by Kai Bird
As the legal historian Peter Irons has shown, all these decisions were greatly influenced by Justice Frankfurter. Irons quotes Philip Elman, Frankfurter’s law clerk in 1943, explaining the justice’s strong defense of the War Department in this fashion: “Frankfurter was not only very close and devoted to Roosevelt, but he was even more devoted to Henry Stimson. There was also Jack McCloy, a close friend who owed his job to Frankfurter. I don’t think he regarded McCloy as a litigant. . . .”104 McCloy had met with Frankfurter the week the justices were deciding these cases; admittedly, he saw Frankfurter as a neighbor or talked to him on the phone practically every week of the year. At the very least, Frankfurter’s friendships with McCloy, Stimson, and the president ensured something less than judicious objectivity.
In the meantime, the court’s delay gave McCloy the opportunity to set up a Japanese American Joint Board empowered to review the loyalty of individual internees. By then, nearly ten thousand internees had been released on furlough and allowed to relocate themselves to jobs or universities in the East. But that still left not quite a hundred thousand living in the camps. Using the ill-fated questionnaires circulated among all internees earlier in the year, McCloy’s loyalty board now proceeded to classify each Japanese American in three categories: white, brown, and black. An individual classified as “white” would be cleared for employment in vital war plants; “brown” signified that the individual could be released though there were some doubtful bits of information in his file; and “black” meant the internee should be segregated from the rest of the internees. All of those in the “No-No” group were thus categorized. Almost all of the internees labeled “black” were gradually segregated and incarcerated in the special high-security camp at Tule Lake, California. Over the next year, the Joint Board investigated nearly thirty-nine thousand individual cases and recommended the furlough of more than twenty-five thousand internees. Half of the approximately 12,600 recommended for continued incarceration were released anyway by the War Relocation Authority.105
McCloy had started this process precisely in order to demonstrate to the Supreme Court that the government was making a good-faith effort to determine the loyalty of citizen internees. But the court did not schedule final oral arguments on the remaining internment cases until October 1944. By that time, pressure had been building for a complete end to the internment. At the end of 1943, Attorney General Biddle had written Roosevelt that the “concentration camps” were repugnant to the principles of democratic government.106 Shortly afterward, supervision of the War Relocation Authority was transferred from McCloy’s control into the hands of Harold Ickes. The secretary of the interior lobbied throughout the spring of 1944 to release all loyal Japanese Americans.
In early June, Ickes bluntly warned Roosevelt that the exclusion was “clearly unconstitutional in the present circumstances” and predicted that “the continued retention of these innocent people in the relocation centers would be a blot upon the history of this country.” Roosevelt was unmoved, and replied that it would be a mistake to do anything “drastic or sudden.” Ten days later, McCloy went to the White House to discuss a proposal to allow a “substantial number” of Japanese Americans to return to California. Afterward, he called the West Coast commander to say, “I just came from the President a little while ago. He put thumbs down on this scheme. He was surrounded at the moment by his political advisors and they were harping hard that this would stir up the boys in California and California, I guess, is an important state.”107
With the 1944 presidential election on the horizon, McCloy was telling his closest friends that he was going to vote Democratic for the first time in his life. Like many Americans, he found it hard to imagine ending the war without Roosevelt at the helm. He told Ickes that, though he instinctively opposed a fourth term, the “effect on morale would be terrific” if Roosevelt were not re-elected. Stalin, he said, “would be justified in seeking a separate peace,” and Hitler could assure the German people that all they had to do was to hold their belts tight for a few months more, when the coalition against them would be broken up.”108
Politics now dictated the president’s, and consequently McCloy’s, attitude toward the question of an end to the internment. Whereas, earlier in the year, he had been somewhat inclined to find an unobtrusive way to release the internees, McCloy now almost single-handedly blocked every step toward an early release. Later that summer, General Charles S. Bonesteel, the newly appointed West Coast commander, repeatedly tried to persuade McCloy to suspend the exclusion orders. When pressed, McCloy finally made it clear to Bonesteel that “we shall have greater opportunity for constructive plans at a date somewhat later than November 6th.”109 An end to the internment would have to await the election.
To prolong the internment, McCloy now also had to ensure that the War Department’s cases before the Supreme Court were not undermined. An unfavorable ruling would precipitate an immediate and probably chaotic release of the internees. In addition, McCloy’s own reputation was at stake, since he was so closely associated with both the decision to authorize mass internment and its implementation.
One Saturday morning at the end of September 1944, he discovered a major problem while reviewing the Justice Department’s brief to the court on the Korematsu case. Early in 1944, he had quietly released General DeWitt’s Final Report on the evacuation. He did so believing that the evidence it cited of nefarious Japanese American activities would persuade the court to uphold the evacuation. But he had not counted on the stubborn doubts of one Justice Department official, Edward Ennis, the same man with whom he had clashed over the evacuation order in February 1942.
Ennis and his assistant, John Burling, decided to alert the court to the fact that DeWitt’s Final Report contained false information. They inserted a footnote in the Korematsu brief that flatly stated that the Justice Department had information disputing the evidence contained in the DeWitt report. The footnote specifically asked the court to disregard the report,110 and without the DeWitt report the justices would have no direct evidence before them of any Japanese American collusion with the enemy. Inclusion of the footnote severely damaged the War Department’s case that military necessity required the mass detention of thousands of American citizens.
When McCloy stumbled across the footnote in the page proofs of the Korematsu brief, he immediately called in Adrian Fisher, a bright young army lawyer who had joined his office the previous December, and asked him to have the footnote removed. Fisher called Ennis, who informed him that he could do nothing: the brief was already at the printer’s. When McCloy learned of this, he quickly phoned Solicitor General Charles Fahy; in response to his pleas, Fahy had the printing presses stopped at noon on September 30. Over the next few days, heated negotiations took place between McCloy and Fisher in the War Department and Ennis, Burling, Fahy, and other Justice Department officials.
Ennis and Burling refused to budge, and wrote a memo to their superiors strongly arguing that the Justice Department had an ethical obligation to repudiate the DeWitt report. They pointed out that DeWitt had asserted that Japanese Americans had engaged in “overt acts of treason.” They concluded, “Since this is not so, it is highly unfair to this racial minority that these lies, put out in an official publication, go uncorrected.”111
At one point, Ennis and Burling threatened to refuse to sign the briefs if the footnote was pulled. The presses had to be stopped a second time. But if the two Justice officials were adamant, so too was McCloy. Finally, in an effort to achieve a compromise, one of Ennis’s superiors, Herbert Wechsler, hastily drafted a vaguely worded alternative footnote, which read: “We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice; and we rely upon the Final Report only to the extent that it relates to such facts.” Though Fisher and McCloy would have preferred no footnote at all, this almost nonsensical language was vastly superior in their eyes to any clearly wor
ded refutation of the DeWitt report. After five days of digging in his heels, McCloy had won his point. In retrospect, he had probably also saved the government’s case, for if such liberal justices as William O. Douglas had been made aware that the Justice Department considered the army’s evidence to be “intentional falsehoods,” the court might easily have reached a different decision.112 As it was, in October 1944 the court decided by a six-to-three margin to uphold Korematsu’s conviction for disobeying the exclusion orders.
Virtually at the same time, Justice Douglas wrote the court’s unanimous decision to free Mitsuye Endo. Evading the central constitutional issue of whether the War Relocation Authority had the right to detain disloyal citizens, the court decided to free Endo on the narrow grounds that the WRA “has no authority to subject citizens who are concededly loyal to its leave procedures.” This meant, of course, that the WRA would have to release all but those Japanese Americans who had been determined disloyal.
The court’s decisions were made, but they would not be published until December 18, 1944. One day earlier, the army announced that Japanese Americans regarded as loyal would be released after January 2, 1945, and permitted to travel anywhere in the United States. This resulted in the release of some fifty thousand internees; but twenty thousand Japanese Americans, labeled as “troublemakers” and segregated at the Tule Lake facility, remained incarcerated. It would be many months before these embittered resisters of the internment were released.
Altogether, the outcome could not have made McCloy unhappy. The court had avoided censuring the army, and on narrow grounds it had upheld the constitutionality of the original exclusion order. True, the Endo decision made any prolonged internment impracticable. But the internment was no longer necessary anyway, and now that the elections were over, it had become politically possible to end the always troublesome administration of the camps.
More than any other official, McCloy was responsible for the internment of the entire Japanese American community inside barbed-wire camps for three years. His arguments had carried the day against the Justice Department’s constitutional concerns when the original decision was made in February 1942. He had allowed the early “relocation” program to evolve into a policy of forcible internment. And he had repeatedly made it possible to prolong the internment for political reasons long after any military justifications for the action existed. Had it not been for his careful legal defense of the War Department’s policies, the Supreme Court might well have declared the entire enterprise unconstitutional.
McCloy always regarded what happened to these people as a natural consequence of the war. More important, he never doubted that for reasons of national security the president of the United States could do whatever he thought necessary to defend the country, including placing thousands of citizens behind barbed wire. A constitutional travesty, the internment was a political success, and an indication that McCloy’s national-security philosophy was becoming part of the national consensus.
CHAPTER 9
Political Commissar
“[McCloy was] very intelligent and interesting. . . . He seemed much more like a fellow member of the House of Commons or a minister in a British Cabinet than the ordinary American politician. I was able to say some things to him about the situation here which I cannot get [Robert] Murphy to understand.”
HAROLD MACMILLAN ALGIERS, FEBRUARY 1943
The world war transformed America, bringing it out of ten long years of depression and stagnation. A centralized, government-directed war economy did for the country what the New Deal had failed to do. Throughout these years, the War Department became an unprecedented power center in Washington’s gallery of bureaucracies. Its influence on foreign policy soon surpassed that of the State Department’s, and its interests intruded on issues normally handled by the departments of Treasury, Justice, Interior, and Commerce. In the world’s first “total war,” the American military’s priorities had become the country’s priorities. And within this most powerful of federal departments, it was McCloy’s job to see to it that the military’s interests prevailed over any “civilian” priorities. The constitutional rights of Japanese Americans had wound up on the wrong side of this equation, and so too did antitrust laws, labor rights, and the Jewish American community’s desire to rescue European Jewry from the Holocaust. African Americans, on the other hand, found McCloy a cautious ally in their efforts to persuade the government to take the first steps toward desegregation of the army. In these and many other “civilian” issues, McCloy represented the military. He became the country’s first national-security manager, a sort of “political commissar” who quietly brokered any issue where civilian political interests threatened to interfere with the military’s effort to win the war.1
One evening late in July 1942, The New York Times’ Arthur Krock happened to drive by McCloy’s Georgetown home just as McCloy was leaving for dinner. Krock later sent him a joshing note describing what he had seen: “There you were, dressed in spotless white linen and what (at a distance) seemed to be gleaming pumps and a Sulka evening bowtie—with a skimmer covering the only part of you where nature has not showered every gift—there you were being handed out of your door by a government blackamoor. . . . There you were, on your way to who knows what stimulating mental and social encounters. . . . How I envied you. . . .”2
At forty-seven, McCloy was still a relatively young man in a city dominated by men of Stimson’s generation. He relished the quiet power he wielded in the nation’s capital, a city that still preserved the intimate atmosphere of a small Southern town. His was not a household name outside of Washington, but on Capitol Hill or in the salons of Georgetown, he was a familiar fixture. His easy informality also made him an accessible source of information to the press. That August, Time magazine ran a short, friendly profile of him which mentioned only in passing his role in the Japanese American internment. “Affable and efficient,” wrote Time’s writers, “he hurries conversation along with a pleasant ‘yep, yep,’ puffs away at thick cigars, flicks the ashes deftly into a wastebasket four feet away, occasionally extracts a bell-shaped chocolate drop from a pile on his desk. His duties have included everything from handling administrative details of the Army training program to moving Japanese off the West Coast. Everyone who knows him gives him top marks.”3
Among other administrative tasks, McCloy supervised the construction of new office quarters for the War Department. The army wanted to build a five-sided, four-million-square-foot building, the largest office-complex in the world.4 But long after construction had commenced, Roosevelt continued to tinker with the architectural plans, making small changes that delayed the project. On several occasions, McCloy tried to intercede through FDR’s personal aide, “Pa” Watson, but each time he had been put off with the message that the president thought he could improve the plans.
Finally, a Secret Service official visited McCloy’s office one day and reported that the president needed a personal favor from the War Department. Could McCloy find suitable accommodations for an enemy alien, an old Harvard friend of Roosevelt’s, named Ernst “Putzi” Hanfstaengl? McCloy recognized the name from his Black Tom investigations. Hanfstaengl had fled his job as Nazi Germany’s foreign-press spokesman in 1937, after a falling out with Hitler, and had ended up in a Canadian internment camp when the war broke out. He had appealed to Roosevelt, who now wanted his old friend brought to Washington in the care of the U.S. Army. McCloy saw at once the political delicacy involved in such a request; the president wished to help his old friend but also to insulate himself from certain embarrassment if it became known that he had somehow extended favors to Hitler’s former “court jester.”
The “somewhat ungracious idea” occurred to McCloy to exchange Hanfstaengl for Roosevelt’s final approval of the Pentagon construction plans. McCloy told the Secret Service officer he could probably take care of Hanfstaengl but that he would need a particular favor from the president. A short time later, the Pentagon plan
s came back signed, “OK, FDR.” Soon afterward, McCloy was in a White House meeting when the president was wheeled in. Upon seeing the assistant secretary of war, Roosevelt said, “Hello, McCloy, you blackmailer.” When the others in the meeting asked what he meant, the president laughed and said, “Never mind, he understands.”5
After the Pentagon was completed in 1942, many people gave it poor reviews. When Harold Ickes had a chance to see it, he declared the number of offices without windows “unpardonable.” The interior secretary noted for his diary, “I would even have preferred a sky-scraper rather than subject employees to such working conditions.” Because McCloy had supervised the project in its final stages, the press took to calling it “McCloy’s Folly.”6 This did not stop Drew Pearson from reporting in his “Washington Merry-Go-Round” column, “Newsmen who know Assistant Secretary of War John McCloy agree with the sergeant in his office who says, ‘He’s really rated as the most cleverest man in this building.’ ”7
Off and on during the early part of the war, McCloy participated in the debate over where and when to open a second front against Nazi-occupied Europe. Immediately after the Midway victory in June 1942, Churchill visited Washington again, since he feared Roosevelt might be “getting a little off the rails. . . .”8 Specifically, the prime minister was worried about a comment Roosevelt made to Lord Louis Mountbatten, then serving as chief of combined operations, that the Allies might still have to make a “sacrifice” cross-Channel invasion of France in 1942 in order to keep the Soviet Union in the war.9 He had also heard that both Stimson and Marshall were stubbornly pushing ahead with preparations for a full-fledged invasion in 1943, code-named Operation Bolero. Churchill was determined to sidetrack any such early cross-Channel attack. Shocked by the recent loss of Tobruk to Field Marshal Rommel’s forces in the Libyan desert, he once again urged Roosevelt to commit American troops to North Africa. FDR was inclined to do what Churchill asked, but he had to contend with the opposition of his war secretary. Stimson bluntly warned the two heads of state that “if we were delayed by diversions I foresaw that Bolero would not be made in ‘43 and that the whole war effort might be endangered. . . .”10 In the end, Roosevelt characteristically tried to give both Stimson and Churchill what they wanted. On paper, Churchill agreed that a cross-Channel invasion in 1943 would be pursued with “all speed and energy.”11 Depending on Russian need, an emergency cross-Channel invasion, code-named Operation Sledgehammer, would be considered for the autumn of 1942. But the British prime minister insisted that if Sledgehammer was found to be improbable, the Allies “must be ready with an alternative.”12 Furthermore, they agreed that the alternative of a landing in North Africa—Operation Gymnast—would be explored in all its details, though a decision could be postponed until September.13
