Travel ban revives memory of WWII missteps

Some say 1942 case and Trump rule are not comparable

Karen Korematsu 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 about 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 said. The ban had a date with the Supreme Court for Tuesday that was canceled, but she said 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 after revelations that the government lied after the attack on Pearl Harbor in 1941 about Japanese Americans’ disloyalty.

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

More than 80 legal briefs have been filed in the case.

“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 report in 1983 that found the relocation and internment of Japanese Americans was unjustified. She said the same thing is true when it comes to Muslims because “we haven’t learned the lesson that the Japanese-American internment gave to us.”

Though Roosevelt’s executive order did not mention Japanese Americans specifically, the military orders implementing it targeted “persons of Japanese ancestry.” 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,” wrote conservative blogger Josh Blackman, an associate professor at South Texas College of Law.

Fred Korematsu, Gordon Hirabayashi and Minoru Yasui were in their early 20s and living on the West Coast when they delib- erately 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 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, the basis for incarcerating tens of thousands of Japanese Americans was disproved. President Reagan signed legislation in 1988 apologizing to those placed in detention camps and authorizing minor reparations for survivors. All three men received the Presidential Medal of Freedom. In 2011, acting solicitor general Neal Katyal wrote a “confession of error” on the part of the Justice Department.

Katyal, in private practice 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.

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