DENYING PREJUDICE: INTERNMENT, REDRESS, AND DENIAL Jerry Kang In the early 1980s, Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi marched back into the federal courts that convicted them during World War II for defying the internment of persons of Japanese descent. Relying on suppressed exculpatory evidence discovered in the national archives, they filed writs of error coram nobis to overturn their convictions. Remarkably, this litigation was successful and fueled the extraordinary redress movement, which culminated in federal reparationsfor surviving internees. Yet, a dark side to this victory has never been discussed, until now. In grantingthe petitions, the Judiciary absolved the one branch of government that has never been held accountable for the internment: itself. Specifically, the lower federal courts adopted an official legal history that insulated the wartime Supreme Court from any fault. According to that account, the Supreme Court was simply duped by conniving officials in the Departments of War and Justice, who suppressed "smoking gun" evidence. But this tidy story is nonsense. The wartime Court was no innocent. It was a full participant in the internment machinery, and it deployed its enormous intellectual resources to avoid interfering with the internment, while at the same time, never grantingit official approval. The Court also made certain that blame would fall not on President Franklin Delano Roosevelt or on Congress, but instead on the little known War Relocation Authority, which was labeled a rogue agency. This is what the Court did in the 1940s, exploiting procedure-like tools often extolled as "passive virtues." The Judiciary has never accepted responsibility for its machinations. After the coram nobis cases, official history has been rewritten to make any apology simply unwarranted. In this way, the personal victories of Korematsu, Yasui, and Hirabayashi were ironically exploited to complete the circle of absolution the Supreme Court began in the 1940s. This Article provides a more nuancedand disturbing interpretationof the internment, * Visiting Professor of Law, Harvard Law School; Professor of Law, UCLA School of Law. The author may be contacted at [email protected]; additional information is available at http:// wwwl.law.ucla.edu/-kang. I thank Tom Moss, who provided first-rate research assistance. The Hugh and Hazel Darling Law Library provided expert help as always. This project was funded in part by the UCLA Academic Senate as well as a grant from the UCLA Asian American Studies Center. This Article, in various incarnations, was delivered to audiences at Northeastern, UCLA, Stanford, and the U.S. Attorney General's Office in Los Angeles. Thanks to Rick Abel, Stuart Banner, Devon Carbado, Ron Chen, Michele Landis Dauber, Carole Goldberg, Margaret Chon, Richard Fallon, Laura G6mez, Kenneth Karst, Judith Koffler, Jennifer Martinez, Frank Michelman, Eric Muller, Karen Narasaki, Gary Rowe, David Shapiro, Joseph Singer, Jay Tidmarsh, Laurence Tribe, Led Volpp, Eric Yamamoto, Stephen Yeazell, and Alfred Yen for their valuable comments. This Article is dedicated to Fred Korematsu, Gordon Hirabayashi, Minoru Yasui, Mitsuye Endo, and the lawyers who fought and won the cormn nobis cases. 934 51 UCLA LAW REVIEW 933 (2004) the Judiciary,and the coram nobis cases. It also sheds critical light on discussions of military exigency, racism, the role of the Judiciary, and the lessons of history in a post-September 11 world. INTRODUCTION ............................................................................................................. 934 I. DENIAL AND ABSOLUTION ..................................................................................... 937 A. The Internment Machine .............................................................................. 937 B. D en ial ............................................................................................................. 94 3 1. Curfew: Hirabayashiand Yasui ................................................................ 943 2. Exclusion: Korematsu .............................................................................. 949 3. An Aside on Racism ............................................................................... 955 C. Absolution: Endo ............................................................................................ 958 D. Objection: The "Minimalist Virtues". ........................................................... 965 1. Democratic Accountability .................................................................... 966 2. Political Expediency ............................................................................... 970 II. VINDICATION AND Loss ........................................................................................ 975 A. Vindication: Seeing Prejudice ....................................................................... 976 1. The Suppressed Evidence ....................................................................... 976 2. The Coram Nobis Litigation ................................................................... 979 B. Loss: Denying Prejudice ................................................................................. 985 1. Evacuation .............................................................................................. 986 2. C urfew .................................................................................................... 994 C. The Path Not Taken ...................................................................................... 995 III. TRUTH AND CONSEQUENCE .................................................................................. 997 A . T ruth .............................................................................................................. 99 7 B. Consequence ..................................................................................................999 CONCLUSION ............................................................................................................... 1004 APPENDIX: COULD THE NINTH CIRCUIT IN THE HIRABAYASHI CORAM NoBIs CASE HAVE DONE OTHERWISE? ..................................... .. .. ... .. ... .. ... .. .. ... .. ... .. ... 1006 A. Options Matrix ............................................................................................. 1006 B. The Prejudice Precedent .............................................................................. 1008 INTRODUCTION By all accounts, what happened in the courtroom of Judge Marilyn Patel on November 10, 1983 was astonishing. Convicted in 1942 for refusing internment, Fred Korematsu returned four decades later to the San Francisco federal district court that had branded him a criminal. Invoking the recondite writ of error coram nobis, his attorneys argued that his conviction should be overturned because of "smoking gun" evidence recently discovered in the national archives. That evidence showed that the Executive Branch had suppressed critical exculpatory evidence during the original criminal proceedings Internment, Redress, and Denial 935 in which Fred Korematsu and three other defendants challenged the intem- ment's constitutionality. On that eventful day, after months of delay by the U.S. government, Fred Korematsu was finally allowed to make his case to a packed courthouse. Address- ing the court, he made a simple request: "I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed or color."' Judge Patel stunned the audience by granting the petition and vacating Korematsu's conviction. With eloquence, she explained that Korematsu "stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. ' Barely able to contain their enthusiasm and some in tears, the audience felt they had achieved an "impossible dream."3 This victory and the other coram nobis cases of Minoru Yasui and Gordon Hirabayashi were extraordinarily significant. They added crucial momentum to the redress movement that culminated in the path-breaking 1988 Civil Liberties Act, which provided both an official government apology and $20,000 in repara- tions for each surviving internee.4 By any metric, the coram nobis cases were remarkable successes. Specific wrongs, such as the suppression of evidence, were identified, and unjust convictions vacated. Yet, there was a dark lining to this silver cloud that has never before been exposed. In granting victory to the petitioners in the coram nobis cases, the Judiciary absolved the one branch of government that has never been held accountable for the internment: itself. In overturning these convictions, the lower federal courts adopted an official legal history that insulated the wartime Supreme Court from any fault. According to that account, the Supreme Court was simply duped by bad apples in the Departments of War and Justice, who suppressed exculpatory evidence. If the wartime Supreme Court opinions were trash, it was because of the incomplete information the Court was provided: garbage in, garbage out. But this tidy story is nonsense. The wartime Court was no innocent tricked by conniving lawyers. It was a full participant in the internment machinery, and 1. ERIC K. YAMAMOTO, MARGARET CHON, CAROL L.IZUMI, JERRY KANG & FRANK H. Wu, RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT 283 (2001) [hereinafter RACE,