William O. Douglas

“ But American citizenship, until lost, carries obligations of allegiance as well as privileges and benefits. For one who has a dual status the obligations of American citizenship may at times be difficult to discharge. An American who has a dual nationality may find himself in a foreign country when it wages war on us. The very fact that he must make a livelihood there may indirectly help the enemy nation. In these days of total war manpower becomes critical and everyone who can be placed in a productive position increases the strength of the enemy to wage war. ”

“ The argument in its broadest reach is that treason against the United States cannot be committed abroad or in enemy territory, at least by an American with a dual nationality residing in the other country which claims him as a national. The definition of treason, however, contained in the Constitution contains no territorial limitation. 'Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. ”

“ One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. ”

“ That is a far cry from a ruling that a citizen in that position owes no allegiance to the United States. Of course, an American citizen who is also a Japanese national living in Japan has obligations to Japan necessitated by his residence there. There might conceivably be cases where the mere nonperformance of the acts complained of would be a breach of Japanese law. He may have employment which requires him to perform certain acts. The compulsion may come from the fact that he is drafted for the job or that his conduct is demanded by the laws of Japan. ”

“ The court charged that if the jury found that petitioner had lost his Aerican citizenship prior to or during the period specified in the indictment, they must acquit him even if he did commit the overt acts charged in the indictment, since his duty of allegiance would have ceased with the termination of his American citizenship. The court further charged that if the jury should find beyond a reasonable doubt that during the period in question petitioner was an American citizen, he owed the United States the same duty of allegiance as any other citizen. ”

“ My opinion * * * is that, in addition to domicile and intent to remain, such expressions or acts as amount to a renunciation of United States citizenship and a willingness to submit to or adopt the obligations of the country in which the person resides, such as accepting public employment, engaging in military services, etc., may be treated by this Government as expatriation, without actual naturalization. Naturalization is without doubt the highest, but not the only evidence of expatriation. ”

“ We cannot say as a matter of law that petitioner did these acts under compulsion. He seeks, however, to find protection under Japanese municipal law. It is difficult to see how that argument helps petitioner. The source of the law of treason is the Constitution. If an American citizen is a traitor by the constitutional definition, he gains no immunity because the same acts may have been unlawful under the law of the country where the acts were performed. Treason is a separate offense; treason can be committed by one who scrupulously observes the laws of other nations ”

“ Evidence of what petitioner said during this period concerning the war effort and his professions of loyalty, if believed by the jury, leaves little doubt of his traitorous intent. 'It looks like MacArthur took a run-out powder on you boys'; 'The Japanese were a little superior to your American soldiers'; 'You Americans don't have no chance. We will win the war.' 'Well, you guys needn't be interested in when the war will be over because you won't go back; you will stay here and work. I will go back to the States because I am an American citizen' ”

“ Either state not at war with the other may insist on military service when the person is present within its territory. In time of war if he supports neither belligerent, both may be aggrieved. If he supports one belligerent, the other may be aggrieved. One state may be suspicious of his loyalty to it and subject him to the disabilities of an enemy alien, including sequestration of his property, while the other holds his conduct treasonable.' Orfield, The Legal Effects of Dual Nationality, 17 Geo.Wash.L.Rev. ”

“ Dual nationality, however, is the unavoidable consequence of the conflicting laws of different countries. See 3 Hackworth, supra, pp. 352 et seq. One who becomes a citizen of this country by reason of birth retains it, even though by the law of another country he is also a citizen of it. He can under certain circumstances be deprived of his American citizenship through the operation of a treaty or an act of Congress ”

“ A foreign state has some position in its government which can be held only by its citizens and an American accepts such a position and serves the foreign state and loses his American nationality. That is intended particularly for cases of persons of dual nationality, and there are not a great many of those cases. ”

“ Of course, a person caught in that predicament can resolve the conflict of duty by openly electing one nationality or the other and becoming either an alien enemy of the country where he resides or a national of it alone. ”

“ You will never get to go back to the States'; 'I will be glad when all of the Americans is dead, and then I can go home and live happy.' These are some of the statements petitioner made aligning himself with the Japanese cause. ”

“ As we have said, dual citizenship presupposes rights of citizenship in each country. It could not exist if the assertion of rights or the assumption of liabilities of one were deemed inconsistent with the maintenance of the other. ”

“ Each of these related to his treatment of American prisoners of war at the Oeyama camp. These prisoners were mostly from Bataan and were in weakened condition on their arrival. All were below normal weight; many of them were suffering from disease; most of them were unfit for work. They were assigned to work either in the factory or at the mine of the Oeyama Company. They were under the supervision of the Japanese army. Petitioner was a civilian interpreter, as we have said. There was evidence that he had no authority and no duties, as respects the prisoners, except as an interpreter. ”

“ Overt act (k) as alleged in the indictment and developed at the trial was that in the spring or summer of 1945 petitioner participated in the inhuman punishment of one Shaffer, an American prisoner of war. Shaffer was forced to kneel on bamboo sticks on a platform with a bamboo stick inside the joints of his knees, and to keep his arms above his head holding a bucket of water and later a log. When Shaffer became tired and bent his elbows, petitioner would strike him. ”

“ The trial judge recognized the distinction in his charge when he instructed the jury to acquit petitioner if he did not do the acts willingly or voluntarily 'but so acted only because performance of the duties of his employment required him to do so or because of other coercion or compulsion.' In short, petitioner was held accountabe by the jury only for performing acts of hostility toward thi § country which he was not required by Japan to perform. ”