Ja­panese-Amer­i­can he­roes’ chil­dren crit­i­cize travel ban

Yet some say 1942 case and Trump ban are not com­pa­ra­ble

USA TODAY International Edition - - NEWS - Richard Wolf @richard­j­wolf USA TO­DAY

WASH­ING­TON Karen Kore­matsu had planned to be in­side the Supreme Court on Tues­day “to wit­ness his­tory” — or, in her case, to re­live it.

Her fa­ther, Fred Kore­matsu, was one of three young men who chal­lenged Pres­i­dent Franklin Roo­sevelt’s Ex­ec­u­tive Or­der 9066 in 1942 au­tho­riz­ing the forced re­moval and in­car­cer­a­tion of some 120,000 West Coast res­i­dents of Ja­panese an­ces­try. Kore­matsu lost his case at the Supreme Court in a 6-3 de­ci­sion that dis­sent­ing Jus­tice Robert Jack­son called “a loaded weapon, ready for the hand of any au­thor­ity that can bring for­ward a plau­si­ble claim of an ur­gent need.”

Pres­i­dent Trump’s ban on trav­el­ers from pre­dom­i­nantly Mus­lim coun­tries in the name of na­tional se­cu­rity rep­re­sents just such a claim, Karen Kore­matsu says. The ban had a date with the Supreme Court for Tues­day that’s been can­celed for now, but she says it will be back — and so will she.

“I haven’t given up hope,” Kore­matsu, 67, said. “My fa­ther waited 40 years for jus­tice.”

So did Gor­don Hirabayashi and Mi­noru Ya­sui. the other two men who de­fied FDR’s or­der but failed to con­vince the Supreme Court. In the 1980s, their crim­i­nal records were thrown out fol­low­ing rev­e­la­tions that the govern­ment had lied af­ter the 1941 at­tack on Pearl Har­bor about Ja­panese Amer­i­cans’ dis­loy­alty.

Their fa­thers are dead now, but Karen Kore­matsu, Holly Ya­sui and Jay Hirabayashi want the jus­tices to avoid a de­ci­sion they say would re­peat the same mis­takes of the 1940s: broad­brush dis­crim­i­na­tion and ab­di­ca­tion of ju­di­cial over­sight in the name of na­tional se­cu­rity.

More than 80 le­gal briefs have been filed in the case. But the Kore­matsu brief likely has caught the jus­tices’ attention by re­mind­ing them of rul­ings long since dis­cred­ited.

“Clearly it was an is­sue of ‘ra­cial prej­u­dice, wartime hys­te­ria and a fail­ure of po­lit­i­cal lead­er­ship,’ ” Holly Ya­sui said, quot­ing from a fed­eral com­mis­sion’s 1983 re­port that found the re­lo­ca­tion and in­tern­ment of Ja­panese Amer­i­cans was un­jus­ti­fied. She said the same thing is true when it comes to Mus­lims to­day be­cause “we haven’t learned the les­son that the Ja­panese Amer­i­can in­tern­ment gave to us.”

Not every­one agrees the two sit­u­a­tions are com­pa­ra­ble. While Roo­sevelt’s ex­ec­u­tive or­der did not men­tion Ja­panese Amer­i­cans specif­i­cally, the mil­i­tary or­ders im­ple­ment­ing it tar­geted “per­sons of Ja­panese an­ces­try,” while the Trump ban does not men­tion Mus­lims at all. In ad­di­tion, most of the Ja­panese Amer­i­cans were U.S. cit­i­zens liv­ing in the coun­try, not for­eign­ers.

“The stan­dards of con­sti­tu­tional scru­tiny for per­sons in­side the United States (ci­ti­zen or not) are com­pletely dif­fer­ent from the rules for non-cit­i­zens out­side the United States,” con­ser­va­tive blog­ger Josh Black­man, an as­so­ci­ate pro­fes­sor at South Texas Col­lege of Law, wrote re­cently.

Fred Kore­matsu, Gor­don Hirabayashi and Mi­noru Ya­sui were in their early 20s and liv­ing on the West Coast when they de­lib­er­ately vi­o­lated the post-Pearl Har­bor or­der. The Supreme Court ruled against Hirabayashi and Ya­sui unan­i­mously and against Kore­matsu 6-3, rea­son­ing that the or­der was jus­ti­fied to pro­tect against pos­si­ble es­pi­onage dur­ing wartime.

“To cast this case into out­lines of ra­cial prej­u­dice, with­out ref­er­ence to the real mil­i­tary dan­gers which were pre­sented, merely con­fuses the is­sue,” Jus­tice Hugo Black wrote for the Kore­matsu ma­jor­ity.

Forty years later, how­ever, the ba­sis for in­car­cer­at­ing tens of thou­sands of Ja­panese Amer­i­cans was dis­proved. Pres­i­dent Ron­ald Rea­gan signed leg­is­la­tion in 1988 apol­o­giz­ing to those placed in de­ten­tion camps and au­tho­riz­ing mi­nor repa­ra­tions for sur­vivors. All three men later re­ceived the Presidential Medal of Free­dom. And in 2011, act­ing so­lic­i­tor gen­eral Neal Katyal wrote a “con­fes­sion of er­ror” on the part of the Jus­tice De­part­ment.

Katyal, now in pri­vate prac­tice

“I haven’t given up hope. My fa­ther waited 40 years for jus­tice.” Karen Kore­matsu

and rep­re­sent­ing Hawaii in its chal­lenge to the travel ban, said it should be dif­fi­cult for the jus­tices to up­hold the ban based on na­tional se­cu­rity. “You’ve got the legacy of Kore­matsu that they’ve got to worry about,” he said.

Most of the jus­tices have ad­dressed the legacy of the Kore­matsu and re­lated de­ci­sions in pub­lic com­ments. Chief Jus­tice John Roberts, in par­tic­u­lar, was quizzed about them dur­ing his con­fir­ma­tion hear­ings in 2005. If a case like Kore­matsu came to the court, he said, “I would be sur­prised if there were any ar­gu­ments that could sup­port it.”

In a 2015 book, Jus­tice Stephen Breyer said the World War II cases “il­lus­trated that it can be highly de­struc­tive of civil lib­er­ties to un­der­stand the Con­sti­tu­tion as giv­ing the pres­i­dent a blank check.”

Still, the high court in June let the ban go into ef­fect for some trav­el­ers while the con­sti­tu­tional bat­tle con­tin­ues, re­vers­ing the ac­tions of lower fed­eral courts that had put the pol­icy on hold. Trump an­nounced sub­stan­tive changes late last month that could force chal­lengers to go back to those courts again be­fore reach­ing the jus­tices.

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