by Phil Ting, Executive Director, Asian Law Caucus
Fred Korematsu, who President Bill Clinton described as "helping to widen the circle of democracy by fighting for human rights, by righting social wrongs, and by empowering others to achieve," passed away on Wednesday afternoon (March 30th) at his daughter's home. He died of respiratory failure at the age of 86.
Born in Oakland, California on January 30, 1919 and an American citizen by birth, Korematsu was among 120,000 Americans of Japanese ancestry living on the West Coast when Japan attacked Pearl Harbor on December 7, 1941. In the ensuing months, the Army issued orders rounding up these Americans into 10 Internment camps, each surrounded by barbed wire and machine gun towers and located in desolate regions from California to Arkansas.
Korematsu defied the military orders, evaded authorities and was ultimately arrested and jailed in 1942. He appealed his case to the U.S. Supreme Court, arguing that it was unconstitutional for the government to incarcerate Americans without charges, evidence or trial. He lost. In its 1944 landmark decision, the high court ruled against him, declaring that the Internment was not caused by racism, but rather, was justified by the Army's claims that Japanese Americans were radio-signaling enemy ships from shore, and were prone to disloyalty. The court called the Internment a military necessity.
In a stinging dissent, Justice Jackson complained about the lack of any evidence to justify the Internment, writing "...the Court for all time has validated the principle of racial discrimination...and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that bring forward a plausible claim of an urgent need." Constitutional law scholars have referred to the 1944 case as a "civil liberties disaster."
Korematsu's case stood for almost 40 years until Professor Peter Irons with the help of Aiko Herzig Yoshinaga, researching government's archives, stumbled upon secret Justice Department documents. Among them were memos written in 1943 and 1944 by Edward Ennis, the Justice Department attorney responsible for supervising the drafting of the government's brief. As Ennis began searching for evidence to support the Army's claim that the Internment was necessary and justified, he found precisely the opposite -- that J. Edgar Hoover of the FBI, the FCC, the Office of Naval Intelligence and other authoritative intelligence agencies categorically denied that Japanese Americans had committed any wrong. Other memoranda characterized the government's claims that Japanese Americans were spying as "intentional falsehoods." These official reports were never presented to the Supreme Court, having been intentionally suppressed and, in one case, destroyed by setting the report afire.
It was on this basis -- governmental misconduct -- that a legal team of pro bono attorneys successfully reopened Korematsu's case in 1983, resulting in the erasure of his criminal conviction for defying the Internment.
During the litigation, Justice Department lawyers offered a pardon to Korematsu if he would agree to drop his lawsuit. In rejecting the offer, Kathryn Korematsu, his wife of 58 years remarked "Fred was not interested in a pardon from the government; instead, he always felt that it was the government who should seek a pardon from him and from Japanese Americans for the wrong that was committed."
In throwing out Korematsu's 40 year old criminal conviction, Judge Marilyn Hall Patel of the US District Court of the Northern District of California wrote:
"Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having limited application. As a historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting our constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to protect all citizens from the petty fears and prejudices that are so easily aroused."
In 1998, Korematsu received the Presidential Medal of Freedom, the nation's highest civilian award. President Clinton's introduction of Korematsu reflects the significance of his achievements: "In the long history of our country's constant search for justice, some names of ordinary citizens stand for millions of souls...Plessy, Brown, Parks...To that distinguished list, today we add the name of Fred Korematsu."
Korematsu has been the subject of numerous documentaries including the Emmy awarding film "Of Civil Wrongs and Rights" co-produced by filmmaker Eric Fournier and Korematsu's son, Ken Korematsu. His daughter Karen Korematsu-Haigh actively supported Korematsu's interest in civil rights, helping to found the Korematsu Civil Rights Fund sponsored by the Asian Law Caucus, the oldest Asian American public interest law firm in the nation. Karen remarked "I know he was the country's hero, but he was my personal hero."
Guest Blogger: The Passing of Constitutional Law Legend Fred Korematsu
by Phil Ting, Executive Director, Asian Law Caucus