 Number 44, no, no, number 19, I beg your pardon. Number 19, Mitsugi Nishikawa, petitioner versus John Foster Dulles. Mr. Ware. May it please the court. This case, as the preceding one and as the one to follow, deals with a subsection of section 401 of the Nationality Act of 1940, which involves a loss of citizenship. The subsection here is 401C, which provides the loss of United States citizenship by an American citizen who serves in a foreign army and who at the same time is a citizen of that foreign state. We have raised the constitutionality on its face of this subsection in our brief, and since the constitutional question has been argued substantially in the former case and will also be considered in the next case, I am not going to discuss that feature of this case. I'm going to address myself particularly to what Mr. Justice Frankfurter indicated with the due process features of this statute as applied to the petition. I'm going to assume the power of Congress to legislate in the field, A, of persons serving in a foreign army abroad, B, where those persons have dual nationality, I'm going to assume the naked abroad power, and I'm going to urge upon your honors that that power was not properly exercised so far as this case is concerned because it was exercised in a manner to be unreasonable and to offend due process. More particularly to narrow my point and to narrow the problem, I'm going to be dealing with a question which Mr. Justice Harlem asked with respect to the matter of a voluntariness and involuntariness. And I want to make at the very beginning a distinction which to me seems to be cardinal in connection with the use of the word voluntariness or involuntariness because it can be used in two separate contexts and with two separate meetings. For instance, whether or not a person when he does something intends to lose his citizenship or as one of the cases that concurs in the loss of his citizenship by doing something, this is one example of voluntariness. For the purpose of my argument, I'm going to assume that this is utterly inconsequential and that in that context he may lose his citizenship though he doesn't want to, though it is involuntary. But when Congress undertakes to specify various grounds for the loss of citizenship, which it did in this section 401 of which senior is an example, and it provides that merely doing that which Congress says it's done results in loss of citizenship, it is clear and it is undisputed by the government that that act which Congress defines must be voluntary. For instance, if it's a question of service and the armed forces of another country, the government conceives there could be no loss of citizenship if the service was involuntary, if the service and the armed forces. So in that respect, and in this narrow fashion, voluntariness is important, it is conceited, and it is the heart of the petitioner's case as far as this case is concerned. Because we say that in the trial below, under section 503, the trial court, in ultimately ruling that the petitioner voluntarily served in the armed forces of Japan, ignored and violated the rules laid down by this court as to the quantum and burden and nature of truth, which is upon the government where the stakes are, deprivation, forfeiture of this most precious of rights to rights of citizenship, that the court below laid down an incorrect rule of law as to where the burden of proof was. It followed an incorrect rule of law so far as any presumption that might follow upon a showing that the petitioner, the petitioner served in a foreign army had developed conscription, and that in any event the court below ruled against the petitioner without complying with the standards imposed by this court in connection both with persons who were citizens by naturalization or by birth, namely the evidence against the petitioner in the favor of the government is not clear and convincing and unequivocal to warrant the forfeiture of this precious right. Now fortunately we have here a record of some 40 pages, not the 15,000 page record which your honor wrestled with in the eighth verse of the United States, and the record is before your honors, and in a moment I want to refer to it. I mean the record of the trial is compared to a brief of some 40 pages in that. First with respect to a couple of propositions of law, then I want to deal with these propositions of law as reflected by the facts in this case. We say that where the government says that an American has lost his citizenship by virtue of doing something which so far as the citizen is concerned is not accompanied by any knowledge on his part that he is forfeiting or abandoning or affecting his citizenship, that is a minimum the burden of proof that the petitioner has committed the act, Oscribe has set forth in the statute, voluntarily, that that burden is upon the government. Now additionally we say, I sort of an exception would it be in the ordinary cases, other types of cases? No, we say it is not exception to the rule in other types of cases at all analogous. We say it is the rule because we say that this court has defined expatriation as the voluntary renunciation or abandonment of the United States citizenship. We say that the act of expatriation, that's what's involved here, losing your citizenship, is an act which must be voluntary in order for it to consist of an act of expatriation. And if the government says, anyone here has lost his citizenship and has expatriated himself, it must prove that the act which the citizen committed was voluntary and not involuntary. In other words, we say one of the elements, one of the inherent and indispensable elements of expatriation is voluntary. The burden of proof of which is upon the government, the same as it has the burden of proving that the person did something with the act of Oscribe. So we do not say we're asking for an exception. We're simply saying that this is part of the definition of voluntariness, which isn't here in the definition. But in any event, even if we're mistaken about that, there is a serious question in this case with respect to the presumption which a court should draw, we say must draw. Where, in a case like ours, the evidence is the petitioner is a citizen of the United States born in the United States. The evidence is that he served in a foreign army, but that he served solely by virtue of construction. That is, he received an order from a foreign army to appear for induction. We say, we think all of the circuits, with the exception of the circuit below in this case, take the view that upon that showing, there has been a showing by the petitioner of involuntariness. And that the burden then shifts to the government to rebut the presumption of involuntariness, which that is showing a mix. And this was the showing here. But then we say finally, of course I'm not through my argument, our central point is that irrespective of where the burden of proof is, assuming now I'm entirely an error, assuming I'm merging upon your honors, which I believe I am not, an exception and that we're wrong about it. And that the burden is upon the petitioner in a general way to carry his burden of his case. We say that all of the evidence, some 40 pages, if looked at by the court, will bring this court as a minimum to have a troubling doubt as to whether there was sufficient evidence to justify the aperture of citizenship. And in Baumgartner and other cases, your honors have reviewed judgments both by trial and appellate courts, findings against the citizen, Baumgartner, a naturalized citizen in Gonzales, the last nationality case I argued before, your honors, which you decided, when born in the United States, you've taken the view, and in Gonzales, you cited Baumgartner, that if your honors, look at a case, even though it comes here and cased in the armor of finding by law or tribune, both of them, and you'll have a troubling doubt as to whether there should have been a aperture, you will reverse the judgment. Let me go on to what the facts are in this case. As I've said, one, this boy was born in the United States and was American citizen by virtue of their honor. He was also a dual citizen by virtue of no conduct on his part, by virtue of nothing that he did. He was a dual citizen because the government of Japan prior to the war said by its laws that every person born in the United States of Japanese ancestry was a citizen of that country. He was a dual citizen because, he was a dual citizen without his knowledge or consent, because his father, in accordance with the practice of thousands of East states in the United States, before he was 14 days of age, went down and registered his name in the Kosiki or in the Japanese family registered. He got his education in the United States. He's a graduate of the University of California. He went to Japan in 1939. He had no ties in Japan. He went to Japan as thousands of Nisei went to Japan at the request of their parents, their passage paid by their parents to secure some education and to have a visit. He went there for the purpose of staying two to five years, temporarily, and his passport application and his passport shows it. He went there as an American citizen and only as an American citizen. He at no time, either here or in Japan, ever asserted any right as a Japanese citizen or claimed any privilege or desired any benefit because he was a Japanese citizen. He is urged by the government that when he went to Japan in 1979, he knew that he was a Japanese citizen. The record does not support that. It supports the effect that when he was in Japan, he discovered that he was a dual citizen solely because his name was on the family register. He went to Japan in 1939. He was then under no obligation to render any military service in the United States. The United States construction law hadn't been passed. He couldn't have known that he was endangering his citizenship when he went to Japan or when he was conscripted to the Japanese Army and the Nationality Act which provides for his loss of citizenship wasn't even adopted at the time he went to Japan. He was being supported by his father. And one thing he couldn't foresee is that his father would die three months after he was in Japan to leave him penniless. And in 1940, he received a notice from the Japanese Army to appear for a physical examination, and in March 1941, he was ordered inducted. Today, this was involuntary. Just as involuntary as this quote is often said, when a person receives a subpoena and he appears as a witness, he isn't appearing voluntarily. He is appearing under coercion. And the decisions have been uniform in recent years that where service in a foreign army is under coercion, it is not the kind of voluntary conduct which is indispensable to warrant a forfeiture of citizenship. Mr. Justice Holland, let me make one further explanation. The argument that a citizen's rights can be taken away from him completely involuntarily. Namely that if he serves in a foreign army, and he is conscripted in a foreign army and is coerced by physical violence in a foreign army, that nonetheless he loses his citizenship and that 401 CISO provides is the very argument the government made some years ago in a case known as Darcery's buses and nickels which we cite. And the court court of appeal there rejected the argument that it is either constitutional or believable that Congress, no matter its authority to overform relations and no matter its legitimate concern to prevent conflicts between this country and another, that Congress could go to that extent. The court industries versus nickels didn't say it. What I'm going to say now, Justice, if this court did the point is that this would be offensive to common decency and elementary fair play. So that we say up to this point, the evidence of involuntariness was reasonably persuasive. We say that it became conclusive as a result of further testimony. This boy testified, well let me perhaps withdraw that and develop the argument this way. The trial court found against the plaintiff, against the petitioner. And he did so we think as a result of a misapprehension after the duties of a citizen living abroad and a misapprehension after the applicable rules in this kind of a case. The trial judge was at the view that this petitioner lost his citizenship, although there's no question he was conscripted into the Japanese army because the petitioner refrained from doing certain things which the judge thought a citizen should do. The first place, the trial judge was at the view that the petitioner should have returned to the United States instead of staying in Japan. We think this is utterly unrealistic and quite unfair. In the first place, we weren't then not at war with Japan. We didn't even have a conscription law. The United States government has recognized dual citizenship as Mr. Justice Frankfurter said a few moments ago. There he was in Japan and he got a notice to serve in the Japanese army. At that time, such service was not inconsistent with any allegiance he had to the United States. And certainly he cannot be charged with the lack of prescience to foretell that a couple of years afterwards there would be a war between the United States and Japan. He made no effort to return to this country but he explained the reason he did it is because he was penniless. Funds from his father had stopped. He went to work and he was earning 70 yen a month, $15 a month, and he didn't have the fare to get home so he stayed on. And of course, if he attempted to leave after he got a notice to appear for physical examination, well, certainly the same thing would have happened to him that happens to Americans who try to leave 2, 3, 5, the draft. The trial judge held it against him that he didn't do one other thing, that he didn't do three other things, that he didn't go down to the United States consulate and assert his rights there. And there are two answers to this claim. One is that he, as he testified, had a friend who worked in the Embassy and the United States Embassy according to this friend who do nothing for persons who were in Japan. Some intimation, some claim is made by the judge and some intimation appears in the government's brief that had he gone down to the United States consul, the consul could have granted him some relief. The fact of the matter is, as we point out in our brief, that the State Department had formally announced that it would not help any persons in Japan who were being drafted into the Japanese Army. Furthermore, he testified that he didn't protest to the Japanese authorities because he was afraid. He was afraid not only of the penal sanctions, which accompany the conscription law of Japan, but he was afraid of extra penal sanctions by the Kempitai, the Japanese military police. That he knew that the boarding house where he was living had been visited by the Japanese military police. And that he had heard rumors, he didn't know whether they were true or not, that persons who attempted to evade the Japanese military system. This is 1940. This is while Japan is under control as we... which is a matter of common knowledge of a ruthless military cast that he had heard that the Kempitai had pursued some persons who were evading the draft. And in one instance they suspected that a person was hiding in a trunk filled with straw and they bananted the trunk and killed the person who was in it. Now he didn't see this, but he was afraid of it. And we have submitted to the clerk of this court documents, official reports of the United States government through SCAP, Supreme Commander of Allied headquarters, General McArthur headquarters, with respect to the conduct of the Kempitai, as far as the Japanese people generally were concerned, and particularly the Nisei who were living in Japan. Now the judge went further. The judge said that when this boy went to Japan, he went there for the purpose of doing his hitch in the Japanese army. There isn't the slightest evidence to warrant any such finding or any such opinion. The difficulty, as I view it, with the judge below, if I may be both ambitious and serious at the same time, is that he gave too much credit to the University of California. This boy had graduated from the University of California and because he was a graduate from the University of California and went to Japan when he was 23, this judge said this boy is a bright man. He said he is a graduate of one of our greatest institutions of learning in this country and so he proceeded to accord to this petitioner a knowledge of political affairs, a wisdom pertaining to them, and a prescience of possible conflict between the United States and Japan as a result of which he felt this boy knew more than met the eye and therefore he arrived at the conclusion that he must have known many things which were not clear and therefore he lost his citizenship. As long as there were extra credits or they were cut out from this record the testimony of the petitioner, what would there be left in the record? If that testimony were cut out there would be nothing in the record because the only testimony comes from the lips of the petitioner. If the trial judge disbelieved the petitioner then there is nothing in the record to warrant a forfeiture of citizenship because then there is nothing in the record that the petitioner has acted voluntarily and the government hasn't carried any burden not even the most minimum burden which this court has said it must carry in order for a loss of citizenship. What was there? What was the residual of the testimony of the petitioner on the basis of a cross-examination? They disbelieved the petitioner while the trial judge would disbelieve a petitioner and he would give an expulsatory or favorable testimony, a negative testimony in case maybe he made out against him on cross-examination. In a brief word I think all of the cross-examination elicited was one, was some of the things I have recounted that he was a graduate of the university that he knew that Japan was engaged in war in Manchuria he denied that he knew that he was subject to conscription and the judge however makes a finding that he did know that he was subject to conscription in Japan the further import of the cross-examination would be to the effect that he communicated with his family and with friends in the United States from which and he was asked whether or not he didn't know that there was a draft in the United States this was after 40 he said no, they didn't tell him that now I can't see much more I'm sure the assistant general or the assistant general will see much more in the cross-examination will answer your honor's question better than I May it please the court like Mr. Wehran I intend to devote myself unless the court desires to hear arguments on the question of constitutionality solely to the issue of the burden of proof of duress and the quantum of proof of duress what is sufficient proof of duress in a case such as Nishikawa not the record show yes not abstract no, no one in the basis of the facts in this particular case the general issue of who has the burden of proof and the general issue of what is the quantum of burden of proof is important not only in this particular case but it arises very frequently in expatriation cases both under the 1940 act and under the later act of 1952 so it is a general problem which is troubling the courts in this field if I may state summarily first what the government's position is and then try to elaborate it I think it may be helpful and I would like to stress at the outset that when I state what the government's position is I am basing that position on three sources one source, a very important source is the legislative history of the 1940 act which we believe bears out our view of the burden of proof where the burden of proof is and the quantum of proof the second source is prior decisions of this court in the particular field of expatriation and the third source is analogous and comparable provisions and other fields of law the statute itself except the words of the statute shed no light the word voluntarily does not appear in the statute the light is shed by the legislative history and by the decisions of this court and the lower court summarily what our position is is that the citizen claimant has the burden of proving that the act of expatriation which he committed an act which the government was proved but he has the burden of proving that that act of expatriation was done involuntarily in order to excuse himself from the effects of that act that's the first proposition yes, the citizen claimant I call him the second let's see if I understand that you say that if the government proved the external fact that he joined the foreign army the external fact that's right and the claimant that we can't prove we put in no proof that the government that's right I would say this that in certain acts of expatriation there is a subjective element such as that's right the second proposition is that the citizen claimant petitioner here, Nishikawa does not fulfill his burden of proof by proving that he was conscripted that is not sufficient that if all he proves is that he was conscripted that is not sufficient that the case goes against him and in favor of the government my third proposition is in relation to this particular case that all that Nishikawa has proved as the case comes to this court after a trial before district court and findings by the district court affirmed by the court of appeal as the case comes before this court all that Nishikawa has proved is that he was grafted into the Japanese army in 1941 and if I am right on the first two propositions he cannot make a case by proving that he was conscripted I would stress now before I go into when I go into the there's a fourth proposition which we also stand on which I probably won't have much time to go into but which is expressed in our brief that in this particular case regardless of where the burden of proof is and regardless of what the quantum of proof is the trial judge found irrespective of the burden of proof that Nishikawa's entry into the Japanese armed forces was voluntary so that in this particular case if the court wished we believe that it could pretermit the issues of burden of proof it could find that even if the government had the burden of proof that burden of proof was satisfied yes Mr. Justice our position is that even if whoever has the burden of proof if you just look at Nishikawa's own testimony which is all that there is in this case it is sufficient to find that his entry into the Japanese armed forces was voluntary let me go if I can to the facts in this particular case but before I do I would like to stress the fact because I think that Mr. Wehran did not emphasize it for reasons which are clear from his point of view that the trial judge did not believe Nishikawa's testimony that he was frightened he did not believe his testimony that he refused to do anything to keep himself out of the Japanese army because he was afraid of the secret police or afraid of anything else this was a man who appeared before the trial judge he was a witness on the stand and the trial judge said explicitly I do not believe his claim that he didn't of terror and whatever may be the power of a court of appellate court to review findings of fact by a trial judge in an expatriation case certainly the credibility of the witness is still with him in the hands of the district court this court said that in a denaturalization case the narrow case they said that credibility still remains with the district judge and so if I may I would like to state the fact in this case in that light the facts most of which I shall state first are undisputed was that he was born in the United States in California public schools here went to the University of California got an engineering degree and graduated in 1939, in August 1939 he went abroad to Japan at the instance of his father paid for by his father for the purpose of studying in Japan for a period of two to five years he did not know Japanese written characters he apparently knew Japanese as a spoken language he did not know written Japanese when he got over there he hired a tutor studying written Japanese shortly after he got over there he apparently got there in August 1939 in November 1939 his father died and his testimony was that he then was cut off from income from the United States and he had to take a job which he did he took a job in an airplane plant which he kept until he was inducted into the Japanese Army now the district judge also made a very specific finding of fact in his findings of fact when Nishikawa left the United States in August 1939 to go to Japan he knew that Japan was at war had hostilities in Manchuria and that he knew he was liable to be drafted into the Japanese Army that he knew he was a Japanese citizen as well as an American citizen that he had to do a nationality as Mr. Wehren said what evidence did he base that finding on? he based it on Nishikawa's own statement of Japanese citizenship now that statement in the colloquy in the record the examination is this when you went into the Japanese Army did you know you were an American a Japanese? yes, that's right well that's right at that point on what evidence did the judge use to support that finding? well presumably the judge used the fact that this was an intelligent man that he went to Japan for some reason that he testified that he knew he had Japanese citizenship when he got went into the Japanese Army it isn't qualified to say that I didn't know it before the question was when you went into the Japanese Army did you know that you had Japanese citizenship the answer yes I knew I had been registered now that doesn't exclude the fact that he knew it before he went into the Japanese Army did you know it when he left this country as you said? I think that the evidence is what I've said that a trial court can properly and did properly face that finding on the knowledge of the man's intelligence the fact that he went to Japan which people don't ordinarily do unless to study Japanese language and literature unless they have some connection with Japan that he knew that Japan was fighting in Manchuria he knew that he was by the time he went into the Japanese Army he knew he was a Japanese citizen I think that's sufficient finding that he knew when he went abroad that he was a Japanese citizen a dual national and that is the trial judge's point now in June of 1940 which is a little less than a year after he got to Japan he was notified that he what was the evidence to the effect that he knew he was a Japanese citizen at the time he went into the Army no I don't question it there but I mean just what is the character of the evidence that the judge used to relate it back to 1939? It's a general question which perhaps unfortunately the US Attorney prefaced by saying when you went into the Japanese Army but the answer is a general answer it's on page 34 of the record at the bottom of the record after the Japanese Army Mr. Nishikawa you were a national Japan is that correct answer? Yes I was a national of Japan because my father registered at the time of my birth in the family registered and that plus the other elements plus going to Japan his intelligence all these other things was a foundation for the judges finding that he knew when he went to Japan that he was a Japanese national and subject to the draft the same evidence plus the fact that it was common knowledge that Japan was engaged in hostilities in Manchuria and that Japan like many other nations of the world had conscription I think the judge was entitled to and did take into account that common knowledge which he would assume that Anisei who went to Japan would know about there's also evidence that he made no attempt to check whether he was subject to the draft or not he also entered into the court's finding he was yes he asked and he denied but again that's an issue of credibility the judge said I do not believe yes we think we think taking everything into account what I've said plus the demeanor of the witness and so forth there was sufficient evidence there would be sufficient evidence for a jury to find beyond a reasonable doubt that he knew of this fact when he went to Japan now in June 1940 he had a physical examination which he took he was not inducted into the army until nine months later in March 1941 there's a period of nine months now during that period of nine months there is no doubt because he admitted it that he did not take any of the following steps he did not find out from any American official at the consulate what to do whether he was subject to the draft or was there anything he could do he did not ask any Japanese official whether he was subject to the draft or whether he could get out because he was an American official he did not seek to renounce his Japanese nationality which others had done perhaps it was a difficult thing but he did not seek to do it or to find out whether he could have done it he did not seek to find out whether he could return to the United States whether he would be given money by the Americans or some other way I'm not saying between June 1940 and March 1941 he was inducted in March 1941 yes now how much of an influence against this in this law that during that period he didn't take the affirmative step I don't renounce any responsibility on the Japanese law because I'm an American because it has to be fair in principle, actuality yes I think if you will take the great mass of cases you will find and we have tried to set out in our supplemental brief all the appellate cases on this subject you will find out that some efforts are made and as I'll try to get to later Congress expected some efforts will be made they might not be successful I'm asking, I just try to face myself in that situation and maybe I'll make the wrong attribution what the feeling and dependence is on others made the attempt I should say right now because the other side's latest brief seems to think that we take the position that the man had to, shall I say scream from the house top, no that's right the whole proposition is that Congress said you've got to show some resistance to going into the Japanese army in order to show lack of duress you've got to show that you've tried to keep out in some way we don't expect you to be a hero or a model we have to see something which indicates that you didn't want to go in at this point, just after the pleasure we do ask you what I'd like to know whether we can make any particular note on the basis of the experience that the department has had or otherwise of what were the conditions the run of conditions in Japan in compelling people to enter the Japanese army people of Japanese stock I think I have difficulty with the problem of judicial notice because a large opportunity was granted to experience counsel Mr. Warren is probably the most experienced counsel in this field to present evidence in the district court which could have been qualified by the government or contributed, this was not done it has been done in other cases it was not done here I should think that in other cases it might well we think not we think not because in each case the government may have we had no opportunity to bring other things in here which we didn't do what was brought in other cases he's brought a conglomeration of other cases we're just saying are you saying that I must rid my mind of any notion that I'm the older Japanese made it almost impossible for a lad in this situation no, Mr. Justice I think you can assume that the Japanese ordinarily forced people yes, but I do not think you can assume that other people other dual nationals in his situation did not make efforts to get out or to stay away or to get protection or to come back to the United States or to renounce their Japanese nationality that I think you cannot assume on the basis of judicial notice may I ask this question Mr. Davis to the American consulate after he received notice to go into the Japanese army or to come for physically examination what do you have any right under international law through our consulate to be sent home probably not Mr. Chief Justice but the point that Congress was interested in the point that Congress was interested in is seeing whether he made the effort it might be that he would have to go into the do a feudal thing yes, because they were trying to take your citizenship away from him because he didn't do a feudal thing they were trying to separate the sheet from the goats they were trying to separate those who really made the effort made what effort they could in the particular circumstances and from those who didn't who didn't indicate an attachment to the United States are you saying that they wanted some short good faith yes, perhaps if there is no if there is no legal right for him to go home if it would have been dishonored and if he would have put himself in difficulties with the Japanese regime does the government expect him at the expense of his his safety to go to the American Council and ask them to see that he goes home when the government knows that it can do nothing for him Mr. Chief Justice I don't accept the last statement you made that it would put him in difficulty other people did or nobody had any difficulties well I can't say they didn't I don't know but other people did there are and other people did leave did he say anything did he make the kind of assertion that you were apathetic and say you couldn't make no, he did not he said he did not he excused it did he explain that's the prior life well he said he was afraid that the Japanese police would get after him and the judge disbelieved those statements I thought he said also he was working out in the country with many miles from the city that he didn't read any Japanese papers because he didn't he didn't understand the characters and that for that reason he didn't know oh yes but he didn't say that the only reason he gave for not trying to find out about whether he was going to be drafted or not drafted or according to the American Council it was the fact that he was afraid that there were rumors he said which might have been true he was never himself personally contacted by any Japanese police officer he said that he was never he never personally came in contact with any Japanese police officer he had no personal experience which would have led him to believe anything bad would have happened to him no just as I don't think it had to because on the basis of his own testimony and the way he put it and the demeanor evidence which the judge had the judge could disbelieve the statement yes he said that he talked no evidence was offered by the government that was the truth they couldn't do anything for him they couldn't keep him out of the Japanese army but there were things that could have been done people did return to this country after they were summoning the Japanese army between the time of summoning and the time of induction perhaps it was illegal under Japanese law I don't know but it was done and so that and even before he was after all he didn't he only received the notice excuse me no the records are not in this in this case in view of your question Mr. Justice I feel justified in calling account of the material which the petitioners council has filed in this court this was not introduced at the trial court it was material from other cases which was introduced in the court of appeals and which has been filed in this court we do not think it is properly part of the record but I did go over it and in one of the depositions in the cases filed by Mr. Wehran here in another case in another case the question you knew prior to the war for about a year council was advising all American citizens to leave Japan didn't you yes I did isn't it true that there were in addition that there were in addition to official statements by the State Department that among the Japanese people in this day there were rumors in general talk about the fact that American citizens should leave Japan yes he was ordered for examination more than a year yes it was June 1940 it wouldn't necessarily conflict but he wasn't inducted until March 1941 but he was ordered before that a year before we he was given a physical examination I don't know whether that I don't know and the record doesn't show whether that's ordering up and I don't know the only law of Japan that appears in the record doesn't say it says anybody who doesn't come into the barracks when ordered it violates the law of Japan it seems this category is ordered up for examination under our law it is the difference it is in our view yet if I may I would like to because we think it's very important point out one that this court we believe has already held in 1953 in the Okamura and Morific cases in 342 United States that conscription alone is not sufficient because there the court sent it back though there was undisputed proof of conscription of two Japanese who entered the Japanese army there was undisputed proof the court sent it back for findings and investigation as to the other elements so all the circumstances of the case I think the court said and if I can I'd like to get to the legislative history because we haven't said it out yes the Murata and Okamura case 342 it's Atchison against Murata and Atchison against Okamura Procuriam Decisions of the Court the legislative history is stronger than we set it out in our brief as I had occasion to find out when I was preparing for our learning the reason it is stronger is that there are proof we believe of two factors one factor is that the congress did not believe that conscription alone would be enough proof of direct and the second factor is the congress thought that the burden of proof of duress should be on the citizen claim those two elements of our case now what about conscription say that's not in your brief that particular citations are not in the brief there's a general reference to the legislative pardon me can you give me the citation they're in the brief at page 30 or I thought that they were not in the brief the quotations I'm about to give are not in the brief the quotations are somewhat strike the pages are given in the brief now when this particular provision of the statute was before the committee and the representatives of the various departments were there and I should say that in the legislative history of the 1940 act one very important element of fact one very important source of legislative history are the hearings because the bill had been drafted by the cabinet committee of which the solicitor general spoke in the last case and the representatives of the state department of labor department justice partner right there in with the committee on immigration and naturalization and when the bill did get to the houses of congress there are constant references to the health of the of the officials of the three departments and so it's fair to go back to the hearings to see what occurred there as part of the important legislative history of the act now when this particular provision joining a foreign army came before the committee the state department through its representative Mr. Flournoy the assistant legal advisor wanted to make it conclusive of that a man who joined the foreign army of which he was also a citizen couldn't show duress at all and he said they're always trying to show duress he said and they're always trying to show we ought to make it conclusive that if he joins the army of another country which he is a citizen he is automatically expatriated whether he did it voluntarily or involuntarily and the war department supported that position now the labor department and the justice department opposed it and the grounds of their opposition are very important to my argument because their grounds were we ought to let him have an opportunity to come in and show that though he was drafted or though he entered the army they put it always in terms of give him the opportunity to show I think he ought to have the chance to show which is as clear an indication of where the burden of proof could lie in the terms in which congress was considering it as there could be the labor department and the justice department succeeded in their view congress did not adopt the view of Mr. Flournoy we think he must take together with that action of congress the legislative background which is he ought to have the opportunity to show he ought to be have a chance to show the burden is on him that would be that would be invalid Mr. justice under the provisions of the constitution but this is not a criminal offense this is an entirely different kind of statute and the I think congress would go away yes it may raise a question but we think that in the life of the previous decisions of this court which are cited in our brief there is no constitutional objection to what doing what congress did Mr. Davis I don't know the pulling following this are you giving us the arguments dealing with burden of proof would go to the interpretation of subsection C or what yes it goes to the interpretation of subsection C that congress intended when it enacted subsection C that the government proved the act of expatriation but that the citizen claimant have the burden of proof of showing that he performed the act under juris although there's nothing at all explicit that they're dealing with burden of proof that's right that's right I think since the statute is neutral on its face it's appropriate to go back to the legislative history to see what congress had in mind and that is what I've been trying to present to the court where congress says nothing thinking off the top of my head why are we at all governed in respective matters of burden of proof why anything that's in the legislative history ultimately it's a question of interpreting the statute and congress can do it explicitly or it can do it implicitly for instance in this case congress deliberately did not put the word voluntarily into section 401C which was suggested to it it did not put it in there how you're saying you having the burden of sustaining the constitutionality of the statute which shuts off all explanations that's right the government by saying that yes he may prove for us to enter into an army you have a different kind of a statute and if Congress said we don't care why he's in the army for us to not that's right mr. justice the 1952 act does have a provision just to the kind you said and that is not of course yet that's not the idea that's not before we want that with relation to conscription it seems relatively clear from the hearings of the committee and from some of the statements on the floor of the house that congress knew that men would be conscripted into foreign armies and they did not think that fact alone would be enough of an excuse again there was quite a discussion between the various people of the committee and the representatives of the labor department the foremost ones and saying give the man a chance to prove that he did what he could were also the ones who said of course if he puts his head into the lion's mouth then he should be expatriated if he has gone there knowing this will happen to him as he will be drafted then he should be expatriated assume that war breaks out and he is drafted I would certainly let him make a showing that that was against his will because American citizenship a lot are these all individual legislators no these are individual members representatives of the state and labor department when it got into the congress there is either adoption of what the committee of the cabinet said or are there any independent someone in charge of the bill in either house two both things occur one, both the sponsor in both houses Senator Schwellenbach Congressman Reese and Congressman Dikstein referred consistently to this committee at which the representatives of the various departments had appeared Dikstein was chairman of the committee and Congressman Reese of Kansas was the ranking member who had a great deal to do in the drafting of legislation and he referred constantly I can't say that they said we adopt everything that said but they in essence adopt to the general view of these things that I've been saying and also there is one slight reference on the floor of the house two slight references which are significant and that is in colloquies Congressman Reese who was one of the leading sponsors of the bill referred twice to men called to serve in the army of the other country now the only time you're called back is when you're conscripted or drafted and so that is an indication on the floor of the house Mr. Justice Harlan we do not have these citations in our brief so if I may I would like to give them to you appear at 86 congressional record 86 congressional record 13248 and 13250 let me ask you one more no my argument is that fact alone shall not show that he went in involuntary that he must then go further and show other things which bear upon the issue of voluntarily well we think that there is a very rational connection between the rational reason for congress to impose the burden of proof of such a personal thing as voluntariness and conduct upon the individual rather than upon the government so we think there is no violation of the tote case which dealt only with an irrational presumption which had no relevance to who knows best what the situation is or rational inference from other facts Mr. Chief Justice if I might have the indulgence of the court to say one further thing because it is not in our brief at the one reason why congress adopted the rule that we believe that they did adopt is that at the very same time and this is referred to in the house debate at the very same time they adopted a very easy short form renaturalization proceeding for people who had expatriated themselves by serving in a foreign army that section 317 c of the 1940 act which is not in our brief 317 c in the same act in the same act that's right and it was referred to constantly on the floor of the house when people said how harsh this is you're saying that a man who goes abroad and serves in the foreign army gets expatriated the answer was well maybe so but he can come back easily now of course he must meet the ordinary provisions of exclusion law provided that he could come back without quote you know but he had to meet the ordinary provisions for good character and so forth of the immigration law and I should say I don't know the reason why it wasn't done that the petitioner in this case could have availed himself of that provision until it was repealed in December 1952 he did he didn't do it and perhaps his council or some other person didn't know about it but it was available to him until it was repealed by the new act in 1950 what is the history of the piranha and what can you repeat the history is that Judge McLaughlin in Hawaii made more extensive findings of subsidiary findings which the government believe proved duress but Judge McLaughlin then refused to find duress as an ultimate fact and held the statute unconstitutional again we did not seek to appeal the case for the reason that the subsidiary findings of duress which Judge McLaughlin had made were precisely the same kind of findings made by district judges on the west coast generally and other district judges in Hawaii which the government had accepted and which had not appealed to the Ninth Circuit but there were further findings than there were in this case but further findings of subsidiary findings of duress as to what happened to them was it an awareness? a matter of fact in New York, Camora and Morata cases as I think perhaps this list has said Judge McLaughlin found that there was no duress and the statute was unconstitutional the government did not appeal there are both these petitioners those persons are now American citizens that this petitioner would like to be and if this petitioner remains an American citizen then the 17C is now a long of a law it will be only by virtue of the justice or generosity of justice of this court now I mean if he loses this case he's lost his American citizenship and he's on his way back to Japan that's what I'm trying to tell you now then to answer some questions asked by justice of the court to the problem of believing the petitioner it is true that the district judge said he didn't believe the petitioner that's what the district judge said also in the Gonzales case but it's impossible to tell from what the district judge said what he believed and what he didn't and what the solicitor has done is picked out the things that he doesn't like and say that the district judge didn't believe them and of course as already stated I believe the petitioner completely and it's considered the petitioner is a citizen of the United States and if everything else is rejected from the case the petitioner remains a citizen of the United States and the judgment should have been for him the trial judge may believe things that are adverse to your witness you just believe everything else yes he could but I'm saying the record isn't clear in fact that's the common thing about lawyers now a question was asked by Mr. Justice Warren as to what the State Department's position would have been on page 28 of our brief there's a reference to a statement appearing in a State Department publication page 28 in which the State Department said it is not the practice of the State Department to make representations with respect to dual citizens with respect to their obligations to other countries the solicitor has said that a number of persons have returned from Japan presumably after they received word of construction I know of none I do know that the law of Japan which is set forth in the transcript at page 23 article 74 and is in in this record specifically provide that any invasion of military service by deserting or hiding and so forth will be punished to penal servitude of three years or less and this is aside of any non-penal sanctions which might come from the Kempeitai page 28 excuse me page 23 of the record are you going to rest on Mr. Horsey's argument on constitutionality because this statute's got a feature that is good and namely dual nationality I'm going to rest on his argument to this extent that in his brief he makes the distinction between a person being a dual national through fire of foreign government or conduct by his father when he is innocent and voluntary action in acquiring dual nationality in other words we would concede that if this petitioner did some voluntary act acquiring dual nationality he would be in a very different position from what he is now but we say the no such thing in this record now with respect to the matter of judicial notice and the matter of conditions in Japan I appreciate the compliment the solicitor paid me as being one qualified to try these cases I did not try this case one of my younger colleague did he was just out of the law school and he neglected to offer some things that were often other cases I am not here to cast stones on that institution in any event in any event you are we have in an appendix to our brief which is the blue brief given to the court extracts from official government documents with respect to conditions in Japan and the role of the Kempeitai we think they are the subject of judicial notice and they are to the effect that one who didn't comply with the conscription law of Japan not only ran the risk of going to jail but took his life in his own hands as far as the conduct of the Japanese military police are concerned and now one final word in mandolin vs. action this court had before it an American who served in the Italian army and who took an oath of allegiance while he was in the Italian army in that case the attorney general as well as the general confessed error with respect to that portion of the case because the attorney general had ruled that with respect to the taking of an oath in the Italian army and referring to a matter which appears on page 24 of our blue brief the attorney general had ruled the choice of taking the oath or violating the law for a soldier in the army of fascist Italy was no choice at all and our position is that under all the evidence in this case who happened to be a dual citizen by virtue of the act of his father when he was an infant in Japan when he received a one-way ticket an order of conscription the choice of his not complying with the order was no choice at all he was under duress and we think the evidence in this case disposes duress and that the petitioner is entitled to his citizenship whether the congress could compel a dual citizen to make a choice for the American citizenship that is not in this case no but it bears down the thing in the last put