Born in Paris, France, Francis B. Biddle descended from a privileged family with strong ties to the Republican Party. He graduated from Harvard College and Harvard Law School, clerked with Supreme Court Justice Oliver Wendell Holmes, and worked for 23 years in corporate law in Philadelphia. After switching to the Democratic Party, Biddle chaired the National Labor Board from 1934 to 1946. From 1941 to 1945, Biddle served as President Franklin Roosevelt's attorney general. In that position, Biddle was a reluctant, though compliant participant in the government's mass removal and confinement of Japanese Americans.
Biddle's Justice Department oversaw the Federal Bureau of Investigation (FBI), which investigated Japanese Americans before and during World War II, and Justice was responsible for the aliens and hence “enemy alien” programs. The military, accordingly, had to work with Justice in handling “enemy aliens” within its Western Defense Command. The command's head, Lieutenant General John DeWitt, was frustrated by Biddle's reluctance to hand over control of the “enemy aliens”
program, which was a central feature of the army's desire for prohibited zones and restrictions on the movement of “enemy aliens.” Although Biddle reached out to assistant secretary of war John McCloy to agree on a common alien-control program, he ignored DeWitt's request for a compulsory registration program and insisted that FBI authorize military searches for contraband only when there was “reasonable or probable cause.”
However, the War Department and military persisted, and by January 1942, Biddle conceded the registration of “enemy aliens” was a military measure, and he relinquished to the army the ability to establish restricted areas from which “enemy aliens” could be excluded. More problematic was Biddle's agreement for warrantless searches conducted by the army, eroding Fourth Amendment rights, of which the attorney general was fully aware. “Probable cause,” Biddle wrote to DeWitt, was established simply on the grounds that an “alien enemy is resident in such premises.” That is, an alien enemy's residence can be searched without a warrant simply because that alien lived on that premises. Still, not wanting to tarnish his pledge to defend the Constitution, Biddle promised DeWitt, “under no circumstances will the Department of Justice conduct mass raids on alien enemies” (Irons, 35).
Biddle called a meeting on February 1, 1942, with representatives from the War Department and military to state clearly his position on the campaign for the mass removal of Japanese Americans. At the meeting, the attorney general declared his department “will have nothing whatsoever to do with any interference with citizens, whether they are Japanese or not.” The military shot back, “Mr. Biddle, do you mean to tell me that if the Army, the men on the ground, determine it is a military necessity to move citizens, Jap citizens, that you won't help us.” Biddle responded with a prepared statement, which he hoped the War Department would sign, indicating the FBI had investigated Japanese Americans and found “no substantial evidence of planned sabotage by any alien,” and thus, the Justice Department agreed that the military situation “does not at this time require the removal of American citizens of the Japanese race” (Irons, 44). The War Department declined to sign, and the meeting concluded in disagreement.
While the War Department and military pressed for authority to remove all Japanese Americans from the West Coast, Biddle subscribed to the FBI's assessment and belief that the roundup of the “ABC” list had effectively neutralized any national security threat. But he left the door open for the military to enter into what was a Justice Department matter when he admitted to a senate committee, “The military must determine the risk and undertake the responsibility for evacuation of citizens of Japanese descent …” (Irons, 52).
Troubled by the pressure for mass “evacuation,” Biddle arranged a lunch meeting with the president on February 7, 1942. During the luncheon, Biddle, from his notes, “discussed at length with him the Japanese situation” and told the president that the FBI thought a mass removal was unnecessary. To sway the president, Biddle added, such a move was politically risky, especially involving German and Italian Americans. Roosevelt gave his attorney general little support when he told Biddle he was “fully aware of the dreadful risk of Fifth Column [internal subversion] retaliation in case of a raid” (Irons, 53).
Unhappy, Biddle consulted with a team of attorneys outside the Justice Department. Their report argued for constitutional guarantees but noted “military necessity” in times of national peril required a resolution “in favor of action to preserve the national safety” (Irons, 54). Although the attorneys, by their own testimony, opposed the mass removal of Japanese Americans, Biddle read it as an endorsement of the action. At the same time, he remained skeptical of the need for “evacuation” and complained that the Justice Department was ill equipped to deal with a mass removal. Biddle, thus, favored transferring the responsibility to the military and War Department since its justification rested upon military necessity.
Secretary of War Henry Stimson tried to avoid the responsibility tossed his way by the attorney general. He doubted the constitutionality of a plan targeting a group based upon their racial characteristics and believed the removal of some 120,000 persons was beyond the military's capacity. Stimson, however, faced pressures from McCloy and DeWitt in his own department and from politicians, so he deferred to the president the decision for mass evacuation. “Is the President willing to authorize us to move Japanese citizens as well as aliens from restricted zones?” he asked McCloy and the army chief of staff, General Mark Clark, on February 11, 1942.
That afternoon, Stimson called the president to settle the question, which he answered in broad terms. “Proceed,” Roosevelt directed Stimson, in the direction he thought best, but he wanted the matter resolved as soon as possible. In turn, he promised he would back up Stimson's actions with an executive order, giving the War Department the authority Biddle was so eager to relinquish. McCloy relayed that message to the Western Defense Command that the president supported its plans for the mass removal of Japanese Americans as long as it was “dictated by military necessity” with the admonishment, “be as reasonable as you can.” Thus began the mass removal and confinement of Japanese Americans.
With Japanese Americans in concentration camps, Biddle and his Justice Department drafted what became the Denationalization Act (1944) that led to the loss of U.S. citizenship for 5,589 Japanese Americans. At the same time, Biddle, as a civil libertarian, expressed regret over the government's treatment of Japanese Americans during the war. “We should never have moved the Japanese from their homes and their work,” he was quoted as saying in September 1944. “It was un-American, unconstitutional and un-Christian” (Weglyn, 114). And years later, Biddle testified before Congress in favor of the Japanese American Claims Act (1948), and served as an advisor to the American Civil Liberties Union.
Irons, Peter. Justice at War. New York: Oxford University Press, 1983.
Weglyn, Michi. Years of Infamy: The Untold Story of America's Concentration Camps. New York: William Morrow, 1976.