Free to Die for Their Country . . .

rom our perspective 55 years later, it is easy to point the finger of blame for the plight of the Japanese American draft resisters at human beings like Clark and the 34 Idaho jurors who could not find it within themselves to offer these young men a fair trial. But the story is not that simple. The story of the draft resisters from the Tule Lake camp shows an even more difficult aspect of the story of the Japanese American resisters: behind these human failures was a failure of law itself.

Judge Louis Goodman ordinarily heard cases in San Francisco but traveled to the small logging and fishing town of Eureka to hear the cases of the 26 resisters from Tule Lake. Eureka had a long history of anti-Asian prejudice. Had Goodman consulted the Chamber of Commerce’s Guide to Eureka when he arrived, he would have seen on its cover the boast that Humboldt County was the only county in California without a "Chinaman." It quickly became apparent to Goodman that the townspeople of Eureka were prepared for not so much a trial as a judicial lynching.

Goodman saw the case against the resisters very differently from Clark, and he was prepared to hand the government a defeat. He and his law clerk were, however, concerned that "something terrible might take place" if he ruled in the defendants’ favor because "there was such terrible prejudice in the community." Indeed, they were a bit frightened for their own safety—scared that "they might be lynched."

As a result, Goodman left the resolution of the Tule Lake resisters’ case to the very last minute of his week in Eureka— a special Saturday morning session. He and his law clerk toiled late into Friday night, struggling to produce an opinion that would support dismissal of the government’s charges. The dearth of legal research materials in Eureka did not make it easy. By Saturday morning, they had managed to cobble together an opinion dismissing the charges on due process grounds. Goodman read it from the bench as a car idled outside the courthouse, ready to take him and his clerk back to San Francisco.

The heart of Goodman’s opinion was his holding that the prosecution of the Tule Lake resisters violated their right to due process of law. He stated and justified that holding in just a few sentences:

The issue raised by this motion must be resolved in the light of the traditional and historic Anglo-American approach to the time-honored doctrine of "due process." It must not give way to overzealousness in an attempt to reach, via the criminal process, those whom we may regard as undesirable citizens. It is shocking to the conscience that an American citizen be confined on the ground of disloyalty, and then, while so under duress and restraint, be compelled to serve in the armed forces, or be prosecuted for not yielding to such compulsion.

That was it. The prosecution of the Tule Lake resisters ran afoul of due process because it "shocked" Goodman’s "conscience."

When Goodman finished reading his opinion, the courtroom fell silent. As you can imagine, the prosecutor was quite unhappy with the outcome. In a letter to his superiors at the Department of Justice written later that day, he confided that "Judge Goodman’s reasoning, together with his opinion, have never coincided with my idea of what the law on the subject should be. As a matter of fact, I have great difficulty in reconciling Judge Goodman’s opinion with any principles of law I am familiar with."

This reaction was more than just sour grapes. As an application of settled legal doctrine, Goodman’s opinion was decidedly weak. By invoking this "shocks-the-conscience" test for a due process violation, Goodman stepped into an area of pitched legal battle. The Fifth Amendment’s due process clause forbids the federal government from taking away a person’s liberty without due process of law. As might be imagined, the core concern of due process has always been process—the mechanisms by which government deals with and especially imposes deprivations on its citizens.

y 1944 it was well settled that due process requires government to give various sorts of procedural safeguards before subjecting people to certain kinds of deprivations. A government that wishes to punish people for smoking pipes must first publicly announce that pipe smoking is illegal; a government that wishes to enjoin a landowner from making some noxious use of his property must give him an opportunity to be heard on the question before the injunction takes final effect.

Somewhat oxymoronically, the Court has held that due process is also concerned with substance. That is, the due process clause guarantees more than just process: it also makes it impossible for government to subject people to certain sorts of deprivations, no matter how much it first offers in the way of procedural safeguards. For example, a government cannot authorize the cutting off of a batterer’s hands as a remedy for the tort of battery, even if it offers the batterer all the procedural protections known to our legal system. This remedy would violate the batterer’s right to substantive due process. It would strip him of a fundamental freedom to bodily integrity, a basic "liberty" of the kind mentioned in the due process clause.

The trouble with this branch of due process doctrine is that the due process clause says nothing about chopping off hands, nothing even of "bodily integrity"; all it speaks of is "liberty." It is up to judges to determine the scope of the word "liberty" and to say what it encompasses. This doctrine has brought the federal courts some of their most agonizing modern debates—is a woman’s decision to terminate a pregnancy or the wish of a terminally ill patient to seek life-ending drugs a "liberty" insulated by the due process clause from government interference?

We are familiar with these substantive due process battlegrounds, but in the 1940s, the Court was beginning debate on a slightly different question of substantive due process—whether the due process clause authorized judges to review criminal convictions for conformity with loosely defined notions of "fundamental fairness."

This dispute was not merely an arcane disagreement about the meaning of the word "liberty" in the Fifth Amendment. It was a dispute about the proper role and power of judges. Justice Hugo Black complained that a judicial inquiry into the "fundamental fairness" of a criminal trial was too loose, open-ended, and dependent upon the personal preferences of the judge making the assessment. Justice Felix Frankfurter defended the "fundamental fairness" method against Black’s attack, contending that this form of review, while open-ended, still needed to comply with "accepted notions of justice."

It was into this doctrinal maelstrom that Goodman plunged when he dismissed the indictments of the Tule Lake resisters on the basis that they were "shocking to his conscience." He did not support his holding with citations to any relevant precedent—an omission due primarily to Eureka’s lack of legal resources.

Even with access to the finest law library in the country, he would not have found much support for his opinion. The situation in the case of the Tule Lake resisters simply did not lend itself to the due process doctrine Goodman invoked. He did not specify whether it was the government’s decision to draft the interned Nisei or the prosecutor’s decision to indict them for resisting that was shocking to his conscience. Either way, he was pushing due process review into wholly uncharted territory.

Goodman did not maintain that the federal government lacked the raw power to apply the draft laws to American citizens interned on suspicion of disloyalty. He could not have sustained such a view because the federal government certainly has that raw power; indeed, it has the power to draft even resident aliens into its military, and it has done so in every conflict since the Civil War. That greater power to draft resident aliens surely must include the lesser power to draft citizens whose loyalty it doubts.

f course, to say that the government had the raw power to draft the Tule Lake resisters is not to say that drafting them was wise, kind, considerate, or even fair. The country was at war, and the due process clause offered slim support for the federal judiciary to second-guess the personnel judgments of those responsible for manning the war effort.

Similarly, the Justice Department’s decision to prosecute the Tule Lake resisters for draft evasion—however morally offensive—was probably not meant to be measured against the conscience of a federal judge on a motion to dismiss a criminal indictment. The enforcement of the criminal law is perhaps the most central function of our government’s executive branch, and the judiciary has long recognized that it is ill suited to sit in judgment of the executive’s enforcement decisions.

The prosecutor in the Tule Lake draft cases unquestionably had probable cause to charge the Tule Lake resisters with committing an offense defined by the Selective Training and Service Act of 1940. That decision may have been morally blind to the Nisei’s plight, but it was undoubtedly a judgment for him to make as an official of the executive branch, without regard for the contrary dictates of a federal judge’s conscience.

To be sure, Goodman’s decision in the Tule Lake cases was a courageous one, the only one of its kind among the prosecutions brought against the Nisei draft resisters during 1944. I admire Goodman’s courage. I worry, however, that his opinion is not something we can truly call "law"—an announcement of a principle that might reliably govern any other case. Perhaps these trials from the 1940s ultimately suggest the uncomfortable possibility that law and morality can deviate in difficult cases.

Lest there be any doubt that the law failed even the 26 Japanese American draft resisters who won in Goodman’s court, consider the memories of Tom Noda. He recalls that when Goodman announced his opinion, he and his fellow defendants remained subdued and quiet. There was no emotional outburst—none of the hugging and backslapping that often accompanies courtroom victories in criminal cases. It was not that they were unhappy with the outcome; it was that none of them, in Noda’s words, really "cared whether we went to prison or not because it wouldn’t have made much difference."

Incarceration was nothing new to these internees. Noda had been behind barbed wire since the spring of 1942 and understood that by beating the draft charges, all he and his fellow internees had won was an automobile ride, under armed federal guard, back to the barbed wire of Tule Lake. This was all the victory that American law would allow its citizens of Japanese ancestry during World War II.