Japanese-American heroes’ children criticize travel ban

Yet some say 1942 case and Trump ban are not comparable

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.