The Resonance of Korematsu v. U.S.
May 21, 2008
A foreign enemy launches a catastrophic assault on American soil. The government detains suspected enemy allies as a preventative measure against future attacks. In doing so, government officials utilize unreliable blanket judgments grounded in ethnicity and appearance. The wartime hysteria creates an atmosphere of fear and hostility towards people of a certain skin color and descent. An entire population suffers through the humiliation of unsubstantiated claims, undue scrutiny, unlawful detention, and unjustifiable losses in civil rights and personal dignity.
This sad and disconcerting portrait is eerily applicable to both present and past. The tragic events of Sept. 11 changed how Americans see Muslim Americans, specifically those of Middle Eastern descent. Government policies against suspected terrorist supporters include warrantless wiretapping, indefinite incarceration, and the exclusion of legal representation. Likewise, Japan’s bombing of Pearl Harbor in 1941 altered Americans’ perceptions of Japanese American citizens, who, based on looks and a shared culture, endured accusations of allying with the Japanese Empire and subverting American forces. In 1942, approximately 120,000 Japanese Americans were ordered to isolated internment camps.
The recent news regarding UC Berkeley Law School professor John Yoo’s memo on torture, the incidents in Guantanamo Bay and Abu Ghraib, and the overall disconcerting lack of government accountability, all eerily mirror the wartime landscape that fostered the US government policy of “military necessity” six decades ago.
During this APA Heritage Month, we are reminded of Fred Korematsu, Minoru Yasui and Gordon Hirabayashi, who refused internment and went on to become defendants in the landmark 1943 and 1944 Supreme Court cases questioning the constitutionality of the Japanese American wartime confinement. In fact, San Francisco attorney Don Tamaki, a member of the pro bono legal team that reopened the trio’s cases in 1983, said the 1944 case Korematsu v. United States, “is more relevant today than it was twenty years ago.”
In 1942, Korematsu, then a welder in San Leandro, Calif., refused to obey President Franklin Roosevelt’s relocation order. After being apprehended, Korematsu sued the United States for racial discrimination and for infringing on his constitutional rights of due process. Appeal after appeal in the federal court system prompted the Supreme Court to consider the case.
In October 1944, Korematsu v. United States asked the Court whether the government was justified in temporarily suspending the freedoms of American citizens in the name of military necessity. Legal representatives for the United States cited a report by General John L. DeWitt that appeared grounded more in prejudice than military pragmatism. They argued that, if left unchecked, Japanese Americans would aid Japan and sabotage American military efforts.
Swayed by wartime anxieties, the Supreme Court ruled 6-3 in favor of the United States. To this day, Korematsu stands alongside Plessy v. Ferguson and Brown v. Board of Education as one of the most egregious Supreme Court rulings in its history.
But the book on Korematsu had not closed quite yet. In 1982, Peter Irons, a law professor researching civil rights, came across government memoranda that cited the complete lack of evidence for espionage by Japanese Americans. Irons contacted San Francisco-based lawyer Dale Minami, whose parents had been interned and who had written a policy paper on reparations for interned Japanese Americans. After hearing of Irons’ findings, Minami then contacted fellow lawyer Don Tamaki, and the two Japanese American attorneys together formed a pro bono team to re-open the Korematsu case.
The legal team cited numerous primary documents from government organizations that eviscerated certainty of Japanese American wrongdoing. The team illustrated that the government’s case in 1944 relied on racial presumptions over actual evidence. With this new evidence, federal Judge Marilyn Hall Patel ruled that the Korematsu case had been wrongfully decided. In her ruling, Patel stated that Korematsu: “stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.”
But while Patel’s ruling undermined the facts of the original Korematsu case, it could not overrule the legal precedent. “The thing that’s important to remember is that the Supreme Court has never reversed Korematsu v. United States,” Tamaki said. “The government appealed, then withdrew its appeal … that was an intentional maneuver so that the case would remain a lower-court case.”
Korematsu still stands as a legal precedent, although there is some dispute over its actual validity. Doctrines of “military necessity” or “national security“ could still necessitate President-backed suspensions of habeas corpus, due process, and other freedoms detailed in the Constitution.
In today’s murky times, we can look to the legacies of legal challengers Yasui, Hirabayashi, and Korematsu, all who displayed admirable courage and clarity. As Tamaki puts it, “The importance of even the most humble people taking a stand can result in something significant.”
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