Fred Korematsu

The NY Times has a rather nicely written editorial today honoring Fred Korematsu.

As you may recall, Mr. Korematsu was one of citizens interred under FDR’s Executive Order 9066. Initially, he went on the lamb but was ultimately arrested and convicted of violating the internment order. He received 5 years probation and spent the next few years in de facto forced labor at the Central Utah Relocation Center. Mr. Korematsu appealed his conviction all the way to the Supreme Court (Korematsu v. United States). Alas, the Court refused to overturn the conviction (6-3), viewing the internment as justified by the security risk posed by Japanese Americans.

Although the decision deserves a reading, let me simply quote Justice Robert Jackson’s dissent:

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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

In the early 1980s, Professor Peter Irons (you may have read his fine 1982 book, The New Deal Lawyers) discovered documents revealing that Solicitor General Fahy, who had argued the government’s case in Kormatsu v United States had suppressed the military’s intelligence that concluded that there was, in fact, no security risk. In response, the US District Court vacated the earlier conviction in 1984. Although he would be honored in subsequent years (e.g., he was awarded the Presidential Medal of Freedom), the Supreme Court decision was never overturned.

The New York Times editorial concludes with a few brief paragraphs on Mr. Korematsu’s response to the War on Terror:

In 2004, he submitted a brief to the Supreme Court in support of the right of enemy combatants to challenge their detention in court. The brief used his old case to stress the “extreme nature” of the government’s position. He and his lawyers argued that in the name of national security the government was limiting civil liberties “much more than necessary” and fending off “any judicial scrutiny.”

The court ruled that enemy combatants could challenge their detention in federal court. Still, the president retains power to identify people as enemy combatants and treat them like enemies without much due process. Mr. Korematsu hoped no one would be locked away again for looking like an enemy. But after Sept. 11, 2001, he was not certain that would never happen. He stayed vigilant. All of us should.

I am not a big fan of holidays named after distinguished American citizens. But California’s decision to celebrate Fred Korematsu Day (this past Sunday) seems well justified. Perhaps we should all remember Mr. Korematsu’s struggle and spend a few minutes reading the NYT editorial, the Supreme Court decision (Korematsu v. the United States)and Jackson’s stirring dissent.

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