KOREMATSU VERSUS US


Of the 120 thousand Japanese and Japanese-Americans
who were subject to the discriminatory concentration camps and other measures, only 12 openly resisted. Fred Korematsu ends up being caught on a street
corner. He was apprehended in San Leandro, uh, California.
He was tried and convicted. And uh, he challenged the legality, the constitutionality,
of- of his order to report to an assembly center. He was, at the same time, standing up for
the rights of every single one of those 120 thousand souls who were equally unjustifiably
treated. My admiration for someone who had the stubbornness,
the willingness to be idiosyncratic, the willingness to rebel despite the fact that his community,
the Japanese community as well as the public, were supporting this large movement in the
name of patriotism during World War II. And so it really took an incredible individual. I believe in the 1950s, Fred Korematsu’s daughter
came home from school and said they talked about a case involving someone named Korematsu
in their history class. And she wondered, well, look, are we related to this Korematsu?
And so he had to say, well, yes, that was me. United States of America was suddenly and
deliberately attacked by naval and air forces of the empire of Japan. A date which will
live in infamy. Franklin Delano Roosevelt issued executive
order 9066 on February 19th, 1942. The rationale behind the policy was one of
national security, in particular a fear that the west coast would be invaded. Japanese nationalism among ethnic Japanese
in America was quite high, and demonstrated in the amount of money raised for the Japanese
war effort, and support for Japanese militarism generally. So for American policy makers,
including the military, there was sort of an expectation that the majority of our ethnic
Japanese would be sympathetic toward Japan. The order basically gave authority to military
commanders to issue orders, orders that- that could exclude persons um, from areas that
they designated. Shortly after the executive order was issued,
Congress, by overwhelming bipartisan vote, passed legislation that implemented the executive
order, and also created criminal penalties for anybody who violated not only the order
itself, but more particularly, regulations that were issued by military authorities under
the order. There is a clear distinction between relocation
and internment, though many writers blur that. Relocation is what befell most of the Japanese-Americans
and the other ethnic Japanese. My father, a resident alien, was not interned, he was
relocated, however. The executive order itself simply created
exclusion zones. And just as the executive order delicately avoided saying who would
be excluded, it also strategically avoided saying what would happen to the excluded people. Relocation was forced upon 90% of the Japanese
on the west coast. They were absolutely unable to find other
places to live. Other states issued decrees from the governors and other officials saying
where- Japanese-Americans are not welcome here. They used much less diplomatic language
than that, using racist slurs. And so the only place to put these excluded individuals
were these camps. There was work, they were paid for it, and
were actually encouraged to leave the centers. After a few months, uh, they could get passes
to leave. My parents would leave on weekends. These uh, residents could get out if they
could attend a college that was not in the relocation zone. It’s not as though they were
there on uh, extended summer camp or something like that. That would overlook the harshness
of the conditions. It was frightening for those who were facing
a series of orders, basically because over a relatively short period of time, they had
to make plans and to report, with no knowledge as to what the future would hold. We are talking about horrifyingly huge numbers,
by far the largest number of people who have ever been detained, imprisoned in concentration
camps in United States history. About two thirds were full fledged American
citizens who had been born in this country. Some were third generation in this country. And as a result of that, you had massive losses
in terms of property losses. Houses had to be sold. Of course, my parents
had to give up their business and leave. My parents wound up in the Puyallup Fairgrounds
outside of Tacoma, where they were housed temporarily while the relocation centers were
being built. Uh, my dad for example lived in [inaudible]
California, a central California community. And he and his family were required to report
to uh, the Merced county fairground area, and to be housed there on a temporary basis.
Uh, the assembly centers were often at fairgrounds, uh, where they used the stalls of animals,
basically, to create rooms for families, uh, to reside in. After the segregation order, my parents were
sent to Minidoka, which was a camp in Idaho. It was made a segregation center because the
ethnic Japanese often treated their fellow camp uh, inmates who were vocally pro-American
as uh, traitors to Japan. And they would often inflict acts of violence on them. Every single one of these camps was in an
extremely dangerous, unpleasant, grim, difficult, challenging environment. The conditions of
confinement were horrific, lacking basic comforts and safety provisions. A number of the people
were killed merely for having allegedly walked too far beyond the barracks. Fred Korematsu was a 23 year old American
citizen who had been born in this country to uh, parents who had immigrated from Japan
many years ago. Fred Korematsu worked in uh, San Meandro.
He was um, a welder. Fred was a patriotic American, and when it
became clear that the United States was likely to go to war, he learned the welding trade,
believing that that would make him of greater service to his native country. After the military orders came out, uh, Fred
Korematsu engaged in a series of acts which actually displayed his unusual nature. He did not want to go into a concentration
camp, so he took extraordinary steps to try to avoid this unjust ruling. He took on the name of Clyde Sarah, and altered
his draft card, uh, to have that name. He had minor eye surgeries so that his eyes
would not look Japanese, quote-unquote. People recog- his friends recognized him immediately,
so he was arrested. Fred Korematsu ended up litigating his case,
because shortly after being imprisoned, he was approached by, uh, someone who belonged
to the ACLU in the San Francisco Bay area. We were the only national organization in
the entire country that opposed this order in any way. The case went from the trial court, which
imposed the criminal conviction for a willful violation of the statute that supported the
military order, going to the federal court of appeals, which upheld the criminal conviction,
and then finally on to the US Supreme Court. When the Korematsu case came to the Supreme
Court, there was already the Hirabayashi case as precedent. Hirabayashi challenged that
curfew, and in a similar way was convicted. And in that case that went before the Supreme
Court, the Supreme Court upheld the power, the authority, of the military commander to
impose this curfew on national security grounds. What’s often not appreciated about Korematsu
is that it occurred so late in the war. Korematsu’s arguments largely rested upon
his individual rights. He claimed due process rights, um, he claimed equal protection violations,
a violation of search and seizure, and his claim was that the violation of these constitutional
rights should mean that his criminal conviction should be overturned. The United States Supreme Court decision in
the Korematsu case was split six to three, but what’s really interesting is that all
nine justices, the six in the majority and the three in the dissent, agreed on the legal
principles. What they disagreed on were the facts, and therefore how the legal principles
applied to the pertinent facts. The government relied very heavily on the
earlier outcome of the Hirabayashi case. It was in, however, a kind of dilemma in that
there was a final report that had been issued by the army. The army in its final report
had concluded that there was significant evidence pointing to a national security threat by
the Japanese communities, whereas the navy intelligence reports concluded that there
was an over-magnification by the public and others in the military of the national security
threat. There was evidence of the lack of such danger,
that not only was not presented to the court by the government, but worse yet, we now know
that uh, officials within the justice department complained about the failure of the solicitor
general of the United States, who signed the brief for the United States, who made the
oral argument before the Supreme Court, refused to present the evidence that there was no
military justification. Solicitor General Fahy was responsible for
the final footnote two in the government’s briefs, that said basically that the court
should rely upon the army’s final report only for its description of the internment and
the actions that occurred after that. I think, uh, Fahy’s significance is overrated.
I guess the charges that he suppressed a lot of information about the loyalty of ethnic
Japanese that might have uh, swung the opinion of the court the other way. I think it’s a
red herring, though, because Justice Black, in his opinion, cited enough information to
justify relocation, and he cited instances of self-proclaimed Japanese patriotism. What
would one think of a group of people who proclaim their support for the 9/11 attackers in the
United States? Majority opinion in the Korematsu case was
written by Justice Black, and it upheld the military order to the assembly center. It
was very careful in saying that it was only addressing the exclusion order that forced
the Japanese to report to the assembly centers. It- its ruling did not apply to the actual
internment camps themselves. And then it goes to state basically that it was important for
the government in terms of its war powers to be successful. And it pointed out that
in this case, you had harmony between the military order, the executive order, and the
legislation by congress. And o- of course, uh, Black never mentioned
the “ni hao” episode, uh, where you had a case of a Japanese-American who pledged his
loyalty to this Japanese pilot who happened to land on this obscure island in the Hawaiian
archipelago. One of the great unwritten stories of- of World War II is the effect this bizarre
episode on the military and national security uh, planners generally. There was a dissent by Justice Roberts which
looked at it from a due process standpoint and concluded that there was insufficient
due process here. The- the dissent that is most widely quoted and- and known is a dissent
by Justice Murphy. Justice Murphy applied a pretty straight forward application of what
we call a rationality test. In this instance, he would require that the
government action have a reasonable basis. And he did a thoroughly comprehensive analysis
of the facts that were before the court, including the final report by the army, and concluded,
based upon those known facts, that there was no significant threat established by the government.
And based on that, there was no rational basis. He said that we are approaching the abyss
of racism, and he actually compared the United States action to how the Nazis were treating
Jews and other minorities. The thrust of Justice Jackson’s dissent seems
to be aimed at the fact that he really felt that the military and the civilian spheres
should be kept apart, and that if the civilian spheres included judicial decisions involving
military orders, that that would create a bad precedent that might have a deleterious
effect on future individual rights. I would emphasize that the focus on the Korematsu
case really distorts its legal significance. One gets a general sense that what Justice
Black was trying to do was to minimize the opinion itself. Because on the same day that
Korematsu was issued, there was another legal case that was issued by the US Supreme Court,
a case called Endo. Korematsu should never be mentioned, uh, especially
by its critics, without also mention of ex-parte Endo. There, unanimously the court held that a-
an American citizen who was a loyal citizen, no evidence of- individual evidence of disloyalty,
could not be detained. So that meant that at least all of the American citizens who
were in these camps had a legal right to be released. Miss Endo was somebody who, like Fred Korematsu,
bravely challenged the discriminatory treatment, but she used a different strategy. She did
report to a detention center, aka concentration camp, and then challenged her imprisonment
under the writ of habeas corpus, which is the constitutional provision that allows anyone
to challenge any detention by the government as lacking in procedural or substantive justice. And its holding was that based upon the statute,
that a US citizen, Endo, could not continue to be held in an internment camp since the
government conceded in the Endo case that she was not disloyal. And so based upon the
statute, Endo needed to be released. Also, just before the court announced the
Korematsu case and the Endo cases, the president had announced the end of the Japanese internment
itself. They were not actually released, however,
until early the next year, 1945. And the camps, uh, one of the camps stayed open until quite
far into 1946. The political aspect of this was that Franklin
Roosevelt wanted to hold off the announcing of the decision until after the 1944 presidential
and other elections. After the court handed down its opinion upholding
Fred’s criminal conviction, he’d been transferred from his prison to an internment camp to stay
with his family who was already there. After the internment was over, he decided to go
to Detroit, and he lived for a while in Detroit, and within several years married a woman from
South Carolina. He then eventually returned back to the San Francisco Bay area where he
worked as a drafter for some small, local companies. Fred Korematsu’s conviction was overturned
um, in- in 1983 by a federal district court in San Francisco. The Asian Law Caucus decided
that it would bring forward actions based upon an ancient legal writ called a writ of
coram nobis. Under this writ, what the Asian Law Caucus alleged was that the government
hid information from the US Supreme Court in the original case of Korematsu. So the convictions were vacated, stricken
from the record. Notably though, the judge in that case had no power to overturn the
Supreme Court decision. So we can ask, well, what remains of Korematsu? There has been no case that has specifically
addressed the issue like Korematsu or Hirabayashi in terms of requiring the exclusion or the
internment of people based upon race. In Trump v Hawaii, Justice Roberts, it was
argued, may have actually overruled it. I- I don’t think that’s the case. Specifically
what he said is that it was wrong the day it was decided, and it has been overruled
by the court of history. Now, of course, Chief Justice Roberts I- is Chief Justice of the
Supreme Court, but I don’t think he’s the Chief Justice of the court of history, whatever
that might mean. Interestingly enough, constitutional law professors
and other experts are debating, as we always debate about everything, whether that literally
constituted an official overruling of Korematsu or not. Therefore, conceivably, as Justice
Jackson warned in his dissent in Korematsu, it might still be lying around like a loaded
weapon to be brought out next time we have a national panic and seek to target a particular
feared minority group. I think the Japanese relocation was really
a one-off, but that there are powerful emotions of loyalty and often disputed loyalty. Uh,
that should always be kept in mind. I personally am in disagreement of that. I
think that in times of war, especially in an age of terrorism, there is always that
possibility that extreme measures might be taken by the government in response to strong
felt need. We are never safe because the current danger,
the one that is threatening us right here, right now, is always going to be seen as being
different and distinguishable from what went before.

2 Responses

  1. Hayat Harram says:

    Are they refugees????

  2. Pteronarcys californica says:

    SCOTUS ruled the relocation of Japanese during the war was lawful.

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