Korematsu v. United States: "Decided On A Foundation Of Fraud" | KGOU

Korematsu v. United States: "Decided On A Foundation Of Fraud"

Feb 20, 2020

On Feb. 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066. It had been just ten weeks since the Japanese attack on Pearl Harbor thrust the United States into World War II. The order required Japanese-Americans to report to detention camps in the U.S., on short notice and with few possessions, and it was justified for national security. A young Japanese-American named Fred Korematsu refused to go and was convicted of violating the order.

As a native-born American, Korematsu fought his conviction in the courts. He lost an appeal to the U.S. Supreme Court which, in a split-decision, found the order Constitutional. The conviction stood, but forty years later, Korematsu’s conviction was overturned.

The incarceration of Japanese-Americans during World War II is now viewed by many legal scholars as an egregious abuse of power, and the Supreme Court decision that upheld the executive order, Korematsu v. United States, is considered one of the most controversial, and reviled, decisions in the history of the Supreme Court.

There’s renewed interest in the case today. A 2017 documentary, "And Then They Came for Us," examined the case, the circumstances surrounding Korematsu v. United States, and the incarceration of Japanese-Americans during World War II.

On October 7, 2019, KGOU’s Dick Pryor discussed the landmark case and what it means now with Fred Korematsu’s daughter and a member of his victorious appellate legal team while they were visiting the University of Oklahoma. Audio and Transcript is below; hosted by Dick Pryor, produced by Jim Johnson.

(For more information, go to the Fred T. Korematsu Institute)

In the second part of this special KGOU Sunday Radio Matinee, we hear the story of another Japanese-American, and how World War II affected her life. Mary Kimoto Tomita was visiting in Japan when the U.S. declared war, and she could not come home. "Trapped on the Wrong Side of History" tells her story.


Dick Pryor: Fred Korematsu’s daughter is Dr. Karen Korematsu. His lawyer on appeal, is Don Tamaki. Thanks for joining us.

Karen Korematsu: My pleasure.

Dick Pryor: Good to have you in Oklahoma. You're here for a documentary. What will the documentary show us?

Karen Korematsu: What this documentary will show us is the parallel between the Japanese-American incarceration of World War II and the injustices that over 120,000 people of Japanese ancestry and two thirds were American citizens. And the relevancy of what's happening today with the Muslim ban, immigration and our border issues.

Dick Pryor: Don, how is this documentary told, in style?

Don Tamaki: It's really shot through the lens of Dorothea Lange, the well-known photographer. And Dorothea Lange was commissioned as a government photographer to document this rounding up of Americans during World War II. And I think the government's intention was to make sure that it was shown that to be humane, humanely done and done in an orderly fashion. But when she was assigned to this, what she found was quite horrifying to her. And she did her best to basically document this mass movement of people.

And so it's really told through her lens. It then goes into the deeper story of what happened to Japanese-Americans as they were removed from the west coasts of Washington, Oregon, California and Arizona into ultimately town American style concentration camps stretching from California to Arkansas, our families among them. And what happened to them and the legal process involved to accomplish that. It then draws the parallels and connections, connects the dots, if you will, between what happened some 77 years ago and policies that are similar today.

And the film, “And Then They Came for Us,” by Abby Ginzberg in 2018 was awarded by the American Bar Association Silver Gavel Award in shining a light on what happened and then drawing the parallels today.

Dick Pryor: I assume that you are both involved in traveling around the country some, talking about the documentary, this film, but also what led to all of this?

Karen Korematsu: Yes. Actually, Don Tamaki and his partner, Dale Minami, who are both part of my father's coram nobis legal team. When my father reopened up his Supreme Court case, you know, created a “stop repeating history” campaign, which I've joined. And we've been criss-crossing the United States and showing the film and having these panel discussions and bringing in the community as well to educate, you know, the all ages, really, of the dangers of overreaching, of power, of how we need to be standing up for our civil rights and our civil liberties and really a lot of the immigration issues that we are struggling to resolve today.

And we want we want people to know that they can make the change. That in order to make change in this country, they need to be civically engaged. They can be part of the solution instead of the problem. And to, we're, you know, remind people to vote and to be part of the census. So this is a really important time. It's not, it's not just the story of the Japanese American incarceration of World War II. That really is the point where we can launch these other issues, and…because, at the end of the day, we're all Americans.

Dick Pryor: Karen, going back to World War II, what did your father do that led to this case?  

Karen Korematsu: My father was born in Oakland, California. So he was an American citizen. He was the third son of four boys. And my grandparents were Japanese - Japanese nationals. They had immigrated to this country in the early nineteen hundreds. And so when my father was born, in 1919, he grew up just like any other American kid, and hung out with his friends and played sports and ate hot dogs. And so it was when Pearl Harbor occurred on December 7th, 1941, you know, the West Coast, especially the Japanese and Japanese-Americans, went into shock because my father thought, well, something might happen to my grandparents because they were not citizens, but my father was a citizen and he learned about the Constitution in high school.

So on February 19th, 1942, when President Roosevelt issued Executive Order 9066, that gave, actually the military, the ability to forcibly remove any one of Japanese ancestry from the West Coast, it was all without due process of law. In other words, everyone lost their rights. No one had access to an attorney. No one was charged with a crime. No one had their day in court. And my father thought, well, this is wrong. I'm an American. Why should I go to a prison camp when I've done nothing wrong? And so he refused to report to the detention assembly center in the Bay Area. And 30 days after everyone had been sent over by bus, he was discovered on a street corner in San Leandro, California, which is a suburb in the Bay Area, and was arrested and eventually ended up in federal jail.

Then there was a man named Mr. Ernest Bessick, who was then the executive director of the Northern California affiliate of the American Civil Liberties Union that had been looking for a test case to challenge the unconstitutionality of the incarceration. And so he saw that my father was arrested and he visited my dad in jail and asked my dad if he'd be willing to be a test case. And Mr. Bessick said, “if need be, we'll take it all the way to the Supreme Court.” And my father thought for sure, by the time that this reaches the Supreme Court, it would see that this is unconstitutional.

Dick Pryor: But it did go to the Supreme Court and they found it to be constitutional.

Karen Korematsu: Yes. But the really the important point is that the decision was not unanimous. It was a 6 to 3 decision. And Justice Robert Jackson even referred to my father's case as this lies around like a loaded weapon, ready for anyone to pick up and use for the plausible cause. And they actually did that after 9/11, 2001. Justice Murphy called it the “ugly abyss of racism.” Justice Owen Roberts said this is unconstitutional. So they were they were not in agreement. And those dissenting opinions are still the most studied and relevant today.

Dick Pryor: Karen, how did the justices in the majority justify this action?

Karen Korematsu: They didn't really scrutinize it like they should have. And even the chief justice, who was assumed to be a constitutional scholar, you know, upheld it and their opinion was in times of war we should really support the president.

Don Tamaki: Can I just add a little bit on this point? The rounding up of these Americans was justified by the government by claiming that Japanese-Americans were engaging in espionage and sabotage and that they were so different as the people that they were prone to disloyalty. And that message was amplified by General John L. DeWitt, the Army, which declared that the Japanese race is an enemy race, although people like Fred were born on American soil and, quote, have become Americanized, the racial strains are undiluted.

It therefore follows that along the Pacific Coast are one hundred and twelve thousand potential enemies of the United States at large today. And he further stated that the very fact that Japanese-Americans have not committed a crime is a disturbing indication that they will commit a crime. So, wrap your head around that circular logic: The fact that you've never committed a crime is disturbing indication that you will commit a crime.

So, this kind of prejudice was focused on Japanese-Americans and then it was enhanced by this claim that Japanese-Americans were spying. The cases went up to the U.S. Supreme Court in 1944. Justice (Hugo) Black, who wrote the majority decision, said this is not a case about racial hostility against Fred or Japanese-Americans. This is a case of military necessity. Why? Because the military tells us so. They didn't ask any questions. They didn't ask the government for any proof or further justification other than the naked accusation alone.

The troubling fact is that 37 years passed after the case was decided, quite by accident, secret wartime intelligence reports from the Navy, the Federal Communications Commission, the FBI and Army intelligence surfaced and Justice Department memoranda,  which admitted that Japanese-Americans had done nothing wrong - in characterizing these claims that Japanese-Americans were spying as, quote, “intentional falsehoods and fabrications.”

And what we found was memoranda between Justice Department lawyers. One was written by Edward Ennis, who was then the head of the Enemy Alien Control Division of the Justice Department and responsible for supervising the drafting of the government's defense and against Fred's challenge. And he wrote to the solicitor general of the United States, Charles Fahy, as well as the attorney general of the United States, Francis Biddle. And he said, we have in our possession reports from our own intelligence agencies, which contradict the claims of the Army that Japanese-Americans are engaging in spying. It occurs to me that if we do not disclose the contents of these reports to the U.S. Supreme Court, we are engaging in the suppression of evidence.

He cites the FBI report, J. Edgar Hoover, who wrote, “we've investigated every single claim of shore to ship transmissions that the Army is claiming is being done by Japanese-Americans. They're picking up radio signals emanating from Tokyo. They're calling them from shore to ship transmissions. None of this is true. We have a duty to disclose this to the court.”

And we saw a memo is going back and forth between Justice Department lawyers at the highest level, between the attorney general, the solicitor general, the assistant attorney general, all which they're wrestling with this ethical problem: Shall we disclose this? Do we have a duty to disclose it?

Ultimately, the decision was made to cover it up and the U.S. Supreme Court never had this information before it. And with Justice Black saying this is not a case of racial discrimination, this is a case of military necessity, there was a good reason to do this and they never got the definitive reports from their own intelligence agencies. So 37 years later, on that basis, we reopen this case. But the lesson to be learned is the case was decided on a foundation of fraud.

The government claimed that Japanese-Americans were engaging in doing bad things. The only problem with that, it was entirely made up. And the lesson is when the courts, you know, we have three co-equal branches of government, the Court being one of them, and when the courts stand down when they abdicate their constitutional role of being a check on the other two branches, a very serious problem can happen. And I think that's the lesson of the Japanese-American experience.

Dick Pryor: Don, why did they not follow the same rationale in another internment case, Ex parte Endo? Similar facts to some extent. But it appears that in that case that the court found that Miss Endo was not suspected of disloyalty, but was considered a loyal and law-abiding citizen. Is that why these decisions were different?

Don Tamaki: Well, they were different because they came later in time. The Endo case, by the time it was heard by the U.S. Supreme Court, they had already just decided the Korematsu case, which held the legality of the exclusion. And now the war was drawing to a close and they were actually letting people out of the camps. Without getting into the details of the legal proceedings, she had brought what was called an habeas corpus case. In other words, she was being held just like other Japanese-Americans without due process. And normally habeas corpus proceedings when they're brought are heard immediately. Why? Because you've lost your freedom. You have the right for a court to review that. But the courts delayed hearing that until literally the end of the war. And by then, they were letting people out. So basically the essence of the decision was we've already really decided this. She's being released anyway. Her case is moot and therefore devoted literally three paragraphs to her decision.

Karen Korematsu: Actually, the military and government knew that the Endo case was going to be heard, which was heard on the same day as my father's on December 18th. So they the day before they actually issued the order that the camps were going to be closed. And so that was why the case became moot. You know, because everyone is going to be released. And, you know, to point out also when Don talks about military necessity, we call that now national security, to be clear. And these are the kind of euphemisms that are also used at the time to try to show, you know, cause or less impact.

It's just like during 1942, they called it the evacuation. Well, I can tell you that five-year olds and 6-year olds know that know what evacuation means. I mean, you in Oklahoma, you probably have, you know, tornadoes and, you know, and in West Coast, it's earthquakes and it has to be removed for your own safety, whereas in this case, they were forcibly removed from their homes. And so that's part of the education that that I'm doing, as well.

Dick Pryor: When you look at the cases, it appears that the court is saying that when there is sufficient “grave, imminent danger to the public,” then certain government actions can be justified. But they never showed that grave, imminent danger in the full context, which was the research that never made it to the Supreme Court.

Don Tamaki: All right. In fact, it was the opposite. Every intelligence agency had weighed in, concluded that this was not necessary. It should never have happened. And then the ethical debate followed as to the duty to whether to disclose that to the court or not. That's a problem. In other words, our democracy really depends on three coequal branches of government being a check and balance on the other.

The system is really designed to thwart the rise of kings and tyrants. And that's the essence of democracy. And by invoking national security or military necessity, in the case of Japanese-Americans, the decision really escaped judicial scrutiny. The court stood down when it actually should have been asking questions. And there is a parallel today going on here.

When the travel ban was being litigated in the early days of 2017 and it wound its way through the courts, in the lower court, in particular the Maryland District Court in Virginia, the judge, Theodore Chuang, asked the solicitor general what's the basis for closing down the borders and involving American families who happen to have Muslim parents and grandparents overseas that were unable to enter the country? There were refugees from Syria and other parts of the Middle East, some of whom were aiding the military as translators and others who had already undergone a strenuous 18-month vetting program and had been granted visas.

When the ban came down, literally people were caught mid-air. Those who were issued visas were unable to get into the country. Those who got into the country were detained. Refugees basically fleeing war and terror could not could not escape. And so the judge asked in the Maryland District Court, what is the basis for this sort of drastic curtailment of civil liberties? And the solicitor general cited a Homeland Security report that concluded basically that in order to make the country safer, this was necessary.

And the judge asked, “Well, may I see the report?” And the government responded, “No, it's confidential.” That was never presented when the case was heard. In June of 2018, the case was decided in June of 2018, the court never demanded to see that information, and they could have seen it behind closed doors in confidence.

But basically, the court's response was, if the president tells us this makes the nation safer, then we will take his word for it. The problem with that is we've seen that movie before in the Japanese-American incarceration, and the result was a civil liberties disaster. And so the parallels between the Japanese-American incarceration and the current policies are rather disturbing.

You know, both arose within the context of war – World War II and the War on Terror. Both involved statements by high officials vilifying a targeted minority. During World War II it was the Japanese Americans. Today, Muslims, Muslim-Americans are also on the firing line. It involved a hidden government reports that the government refused to disclose to the court. And at the end of the day, both involve the government invoking national security to shield its actions from judicial scrutiny. And the court basically standing down and abdicating its constitutional role to ask some questions. You know, what is the basis for this? And so I think that's the real lesson of what happened some seventy-seven years ago.

Dick Pryor: There is a difference, though. There is a distinction between a declared war in World War Two and undeclared wars and a war on terror, which is actually a war on a tactic.

Don Tamaki: It is. But how this is being treated in both instances is the invocation of national security. In 1944, the invocation was military necessity. We had to do this to make the country safer. Today, that terminology is national security. And the reason is war. It is either a declared war or a war that seems to be never ending.

Now ongoing, 16, 17, 18-year war in which in order for the president to accomplish certain things, he's declared a national security and therefore has exhorted the court, actually that this is not for your business. This is not for you to ask questions. The president has unbridled authority to conduct war or to carry out those objectives in order to protect the country. But what if, as we said, it's not true? And what if the evidence is being fabricated? And that certainly happened with Japanese-Americans.

Dick Pryor: Karen, how did this litigation, this ordeal, affect your father, Fred Korematsu?

Karen Korematsu: Well, until my father case was reopened in 1983, I did not even know that he had never given up hope that someday he would be able to reopen up his case. When his decision came down in December 18th, 1944, he was, the term he used was disgusted, which was a strong word back in those days. But, you know, that did not deter him from going forward with his life. I mean, he married my mother and I moved to California and was part of the community.

I mean, he was involved in Boy Scouts and Girl Scouts and in our church and supported local elections and worked very, very hard. But he wanted to reopen up his Supreme Court case, but he didn't know how to do that. He didn't know any attorney. Attorneys were expensive. And so that's when Professor Peter Irons had visited my father and showed him this this evidence that he found in the actually Immigration and Naturalization files, that proved there was no military necessity and that his case could be reopened.

You know, he had hope. But I will say this is that when my father was after he was arrested and had his bail hearing and sent over to the detention assembly center in the San Francisco Bay Area, no one wanted anything to do with him. He was vilified and ostracized from day one for disobeying the military orders. The community, his own Japanese community, just didn't want anything to do with him because they thought that if they associated with my father, some harm might come to them. He had disgraced his own family. And so he basically lived in the, you know, in the concentration camps like everyone else. But he did it alone.

Even when his case was, talk of his case being reopened in 1983, again, the Japanese community didn't support him. That was at the time of the redress and reparations movement, and they thought if my father reopened up his case and lost, that they would lose their chances for redress and reparations. So my father was, you know, one person that made a difference in the face of adversity. But he was never bitter or angry. He never blamed anyone.

The story is when I found out about my father's case, I was 16 years old and a junior in high school and learned about my my father's case by a book report that my friend Maya gave that talked about the Japanese-American incarceration. And then she said, but there was this one man who disobeyed the military orders and it ended up to be a landmark Supreme Court case, Korematsu v. United States. Oh, that's my name. And I had 35 pairs of eyes looking at me. And I'm shrugging my shoulders because I'm thinking it's some black sheep of the family because she never said Fred.

And so after class, I asked Maya if that was who that was about. She says, that's about your dad. And I said, no way somebody would have told me. So I went home and asked my mother and I got the standard answer. Well, you'll have to wait until your father gets home from work and ask him.

And not only did he have housing discrimination, he had employment discrimination and worked late hours until 8 o'clock at night. And by the time he arrived home, I come down a little bit and told him where I learned that day. And he simply said it happened a long time ago. And what he did, he thought was right, and the government was wrong. It was that clear and simple. And, I could see this hurt wash over his face and I couldn't ask him any more questions about that time or his experience.

But I did ask him if he could vote because voting was always important to my parents. They always stayed about valid, but because he had served his sentence of seven years probation, that he could, he could vote.

Dick Pryor: The original Korematsu decision by the Supreme Court has been discredited. But I'm wondering how has that affected Japanese-American families in the time since then? Is that something that you think about? Is that something that members of the community are always aware of, in some sense?

Karen Korematsu: Oh, yes. You know, because when the Japanese- Americans were, you know, basically stripped of their possessions, I mean, they when they were ordered to report to these prison camps, they could only take with them what they could carry in two hands, basically 50 pounds each. That was it.

You had to take bedding. You didn't know where you were going. You didn't know the weather conditions. You didn't know if you were ever even coming back. So some people gave their possessions to their friends. They tried to sell them ten cents on the dollar, if possible, in a very short period of time. You only had maybe 48 hours. In some areas it was a bit a little bit longer. And of course, people didn't think that...their neighbors didn't think that the Japanese-Americans were coming back after three years, that they would sell their possessions or get rid of them.

And so they carried around this shame with them for almost all those years until my father's case was reopened. It was like it was their fault for the bombing of Pearl Harbor. My father carried around that weight as well, because when he lost his case in 1944, he felt like he let his own community, Japanese-American community down, even though they didn't want anything to do with him. And so when my father's case was vacated on November 10th, 1983, in federal court in Northern California, it was like this weight lifted off their shoulders and my father's shoulders. And people didn’t want to talk about it.

You know, that's all those years I'd learned when I met even the legal team that their families deem and talk about their parents’ and grandparents’ experiences because it was too hurtful and they felt ashamed. That's why even now when we have pilgrimages, there are ten American, Japanese-American concentration camps across this country, and now we have pilgrimages where people will come and share those experiences.

I mean, unfortunately, we're losing a lot of our Nisei, our second generation, like my father is gone now, but the third generation like I am and the other generations coming up, we want to be able to carry on and share these stories, because this is about education. This is about the importance of upholding our Constitution. We now have Fred Korematsu Day of Civil Liberties in the Constitution, which is all my father's birthday of January 30th. It was established in 2010 by Governor Schwarzenegger in California.

On January 30th, the governor and the superintendent of education declares it Fred Korematsu Day as an opportunity for education, about my father's fight for justice and what it means to be an American. And now the day is recognized in Hawaii, Virginia, state of Virginia, Florida, New York City. Arizona is even looking at this. They honored my father this year, earlier in January. The full name is Fred Korematsu Day of Civil Liberties in the Constitution.

You know, we keep fighting racism and prejudice, xenophobia, the negative rhetoric, even the bullying that's on social media. These are all lessons that are…really can be learned through my father's story. His legacy, Fred Korematsu’s legacy is a springboard that launches all these other issues and resonates on so many different levels. And that's why what we do is relevant today.

Dick Pryor:  Don, Karen just talked about her father's legacy. Looking at these cases, looking at them together, what do you see from a legal, precedential standpoint or otherwise, the lesson here that people should take away from what happened in the legal system in the United States?

Don Tamaki: Well, the rule of law, for one thing, the meaning of the Constitution and what it means to be an American and the failure of the democratic institutions, whether they be Congress or the courts, to be a check and balance on the other is the other lesson that's really critical, that that's the most important thing to a democracy.

Democracies in the Constitution is not challenged during good times. You know, when the economy is great, we're not at war. Everything is going fine. The Constitution and democratic institutions are tested during times of stress. That's when you know, the true character of a country. And, countries throughout history have not made it through that time. You look at places in Europe, pre-war Germany, Japan, other places where there is no check and there is no balance. And that is a problem. It's a huge problem. And, in the Korematsu case, it was characterized as a civil liberties disaster. So I think in unpacking that, of course, no one wants to talk about people being rounded up. No one wants to talk about the problems of inequality, of racism. But if we don't talk about it, then we end up repeating the same thing.

So, I think in all of these cases, you know, in some ways the Japanese-American experience should be looked upon as a sad chapter in American history, regrettable, terribly, but of little relevance today. But today we're finding that, ironically, it's extremely relevant and very important to look at. So we're grateful to Oklahoma University, certainly NPR and others who are willing to shine a light on this occurrence in historic currents and then bring it forward to be a lesson as we look at our own institutions today.

Dick Pryor: Don Tamaki, Karen Korematsu, thank you.

Don Tamaki, Karen Korematsu: Thank you.