by Kai Bird
McCloy’s indecision up to this point in the debate is critical to understanding the events that were to follow. After the meeting, Gullion, the prime backer of a mass evacuation, knew that McCloy was “pretty much against interfering with citizens unless it can be done legally.” But he had also heard the assistant secretary refer to the Constitution as “just a scrap of paper.” He was convinced McCloy could find a legal way around the Constitution; the problem, as he told Clark, was that “they [Stimson and McCloy] are just a little afraid DeWitt hasn’t enough grounds to justify any movements of that kind.”13
Two days later, on February 3, McCloy met with Stimson, Gullion, and Bendetsen in an effort to resolve the War Department’s position. Gullion began by reporting that DeWitt “thinks he has evidence that regular communications are going out from Japanese spies . . . to submarines off the coast.” McCloy and Stimson accepted these assertions without requesting any hard evidence.14
Later that afternoon, McCloy got on the phone with DeWitt. The general promptly tried to win his consent for organizing a “voluntary” evacuation of both citizens and aliens of Japanese ancestry. He explained that only “all male adult Japanese” over the age of eighteen, whether “native or American born,” would voluntarily be evacuated from an area of California defined as a combat zone. He assured McCloy that this meant they had only to contemplate the removal of some twenty thousand individuals.
McCloy asked a few obvious questions, such as, “The bad ones, the ones that are foreign agents, that are sympathetic to Japan, will not volunteer, will they?” When DeWitt had no answer to this point, McCloy gently dismissed the idea that a voluntary evacuation could solve the problem. He told DeWitt there were “bound to be cases, I should think, where some of them would not move, and in that case we would be up against the question as to whether we could move against the American citizen of Japanese race.” After referring to the “many complications involved in a compulsory movement of any great size,” McCloy proposed his own solution. The “best way to solve it,” he said, was to establish limited military reservations around airplane plants, forts, and other military installations and “exclude everyone—whites, yellows, blacks, greens—from that area and then license back into the area those whom we felt there was no danger to be expected from.”
DeWitt at first didn’t understand the point, and McCloy had to go through it again patiently and explain that this way “we cover ourselves . . . in spite of the constitution.”
The general objected that licensing all those civilians to allow them to remain in the restricted zones would be “quite a job.” McCloy responded, “I think you might cut corners” and announce that all those in certain categories could take their time to come in and obtain a permit. “In the meantime,” he said, “the Japs would have to be out of there. . . .” DeWitt agreed to think about McCloy’s idea, but warned him, “Out here, Mr. Secretary, a Jap is a Jap to these people now. . . .”
“I can understand,” McCloy replied. He then assured DeWitt that there were legal complications, but that ultimately the War Department favored some kind of evacuation to solve the security problem on the West Coast.15
So, by February 3, 1942, McCloy had more or less reconciled himself to taking some kind of action against the Japanese Americans on the West Coast. He was still one step removed from endorsing a full-fledged compulsory internment program. But his consideration of even quasi-legal means to exclude one group of citizens from the West Coast on the basis of race opened the door. Convinced that McCloy’s position would be the War Department’s position, General Gullion wrote an ominous memo on February 6 warning the assistant secretary, “If our production for war is seriously delayed by sabotage in the West Coastal states, we very possibly shall lose the war. . . . From reliable reports from military and other sources, the danger of Japanese inspired sabotage is great.. . . No half-way measures based upon considerations of economic disturbance, humanitarianism, or fear of retaliation will suffice.” This toughly worded memo seems to have finally swept aside any lingering misgivings McCloy felt about a mass evacuation.16 Half-measures would not do.
His concerns now shifted from whether such measures were necessary to how they should be implemented and under whose authority. On February 10, he went over the maps of the West Coast with Stimson, surveying the large areas from which DeWitt proposed to evacuate all Japanese Americans. Like Biddle, Stimson still had some constitutional doubts. “The second generation Japanese can only be evacuated,” he wrote in his diary, “either as part of a total evacuation, giving access to the areas only by permits, or by frankly trying to put them out on the ground that their racial characteristics are such that we cannot understand or trust even the citizen Japanese. This latter is the fact but I am afraid it will make a tremendous hole in our constitutional system to apply it.”17
Still, such sensibilities were beginning to seem almost frivolous, given the worsening military situation in the Pacific. Singapore was on the point of falling to Japanese forces, who seemed invincible as they hopped from one island to another in the South Pacific. Stimson thought it quite possible that, should the Japanese achieve naval dominance in the Pacific, they might then “try an invasion of this country.”18 Given this drastic estimate of the military imponderables, his constitutional scruples weakened rapidly. By way of an analogy, he reminded McCloy of the fire chief’s right to “raze a building in order to shut off the course of a fire through a city block.”19 The logic of military necessity now made almost anything possible.
On February 11, McCloy urged Stimson to find out whether the president was “willing to authorize us to move Japanese citizens as well as aliens from restricted areas.”20 The secretary tried to arrange an appointment with Roosevelt but was told he was too busy. Instead, a phone call was scheduled, which finally came through about 1:30 P.M. “I took up with him the West Coast matter first,” Stimson noted in his diary, “and told him the situation and fortunately found that he was very vigorous about it and told me to go ahead on the line that I had myself thought the best.”21
So informed by Stimson, McCloy immediately called Bendetsen out at the Presidium military headquarters in San Francisco and told him “we have carte blanche to do what we want to as far as the President is concerned. . . . He states there will probably be some repercussions, but it has got to be dictated by military necessity, but as he puts it, ‘Be as reasonable as you can.’ ”22
Roosevelt had never been a strong civil libertarian.23 As far back as 1936, he had speculated that “every Japanese[-American] citizen or noncitizen” seen to be meeting Japanese ships calling at Pearl Harbor should be put on “a list of those who would be the first to be placed in a concentration camp in the event of trouble.”24 Like other presidents before him, Roosevelt simply assumed extraconstitutional powers during wartime. In his brief conversations with Biddle on the subject, the president had repeatedly emphasized that this must be a military decision. “Nor do I think,” recalled Biddle, “that the constitutional difficulty plagued him.”25
The morning after Roosevelt gave his carte blanche to Stimson and McCloy, the most influential syndicated columnist in the country, Walter Lippmann, published a column with the inflammatory title “The Fifth Column on the Coast.” Without citing any source, he claimed, “It is a fact that communication takes place between the enemy at sea and enemy agents on land.” That there had not yet been any “important sabotage on the Pacific Coast” might only indicate that the Japanese were holding back “until it can be struck with maximum effect.” He concluded that “nobody’s constitutional rights include the right to do business on a battlefield.”26
In McCloy’s mind, Lippmann’s views only confirmed the wisdom and political inevitability of a mass evacuation. Over at the Justice Department, Biddle may have given up, but his two aides, Rowe and Ennis, were still battling against any mass evacuation. On February 17, Rowe drafted a letter to Roosevelt to go out under Biddle’s signature which again pointed o
ut that “the military authorities and the F.B.I.” had yet to produce evidence of any concrete military necessity.27 As Rowe sat writing his letter, General Mark Clark was telling Stimson and McCloy that the army’s General Headquarters was opposed to a mass evacuation and was unwilling to allot DeWitt any additional troops for evacuation purposes.28 So McCloy was well aware that the momentous decisions being made were based on contrary evidence. That morning, he jotted in his diary a brief note reflecting his mood: “Dangers too for the reason of yielding to local pressures which demand intelligent action, it is a problem but I’m afraid no easy solution or one which will not be criticized whatever way we move. It is clear, however, we must act with full responsibility and dispatch.”29
That evening, he attended a meeting in Biddle’s living room with Rowe, Ennis, Gullion, Bendetsen, and one other Justice Department official, Tom Clark.30 The meeting quickly turned confrontational when Rowe and Ennis launched into an exposition of why a mass evacuation of citizens would be unconstitutional. “The argument waxed hot,” recalled Rowe, who was unaware that a draft evacuation order ready for the president’s signature was in Gullion’s pocket. When Gullion abruptly pulled it out and read it aloud, Rowe couldn’t believe it. “I laughed at him,” Rowe recalled later that year. “The old buzzard got mad. I told him he was crazy.” But Biddle made it clear that he had agreed to support an evacuation order on the grounds that the president had decided that it was a matter of military judgment. Ennis was so upset he almost cried. “I was so mad,” Rowe said, “that I could not speak at all myself and the meeting soon broke up.” On their way back to the Justice Department, Rowe had to convince Ennis not to resign his position in protest.31
Over the next two days, McCloy, Biddle, and Gullion polished the draft of Executive Order 9066, which was then signed by the president on February 19. It authorized Stimson to “prescribe military areas . . . from which any and all persons may be excluded” and gave the War Department the right to license the “right of any person to enter, remain in, or leave” these prescribed areas.32 In short, it gave DeWitt sweeping legal powers to regulate exactly the kind of restricted military zones originally proposed by McCloy in his phone conversation with the general on February 1. No direct mention was made of Japanese Americans, but none was necessary.
The signing of Executive Order 9066 later came to be regarded as one of the most controversial decisions associated with McCloy’s career. In 1981, the American Civil Liberties Union belatedly called it “the greatest deprivation of civil liberties by government in this country since slavery.”33 More than any other individual, McCloy was responsible for the decision, since the president had delegated the matter to him through Stimson. This does not exonerate Roosevelt, but at the very least it was McCloy’s job to determine if military necessity justified such draconian measures. Neither during the war nor since has it been shown that any Japanese Americans engaged in sabotage.34 Why, then, did McCloy become an advocate of mass evacuation? One answer is simple racism, particularly evident in Stimson’s attitudes. Another is that McCloy and Stimson were “led by the nose by second-rate people like Colonel Bendetsen.”35 And it was true, as James Rowe recalled, that at the time McCloy was “distracted and distraught with a large number of problems.” But he also possessed a unique combination of predilections that made him particularly vulnerable to Bendetsen’s and Gullion’s arguments. Black Tom had convinced him that the enemy would inevitably engage in sabotage.36 Ever since Amherst and his enthrallment with the military-preparedness movement, he had been instinctively swayed by national-security arguments. Theoretical objections to strong action on civil-libertarian grounds were indications of soft thinking.
This attitude was reinforced by men McCloy respected. Soon after the evacuation decision, Justice Frankfurter, for instance, told him, “. . . you are dealing with important imponderables, and let me remind you that the fellow who put the term ‘imponderables’ into the vocabulary of affairs was ‘blood and iron’ Bismarck.”37 A month later, he told McCloy that he was handling the Japanese American problem with both wisdom and appropriate hardheadedness.38 Coming from a Supreme Court justice who might well have to rule on the constitutionality of the evacuation, this was greatly reassuring to McCloy.
Another major factor was McCloy’s exposure to intelligence sources. Some observers in recent years have cited evidence of Japanese American disloyalty in such special intelligence sources as the Magic intercepts.39 There is no doubt that McCloy was reading Magic intercepts of Japanese diplomatic traffic at the time of the evacuation decision. But, as in the question of how much warning the Magic cables should have given him regarding the attack on Pearl Harbor, it is difficult to determine whether this intelligence information was a factor in his thinking. McCloy himself, in testimony before a congressional commission forty years later, did not mention the intercepts.40
Only a handful of Magic cables, out of thousands intercepted, might have conveyed the impression that Tokyo had recruited both alien Japanese and Japanese American citizens for espionage work. For instance, a Magic intercept dated May 9, 1941, contained a message from the Japanese Consulate in Los Angeles: “We also have connections with our second generations working in airplane plants for intelligence purposes.”41 This is a significant claim, but later, in the autumn of 1941, when a Magic cable does provide Tokyo with information on airplane production from specific plants, the same information can be found in published newspaper reports.42
Prior to Pearl Harbor, there had been no systematic analysis of Magic intercepts. So any references McCloy saw in the Magic intercepts to Japanese American espionage were fleeting and impressionistic. A meticulous analysis of the intercepts, in fact, would have shown that the intelligence information cabled back to Tokyo came almost exclusively from “legal” espionage conducted by Japanese diplomats out of their embassy and consulates.43 Even the covert, “illegal” espionage coordinated out of these Japanese consulates was not very sophisticated or extensive. One Magic intercept, for instance, reveals that, as late as May 1941, the Japanese Embassy was reporting that “only about $3,900 a year is available for actual development of intelligence. . . .”44 The few agents hired were invariably Caucasian Americans or German nationals.
Whereas such Magic evidence was highly ambiguous, McCloy also had access to intelligence that firmly dismissed the potential for sabotage. The president’s own private intelligence system, run by Jay Franklin Carter, a journalist and personal friend, provided him with additional information. Using White House funds, Carter frequently undertook confidential investigations of various matters for Roosevelt. When Roosevelt requested an assessment of the West Coast situation in the autumn of 1941, Carter assigned the task to a wealthy Chicago businessman named Curtis B. Munson. The resulting report concluded that the American-born Nisei were 90 to 98 percent loyal and “are pathetically eager to show this loyalty. . . . They are not oriental or mysterious, they are very American. . . .”45
McCloy read the Munson report, and had what he called an “unsatisfactory” briefing from both Munson and Carter just one week before Pearl Harbor.46 He thought of Munson as an amateur, and in his discussions with Biddle, Rowe, and other Justice Department officials, he never even mentioned the report.
He must have found it harder to dismiss the expertise of the Office of Naval Intelligence’s foremost Japanese specialist, Lieutenant Commander Kenneth D. Ringle, the man who had broken the Tachibana spyring. After Pearl Harbor, Ringle wrote a ten-page report on the “Japanese Question,” in which he estimated that fewer than 3 percent, or about thirty-five hundred individuals, might pose a security risk.47 Most of these were already detained, and he urged the “custodial detention” of the remainder, even if they were citizens. He attacked any mass evacuation plan as “very unwise, since it would undoubtedly alienate the loyalty of many thousands of persons who would otherwise be entirely loyal to the United States. . . .” In short, he advised that “the entire ‘Japanese Problem’ ha
s been magnified out of its true proportion. . . .”48
McCloy nevertheless relied on a three-page Army G-2 assessment that, without reference to Ringle’s report, came to an opposite conclusion. Submitted in early February, the G-2 report suggested that Tokyo’s “espionage net containing Japanese aliens, first and second generation Japanese and other nationals is now thoroughly organized and working underground.”49 But it contained no specific charges of espionage or any evidence to support these conclusions.
Insofar as McCloy based his decision regarding the evacuation on any intelligence sources, they were meager and incomplete. An advocate of centralized, objective intelligence, he nevertheless in this instance gave credence only to that information developed by his own department. Nor did he tell any of his adversaries in the Justice Department that the intelligence assessments concerning the “military necessity” for a mass evacuation were ambiguous, to say the least.
It is hard not to conclude that McCloy allowed his fears of sabotage and his penchant for decisive action to sweep aside any other considerations. In the aftermath of Pearl Harbor, he was willing to take the kind of harsh steps from which other civilians shrank. And as a lawyer he believed he had found a way around the Constitution in the interest of taking whatever action was necessary to defend the country. Among those of his contemporaries who disagreed with the evacuation, many would blame McCloy for the decision. Biddle, for one, never forgave him, and in his memoirs reflected that, “If Stimson had stood firm, had insisted, as apparently he suspected, that this wholesale evacuation was needless, the President would have followed his advice. And if, instead of dealing almost exclusively with McCloy and Bendetsen, I had urged the Secretary to resist the pressure of his subordinates, the result might have been different.”50
