Seattle Journal for Social Justice
Americans' Misuse of "Internment"
Yoshinori H.T. Himel 0 1
0 This Article is brought to you for free and open access by the Student Publications and Programs at Seattle University School of Law Digital Commons. It has been accepted for inclusion in Seattle Journal for Social Justice by an authorized administrator of Seattle University School of Law Digital Commons
1 University of California-Davis , USA
Amer ica n s’ Misuse of “I n t er n men t ”
Yoshinori H. T. Himel*
In any age, careful users of language will make distinctions;
careless users of language will blur them.**
Many Americans have used the word “internment” to denote World War
II’s civil liberties calamity of mass, race-based, nonselective forced removal
and incarceration of well over 110,000 Japanese American civilians, most
of them American citizens.1 But the word “internment,” a term of art in the
war, does not describe that community-wide
incarceration. Instead, it invokes an internationally agreed legal scheme
* The author is an attorney in Sacramento, California, who teaches at the School of Law,
University of California, Davis. All views expressed here are his and should not be
attributed to the School or to those who have helped him. The author gratefully
acknowledges noted historian Roger Daniels, Charles Phelps Taft Professor Emeritus,
University of Cincinnati, for explaining internment’s misuse for decades and for
reviewing more than one draft; Patricia Biggs of the Manzanar National Historic Site,
National Park Service, for insightful comments; Rose Masters of the Manzanar National
Historic Site, for sharing research; Professor Lorraine K. Bannai of the Seattle University
School of Law, for a review at an academic conference; Lane Ryo Hirabayashi, George
and Sakaye Aratani Professor of the Japanese American Incarceration, Redress, and
Community, at the University of California, Los Angeles, for supporting relevant
conferences and research efforts; Donald Teruo Hata, Emeritus Professor of History,
California State University, Dominguez Hills; Allan A. Ryan, of Harvard Business
School Publishing; the late Richard C. Wydick, Professor Emeritus, School of Law,
University of California, Davis; and Barbara Takei, whose work to tell the story of the
Tule Lake concentration camp inspired this paper.
** Bryan A. Garner, Word Usage, Chicago Manual of Style 262, para. 5.217 (16th Ed.
1 TETSUDEN KASHIMA, JUDGMENT WITHOUT TRIAL: JAPANESE AMERICAN
IMPRISONMENT DURING WORLD WAR II ix (2003) (“nearly 117,116” people incarcerated
in the “ten so-called relocation centers”).
under which a warring country may incarcerate enemy soldiers2 and
selected civilian subjects of an enemy power.3 As this paper reflects, under
the law, alienage is basic to civilian internment.
The US Department of Justice (DOJ) indeed selected and interned
thousands of Issei aliens (members of the Japanese American community’s
first or immigrant generation, aliens because they were statutorily barred
from naturalization).4 Additionally, thousands of Nisei (members of the
American community’s second generation, US citizens by
birthright)5 renounced their US citizenship; DOJ then classified them as
aliens and interned them.6 Although the precise numbers may be uncertain,
well over 7,000 Issei from the mainland, Hawai’i, and Alaska, and well
over 5,000 Nisei renunciants, involuntarily became DOJ internees.7 These
Japanese American alien internments, the legal context surrounding them,
and the human stories behind them are worthy of attention.
Currently, the National Park Service and others are paying increased
attention to the sites of Japanese alien internment and their histories in two
ways. First, the park service recently has financially assisted nonfederal
organizations in interpreting DOJ internment camps. These include the
Santa Fe Internment Camp,8 Fort Abraham Lincoln, near Bismarck, North
2 See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, at Art. 4.
3 See, e.g., Geneva Convention Relative to the Protection of Civilians in Times of War,
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, at Arts. 42, 43 & 44 (concerning “enemy
4 In the 1942 Japanese American community, the Issei, although lawful permanent US
residents, were forced to remain aliens because 8 U.S.C. § 359 (1870) limited
naturalization to whites and Africans, thus excluding Japanese. The Supreme Court so
held in Ozawa v. United States, 260 U.S. 178 (1922).
5 The Nisei had birthright citizenship under U.S. Const. amend. XIV, § 1, as held by the
Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898).
6 See infra part VII.B. (concerning DOJ at Tule Lake).
7 KASHIMA, supra note 1, at 124-25.
8 See NAT’L PARK SERV., NATIONAL PARK SERVICE ANNOUNCES $2.9 MILLION IN
GRANTS TO PRESERVE AND INTERPRET WORLD WAR II JAPANESE AMERICAN
Dakota,9 Tuna Canyon, in southern California,10 Fort Missoula internment
camp in Montana,11 and Crystal City Family Internment Camp in Crystal
City, Texas.12 Second, as a federal land management agency the park
service has begun to manage, research, and interpret national monument
sites at Honouliuli, an army internment camp on Oahu, Hawai’i,13 and at
Tule Lake, a concentration camp in northern California.14 Tule Lake briefly
became a DOJ internment camp for newly created aliens in the Japanese
American community in an extraordinary wartime transformation discussed
The problem this paper addresses—conflation of mass incarceration with
internment—may stem in part from our relative lack of discussion of
Japanese alien internment. University of Washington Professor Tetsuden
CONFINEMENT SITES (Jun. 12, 2014),
6-12-14-1.pdf (announcing grant to Colorado State University for historic markers,
publications, and websites re Santa Fe Internment Camp and others).
9 See NAT’L PARK SERV., NATIONAL PARK SERVICE ANNOUNCES 1.4 MILLION IN
GRANTS TO PRESERVE AND INTERPRET WORLD WAR II JAPANESE AMERICAN
CONFINEMENT SITES (Apr. 2, 2013),
10 See FY 2015 Grant Awards, NAT’L PARK SERV. 3,
visited Feb. 28, 2016).
11 See NAT’L PARK SERV., HERITAGE PARTNERSHIPS PROGRAM INTERMOUNTAIN
https://www.nps.gov/nhl/contact/imro/IMR_HPP_2013Report_MT.pdf (reporting on
assistance to “Fort Missoula Alien Detention Camp Interpretive Projects”).
12 See NAT’L PARK SERV., HERITAGE PARTNERSHIPS PROGRAM INTERMOUNTAIN
REGION 3 (2013), https://www.nps.gov/nhl/contact/imro/IMR_HPP_2013Report_TX.pdf
(reporting on assistance to Friends of the Texas Historical Commission interpretation
projects at Crystal City Family Internment Camp and others).
13 See A National Monument in the Making, NAT’L PARK SERV.,
http://www.nps.gov/hono/index.htm (last visited Feb. 28, 2016).
14 See Welcome to the Tule Lake Unit of World War II Valor in the Pacific National
Monument, NAT’L PARK SERV., http://www.nps.gov/tule/index.htm (last visited Feb. 28,
15 See infra Part VII.B.
Kashima says that most literature on the Japanese American imprisonment
concentrates on mass incarceration, not alien internment (notable exceptions
include the cited book itself).16 Kashima gives three reasons for the
literature’s disproportional emphasis on the “assembly centers and
relocation centers.”17 “First, they held the largest number of inmates.
Second, these inmates were mostly American citizens, a fact that epitomizes
the injustice of a government incarcerating its own citizens. Third, the most
accessible government documents and other source materials pertain to
these two types of centers.”18 This author hopes that scholars, like the park
service and perhaps in cooperation with it, will develop further our nation’s
awareness and discussion of its Japanese alien internment.
More discussion of Japanese alien internment may multiply the occasions
for confusion because the word’s misuse generates ambiguity. But more
discussion of internment also offers reason and opportunity to prevent any
such ambiguity. To stop misleading ourselves and the public, we as lawyers
and Americans should take this opportunity to restrict “internment” to its
correct legal meaning.
II. THIS PAPER’S ORGANIZATION
Part III introduces the connection between internment and alienage
through dictionary definitions. The part addresses both legal dictionaries
and general dictionaries.
Part IV examines the current meaning of internment as a legal term of art.
The part examines domestic federal law, federal government practice for
16 KASHIMA, supra note 1, at 4.
17 Id. The mass incarceration of the Japanese American community generally had two
stages—first, short-term incarceration in “assembly centers” operated by the Army’s
Wartime Civilian Control Agency, and second, long-term incarceration in “relocation
centers” operated by the War Relocation Authority. Id. at 10.
18 Id. at 4.
over 200 years, and two international agreements currently protecting
interned soldiers and civilian aliens.
In Part V, the paper turns to the period when America actually interned a
portion of its Japanese American community—World War II. The part
shows that in the 1940s both domestic federal law and a prewar Geneva
convention on prisoners of war (POWs) governed alien internment; that the
United States and Japan agreed to extend the POW convention from
captured soldiers to interned alien civilians; and that the convention
mandated numerous specific protections for the interned aliens. The part
concludes by explaining the internment responsibilities of the US
Department of Justice.
Part VI focuses on the action that is mischaracterized as “internment of
the Japanese Americans”—the federal government’s mass incarceration of
persons of Japanese descent regardless of citizenship.19 Its point A shows
that mass incarceration had a wholly different legal basis from internment—
executive order, not international agreement. Point B then shows that the
mass incarceration—at least of the American citizen majority—brought
with it none of internment’s international law protections.
Part VII, taking a cue from originalism, shows the executive branch’s
contemporaneous and formally expressed view that internment pertained to
aliens. Its point A shows that the War Relocation Authority (WRA)—
created for mass incarceration of Japanese Americans—contemporaneously,
specifically, and repeatedly disclaimed operating internment camps. Point B
shows that when thousands of Japanese Americans in WRA custody at the
Tule Lake camp were transformed from American citizens into aliens, the
WRA referred to the DOJ as responsible for interning aliens. Then, when
DOJ took custody of the newly-created aliens, it ordered them interned,
used that specific term, and did so expressly because of their alienage. Point
19 For details on the places of mass incarceration, see KASHIMA, supra note 1, at 10-11.
C, the final point on the wartime governmental nomenclature, shows that
the Supreme Court’s wartime opinions on the Japanese American
community’s forced removal and mass incarceration never used
“internment” to refer to that action, but only to a nation’s treatment of
Part VIII asks how the misuse of “internment” became commonplace. It
concludes that one cause was a historical accident in politics that ultimately
led to redress for incarceration of Japanese Americans through the Civil
Liberties Act of 1988.
Part IX contrasts internment with mass incarceration in moral
acceptability as viewed by legal authorities. It shows that authorities in all
three branches of government, and legal commentators, find mass
incarceration (unlike internment) unacceptable.
Part X considers the viewpoint of the Japanese American community,
whose trauma the government sought to belittle by euphemisms like
“relocation.” It shows that after long debate, the community’s best-known
national organization rejects internment’s misuse as euphemistic, and that
the community’s online source for Japanese American wartime history also
rejects the misuse.
Part XI shows how mislabeling the mass incarceration as internment
fosters miscommunication. It explores two cases, one from Tule Lake’s
history of transformation and the other from contemporary political
reporting, where the misuse can mislead. In the second case, one
newspaper’s misuse caused a second newspaper to publish a misleading
The conclusion, Part XII, summarizes the reasons to end the conflation of
mass incarceration with internment. The reasons include the formal lexicon,
the radical moral and legal differences between internment and the mass
incarceration of Japanese Americans, the historical official nomenclature,
respect for the Japanese American community’s deliberation and
selfdetermination, and the need for clarity in our discourse. It calls for lawyers
and Americans to return to internment’s correct meaning.
III. LEGAL AND GENERAL DICTIONARIES DEFINING INTERNMENT
OFTEN CONNECT IT WITH ALIENAGE
Because this paper discusses a term’s meaning, it reviews that term’s
treatment in dictionaries. It refers to legal dictionaries first.
A. Law Dictionaries Connect Internment and Alienage
Ballentine’s Law Dictionary defines “internment” as “The detention of a
resident enemy alien during the existence of a declared war between his
country and the United States.”20 A second meaning refers to POWs: “The
confinement of prisoners of war in the interior of a country.”21 A third
meaning, involving neutral powers during war, is “the act of a neutral
nation in detaining ships, sailors, soldiers or property of a belligerent.”22
Underscoring internment’s connection with alienage, Ballentine’s includes
a separate entry for “interned alien.”23
Bouvier’s Law Dictionary defines “internment” with brevity: “Used of
foreign troops of a belligerent coming into neutral territory.”24 This
definition, echoing the third meaning in Ballentine’s, also connects
internment with alienage.
The Random House Webster’s Dictionary of the Law contains no entry
for “intern,” “interned,” “internee,” or “internment.”25 The Modern
Dictionary for the Legal Profession similarly contains no relevant entry.26
20 Internment, JAMES A. BALLENTINE, BALLENTINE’S LAW DICTIONARY 654 (3d ed.
2010) (available on LEXIS) (citing Johnson v Eisentrager, 339 US 763, 774 (1950)).
23 Interned alien in id.
24 Internment, JOHN BOUVIER, I BOUVIER’S LAW DICTIONARY 1657 (3d rev. 1914).
25 JAMES E. CLAPP, RANDOM HOUSE WEBSTER’S DICTIONARY OF THE LAW (2000).
Black’s Law Dictionary defines “intern,” “internee,” and “internment.”
Its definitions currently do not mention alienage.27
B. General Dictionaries Connect Internment and Alienage
General dictionaries have value in legal discussion and therefore are
relevant here. The unabridged
Webster’s Third New International
Dictionary, in defining “internment,” mentions internment “of enemy
The unabridged Funk & Wagnalls New International Dictionary defines
“internment camp” as “a military station for the detention of prisoners of
war and enemy aliens.”29 Its definition of “intern” includes “to confine . . .
enemy aliens” and, in neutral countries, soldiers and instruments of warring
The American Heritage Dictionary, while not calling itself an unabridged
dictionary, has adherents. Its definitions of “intern,” “internee,” and
“internment” do not mention alienage.31
The multi-volume Oxford English Dictionary (OED) presents the most
complete definitions of any general dictionary; its definitions often include
historical quotations.32 The OED defines “internment camp” as “a detention
camp for prisoners of war and aliens.”33
26 GERRY W. BEYER, MODERN DICTIONARY FOR THE LEGAL PROFESSION (4th ed.
27 Intern, internee, internment, BLACK’S LAW DICTIONARY 939, 942 (10th ed. 2014)
(available on WESTLAW).
28 Internment, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH
LANGUAGE UNABRIDGED 1181 (2002).
29 Internment camp, FUNK & WAGNALLS NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE COMPREHENSIVE EDITION 664 (1997).
30 Intern in id.
31 Intern, internee, internment, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE 916, 917 (5th ed. 2011).
32 See OXFORD ENGLISH DICTIONARY (2d ed. 1998).
33 Internment, VII OXFORD ENGLISH DICTIONARY 1125 (referring to second definition
(b), for the word’s use as an attribute or adjective).
The OED’s definitions of internment’s other forms, when interpreted
with the aid of the historical quotations, also connect internment with
alienage. For the transitive verb “intern,” the OED uses four historical
quotations.34 Three quotations referred to physical confinement of aliens or
foreign soldiers: “Certain prisoners in a foreign country . . . described as
having been ‘interned’”; “Poles interned in Russia”; and “To disarm troops
crossing the neutral frontier and to intern them till the conclusion of
peace.”35 The fourth quotation referred not to physical confinement but,
metaphorically, to a political state of mind: “Calderon retains a Spanish
accent, and is accordingly interned . . . in that provincialism which we call
To define the noun “internment” as an act of confinement, the OED uses
two quotations. The first quotation, “two months’ imprisonment or
internment in a fortress” (quoting 1870 Spectator 24 Dec. 1534), covered
more than internment.37 The second quotation, “it may be hoped that
internment in their own capital is all the confinement the army of Paris will
have to submit to” (quoting 1871 Daily News 30 Jan.), occurred during the
Franco-Prussian War and referred to Prussia’s interning the army of Paris as
enemy soldiers.38 Thus, by explicit definition or by quotation, the OED
defines internment as an action toward enemy alien civilians or soldiers.
C. A Dictionary’s Prospect of Connecting Internment and Alienage
An indication exists of incipient change in a dictionary’s definition of
internment. In a telephone conversation, Bryan A. Garner, Black’s Law
Dictionary’s editor in chief, acknowledged the author’s letter asserting the
34 Intern, VII OXFORD ENGLISH DICTIONARY 1121 (referring to second definition (2),
for the word’s use as a transitive verb referring to confinement).
37 Id. (referring to first definition (a), for the word’s use as a noun.)
internment misuse proposition and said that Garner had redrafted the
definition for the next edition of Black’s.39
IV. AS A CURRENT FEDERAL AND INTERNATIONAL LAW TERM OF
ART, INTERNMENT REFERS TO ALIENS
This part discusses internment as currently defined in the relevant bodies
of law. Those areas are domestic federal law relating to war, and the
international law of war. The current legal scheme is relevant because the
misuse of “internment” is a problem in today’s discourse.
A. National Law and Historical Practice Govern America’s Internment of
Enemy Alien Civilians
The Alien Enemies Act authorizes the president to apprehend “subjects
of the hostile nation” at least 14 years old “as alien enemies.”40 The act thus
defines enemy aliens. It allows the president to direct, by proclamation, the
“manner and degree of the restraint to which they shall be subject and in
what cases, and upon what security their residence shall be permitted.”41
The phrase “in what cases” contemplates selectivity.
Internment of selected civilian enemy aliens is a United States practice
having two centuries’ standing. During the War of 1812, the United States
forced some British merchants to move upriver away from their New York
City businesses.42 Similarly, during World War I the United States interned
some US-resident German and Austro-Hungarian nationals in camps.43
39 Telephone interview with Bryan A. Garner, Editor in Chief, Black’s Law Dictionary
(Mar. 1, 2016).
40 50 U.S.C § 21 (1918).
42 ROGER DANIELS, WORDS DO MATTER: A NOTE ON INAPPROPRIATE TERMINOLOGY
AND THE INCARCERATION OF THE JAPANESE AMERICANS 1–2 (2005),
B. A Geneva Convention Provides for Internment of POWs
Geneva Convention III, concerning soldiers, governs internment and
other treatment of POWs.44 Centrally, POWs are “persons . . . who have
fallen into the power of the enemy” who also are “members of the armed
forces of a Party to the conflict.”45 “The Detaining Power may subject
prisoners of war to internment.”46
C. A Geneva Convention Provides for Internment of Civilian Enemy Aliens
Similarly, Geneva Convention IV47 governs internment and other
treatment of civilians who are “enemy aliens,” narrowly defined as those
aliens whom the detaining power’s enemy treats and protects as its
nationals.48 Convention IV’s Article 42 authorizes “internment” of such
alien civilians, but “only if the security of the Detaining Power makes it
absolutely necessary” (implying that only selected enemy alien civilians
may be involuntarily interned).49
Article 42 also provides for internment if “any person . . . voluntarily
demands internment” (thus authorizing an interning authority’s custody of,
for example, an interned alien’s citizen child who “voluntarily demands” to
be interned with the parent).50 A practice of “voluntary” internment can
relieve some families of hardships of separation; an example predating
44 Geneva Convention Relative to the Treatment of Prisoners of War, supra note 2, at
45 Id. at Art. 4.A.1. This article extends the Convention’s protection of soldiers even to
militia and others who are not regular soldiers. Id. A nation may hold even its own citizen
as a POW, if the citizen has been a combatant against the nation: “There is no bar to this
Nation’s holding one of its own citizens as an enemy combatant.” Hamdi v. Rumsfeld,
542 U.S. 507, 519 (2004).
46 Geneva Convention Relative to the Treatment of Prisoners of War, supra note 2, at
47 Geneva Convention Relative to the Protection of Civilians in Times of War, supra
note 3, at Art. 42.
48 Id. at Arts. 4, 44.
49 Id. at Art. 42.
50 Id. at Art. 42; see also id. at Arts. 41, 43.
Geneva Convention IV was DOJ’s family reunification internment camp at
Crystal City, Texas.51
V. DURING WORLD WAR II, FEDERAL STATUTE AND INTERNATIONAL LAW PROVIDED THE LEGAL BASIS FOR INTERNMENT OF SELECTED JAPANESE ALIENS
Because current indiscriminate uses of the word “internment” (such as
“internment of the Japanese Americans”) fail to distinguish between the two
radically different legal schemes of alien internment and mass incarceration
as they existed during World War II, the first of these, as applied to
Japanese aliens, is relevant to this paper’s discussion of the wartime events
and nomenclature; accordingly, this part describes it. Although the
internment legal scheme has changed in certain respects since World War II
(for example, the relevant Geneva convention regulation of civilian
internment has moved from a POW convention to a civilian convention), a
comparison of the World War II internment scheme with the current
internment scheme52 reveals no change to one essential feature—the
connection between civilian internment and alienage.
A. Federal Statute Provided for Internment of Enemy Aliens
During World War II, consistent with the United States’ historical
wartime practice mentioned in Part IV, point A, above, the Alien Enemies
Act authorized the president to direct, by proclamation, the “manner and
degree of the restraint” of enemy alien civilians.53 Thus, when President
Roosevelt immediately after Pearl Harbor issued a set of three presidential
proclamations on the subject of “alien enemies” (one on Japanese aliens,
51 See KASHIMA, supra note 1, at 63.
52 See supra Part IV.
53 50 U.S.C § 21 (1918).
one on German aliens, and one on Italian aliens), each proclamation began
by citing and quoting the Alien Enemies Act.54
The proclamation on Japanese aliens, after quoting the Alien Enemies
Act, defined Japanese “alien enemies” as “natives, citizens, denizens or
subjects of Empire of Japan being of the age of fourteen years and
upwards.”55 It assigned initial responsibility for Japanese alien internment to
the attorney general and the secretary of war by these terms:
I hereby charge the Attorney General with the duty of executing all
the regulations hereinafter prescribed regarding the conduct of
alien enemies within the continental limits of the United States,
Puerto Rico, the Virgin Islands and Alaska, and the Secretary of
War with the duty of executing the regulations which are
hereinafter prescribed and which may be hereafter adopted
regarding the conduct of alien enemies in the Canal Zone, the
Hawaiian Islands and the Philippine Islands. Each of them is
specifically directed to cause the apprehension of such alien
enemies as in the judgment of each are subject to apprehension or
deportation under such regulations.56
The proclamation prohibited possession of firearms, shortwave receivers,
signal devices, cameras, or “papers, documents or books in which there may
be invisible writing; photograph, sketch, picture, drawing, map or graphical
representation of any military or naval installations or equipment or of any
arms, ammunition, implements of war, device or thing used or intended to
be used in the combat equipment of the land or naval forces of the United
States or any military or naval post, camp or station.”57
54 See Pres. Proc. No. 2525, 55 Stat. 1700 (Dec. 7, 1941); see also Pres. Proc. No. 2526,
55 Stat. 1705 (Dec. 7, 1941); Pres. Proc. No. 2527, 55 Stat. 1707 (Dec. 8, 1941).
55 Pres. Proc. No. 2525, supra note 54 (referring to the portion headed “Conduct to be
Observed by Alien Enemies”).
56 Id. (referring to the portion headed “Duties and Authority of the Attorney General and
the Secretary of War”).
57 Id. (referring to the portion headed “Regulations”).
In a perhaps hyperbolic application of that prohibition, children’s
elementary school drawings of Panama Canal locks, labeled with the
children’s names and found in the children’s home, were later attributed to
the children’s father, Masao Yasui, an Issei farmer from Hood River,
Oregon.58 A hearing officer asked Mr. Yasui, “Didn’t you have these maps
and diagrams so you could direct the blowing up of the canal locks?” and
told him, “we think . . . you had intent to damage the Panama Canal.”59
The proclamation also prohibited going to or from numerous categories
of places without permission, including “any place . . . not generally used
by the public.”60 The proclamation prohibited attendance at “meetings . . .
or gatherings” of “any organization . . . hereafter designated by the Attorney
B. The United States Applied a Geneva Convention on POWs to Interned
Japanese Alien Civilians
International agreement extended the scope of the 1929 Geneva
Convention on POWs during World War II to protect the civilian Japanese
nationals interned by the United States.62 On December 18, 1941, 11 days
after Pearl Harbor, the United States proposed “to extend and apply the
provisions of the Geneva Prisoner of War Convention to any civilian aliens
that it might intern” and “hoped” that Japan would reciprocate.63 Japan
58 See KASHIMA, supra note 1, at 60 (citing Minoru Yasui, Minidoka, in JOHN TATEISHI,
ED., AND JUSTICE FOR ALL 67 (1984)).
60 Pres. Proc. No. 2525, supra note 54, para. 12 (referring to the portion headed
61 Id. para. 13.
62 See Convention Between the United States of America and Other Powers, Relating to
Prisoners of War; July 27, 1929, 47 Stat. 2021 (1932) [hereinafter 1929 Convention]
(later replaced, see Geneva Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, supra note 2).
63 Tetsuden Kashima, American Mistreatment of Internees During World War II: Enemy
Alien Japanese, in ROGER DANIELS, SANDRA C. TAYLOR, & HARRY H. L. KITANO, EDS.,
agreed to the application of that convention, mutatis mutandis64 (that is,
with necessary changes), to civilian aliens.65
C. The 1929 Convention Gave Japanese Alien Internees Multiple
The 1929 Convention provided numerous legal protections to alien
internees. “Prisoners of war may be interned,” but they “may not be
confined or imprisoned except as an indispensable measure of safety or
sanitation, and only while the circumstances which necessitate the measure
continue to exist.”66 Thus, Japanese alien internment was selective
incarceration with a requirement of necessity, not mass incarceration. The
1929 Convention required housing “affording all possible guarantees of
hygiene and healthfulness” and set minimum space requirements.67 It set
minimums for food quantity and quality.68 It contained requirements for
health care.69 It governed internees’ labor, including types of jobs, working
conditions, wages and hours, and injury compensation.70 It gave internees
rights to complain to the interning authorities and to “representatives of the
protecting Powers” concerning their conditions of captivity,71 and it gave
representatives of the protecting power the right to “go to any place, without
JAPANESE AMERICANS: FROM RELOCATION TO REDRESS 52, 54 (1991) (quoting Howard
64 A literal translation of mutatis mutandis is “what are to be changed having been
65 See John J. Culley, The Santa Fe Internment Camp and the Justice Department
Program for Enemy Aliens, in DANIELS ET AL., JAPANESE AMERICANS: FROM
RELOCATION TO REDRESS 57, 59 (summarizing the actions of the United States, Japan,
DOJ, and INS, in extending the 1929 Convention to civilian enemy alien internees).
66 1929 Convention, supra note 62, at Art. 9.
67 Id. at Art. 10.
68 Id. at Art. 11.
69 Id. at Arts. 14, 15.
70 Id. at Arts. 27–34
71 Id. at Art. 42.
exception, where prisoners of war are interned.”72 If an internee
misbehaved, the 1929 Convention prohibited any punishment beyond arrest
for 30 days.73
D. DOJ Had Alien Civilian Internment Responsibilities
As directed by the presidential proclamation74 quoted in section A, above,
two agencies divided the labor of interning alien enemy civilians: DOJ,
acting through its Immigration and Naturalization Service, and the US
Department of War.75 Kashima describes a three-step process. First, the
individual was designated as an enemy alien, was arrested early in the war,
and was kept in DOJ holding centers until a hearing before an Alien Enemy
Regarding that hearing, the 1929 Convention gave an internee the right to
complain of conditions of captivity to the captors.77 An agreement between
the DOJ and the war department, partly implementing and partly derogating
that right, gave internees the so-called “privilege of having a hearing before
the Alien Enemy Hearing Board” on the internee’s final disposition.78 The
hearings came with no right to legal counsel, charges against the individual
were undisclosed, certain facts were irrebuttable, and the presumption was
of guilt, not innocence.79 The hearing could provide a basis for the DOJ’s
In the second step, if the alien internee was male, and if the hearing board
recommended his permanent internment, the army took jurisdiction.80 In the
72 Id. at Art. 86.
73 Id. at Art. 54.
74 Pres. Proc. No. 2525, supra note 54.
75 KASHIMA, supra note 1, at 105.
77 1929 Convention, supra note 62, at Art. 42.
78 KASHIMA, supra note 1, at 58.
79 Id. at 59.
80 Id. at 105.
early war years, the Japanese alien internee population was predominantly
Issei and male.81 Edward Ennis, director of DOJ’s Alien Enemy Control
Unit, called DOJ’s internment of an American citizen accused of being a
Japanese alien a “mistake,” and, in a further confirmation of the connection
between internment and alienage, called hypothetical legislation providing
for such custody “unconstitutional.”82 Third, beginning in early 1943, the
army returned control of alien internees to the DOJ.83
VI. MASS INCARCERATION: A LEGAL SCHEME DISTINCT FROM
A. The Mass Incarceration Had a Separate Legal Basis from Internment
In contrast to the treaty- and statute-based legal scheme governing
internment of aliens, an executive order, not international law or federal
statute, served as the legal basis for the government’s incarceration of the
Japanese American community by race, regardless of citizenship. Executive
Order 9066 (E.O. 9066) authorized the secretary of war to “prescribe
military areas . . . from which any or all persons may be excluded,” and to
provide “transportation, food, shelter, and other accommodations” for those
excluded.84 That executive order directed “other Federal Agencies” to
furnish the excluded persons with transportation, shelter, and other services
to assist the military.85 Another executive order created the WRA, or War
Relocation Authority, and directed its head to “provide for the relocation”
of “the persons or classes of persons designated under” E.O. 9066 “in
appropriate places.”86 E.O. 9066—as a basis for mass incarceration and not
81 Id. at 106.
82 Id. at 65.
83 Id. at 105.
84 Exec. Order No. 9066, 3 C.F.R. 1092 (1942).
86 Exec. Order No. 9102, 7 Fed. Reg. 2165 (Mar. 18, 1942).
814 SEATTLE JOURNAL FOR SOCIAL JUSTICE
for internment—specifically distinguished itself from the pre-existing
“regulations for the conduct and control of alien enemies” administered by
B. The Mass Incarceration Lacked Internment’s Legal Protections
American citizens of Japanese ancestry incarcerated by the WRA lacked
internees’ rights.88 Their incarceration was mass, not selective. Because of
the lack of selectivity, the US citizens in mass incarceration also lacked the
perhaps dubious “privilege” of a hearing on their fate, described in Part V,
point D, above.
Of substantial importance, the government failed to treat these US
citizens as having the right to complain of imprisonment conditions. They
lacked the international law right, given by Article 42 of the 1929
Convention, to seek assistance on their conditions of captivity from Spain,
the protecting power for Japanese enemy aliens in the United States; nor
could Spain’s representatives “go to anyplace” where these Americans were
kept.89 In July 1944, during a hunger strike in the Tule Lake concentration
camp’s stockade, representatives of the Spanish Consulate, including the
87 Exec. Order. No. 9066, supra note 84.
88 The historical question of whether and in what respects the WRA treated the Issei
aliens in its mass-incarcerated population as internees is beyond this piece’s scope. Did
the WRA afford these aliens the right, under 1929 Convention Article 42, to complain of
the conditions of their captivity to United States authorities? Did the WRA “leave
clearance” procedure as applied to these aliens, with its controversial Questions 27 and
28, satisfy this requirement? Did the WRA allow these aliens access to consular
representatives of Spain as the Protecting Power under 1929 Convention Article 42? Did
the WRA allow these aliens (with the aid of humanitarian intermediaries) to supplement
the worse-than-internment WRA food with foods from Japan? Whatever internment-like
rights the aliens in WRA custody might have had, the present point is the contrast
between the legal rights of internees and the WRA’s general practice, shown by its
treatment of its American-citizen majority, of affording those it incarcerated none of the
international-law rights of internees.
89 Cf. 1929 Convention, supra note 62, at Art. 42.
Vice-Consul, visited the camp.90 They requested permission to interview
individuals in the stockade; but the WRA denied permission because the
individuals were “American citizens and thus outside the jurisdiction of the
Spanish Consul.”91 The Vice-Consul requested that the persons held in the
stockade be released immediately; but the WRA refused, again on the
ground that the prisoners were American citizens.92
Nor did the US citizens incarcerated by the WRA have an effective right
to inform the captors themselves of their requests on their conditions of
captivity. Again, internees had this right under 1929 Convention Article
42.93 Instead, “supposedly troublesome persons were subject to swift
reprisals for their failure to obey camp rules.”94 Even a peaceful protest of
conditions at some WRA camps was likely to occasion reprisals. Inmates at
the widely known and reviled Manzanar WRA camp in southern California,
for example, “knew that raising questions or taking action of any sort could
lead to immediate arrest and transfer.”95 Thus, these inmates, despite being
US citizens and despite having been convicted of no crime, lacked effective
First Amendment free speech protection.
Although 1929 Convention Article 54 allowed disciplinary punishment, it
made “arrest” the severest type of internee punishment and limited arrest to
30 days.96 But WRA “punishment included incarceration in special centers
created to isolate these inmates from the rest of the prisoner population.”97
90 Barbara Takei, Legalizing Detention: Segregated Japanese Americans and the Justice
Department’s Renunciation Program, 19 J. OF THE SHAW HIST. LIBR. 75, 82 (2005)
(citing FBI, Summary of Information, War Relocation Authority and Japanese Relocation
Centers 192-93 (Aug. 2, 1945), FBI Headquarters files, RG 60, Entry 38B, National
93 1929 Convention, supra note 62, at Art. 42.
94 KASHIMA, supra note 1, at 127.
95 Id. at 148.
96 1929 Convention, supra note 62, at Art. 54.
97 KASHIMA, supra note 1, at 127.
816 SEATTLE JOURNAL FOR SOCIAL JUSTICE
That arguably was not simple arrest. Nor does anything indicate that such
isolation was limited to 1929 Convention Article 54’s 30-day arrest
maximum for internees.
And the punishment of US citizens did not end at transfers to isolation
centers. “The WRA and the U.S. Army used fear and terror, and even
condoned homicide, in order to control the inmates.”98 To mischaracterize
such a brutal regime as “internment” is to mock the protections of
Alien internees had one final right of interest to incarcerated persons
everywhere, for they could invoke the 1929 Convention Article 11 standard
requiring that food (for POWs, and therefore for civilian alien internees) be
“equal in quantity and quality to that of troops at base camps.”99 As a result,
“The quality of food in the alien camps was better than in the relocation
camps.”100 Hironori Tanaka, among others transferred from Tule Lake to
DOJ’s Fort Lincoln internment camp, wrote back to family at Tule Lake
about better conditions at his new place of confinement.101 Fort Lincoln
“was a huge improvement over Tule Lake . . . The food was excellent.”102
As shown above, DOJ-interned aliens had all of the abovementioned
rights;103 WRA-incarcerated American citizens lacked all of them.
99 1929 Convention, supra note 62, at Art. 11.
100 Harry H. L. Kitano & Roger Daniels, Part III: Life in the Camps, in DANIELS ET AL.,
JAPANESE AMERICANS FROM RELOCATION TO REDRESS 24.
101 JOHN CHRISTGAU, “ENEMIES”: WORLD WAR II ALIEN INTERNMENT 161 (1985).
102 Id. (“[t]he barracks were warm. Each dormitory room had its own shower. The
Germans [interned at Fort Lincoln] were hospitable, sharing their canteen, casino, and
theater. There was an indoor swimming pool [and] a skating rink.”).
103 See 1929 Convention, supra note 62, at Arts. 11, 42, 54.
VII. THE GOVERNMENT CONFIRMED THAT THE MASS
INCARCERATION WAS NOT INTERNMENT
No fact suggests any official view during World War II that internment
included incarceration of a nation’s own citizens. On the contrary, as shown
below, the government contemporaneously, specifically, and repeatedly
used “internment” to mean internment, and other terms to denote the
WRA’s mass incarceration.104 The Supreme Court’s usage also confirmed
internment’s connection with alienage.
A. The WRA Confirmed That Its Action Was Not Internment
WRA records confirm that the agency’s contemporaneous view, and
indeed insistence, was that its camps were not internment camps. Details on
three critical records, in chronological order, follow.
First, a WRA memorandum dated October 2, 1942, issued by WRA
Director Dillon S. Myer and copied to all staff members by Tule Lake
director Elmer L. Shirrell said, “The evacuees are not ‘internees.’ They have
not been ‘interned.’”105 The memorandum pointed out that internment
requires a hearing (a process not available to the WRA’s US citizen
prisoners), and it warned against confusing the WRA’s “relocation centers”
with “internment camps administered by other agencies.”106
104 But see GREG ROBINSON, BY ORDER OF THE PRESIDENT 260-61 (2001), (stating that
Secretary of War Henry Stimson “referred to the ‘relocation centers’ as ‘internment
camps.’” The statement identified no source. In an email on May 17, 2016, albeit from
Finland, where professor Robinson lacked his documents, he recalled that “my reference
concerns only internal communications. I believe that Stimson used the phrase
‘internment camps’ in his diaries, and may have used it in his letter to Roosevelt advising
the creation of a JA combat unit.” Apparently Stimson’s calling the places of mass
incarceration “internment camps” reflected personal idiosyncrasy, not agency position.).
105 Memorandum from D. S. Meyer, Dir., War Relocation Auth., to All Staff Members
(Oct. 2, 1942), RG 210, National Archives (reprinted in PAUL TAKEMOTO, NISEI
MEMORIES: MY PARENTS TALK ABOUT THE WAR YEARS 172 (2006)). The text is
818 SEATTLE JOURNAL FOR SOCIAL JUSTICE
Second, a WRA circular published in May 1943 said, “The relocation
centers, however, are NOT and never were intended to be internment
camps.”107 “It is also important to distinguish between the residents of
relocation centers and civilian internees. Under our laws, aliens of enemy
nationality who are found guilty of acts or intentions against the security of
the Nation are being confined in internment camps which are administered
not by the War Relocation Authority but by the Department of Justice.”108
Some might question whether our government could, consistent with
Fifth Amendment due process, incarcerate a resident for being “guilty of . . .
intentions” without acts. The WRA’s point, in its published circular, was
that some such process accompanied DOJ internment, but that not even
such a flimsy imputation of guilt accompanied mass incarceration.
Third, a WRA memorandum written to educate WRA staff, dated
October 22, 1943, from B. R. Stauber, chief of the Relocation Planning
Office, to John Baker, chief of the Reports Division, both at WRA
headquarters, explained “the difference between an internment camp and a
concentration camp.”109 In defining “internment camp,” the memo referred
specifically to the 1929 Convention.110 It observed that internees’ treatment
was regulated by international law and that “internees have the benefit of
visits and counsel by representatives of a protecting power.”111 By contrast,
the operation of a “concentration camp”—such as the WRA’s camps—
generally was “a matter internal to the country operating it.”112
107 WAR RELOCATION AUTHORITY, Relocation of Japanese-Americans 2 (May 1943),
UNIV. OF WASH. SPECIAL COLLECTIONS,
ocuments/war/wrapam (last visited Apr. 9, 2016) (emphasis in original). After
“internment camps,” the sentence added “or places of confinement.”
108 Id. at 4.
109 Memorandum from B. R. Stauber to John Baker (Oct. 22, 1943), RG 210, National
Archives. The text is appended.
B. DOJ, an Interning Agency, Expressly Interned Citizens Turned Aliens
As shown earlier, the DOJ was responsible for the confinement of a
number of civilian enemy aliens. Calling the DOJ facilities internment
camps, calling their prisoners internees, and treating the internees as
protected by international and federal internment law are not problematic—
although the individuals’ selection for internment and the imperfect
application to them of internment’s legal protections may be.113
But one WRA camp in particular saw an extraordinary change in the
citizenship and imprisonment statuses of thousands of its prisoners, from
birthright US citizenship to alienage, and from WRA mass incarceration to
DOJ internment. That camp is Tule Lake.
From December 1944 to March 1945, almost 6,000 American citizen
Nisei in WRA custody at Tule Lake lost their birthright citizenship through
renunciation.114 How that happened, who initiated it, and why, are beyond
this piece’s scope.
During that time, however, two departments, the DOJ and the US
Department of the Interior (DOI), and their agencies, the INS and the WRA,
discussed possible changes in the administration of Tule Lake.115 In that
discussion, a memorandum dated April 5, 1945, from WRA Director Dillon
S. Myer to his superior, the secretary of the interior, said that it was “in
some respects appropriate that the segregation center [i.e., the Tule Lake
camp] should be administered by that department of the government which
is generally responsible for the internment of enemy aliens.”116 Thus, the
113 See generally Kashima, supra note 63 (criticizing DOJ’s internment of Japanese
114 DONALD E. COLLINS, NATIVE AMERICAN ALIENS: DISLOYALTY AND THE
RENUNCIATION OF CITIZENSHIP BY JAPANESE AMERICANS DURING WORLD WAR II 84
115 Memorandum from Dillon S. Myer, Dir., War Relocation Auth. 2 (Apr. 4, 1945), RG
210, Entry 16, Sub Classified Gen File 41.133, National Archives (copy on file with
820 SEATTLE JOURNAL FOR SOCIAL JUSTICE
head of the WRA, consistent with that agency’s oft-expressed position,
once again connected internment with alienage, and he accordingly
suggested that the DOJ could be the Japanese aliens’ interning agency.
Ending this discussion, on August 31, 1945, Attorney General Tom C.
Clark ordered that 4,212 native-born Americans who had renounced their
US citizenship, “being Japanese nationals,” be “interned” at the Tule Lake
Segregation Center.117 And on October 10, 1945, the interning DOJ took
physical control of the Tule Lake facility from the WRA.118 That is, the
Tule Lake WRA mass incarceration camp became a DOJ internment camp.
The DOJ general order’s language underscores that the change in the
inmates’ imprisonment—from mass incarceration by an agency of one
cabinet-level department, DOI, to internment by another department,
DOJ—turned on the individuals’ transformation from US citizens into
aliens. Thus, once again, in the view of the responsible federal
administrative agencies, alienage was critical to internment.
C. The Supreme Court’s Wartime Opinions Did Not Call the Mass
Finally, and consistent with the WRA’s and DOJ’s contemporary
interpretation of the word, the opinions in the Supreme Court’s four
wartime decisions on the forced removal and mass incarceration of Japanese
Americans rarely mentioned “internment,” never mischaracterized the
Japanese American community’s forced removal or mass incarceration as
117 General Order, In the Matter of Certain Japanese Nationals (Aug. 31, 1945), RG 85,
Entry 318, National Archives. The text is appended.
118 JACOBUS TENBROEK, EDWARD N. BARNHART & FLOYD W. MATSON, PREJUDICE,
WAR AND THE CONSTITUTION: CAUSES AND CONSEQUENCES OF THE EVACUATION OF
THE JAPANESE AMERICANS IN WORLD WAR II 174 (1954) (“Military police were
withdrawn from all centers and on the basis of an agreement reached with the Department
of Justice early in the year, Tule Lake was turned over to that department, patrolmen of
the Immigration and Naturalization Service replacing the military police on October 10,
“internment,” and indeed used “internment” correctly.119 In the four
Supreme Court cases—Hirabayashi, Yasui, Korematsu, and Ex Parte
Endo—the sole mention of internment was in Justice Murphy’s Korematsu
dissent, where he accurately described Britain’s treatment of German and
Austrian enemy aliens as internment.120
And in 1950, shortly after the war, the Supreme Court, in deciding
whether a German who never resided in the United States, but was
convicted by a US military commission of having illegally fought against
the United States in China after Germany’s surrender could seek habeas
corpus relief, explained internment under the Alien Enemies Act121 as
The resident enemy alien is constitutionally subject to summary
arrest, internment and deportation whenever a ‘declared war’
exists. Courts will entertain his plea for freedom from Executive
custody only to ascertain the existence of a state of war and
whether he is an alien enemy and so subject to the Alien Enemy
Thus, the Supreme Court, like the executive branch, explicitly recognized
the connection between internment and alienage.
VIII. HOW DID INTERNMENT’S MISUSE BECOME COMMONPLACE?
Despite the correct use of the term during and after World War II, a
number of books and media, especially since 1980, some 35 years after the
war’s end, have misused phrases like “internment of the Japanese
Americans” to conflate the WRA mass incarceration with internment.
119 See Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S.
115 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Ex Parte Endo, 323 U.S.
120 Korematsu, 323 U.S. 214, 242 n. 16 (Murphy, J., dissenting).
121 50 U.S.C. § 21 (1918).
122 Johnson v. Eisentrager, 339 U.S. 763, 774 (1950).
822 SEATTLE JOURNAL FOR SOCIAL JUSTICE
Google’s Ngram Viewer,123 which graphs data from books, chronicles the
misuse by showing the frequency of occurrence of words and phrases over
time. For the phrase “internment of the Japanese Americans,” it shows a
sharp increase to a peak frequency of over 0.000000120 percent in the early
1980s, followed by other peaks at about the same level.124
Not all of the phrase’s occurrences necessarily were misuses, for in some
of the phrase’s occurrences, a writer used the phrase to criticize the misuse.
An example is “Words Do Matter: A Note on Inappropriate Terminology
and the Incarceration of the Japanese Americans.” In that 2005 essay, Roger
Daniels urged scholars “to cease using . . . the stock phrase ‘the internment
of the Japanese Americans.’”125
How did the “internment” misuse become commonplace so many
decades after the wartime events it purports to describe? Given the paucity
of concentration on Japanese alien internment identified by Kashima,126 a
possible cause is an incident in politics leading to the Commission on
Wartime Relocation and Internment of Civilians Act of 1980 (1980 Act),127
and ultimately to the Civil Liberties Act of 1988 (1988 Act).128 Daniels,
later a consultant to the commission set up by the 1980 Act, tells of an
interaction with a member of Senator Daniel Inouye’s staff in 1979.129 The
staff member read him a draft of what became the 1980 Act.130 Daniels says
123 The author is indebted to Bryan A. Garner for introducing him to the Ngram Viewer
124 Google Ngram Viewer: Internment of the Japanese Americans, GOOGLE BOOKS,
https://books.google.com/ngrams (with case sensitivity off, type “Internment of the
125 DANIELS, supra note 42, at 11.
126 See KASHIMA, supra note 1, at 4; See supra Part I.
127 Commission on Wartime Relocation and Internment of Civilians Act of 1980, 50
U.S.C. app. § 981 (1980).
128 H.R. 442, 100th Cong. (1988) [hereinafter 1988 Act]. In several respects, the 1988 Act
did not differentiate between mass incarceration and internment.
129 DANIELS, supra note 42, at 1.
he explained to the staff member why “internment” is inappropriate and
why “incarceration” is more accurate.131 The staff member understood the
difference and said the bill’s text would be changed.132 But the next day, the
staff member said that Senator Inouye had not awaited Daniels’ vetting to
secure other senators’ co-sponsorships and that Senator Inouye would not
countenance any changes.133 That is how “inappropriate, euphemistic
language” about the wartime mistreatment of Japanese Americans was
written into a law setting the path to redress for the same Japanese
Americans.134 Congress based its misuse of “internment” in 1980 not on
deliberation, but on happenstance.
IX. LACK OF MORAL LEGITIMACY DIFFERENTIATES MASS
INCARCERATION FROM INTERNMENT
American authorities in all three branches of government, and legal
commentators, have rejected the World War II mass incarceration, E.O.
9066 as its legal basis, and the “military necessity” put forward to justify it.
No such rejection of the idea of internment (as distinguished from its
execution) has occurred. Here are statements from each branch.
A. Judicial Branch
The Ninth Circuit as early as 1949 criticized the forced removal as
“unnecessarily cruel and inhuman treatment of these citizens,” and
criticized “incarceration for over two and a half years under conditions in
major respects as degrading as those of a penitentiary and in important
respects worse than in any federal penitentiary.”135 It rejected the claim of
military necessity as based on a “Nazi-like doctrine of inherited racial
135 Acheson v. Murakami, 176 F.2d 953, 954 (9th Cir. 1949).
824 SEATTLE JOURNAL FOR SOCIAL JUSTICE
enmity, stated by the Commanding General ordering the deportations as the
major reason for that action.”136 And on coram nobis review of Fred
Korematsu’s wartime conviction in 1984, the convicting US District Court
found his treatment by the federal government to be a “profound and
publicly acknowledged injustice.”137 The district court further found “that
the government knowingly withheld information from the courts when they
were considering the critical question of military necessity in this case.”138
was “substantial support in the record that the government
deliberately . . . provided misleading information in papers before the court.
The information was critical to the court’s deliberation.”139
B. Legislative Branch
Congress in 1971 enacted the Non-Detention Act, providing that “no
citizen shall be imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress.”140 As the Second Circuit’s review
of the legislative history found, “almost every representative who spoke in
favor” of that measure “described the detention of Japanese-American
War II as the primary
motivation for their
positions.”141 Furthermore, Congress repudiated the World War II forced
removal and imprisonment142 of Japanese Americans by the 1988 Act.143
136 Id. While the plaintiffs in that case were incarcerated at the Tule Lake camp, the cited
facts—the forced removal, the incarceration for over two and a half years, the bad
physical conditions, General DeWitt’s assumptions of race-wide enmity—were true of
the mass incarceration generally. Id.
137 Korematsu v. United States, 584 F. Supp. 1406, 1413 (N.D. Cal. 1984). The writ of
error coram nobis exists to correct errors in criminal convictions where other relief is
wanting. Id. at 1411.
138 Id. at 1417.
139 Id. at 1420.
140 18 U.S.C. § 4001(a) (1971).
141 Padilla v. Rumsfeld, 352 F.3d 695, 720 (2d Cir. 2003).
142 Cf. KASHIMA, supra note 1, at 9 (use of “imprisonment”).
The 1988 Act included provisions to “acknowledge the fundamental
injustice,” to apologize, and to set up monetary redress of $20,000 per
person and public education.144
C. Executive branch
President Ford rescinded the mass incarceration’s legal basis, Executive
Order 9066, on February 19, 1976, in a proclamation to “affirm” and
“resolve that this kind of action shall never again be repeated.”145 President
Reagan signed the 1988 Act on August 10, 1988.146 Reagan’s successor,
President Bush, in letters sent with redress checks to the incarceration’s
survivors, conveyed apology by “your fellow
successor, President Clinton, sent letters of explicit presidential apology.148
And in 2011, the acting solicitor general of the United States confessed
error in the wartime solicitor general’s representations to the Supreme Court
leading to Hirabayashi and Korematsu.149 Thus, the branch that issued and
carried out Executive Order 9066, and sought to justify it by “military
necessity,” has abandoned it.
143 1988 Act, supra note 128. Arguably the 1988 Act did not repudiate alien internment
generally, but based its action in part on criticism of internment as applied to Japanese
aliens. See id.
144 See id. at § 1.
145 Proclamation No. 4417, 3 C.F.R. 100 (Feb. 19, 1976),
146 ROGER DANIELS, THE JAPANESE AMERICAN CASES: THE RULE OF LAW IN TIME OF
WAR 159 (2013).
147 Id. at 162.
148 Id. at 162–63.
149 Neal Katyal, Confession of Error: The Solicitor General’s Mistakes During the
Japanese-American Internment Cases, DEP’T OF JUST. (May 20, 2011),
826 SEATTLE JOURNAL FOR SOCIAL JUSTICE
Dean Chemerinsky has placed Korematsu “on the list of the worst
Supreme Court rulings” because of its “social and human impact,” its
“judicial reasoning,” and its “subsequent doctrinal effects.”150 A
recentlyhonored biography of Fred Korematsu says, “Legal commentators have
been unanimous in condemning the Supreme Court’s decisions in the
Korematsu, Hirabayashi, and Yasui cases.”151 And Eric Muller wrote that
“to the extent that Korematsu stands at all today [in 2002], it stands as a
deeply discredited decision. Eight of the nine currently sitting Justices on
Court have either
written or concurred in opinions describing
Korematsu as an error [footnote omitted]—even as spectacular an error as
the Court’s Dred Scott decision.”152 “It seems safe to say that the majority
150 Erwin Chemerinsky, Korematsu v. United States: A Tragedy Hopefully Never To Be
Repeated, 39 PEPP. L. REV. 163, 166, 168, 169 (2011).
151 LORRAINE K. BANNAI, ENDURING CONVICTION: FRED KOREMATSU AND HIS QUEST
FOR JUSTICE 103 (2015); Book Award, SCRIBES: THE AM. SOC’Y OF LEGAL WRITERS,
http://www.scribes.org/#!book-award/ycdfw (last visited Apr. 6, 2016).
152 ERIC L. MULLER, 12/7 and 9/11: War, Liberties, and the Lessons of History, 104 W.
VA. L. REV. 571, 586 (2002) (citing Stenberg v. Carhart, 530 U.S. 914, 953 (2000)
(Scalia, J., dissenting) (“I am optimistic enough to believe that, one day, Stenberg v.
Carhart will be assigned its rightful place in the history of this Court’s jurisprudence
beside Korematsu and Dred Scott”); Adarand Constructors, Inc., v. Peña, 515 U.S. 200,
236 (1995) (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, Scalia, and Thomas,
JJ.) (“Korematsu demonstrates vividly that even ‘the most rigid scrutiny’ can sometimes
fail to detect an illegitimate racial classification. . . . Any retreat from the most searching
judicial inquiry can only increase the risk of another such error occurring in the future.”);
id. at 244 (Stevens, J., dissenting, joined by Ginsburg, J.) (referring to the “shameful” and
“invidious” burdens that the government imposed on Japanese Americans during World
War II, some of which the Court upheld in Korematsu); id. at 275 (Ginsburg, J.,
dissenting, joined by Breyer, J.) (“(T)he enduring lesson one should draw from
Korematsu” is that “scrutiny the Court described as ‘most rigid’ nonetheless yielded a
pass for an odious, gravely injurious racial classification.”); Metro Broadcasting v.
F.C.C., 497 U.S. 547, 633 (1990) (Kennedy, J., dissenting, joined by Scalia, J.) (“Even
strict scrutiny may not have sufficed to invalidate early racebased laws of most doubtful
validity, as we learned in Korematsu.”).
opinion in Korematsu would not command a single vote today, let alone a
Thus, internment and mass incarceration differ radically in their legal and
moral acceptability. To describe mass incarceration as “internment” may be
to misrepresent a horror by a euphemism.
X. TODAY’S JAPANESE AMERICAN COMMUNITY REJECTS THE
INTERNMENT MISUSE AS A EUPHEMISM
The Japanese American community’s members suffered psychological
trauma from their wartime incarceration.154 The official euphemisms used to
deny and minimize that trauma inferably aggravated it. Against this
background, the community has decided to stop mislabeling the mass
incarceration as “internment.”155 A resolution adopted in 2010 by the
bestknown national organization of Japanese Americans (the Japanese
American Citizens League or JACL) calls “internment” a misnomer and a
euphemism.156 The resolution followed decades of advocacy chronicled by
researcher and activist Aiko Herzig-Yoshinaga.157
153 MULLER, supra note 152, at 586.
154 See COMMISSION ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS,
PERSONAL JUSTICE DENIED: REPORT OF THE COMMISSION ON WARTIME RELOCATION
AND INTERNMENT OF CIVILIANS 297-300 (1997). See also ERIC K. YAMAMOTO,
MARGARET CHON, CAROL L. IZUMI, JERRY KANG, & FRANK H. WU, RACE, RIGHTS AND
REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT 197 (2D ED. 2013).
155 See A Resolution of the National Council of the Japanese American Citizens League to
Support the ‘Power of Words’ Proposal which Relates to Euphemisms and Misnomers in
Reference to the World War II Experience of Japanese Americans, NAT’L COUNCIL OF
THE JAPANESE AMERICAN CITIZENS LEAGUE 1 (2010),
=373751 (last visited Apr. 6, 2016).
157 Aiko Herzig-Yoshinaga, Words Can Lie or Clarify: Terminology of the World War II
Incarceration of Japanese Americans, DISCOVER NIKKEI (Feb. 10, 2010),
828 SEATTLE JOURNAL FOR SOCIAL JUSTICE
A 2013 handbook elaborates on the JACL’s position by distinguishing
the “internationally acknowledged and utilized procedure defined legally as
internment” from the forced removal and incarceration of Japanese
Americans “irrespective of whether they were citizens or not.”158 The
handbook’s section on “internment” points out that the term “does not
apply” to the WRA’s mass incarceration because most persons incarcerated
by the WRA were American citizens and because internment “refers to the
confinement or impounding of enemy aliens.”159
The Denshō Encyclopedia is “a free and publicly accessible website that
provides concise, accurate, and balanced information on many aspects of
the Japanese American story during World War II.”160 Denshō asks its
contributors “to limit the use of the term ‘internment’ to the legally
permissible detention of enemy aliens and not to refer to the mass forced
removal and incarceration of Japanese Americans, most of whom were U.S.
MISINFORMATION XI. CONFLATING INTERNMENT WITH MASS INCARCERATION CAUSES
A. Tule Lake’s Transformation from Mass Incarceration to DOJ Internment
The misuse of “internment,” by conflating internment with the mass
158 JAPANESE AMERICAN CITIZENS LEAGUE, POWER OF WORDS HANDBOOK: A GUIDE
TO LANGUAGE ABOUT JAPANESE AMERICANS IN WORLD WAR II 4 (April 27, 2013),
159 Id. at 10.
160 About the Encyclopedia: Overview, DENSHŌ ENCYCLOPEDIA,
http://encyclopedia.densho.org/about/ (last visited Apr. 9, 2016).
161 Do Words Matter? Euphemistic terminology: Why describing the experiences of
Japanese Americans during WWII with words like, “internment” and “relocation,” is
misleading and inaccurate, DENSHŌ ENCYCLOPEDIA,
http://encyclopedia.densho.org/terminology/ (last visited May 1, 2016).
misinformation. As this paper earlier showed, renunciation-related events
transformed thousands of prisoners from American citizens into aliens and
from inmates at a place of mass incarceration, WRA’s Tule Lake
Segregation Center, into internees at DOJ’s Tule Lake internment camp.162
To mischaracterize the mass incarceration, including incarceration at Tule
Lake as it existed before that transformation, as “internment” is to imply,
incorrectly, that the renunciants started out as aliens. In fact, as Nisei they
were American citizens by birth; had they been aliens, they would have had
no American citizenship to renounce.
B. News Conflation
News media misuse of “internment” is another source of misinformation.
For example, the New York Times, paraphrasing (not quoting) a
presidential candidate’s remark, used “internment” in successive sentences
in an attempt to contrast (a) the mass incarceration (“He said he was not
endorsing something as drastic as the camps where American citizens of
Japanese descent were interned”) with (b) alien internment (“the internment
of thousands of noncitizen Japanese, Germans and Italians” by “a president
highly respected by all”).163 The repetition of internment could cause a
reader to miss the distinction.
In fact, one such reader was the staff of a second newspaper. That
newspaper misreported the New York Times story as contrasting (a)
“something as drastic as the Japanese internment camps” (emphasis
supplied) with (b) alien internment (again, the respected president’s
162 See supra part VII.B.
163 Maggie Haberman, Trump Deflects Withering Fire on Muslim Plan, N.Y. TIMES (Dec.
http://www.nytimes.com/2015/12/09/us/politics/donald-trumpmuslims.html?_r=0. Of the statements attributed to the candidate, the story put only “a
president highly respected by all” in quotation marks. Id.
830 SEATTLE JOURNAL FOR SOCIAL JUSTICE
XII. CONCLUSION: RADICAL MORAL AND LEGAL DIFFERENCES,
RESPECT FOR HISTORY, COMMUNITY SELF-DETERMINATION,
FORMAL LEXICON, AND PRACTICAL COMMUNICATION NEEDS,
COMPEL REJECTION OF INTERNMENT’S MISUSE
“Internment” does not, and should not, refer to both of two legal schemes
that differ radically in moral acceptability and legal standing. Part IX,
above, shows the legal community’s repudiation of World War II’s
racebased mass incarceration, while because of its longevity and legal
legitimacy the institution of internment does not provoke the same
Internment’s legal differences from mass incarceration are striking. First,
internment is based on federal statute and international consensus, but the
World War II mass incarceration originated with executive orders.165
Second, the legal scheme of internment has been used for centuries, while
the mass incarceration legal scheme was short-lived.166 Third, the mass
164 Trump stands by no-Muslims plan, SACRAMENTO BEE 11A (Dec. 9, 2015) (crediting
but inaccurately paraphrasing the above-cited New York Times story).
165 See supra Part IV; see supra Part VI.A.
166 See supra Part IV.A.
incarceration legal scheme was narrowly limited to this country; although
some other nations may have engaged in race-based mass incarceration,
there has been no international consensus adopting E.O. 9066. Fourth,
internment implicated international and domestic legal safeguards (even if
imperfectly realized as to Japanese aliens),167 but the mass incarceration
scheme entirely lacked those safeguards.168
On the practical need for effective communication, using the same name
for the distinct legal schemes of internment and mass incarceration is
ineffective because it derogates the formal lexicon.169 By making our use of
the English language ambiguous, it promotes misinformation.170
Internment’s misuse disrespects history by denying a scarce and perhaps
even praiseworthy act—a government’s candid, non-euphemistic, proper
use of language during a war.171 The internment misuse became
commonplace by happenstance, not deliberation.172 The misuse denies
selfdetermination by contravening the Japanese American community’s
wellconsidered decisions after years of suffering and of principled internal
We owe our readers the effort of carefully making distinctions, as Bryan
Garner puts it, not carelessly blurring them.174 To protect the language’s
integrity and therefore our own opportunity to use it carefully, we as
lawyers and Americans should reject the misuse that conflates internment
with race-based mass incarceration. We should use internment only with its
original and correct meaning.
167 See supra Part V.C.
168 See supra Part VI.B.
169 See supra Part III.
170 See supra Part XI.
171 See supra Part VII.
172 See supra Part VIII.
173 See supra Part X.
174 See Bryan A. Garner, Word Usage, CHICAGO MANUAL OF STYLE 262 (16TH ED.
832 SEATTLE JOURNAL FOR SOCIAL JUSTICE
1. WRA memorandum dated October 2, 1942, Myer by Shirrell to
2. WRA memorandum dated October 22, 1943, Stauber to Baker
3. In the Matter of Certain Japanese Nationals, Department of Justice
General Order dated August 31, 1945
WAR RELOCATION AUTHORITY
Tule Lake Project
MEMORANDUM TO: ALL STAFF MEMBERS
Following is a copy of a memorandum from D. S. Myer received October 2,
“MEMORANDUM FOR: Regional Directors and Project Directors.
SUBJECT: Use of the terms “Japanese”, “Camps” and “Internment.”
The words that we use in correspondence, in reports, and in conversation
with the evacuees exercise a great deal of influence in determining the
attitude of the evacuees and of the American public toward the activities of
the War Relocation Authority. It is, therefore, distinctly worthwhile for
employees of the Authority to make an effort to avoid using certain terms
that are misleading and inappropriate.
It is inaccurate to refer to the persons who have been evacuated from the
West Coast as “Japanese.” The Japanese are the people who live in Japan.
The persons who have been evacuated from the West Coast are people of
Japanese ancestry, but they are not “Japanese” in all cases. With a few
exceptions, they have come to the United States because they want to live
here, and two-thirds of them are citizens of the United States.
It is even more objectionable, of course, to refer to the evacuees as
“Japs”. They do not like the word; nor would you if they were an American
834 SEATTLE JOURNAL FOR SOCIAL JUSTICE
of Japanese ancestry. “Japs” means the subjects of the Japanese Emperor,
living in Japan.
The term “camp”, when used to refer to a relocation center, is likewise
objectionable. It leads people to confuse the relocation centers
administered by the War Relocation Authority with the detention camps and
internment camps administered by other agencies.
The evacuees are not “internees”. They have not been “interned.”
Internees are people who have individually been suspected of being
dangerous to the internal security of the United States, who have been given
a hearing on charges to that effect, and have then been ordered confined in
an internment camp administered by the Army.
In lieu of the misleading, question-begging, and emotion-laden terms
“Japanese”, “Japs”, “camps”, and “internees”, employees of the War
Relocation Authority should refer to the persons who have been evacuated
from the West Coast as evacuees, and to the projects as relocation centers.
Some people have been referring to the evacuees as “colonists”. This term
is not objectionable, but the term “evacuee” seems preferable. Where the
context makes the meaning clear, the term “resident” is, of course, also
I should appreciate your calling the contents of this memorandum to the
attention of the members of your respective staffs.
/s/ D. S. Myer
Elmer L. Shirrell
Mr. John Baker
B. R. Stauber
With respect to the items side-lined in blue, I wonder if it might not be
worthwhile sending a short notice to the Project on the difference between
an internment camp and a concentration camp. The difference, as I
understand it, is about like this.
An internment camp is a place where nationals of a country with which
the interning country is at war are maintainted [sic] during the period of
hostilities. The basis of internment differs in different countries, but in
general the practice is to intern such enemy nationals as are deemed
dangerous to the successful prosecution of the war effort. In the United
States a careful procedure of hearings and reviews is followed, although
immediately after the out-break of war a considerable number of persons
were detained until hearings could be arranged. Because of the action of
the United States in adopting toward civilian internees the applicable
policies from the Geneva Prisoners of War Convention, the treatment of
internees is subject in a sense at least to international law. This includes the
right of representatives of the protecting power to visit and communicate
with internees in private, that is, out of the hearing or company of the
representative of the interning power.
A concentration camp, on the other hand, is a device used for the control
of what may be called political prisoners in a particular country. Thus, it is
my understanding, that in Russia persons whom the Secret Police
apprehended might be taken to a concentration camp where they might be
kept more or less permanently. Much the same thing, I understand, has
836 SEATTLE JOURNAL FOR SOCIAL JUSTICE
happened in Germany. Only in exceptional cases is assignment to a
concentration camp a matter of interest to any other nation. Occasionally,
apparently, a citizen of one country has been thrown into a concentration
camp in another country; but by and large it is my understanding that a
concentration camp is a place where political prisoners of a particular
country are “taken care of.”
To summarize: An internment camp, generally speaking, is conducted
along lines on which there is a certain amount of agreement between
nations. Provisions of treatment are substantially reciprocal in character
and internees have the benefit of visits and counsel by representatives of a
A concentration camp, on the other hand, is pretty largely a matter
internal to the country operating it and the “residents” are for the most
part nationals of the country operating the camp.
There seems to be a good deal of confusion on the point, particularly
since people are inclined to confuse the type of treatment which is said to
characterize concentration camps with the treatment accorded residents of
internment camps. Largely, I think, because internment camps are subject
to international law, treatment of internees of one country is pretty largely
reciprocal to the treatment accorded by the other country.
The persons whose names appear on the attached list, in the number of
4,212, being Japanese nationals residing at the Tule Lake Segregation
Center, are hereby ordered interned at that Center.