Loaded Weapon: Politics of Fear

Feb 23, 2017

Executive Order 9066, issued by President Franklin Roosevelt in 1942, does not mention any ethnic group. It simply allows the "Secretary of War, and the Military Commanders whom he may from time to time designate," to "prescribe military areas" from which "any or all persons may be excluded." This resulted in the mass removal and incarceration of 120,000 ethnic Japanese, mostly U.S. citizens. This photo was taken in the Japanese American National Museum in Los Angeles.
Credit noe tanigawa

Amidst the flurry of Executive Orders issued recently by President Trump, a seventy five year old Order is being re-examined.  Executive Order 9066 by President Roosevelt in 1942, banned “any or all persons” from “military areas” as determined by the Secretary of War and military commanders.  Though this order and the Japanese internment it caused have been discredited in the courts, political figures have used it recently to support new rules around immigration.  HPR’s Noe Tanigawa reports on what is at stake.

National Security and Democratic Liberties: The Continuing Significance of Korematsu vs. U.S.  Thursday, February 23, 2017 - 11:45am to1:15pm

Korematsu Coram Nobis Lawyers Roundtable Q&A and Reception

Dale Minami, Lori Bannai, Eric Yamamoto and Leigh-Ann Miyasato with Karen Korematsu

Friday, February 24, 2017 - 5:30pm to7:00pm

King Kamehameha V Judiciary History Center

417 S. King Street, Honolulu, HI 96813

Fred Korematsu was 23 and living with his family in the San Francisco East Bay area when he decided not to comply with government orders to surrender for incarceration. His family left for the camps, and eventually he was picked up on a street corner and sent to join them. An American citizen, he felt his constitutional rights were being denied, and took his case to the Supreme Court, which upheld his conviction. In 1983, his conviction was overturned due to government suppression of evidence.
Credit Lia Chang

Fred Korematsu’s family ran a florist in San Francisco’s East Bay.  He was twenty three when all ethnic Japanese were ordered to report for incarceration.  His family left their home, business and belongings, but Korematsu, a U.S. citizen, refused.  His daughter, Karen Korematsu says he changed his name, and went underground, but was finally picked off the street in San Leandro. 

“He had gone into a little convenience store and picked up a pack of cigarettes so he didn’t know if someone saw him there.  First the San Leandro police showed up, then two MP’s, and they took him to the San Leandro jail.” 

This is the sort of thing millions of immigrants in America fear today.  In 1942, Fred Korematsu maintained his arrest was a violation of civil liberties and took his case to the Supreme Court, which upheld his conviction on grounds of national security.  Writing for the minority in that decision, Justice Robert Jackson called the court’s unexamined acceptance of the claim of national security a “loaded weapon,” a potential threat to civil liberties into the future. 

“Now more than ever, Korematsu’s precedent is very relevant.”

Jaime Tokioka is in UH Law School’s Scholar-Advocate program, working on social justice issues.

“When Carl Higbee, President Trump’s transition advisor, cited Korematsu to justify the sweeping discriminatory treatment with Megan Kelly in that interview, it got more people thinking about it.  Prior, it was how Mayor Bowers, the Roanoke, Virginia mayor cited Korematsu as a reason to justify sweeping discriminatory treatment of Muslims.”

Note that EO 9066 does not mention any ethnic group by name.  Read the full Executive Order 9066.

In 1983, Fred Korematsu’s conviction for failing to report for incarceration was reopened because of new evidence showing the government had withheld evidence that Japanese Americans were not a security risk.  Korematsu’s conviction was reversed, but the original Supreme Court ruling upholding the internment stands.  

On February 3, 2014, during a discussion with law students at the UH Richardson School of Law, Justice Antonin Scalia said that "the Supreme Court's Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time."

Richardson School of Law professor, Eric Yamamoto: “Justice Scalia intimated that it would be terrible, but the courts could.  What he was really saying is, the Supreme Court never formally overruled Korematsu."

One approach the courts could take is called “judicial deference,” where the courts keep hands off government actions in the name of national security.   

These instructions were issued in 1942 based on Executive Order 9066.
Credit creative commons

Yamamoto:  “Even if the government fabricated evidence as it turns out they did in the internment of Japanese Americans.  The courts will back off.  That’s the judicial deferential approach, fraught with all kinds of dangers, as exemplified in the Japanese internment cases.”

“The other approach is in a situation where fundamental liberties of people in America are being severely restricted, normally the government can’t do that.  But the government is saying we can do that because national security trumps constitutional rights.  The government has said in the most recent Ninth Circuit argument, Guess what courts, you stay out of it, you don’t have any power to review.  But the judges are now saying, Yes we do."  

"In a tripartite system of government separation of powers, the executive branch and the legislative branch are the political branches, they’re accountable to the electorate, they have to do what they think is right based on the law.  But if they step over constitutional boundaries, the liberties that are enshrined in our Bill of Rights, who, then , is to enforce those rights?  It’s the judiciary, the third branch of government, that’s why they call it judicial independence.  Independent of the political branches.”

“What the lower courts have begun to say is, Wait a minute, this is our job.  Even if the Government says national security, if fundamental liberties of people in America are being restricted, we must hold the government to account.  Now government, if you can really show there is “pressing public necessity," that’s the language from the Korematsu case, then we’ll go along.  But you can’t make it up.  You can’t just pretend or you can’t just say off the cuff it’s national security and it’s necessary,  you've got to actually prove it.”  

But can the government say, We’re in a rush.

Yamamoto:  “And that is exactly what the government has said.  It’s exigent circumstances or so called urgent need.  What the courts have said is, normally that’s good for all national security matters, but in this small sliver of national security matters where you are restricting the fundamental rights and liberties of people in America based on race, religion, those are the kinds of things that are so powerful and important, we can’t let you just claim urgent need, as you did with the Japanese internment, you claim urgent need, you’ve got to give us some kind of showing there is actual urgent need.  If you do, we’ll approve what you’ve done.  lf you don’t, then it’s our job to say you’ve crossed the constitutional line.  That’s the big determination right now, which approach are the courts going to take?”

With both sides citing Korematsu.

Yamamoto:  “With both sides citing Korematsu.  That’s the thing.  The uncertain stature of Korematsu.  The supreme Court needs to clarify that the part about  Korematsu which is the mass incarceration of innocent 120 thousand people on the basis of race, that’s totally wrong.  But secondarily what’s wrong is almost total judicial deference whenever the government claims national security as justification for restricting fundamental liberties of people in America. “

If the U.S. government told you to give up your home, your job, your life as you know it, and surrender for mass incarceration today, would you do it?
Credit creative commons

“Korematsu is significant because the courts could say, We should uplift Korematsu.  Look, Fred Korematsu, Gordon Hirabayashi, Min Yasui, not only resisted during World War II, they came back in the 1980’s and said, We now know the truth based on newly discovered government evidence.  We continue to fight for justice to clear not only the names of all Japanese Americans who were interned, but also to set a precedent for all people in the future who will not have their fundamental liberties deprived on unsubstantiated or even falsified claims of national security necessity.  So that’s how Korematsu can be re-envisioned by the supreme court but also by all of us who believe in justice, from all parts of the political spectrum, all religions, all races, if you’re struggling for what is just, then we can do this together. Say this is what the Supreme Court needs to do, on  behalf of American society, as well as each person. “

“We can overturn the bad parts of Korematsu, and uplift the part of Korematsu which says we can correct our mistakes.  The coram nobis litigation of the 1980’s is the part of Korematsu that is really good, and we can say even when the courts make horrendous errors, if American citizens and all people in America stand up for what is right, we can reopen these cases and make the courts do what is just.  That has repercussions all across America and across the world.

How do you get that done?  How can the Supreme Court go back to it again?            

“You can’t do it in the actual Korematsu/Hirabayashi cases, those are closed, but they can do it if Korematsu is being cited as some form of precedent, good or bad, if the case comes up in a different setting, then Korematsu as precedent in a new setting can be raised, and the bad parts overruled and the bad parts uplifted.”

Websites documenting hate incidents include screen shots of online harassment.
Credit Wilfred Chan

"That will set precedent for the future.  That’s the game plan.  That’s what the Scholar Advocates, and I and the old coram nobis team lawyers and others have been working on.  We’re filing amicus briefs in the Supreme Court in these cases, Ninth circuit Court of Appeals.  We’re doing forums, writing a book, and publishing a major article called “The Loaded Weapon Revisited.”  

Korematsu’s conviction reversal, the presidential apology and redress to Japanese Americans--Yamamoto has cited this process  as a model for reconciliation in work with South Africa, South Korea, Japan, Chile, and other jurisdictions.   He says how these issues are finally resolved has broad implications for how societal healing can take place after institutional injustice.

In related news, after years of declines, hate crimes against Asians and Pacific Islanders are rising exponentially in the U.S.  A Los Angeles commission documents hate crimes against Asian Americans tripled between 2014-2015.   Recently, Asian Americans Advancing Justice, a civil and human rights nonprofit, launched a website, standagainsthatred.org, to document hate crimes against Asian-Americans and Pacific Islanders. The stories are vetted by AAJC staff.

Find a national registry of all hate crimes through Propublica or the Southern Poverty Law Center has a hate map showing 917 hate groups in the U.S.