An Opportunity to Learn About the Continuing Importance of the Korematsu Case

Karleen C. Chinen

During a visit to the University of Hawai‘i’s William S. Richardson School of Law in February 2014, the late U.S. Supreme Court Justice Antonin Scalia, who died in 2016, conceded that the World War II internment of Japanese American was “wrong.”

“Well, of course, Korematsu (Korematsu v. US) was wrong,” he said. “But,” the justice added, “you are kidding yourself if you think the same thing will not happen again.”

Even three years ago, “Justice Scalia envisioned a politically driven mass exclusion or segregation of Muslims in America,” said Professor Eric K. Yamamoto. Yamamoto, the Fred T. Korematsu Professor of Law and Social Justice at the Richardson School of Law, said Scalia also intimated that when challenged, the government would rely upon the Supreme Court’s 1944 Korematsu v. US decision. Korematsu, Scalia indicated, reflects the adage that “In times of war, the laws fall silent.” Although discredited, the decision is still “standing precedent” for the forced removal and possible incarceration of an ethnic or religious group.

In light of that reality, two events commemorating the 75th anniversary of President Roosevelt’s signing of Executive Order 9066 in February 1942 will address the weighty subject of “National Security and Democratic Liberties: The Continuing Import of Korematsu v. US.”

The first forum will be held Thursday, Feb. 23, from 11:45 a.m. to 1:15 p.m. at the UH Law School. It will feature Korematsu coram nobis legal team members Dale Minami (Minami Tamaki, San Francisco), Professor Lorraine Bannai (Seattle University) and Yamamoto. They will be joined by Karen Korematsu, daughter of Fred Korematsu and head of the San Francisco-based Korematsu Institute, and UH Richardson Scholar Advocate law students Anna Jang and Jaime Tokioka.

The second discussion will be held Friday, Feb. 24, in the Judiciary History Center in the King Kamehameha V Building (Hawai‘i Supreme Court Building) from 5:30 to 6:45 p.m. It will feature an interactive roundtable question-and-answer session and reception with Minami, Bannai, Yamamoto, Korematsu and coram nobis team member from Hawai‘i, Leigh-Ann Miyasato.

“Justice Scalia’s remarks presciently channeled the political climate that developed in late 2015,” Yamamoto noted in a description of the program. “Republican presidential electioneering upped the ante: Candidates called for total exclusion of Muslims at the borders, broad surveillance and ‘sequester’ within the United States and even the torture of Muslim terror suspects.” He said harassment, discrimination and intimidation intensified over the months. “Policymakers invoked the internment — and by implication, Korematsu — as legal justification for sweeping government security restrictions targeting both immigrants and citizens. And, President Trump’s controversial January 2017 Muslim exclusion orders have transformed campaign rhetoric into political reality.”

Yamamoto said the “military necessity” pillars of the U.S. Supreme Court’s 1944 Korematsu decision were “undercut” by the 1980s Korematsu, Hirabayashi and Yasui coram nobis case reopenings. The writ of coram nobis is a rarely used legal order that allows lawyers and judges to revisit an earlier legal decision that may have been prejudiced by a fundamental error. Fred Korematsu’s legal team argued that the U.S. Justice Department had knowingly and deliberately misled the U.S. Supreme Court by withholding key information from the court. Yamamoto was a documents specialist in the case. He and others on the legal team showed that there was no national security justification for the mass incarceration of Japanese Americans and that the 1944 Justice Department lawyers had committed an “egregious government fraud on the Court and the American populace in attempting to legally justify it.”

And yet, although discredited by judges and scholars, Korematsu v. US has yet to be overruled in subsequent cases by the Supreme Court.

Yamamoto said the discord about the continuing significance of Fred Korematsu’s case raises critical present-day questions for a constitutional democracy like America’s, which is committed to both security and the rule of law. Asks Yamamoto: “What will happen when those profiled, detained, harassed or discriminated against turn to the courts for legal protection? How will the U.S. courts respond to the need to protect fundamental democratic values of our political process — that people are to be treated fairly and


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