Korematsu Lawyer: “National Security” Can Be a Bogus Excuse for Essentially Racist Laws
Special to The Hawai‘i Herald
President Donald Trump’s recent flood of executive orders are unnerving reminders of Executive Order 9066, issued 75 years ago by President Franklin Roosevelt, which resulted in the imprisonment of 110,000 Americans of Japanese ancestry. Two-thirds of those exiled from their homes — including my parents, family and their friends — were American citizens. They were denied the basic due process rights of notice of charges, the rights to an attorney and the rights to trials. Women, children, the infirm and the elderly — all were sent to indefinite confinement in the most inhospitable nether reaches of the United States in brazen defiance of the U.S. Constitution.
Gordon Hirabayashi, Minoru Yasui and Fred Korematsu challenged these military orders and lost their cases in the United States Supreme Court in 1943 and 1944 when the Supreme Court abdicated its responsibility to independently evaluate the bases for Executive Order 9066 and meekly accepted the military’s unsupported assertion that Japanese Americans constituted a potential danger to the country’s security. Without any examination of the underlying facts supporting the executive order, the Supreme Court essentially assented to the very dangerous proposition that military judgments are unreviewable by the courts during times of war.
This fallacy and the peril of this frightening proposition was exposed in 1983 when Gordon, Minoru and Fred challenged the government again, arguing that their convictions in 1943 and 1944 were affirmed as a result of monumental government misconduct, including the alteration, suppression and destruction of evidence by government officials who sought to win the government’s cases at all costs. The evidence contradicted the assertions that Japanese Americans posed a danger and that there was a need to exclude them from the West Coast states or detain them en masse.
Specifically, the 1983 cases proved that no such military necessity existed to justify mass incarceration; that not one Japanese American was arrested for espionage or sabotage; that official investigative reports at the time recommended against imprisonment; that the allegations of espionage advanced in the Supreme Court were totally false and manufactured; that the official reports were altered to influence the Supreme Court; and that the officials and lawyers in charge of the cases, with full knowledge of the falsehoods, chose to suppress, alter and destroy significant information and lie to the Supreme Court to affirm these men’s convictions, thus validating the curfew, exclusion and detention of Japanese Americans.
As Judge Marilyn Hall Patel wrote in her decision overturning Fred Korematsu’s conviction:
“Moreover, there is substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court. The information was critical to the court’s determination. . . .”
“Facts for the military justification were unsubstantiated facts, distortions and representations of at least one military commander whose views were seriously infected by racism.”
The misconduct perpetrated by the government and the failure of the court to scrutinize the military arguments affirmed one of the greatest miscarriages of justice and one of the greatest civil rights disasters in our country’s history.
The echo of history resounds today with President Trump’s arguments on Feb. 7, 2017, that his executive order barring immigrants from Muslim majority countries was unreviewable by the courts and was justified on the basis of national security. On Feb. 9, the Ninth Circuit Court of Appeals rejected Trump’s claims that his decisions were unreviewable by the court:
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
The Ninth Circuit Court of Appeals further added: “Courts are not powerless to review the political branches’ actions” with respect to matters of national security. To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that the government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war.
These statements offer some reassurance that the courts will not blindly adopt the same arguments accepted in the Korematsu, Hirabayashi and Yasui cases that courts could not evaluate the judgments of the military during times of war.
Without judicial review of governmental actions, our democratic system, installed with a system of checks and balances, fails, as one person — the president of the United States — can issue an order that can commit virtually any human and civil rights violation and enjoy immunity from judicial review. In other words, he can act like a dictator with impunity.
Further, from our lens of history as Japanese Americans, Trump’s justification of “national security” for the ban on immigration is eerily similar to the justification of “military necessity,” its rhetorical cousin that was used to rationalize the incarceration of Japanese Americans. It is the same rationale propounded by the government in the Korematsu, Hirabayashi and Yasui cases in 1943 and 1944 and the same claim the government is advancing today to discriminate against another marginalized group. It was wrong then, and it is wrong today.
As was proven in court and declared explicitly or impliedly by five American presidents and the acting solicitor general, as well as commentators, historians and those who were incarcerated, there was simply was no “military necessity” then, which means a popular and appealing catchphrase can be absolutely misleading and disingenuous. Not a single act of espionage or sabotage was committed by a Japanese American during World War II, and no act of terrorism has been committed by immigrants from the blacklisted countries to date. The conclusion is simple: “National security” can be a bogus excuse for essentially racist laws flowing from a long history of discrimination in this country. Asian Pacific Americans were the targets then; Muslims and Arabs are the targets today.
We were the Muslims of today for other reasons; we were not only the objects of an “unreviewable” racial profiling executive order, but were also the targets of the first immigration laws banning immigrants from a specific country — the 1882 Chinese Exclusion Act, and the 1924 act barring Japanese Americans. Coincidentally, one year after the 1882 act, poet Emma Lazarus composed her eloquent poem etched on our Statue of Liberty in New York Harbor: “Give me your tired, your poor, your huddled masses yearning to breathe free. . . .” Those words were a hollow invitation to Chinese and Japanese immigrants and are words of hypocrisy today.
I have come to realize that people don’t simply fail to learn history. They choose to ignore it. They choose to distort it. They choose to act in the face of those lessons because political expedience outweighs principles and lessons of history or their own prejudices and lack of empathy overwhelms any intellectual application of a “lesson.”
I have also come to appreciate and applaud the great courage of Fred, Gordon and Min, and Mitsuye Endo, all of whom challenged with courage and conviction the sinister program of incarceration of Japanese Americans. If Fred, Gordon and Min were alive now, they would be appalled at these executive orders. They would invoke their own experiences to fight against these injustices and they would stand up, speak out and fight, just like they did in 1942 and 1983. And they would exhort us to do the same.
Dale Minami is a lawyer and activist and a partner in the San Francisco firm of Minami Tamaki. Minami and his longtime law partner, Don Tamaki, led a team of primarily Sansei attorneys in bringing the 1983 coram nobis case that resulted in the overturning of San Leandro draftsman Fred Korematsu’s conviction for violating the World War II exclusion order. Minami has been involved in significant litigation involving the civil rights of Asian Pacific Americans and other minorities, including United Pilipinos for Affirmative Action v. California Blue Shield, the first class action employment lawsuit brought by Asian Pacific Americans on behalf of APAs; and Spokane JACL v. Washington State University, a class action on behalf of APAs that led to the establishment of the Asian American Studies Program at Washington State University. Minami received his law degree from the University of California at Berkeley and helped found the Asian Law Caucus and the Asian American Bar Association.