Nishikawa v. Dulles

PETITIONER:Mitsugi Nishikawa
RESPONDENT:John Foster Dulles, Secretary of State
LOCATION:Illinois General Assembly

DOCKET NO.: 19
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 356 US 129 (1958)
ARGUED: May 01, 1957 / May 02, 1957
REARGUED: Oct 28, 1957
DECIDED: Mar 31, 1958

ADVOCATES:
A. L. Wirin – for the petitioner at reargument
Fred Okrand – for the petitioner at argument
Oscar H. Davis – for the respondent

Facts of the case

Question

Media for Nishikawa v. Dulles

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles
Audio Transcription for Oral Argument – May 01, 1957 in Nishikawa v. Dulles

Audio Transcription for Oral Reargument – October 28, 1957 in Nishikawa v. Dulles

Earl Warren:

Number 44 — no, no.

Number 19, I beg your pardon.

Number 19, Mitsugi Nishikawa, Petitioner, versus John Foster Dulles.

Mr. Wirin.

A. L. Wirin:

May it please the Court.

This case as the preceding one and as the one to follow, deals with a subsection of Section 401 of the Nationality Act of 1940 which involves a loss of citizenship.

The subsection here is 401 (c) which provides the loss of United States citizenship by an American citizen who serves in a foreign army and who at the same is a citizen of that foreign state.

We have raised the constitutionality on its face of this subsection in our brief and since the constitutional question has been argued substantially in the former case and will also be considered in the next case, I am not going to discuss that feature of this case.

I’m going to address myself particularly to what Mr. Justice Frankfurter indicated with the due process features of this statute as applied to the petitioner.

I’m going to assume the power of Congress to legislate in the field, (a) of persons serving in a foreign army abroad, (b) where those persons have dual nation — dual nationality.

I’m going to assume the — the making of broad power and I’m going to urge upon Your Honors that that power was not properly exercised so far as this case is concerned because it was exercised in a manner to be unreasonable and to offend due process.

More particularly, to narrow my point and to narrow the problem, I’m going to be dealing with a question which Mr. Justice Harlan has with respect to the matter of in — of voluntariness and involuntariness.

And I want to make at the very beginning a distinction which to me seems to be cardinal in connection with the use of the word “voluntariness or involuntariness” because it can be used in two separate contexts and with two separate meanings.

For instance, whether or not a person, when he does something, intends to lose his citizenship or as one of the cases that concurs in the loss of his citizenship by doing something.

This is one example of voluntariness.

For the purpose of my argument, I’m going to assume that this is utterly inconsequential and that in that context, he may lose his citizenship though his — though he — he doesn’t want to, though it is involuntary.

But when Congress undertakes to specify various grounds for the loss of citizenship which it did in this — Section 401 of which (c) is an — an example.

And it provides that merely doing that which Congress says, if done, results in loss of citizenship.It is clear and it is undisputed by the Government that that Act which Congress defines must be voluntary.

For instance, if it’s a question of service in the Armed Forces of another country, the Government concedes there could be no loss of citizenship if the service was involuntary, if the service in the Armed Forces.

So in that respect and in this narrow fashion, voluntariness is important, it is conceded and it is the heart of the petitioner’s case so far as this — this case is concerned.

Because we say that in the trial below under Section 503, the trial court in ultimately ruling that the petitioner voluntarily served in the Armed Forces of Japan, ignored and violated the rules laid down by this Court as to the quantum and burden and nature of the truth which is upon the Government where the stakes are deprivation and forfeiture of this most precious of rights, the rights of citizenship, that the court below laid down an incorrect rule of law as to where the burden of proof was.

It followed an incorrect rule of law so far as any presumption that might follow upon a showing that the petitioner — the petitioner served in a foreign army or developed conscription and that in any event, the court below ruled against to the petitioner without complying with the standards imposed by this Court in connection both with persons who were citizens by naturalization or by birth, namely that the evidence against the petitioner and in favor of the Government, is not clear and convincing and unequivocal to warrant the forfeiture of this precious right.

Now, fortunately, we have here a record of some 40 pages, not the 15,000-page record to which Your Honors wrestled with in — in Gates versus United States and the record is before Your Honors and in a moment I want to refer to it.I mean the record of the trial as compared to our brief, it is some — some 40 pages in that.

First, with respect to a couple of propositions of law and then I want to deal with these propositions of law as reflected by the facts in this case.

We say that where the Government says that an American has lost his citizenship by virtue of doing something which so far as the citizen is concerned, is not accompanied by any knowledge on his part that he is forfeiting or abandoning or affecting his citizenship that as a minimum, the burden of proof that the petitioner has committed the act proscribed and set forth in the statute, voluntarily that that burden is upon the Government.

Now, additionally we say —

It’s sort of an exception to the rule as if would be in ordinary cases, other types of cases?

A. L. Wirin:

No.

We say it is not exception to the rule in other types of cases that are analogous.

We say it is the rule because we say that this Court has defined expatriation as the voluntary renunciation or abandonment of United States citizenship.

A. L. Wirin:

This is the phrase that Chief Justice Hughes used in (Inaudible).

We say that the act of expatriation, that’s what’s involved here, losing your — your citizenship, is an act which must be voluntary in order for it to consist of an act of expatriation.

And if the Government says, I — anyone here, has lost his citizenship and has expatriated himself, it must prove that the act which the citizen committed was voluntary and not involuntary.

I think — in other words, we say one of the elements, one of the inherent and indispensible elements of expatriation is voluntariness.

The burden of proof on which is upon the Government, the same that it has a burden of proving that — that the person did — did something which the act proscribes.

So we are — we do not say that we’re asking for an exception.

We’re simply saying that this is part of the definition of voluntariness which — which is inherent in the definition.

But in any event, even if we’re mistaken about that, there’s a serious question in this case with respect to the presumption which a court should draw, we say must draw, where in a case like ours, the — excuse me, the evidence of the petitioner as a citizen of United States, born in United States.

The evidence is that he served in a foreign army but that he served solely by virtue of conscription, that is, you received an order from a foreign army to — to appear for induction.We say and we think all of the circuits with the exception of the Circuit below in this case take the view that upon that showing, there has been a showing by the petitioner of involuntariness and that the burden then shifts to the Government to — to rebut the presumption of involuntariness which that showing makes, and this was the showing here.

But then we say finally — well of course, I’m not proving my argument.Our — our central point is that irrespective of where the burden of proof is, assuming now, I’m entirely an error and assuming I’m merging upon Your Honors which I believe I am not, an exception and that we’re wrong about it and that the burden is upon the petitioner in a general way to carry his burden of this case.

We say that all of the evidence, some 40 pages, if looked at by the Court will bring this Court as a minimum to have a troubling doubt as to whether there were sufficient evidence to justify the forfeiture of — of citizenship.

And in Baumgartner and other cases, Your Honors have reviewed judgments both by trial and appellate courts, findings against the citizen, Baumgartner a naturalized citizen and Gonzales, the last nationality case argued before Your Honors which you decided per curiam.

When born in United States, you’ve taken the view — and in — in Gonzales, you cited Baumgartner that if Your Honors look at a case, even though it comes here in case in the armor of finding by — by lower (Inaudible) both of them and you have a troubling doubt as to whether there should have been a forfeiture, you will reverse the judgment.

Let me go on to what the facts are in this case.

As I’ve said, one, this boy was born in the United States and was an American citizen by virtue thereof.

He was also a dual citizen by virtue of no conduct on his part, by virtue of nothing that he did.

He was a dual citizen because the Government of Japan, prior to the war, said by its laws that every person born in United States of Japanese ancestry was a citizen of that country.

He was a dual citizen because — he was a dual citizen without his knowledge or consent.

Because his father, in accordance with the practice, of thousands of Nisei in the United States, before he was 14 days of age, went down and registered — registered his name in the Koseki or in the — or in the Japanese family register.

He got his education in the United States.

He’s a graduate of the University of California.

He had no ties in Japan.

He went to Japan as thousands of Nisei went to Japan at the request of their parents, their passage paid by their parents to secure some education and to have a visit.

He went there for the purpose of staying two to five years temporarily and his passport application — and his passport shows it.

He went there as an American citizen and only as an American citizen.

He had no time either here or in Japan ever asserted any right as a Japanese citizen or claimed any privilege or desired any benefit because he was a Japanese citizen.

It is urged by the Government that when he went to Japan in 1939, he knew that he was a Japanese citizen.

The record does not support that.

The record is to the effect that when he was in Japan, he discovered that he was a dual citizen solely because his name was on the — on the family register.

He went to Japan in 1939.

A. L. Wirin:

He was then under no obligation to render any military service in the United States.

The United States conscription law hasn’t been passed.

He couldn’t have known that he was endangering his citizenship when he went to United — when he went to Japan or when he was conscripted in the Japanese Army because the Nationality Act which provides for your loss of citizenship wasn’t even adopted at the time he went to — he went to Japan.

He was being supported by his father.And one thing he couldn’t foresee is that his father would die three months after he was in Japan to leave him penniless.

And in 1940, he received a notice from the Japanese Army to appear for a physical examination, and in March 1941, he was ordered — inducted.

Now, we say this was involuntary, just as involuntary as this Court has often said when a person received the subpoena and he appears as a witness, he isn’t appearing voluntarily.

He is appearing under coercion.

And the decisions have been uniform in the recent years that where a service in a foreign army is under coercion, it is not the kind of voluntary conduct which is indispensible to warrant a forfeiture of citizenship.

Mr. Justice Harlan, let me make one further explanation.

The argument that a citizen’s rights can be taken away from him completely involuntary, namely, that if he serves in a foreign army and he is conscripted in a foreign army and is coerced by physical violence in a foreign army that nonetheless he loses his citizenship and that 401 (c) so provides is the very argument that Government made some years ago in a case known as Dos Reis versus Nicolls which we cite.

And the Court — Court of Appeals there rejected the argument that it is either constitutional or — or believable that Congress no matter its authority to — over foreign relation and no matter his legitimate concern to prevent conflicts between his country and another, that Congress could go to that extent.

The court in Dos Reis versus Nicolls didn’t say it.

It wasn’t going to say it now, a Justice of this Court did.

The point is that this would be offensive to common decency and — and elementary fair play.

So that we say up to this point, the evidence of involuntariness was reasonably persuasive.

We say that it became conclusive as a result of further testimony.

This boy testified — well let me perhaps withdraw that and — and develop the argument this way.

The trial court found against the plaintiff, against the petitioner, and he did so, we think, as a result of a — of a misapprehension as to the duties of a citizen living abroad and a misapprehension after the applicable rules in this kind of a case.

The trial judge was at the view that this petitioner lost his citizenship, although there’s no question he was conscripted into the Japanese Army because the petitioner refrained from doing certain things which he think what the judge thought a citizen should do.

In the first place, the trial judge was at the view that the petitioner should have returned to the United States instead of staying in Japan.

We think this is utterly unrealistic and quite unfair.

In the first place, we wouldn’t then not at war with Japan.

We didn’t even have a conscription law.

The United States Government has recognized dual citizenship as Mr. Justice Frankfurter said a few — few moment ago.

There he was in Japan and he got a notice to serve in the Japanese Army.

At that time, there wasn’t — such service was not inconsistent with any allegiance he had to United States.

And certainly, he cannot be charged with the lack of prescience to foretell that a couple of years afterwards, there would be a war between United States and Japan.

He’d made no effort to return to this country but he explained the reason he didn’t is because he was penniless, funds from his father had stopped, he went to work and he was earning 70 yen a month, $15 a month and he didn’t have the fair to get home so he stayed on.

And of course if he attempted to leave after he got a notice to appear for physical examination, well, certainly the same thing would have happened to him that happens to Americans who try to leave to — to evade — evade the draft.

The trial judge held it against him that he didn’t do one other thing — didn’t do three other things, that he didn’t go down to the United States Consulate and assert his rights there.

A. L. Wirin:

And there are two answers to this claim.

One is that he — as he testified, had a friend who worked in the embassy and the United States Embassy point to this friend who do nothing for persons who were in Japan.

Some intimation, some claim, had made by the judge and some intimation appears in the Government’s brief that had he gone down to United States Consul, the Consul could have granted him some relief.

The fact of the matter is as we point out in our brief that the State Department had formally announced that it would not help any persons in Japan who were being drafted in the Japanese Army.

Furthermore, he testified that he didn’t protest to the Japanese authorities because he was afraid.

And he was afraid not only of the penal sanctions which accompany this — the — the conscription law of Japan but he was afraid of extra penal sanction by the Kempei Tai, the Japanese Military Police.

That — he knew that the boarding house where he was living had been visited by the Japanese military police and that he had heard rumors, he didn’t know whether they were true or not that persons who attempted to evade the Japanese military system, this is 1940, this is while Japan is under control as we — we — which is a matter of common knowledge of a — of a ruthless military cast that he had heard that the Kempei Tai had pursued some persons who are evading the draft.

And in one instance they suspected that a person was hiding in a trunk filled with straw and they bayoneted the trunk and killed the person who was in it.

Now, he didn’t see this but he was afraid of it and we have submitted to the clerk of this Court, documents, official report of the United States Government through SCAP, Supreme Command of Allied Headquarters — General MacArthur’s Headquarters with respect of the conduct of the Kempei Tai so far as the Japanese people generally were concerned and particularly the Nisei who were — who were living in Japan.

Now, the judge went further.

The judge said that when this boy went to Japan — went to Japan, he went there for the purpose of doing his hitch in the Japanese Army.

There isn’t the slightest evidence to warrant any such finding of any such opinion.

The difficulty as I view it with the judge below if I may be both superstitious and serious at the same time, is that he gave too much credit to the University of California.

This boy has graduated from the University of California.

And because he was a graduate from the University of California and went to Japan when — when he was 23, this Judge said, “This boy is a bright man.”

He said he is a graduate of one of our greatest institutions of learning in this country and so he proceeded to a court to this petitioner and knowledge of political affairs or wisdom pertaining to them and oppressions of possible conflict between United States and Japan.

As a result of which, he felt — this boy knew more than he — than met the eye and therefore, he arrived to the conclusion that he must have known many things which — which were not clear and therefore, he lost his citizenship.

Felix Frankfurter:

Mr. Wirin.

A. L. Wirin:

Yes, sir.

Felix Frankfurter:

Suppose that they were extirpated before they were cut out from this record, the testimony of the petitioner.

A. L. Wirin:

Yes, sir.

Felix Frankfurter:

What would there be left in the record?

A. L. Wirin:

If that testimony were cut out, there would be nothing in the record because the only testimony comes from the lips of the petitioner.

If the trial judge disbelieve the petitioner then there is nothing in the record to warrant a forfeiture of citizenship because then, there is nothing in the record that the petitioner has acted voluntarily and the Government hasn’t carried any of the — any burden not even the most minimum burden which this Court has said it must carry in order for a loss of citizenship.

Felix Frankfurter:

What was there — what is the residuum of the testimony of the petitioner on the basis of a cross-examination?

In short, while he may disbelieve the petitioner, while the trial judge will disbelieve a petitioner and it expels the glory of favorable testimony or negative testimony, the case may be made out against him on cross-examination.

A. L. Wirin:

Yes, sir.

Well —

Felix Frankfurter:

To what extent, is that true in this case?

A. L. Wirin:

In a brief would, I think all of the cross-examination elicited was, one, was some of the things I have recounted.

A. L. Wirin:

He was a graduate of the university.

Two, that he knew that Japan was engaged in war in Manchuria.

He denied that he knew that he was subject to conscription and the judge — judge doesn’t — the judge however, makes a finding that he did know he was subject to conscription in — in Japan.

The further import of a cross-examination would be to the effect that he communicated with his family and with friends in the United States from which — and he was asked whether or not he didn’t know that there was a draft in the United States.

This is after 1940.

He said, no, they didn’t tell him that.

Now, I — I can’t see much more.

I’m sure the — the Solicitor General or Assistant General will see much more on the cross-examination, will answer Your Honor’s question better than I.

Earl Warren:

Mr. Davis.

Oscar H. Davis:

Mr. Chief Justice, may it please the Court.

Like Mr. Wirin, I intend to devote myself unless the Court desires to hear argument on the question of constitutionality, solely to the issue of the burden of proof of duress and the quantum of proof of duress.

What is sufficient proof of duress in a case such as Nishikawa’s?

And let’s —

Felix Frankfurter:

What — what does the record show?

Oscar H. Davis:

Yes, Mr. Justice, sir.

Felix Frankfurter:

What abstraction —

Oscar H. Davis:

No, no.

On — in the basis of the facts of this particular case —

Felix Frankfurter:

All right.

Oscar H. Davis:

— the issue, the — the general issue of who has the burden of proof and the general issue of what is the quantum of burden of proof is important not only in this particular case but it arises very frequently in expatriation cases both under the 1940 Act and under the later Act of 1952.

So it is a general problem which is troubling courts in this field.

If I may state summarily first what the Government’s position is and then try to elaborate it, I think it may be helpful.

And I would like to stress at the outset that when I state what the Government’s position is, I am basing that position on three sources.

One source, a very important source is the legislative history of the 1940 Act which we believe bears out our view of the burden of proof, where the burden of proof is and the quantum of proof.

The second source is prior decisions of this Court in the particular appeal to the expatriation.

And the third source is analogous in comparable provisions in other fields of loss.

Felix Frankfurter:

The statute itself shed no light.

Oscar H. Davis:

The statute itself — except the words of the statute shed no light.

The word voluntarily does not appear in the statute.

The light is shed by the legislative history and by the — by the decisions of this Court and the lower court.

Oscar H. Davis:

Summarily, what our position is, is this.

The citizen claimant has the burden of proving that the act of expatriation which he committed, an act which the Government must prove, but he has the burden of proving that that act of expatriation was done involuntarily in order to excuse himself from the effects of that act.

That’s the first proposition.

Charles E. Whittaker:

You say that’s the burden of proof with the — in expatriation.

Oscar H. Davis:

Yes, the citizen claimant, I call him.

Yes.

The second —

Felix Frankfurter:

Let’s see if I understand that.

You say that if the Government proved the external fact —

Oscar H. Davis:

That he join the foreign army —

Felix Frankfurter:

The external fact.

Oscar H. Davis:

That’s right.

Felix Frankfurter:

And the claimant that doesn’t — it come for the — he put in no proof (Voice Overlap) —

Oscar H. Davis:

That the Government —

Felix Frankfurter:

— to go against it.

Oscar H. Davis:

That’s right.

I — I would say this that in certain acts of expatriation, there is a subjective element such as —

Felix Frankfurter:

Yes, I’m talking the one you’re talking about.

Oscar H. Davis:

That — that’s right.

The second proposition is that the citizen claimant, petitioner here, Nishikawa, does not fulfill his burden of proof by proving that he was conscripted that is — that is not sufficient.

That if all he proves is that he was conscripted, that is not sufficient, the case goes against him and in favor of the Government.

My third proposition is, in relation to this particular case that all that Nishikawa has proved as the case comes to this court after a trial before District Court and findings by the District Court affirmed by the Court of Appeals, as the case comes before this Court, all that Nishikawa has proved is that he was drafted into the Japanese Army in 1941.

And if I’m right on the first two propositions, he cannot make a case by proving that he was conscripted.

I would stress now before I go in — when I go into the — there — there’s a fourth proposition which we also stand on in which I probably won’t have much time to go into but which is expressed in our brief.

That in this particular case, regardless of where the burden of proof is and regardless of what the quantum of proof is, the trial judge found irrespective of the burden of proof that Nishikawa’s entry into the Japanese Armed Forces was voluntary.

So that in this particular case, if the Court wish, we believe that it could pretermit the issues of burden of proof.

It could find that even if the Government had the burden of proof, that burden of proof was satisfied.

Charles E. Whittaker:

I wonder if you’re referring to the fact that there was sufficient — to their claim — there’s sufficient evidence in Nishikiwa’s own admission to show that he — his entry to the Japanese Army was voluntary?

Oscar H. Davis:

Yes, Mr. Justice.

Our position is that even if whatever — whoever has the burden of proof, if you just look at Nishikawa’s own testimony which is all that there is in this case, it is sufficient to find that his entry into the — into the Japanese Armed forces was voluntary.

Oscar H. Davis:

Let me go if I can to the — the facts in this — in this particular case.

But before I do, I would like to stress the fact because I think that Mr. Wirin did not emphasize it for reasons which are clear from his point of view that the trial judge did not believe Nishikawa’s testimony that he was frightened.

He did not believe his testimony that he stayed — that he refused to do anything to keep himself out of the Japanese Army because he was afraid of the secret police or afraid of anything else.

Now, this was a man who appeared before the trial judge.

He was a witness on the stand.

And the trial judge said explicitly, “I do not believe his claim that he didn’t — that — of — of tariff.

And whatever may be the power of a court, of appellate court to review findings of fact by a trial judge in an expatriation case, certainly, the — the credibility of the witness is still within — in the hands of the District Court.

This Court said that in a denaturalization case, the (Inaudible) case.

They said that credibility still remains with the District Judge.

And so, if I may, I would like to state the facts in this case in that light.

The facts, most of which I shall state first, are undisputed, was that he — he was born in the United States in California, went to the public schools here, went to the University of California, got an engineering degree and graduated.

In 1939 — in August 1939, he went abroad to Japan at the instance of his father, paid for by his father for the purpose of studying in Japan for a period of two to five years.

He did not know Japanese written characters.

He hardly knew Japanese is a spoken language.

He did not know written Japanese.

When he got over there, he hired a tutor for the purpose of studying written Japanese.

Shortly after he got over there, he apparently got there let’s say in August 1939.

In November 1939, his father died and his testimony was that he then was cut off from — from income from the United States and he had to take a job which he did.

He took a job in an airplane plant which he kept until he was inducted into the Japanese Army.

Now, the District Judge also made a very specific finding of fact and these findings of fact that when Nishikawa left the United States in August 1939 to go to Japan, he knew that Japan was at war or had hostilities in Manchuria and that he knew he was liable to be drafted in the Japanese Army, that he knew he was a Japanese citizen as well as an American citizen, that he had dual nationality as Mr. Wirin is said.

Earl Warren:

Now, what — what evidence did he base that finding on?

Oscar H. Davis:

He based it on Nishikawa’s own statement that he knew he had Japanese citizen — citizenship.

Now, that statement in the colloquy in the — in the record, the examination is this — “When you went into the Japanese Army did you know you were a — an American —

Earl Warren:

Well, I understood you to say when he left —

Oscar H. Davis:

Yes.

Earl Warren:

— this country.

Now let’s —

Oscar H. Davis:

That’s right.

Earl Warren:

Now, let’s take it right from there.

Oscar H. Davis:

Well, that’s right.

Earl Warren:

(Voice Overlap) that point on, what — what evidence the judge used to support that finding.

Oscar H. Davis:

Well, presumably, the judge knew — used the fact that this was an intelligent man.

That he went to — that he went to Japan for some reason.

That he — that he’s testified that he knew he had Japanese citizenship when he got — went into the Japanese Army.

Earl Warren:

When he went to the Japanese —

Oscar H. Davis:

It isn’t qualified to say that I didn’t know it before.

The question was when he went into the — “When you went into the Japanese Army, did you know that you have Japanese citizenship?”

He answered, “Yes, I knew I had been registered.”

Now, that doesn’t exclude the fact that he knew it before he went into the Japanese Army.

Earl Warren:

Well, is there evidence to show that he did know it when he left this country as you said.

Oscar H. Davis:

I think that the evidence is — what I’ve said Mr. Justice that a trial court can properly and did properly base that finding on — on the knowledge of the man’s intelligence, the fact that he went to Japan which people don’t ordinarily do unless to study Japanese language and literature, unless they have some connection with Japan that he knew that Japan was fighting in Manchuria and that he knew that he was — by the time he went into the Japanese Army, he knew he was a Japanese citizen.

I think that’s sufficient finding that he knew when he went abroad that he was a Japanese citizen and dual national.

That is — and that is the trial judge’s finding.

Now, in June of 1940 which is a little less than a year after he got to Japan, he was notified that he —

Earl Warren:

What was the — what was the evidence to the effect that — that he knew he was a Japanese citizen at the time he went into the army.

No, I don’t — I don’t question it’s there, but I mean just what is the character of the evidence that the judge used to relate it back to 1939?

Oscar H. Davis:

It’s a general question which perhaps, unfortunately, the U.S. attorney prefaced by saying, “When you went into the Japanese Army,” but the answer is a general answer, it’s on page 34 of the record, at the bottom of the record.

Earl Warren:

Well, take question two.

Oscar H. Davis:

“Now, at the time that you entered the Japanese Army, Mr. Nishikawa, you were a national Japan, is that correct?”

Answer, “Yes.

I was a national of Japan because my father registered at the time of my birth in the family register.”

Earl Warren:

That’s — that’s —

Oscar H. Davis:

And — and that plus the other elements.

Plus he’s going to Japan, his intelligence, all these other things was the foundation for the judge’s finding that he knew when he went to Japan that he was a Japanese national and subject to the draft.

Now, in June, 1940 —

Hugo L. Black:

What — what was the evidence found that he was a subject to draft in connection with —

Oscar H. Davis:

The same evidence plus the fact that it was common knowledge that Japan was engaged in hostilities in Manchuria and that Japan, like many other nations of the world had conscription.

I think the judge was entitled to and did take into account that common knowledge which he would assume that a Nisei who went to Japan would know about.

There’s also evidence that he made no attempt to check whether he was subject to — to the draft or not and that also entered into the Court’s finding.

Hugo L. Black:

Could we ask that in here?

Oscar H. Davis:

He was — yes, he asked and he denied it.

But again, that’s an issue of credibility.

The judge said, “I do not believe.”

Hugo L. Black:

Well, he might not believe it and still not have enough evidence to show that it was —

Oscar H. Davis:

Yes.

Hugo L. Black:

That he did know it.

Oscar H. Davis:

And we think —

Hugo L. Black:

He may not believe his statement —

Oscar H. Davis:

We — we think taking everything into account, what I’ve said plus the demeanor of the witness and so forth, there was sufficient evidence.

There would be a sufficient evidence for a jury to find beyond a reasonable doubt that he knew of this fact when he went to Japan.

Now, in June 1940 he had a physical examination which he took.

He was not inducted into the army until nine months later in March, 1941.

Now, there’s a period of nine months.

Now, during that period of nine months, there is no doubt because he admitted it that he did not take any of the following steps.

He did not find out from any American official of the Consulate, what to do, whether he was subject to the draft or whether there’s anything he could do.

He did not ask any Japanese official whether he was subject to the draft or whether he could get out because he was an American official.

He did not seek to renounce his Japanese nationality which others had done.

Perhaps, it was a difficult thing but he did not seek to — to do it or to find out whether he could have done it.

He did not seek to find out whether he could return to the United States, whether he will be given money by the Americans or — or some other way.

I’m not saying —

Felix Frankfurter:

When was this — this is — when was this?

(Inaudible) what he didn’t —

Oscar H. Davis:

Between June, 1940 and March 1941.

He was inducted in March 1941.

Felix Frankfurter:

Yes.

But now, how much of an inference against him to withdraw that during that period, he didn’t take the affirmative step in saying, “I only renounce any responsibility in the Japanese law because I’m an American.”

You think that’s fair — that was fair?

Oscar H. Davis:

Yes, Mr. Justice.

Felix Frankfurter:

— inference of actuality or to ask —

Oscar H. Davis:

Yes.

Felix Frankfurter:

(Inaudible) to Japan all those months?

Oscar H. Davis:

Yes.

I think —

Felix Frankfurter:

All right.

Oscar H. Davis:

— if you will take the great mass of cases, you will find and we have tried to set out in our supplemental brief all the appellate cases on this subject.

You will find out that some efforts are made.

The — and — and as I’ll try to get to later, Congress expected some efforts will be made.

They might not be successful.

Felix Frankfurter:

I’m asking.

I just —

Oscar H. Davis:

Yes.

Felix Frankfurter:

— I just try to face myself in that situation and maybe I’m making strong attribution on what the feeling of Japan at that time was.

Oscar H. Davis:

Others made — made the attempt.

Felix Frankfurter:

All right.

Oscar H. Davis:

I — I should say right now because the — the other side’s latest brief seems to think that we take the position that the man had to, shall I say, scream from housetop, no.

Felix Frankfurter:

Waved the American flag.

Oscar H. Davis:

That’s right.

The whole proposition is that Congress said, “You’ve got to show some resistance to going into the Japanese Army.”

In order to show — lack of duress, you’ve got to show that you try to keep out in some way.

We don’t expect you to be a hero or a model but we have to show — we have to see something which indicates that you — you didn’t want to go in.

Felix Frankfurter:

At this point, and perhaps, you displayed a — I need to ask you what I’d like to know whether we can take any — take judicial notice on the basis on the theory the department has or otherwise of — what was the condition — in one of the conditions in Japan in compelling simply to enter the Japanese Army?People of Japanese sons, is that right?

Oscar H. Davis:

I think — I have difficulty with the problem of judicial notice because a large opportunity was granted to experienced counsel.

Mr. Wirin is probably the most experienced counsel in this field, in this firm, to present evidence in the District Court which could have been qualified by the Government or controverted.

This was not done.

It has been done in other cases, it was not done here.

I think it is —

Felix Frankfurter:

Well, you can — I should think that it’s appeared in other cases might be almost did it show —

Oscar H. Davis:

Well, we think not because —

Felix Frankfurter:

I respect your (Voice Overlap) —

Oscar H. Davis:

We think not because —

Felix Frankfurter:

All right.

Oscar H. Davis:

— in each case — in each case, the Government may have — we had no opportunity to bring other things —

Felix Frankfurter:

Yes.

Oscar H. Davis:

— in here which we didn’t do.

What — what is brought in other case has brought a conglomeration of other cases not — and we had —

Felix Frankfurter:

Then you’re saying — are you saying that I must rid my mind of any notion that on the whole, the Japanese made it almost impossible to allow it in this situation not to enter the Japanese Army.

Oscar H. Davis:

No, Mr. Justice.

I think you can assume that the Japanese ordinarily force people —

Felix Frankfurter:

Puts on pressure.

Oscar H. Davis:

Yes.

But I do not think you can assume that other people — other dual nationals in his situation did not make efforts to get out or to stay away or to get protection or come back to the United States or to renounce their Japanese nationality.

That I think you cannot assume on the basis of judicial notice.

Earl Warren:

Now, may I ask this question, Mr. Davis.

Suppose he had gone to the American Consulate after he received notice to go into the Japanese Army or to come for — for physical examination, will he have had any right under international law to — through our consul to be sent home?

Oscar H. Davis:

Probably not, Mr. Chief Justice.

But the point that Congress was interested in — the point that Congress was interested in is seeing whether he made the effort.

It might be that he would have to go into the — in —

Earl Warren:

He may do a feudal thing —

Oscar H. Davis:

Yes, because they were trying —

Earl Warren:

They would take —

Oscar H. Davis:

They will try this —

Earl Warren:

They would take your citizenship away from him because he didn’t do a feudal thing?

Oscar H. Davis:

They were trying to separate the sheep from the goats.

They were trying to separate those who really made the effort — made what effort they could in a particular circumstances and — from those who — who did — who didn’t indicate an attachment to the United States.

Felix Frankfurter:

Are you saying that they wanted some sure good faith?

Oscar H. Davis:

Yes.

That — that — and if perhaps —

Earl Warren:

Well, if there is no — if there is no legal right for him to go home, if it would have been dishonored and if he would’ve put himself in — in difficulties with the Japanese regime, does the Government expect him at the expense of his — his safety to go to the American Consul and ask them to see whether he goes home when the Government knows that it can do nothing for him?

Oscar H. Davis:

Mr. Chief Justice, I don’t accept the last statement you made that it would put him in difficulty.

Other people did or — and some —

Earl Warren:

Somebody had any difficulties?

Oscar H. Davis:

Well, I can’t say they didn’t.

I — I don’t know but other people did.

There are — and other people did leave before they were perhaps —

Felix Frankfurter:

You mean to say he didn’t say anything that — did he make the kind of assertions that you are — hypothetically, he said he could’ve made?

Oscar H. Davis:

No, he did not.

He said he did not.

He excused it.

Felix Frankfurter:

I don’t mean to say did he duly say but did he explain at the trial why he went?

Oscar H. Davis:

Well, he said he was afraid that the Japanese police would get after him and the judge disbelieved those statements.

I —

Hugo L. Black:

Is that what he said?

Earl Warren:

I thought he said also that he was working out in the country, a good many miles from the city that he didn’t read any Japanese papers because he didn’t — he didn’t understand the — the characters and that for that reason, he didn’t know.

Oscar H. Davis:

Oh, yes.

But he didn’t say that the only reason he gave for not trying to find out about whether he was going to be drafted or not drafted or according to the American Consulate was the fact that he was afraid that there were rumors, he said, which might have been true.

He was never himself personally contacted by any Japanese police officer, he said that.

He was never — he never personally came in contact with any Japanese police officer.

He had no personal experience which would have led him to believe that anything bad would have — would have happened to him.

Hugo L. Black:

Did the Government offer any evidence to show that those rumors were not true?

Oscar H. Davis:

No, Mr. Justice.

I don’t think it had to because on the basis of — of his own testimony and the way he put it and the demeanor evidence which the judge had, the judge was — could disbelieve the statement.

Hugo L. Black:

And he also said that he told a friend of his who work as American himself of him.

And that his claim to the American Embassy who told him or consulate there’ll be nothing for him.

Oscar H. Davis:

Yes, he said that he talked under —

Hugo L. Black:

(Voice Overlap) evidence to show that was false?

Oscar H. Davis:

No.

No evidence was offered by the Government.

That conversation —

Earl Warren:

That is true, wasn’t it?

Oscar H. Davis:

Pardon me?

Earl Warren:

That was the truth.

They couldn’t do anything for him.

Oscar H. Davis:

Well, there were things — they couldn’t keep him out of the Japanese Army but there were things that could’ve been done.

People did return to this country —

Earl Warren:

After they were summoned into the Japanese Army?

Oscar H. Davis:

Yes, between the time of summonsing and the time of induction.Perhaps it was illegal under — under Japanese law, I don’t know but it was done.

And so that — and even before he was — after all, he’d — he — he didn’t — he only received the notice — excuse me.

Hugo L. Black:

But the record of those claims, either he didn’t do something but these Japanese were there and called a disposition?

Oscar H. Davis:

No, the records are not in this — in this case.

Hugo L. Black:

Are there any record that we can find that shows that to be true?

Oscar H. Davis:

In view of your question, Mr. Justice, I feel justified in calling account of material which the petitioner’s counsel has filed in this Court.

This was not introduced at the trial court.

It was material from other cases which was introduced in the Court of Appeals and which has been filed in this Court.

We do not think it is properly part of the — of the record but I did go over it.

And then one of the depositions in — in the cases filed by Mr. Wirin here in another case — in another case.

The question, “You knew prior to the war for about a year that the Consulate was advising all American citizens to leave Japan, didn’t you?”

“Yes, I did.”

“Isn’t it true that there were in addition — that there were in addition to official statements by the State Department that among the Japanese people, the Nisei, there were rumors and general talk about the fact that American citizens should leave Japan.”

“Yes.”

Earl Warren:

But he was ordered for examination more than a year, wasn’t it?

Oscar H. Davis:

Yes, it was.

Earl Warren:

— before — more than a year before we could (Voice Overlap) —

Oscar H. Davis:

June 1940.

Earl Warren:

But, I couldn’t conflict it about what he says —

Oscar H. Davis:

It would necessarily conflict —

Earl Warren:

No.

Oscar H. Davis:

— but he — he wasn’t inducted until March 1941.

Earl Warren:

No, but he was ordered — ordered up before that.

The year before we —

Oscar H. Davis:

He was given a physical examination.

Earl Warren:

Yes.

Oscar H. Davis:

I don’t know whether that — I don’t know and the record doesn’t show whether that’s ordering up and the —

Hugo L. Black:

Wouldn’t he violate the law of Japan by leaving after his conscription?

Oscar H. Davis:

I don’t know.

The only law of Japan that appears in the record doesn’t say it.

And anybody who doesn’t come into the barracks when ordered, it violates the law of Japan.

Earl Warren:

Suppose a man leaves — leaves this country —

Oscar H. Davis:

Well —

Earl Warren:

— if he’s ordered up for examination.

Oscar H. Davis:

Under our law, it is an offense.

Earl Warren:

Don’t say it, wouldn’t it?

Oscar H. Davis:

It is, I — I —

Hugo L. Black:

But the citizens of who which —

Oscar H. Davis:

In our view, yes.

[Laughter] If I may, I would like to because we think it’s very important to point out, one, that this Court, we believe, has already held in 1953 in the Okimura and Murata cases in 342 United States.

That conscription alone is not sufficient because there, the Court sent it back though there was undisputed proof of this conscription of two Japanese who entered the Japanese Army.

There was an undisputed proof.

The Court sent it back for findings and investigation as to the other elements.

So all the circumstances of the case, I think the court said.

And if I can, I’d like to get to the legislative history because we haven’t set it out —

Hugo L. Black:

Are those cases in your brief?

Oscar H. Davis:

Yes, the Murata and Okimura case, 342 — it’s Acheson against Murata and Acheson against Okimura, per curiam decisions of the Court.

The legislative history is stronger than we set it out in our brief as I had occasion to find out when I was preparing for oral argument.

The reason it is stronger is that there were — there were proof, we believe, of two factors.

One factor is that — that the Congress did not believe that conscription alone would be enough proof of duress.

And the second factor is that Congress thought that the burden of proof of duress should be on the citizen claimant.

Those two elements of our — of our case.

Now, what about conscription?

Charles E. Whittaker:

You say that’s not in your brief?

Oscar H. Davis:

The particular citations are not in the brief.

Oscar H. Davis:

The — there’s a general reference to the legislative history.

Charles E. Whittaker:

What are the citations?

Oscar H. Davis:

Pardon me?

Charles E. Whittaker:

Can you give me the citations?

Oscar H. Davis:

There in the brief, at page 30.

Charles E. Whittaker:

Oh, I — oh, I thought you said they were not in the brief.

Oscar H. Davis:

The quotations, but what I’m about to give the Court are not in the brief.

The quotations are somewhat strike — the pages are given in — in the Court — in the brief.

Now, when this particular provision of the statute was before the Committee and the representatives of the various departments were there, and I should say that in the legislative history of the 1940 Act, one very important element of — one very important source of legislative history are the hearings because the — the bill had been drafted by the cabinet committee which the Solicitor General spoke in the last case.

And the representatives of the State Department or the Labor Department and the Justice Department are right there and with the Committee on Immigration and Naturalization.

And when the bill did get to the houses of Congress, there are constant references to the help of the — of the officials of the three departments and so it’s fair to go back to the hearings to see what occurred there as part of the important legislative history of the Act.

Now, when this particular provision, joining a foreign army came before the Committee, the State Department, through its representative, Mr. Flournoy, the assistant legal advisor, wanted to make it conclusive of — that a man who joined the foreign army of which he was also a citizen, couldn’t show duress at all.

And he said, they’re always trying to show duress, he said.

And they’re always trying to show — we ought to make it conclusive that if he joins the army of another country of which he is a citizen, he is automatically expatriated whether he did it voluntarily or involuntarily, and the war department supported that position.

Now, the Labor Department and the Justice Department opposed and the grounds of their opposition are very important to my argument because their grounds were, “We ought to let him have an opportunity to come in and show that though he was drafted, although he entered the army, he did what he could to stay out.”

They put it always in terms of give him the opportunity to show.

I think he ought to have the chance to show which is as clear an indication of where the burden proof could lie in the terms in which Congress was considering as there could be.

The Labor Department and this — and the Justice Department succeeded in their view, Congress did not adopt the — the view of Mr. Flournoy.

But we think you must take together with that action of Congress the legislative background which is he ought to have the opportunity to show.

He ought to be — have a chance to show the burden is on him.

Hugo L. Black:

Suppose Congress passed a law and the man is charged with murder because of the law, on the charge, he has a burden of proof if he was innocent.

Oscar H. Davis:

That would be invalid, Mr. Justice, under the provisions of the Constitution but this is not a criminal offense.

This is an entirely different kind of statute and — and the —

Hugo L. Black:

It raises a question I have identified as what a man’s citizenship been taken away from him, so the (Inaudible) if then, Congress could go, holding it could be taken away without a proof.

Oscar H. Davis:

Yes, it — it may raise a question but we think that in the light of the previous decisions of this Court which were cited in our brief, there is no constitutional objection to what — doing what Congress did.

William J. Brennan, Jr.:

Mr. Davis, I don’t know if I fully follow this.

Are you giving us arguments dealing with burden of proof which go to the interpretation of subsection (c) or what?

Oscar H. Davis:

Yes.

It goes to the interpretation of — of subsection (c) that Congress intended when it enacted subsection (c) that the Government proved the act of expatriation but that the citizen claimant has the burden of proof of showing that he performed the act under duress.

William J. Brennan, Jr.:

Although there’s nothing at all, explicitly, they’re dealing with burden of proof in the statute.

Oscar H. Davis:

That’s right.

That — that’s right.

I think since the statute is — is neutralized faith.

It’s appropriate to go back to the legislative history to see what Congress had in mind and that is what I’ve been trying to present to the Court.

William J. Brennan, Jr.:

Well, where — where Congress says nothing.

I’m thinking off the top of my head.

Why are we at all governed in respect of the matters of burden of proof —

Oscar H. Davis:

Because that it —

William J. Brennan, Jr.:

— by anything that’s in the — in the legislative history.

Oscar H. Davis:

Ultimately, it’s a question of interpreting the statute and Congress can do it explicitly or it can do it implicitly.

For instance, in this case, Congress deliberately did not put the word voluntarily under Section 401 (c) which was suggested to it.

He did not put it in there.

Felix Frankfurter:

Are you saying you’re having the burden of — of sustaining the constitutionality of a statute which shuts off all explanation.

Oscar H. Davis:

That’s right.

The —

Felix Frankfurter:

Absolutely prevents the Government by saying it gives — he may prove coerced entering into an army.

We have a different kind of a statute and if Congress said and you had to defend, we don’t care why he’s in the army, duress or not.

Oscar H. Davis:

That’s right, Mr. Justice.

The 1952 Act does have a provision just to the kind you said and that is now of course here before —

Felix Frankfurter:

He was ordered but that’s not here.

Oscar H. Davis:

That’s not before the Court.

Then with relation to conscription, it seems relatively clear from the hearings of — of the Committee and from some of the statements on the floor of the House that Congress knew that men would be conscripted into foreign armies and that they did not think that fact alone would be enough of an excuse.

Again, there was quite a discussion between the various people of the Committee.

And the representatives of the Labor Department who were the foremost ones in saying, “Give the man a chance to prove that he — that he did what he could,” were also the ones who said, “Of course, if he puts his head into the lion’s mouth then he should be expatriated.”

If he has gone there knowing this will happen to him, that is he will be drafted, then he should be expatriated.

Assume that war breaks out and he is drafted, I would certainly let him make a showing that that was against — against his will and that he intended to keep his American citizenship a lie.

Felix Frankfurter:

Are these all individual legislators?

Oscar H. Davis:

No, these are individual members — representatives of — of the State and Labor Department.

Felix Frankfurter:

Of the department, yes.

Oscar H. Davis:

That’s right.

Felix Frankfurter:

When it got into the Congress —

Oscar H. Davis:

There is —

Felix Frankfurter:

— was there any — any — either adoption of what this Committee of the cabinet said or were there any independent utterance by someone in charge of the bill in either House who spoke on this subject?

Oscar H. Davis:

The two.

Both — both things occurred.

One, both the sponsor — the sponsor in both Houses, were Representative Swellenback, Congressman Rees and Congressman Dickstein referred consistently to this Committee at which the representatives of the various departments had appeared.

Felix Frankfurter:

Because he was the Chairman, wasn’t he?

Oscar H. Davis:

Dickstein was Chairman of the Committee and Congressman Rees of Kansas was the ranking member who had a great do — deal to do in the drafting of legislation.

So they referred constantly and —

Felix Frankfurter:

You mean they adopted — they — they adopted —

Oscar H. Davis:

I can’t say that they said we adopt everything they had said —

Felix Frankfurter:

No, no, no.

Oscar H. Davis:

— but they, in essence, adopted the general view of these things that I’ve been saying to you.

And also, there is one slight reference on the floor of the House, two slight references which are significant and that is in colloquy, Congressman Reiss who was one of the leading sponsors of the bill, referred twice to men called back to serve in the army of the other country.

Now, the only time you’re called back is when you — when you’re conscripted or drafted.

And so that is an indication on the floor of the House.

And Mr. Justice Harlan, we do not have these citations in our brief, so if I may, I would like to give them to you.

Appear at 86 Congressional Record — 86 Congressional Record 13248 and 13250.

Hugo L. Black:

Let me ask you one question.

Does your argument (Inaudible) on some of the ideas that Congress has the right to say that courts have the (Inaudible) or infer on the fact that a man has been conscripted and served in a foreign army, and he went involuntarily?

Oscar H. Davis:

No.My argument is that that fact alone shall not show that he went in involuntarily.

Hugo L. Black:

(Voice Overlap) —

Oscar H. Davis:

That he can — he must then go further and show other things which bear upon the issue of voluntariness.

Hugo L. Black:

You think that such as anywhere here that (Inaudible)

Oscar H. Davis:

Well, we think that there is a very rational connection between — for — the rational reason for Congress to impose the burden of proof of such a personal thing as voluntariness and conduct upon the individual rather than upon the Government.

And so we think there is no violation of the Tot case which dealt only with an irrational presumption which had no relevance to — to who knows best of what the situation is or rational inference from other facts.

Mr. Chief Justice, if I might have the indulgence of the Court to say one further thing because it is not in our brief.

Earl Warren:

Yes, you may.

Mr. —

Oscar H. Davis:

At the — one reason why Congress adopted the rule that we have believed that they did adopt is that at the very same time and this is referred to in the House debate.

Oscar H. Davis:

At the very same time, they adopted in a very easy short form, renaturalization proceeding for people who had expatriated themselves by serving in a foreign army.

That’s Section 317 (c) of the 1940 Act which is not in our brief, 317 (c).

Felix Frankfurter:

Well, you say at the same Act.

Oscar H. Davis:

In the same Act.

Felix Frankfurter:

In the same Act.

Oscar H. Davis:

In the same Act.

Felix Frankfurter:

So that it’s one piece of legislation.

Oscar H. Davis:

And that’s right, it’s — and it was referred to constantly on the floor of the House when people said how harsh this is.

You’re saying that a man who goes abroad and serves in the foreign army gets expatriated.

The answer was, “Well, maybe so but he can come back easily.”

Now, of course, he must meet the ordinary provisions of the — of exclusion of the Immigration law, provided that he could come back without (Inaudible) that he had to meet the ordinary provisions for good character and so forth of the Immigration law.

And I should say, I don’t know the reason why it wasn’t done that — that the petitioner in this case could have availed himself of that provision until it was repealed in December 1952.

He did — he didn’t do it and perhaps his counsel or some other person didn’t know about it but it was available to him until it was repealed by the new Act of 1952.

Hugo L. Black:

What is the gist within Murata and Okumura cases, since they would think that?

Oscar H. Davis:

The history is that Judge MacLaughlin in Hawaii made more extensive findings of — of — subsidiary findings which the Government believed proved duress.

But Judge MacLaughlin then refused to find duress as an ultimate fact and held the statute unconstitutional again.

We did not seek to appeal the case for the reason that the subsidiary findings of duress which Judge MacLaughlin had made were precisely the same kind of findings made by district judges on the West Coast generally and other district judges in Hawaii which the Government has — had accepted and which is not appealed to the Ninth Circuit.

Hugo L. Black:

So that these men have the evidence —

Oscar H. Davis:

But there were further findings than there were in this case.

Hugo L. Black:

Finding of duress.

Oscar H. Davis:

But further findings of — subsidiary findings of duress as to what happened to them than there were in —

Earl Warren:

Mr. Wirin.

A. L. Wirin:

Yes.

As a matter of fact, in the Okimura and Murata cases, as I think perhaps, the Solicitor said, Judge MacLaughlin found that there was no duress and that the statute was unconstitutional, the Government did not appeal there that both of these petitioners, those persons are now American citizens that this petitioner would like to be.

And if this petitioner remains an American citizen, then 317 (c) is no — no longer the law, it will be only by virtue of the — of the justice and — or generosity by the justice of this Court.

Now, I mean — I mean if he loses this case, he’s — he’s lost his American citizenship and he’s on his way back to Japan.That’s what I’m trying to say, Your Honor.

Now then, to — to answer some — some questions asked by Justices of the Court in colloquy, first with respect to the problem of believing to the — the petitioner.

It is true that the District Judge said he didn’t believe the petitioner.

Indeed, that’s what the District Judge said also in the Gonzales case.

But it’s impossible to tell from what the District Judge said what he believed and what he didn’t and what the Solicitor has done is picked out the things that he doesn’t like and say that the District Judge didn’t believe them.

A. L. Wirin:

And of course, as already stated, if the District Judge believed the petitioner completely and it’s conceded the petitioner is a citizen of United States and if everything else is rejected from the case, the petitioner remains a citizen of United States and the judgment should have been for him.

Felix Frankfurter:

Trial judge may believe things said adversely.

He said adverse to a witness, he disbelieved everything else.

A. L. Wirin:

Yes, he could but I’m saying the record isn’t clear (Voice Overlap) —

Felix Frankfurter:

— in fact that’s the common thing about liars.

A. L. Wirin:

Now, a question was asked by Mr. Justice Warren as to what the State Department’s position would have been.

On page 28 of our brief is a reference to this — to a statement appearing in the State Department publication, page 28, in which the State Department said, “It is not the practice of the State Department to make representations with respect to dual citizens with respect to their obligations to other countries.”

The Solicitor has said that a number of persons have returned from — from Japan after they — presumably after they received word of conscription.

I know of none.

I do know that the law of Japan which is set forth in the transcript at page 23, Article 74 and it’s in the — in this record, specifically provide that any evasion of military service by deserting or hiding and so forth will be punished to penal servitude of three years or less.

This is aside of any — of any non-penal sanctions which might come from the Kempei Tai.

Are you going to rest on this — excuse me.

William O. Douglas:

(Voice Overlap) what page.

A. L. Wirin:

Well, page 28.

Excuse me.

Felix Frankfurter:

23.

A. L. Wirin:

Page 23 of the record.

Are you going to rest on Mr. (Inaudible) argument on constitutionality but this statute has got a patriot but his didn’t, namely dual nationality.

A. L. Wirin:

Yes.

I’m going to rest on his argument to this extent that in his brief, he makes the distinction between a person being a dual national through fiat of foreign government or conduct by his father when he is innocent and voluntary action in acquiring dual nationality.

In other words, we would concede that if this petitioner did some voluntary act acquiring dual nationality, he would be in a very different position from — from what he is now but we say that there’s no such thing in this record.

Now, with respect to the matter of judicial notice and the matter of conditions in Japan, I appreciate the compliment the solicitor paid me as being one qualified to try this cases, I did not try this case.

One of my younger colleagues did.

He was just out of the law school and he neglected to offer some things that were offered in other case.

Felix Frankfurter:

Even though you reversed the California?

A. L. Wirin:

I am not here to cast stones on that petition.

In any event —

Felix Frankfurter:

That was the intent of my problem.

A. L. Wirin:

In any event, Your Honor, we have in an appendix to our brief which is the blue brief, given to the Court extracts from official Government documents with respect to conditions in Japan and the role of the Kempei Tai.

We think they are the subject of judicial notice and they are to the effect that one who didn’t comply with the conscription law of Japan not only run the risk of going to jail but took his life in his own hands so far as the conduct of the Japanese military police are concerned.

A. L. Wirin:

And now, one — one final word, in Mandoli versus Acheson, this Court had before it an American who served in the Italian army and he took an oath of allegiance while he was in the Italian army.

In that case, the Attorney General or Solicitor General confessed error with respect to that portion of the case because the Attorney General had ruled that with respect to taking of an oath in the — in the Italian army, I’m referring to a matter which appears on page 24 of our blue brief, the Attorney General had ruled the choice of taking the oath or violating the law for a soldier in the army of Fascist Italy was no choice at all.

And our position is that under all of the evidence in this case, the choice of an American citizen who happened to be a dual citizen by virtue of the act of his father when he was an infant.

In Japan, when he received a one-way ticket, an order of conscription, the choice of his not complying with the order was no choice at all.

He was under duress and we think the evidence in his place disposes duress and that the petitioner is entitled to his citizenship.

Felix Frankfurter:

That raises a question, Mr. Wirin, which as in term as argument whether the Congress or a court judge compel a dual citizen — citizen to make the choice for his American citizen and the other nation.

A. L. Wirin:

That is not in this case.

Felix Frankfurter:

No, but it’s there down between your last point.