Echoes of History – 1942 – 1983 – 2017: From the Incarceration of Japanese Americans to the Travel Ban
December 7, 1941. The United States is suddenly and deliberately attacked by the naval and air forces of the Empire of Japan. A Day of Infamy. Within two months, President Roosevelt issues Executive Order 9066 which banishes 110,000 Americans of Japanese ancestry from the West Coast states, two-thirds of whom are American citizens. They suffer indefinite confinement in prison camps in the nether reaches of the country. No notice of charges, no right to attorneys, no trials. Japanese Americans are sent to live in horse stalls, ramshackle barracks in deserts behind barbed wire in abject living conditions. The old, the infirm, the children are all deemed national security risks. Their crime: racial ancestry.
The Supreme Court validated the curfew and exclusion orders aimed at Japanese Americans in the infamous landmark decisions of Hirabayashi vs. United States, Yasui vs. United States and Korematsu vs. United States, meekly accepting the military’s bald assertion of “military necessity” despite the absence of any acts of disloyalty or any proof of espionage or sabotage by Japanese Americans. The Court pronounces a rigid scrutiny test but it fails to perform any thorough analysis of the military’s claims.
Almost 40 years later, in 1983, along with a group of young lawyers,1 I represented Fred Korematsu in his coram nobis petition (“Korematsu II”) to overturn his conviction. This rare writ is limited to cases in which a “fundamental error” has been committed after a sentence has been served. Based upon evidence discovered by Professor Peter Irons and Aiko Yoshinaga Herzig demonstrating that the government had knowingly presented falsified and altered evidence of disloyalty and espionage by Japanese Americans, we filed the coram nobis petition in the United States District Court for the Northern District of California to overturn Korematsu’s conviction. Later parallel filings were made in Portland, Oregon for Minoru Yasui and in Seattle for Gordon Hirabayashi.
When we filed the petition the stakes were significant. Japanese Americans, along with allies of all colors, had sought redress and reparations from Congress for this monumental injustice. Opponents of redress argued that the Supreme Court had validated the exclusion and by implication, the detention, in the Hirabayashi, Yasui and Korematsu cases in 1943 and 1944. Losing these cases a second time would surely set back the redress movement. However, winning a judicial declaration of the government misconduct and lack of military necessity would discredit the validity of those Supreme Court decisions and undermine a central argument by the opponents of redress.
When our legal team stood in the courtroom on a rainy 10th day of November in 1983 to argue for overturning Fred Korematsu’s 40-year-old conviction, we knew that an extraordinary event would be unfolding. Judge Marilyn Hall Patel had the case reassigned to the “Ceremonial Courtroom,” a larger, more grandiose venue. Folding chairs were brought in to accommodate the more than 1,000 spectators, and reporters were stuffed into the jury box. The audience included many Japanese Americans, young and old, including former prisoners and Japanese American veterans of the US Army who volunteered while their families were incarcerated. The entire scene produced palpable electricity for Japanese Americans who were about to get their first day in court on the issue of their imprisonment.
Fred Korematsu, who lost his case in 1944, felt the weight of responsibility for a decision that essentially justified the incarceration of his people. The legal team felt that weight too, but understood that the powerful evidence of misconduct admitted by government attorneys in 1944 refuted the arguments advanced by the Solicitor General that Japanese Americans were dangerous or disloyal. The Supreme Court never saw the favorable evidence which the Solicitor General intentionally suppressed. Clearly, a fraud was committed on the United States Supreme Court in 1943 and 1944.
In the middle of the litigation, the government first offered a pardon to resolve Korematsu’s petition which he rejected, then offered a “Pardon of Innocence,” a government construct which would both forgive punishment and establish Koremtasu’s innocence of charges. But after we presented the offer to Korematsu and his wife, their response was what we had hoped for and reflected their integrity, resolve and principles – “We won’t accept a pardon from the government; if anything, we should pardon the government!”
We came to this moment in time after almost two years of work grappling with some difficult legal questions: How to overturn a 40-year-old conviction affirmed by the Supreme Court? How to prove that a fraud was committed on our highest judicial body? Can we introduce evidence so old that most of the authors and creators of the evidence are deceased? Can we show that the Justices of the Supreme Court would have reached a different decision if they had known the truth? Perhaps most importantly, how do we turn a civil rights disaster not well known in the American community into a tool to educate Americans?
I argued the case for my client with an introduction: “We are here today to seek a measure of justice denied to Fred Korematsu and the Japanese American community some 40 years ago.” The United States attorney argued that no legal or factual decisions were necessary. In an unusual accommodation, the Court allowed Korematsu to speak. In a strong, firm voice, he asked the Court to overturn his conviction so that what happened to him would never happen to another American again.
Judge Patel then ruled from the bench and stated decisively that the justification of “military necessity” for the executive and military orders were based on “unsubstantiated facts, distortions and representations of at least one military commander, whose views were seriously infected by racism.” She also declared that serious governmental misconduct resulted in a manifest injustice. With those words, she overturned Fred Korematsu’s 40-year-old conviction.
Following the Korematsu decision, Minoru Yasui’s conviction was overturned but without any explanation. Gordon Hirabayashi tried his case to a mixed verdict but received full vindication in the 9th Circuit in a strong decision by Judge Mary Schroeder. All three men had their convictions vacated and in due time, all three men received the Congressional Medal of Freedom, the highest civilian honor in the country.
The significance of Korematsu II and the Hirabayashi and Yasui victories are in the critical lessons taught about the role of courts and political power. The original Korematsu Court failed to demand justification for the military orders and granted virtually complete deference to the military orders and the President. The result was a civil rights disaster. By revealing the extraordinary misconduct undermining the government’s case during World War II, Korematsu II highlighted the dangers when judicial review becomes a rubber stamp.
For Japanese Americans, Korematsu II lifted the cloud of disloyalty and validated their political birthright to dissent. And, in a larger sense, the Court’s decision was a victory for all Americans. It taught America about the fragility of civil rights especially during times of international tensions. It reinforced our belief that civil rights must be fought for and are not simply guaranteed by the Courts or by any governmental institution. Civil rights are not gifts; they are challenges.
Fast forward: 35 years after Fred Korematsu’s conviction was overturned and 75 years after President Roosevelt’s Executive Order incarcerating Japanese Americans, the echoes of history resound today. In the battle against terrorism, President Trump issued an executive order banning persons from certain Muslim majority countries from entering the United States. He argued that his order was unreviewable by the Courts and was justified by national security. This time, however, both the Fourth Circuit and Ninth Circuit Courts of Appeals rejected those arguments which the original Korematsu decision endorsed:
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
State of Washington, et al. v. Donald J. Trump, President of the United States, et al. (9th Cir. 2017) 847 F.3d 1151, 1161.
The Ninth Circuit stated emphatically: “[C]ourts are not powerless to review the political branches’ actions with respect to matters of national security.” Id. at p. 1163. Quoting United States v. Robel, the Court observed: “[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal…. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile.” Id. To paraphrase Benjamin Franklin: A country which values security over liberty deserves neither.
The Supreme Court is scheduled to hear full arguments on the immigration ban in October. Through the lens of history, Asian-Pacific Americans remember the first immigration bans imposed on an ethnic group – the Chinese Exclusion Act of 1882, the Exclusion Act barring Japanese Americans in 1924 and the racial profiling of Japanese Americans during World War II which accepted group rather than individual guilt. President Trump’s justification of “national security” for the ban on immigration from majority Muslim countries is eerily similar to the justification of “military necessity” proffered in times past. History should teach us to be wary of the wrongs that can be perpetrated under the mask of sweeping justifications of national security. It should teach us that our courts need to exercise their proper authority in the checks and balances system. Without that balance, we veer toward losing the democracy we cherish.
 Other core members of the Korematsu legal team included Don Tamaki, Karen Kai, Judge Dennis Hayashi, Judge Edward Chen, Lorraine Bannai, Robert Rusky, Eric Yamamoto, Leigh-Ann Miyasato, Marjie Barrows and Donna Komure.