>> Part 3

II. Law, Loyalty, and the “Permanent Source of Moral Danger”

The treason trial of the Shitara sisters in 1944 is admittedly but one episode in the American legal history of treason. It is dangerous to reach for broad conclusions about treason law from a sample size of one. As it happens, however, the leading theoretical work on law and loyalty identifies the precise dangers of error and oppression that plagued the prosecution of the Shitara sisters. This theoretical work has largely been done by two philosophers—Alisdair MacIntyre and George P. Fletcher.

A. Alisdair MacIntyre: Loyalty as a Dangerous Moral Virtue

Alisdair MacIntyre provided a compelling account of loyalty in his 1984 lecture Is Patriotism a Virtue? MacIntyre’s specific concern was the question of whether patriotism, not loyalty, is a moral virtue, but MacIntyre located patriotism in “a class of loyalty-exhibiting virtues…other members of which are marital fidelity, the love of one’s own family and kin, friendship, and loyalty to such institutions[] as schools and cricket or baseball clubs.” Admittedly, patriotism and national loyalty are not the same thing: patriotism implies a degree of celebratory devotion that national loyalty does not require. Still, MacIntyre’s basic observations about the moral status of patriotism are sufficiently general that they also apply to national loyalty.

MacIntyre’s most powerful insight is that loyalty can be a virtue only in a moral framework that stands apart from the ordinary framework of liberalism in which most Western moral theory resides. The hallmarks of liberal moral theory, MacIntyre explains, are impersonality, neutrality, and even-handedness. This is so regardless of whether the liberal theory is utilitarian or Kantian. A utilitarian says that the moral actor should treat another in the way that produces the greatest good for the greatest number. A Kantian says that the moral actor must treat a person consistently with his uniquely human capacity for reason. Both, however, insist that the person making a moral judgment must do so dispassionately and even-handedly. In neither moral framework does it matter whether the actor’s conduct affects his own child or a complete stranger.

In the moral framework of loyalty, whether someone else is my child or a stranger is decidedly relevant. Patriotism, MacIntyre explains, “requires me to exhibit peculiar devotion to my nation and you to yours.” Virtuous action in a framework of loyalty “requires me to regard such contingent social facts as where I was born and what government ruled over that place at that time, who my parents were, who my great-great-grandparents were, and so on, as deciding for me the question of what virtuous action is.” From this fact, MacIntyre concludes—quite reasonably—that liberal and loyalty-based moralities are “systematically incompatible.”

Does this conflict between loyalty and liberal morality mean that loyalty is a moral vice? Not at all, says MacIntyre. Morality is neither a hard-wired feature of human neurology nor a free-floating agent that we inhale at birth. It is, instead, something that we learn from specific people and practice in a specific community. The definition of the good life will therefore always have a local, particularized inflection, as will the rules of how to behave in order to attain it. More importantly, because it is hard for people to live morally, they need the support of others to keep them on the path, and that crucial support will also be locally inflected. Thus, MacIntyre concludes, “[i]t is in general only within a community that individuals become capable of morality.” Deprived of a community, people are “unlikely to flourish as…moral agent[s].” From this, MacIntyre concludes that “allegiance to the community and what it requires of me…c[an] not meaningfully be contrasted with or counterposed to what morality require[s] of me.” Loyalty is therefore not a vice, but a “prerequisite for morality”—“not just [a] virtue but [a] central virtue.”

That loyalty is a virtue does not mean it carries no risks. MacIntyre concedes an important one—the risk of a certain kind of blindness. He notes that loyalty to nation will sometimes require a person to exempt it or one of its actions from criticism. Plainly history has shown us many patriots who have opposed—even violently—some set of their governments’ policies. Loyalty thus leaves space for robust criticism. But what is exempt from criticism, MacIntyre argues, is “the nation conceived as a project.” By this he means “a particular way of linking a past which has conferred a distinctive moral and political identity upon him or her with a future…which it is his or her responsibility to bring into being.” Only to the extent that a particular government or form of government advances this national project is allegiance a virtue.

This means that there is a line that loyalty will not allow a person to cross on behalf of his nation—a point where the particular agencies of government have so defected from the nation’s project that the true moral traditions of the community will lead a citizen to abandon allegiance to those agencies. But here is the rub: the very fact that those agencies of government have emerged from the community that transmits and shapes its citizens’ loyalty will put those citizens in a bad position to spot the defection. Loyalty will blind them to the government’s violation of the national project. More often than not, they will just miss it. And so, concludes MacIntyre, national loyalty turns out to be not just a virtue, but also “a permanent source of moral danger.”

B. George P. Fletcher: Loyalty as Actualizing the “Historical Self”

MacIntyre’s qualified praise of what might be termed nationalism has been countered with a powerful internationalist critique. Martha Nussbaum’s essay Patriotism and Cosmopolitanism typifies the response. For Nussbaum, nationality and ethnicity are mere accidents of birth, and therefore can have no significance in a moral theory. She argues that we should see ourselves not as citizens of any particular nation, but as citizens of the world connected with one another by universal values that transcend national borders.

It was to this sort of position that George P. Fletcher responded to in his 1993 book, Loyalty. At the level of moral theory, Fletcher’s book owes a great debt to MacIntyre; Fletcher has little patience for the claim that community bonds should not figure in a theory of morality. “There is no easy response,” he argues, “to the idealist who insists that all five billion people constitute one community, with one cause.” Rather, Fletcher contends, a theory of morality “must begin with an understanding of how we as human beings are constituted and what our natural limits of sympathy may be.”

Those “natural limits of sympathy,” for Fletcher, are found at the boundaries of certain of our basic relationships with others. These relationships are “collectives” such as “families, tribes, and nations” that are in some sense larger than the individual participants themselves. Precisely because these collectives precede the arrival of each new member and survive his demise, Fletcher argues, they help form each member’s identity. They “enter into our sense of who we are.” In their particular national, cultural, linguistic, political, and religious commitments, they form what Fletcher calls a person’s “historical self.”

For Fletcher, this aspect of our humanity—the fact that our history helps form our identity—entails moral obligations. Just as for a utilitarian the central human capacity for pleasure and pain gives rise to the duty to maximize the former and minimize the latter, and just as for a Kantian the central human capacity for reason gives rise to a duty to treat others with the respect and dignity that their autonomy demands, so does the central fact that we are formed by historically grounded relationships entail obligations. Those obligations are “duties of loyalty toward the families, groups, and nations that enter into our self-definition.”

Although the loyalty duties of the historical self run to other people and to collectives of people, it is the historical self who reaps the moral benefit of performing them. On Fletcher’s view, obligations of loyalty to others do not really serve others; because they derive from the role of others on each person’s sense of self, performing these duties is “an expression of self-esteem and self-acceptance.” If a person is to love himself, he “must respect and cherish those aspects of [him]self that are bound up with others.” The path to self-actualization is, for Fletcher, the path of loyalty to the historical self.

Fletcher faults moral theory for not taking sufficient account of the importance of the historical self and its obligations of loyalty. He does not dispute that the various prevailing liberal theories of morality— those of Bentham, Kant, and Rawls—accurately describe genuine moral imperatives of fair and equal treatment. But he maintains that those liberal theories are only intelligible within the constraints of a relationship-based theory of moral obligation. It is here that Fletcher extends MacIntyre’s work most helpfully. Loyalties “circumscribe communitarian circles” within which the liberal norms of impartiality and equality govern. Loyalty “to the group and its purposes provides the basis…for counting some people in and others out, for believing that insiders count for more and outsiders less.” This “insider/outsider” image might seem uncomfortable, but it describes something quite real: Which parent believes that because she gives an allowance equally to her own two children, she must give that same amount (or, for that matter, any amount) to the neighbor’s kids? Which adult believes that if she chooses to care for her parents at home in their old age, she must support everyone’s parents?

Again, it bears emphasis that Fletcher describes a moral system that is based in the “natural limits” of human sympathy. Those natural limits correspond to the concentric boundaries of our historical selves. It is within those boundaries that we are able to “grasp the humanity of [our] fellow citizens and…treat them as bearers of equal rights.” Thus loyalty is for Fletcher, as it is for MacIntyre, “a critical element in a theory of justice,” because it provides us with our basis for “group cohesion, for caring about others, for seeing them not as strangers who threaten our security but as partners in a common venture.”

Of course, therein also lies the danger. Because a shared history sets the boundary between partners in the national enterprise and strangers to it, loyalty would seem to carry with it a risk that we will sometimes misperceive that boundary. This was an aspect of what MacIntyre meant when he tempered his defense of patriotism with the admission that it is a “permanent source of moral danger.” For MacIntyre, this danger was central and inevitable: so confident was he of his claim about the ever present moral danger of loyalty that he asserted that the claim “could not in fact be successfully rebutted.” To the extent that MacIntyre found the danger tolerable, it was only because he was confident that a regime of liberal (as contrasted to loyalty-based) morality carries a corresponding permanent danger to social cohesion.

This is where Fletcher and MacIntyre appear to part company. Fletcher concedes the danger. He notes that one recurring meaning of loyalty has been a demand for what he calls “political reliability.” He observes that “[i]n questions of loyalty and fidelity to the national cause, questions are often raised about people who stand slightly outside the mainstream, those to whom the insiders can attribute dual loyalties.” He lists Jews, Catholics, gays and lesbians, and Communists as examples. But Fletcher treats this facet of loyalty as something apart from loyalty itself: it is a “tangent off [the] core meaning of loyalty,” a “deviation from the central ethic of loyalty.” And thus defined away, the troublesome tendency of loyalty to heap suspicion on outsiders largely disappears from Fletcher’s work.

C. Loyalty and the Shitara Sisters

These two leading theorists of loyalty, MacIntyre and Fletcher, both acknowledge the dangers of a moral theory grounded in the affinities of insiders and their natural limits. MacIntyre embraces those dangers, recognizing that they are inevitable. His endorsement of loyalty is therefore rather muted and conflicted; he recognizes that patriotism is both essential to the national project and in constant danger of excess. Fletcher, on the other hand, sees the dangerous facets of loyalty as tangents—deviant phenomena that do not infect loyalty at its core. As a result, Fletcher is able to endorse loyalty more unambiguously as a virtue.

The treason trial of the Shitara sisters tends to confirm MacIntyre’s relative ambivalence toward national loyalty more than Fletcher’s relative enthusiasm for it. Fletcher is, of course, absolutely correct when he explains that a universalist theory of morality, which insists on like treatment of all six-billion-plus humans on the planet, ignores how “we as human beings are constituted” and exceeds our “natural limits of sympathy.” But the Shitara sisters’ experience reminds us that our “natural limits of sympathy” tend to contract in times of pressure and crisis, and that at those times “we as human beings are constituted” to misperceive threats and alliances.

Looking back at the trial from our vantage point sixty years later, where is the proof that Toots Wallace, Flo Otani, and Billie Tanigoshi intended to betray the United States and to support the Axis Powers when they drove Heinrich Haider and Hermann Loescher to New Mexico? We find it in a few simple facts: they looked Japanese, they were of Japanese ancestry, and they were unfaithful to their husbands. That is all there was. The government’s proof was not that they actually intended treason. It was that, given their ethnicity and gender, they must have intended treason—they could not have intended anything but betrayal. As Japanese people (even though American citizens), their sympathies must have run to Japan and its ally, Germany. As women adulterers, they must have been incapable of national loyalty. The prosecutor could not have made it any clearer in his rebuttal summation: a woman who would betray her husband would not think twice about betraying her country.

The value of loyalty, George Fletcher argued, is that it is the practice by which we develop and actualize our “historical selves,” those parts of our own identities that we share with others in our family, community, religious, cultural, and national groups. But whose “historical self” did this deployment of the law of treason bolster? Which shared or communal components of American identity did the Shitara treason case confirm and reenforce?

There were two such components: whiteness and maleness. It is not a distortion of the historical record to say that the conviction of the Shitara sisters was the product of an alliance of white men. I refer here not just to the white men in law enforcement—the FBI agents and the lawyers in Washington and in Denver—who crafted the charges. I refer not just to the judge, or to the jurors—twelve white men, in keeping with the jury selection practices of the time—who adjudicated the charges. I refer also to the sisters’ most immediate victims—their cuckolded husbands, one of whom (Virgil Wallace) was white, and the other of whom, while half-white, drew attention for the daughter he had by his side, a daughter who, in the words of a newspaper reporter, “had the pale eyes and the brownish hair of [her father’s] Anglo-Saxon blood.” And I refer also, and perhaps most emphatically, to the enemy soldiers, Heinrich Haider and Hermann Loescher, whose cooperation and testimony led to the Shitara sisters’ conviction. This trial was quite a spectacle because it presented a constitutional curiosity: Article III requires proof of treason by two witnesses, and here, the two witnesses were enemy soldiers who themselves owed no allegiance to the United States. They were, however, white soldiers. They were Axis soldiers, but for the purposes of calling into question the loyalty of three American women of Japanese ancestry they were safe allies. Only in this cadre of white men could the prosecutor’s insinuations about the loyalties of Japanese American women so powerfully resonate.

In sum, the Shitara treason trial is no ringing endorsement of the use of the crime of treason to actualize the American “historical self.” The trial suggests that, at least at a time of conflict and crisis, Americans defined their “historical self” too narrowly, and ascribed mistaken meanings to, and suspect motives for, the actions of those who seemed not to be within the boundaries of that self. This was a lesson that would be repeated six years later, in a case that again grabbed the headlines, when the government brought treason charges against Iva Toguri d’Aquino, or “Tokyo Rose,” as she was mistakenly called. D’Aquino was an American citizen of Japanese ancestry who got caught in Japan when the war began and worked for a time as an English-language disc jockey on Radio Tokyo, spinning records on a program broadcast to American troops in the Pacific Theater. A rabid press made her out to be a Mata Hari at the heart of Japan’s propaganda machine. The evidence, however, barely supported even a single treasonous utterance. A jury nonetheless convicted her of treason. Throughout her lengthy incarceration, she maintained her innocence and her loyalty to the United States; President Ford pardoned her in 1977. The leading chronicler of her trial saw her as a scapegoat, a “symbolic sacrifice” to the ambitions and fears of a handful of bureaucrats and their “stringent, politically expedient meaning of loyalty.” The d’Aquino case implies that what happened to the Shitara sisters was no freak occurrence, but a reflection of a risk underlying efforts to enforce national loyalty through the crime of treason. Altering slightly the words of Alisdair MacIntyre, we might say that the crime of treason poses a permanent (and not merely a tangential) risk of moral danger.

Conclusion: A Japanese American Story

The trial of the Shitara sisters deserves a prominent place in the literature on law and loyalty, because it shows with rare clarity how the urge to punish for betrayal can stem from unhealthy and mistaken needs to draw false boundaries. For this reason, however, the Shitara treason trial should also safely emerge from the shadows and occupy a prominent place in the literature on the wartime incarceration of Japanese Americans. The prosecution of the Shitara sisters indicates the overpowering force of the xenophobic presumption at the heart of the government’s entire wartime program. One of the grievous flaws of the eviction and incarceration program was, of course, the absence of legal process. There was no notice, there were no hearings, there was no judge, and there was no appeal. Everyone just had to leave and submit to detention. But it is also important to notice that the program of eviction and incarceration had no legal standard, no defined offense, and no burden of proof. The substantive attribution of disloyalty to Japanese Americans in early 1942 was therefore vague, shadowy, and impossible to quantify.

At the treason trial of the Shitara sisters, by contrast, all the standards were clear and precise. To brand the sisters as traitors and take away their liberty, the prosecutor had to prove that they acted with the specific intent to hinder America’s cause and advance that of its enemies. And he had to prove this not just by a preponderance of the evidence, or by clear and convincing evidence. He had to prove it beyond a reasonable doubt.

Justice Department lawyers went to the jury on that issue with nothing. They had no testimony, no documentary proof, no admissions, not even a plausible theory. They had only the unadorned facts that Toots, Flo, and Billie were born to Japanese parents and that they were adulterers. On the basis of that evidence, twelve jurors found an intent to betray the United States beyond a reasonable doubt, and a judge upheld their finding. In the eyes of the twelve white men who judged them, it was their female susceptibility to seduction that unmoored them from their loyalty to America. But it was their ethnicity—the “undiluted racial strains” of affinity to Japan, as General DeWitt had called them—that reattached their displaced loyalty to the cause of the Axis Powers. And it did that beyond a reasonable doubt. This, then, shows in sharp relief the extraordinary probative force of the simple fact of Japanese ancestry during World War II. It equated with the highest quantum of proof known to our legal system.

Seen in this light, the Shitara sisters’ treason trial deserves a secure place in the literature on the wartime incarceration of Japanese Americans. To be sure, it is a tale of foolishness and misbehavior. As a purely technical matter, it is the case that the literature says should not exist: a conspiracy to commit treason by Japanese Americans on the United States mainland. But in truth it is not a tale of disloyalty to America, the decision of twelve white jurors in 1944 Denver notwithstanding. It is rather a tale of presumed disloyalty. And that presumption touched not just Toots, Flo, and Billie. It touched every American citizen of Japanese ancestry alive in the United States when the bombs fell on the ships at Pearl Harbor.

(THE END)

* 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