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Suffolk University Law Review SUFFOLK UNIVERSITY LAW REVIEW Volume L 2017 Number 2 Journey Towards Justice: The Historical and Legal Legacy of Fred Korematsu and the Japanese American Internment in a Post-9/11 World By Harvey Gee* I. INTRODUCTION In January 2017, President Obama made a final push towards his longstanding national security goal of closing the military base at Guantanamo Bay and transferring its remaining forty-one detainees to U.S. facilities.1 Obama explained that the push “reflects the lessons that we’ve learned since 9/11, lessons that need to guide our nation going forward.”2 Unable to overcome congressional opposition, Obama was unsuccessful in realizing his plan before leaving office. His successor, President Trump, favors keeping * Attorney, Washington, D.C.; LL.M., George Washington University Law School; J.D., St. Mary’s University School of Law; B.A., Sonoma State University. Mr. Gee previously served as an attorney with the Office of the Federal Public Defender in Las Vegas, NV and Pittsburgh, PA, the Federal Defenders of the Middle District of Georgia, and the Office of the Colorado State Public Defender. The author would like to thank Elma Delic, Madelyn McCormick, and the Suffolk University Law Review editors for their comments and assistance in preparing this Article. 1. See Ryan Browne, Obama’s Last Transfer of Gitmo Detainees, Trump Inherits 41, CNN (Jan. 19, 2017), www.cnn.com/2017/01/19/politics/obama-final-guantanamo-bay-transfer [https://perma.cc/2P2H2N EM] (considering Obama’s goal of closing Guantanamo unrealistic); see also Missy Ryan & Adam Goldman, Obama Asks Lawmakers to Lift Obstacles to Closing Prison at Guantanamo Bay, WASH. POST (Feb. 23, 2016), https://www.washingtonpost.com (to access follow perma.cc link) [https://perma.cc/62BX-9W25] (reporting on Obama’s February 2016 plan, noting congressional opposition); The Latest Bad Idea for Guantánamo, N.Y. TIMES (Sept. 19, 2016) http://www.nytimes.com/2016/09/20/opinion/the-latest-bad-idea-for-guantanamo.html [https://perma.cc/z855-xm6t] (reporting twenty Guantanamo prisoners cleared for transfer contingent upon government finding suitable destinations for them). But see J. Wells Dixon, President Obama’s Failure to Transfer Detainees from Guantánamo, in OBAMA’S GUANTÁNAMO: STORIES FROM AN ENDURING PRISON 39, 58 (Jonathan Hafetz ed., 2016) (asserting President “failed to do everything that he reasonably could have done to transfer detainees”). 2. Ryan & Goldman, supra note 1. 238 SUFFOLK UNIVERSITY LAW REVIEW [Vol. L:237 Guantanamo prison open.3 At the same time, the significant decrease in press coverage of Guantanamo Bay caused the plight of detainees held without adequate and meaningful due process to devolve into a mere afterthought. When the issue is discussed, American fears and continuing concerns about global terrorism make any arguments for closing Guantanamo unpopular. This Article draws parallels between the internment of Japanese immigrants and Japanese Americans and the post-September 11, 2001 (9/11) “war on terror” to pose another lesson to remember: the relevance of the internment experience to the war on terrorism. As history revealed, the curfew and exclusion orders enforced against the Japanese were based on racial prejudice, unsupported by evidence of any real Japanese threat. These orders were egregious examples of how laws can be used as an instrument of racism, and how racist laws can be defended by claims that such laws are not based on race.4 It is well known that the U.S. Supreme Court’s internment case rulings—which gave great and undue deference to the government’s claims of military necessity—wrongly and shamelessly upheld the detention of Japanese Americans.5 Part II of this Article tells Fred Korematsu’s story and the sad history of the Japanese American internment. Part III focuses on the four internment cases heard by the Court: Yasui v. United States,6 Hirabayashi v. United States,7 Korematsu v. United States,8 and Ex Parte Endo.9 During World War II, the 3. See Matt Apuzzo & Mark Landler, With National Security Choices, Trump Builds Team to Bulldoze Status Quo, N.Y. TIMES (Nov. 18, 2016), https://www.nytimes.com/2016/11/19/us/politics/flynn-sessions- trump-administration.html [https://perma.cc/3F7U-ZUWU] (highlighting Trump appointments who support Guantanamo); Nahal Toosi, Bush Aides Could Get a Do-Over in Trump Administration, POLITICO (Nov. 15, 2016), http://www.politico.com/story/2016/11/george-w-bush-aides-trump-administration-231351 [h ttps://perma.cc/JKQ4-KMJU] (discussing Trump’s favorable views on Guantanamo use); see also Dixon, supra note 1, at 43 (relaying congressional opposition restricted Obama’s efforts to move Guantanamo prisoners). Dixon contends that despite Obama’s promises to close Guantanamo on the 2008 campaign trail, “[Obama] began to lose the initiative on Guantánamo issues by mid-2009, due to a series of errant political calculations and a lack of willingness to do what was necessary to close the prison, which the president nonetheless continued to claim was in the national security . of the United States.” Dixon, supra note 1, at 48. 4. See Eugene V. Rostow, The Japanese American Cases—A Disaster, 3 YALE L.J. 489, 496 (1945) (arguing racial prejudice—not military justification—underlaid evacuation); Judge Mary M. Schroeder, What Gordon Hirabayashi Taught Me About Courage, 11 SEATTLE J. FOR SOC. JUST. 65, 69 (2012) (noting racial prejudice led to Hirabayashi’s conviction). Judge Mary Schroeder presided over Gordon Hirabayashi’s successful coram nobis appeal in 1987. Schroeder, supra, at 65. 5. See ERIC K. YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT xxiii-xxvi (2001) (outlining list of issues). Professor Eric Yamamoto characterizes the “internment of over 100,000 loyal Americans” as a “human tragedy,” while the “legal tragedy” was the Court’s unquestioning acceptance of the government’s warped claim of military justification. Eric K. Yamamoto, Korematsu Revisited—Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 SANTA CLARA L. REV. 1, 30 (1986) [hereinafter Yamamoto, Korematsu Revisited] (arguing for more credibility). 6. 320 U.S. 115 (1943). 7. 320 U.S. 81 (1943). 8. 323 U.S. 214 (1944). 2017] JOURNEY TOWARDS JUSTICE 239 Court failed to be an independent, apolitical branch of the government, or serve as a careful and determined check against the excesses of the executive branch.10 Specifically, the wartime Court failed to apply an honest and meaningful judicial review of the internment machinery, and closed its eyes to the reality of the government interning Americans because of their race. Though we cannot know with certainty, it is plausible to theorize that the Justices were swayed by the combined factors of public opinion, personal loyalty to President Roosevelt, and judicial philosophy. Criticism is not limited to the judiciary. The government attorneys, lacking any political will to stand up against President Roosevelt and Congress, were also complicit. Government attorneys and their superiors lied and misled the Court, insisting that internment was necessary despite internal investigations finding no evidence of espionage or sabotage by Japanese Americans.11 Part IV describes how some forty years after the end of World War II, Fred Korematsu and two other Japanese Americans—Gordon Hirabayashi and Minoru Yasui—separately refused to give up their longstanding quest seeking redemption for themselves and all interned Japanese. These men successfully vacated their wartime convictions on the grounds of government prosecutorial misconduct and lack of military necessity in the coram nobis cases litigated in federal courts during the 1980s.12 Part V discusses the government’s use of “enemy combatant” designations after 9/11, and compares these classifications to the government’s issuance of the curfew and exclusion orders during World War II. This section illustrates how the Japanese American internment experience is relevant to the war on terrorism. Parallels include the combined machinations of: presidential interpretation of the law, expansion of executive authority, engagement in legal and policy maneuvering by government attorneys and the military, and the permeating influence of political patronage and public opinion. In two important periods in American history, the Court purported to follow the rule of law, yet the rulings in the internment cases and Guantanamo Bay cases yielded 9. 323 U.S. 283 (1944). 10. See Schroeder, supra note 4, at 74 (stating decisions “represent extreme illustrations of the U.S. Supreme Court demonstrating a lack of courage”). 11. See, e.g., Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 FORDHAM L. REV. 3027, 3034 (2013) (stating General DeWitt reported Japanese Americans signaling submarines and passing intelligence despite lack of evidence); Frank Wu & Reggie Oh, The Evolution of Race in the Law: The Supreme Court Moves from Approving Internment of Japanese Americans to Disapproving Affirmative Action for African Americans, 1 MICH. J. RACE & L. 165, 169 (1996) (stating Department of Justice “knowingly misrepresented the risk of disloyalty” by Japanese Americans); Mark V. Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 WIS. L. REV. 273, 288-89 (2003) (criticizing military report on alleged Japanese American activities). Tushnet asserts that General Dewitt’s report was unsupported by evidence and instead was based on racist assumptions. See Tushnet, supra, at 288 (arguing executive and military knew no necessity existed justifying mass incarceration). 12. See YAMAMOTO ET AL., supra note 5, at 284-86 (discussing Yasui and Hirabayashi cases). 240 SUFFOLK UNIVERSITY LAW REVIEW [Vol. L:237 different results. The courts deprived Japanese Americans of their constitutional rights, including the right to due process, in the name of military necessity. Yet sixty years later, the courts granted Guantanamo Bay detainees their constitutional rights and access to the judicial system.
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