center in California. Their crime was their ethnicity, and the government made them pay for it with their livelihoods, their possessions, their liberty, and their dignity.

The government demanded still more. In January 1944, it announced that it would begin drafting the very same Japanese American men it was jailing on suspicion of disloyalty. They were to join the same army that had been guarding them for years and that would continue to aim weapons and searchlights at their parents and siblings even if they enlisted.

This extraordinary demand left these young Japanese American men (Nisei) without good choices. On the one hand, they could swallow their outrage at years of mistreatment and leave captivity to fight for someone else’s freedom. To do this would mean more than risking their own lives; it also would mean leaving their families behind to uncertain futures as wards of a hostile government. On the other hand, they could give voice to their outrage and resist the draft. To do this was to risk prosecution, many more years of incarceration, and the lifelong stigma of a felony conviction.

Most of the young men in the camps choked back their resentments and chose to accept the draft as just another unwanted test of their patriotism. Many served bravely in Europe with the 442nd Regimental Combat Team, the racially segregated battalion that the army created for Japanese Americans. Some lost limbs, others their lives.

Some of the internees refused to comply with their draft orders. More than 300 Nisei from the 10 internment camps refused to show up for induction. They pressed a simple moral question: If we are loyal enough to be in the army, what are we doing behind barbed wire?

ot only did the government decline to answer the question, it punished the resisters for asking it. Through the spring and summer of 1944, agents of the U.S. Marshals Service went to their tar paper barracks and arrested them on charges of draft evasion, carting them off to local jails to await trial. Their cases came to trial in six federal courtrooms across the western United States that summer and fall.

Many of the defendants were at least guardedly optimistic, feeling that if any branch of the federal government might protect them, it would be the judiciary. Although it was wartime, this was not an entirely unrealistic hope. Franklin Delano Roosevelt had had 12 years to load the federal bench with New Deal liberals. Brown v. Board of Education, the most daring defense of individual freedom ever undertaken by any branch of the American government, was just a decade down the road. The federal courts that would hear the prosecutions of the Japanese American draft resisters were in flux, moving from earlier, more timid times on matters of civil rights to the bolder ones that lay ahead.

But the federal justice system failed the resisters dismally in two distinct ways. One was a human failure—a callous refusal of judges and juries to provide the resisters with basic fairness. The other was a failure of law—the troubling inability of even a compassionate and heroic judge to give a persuasive legal account of his moral outrage at the government’s treatment of the resisters.

First, the tale of human failure—the story of the Japanese American draft resisters from the Minidoka Relocation Center in southern Idaho. For a time, it looked as though Minidoka would see no resistance to the draft; events that roiled other camps caused little turmoil at Minidoka.

Although tensions had risen at Minidoka by late 1943, reaction to the reopening of the draft in January 1944 was muted. Resentment over the draft smoldered until late April, when six of 57 internees called for induction did not show up. One of the six was Gene Akutsu, the younger son of Kiyonosuke and Nao Akutsu, an Issei (Japanese immigrant) couple from Seattle.

By this point, 18-year-old Gene had been uprooted from his home; lost his chance to attend college; and seen his father seized by the FBI the day after Pearl Harbor and, without formal charges, jailed for two years in a Justice Department camp for enemy aliens. Gene, with his brother and mother, had been held for nearly two years.

Gene reacted with indignation when his induction notice arrived in late April 1944. He felt the government "had been kicking us around a lot," and he was "not going to stand for that" any longer. When "the day finally came for [me] to go for induction," Gene recalls, "I just didn’t go." His mother worried aloud that "we don’t know what is going to happen to you, or whether we’ll ever see you again."

On April 29, 1944, a deputy U.S. Marshal appeared at the door of the Akutsu family’s barrack with a warrant for Gene’s arrest. He surrendered peacefully and made the three-hour trip to Boise, where the deputy marshal took him to city hall. Gene had no hope of producing the $1,000 bail set by the U.S. commissioner, so the deputy marshal drove him to the Ada County Jail in Boise, where he would await his September trial date.

inidoka suddenly had a protest on its hands. More Nisei—including Gene’s older brother, Jim—joined the ranks of those refusing to appear for induction. By the end of the summer, 38 Minidokan resisters were sitting in the Ada County Jail awaiting trial.

Finally, on September 6, 1944, they were able to take a walk—a walk under armed guard to federal court, where they were to be arraigned on draft evasion indictments that the grand jury returned that morning. The judge waiting to arraign them, Chase A. Clark, had been appointed less than two years earlier, after losing a bid to be reelected to a second term as governor of Idaho.