Memorandum from the Commanding General, Western Defense Command, to the Assistant Attorney General, Mr. James Rowe, Jr.

"January 5, 1942

"Memorandum for: Assistant Attorney General Rowe.
Subject: Alien Enemy Control Requirements.

"1. Reference is made to the summary of report of the Assistant Attorney General Rowe to General DeWitt on Sunday, January 4, 1942, at 6:30 P.M. (TAB. 'A')

"2. It should be stated at the outset that the Army has no wish to undertake the conduct and control of alien enemies anywhere within the continental United States. Impressions to the contrary notwithstanding, the army would accept transfer of such responsibility and authority with the greatest reluctance. Its desire is only that the Department of Justice act with expedition and effectiveness in the discharge of its responsibilities under the Presidential Proclamations of December 7th and 8th. The developments which have resulted in the current conferences between the Attorney General's representative, and General DeWitt and his staff, have been occasioned by the almost complete absence of action on the part of the Department of Justice over a period of nearly four weeks since promulgation of the mentioned proclamations, toward implementing sections 5 and 9.

"3. To the extent that an estimate can be made, in the absence of actual demonstration, the courses of action proposed to be taken by the Department of Justice, as set forth in paragraphs 1,2, 3 and 4 of Tab. 'A', appear to constitute a great step forward.

"4. While some amendment, clarification and implementation may be necessary, it appears that section 5 of the proclamation relative to prohibited articles will have been fully implemented when the measures detailed in Tab. 'A' have been taken. The means of determining whether all alien enemies are complying with the proscriptions of the Proclamations, as repeated in the contraband regulations promulgated by the Attorney General, may have to be further clarified. This phase of the problem, however, is closely associated with [the] warrant issuance aspect of the alien enemy program.

"5. As agreed in the conference referred to in paragraph 1 hereof, the Commanding General of the Western Defense Command has initiated action within California, Oregon and Washington portions of his command (as augmented by the inclusion of the Air Corps installations throughout his command), to furnish U.S. Attorneys not later than January 9, 1942, a list of the areas which are regarded by Army authorities as falling within section 9 of the regulations relative to restricted areas. This report will include definite descriptions of such areas and will divide them into two categories as follows:

"Category A: Those areas within, or through which no alien enemy be permitted, under any circumstances.

"Category B: Those areas through, or within which alien enemies may be permitted on pass or permit.

In order to avoid absolute confusion in the matter, Army authorities strongly urge that the Department of Justice undertake to establish immediate liaison and coordination with all appropriate relief agencies prepared to alleviate hardship resulting from compulsory change of residence on the part of alien enemies residing in Category A, restricted areas. As the Department of Justice has requested permission to announce that the establishment of restricted areas has been made by the Attorney General only because the Commanding General of this theatre has so requested, military authorities desire it to be unequivocally clear that they desire that everything possible be done to eliminate unnecessary hardship and the need for planning and coordination along this line is strongly emphasized.

"6. Comments relative to paragraph 3 of Tab. 'A' entitled 'Search Warrants' will be deferred for inclusion in the portion of this memorandum relative to particular problems.

"7. As already noted, neither the War Department nor the Army desire to undertake responsibility for the alien enemy program in Continental United States. In view of this, the comment in paragraph 4 of Tab. 'A' to the effect that the Department of Justice is of the view that it is better qualified to conduct an alien enemy registration than is the Army, and in view of the expressed intention of that Department to act without delay, it would appear that the action proposed in paragraph 4, Tab. 'A', if speedily accomplished will satisfy the need for immediate registration of alien enemies.

"8. Reference is made to paragraph 5 of Tab. 'A' relative to 'spot raids' and 'mass raids.' The military authorities in this theatre are of the view that counter espionage measures require that the Department of Justice take whatever steps are necessary, effectively to provide for simultaneous 'mass raids' without warning to determine the presence of prohibited articles which may be in possession or under the control of alien enemies, or to which such persons may have access. By this type of raid is meant 'coordinated action' in several areas at the same moment and on successive occasions providing for the search of a given number of alien enemy premises in each area. Under such circumstances the premises to be searched during any such 'mass raid' would be only those in which it is known that an alien enemy may be found or in which there is cause to believe that an alien enemy may be found. It does not mean the 'willy-nilly' raiding of all premises within a prescribed area. The number of premises to be searched during any given 'mass raid' will depend upon the circumstances and the means at hand. This type of sampling or cross-sectional raiding is regarded as vitally important. While such raids may not be successful from the viewpoint of rounding up great quantities of contraband, they will have the important effect of driving contraband more deeply underground with the result that its illicit use becomes increasingly difficult.

"The military authorities request that they be advised by the Department of Justice of its position in this matter. If it is inclined to provide for this type of search, advice is requested as to the steps proposed by this Department.

"9. The courses of action proposed in Tab. 'A', when accomplished, will not solve a number of pressing problems. It is neither possible no practicable to undertake an attempt to illustrate all of the problems which may arise in connection with the alien enemy program. As limited in the foregoing sentence, some of the problems and some of the questions remaining unsolved are:

"(a). A fix is established on a radio transmitter. Transmission of unlawful radio signals is established but the location is determined only within a defined area such as a city block. Manifestly an accurate description of the premises, the operator's name and a description of equipment cannot be furnished. the operation of such a transmitter is equally unlawful on the part of a citizen, alien or an alien enemy. Unless a 'John Doe' search warrant can be obtained immediately, the consequences may be grave and the transmitter may be moved without trace. What action can be taken?

 
"(b). The facts are sufficient to support the issuance of an alien enemy warrant or a contraband search warrant, but the responsible law enforcement officer on the ground is unable to communicate with the issuing authority due to the lack of means or because of the time element. What action can he take?

"(c). A known alien enemy is observed, in transit, in the possession of contraband or in the possession of articles believed, for good cause, to be contraband. If a warrant is procured under present as well as proposed machinery, the quarry will be lost. What action can be taken?

"(d). The unlawful transmission of radio signals has been established through interception. A series of fixes determines the location of the transmitter within a general area, such as Monterey County. Further, there is convincing evidence of shore to enemy submarine communication. What action can be taken to isolate the area and conduct an effective search to locate the mobile unit?

"(e). An alien enemy is resident with a citizen, perhaps a relative such as a wife. While it cannot be proven that he owns or actually controls contraband it can be proven that he has unlimited access to such. The situation is as potentially dangerous as if it could be proven that he owns or actually controlled the contraband. What action can be taken?

"(f). Question arises whether access of the character description in (e) above is unlawful under the Proclamations. Assuming that it is unlawful to what extent may the search, under a contraband search warrant of a mixed occupancy dwelling or other premises be carried to determine access to contraband?

"(g). The dual citizen problem is perplexing. Self-serving declarations of an election are of little meaning, particularly when conduct is incompatible with the so-called election. What methods exist or what steps are in contemplation looking toward the control of

1. Dual citizens.
2. Disloyal, subversive citizens (where there has been no overt act detected).

"(h). In the opinion of the Attorney General, to what extent may the responsible Military Commander in a theatre of operations, contravene normal processes to take necessary action in an emergency in order to provide for the internal as well as the external security of his theatre-to what extent is the Department of Justice able to take similar measures?

"(i). Military authorities are convinced of the desirability of close cooperation and collaboration between the War Department and the Department of Justice in connection with the instant subject. However, it is considered desirable to request advice as to the extent to which the Department of Justice is prepared to assume and to discharge the responsibility of taking whatever steps are necessary for the prevention of sabotage, espionage, and other fifth column activities from enemy alien courses [causes], and the extent to which the Department of Justice will expect the military authorities to continue the outline of necessary steps for progressive implementation of the enemy alien program.

Incl. I.

J.L. DeWITT,
Lieutenant General, U.S. Army."