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Removal of Japanese Aliens and Citizens 

From Hawaii to the United States

Japanese who are aliens can be brought to the continental United States from Hawaii and interned 

under the provisions of 50 U.S.C. § 21. This statute, however, is probably not applicable to the 

Japanese who are American citizens.

Although not free from doubt, an argument can be made for removing Japanese who are American 

citizens from Hawaii to a restricted zone in the United States on grounds of military necessity.

In view of the changed conditions of modern warfare, the Supreme Court would likely follow the views 

of the dissenting justices in Ex parte Milligan, sustaining a declaration of martial law in places 

outside the zone of active military operations upon a showing of military necessity for such action. 

From the nature and purpose of martial law, it would seem to be properly applicable to particular 

areas rather than to particular persons.

May 16, 1942

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

1. Attached is a legal memorandum* on the subject.

2. As a practical matter, I understand that the Army feels the problem can be 

satisfactorily handled by removing the Japanese citizens from Hawaii and treating

them the same way as those evacuated from the West Coast.

3. If this is so, it is not necessary to pass on the legal questions which you put. I 

should think therefore, that the War Department ought not now to be told the 

 

* Editor’s Note: The referenced memorandum begins after the line of asterisks on the next page. It 

was issued three months after Executive Order 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942), which authorized the Secretary of War “to prescribe military areas in such places and of such extent as he or the 

appropriate Military Commander may determine, from which any or all persons may be excluded, and 

with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever 

restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.” 

It is not clear from our files what precipitated this opinion request from the Attorney General, or to 

whom the opinion may have been forwarded. The opinion does not appear to have been directed to a 

particular executive or military order, although it preceded by days a string of Civilian Restrictive 

Orders (8 Fed. Reg. 982–88), requiring the removal of “persons of Japanese ancestry” to various 

internment camps in the western United States. Another relocation/internment order—Civilian Exclusion Order No. 34, 7 Fed. Reg. 3967 (May 3, 1942), requiring the removal of persons of Japanese 

ancestry from Alameda County, California, and issued just two weeks prior—was upheld against 

constitutional challenge by the Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944).

At the time of this opinion, military authorities had already set up internment camps on the Hawaiian Islands, including in particular Sand Island, through which internees were then transferred to internment camps on the continent. See Brian Niiya, History of the Internment in Hawai‘i (June 4, 2010), 

http://www.hawaiiinternment.org/history-of-internment. In 1988, Congress formally recognized that “a 

grave injustice was done to both citizens and permanent resident aliens of Japanese ancestry by the 

evacuation, relocation, and internment of civilians during World War II,” Pub. L. No. 100-383, § 2(a), 

102 Stat. 903, 903 (codified at 50 U.S.C. App. § 1989a(a)), and ordered restitution for JapaneseAmerican citizens and resident aliens who had been confined under one of the relocation/internment 

orders, id. § 105, 102 Stat. at 905-08 (codified at 50 U.S.C. App. § 1989b-4).
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85

theory of removing and interning the Japanese. It is a conclusion not without doubt 

and it might be extended or abused. Like unto the Supreme Court, I think the 

decision ought to be saved for the specific case in which it is necessary.

* * * * *

You have asked me to consider whether (1) Japanese moved from Hawaii to 

the United States could be placed in a delimited zone in which martial law could 

be declared; (2) martial law could be declared with respect to a group of Japanese.

I.

Those Japanese who are aliens can be brought to the continental United States 

and interned under the provisions of 50 U.S.C. § 21 (1940). This statute, however, 

is probably not applicable to the Japanese who are citizens.

II.

Although not free from doubt, an argument can be made for removing Japanese 

who are American citizens from Hawaii to a restricted zone in the United States.

This is total war. It is quite unlike any prior war. Fifth column activities, espionage, and sabotage have been and are being employed on an unprecedented scale. 

What the Nazis did in Norway, Holland, Belgium, and France—to mention but a 

few places—through citizens of those places as well as through German nationals 

is now well known. The Japanese have used similar techniques. Axis agents—

American citizens as well as non-citizens—participated in making the Japanese 

attack on Pearl Harbor so successful to the Japanese.

As a result of the Japanese attack, Hawaii has been put under martial law. 

Military necessity dictated that move—a move well justified under the legal 

authorities. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); United States v. Diekelman, 92 U.S. 520, 526 (1875). Hawaii is still within the Pacific theatre of war and 

subject to attack again. Continuance of martial law in Hawaii is doubtless justified.

If military necessity dictates it—as it well may—those Japanese who were 

interned in Hawaii or those whose presence is dangerous can be removed. To hold 

otherwise would be deciding upon the impractical. Hawaii is virtually an armed 

fortress. All of the energies of the armed forces there should doubtless be concentrated on resisting or striking the enemy. If, because of the military needs, the 

forces cannot be spared to guard or watch the Japanese in Hawaii, they can be

removed.

The strongest legal ground upon which to make the removal would be under an 

order of the military commander in Hawaii to a restricted area—a military area or 

military zone—designated by the Secretary of War under Public Law 77-503, 56 

Stat. 173 (1942), codified at 18 U.S.C. § 97a (Supp. II 1942).
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86

If this is done, it would not be necessary to declare martial law with respect to 

these Japanese as a group. A declaration of martial law as to a group is of doubtful 

legal validity except possibly under unusual circumstances. The circumstances 

here involved might be such. But I would be inclined not to rely on this method of 

handling the problem.

III.

The existing case law indicates some doubt on the power to remove and intern 

the Japanese citizens in the United States. But the conditions of modern warfare 

are different from those of prior wars. Because of this the courts might well follow 

a different course than that indicated by the earlier decisions. Ex parte Ventura, 44 

F. Supp. 520 (W.D. Wash. 1942).

If the majority opinion in Ex parte Milligan should be followed today, a declaration of martial law outside the zone of active military operations at a place where 

the courts are functioning would probably not be approved by the Supreme Court. 

It is believed, however, that, in view of the changed conditions of warfare, the 

Supreme Court, in a proper case, would follow the views of the dissenting justices 

in the Milligan case sustaining a declaration of martial law in places outside the 

zone of active military operations upon a showing of military necessity for such 

action. Martial law, however, is ordinarily made applicable to districts or areas and 

when established applies to all persons within the district or area so long as they

remain therein. There appear to be no precedents sustaining a declaration of 

martial law with respect only to a particular group of persons as suggested in your 

question numbered 2. From the nature and purpose of martial law, it would seem 

to be properly applicable to particular areas rather than to particular persons.

The establishment of martial law in a delimited zone for the sole purpose of 

confining therein a particular citizen or group of citizens would also raise questions of policy and public morals. If this can be done with respect to the Japanese 

here involved, it might be done at any time with respect to any citizen. Thus, it 

would approach the practices of the German and Italian governments, so bitterly 

denounced in this country, of establishing citizen concentration camps in which

citizens may be confined without due process of law.

There is considerable authority for the position that military necessity for the 

establishment of martial law is a political question into which the courts will not 

inquire. There is, however, authority on the other side of this question, and in the 

comparatively recent case of Sterling v. Constantin, 287 U.S. 378 (1932), the 

Court inquired into this question and determined that military necessity did not 

exist. That case may be distinguishable since it involved a question of conflict

between state and federal jurisdiction. There is sufficient language to indicate, 

however, that the Court would have the right to and would inquire into the 

necessity for declaring martial law if the occasion arose. A declaration of martial 

law in a delimited zone for the sole purpose of confining therein objectionable 
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87

citizens might not be a good case in which to have this question directly passed 

upon by the Court.

The desired result might be obtained by a suspension of the privilege of the writ 

of habeas corpus as to the Japanese citizens involved. There is precedent for the 

suspension of the privilege of the writ as to particular persons. See 6 A Compilation of the Messages and Papers of the Presidents (1789–1908) 19 (James D. 

Richardson ed., 1909). This, however, raises the same question of policy and 

public morals above discussed. If the privilege of the writ can be suspended as to 

Japanese citizens, it can likewise be suspended as to other citizens at any time. 

Also, if the suspension should be made by the President, it would reopen the ageold question of whether the President has the authority to suspend or whether that 

right lies in the Congress alone. I think the President has the power, but whether 

the controversy over this subject should be again precipitated at this time is a 

question which should be carefully considered.

IV.

1. If it is at all practical to do so, the safest legal procedure would be to hold the 

Japanese who are American citizens in Hawaii.

2. The next best legal procedure would be, under the martial law prevailing in 

Hawaii or under an order pursuant to Public Law 77-503, to intern them in Hawaii 

and then give them the option to come to the United States if they sign up as 

members of the work corps of the War Relocation Authority under an agreement 

to serve for the duration of the war.

3. It would also be proper to evacuate the Japanese citizens from Hawaii under 

Executive Order 9066 and Public Law 77-503 and then treat them the same as the 

Japanese evacuated from the West Coast.

4. If it is not necessary for these Japanese to be kept in strict confinement it 

may be that, in view of the large industrial plants along the East Coast and in 

many cities extending westward to the Mississippi, military areas might be 

declared along the entire East Coast and extending inward some distance, thus 

requiring the Japanese, under Public Law 77-503, to reside in the Middlewest, 

where they would probably have less opportunity to engage in activities dangerous 

to the national safety.

5. It is possible that the Japanese citizens legally could be removed from Hawaii and interned in the United States.

OSCAR C. COX

Assistant Solicitor General