Copyright 2011 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 105, No. 3 Articles ENDING THE KOREMATSU ERA: AN EARLY VIEW FROM THE WAR ON TERROR CASES Craig Green* INTRODUCTION ............................................................................................................. 983 I. THE KOREMATSU ERA ........................................................................................... 991 A. A Revisionist History of Korematsu v. United States .................................. 992 B. Korematsu’s Companions: Identifying the Korematsu Era ....................... 1002 C. The Korematsu Era’s Flaws ...................................................................... 1006 II. THE WAR ON TERROR ........................................................................................ 1012 A. President Bush and the Korematsu Era .................................................... 1012 B. The Court’s Newfound Skepticism ............................................................ 1014 III. ENDING THE KOREMATSU ERA? ........................................................................... 1032 A. “To Preclude Another Episode like the One Described in Korematsu” ... 1033 B. “Tools Belong to the Man Who Can Use Them” ...................................... 1034 IV. EPILOGUE: WHAT THE KOREMATSU ERA MEANS NOW ........................................ 1038 APPENDIX A ............................................................................................................... 1040 APPENDIX B ............................................................................................................... 1041 INTRODUCTION When President George W. Bush started the Global War on Terror (GWOT) in response to the 9/11 attacks, the United States legal community was as unprepared as the country.1 Bush immediately asserted presidential * Professor of Law, Temple University Beasley School of Law; John Edwin Pomfret Fellowship, Princeton University; J.D., Yale Law School. Many thanks for comments on earlier drafts from Jane Baron, Steve Burbank, Mary Clark, Lynda Dodd, Jeff Dunoff, Barry Friedman, Amanda Frost, David Hoffman, Gia Lee, Greg Mandel, Andy Monroe, Louis Pollak, Bob Reinstein, Theodore Ruger, Jed Shugerman, Neil Siegel, Steve Vladeck, participants at American University’s Conference on Judges and Judging, and participants at Temple Law School’s Faculty Workshop. Thanks also for extraordi- nary research assistance by Mick Alford, Melanie Carter, Allison Gaul, Vicky Killion, Yi Qian, and es- pecially Sarah Happy and Diana Lin. 1 NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT, at xv– xvi (2004), available at http://govinfo.library.unt.edu/911/report/index.htm; see DOUGLAS J. FEITH, WAR AND DECISION: INSIDE THE PENTAGON AT THE DAWN OF THE WAR ON TERRORISM 17 (2008) (“[By September 13,] the President’s advisers agreed that we were at war. Still, we all had a way to go to understand what kind of war we were in and how the United States should fight it.”); JOHN LEWIS GADDIS, SURPRISE, SECURITY, AND THE AMERICAN EXPERIENCE 80 (2004) (“It was not just the Twin Towers that collapsed on the morning of September 11, 2001: so too did some of [America’s] most fun- 983 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W wartime prerogatives and drew analogies to the last great war, World War II.2 Yet as the Bush Administration designed policies of “executive deten- tion” and “military commissions,” most civilian lawyers had never heard those terms, much less analyzed their constitutional limits.3 In this instance, unfamiliarity bred power, as executive lawyers seized political initiative and 4 created unforeseen opportunities for abuse. damental assumptions about international, national, and personal security.”); JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS 34 (2008) (“[T]o say we’re in a state of war with Al Qaeda . set us on a course not only for our interna- tional response, but also in our domestic constitutional relations. But there was little or no detailed deliberation about long-term consequences.” (quoting Matthew Waxman, special assistant to Condo- leezza Rice)). 2 E.g., Remarks at a Ceremony Commemorating the 60th Anniversary of Pearl Harbor in Norfolk, Virginia, 2 PUB. PAPERS 1492, 1492–94 (Dec. 07, 2001); Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11, 2 PUB. PAPERS 1140, 1140–42 (Sept. 20, 2001) (“[F]or the past 136 years, the[re] have been wars on foreign soil, except for one Sun- day in 1941. Americans have known surprise attacks, but never before on thousands of civilians. This is the world’s fight. This is civilization’s fight.”); see also Commencement Address at the United States Air Force Academy in Colorado Springs, Colorado, 1 PUB. PAPERS 974, 975 (June 2, 2004) (“Like the Second World War, our present conflict began with a ruthless surprise attack on the United States.”). 3 It is hard to convey the inattention to war powers that prevailed before 2001, but I have collected two sets of materials to corroborate my personal experience (and ignorance) as a governmental lawyer during part of this period. First, I surveyed four leading casebooks’ treatments of executive detention and military commissions from 1990 to 2010. See infra Appendix A. These widely used casebooks were authored by agenda-setting scholars, and they indicate topics that were taught to the mainstream of American law students. In 2001, none of these casebooks contained any major excerpt or discussion concerning military commissions or executive detention except for Korematsu v. United States, 323 U.S. 214 (1944), and even Korematsu appeared in sections concerning equal protection rather than war pow- ers until well after 2001. See infra Appendix A (tabulating results). Second, I compared law review ar- ticles from 1991 to 2001 with those from 2001 to 2010. Combinations of search terms and case names revealed that articles about executive detention and military commissions were approximately ten times more common in the decade after 9/11 than in the decade before. See infra Appendix B. 4 For recent histories of the current conflict, see PHILIPPE SANDS, TORTURE TEAM: RUMSFELD’S MEMO AND THE BETRAYAL OF AMERICAN VALUES 88–90 (2008); IAN SHAPIRO, CONTAINMENT: REBUILDING A STRATEGY AGAINST GLOBAL TERROR 16–31 (2007); CLIVE STAFFORD SMITH, EIGHT O’CLOCK FERRY TO THE WINDWARD SIDE: SEEKING JUSTICE IN GUANTÁNAMO BAY 36–40 (2007); STEVEN T. WAX, KAFKA COMES TO AMERICA: FIGHTING FOR JUSTICE IN THE WAR ON TERROR 318–23 (2008); John E. Owens, Congressional Acquiescence to Presidentialism in the US “War on Terror”: From Bush to Obama, in THE “WAR ON TERROR” AND THE GROWTH OF EXECUTIVE POWER? A COMPARATIVE ANALYSIS 33 (John E. Owens & Riccardo Pelizzo eds., 2010); and Julian E. Zelizer, How Conservatives Learned to Stop Worrying and Love Presidential Power, in THE PRESIDENCY OF GEORGE W. BUSH: A FIRST HISTORICAL ASSESSMENT 15, 36–37 (Julian E. Zelizer ed., 2010). Cf. Mary L. Dudziak, A Sword and a Shield: The Uses of Law in the Bush Administration, in THE PRESIDENCY OF GEORGE W. BUSH: A FIRST HISTORICAL ASSESSMENT, supra, at 39, 39 (“[W]ithin the [Bush] adminis- tration, law was not ignored. Instead, although the president and his advisers feared law as a potential threat to the operation of the executive branch, they turned to law as a means of achieving important goals.”). 984 105:983 (2011) Ending the Korematsu Era A main element of the Bush legal strategy was reliance on cases from what I call the “Korematsu era.”5 Every American lawyer knows Koremat- su v. United States as a discredited precedent.6 Yet conventional wisdom has too often viewed Korematsu narrowly as a singular error in Supreme Court history concerning the racist internment of United States citizens.7 That portrayal allowed President Bush’s legal advisers to sideline Koremat- su’s “negative precedent” as categorically separate from twenty-first- century events even as the Administration cited other World War II deci- 5 See Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946); Korematsu, 323 U.S. 214; Ex parte Quirin, 317 U.S. 1 (1942); infra Part I.B (discussing these cases as elements of the Korematsu era). 6 E.g., The Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the Unit- ed States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 472 (2010), available at http://www.gpo.gov/fdsys/pkg/CHRG-111shrg67622/pdf/CHRG-111shrg67622.pdf (statement of Elena Kagan, U.S. Solicitor Gen. & Supreme Court Nominee) (singling out Korematsu as a “relatively recent decision . that was poorly reasoned and that is unlikely to come before the Court again”); GEOFFREY R. STONE, PERILOUS TIMES 297–310 (2004) (“Korematsu has become a constitutional pariah.”); Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Ter- ror, 120 HARV. L. REV. 2029, 2077 (2007) (describing Korematsu as a reviled precedent); Eugene V. Rostow, The Japanese American Cases—A Disaster, 54 YALE L.J. 489, 531–32 (1945) (criticizing Ko- rematsu in the strongest of terms); see Stenberg v. Carhart, 530 U.S. 914, 953 (2000) (Scalia, J. dissent- ing) (comparing Korematsu to Dred Scott); Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 400 (2011) (“[I]t appears that at no time since September 11 has any U.S.