Troy J.H. Andrade and Ryan on the west coast to “pre - Hamaguchi scribe military areas . . . from which any or all per - Hawai‘i State law designates sons may be excluded, and every January 30 as “Civil Lib - with respect to which, the erties and the Constitution Day.” right of any person to enter, Enacted in 2013, this law cele - remain in, or leave be sub - brates, honors, and encourages ject to whatever restrictions “public education and awareness the . . . Military com - of the commitment of individuals mander may impose in his to preserving civil liberties for discretion.” 2 Americans of Japanese ances - lieutenant General try[,]” particularly after their John l. Dewitt, the ap - mass incarceration following the pointed Military com - 1941 bombing of Pearl Harbor. Four resistors, with the help of their mander of the western Defense command, carried forth lawyers, fought the government’s internment scheme through the judicial the President’s plan. in a March 2, 1942 Public Proclama - process. The often-forgotten stories of Mitsuye Endo, Gordon tion no. 1, General Dewitt stated that the entire Pacific Hirabayashi, Fred Korematsu, and Min Yasui highlight the importance coast of the continental united States was “particularly sub - of resisting and speaking up against wrongs. ject to attack, to attempted invasion by the armed forces of nations with which the united States is now at war, and, in Seventy-six years ago, following the attack on the Amer - connection therewith, is subject to espionage and acts of sab - ican military in hawai‘i, President franklin D. roosevelt otage, thereby requiring the adoption of military measures signed executive Order 9066, which stated that the “success - necessary to establish safeguards against such enemy opera - ful prosecution of the war require[d] every possible protec - tions.” 3 Dewitt designated certain areas within his western tion against espionage and against sabotage to national Defense command as Military Areas and Zones thereby defense material, national-defense premises, and national de - laying the foundation for the exclusion of any person. 4 fense utilities . . . .” 1 to effectuate this purpose, President the President subsequently issued executive Order roosevelt designated and authorized military commanders 9201, which created the war relocation Authority to “pro -

4 March 2019 hAwAii bAr JOurnAl vide for the removal from designated areas of persons whose removal is necessary in the interests of national security.” 5 the executive Order authorized the Director of the war relocation Authority to “pre - scribe regulations necessary or desirable to promote effective execution of the pro - gram[,]” 6 including the segregation of loyal from disloyal evacuees and the relo - cation of the loyal evacuees. 7 Nakamoto Ad congress, on March 21, 1942, ratified executive Order 9066 and made it a crime to violate the military’s evacuation orders:

that whoever shall enter, remain in, leave, or commit any act in any mili - tary area of military zone prescribed, under the authority of an executive [O]rder of the President, by the Sec - retary of war, or by any [M]ilitary [c]ommander designated by the Sec - retary of war, contrary to the restric - tions applicable to any such area or zone or contrary to the order of the Secretary of war or any such [M]ili - tary [c]ommander, shall, if it appears that he knew or should have known of the existence and extent of the restric - tions or order and that his act was in violation thereof, be guilty of a misde - meanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to im - prisonment for not more than one year, or both, for each offense .8 the next day, General Dewitt began issu - ing a series of civilian exclusion Orders, which ordered that, for example, “all per - sons of Japanese ancestry, both alien and non-alien” were prohibited “from leaving Dale Lee Ad that area for any purpose until and to the extent that a future proclamation or order of [Dewitt’s] headquarters shall so permit or direct.” 9 in testimony before a house subcommittee, General Dewitt made clear why he believed those of Japanese ancestry needed to be removed:

i don’t want any of them (persons of Japanese ancestry) here. they are a dangerous element. there is no way to determine their loyalty. the west coast contains too many vital installa -

March 2019 hAwAii bAr JOurnAl 5 tions essential to the defense of the country to allow any applicant is going to live with designated classes of rela - Japanese on this coast. . . . the danger of the Japanese tives. 14 was, and is now—if they are permitted to come back— espionage and sabotage. it makes no difference Despite satisfying any one of these conditions, an internee whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine could not leave the camp if the proposed place of residence loyalty. . . . but we must worry about the Japanese all or employment was within an area where “community senti - the time until he is wiped off the map. Sabotage and ment is unfavorable” or in an area closed by the war relo - espionage will make problems as long as he is allowed in cation Authority. 15 in other words, if an internee was 10 this area. determined to be loyal, they could theoretically leave, but could not return to their homes within the designated milita - the legal structure was, as rized zones. one scholar noted, “a master - with this system in place, 11 piece of political buck passing.” 120,000 individuals of Japanese indeed, the President’s order was descent—most of whom were written so vaguely that the subse - American citizens—were re - quent decisions of the military quired to report to detention cen - commanders could not be attrib - ters bringing with them only uted to him personally. it was a whatever personal possessions scheme designed such that “no they could carry. Although some single legal pronouncement ex - local churches provided coffee plicitly ordered relocation and in - and donuts, the move was humili - 12 ternment on racial grounds.” ating. Mary Matsuda Grue - nevertheless, the effect of the newald, an internee at tule lake laws was clear: Japanese Ameri - Segregation center, spoke of her can men, women, and children fear, with one man yelling at her, were placed in internment “Get outta here, you God damn camps—military-style barracks Japs! i oughta blast your heads heavily guarded by barbed wire off.” 16 She also spoke of the and gun towers. damning silence of the commu - the process for obtaining nity: “the other men didn’t say approval to leave an internment anything, but they spat on us as camp was a multi-step process we passed. Most of the crowd that required: ( 1) an approved application for leave clear - just stood and watched.” 17 the internees were then sent to ance, which necessitated an investigation of the applicant to assembly centers and eventually to “relocation centers”—the ascertain “the probable effect upon the war program and internment camps, which were located hundreds of miles in - upon the public peace and security of issuing indefinite land. One scholar described the conditions as “terrible, with 13 leave”; and (2) an approved application for indefinite leave. little running water, less privacy, and minimal food. . . . tem - indefinite leave was only granted under fourteen cumber - peratures went below zero in the winter evenings and over some conditions, some of which included: 100 degrees in the summer days.” 18 Masaru Kawaguchi, an internee at the topaz war relocation center in utah de - (1) where the applicant proposes to accept an employ - scribed being locked away: “ [w]e were surrounded by the ment offer or an offer of support that has been investi - gated and approved by the [war relocation] Authority; barbed wire fence. You couldn’t just go out. You definitely or (2) where the applicant does not intend to work but knew that you were in a jail because they had the soldiers up has “adequate financial resources to take care of him - there with the rifles. in fact, one gentleman got too close to self” and a relocation Officer has investigated and ap - the fence and he got killed.” 19 proved “public sentiment at his proposed destination,” Many questioned their detention. harry urata, an in - or (3) where the applicant has made arrangements to live at a hotel or in a private home approved by a relo - ternee at the hono‘uli‘uli internment camp in hawai‘i, de - cation Officer while arranging for employment; or (4) cried: “how come i gotta stay inside here? Although i am where the applicant proposes to accept employment by [an] American citizen, we are there under suspicion. they a federal or local governmental agency; or (5) where the

6 March 2019 hAwAii bAr JOurnAl just suspect us.” 20 Several chose to chal - served in the united States Army. Despite lenge the military orders. One man, this, following the attacks in hawai‘i, endo twenty-six-year-old attorney Minoru Yasui was handed a piece of paper terminating of Portland, Oregon, who was a second her from her job because of her Japanese lieutenant in the united States Army, went ancestry. She would later recall: “we were for a walk in the hopes of getting arrested. accused of something, but i can’t even re - he passed a policeman, but instead of ar - member any of the allegations.” 24 Given resting him, the officer told him, “run the military orders, endo was forced to along home, sonny boy, or you’ll get in leave Sacramento and was relocated to the trouble.” impatient, at 11:00 p.m., Yasui tule lake war relocation center in Foley Ad presented himself to the neighborhood po - newell, california, and after filing a law - lice station and demanded to be booked. suit, was transferred to the central utah in Seattle, washington, Gordon relocation center in topaz. 25 hirabayashi similarly turned himself into Yasui, Korematsu, endo, and the fbi. 21 hirabayashi—all Nisei and citizens of the Another man who refused to report to united States—sought relief from the gov - the required assembly center, pursuant to ernment’s scheme in the courts. the na - another exclusion order, was fred Kore - tional Aclu and Japanese American matsu. Korematsu planned to move with citizens league, in a sign of loyalty during his girlfriend from his home in california the war, adopted policies of full coopera - to nevada. he sold his car, threw away his tion with the government and declined to california license, and assumed a new directly represent any of the internees in identity—even getting minor surgery to lawsuits involving the government’s poli - change his physical appearance. Despite cies. 26 nevertheless, attorneys affiliated his efforts, Korematsu would be stopped with local branches of the Aclu stood up by the police and turned over to the fbi in to defend the internees and attacked spe - May 1942. the newspaper headline of cific portions of the government’s scheme. Korematsu’s stop read: “Jap Spy Arrested As an example, hirabayashi and his in San leandro.” After being arrested and lawyers specifically challenged the validity incarcerated for two and a half months, of the curfew orders and his detention. Korematsu was released when a local at - Korematsu and his attorney, ernest besig, torney from the American civil liberties and endo and her attorney, James Purcell, union (“Aclu”) paid his bail. Once out - fought the detention. these four young side of the jailhouse, Korematsu was resistors understood the significance of cuffed and taken to an assembly center their fight against injustice. indeed, aside that held thousands of Japanese American from the fact that endo provided a good families. his final destination was an in - test case inasmuch as her brother was in Access Ad ternment camp in topaz, utah. 22 the Army and her parents never returned A less known resistor to the acts of the to Japan, she believed that challenging the united States government, but neverthe - government’s scheme was the right thing less a key figure in the fight for justice for to do: “i agreed to do it at that moment, the internees, was twenty-two year old sec - because they said it’s for the good of every - ond-generation Japanese American Mit - body, and so i said, well if that’s it, i’ll go suye endo, who worked for the california ahead and do it.” 27 Department of Motor Vehicles as a typ - but, the trial courts were not con - ist—the only job she could get because of vinced. A federal district court in Portland the rampant discrimination against Japan - concluded that the congressional act was ese Americans at the time. 23 her brother unconstitutional as applied to American was drafted before Pearl harbor and citizens, but it found Yasui guilty of violat -

March 2019 hAwAii bAr JOurnAl 7 Law Pay Ad

8 March 2019 hAwAii bAr JOurnAl ing the imposed curfew and sentenced him to one year in jail “the military commander’s appraisal of facts in the light of with a $5,000 fine, citing Yasui’s alleged renouncement of the authorized standard, and the inferences which he drew his citizenship from those facts, involved the exercise of his informed when he began judgment. but as we have seen, those facts, and the infer - working for the ences which could be rationally drawn from them, sup - Japanese con - port the judgment of the military commander, that the sulate in danger of espionage and sabotage to our military re - chicago. 28 After sources was imminent, and that the curfew order was an being held in jail appropriate measure to meet it.” 34 the court concluded: for five months, “whatever views we may entertain re - and following a garding the loyalty to this country of the ten-minute delib - citizens of Japanese ancestry, we cannot eration by the jury, reject as unfounded the judgment of the hirabayashi was military authorities and of found guilty of vi - congress olating the curfew that there and removal or - were dis - ders. 29 A San loyal mem - francisco district bers of that court found Kore - population, matsu guilty of vi - whose num - olating the military ber and exclusion orders strength could and sentenced him not be precisely to five years of probation under military authority. 30 in and quickly as - July 1943, a federal district court denied endo’s petition for certained.” 35 writ of habeas corpus, in which she requested to be dis - Although it charged and her liberty restored. 31 All the resistors appealed had an opportu - their unfavorable decisions and eventually all made their way nity to also address the constitutional - to the Supreme court of the united States, the highest court ity of the mass detention of those of Japanese ancestry, the in the land and the final arbiter of legal questions. court, in what one scholar has described as “breathtaking the Supreme court decided Yasui’s and hirabayashi’s judicial hairsplitting,” punted on the issue. 36 because of its appeals in 1943 as companion cases. in Hirabayashi , a unani - determination that the curfew was a valid exercise of war mous court concluded that the challenged military curfew powers, the Supreme court affirmed Yasui’s conviction. it was valid and within the war powers of the President to des - did, however, remand Yasui’s case for resentencing because ignate to the Military commanders, as it was ratified by the validity of Yasui’s American citizenship, which played a congress. 32 the court deferred to the government’s “data,” key role in the trial court’s determination in imposing the which included the following: “there is support for the view maximum sentence, was no longer questioned. 37 that social, economic and political conditions which have On December 18, 1944, the Supreme court—which prevailed since the close of the last century, when the Japan - ironically has emblazoned over its western façade “equal ese began to come to this country in substantial numbers, Justice under law”—issued its opinions in Korematsu’s and have intensified their solidarity and have in large measure endo’s appeals. the justices, who took pains to address the prevented their assimilation as an integral part of the white constitutionality of the exclusionary orders in Korematsu v. population.” 33 the court did not point to any act of sabo - United States and the detention in Ex Parte Endo , saw the is - tage or espionage by any individual of Japanese ancestry to suance of the opinions together as a way to uphold the gov - justify its acquiescence to the government’s scheme. ernment scheme, while opening the doors for internees to be in relying upon the military’s stereotypes of those of released. Japanese ancestry, the court pieced together an opinion that in the majority opinion in Korematsu , Associate Justice upheld the restrictive curfew imposed by General Dewitt: hugo l. black, a personal friend of General Dewitt, limited

March 2019 hAwAii bAr JOurnAl 9 his decision to the constitutionality of the cials who testified to the needs of these ac - mously concluded that the government exclusion orders. there, Justice black up - tions to isolate allegedly known threats to could not continue to detain “citizens who held the lower court’s determination that the community. the court, thus, upheld are concededly loyal.” 42 Although the gov - the government’s rationale for excluding the exclusion order and curiously noted: ernment agreed that endo was a “loyal Japanese Americans was based on possibly and law-abiding citizen of the united “disloyal members” who might have “con - in doing so, we are not unmindful of States” and “that it [was] beyond the stituted a menace to the national defense the hardship imposed by it upon a power of the war relocation Authority to 38 large group of American citizens. but and safety.” in so concluding, the court hardships are part of war, and war is detain citizens against whom no charges of set out the general framework for subject - an aggregation of hardships. All citi - disloyalty or subversiveness have been ing government action that restricts civil zens alike, both in and out of uni - made for a period longer than that neces - rights based on suspect classification—like form, feel the impact of war in sary to separate the loyal from the disloyal race—to strict scrutiny. 39 Despite what is greater or lesser measure. citizenship and to provide the necessary guidance for has its responsibilities as well as its often an insurmountable hurdle for the relocation,” the American government be - privileges, and in time of war the bur - court to affirm governmental action that den is always heavier. 41 lieved it could detain Japanese Americans discriminates on the basis of race, the who refused to follow the detailed and ar - 43 court ultimately concluded that “Kore - the court’s words were final, and it sanc - duous leave procedures. Again, the gov - matsu was not excluded from the Military tioned the principle of excluding individu - ernment, much like it had contended in Area because of hostility to him or his als from certain areas solely on race or on the other internment cases, argued that it 40 race.” the court instead affirmed the any suspect classification based upon the possessed extraordinary powers during a constitutionality of the President’s wartime testimony of military necessity. state of war. powers and, like its previous decisions, re - Despite its pronouncements in Kore - based on these arguments, the gov - lied upon the statements of military offi - matsu , in Ex Parte Endo , the court unani - ernment contended that the detention of

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10 March 2019 hAwAii bAr JOurnAl those of Japanese ancestry should be up - shadowed by the roosevelt Administra - held to their values and vehemently op - held as it was essential to the evacuation tion’s December 17, 1944 announce - posed the majority’s opinion in Korematsu . program. 44 the court, however, dis - ment—the day before the court’s issuance Justice Owen J. roberts detailed the time - agreed. Associate Justice william O. Dou - of Korematsu and Ex Parte Endo —that those line of the coordinated effort to intern glas, who authored the opinion in Ex Parte ascertained to be loyal internees would be those of Japanese ancestry. he then high - Endo , began his analysis by attempting to released. 47 it is no coincidence that the lighted the hobson’s choice for Korematsu explain how endo’s detention was different Administration announced the eventual and others of Japanese ancestry: “the two than the other internees that filed suit: release of loyal internees on the Sunday conflicting orders, one which commanded “we are of the view that Mitsuye endo before the court issued its opinions. in - him to stay and the other which com - should be given her liberty.” 45 the court deed, it is believed that Justice felix frank - manded him to go, were nothing but a then held that detaining loyal citizens con - furter tipped the Administration off about cleverly devised trap to accomplish the real tradicted the purposes of executive Order the court’s rulings. 48 the reach of the purpose of the military authority, which 9066, the congressional act, and the mili - roosevelt Administration extended further. was to lock him up in a concentration tary orders to prevent sabotage and espi - Some scholars have argued that the deci - camp.” 50 onage: “[w]hatever power the war sions in the internment cases were based Associate Justice frank Murphy, a for - relocation Authority may have to detain largely upon the justice’s unwillingness to mer mayor of racially polarized Detroit other classes of citizens, it has no authority hand President roosevelt—who had nom - and Governor of Michigan, also dissented to subject citizens who are concededly inated all but one of them—a blowing de - and concluded that the exclusion orders loyal to its leave procedure .”46 the resolu - feat to his agenda. 49 “fall[] into the ugly abyss of racism.” 51 As - tion of endo’s litigation demanded the re - but loyalty to the President did not sociate Justice robert h. Jackson, who lease of nearly all internees. preclude some justices from calling out the would later become chief Prosecutor for endo’s victory, however, was over - American internment. Several justices the united States in the nuremberg trials

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March 2019 hAwAii bAr JOurnAl 11 that prosecuted nazi war criminals, called out his colleagues eventually be vacated. with regard to Korematsu’s re - for what he believed was a larger societal harm from the opened case, federal district court Judge Marilyn Patel ruled strained interpretation of the President’s constitutional pow - that the record showed the “military necessity” justification ers in relation to individual civil liberties. Justice Jackson for executive Order 9066, the congressional act, and the concluded that the court enshrined a dangerous principle military exclusion orders was based upon “unsubstantiated that “lies about like a loaded weapon ready for the hand of facts, distortions and representations of at least one military any authority that can bring forward a plausible claim of an commander, whose views were seriously infected with urgent need.” 52 racism.” 56 Judge Patel continued, in the end, the court and America failed. the values of liberty, justice, and freedom were sidelined because of Korematsu remains on the pages of our legal and political mass hysteria and the government’s insistence on “alterna - history. As a legal precedent, it is now recognized as 53 having very limited application. As historical prece - tive facts.” the internment cases, but particularly Kore - dent, it stands as a constant caution that in times of war matsu , would become one of the worst decisions written by or declared military necessity our institutions must be the court. Korematsu would later say: “As an American cit - vigilant in protecting constitutional guarantees. it izen being put through this shame and embarrassment and stands as a caution that in times of international hostil - also all Japanese American citizens who were escorted to ity and antagonisms our institutions, legislative, execu - tive, and judicial, must be prepared to exercise their concentration camps, suffered the same embarrassment, we authority to protect all citizens from the petty fears and can never forget this incident as long as we live . . . . As long prejudices that are so easily aroused. 57 as my record stands in federal court, any American citizen can be held in prison or concentration camps without a trial but, the fight did not end. from speaking out against gov - 54 or hearing.” ernment attempts to curtail the rights of Arab and Muslim it would be years later before the truth was be discov - Americans to fighting against the unlawful detention of de - ered that top government officials knew and covered up sig - clared “enemy combatants,” the resistors continued to speak nificant government intelligence information that the out against the government’s violations of civil liberties. 58 Japanese Americans had not actually posed a threat to na - the Japanese American internment experience and the tional security at the time of their incarceration. the uncov - internment cases stand as constant reminders of the ways in ered evidence also showed that the federal Justice which the American legal system failed to protect the rights Department officials, including charles fahy, the united of individuals and turned a blind eye to holding accountable States Solicitor General who argued all four internment a government doggedly pursuing and defending a discrimi - cases on behalf of the government before the court, lied to natory policy. but have the lessons of the internment cases the Supreme court about the “military necessity” justifica - been learned? in 2017, hawai‘i took the lead in challenging 55 tion for the incarceration. for fahy and other government President Donald trump’s executive Orders excluding for - officials, the goal of their eign nationals from en - legal argument was to tering the united States present “the best possible from countries that con - case,” even if that meant gress or the President purposefully misleading identified as presenting the court. heightened terrorism-re - because of the stain lated risks. 59 national se - on their records and with curity was redeployed to the support of a team of uphold the government’s young lawyers, conduct. echoes of the hirabayashi, Korematsu, internment cases, thus, and Yasui went back to permeated the new law - court to challenge their suit. convictions through the A majority of the special procedure of a Supreme court, in an writ of coram nobis. opinion written by chief their convictions would Justice John G. roberts,

12 March 2019 hAwAii bAr JOurnAl Jr., sought to silence those echoes by ex - pressly overruling the most damning of the internment cases: “ Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the constitution.’” 60 in a dissenting opinion, however, Associate Justice Sonia So - tomayor repudiated the majority’s conduct and concluded: “by blindly accepting the Pro Image Ad Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of na - tional security, the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.” 61 lesson learned? time will tell. but, the story of the resistors against the Ameri - can internment remain and serve as a re - minder of the need to speak out against oppression. ______

1 executive Order no. 9066, 7 fed. reg. 1407 (1942). 2 Id. 3 7 fed. reg. 2320 (1942). 4 Id. 5 7 fed. reg. 2165 (1942). 6 Id. 7 Ex Parte Endo , 323 u.S. 283, 291 n.7 (1944). 8 Act of March 21, 1942, 56 Stat. 173, 18 u.S.c.A. § 97a (providing that failure to follow ex - clusionary orders would subject a violator to a Town Ad misdemeanor with a fine “not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense”). 9 Public Proclamation no. 7, 7 fed. reg. 4498 (1942); Public Proclamation no. 4, 7 fed. reg. 2601 (1942). 10 Korematsu v. United States , 323 u.S. 214, 236 n.2 (1944) (Murphy, J., dissenting) (citation omitted).

11 nOAh felDMAn , S cOrPiOnS : t he bAttleS AnD triuMPhS Of fDr’ S GreAt SuPreMe cOurt JuSticeS 239 (2010). 12 Id. at 239.

March 2019 hAwAii bAr JOurnAl 13 13 Ex Parte Endo , 323 u.S. at 292 n.11 (citation omitted). 43 Id. at 294-95. 14 Id. at 292-93. 44 See Jonathan M. Justl , Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases , 119 Yale l.J. 270, 298–99 (2009). 15 Id. 45 Ex Parte Endo , 323 u.S. at 297. 16 MArY MAtSuDA GruenewAlD , l OOKinG liKe the eneMY : M Y StOrY Of iMPriSOnMent in JAPAneSe AMericAn internMent cAMPS 46 Id. 30 (2005). 47 See felDMAn , supra note 11, at 246. 17 Id . 48 Id. 18 See felDMAn , supra note 11, at 236. 49 Id. at 240. 19 urban School of San francisco, Telling Their Stories: Oral History 50 Korematsu , 323 u.S. at 232 (roberts, J., dissenting). Archives Project: Masaru Kawaguchi , http://www.tellingstories.org/intern - ment/kawaguchi_masaru/index.html (last accessed on January 1, 51 Id. at 233 (Murphy, J., dissenting). 2019). 52 Id. at 246 (Jackson, J., dissenting). 20 DVD: the untold Story: internment of Japanese Americans in 53 hawai‘i (Japanese cultural center of hawai‘i 2012). in 2017, after white house Press Secretary Sean Spicer lied about the size of crowds at the inauguration of Donald trump, presidential 21 See felDMAn , supra note 11, at 235. advisor Kellyanne conway double downed and called Spicer’s false - hoods simply “alternative facts.” See Jim rutenberg, The Costs of Trump’s 22 lOrrAine K. b AnnAi , e nDurinG cOnVictiOn : f reD KOreMAtSu Brand of Reality , n.Y. tiMeS , Jan. 22. 2017, at b1. the phrase “alterna - AnD hiS QueSt fOr JuStice 35-37 (2015). tive facts” has since been invoked to refer to falsehoods or untruths. 23 JOhn tAteiShi , A nD JuStice fOr All : A n OrAl hiStOrY Of the 54 See bAnnAi , supra note 22, at 183. JAPAneSe AMericAn DetentiOn cAMPS 60 (1990). 55 See David G. Savage, U.S. Official Cites Misconduct in Japanese American 24 Id. Internment Cases , lOS AnGeleS tiMeS (May 24, 2011), http://articles.la - 25 Ex Parte Endo , 323 u.S. at 285. times.com/2011/may/24/nation/la-na-japanese-americans-20110525 (describing Acting Solicitor General neal Katyal's apology for the mis - 26 See felDMAn , supra note 11, at 239. conduct of his predecessor charles fahy). 27 See tAteiShi , supra note 23, at 61. 56 Susan Kiyomi Serrano & Dale Minami, Korematsu v. United States: A 28 United States v. Yasui , 48 f. Supp. 40 (D. Or. 1942). “Constant Caution” in a Time of Crisis , 10 ASiAn -P Ac . l. & P Ol ’Y J. 37, 44 (2003) (citation omitted). 29 United States v. Hirabayashi , 46 f. Supp. 657 (w.D. wash. 1942). 57 Korematsu v. United States , 584 f. Supp. 1406, 1420 (n.D. cal. 1984). 30 See Korematsu v. United States , 140 f.2d 289 (9th cir. 1943). 58 for their efforts and despite being incarcerated by one President, an - 31 Ex Parte Endo , 323 u.S. at 284-85. other President awarded the nation’s highest civilian honor, the Presi - 32 Hirabayashi v. United States , 320 u.S. 81, 104-05 (1943). dential Medal of freedom, to hirabayashi, Korematsu, and Yasui. in 2015, united States Senator brian Schatz recommended that President 33 Id. at 96, 98. Obama award endo the same recognition. She has yet to be given the 34 Id. at 103-04. honor she deserves. 59 35 Id. at 99. See Trump v. Hawaii , 138 S. ct. 2392 (2018). 60 36 GreG rObinSOn , A t rAGeDY Of DeMOcrAcY : J APAneSe cOnfine - Id . at 2423 (citing Korematsu, 323 u.S. at 248 (Jackson, J., dissent - Ment in nOrth AMericA 222 (2009). ing)). 61 37 Yasui v. United States , 320 u.S. 115, 117 (1943). Id. at 2448 (Sotomayor, J., dissenting). 38 Korematsu v. United States , 323 u.S. 214, 218 (1944). Troy J.H. Andrade is a law professor at the University of Hawai‘i at Manoa | William S. Richardson School of Law and is 39 Id. at 216 (“it should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately currently Of Counsel at McCorriston Miller Mukai MacKinnon LLP. suspect. that is not to say that all such restrictions are unconstitutional. Ryan M. Hamaguchi is an attorney with Cades Schutte LLP. Both au - it is to say that courts must subject them to the most rigid scrutiny.”). thors are co-chairs of the HSBA Civic Education Committee, which 40 Id. at 223. sponsors a program every January 30 to analyze the internment cases and their legacies. 41 Id. at 219 (citations omitted). 42 Ex Parte Endo , 323 u.S. at 297.

14 March 2019 hAwAii bAr JOurnAl