Saturday, September 18, 2004

The voice of history

Weighing in on the Michelle Malkin debate is one of the true voices of history: Fred Korematsu, subject of the infamous Korematsu v. United States wartime ruling that upheld the legality of the Japanese American internment, which, as most legal experts and historians concede, has been "overruled by the court of history."

Korematsu recently wrote this piece for the San Francisco Chronicle:
Do we really need to relearn the lessons of Japanese American internment?

Most striking were the concluding paragraphs:
It is painful to see reopened for serious debate the question of whether the government was justified in imprisoning Japanese Americans during World War II. It was my hope that my case and the cases of other Japanese American internees would be remembered for the dangers of racial and ethnic scapegoating.

Fears and prejudices directed against minority communities are too easy to evoke and exaggerate, often to serve the political agendas of those who promote those fears. I know what it is like to be at the other end of such scapegoating and how difficult it is to clear one's name after unjustified suspicions are endorsed as fact by the government. If someone is a spy or terrorist they should be prosecuted for their actions. But no one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese Americans, then these are very dangerous times for our democracy.

Longtime readers will recall that I've written about Korematsu previously at the American Street. Some background:
In the spring of 1942, Fred Korematsu was just a guy in love. As it happened, he was a Japanese-American guy in love with an Italian-American girl. And that was a problem.

Korematsu lived in what government officials had declared a “military exclusion” zone -- which, as it happened, comprised the entire Pacific Coast and all points about 100 miles inland. The 23-year-old welder was planning to get married the following year, and was desperate to remain in Oakland to be near his fiance. Fate, and Lt. Gen. John DeWitt, intervened. ...

In spite of the open cooperation of the Nikkei in implementing this evacuation, there were, unsurprisingly, a few Nisei who tried to evade their fate. One of these was Fred Korematsu.

Even before the word came down in the Japanese community that everyone -- citizen Nisei and alien Issei alike -- was to be evacuated, Korematsu had already tasted the searing prejudice of the times. He had lost his job as a welder in December, when the Boilers Union expelled all of its Japanese American members after Pearl Harbor. He was living with his parents until they were evacuated that spring.

Given the racial tenor of the times -- he was acutely aware that the War in the Pacific was being widely touted as a "race war," and that many of the advocates of evacuation had a history of calling for a "white man's" Pacific Coast -- he knew that his relationship with an Italian-American named Ida Boitano could bring them both to grief. As he later described it to the court, Korematsu "feared violence should anyone discover that he, a Japanese, was married to an American girl." So he underwent plastic surgery on his nose and eyes, hoping to pass himself off as either another Asian national or a Pacific Islander.

When the internment orders appeared, Korematsu hoped that his new identity might give him the cover he needed to avoid the concentration camps and remain with his fiancee. When his parents and three brothers shipped off to the Tanforan racetrack "assembly center" on May 9, he did not join them.

His ruse, however, failed utterly. He was arrested three weeks later in San Leandro and charged with violating DeWitt's "exclusion order." He presented phony identification papers and tried to pass himself off as Spanish-Hawaiian. His story shortly fell apart. To make matters worse, Ida Boitano decided she wanted out of the relationship and told the FBI she had regretted the affair.

Throughout the ordeal, though, Korematsu was firmly convinced that he was being wronged, and he decided to fight the charges. When an ACLU lawyer appeared at the San Francisco County Jail and offered to make his a test case for the internment, he readily agreed.

"I figured I'd lived here all my life, and I was going to stay here," he later said.

"I know Fred felt strongly that his rights had been violated," says Dale Minami, a Bay Area lawyer who many years later helped Korematsu gain vindication in the courts. "His case didn't start out as an intentional protest, but by the time he was charged, he was ready to make it one."

I also went on to describe the legal battle in which Korematsu was swept up:
Fred Korematsu’s conviction, after wending its way down to the appeals court and back up to the Supreme Court, was likewise upheld the following year by the Supreme Court, on Dec. 18, 1944. Once again, the court declined to rule on the constitutionality of the evacuation, but limited itself to his violation of the evacuation order. And it specifically deferred to the wisdom of DeWitt's findings, ruling that Korematsu "was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily ..."

The ruling concludes by repeating legends that had already been established as false by Justice Department attorneys, though this fact was suppressed at the time: "There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that at that time these actions were unjustified."

As many of you know, the Korematsu ruling is now largely considered one of the three great mistakes of the Supreme Court, ranking alongside Dred Scot and Plessy v. Ferguson. As I went on to explain:
The lingering shadow that was cast on American law by the Japanese-American internment camps was foreseen in Justice Jackson’s Korematsu dissent, in passages that would have an especially prescient ring after Sept. 11:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

What the Japanese-American internment revealed for the first time was a hole in the traditional checks and balances of constitutional powers. In wartime, the total deference to the executive branch would lend it nearly comprehensive powers. The post-Sept. 11 response has opened another dimension to this: If wartime -- as in the "War on Terror" -- becomes itself a never-ending enterprise, then the executive branch's power becomes potentially illimitable.

Up to the edge of that hole in the Constitution, the Bush administration has driven a large bus called "enemy combatant status" and parked it. It now sits, idling.

Notably, the Bush administration has chosen not to refer to Korematsu in its arguments before the court upholding its use of "enemy combatant" status; instead, it has referred to subsequent and related rulings from World War II. And for good reason; only William Rehnquist has previously indicated a predisposition toward acceding Korematsu, while the remainder -- even Antonin Scalia -- have made clear their view that this was an invalid ruling. However, in spite of subsequent legislative efforts to short-circuit any future internment camps, it has never been officially overturned.

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