As time passes, it becomes more and more plain that our wartime treatment of the Japanese and Japanese-Americans on the West Coast was a tragic and dangerous mistake. That mistake is a threat to society, and to all men. Its motivation and its impact on our system of law deny every value of democracy.

In the perspective of our legal tradition, the facts are almost incredible. During the bleak spring of 1942, the Japanese and the Japanese-Americans who lived on the West Coast of the United States were taken into custody and removed to camps in the interior. More than 100,000 men, women, and children were thus exiled and imprisoned. More than two thirds of them were American citizens.

These people were taken into custody as a military measure on the ground that espionage and sabotage were especially to be feared from persons of Japanese blood. The whole group was removed from the West Coast because the military authorities thought it would take too long to conduct individual investigations on the spot. They were arrested without warrants and were held without indictment or a statement of charges, although the courts were open and freely functioning. They were transported to camps far from their homes, and kept there under prison conditions, pending investigations of their "loyalty." Despite the good intentions of the chief relocation officers, the centers were little better than concentration camps.

If the evacuees were found "loyal," they were released only if they could find a job and a place to live, in a community where no hoodlums would come out at night to chalk up anti-Japanese slogans, break windows, or threaten riot. If found "disloyal" in their attitude to the war, they were kept in the camps indefinitely - although sympathy with the enemy is no crime in the United States (for white people at least) so long as it is not translated into deeds or the visible threat of deeds.

On May 1, 1945, three years after the program was begun, about 70,000 persons were still in camps. While it is hoped to have all these people either free, or in more orthodox confinement, by January 1, 1946, what is euphemistically called the Japanese "relocation" program will not be a closed book for many years.

The original program of "relocation" was an injustice, in no way required or justified by the circumstances of the war. But the Supreme Court, in three extraordinary decisions, has upheld its main features as constitutional. This fact converts a piece of wartime folly into national policy-a permanent part of the law - a doctrine enlarging the power of the military in relation to civil authority. It is having a sinister impact on the minority problem in every part of the country. It is giving aid to reactionary politicians who use social division and racial prejudice as their tools. The precedent is being used to encourage attacks on the civil rights of both citizens and aliens. As Mr. Justice Jackson has said, the principle of these decisions "lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." All in all, the case of the Japanese-Americans is the worst blow our liberties have sustained in many years. Unless repudiated, it may support devastating and unforeseen social and political conflicts.

The release of the White House telephone transcripts, thirty years after the assassination, make it possible to now construct a much more complete account of the Warren Commission's origins. Those transcripts tell the story that Katzenbach hinted at in his 1978 testimony, a story LBJ had also hinted at in 1971. Had the appropriate questions been asked of Katzenbach in 1978, it is at least possible that Katzenbach himself would have filled in some of the gaps left in the record for over three decades.

It appears that the idea of a Presidential commission to report on the assassination of President Kennedy was first suggested by Eugene Rostow, Dean of the Yale Law School, in a telephone call to LBJ aide William Moyers during the afternoon of November 24, 1963. Although the time of this call is missing from the White House daily diary, it is possible to identify the period during which the call was made. Rostow refers to the killing of Oswald, so the call had to be after 2:07 P.M. Eastern Standard Time, the time Oswald was pronounced dead. The call appears in the White House daily diary prior to a conversation at 4:40 P.M, between President Johnson and Governor Pat Brown of California." There is a memorandum which clearly indicates that Rostow called the White House well before 4:00 p.m., EST.

Rostow told Moyers that he was calling to make a suggestion that a "Presidential commission be appointed of very distinguished citizens in the very near future." Rostow recommended that such a commission be Bi-partisan and above politics - no Supreme Court justices but people like Tom Dewey and Bill Story from Texas and so on. A commission of seven or nine people, maybe Nixon, I don't know, to look into the whole affair of the murder of the President because world opinion and American opinion is just now so shaken by the behavior of the Dallas Police that they're not believing anything."

Rostow does not explain how he has determined the nature of world or American opinion within minutes or an hour or so of the murder of Oswald. As we saw in the preceding chapter, the Dallas police were a model of objectivity and open mindedness compared to Alan Belmont of the FBI and at least much of the major media.

Rostow also said that he had already spoken "about three times" that day to Nick Katzenbach but he was making his suggestion directly to Moyers because of his uncertainty that Katzenbach would pass it on. Rostow explains that Katzenbach "sounded too groggy so I thought I'd pass this thought along to you".

It is highly probable that it was Rostow's call(s) that Katzenbach was referring to in his 1978 testimony when he said that he was "sure" that he had talked to "people outside the government entirely who called me."

Apparently Rostow was making his suggestion in the context of discussions with at least one other person. He said to Moyers: "Now, I've got a party here. I've [or We've] been pursuing the policy, you know, that people need to come together at this time."

Rostow does not identify the individual or individuals with whom he has been talking.

Moyers briefly interrupted this line of discussion by stating his concern that recent events were undermining the credibility of U.S. institutions. He then returned to Rostow's suggestion, saying: "All right. Now, your suggestion is that he [President Johnson] appoint a Special Commission of distinguished Americans, primarily in the field of law, I presume to look into the whole question of the assassination."

Rostow says "That's right and a report on it" and then the conversation ended with Moyers assuring Rostow that he will discuss this with President Johnson." Rostow acted very quickly on what was a momentous decision and he did so even though he had no obligation or responsibility to do anything.

In Volume III of the Hearings of the House Select Committee on Assassinations, there is a copy of a memo written by LBJ aide Walter Jenkins to the President which reports on a phone conversation that Jenkins apparently had with J. Edgar Hoover." According to the memo, Hoover said over the phone that: "The thing I am concerned about, and so is Mr. Katzenbach, is having something issued so we can convince the public that Oswald is the real assassin. Mr. Katzenbach thinks that the President might appoint a Presidential Corrunission of three outstanding citizens to make a determination."

Hoover goes on to state misgivings about the idea of a commission. It is, of course, of interest that Hoover and, apparently, Katzenbach already have Oswald as the assassin. Did Rostow discuss this with the "groggy" and insufficiently active Katzenbach? The timing of this memo is of immediate interest.

The time on the memo is 4:00 P.M., November 24. Hoover has already spoken with Katzenbach and received from him information concerning the idea of a commission. Apparently, Hoover spoke with Katzenbach prior to 4:00 P.M. We now have a considerably shorter time frame.

Oswald died at 2:07 Eastern Standard Time. Before 4:00 Katzenbach had spoken with Hoover about a commission. Katzenbach was acting as a result of his conversation(s) with Rostow. We are now down to something well under one hour and fifty-three minutes for Rostow to hear of Oswald's death, consider all the factors, discuss it with at least one other person, and begin to act. The entire time span for Rostow's actions is almost certainly less than ninety minutes, allowing only twenty or so additional minutes for him to talk to Katzenbach and for Katzenbach to talk to Hoover. We don't know who was with Rostow at the time of Oswald's death. Did Rostow act as an individual or was he representing a collective decision when he moved so rapidly to have a Presidential commission established? This probably cannot be answered in a definite way without a candid statement from Rostow and, perhaps, others. There are, however, indications in the events of November 25 to 29 that Rostow and then Katzenbach were acting on behalf of a group of people.

As we have seen, the idea of a commission was suggested to at least two people close to LBJ, Bill Moyers and Walter Jenkins, on the afternoon of the 24th. The suggestion was relayed to LBJ by someone before 10:30 A.M. the next day, November 25. This is clear from the transcript of Johnson's phone conversation with J. Edgar Hoover at 10:30.