This Article tells the story of the federal treason trial of three Japanese American sisters for helping their paramours, two German soldiers, to flee from a Colorado prisoner-of-war camp in October of 1943. At the time, the story seemed to confirm the suspicion of national disloyalty that had forced the sisters and tens of thousands of other Japanese Americans from their West Coast homes in the spring of 1942. But a careful review of the record of the case reveals that the women were disloyal only to their husbands, not to their country. The government presented the jury with no evidence that the sisters intended to advance the cause of the Axis Powers or to betray the United States. The jury convicted them of conspiracy to commit treason nonetheless.

Reviewing the leading literature on law and loyalty, this Article concludes that the story of this wartime treason trial illustrates the dangers of stereotype and xenophobia that lurk in the law of treason.

Introduction: Of Loyalty and the Japanese American Incarceration

In early 1942, when the federal government decided to evict every person of Japanese ancestry from the West Coast, Japanese American guilt was universally assumed. Every man, woman, and child was a potential saboteur. “The Japanese race is an enemy race,” explained General John DeWitt, the commander of the Western Defense Command, who ordered their eviction. Citizenship meant nothing: Japanese American citizens were as suspect as aliens because, in the military’s view, “the racial strains [were] undiluted” in the second and third generations. Factual innocence also meant nothing. “The very fact that no sabotage has taken place to date,” DeWitt explained as the program of repression began, “is a disturbing and confirming indication that such action will be taken.”

We know now that the military got this colossally wrong. Mari Matsuda calls it “the lie of military necessity,” and that is an apt description. The military overestimated the security risks that Japanese Americans posed by orders of magnitude. This is not just a historical fact; it is also now a legislative one. When Congress capped a multi-year historical investigation with the Civil Liberties Act of 1988, it concluded that the “evacuation, relocation, and internment of civilians [of Japanese ancestry] during World War II [had been]…carried out without adequate security reasons and without any [documented] acts of espionage or sabotage.”

This last point—that there were no documented instances of disloyal conduct by Japanese Americans in the United States during the war—has become something of a mantra in the modern account of the Japanese American wartime experience. On this point the modern account has an almost reactive feel: it is as though we are seeking to atone for the outrage of presumed disloyalty and monolithic suspicion by hinting at a story of uncomplicated loyalty and monolithic innocence.

Intriguingly, this all-or-nothing dynamic, a stark distinction between heartfelt loyalty and abject disloyalty, persists in popular discussion within the Japanese American community itself about its incarceration experience. Consider the tortured sixty-year-long debate about military service by the internees. Some Japanese American veterans still insist that all those who resisted the draft from inside the camps were unpatriotic; their fervor on the issue is matched only by those who insist that each young man who refused to comply with his draft notice was a patriotic “resister of conscience.” Or consider the discomfort that still can arise when a person admits that his family was at Tule Lake, the camp to which the government sent most of those from the other camps who “failed” the written loyalty test that it administered to all camp residents early in 1943. To some, Tule Lake is still the “bad” camp, the camp of the “no-no’s,” and nothing will persuade them otherwise.

The story I tell in this Article does not sit comfortably in the conventional narrative of Japanese American patriotism. It is the story of the Shitara sisters, three American women of Japanese ancestry who helped two German war prisoners escape from their POW camp in eastern Colorado in the fall of 1943. They gave the prisoners civilian clothing, some maps, and a nighttime lift south toward Mexico. There is no question that they did this. They were not framed. It was not an imagined event.

There is also no question that theirs was a case of disloyalty, even betrayal. After all, the three Shitara sisters were all married, although the dislocation of the incarceration experience had temporarily separated them from their husbands. The German soldiers were their lovers, and their car trip into New Mexico included some back-seat romance.

Had the government accused the sisters of the crime of betraying their husbands, their story would have been of little, if any, historical importance. But the government accused them instead of the crime of betraying their country, bringing treason charges against them early in 1944. After one of the most headline-grabbing trials of World War II, a jury convicted the sisters of conspiracy to commit treason, and a federal district judge sentenced them to two years in prison. From all appearances, their case was the one that was not supposed to exist—a documented act of disloyalty by Japanese Americans on the U.S. mainland during World War II.

As notorious as the case was in its day, this treason prosecution against the three Japanese American sisters barely appears in the voluminous literature on the wartime experiences of Japanese Americans. Perhaps part of the reason for this absence is precisely that it appears to clash with the narrative of Japanese American loyalty that prevails in scholarship on the Japanese American incarceration. But while the story may not at first seem to have a comfortable home in that literature, I will argue that it does have a home in the literature on law and loyalty. That literature has captured well the danger of xenophobic repression that lies in government efforts to use law to enforce bonds of national identity. The treason trial of the Shitara sisters is a classic and clear illustration of that danger. The Shitara sisters were guilty of a foolish, and serious, indiscretion. Although married women, they allowed themselves to be seduced by enemy soldiers, and offered their lovers help in escaping captivity. Their motive was romantic. But because they looked like the enemy, their motive became political and their serious indiscretion became treason in the eyes of federal prosecutors.

Part I of this Article tells the story of the Shitara sisters’ wartime affair, and how it became the treason case of its day. Part II offers a brief summary of the leading accounts of the law’s interaction with loyalty, and shows how the Shitara sisters’ case confirms a central danger that inheres in efforts to use the law to enforce national loyalty. This Article concludes that the experience of the Shitara sisters should play a prominent and unashamed role in illustrating the civil rights tragedy we call the Japanese American incarceration.

I. The Treason Trial of the Shitara Sisters, Denver, 1944

A. Escape from Camp Trinidad

In October of 1943, 167,748 prisoners of war were incarcerated in the United States, of whom 119,401 were German and 48,252 were Italian. While our post-war television culture depicted Allied war prisoners as clever and their Axis captors as incompetent, the reality was otherwise: German and Italian war prisoners were a crafty bunch, and Americans were not especially skillful captors. During the course of the war, 2,222 German prisoners escaped from prisoner-of-war (“POW”) camps in the United States. Ten percent of the Germans who escaped remained at large for at least three days, and somewhat incredibly, seventeen escaped German war prisoners were still at large in November of 1947. The circumstances of these escapes were often deeply embarrassing to the U.S. Army, which had responsibility for guarding the war prisoners. In one typical instance, FBI Director J. Edgar Hoover reported to Attorney General Francis Biddle that a military sentry at a camp a mile and a half from the Rio Grande River was caught on guard duty at 1:30 in the afternoon “sitting on an oil can so drunk he couldn’t walk straight,” telling those in his charge that they could go “wherever [they] want[ed].”

Security at the Trinidad POW camp in eastern Colorado was particularly lax in the second half of 1943. Camp Trinidad housed more than three thousand German soldiers, most of them prisoners taken in North Africa. Escapes by twos and threes occurred throughout the month of September 1943. On the morning of October 18, 1943, six German prisoners were discovered missing all at once. Two of them, Heinrich Haider and Hermann Loescher, were picked up late that night in a beer hall eighty-seven miles away from Camp Trinidad in the town of Watrous, New Mexico, drinking and carousing with some local women after trying to buy train tickets. They told the arresting officer that they had escaped on their own, by cutting through a wire fence, hopping a southbound freight train, and buying the civilian clothing they were wearing with a small amount of American money that they had smuggled into camp with them from North Africa. They reportedly explained that they were planning to “go to Mexico and board any Spanish ship for Germany.” Haider and Loescher would eventually have a good deal more to say about their escape and their plans, but this was the last time they ever mentioned a plan to return to Germany, or, for that matter, to do anything to support Germany.

When asked about the other four escapees, Haider and Loescher said that they believed the others had escaped days earlier, possibly as early as October 11. A check with the commander of Camp Trinidad confirmed that it was possible that “all of the prisoners could have escaped on October 11th, 12th, or 14th and their escapes not have been discovered until the FBI was advised on October 18th.” FBI Director J. Edgar Hoover sounded the alarm in a memorandum to Attorney General Francis Biddle on October 23. “[O]bviously,” Hoover wrote, “an extremely dangerous condition is being permitted to exist.” “Such laxity not only renders it more difficult to apprehend the escapees,” warned Hoover, “but of more importance, it seriously endangers the nation’s security.” It was not until October 21 that the rest of the escapees were caught.

B. The “Japanazi Romance”

Haider and Loescher were searched when they were arrested, and the search turned up some of the ordinary tools of escape—road maps of New Mexico and Arizona, and about twelve dollars in change. But something a good deal stranger emerged from their pockets as well. They had photographs of themselves in various poses with several young women. Some of the poses looked just friendly, but one of them looked downright amorous: it showed the prisoner Haider with his arms around one of the young women, their lips locked in a passionate kiss. Most importantly, as it would turn out, the women all looked Japanese.

Part 2 >>

* This article was originally presented at the “Law, Loyalty, and Treason: How Can the Law Regulate Loyalty Without Imperiling It?” Symposium at the University of North Carolina in 2003 and published in the North Carolina Law Review, June 2004 and reprinted with permission.

***

Professor Eric Muller will tell the remarkable story of the now-forgotten trial of the Shitara Sisters on July 4, 2008 in Denver, CO.

EVENT: “Betrayal on Trial: Japanese American ‘Treason’ in World War II and the 1944 Trial of the Shitara Sisters”
PRESENTED BY: Eric Muller, Dan K. Moore Distinguished Professor, University of North Carolina School of Law

at Whose America? Who’s American? Diversity, Civil Liberties, and Social Justice
Enduring Communities National Conference

For more information, visit the Enduring Communities Web site.

© 2008 Eric L. Muller