Truth, Reconciliation, and Korematsu v. United States

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S1: This ad free podcast is part of your slate plus membership, the whistle blowers who called upon the attorney general and the solicitor general to tell the truth and who had plainly said in their memos that we’re about to tell lies to the U.S. Supreme Court. They were rebuffed and they kept their mouth shut.

S2: The government has enormous amount of leverage, enormous amount of power, has a monopoly on information. If anything underscores the duty of the court to serve as a check to make sure that the civil liberties and civil rights, the constitutional rights of the citizenry are protected and that the government is being forthright and that the playing field is level. And it didn’t do so in this case.

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S3: Hi and welcome back to Amicus, this is Slate’s podcast about the Supreme Court and the courts and the law and the rule of law. I’m Dahlia Lithwick. I cover a whole bunch of those things for Slate.

S4: And on this, the first show of twenty twenty one, we are going to actually take a moment to look back to look like a long way back to World War Two and the Japanese internment and one of the most shocking stories of corruption of the Constitution and corruption of the judicial process all the way up to the Supreme Court in U.S. history. And I urge to revisit this chapter of history was actually sparked by a film that I watched in the summer of twenty twenty. The documentary was called Alternative Facts The Lies of Executive Order nine 066. And it’s actually about the factual basis, the underpinning for the Japanese internment during World War Two and all the ways in which just completely fake facts, known fake facts became not just a part of the litigation record in Korematsu and related cases all the way up to the Supreme Court, but actually then became a part of Supreme Court doctrine itself. I decided to just replicate an incredible panel I did this past summer for the American Constitution Society’s Ohio branch. And on the panel, we talked not just about the movie and about that history, the largely lost history, but all the ways in which it still echoes and resonates today. First, just a quick heads up to our slate. Plus members who are no doubt longing for their fix from Mark Joseph Stern. Mark will be back in two weeks for our regular segment, breaking down all the latest from the Supreme Court and the federal courts. Back to our discussion of the Japanese internment and the ways in which the history of that time is lost to us and how correcting the record, even all these decades later, teaches us so much about our current moment and about truth and reconciliation and wending our way back to what is real. I’m so honored to welcome to this podcast, my two compatriots for that panel we did, and who really both opened my eyes to the truth of what this work involves. The honorable Judge Edward M. Chen, an Obama nominee to the US District Court for the Northern District of California. Before he was elevated to the bench. Judge Chen was a longtime public interest advocate. He was also a staff attorney with the ACLU of Northern California, where he served on the courtroom nobis team for Fred Korematsu. Later on in the show, we’re going to actually talk about that groundbreaking legal work and what courtroom noice even means. So, first off, welcome, Judge Chan. It’s a delight to have you here on the show. Thank you for having me. And I’m going to just say what I always say on the occasions in which judges come on this show, which is obviously they are not allowed to discuss pending cases or current events or political matters. And so by necessity, Judge Chan is somewhat limited in what he can discuss. And I think obviously it’s really important to honor that rule in that principle. My other guest today is Don Tomoki. He is the managing partner of Minami Tomoki and among many other impactful accomplishments in his life, Don also served on the legal team that reopened the Korematsu case, overturned Korematsu criminal conviction and helped clarify the historical record, including at the Supreme Court. Don was a 2020 recipient of the American Bar Association’s Spirit of Excellence award. So he is in some sense a living history of both ferreting out this historical wrong and also putting it to rights. Don, it is such a delight to get to talk to you again and to have you on the show.

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S1: Happy, happy to be here. And Ed Chan as an attorney was on that team as well. So a pleasure to be with him.

S4: Well, it is really good to have the band back together, so to speak. And I just want to start with what’s going to seem an obvious question to the both of you. But I think it’ll set the table for our listeners, and that is simply this racism. Deep, deep, explicit racism has been a part of U.S. history all the way back to the founding, all the way back to slavery. Racism against Asian-Americans does not begin in World War two, however. And I wonder if you can just set the table. We can talk about the Chinese Exclusion Act of 1882, but just the ways that this is a longstanding problem that in some sense long predates.

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S1: Fred Korematsu, you said it exact. IRRI, Dahlia, there’s patterns of racism that tend to repeat themselves and throughout the issue seems to be government leaders and the society itself defining who is an American and who is not, who belongs here and who doesn’t. And it just so happens in the turn of the century, in the late eighteen hundreds and early nineteen hundreds, there was Japanese American immigration from Japan and immigration from China and other countries. And at that time, just as the civil war was ending and they couldn’t preserve slavery any longer, but the idea was to preserve white supremacy that cannon was also turned against Asian-Americans at approximately the same time. So on the West Coast, there are a slew of laws in particular aimed at Asian-Americans restricting where they could work, where they could live. Certainly their citizenship, they are not eligible to become citizens, could known most kinds of real property. The effort was to benefit from their contributions in terms of labor, but to keep them moving so they would not establish roots in America.

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S5: And I think what’s important to note historically, which we see an echo of Korematsu, is that that discrimination against Asian-Americans was rooted in scapegoating the first real wave. You mentioned the Chinese Exclusion Act of 1882 that essentially banned the entry of all Chinese immigrants into this country for their citizenship, was in response to a recession. At the time, Chinese had been brought over as workers to work on the railroads, in the mines, in the fields. And then when there was a slowdown in the economy and white workers were left, jobless eyes naturally turned to the culprit, the villains, the perceived villains. And at that time, it was Chinese Americans later on who would be Japanese immigrants, Filipinos at various other points. And so the scapegoating of this group on which to blame the ills of the economy and society started back before the turn of the century. And we see that as we’ll discuss in the Korematsu case.

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S4: So I want to lay out the facts of or the not facts, the fake facts, the alternative news of the Japanese internment. And I think if you’ll both jump in, we’ll try to get it laid out so we can get to the part of it that I think is kind of atrocity at the Supreme Court. So in effect, we have General DeWitt. He’s posted at Presidio. He’s a lieutenant general in the FDR administration. He’s kind of on his way out toward the end of his career for reasons maybe one of you can explain. The Navy has jurisdiction over the entire Japanese American community on the West Coast and do it. And this precedes Pearl Harbor. Right. He has real anxiety about that community. And after Pearl Harbor, I think initially he’s hesitant to round up all the Japanese Americans. Eventually, I think he gets there and he starts making these assertions about unfounded assertions, about, you know, fifth columns, Japanese that are signaling with mirrors and lights overtly claims he heard Japanese bombers in the skies over San Francisco in December of nineteen forty one. This is all false. It’s all slander. This whole Fifth Column story is slander, but the press kind of jumps on. And this in some sense feels like, is it unfair to lay this at the feet of General DeWitt that this is kind of starts as his fever dream?

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S1: Well, I would say that the rounding up of almost one hundred and twenty thousand Americans, seventy thousand of whom were American citizens by birth, they’re born in this country, was certainly in part led by General John al-Dawa. But he wasn’t the only one. This was the most popular thing at the time. And you’re right, W. was fueled by conspiracy theories and appeals to prejudice. And among other protagonists, here is Earl Warren. He was then attorney general of the state of California. He was campaigning for governor on the slogan The Japs must Go. And he was one of the key leaders fomenting the rounding up farmers in the Central Valley. Very much wanted the Japanese out because they opposed competition. They were producing enormous amounts of produce and doing it for less money. So that was a political move to get them out. The newspapers, the media, you know, the more lurid the stories about Japanese Americans, the more papers they sold. The most striking thing, however, about this whole period of history is. The reasons for the Japanese Americans rounding up that is to say, the claims that they are engaging in espionage and sabotage were completely made up, but the government knew it at the time, but yet proceeded to suppress that evidence and their own intelligence reports from the United States Supreme Court. So at the end of the day, while General de Wet was a leader in getting this done, he wasn’t the only one. There are very few defenders of Japanese Americans at that time. This is a very much a popular movement.

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S2: And I think this is where the history of discrimination against Asian-Americans makes this a very easy play for the public and for leaders. At the time, the image of of Asian-Americans being foreigners, perpetual foreigners, never American, never a part of this country, even if they’ve been here for generations, even if they work in the community and provide tremendous economic contributions to the community. Nonetheless, they have always been seen as foreigners and was very easy to exploit that notion. And that’s exactly what happened.

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S4: And Judge, can you just lay out, as I know this is complicated doctrinally, but can you lay out after FDR signs the order and the internment begins the basis of the challenges and the case that goes on to become Korematsu?

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S2: Well, there are three cases that ultimately reach the Supreme Court. The first two cases involving Yasushi and Hirabayashi, where challenges to sort of the first step that led to internment and that was the first thing that the government did, was impose a curfew on Japanese Americans. And and so challenges were brought in Portland and in Seattle to challenge the race based curfew and only applied to Japanese Americans, didn’t apply to Italian Americans, didn’t apply to German Americans, even though we were at war similarly with those countries. And so that was a challenge based on a claim of unconstitutional racism, racial classifications. And that led to the first major case, the Hirabayashi case, which upheld the curfew, and that laid the groundwork for the next step, which was the actual rounding up and exclusion its its phrases and exclusion, but really an internment of all Japanese Americans on the West Coast. And that was challenged by Fred Korematsu. And he brought his case and we’ll talk about that all the way to Supreme Court. And so the next decision the year after was in the Korematsu case in which the court on a six to three vote upheld the exclusion and I think internment of Japanese Americans.

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S4: And Don, I just before we get too, in the weeds on the doctrine piece of this, I really would love for you to describe what that internment was like. I mean, one of the things that I think that sometimes gets lost in history is what it meant for people to pack up all their belongings, leave their homes, how they lived. Can you talk about that for a moment? I think it’s important.

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S1: Well, the velocity in which this happened was startling, and that is to say, December 7th was the attack by Japan within hours of agents swept into Japanese American communities in Seattle and Portland, San Francisco, Los Angeles, Arizona, all up and down the West Coast and began arresting leaders. These were Buddhist priests. These were Japanese school language teachers. These were civic leaders in the community. And they were immediately taken away. And within weeks, as Judge Chen just recited, a curfew was imposed against Japanese Americans. They couldn’t leave their houses before 6:00 in the morning. They had to return to their homes at 8:00 at night. The first part of the rounding up involved reports to be interned in temporary military detention camps. So, for example, in my my parents who were living in the Bay Area received notices that they would report to Tan for around racetrack. They were put into buses and these racetracks and fairgrounds up and down the West Coast were converted into temporary prisons, surrounded by barbed wire and machine gun towers. And my father, who was about to graduate from the University of California at Berkeley, which was quite an accomplishment because they were very poor growing up in Japantown, was unable to be there at Berkeley, and he was sent his diploma. And I keep his mailing tube. It says address to transfer and assembly center barrack eighty five, apartment five, barricade apartment five was a horse stall. The entire family was put in a horse stall without heat, without hot water. And you’ve got almost seven thousand six to seven thousand Japanese Americans from the Bay Area put in San Fran until ten more permanent American style concentration camps were being constructed from California to Arkansas. So by the end of nineteen forty two, almost one hundred and twenty thousand people had lost their freedom. They had lost their property, they lost their businesses, and some had even lost their lives. And the government claimed the Japanese Americans were doing two things. This is all based on their claims that Japanese Americans were engaging in espionage in the form of signaling enemy ships from shore and that they were so different, there were so unassimilated, there were so un-American that they were prone to disloyalty. And on that basis, the rounding up proceeded General John L. to what called the Japanese race an enemy race. And he said the very fact that no sabotage has occurred is disturbing confirmation that it will happen. And that’s the kind of crazy logic it was. The very fact that you’ve never been charged or accused of a crime was proof positive that you will be a criminal. That was the predicament that Japanese Americans found themselves. That was a conspiracy theory of the day. And the passion of prejudice was so strong that literally facts didn’t matter. And I think that’s probably the relevant part to today’s world in which we live in it is.

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S4: And it also brings us to the reason that I summoned you both back to this show to talk about this issue again. And that’s because this all becomes baked right into the Supreme Court process itself. That’s the part of it. I know you both work to correct, but I wonder if we can talk a little bit about how all these fake facts, all this fake news that you just laid out, Don, actually becomes part of the record in this litigation. And I think maybe we can start by playing a clip from the film Alternative Facts The Lies of Executive Order nine zero six six, explaining that for the folks at the Justice Department, this was not an easy lift for them. Some of them were very uncomfortable crafting a record in a lawsuit based on what even they at the time knew was false. And specifically, Edward Enis, then director of the Alien Enemy Control Unit at DOJ, was very clear that there was a problem with the government’s justifications for the internment, especially in light of a naval intelligence report that actually concluded the Japanese Americans posed no danger and recommended against rounding up civilians.

S6: He writes to the solicitor general of the United States, a guy by the name of Charles Fahy and Dennis. As it occurs to me that if we don’t disclose the contents of the Navy report to the court, that we are engaging in the suppression of evidence. And rights to the FBI director, Jack Hoover, and basically says, what about these reports by the weight of illicit signaling by Japanese Americans? And J. Edgar Hoover writes back, We’ve investigated every single claim of Schauder ship radio transmissions and we could find no evidence on which prosecution would lie.

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S7: NASA got in touch with James Lawrence Fly, who was the chairman of the Federal Communications Commission, he prepared reports which they sent to NASA, which concluded that there was no substance to any charge that Japanese Americans had committed acts of espionage or sabotage.

S4: So this is where the story becomes, if possible, yet more shocking, as if rounding up American citizens and depriving them of their freedom based entirely on race is not shocking enough. As if General DeWitt’s final report insisting that Japanese Americans pose a national security threat despite having no evidence to support that claim, was not shocking enough. The Justice Department, people within the Justice Department working on these Supreme Court cases, they all know this is fake. They know it’s wrong. They know the internment has been executed on a completely, demonstrably false premise and they cover it up. Here’s another clip from the documentary about that moment when a War Department lawyer, John Berling, tries to raise a flag about what he knows is happening.

S7: When the final draft of the government’s brief to the Supreme Court in the Korematsu case was being prepared, John Berling decided to insert a footnote. It was a cautionary footnote. That said, we are in possession of information that contradicts General DeWitt’s final report, particularly as it involves the commission of acts of espionage and sabotage by Japanese Americans.

S6: The brief is actually goes to the printing presses. John Tamaqua found out about the footnote. He contacted Solicitor General Charles Fahy.

S8: And he ordered the printing presses stopped. The original footnote that John Berling drafted was deleted.

S4: And I suppose my question for the both of you is just this institutionally, how does this happen? How does the Justice Department, the Justice Department, lash itself to a pile of lies like these? I know the short answer is going to be because the military wanted them to, but that doesn’t strike me as super comforting.

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S1: Maybe I could give some framing and then ask Judge Chanta to sort of fill in the details. So when Fred Korematsu challenged this again, the government defended these cases on the grounds that Japanese Americans were engaging in espionage and sabotage. And to his surprise, he lost his case, went all the way up to the US Supreme Court. And in nineteen forty four, he lost. And the government ruled that this is not a case of prejudice or racial hostility against Japanese Americans. This is a case of military necessity.

S5: And it should be noted that Fred Korematsu was convicted without a trial. He had no chance to present evidence, he had no chance to contest the assertions that the government were making about espionage and spying. He basically, I think, by today’s standard, was deprived of a basic due process. Right. So that’s the record that went up to the Supreme Court, correct? Yeah.

S1: There was only two things that the government had to prove. One, he was Japanese American. And two, he was defying the incarceration and therefore he was convicted. So this is a very short trial. And so the case is winding way up to the U.S. Supreme Court. And Edward Núñez, who then is the director of the Enemy Alien Control Division and responsible for supervising the drafting of the government’s brief, defending the entire program, calls up the intelligence reports from the FBI, from the Navy, which has primary jurisdiction over national security on the West Coast and from the Federal Communications Commission, which is responsible for radio signaling what goes on in the airwaves and that sort of national security. And he expects to find that each of these intelligence agencies will corroborate the claims of the army and to with the Japanese Americans were somehow engaging in sort of signaling. And what he finds to his shock and alarm is that the direct opposite, every single intelligence agency responsible for this, Japanese Americans on the West Coast says these people have done no wrong. The Navy says they should never have been rounded up in the first place. And the Federal Communications Commission says General Toits men are picking up radio transmissions emanating from Tokyo, calling them short of ship transmissions. They can barely read 10 words a minute. They know nothing about signal propagation and radio intelligence procedure, and they’re picking up signals from foreign countries and calling them sure to ship transmissions. The Department of Justice, fellow lawyer without bananas, fellow by the name of John Berling, says there’s no doubt that the Army’s claims that Japanese Americans are engaging in spying are, quote, intentional falsehoods. And so we didn’t find this evidence until literally thirty seven years after the cases were decided in nineteen forty four.

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S4: I guess I’m going to ask the same question a different way, Judge Chan, which is I know I sound naive. I don’t mean to sound naive, but this is such a flagrant and you don’t even get me started on a lawyer’s responsibility to tell the truth to the courts because that’s over and above all that this just seems as though the cover up here is shocking, in part because it’s contemporaneous with the crime.

S2: This episode in history illustrates how powerful government is, especially when they bring criminal prosecution. There’s enormous amount of discretion and power because the government has the information and that information is sort of monopolized. So we have to rely in large part upon the good faith for the government to share information that’s relevant. After Akamatsu, as cases have developed, courts have held that there is a due process, right, of a criminal defendant, for instance, to obtain helpful evidence under Brady versus Maryland, that has to be disclosed to the other side. But even with that precedent, even in today’s America, there are a number of episodes and stories about how evidence has not been fully shared in criminal prosecution. So it’s still in large part, we depend upon the good faith and the ethics of the prosecutors. And in this case, where there’s enormous political pressure and you’re under pressure in times of war, those are the forces that acted as I think Don will explain. And I think as the clips explain how there was tremendous pressure not to disclose the full record to the court because they wanted to win. And and we’ll talk about this in a minute, but that fact that the that the government has enormous amount of leverage, enormous amount of power has a monopoly on the information, if anything underscores the duty of the court to serve as a check to make sure that the civil liberties of civil rights, the constitutional rights of the citizenry are protected and that the government is being forthright and that the playing field is level. And it didn’t do so in this case.

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S4: This is the part that I think is so powerful to me, Don, is that, again, it’s very clear we hear it in the film. They know they are telling lies to the Supreme Court. But the hope is that if you just get rid of this footnote, if you burn the original DeWitt report, somehow you’re going to cover it all up. And I feel like this will be my only meta question to the two of you. But it seems that the cover up never works, right? This stuff always comes out. Thanks. In no small part to some of your labors. This has all come out. It suggests to me part of the lesson here has to be not just what Judge Chen says, which is, you know, it’s the duty of the court to probe the facts and make sure they have the facts. But the deeper question that you can’t tell lies on this order of magnitude. In turn, this many people predicated on completely false claims about ship to shore signals and expect the government to not ever be accountable to that.

S1: Well, they did escape scrutiny for thirty seven years. I got to say, the whistleblowers who called upon the attorney general and the solicitor general to tell the truth and who had plainly said in their memos that we’re about to tell lies to the US Supreme Court, this is a highly unfair to this racial minority that these lies be put forth before the court and in the final report of John to wet. But they were rebuffed and they kept their mouth shut. And when 60 Minutes did its story, Ed Bradley, the famed correspondent, asked Edward A. in an interview, why didn’t you do something? His response was Watergate hadn’t happened yet. And he recalls the Nixon administration firing of the independent prosecutor, calling upon the attorney general, then Elliot Richardson, to do that. And instead of doing that, he resigned and he said Watergate hadn’t happened yet, didn’t occur to me to resign. And we just kind of sucked it up and live with it. So it did work. But the evidence was was quite startling. You mentioned the burning of the evidence. As Judge Chan said, there was no factual record for our Fred Korematsu. So in order to prove that this whole program was justified and bear in mind, by the time the case is on the way up to the US Supreme Court, this imprisonment was a fait accompli. And so they had two choices. Either fight to uphold it or say we made a terrible mistake. This should never happen. And there was a fierce debate in the Justice Department. And ultimately the whistleblowers were literally shouted down and the evidence was suppressed. But during the course of that, you know, DeWitt issued a final report with the justification for the rounding up. And he basically said, you know, these people are so disloyal, they’re such an enemy race that you cannot ever trust them. Therefore, it wasn’t as if we didn’t have enough time to separate the loyal from the disloyal. The fact is, no matter how much time we would have had theoretically there, inscrutable, you can’t separate the sheep from the goats. And the war department read that first draft. There were 10 versions of that final report. The War Department read that and said this is a racist argument. We’re arguing that the reason why the roundup had to happen was precisely because it wasn’t time to separate the loyal from the disloyal. You’ve got to rewrite this. So DeWitt and historians didn’t know this. There were actually two final reports. And you wrote the second report, which was consistent with the government’s representations in the court below, that the reason why the mass roundup was necessary was because it wasn’t time to separate the loyal from the disloyal. The War Department recalled those original copies of the final report, but only nine were returned. They were burned. The original galley proofs were ordered burned. And we have documentation from a sergeant who wrote a declaration saying, I witnessed the burning of the final report, but they didn’t burn every report. There was one missing document that was thirty seven years later found in the Department of Commerce. And that’s just one indication.

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S2: And this one part of the suppression and the cover up and that distinction between being able to separate the lawyer from the disloyal ever or having to do so under exigent circumstances was pivotal to the Supreme Court’s decision upholding the internment. The court said, quote, We cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of the population whose number and strength could not be precisely you can quickly ascertain. So that was pivotal to the Supreme Court’s decision and historic fact that the Don points out that shows you how material that cover up was.

S4: So in some sense, now we’re talking about the cover up within the cover up. Right. Which is that the initial cover up was too racist even for now. For this moment, we have to we have to paper over that. And then, as Don has said a couple of times, the ways in which all of the material then is hidden away until it’s found in the nineteen eighties pursuant to reexamining this.

S1: That story was Peter Irons, a professor at stumbles upon these documents that had been misfiled in the Commerce Department. He was wanted to write a story about Fred Korematsu and he couldn’t find Fred Korematsu, his Justice Department files in the archives, any traces them to the Commerce Department. And he opens boxes that had not been opened in 40 years. And he discovers these internal memoranda from Justice Department lawyers really going through an internal dilemma about. Their duty to be truthful to the US Supreme Court and on the other hand, pressure from this war department, from the solicitor general, from the attorney general to cover up and suppress and even destroy this information.

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S4: Judge Chan, maybe you can reflect for a minute on this question that I think you’re poking at it, but maybe we could talk about it very, very explicitly, which is it is really difficult to know how racist is too racist for the US Supreme Court. They back out of what appears to be really, really deep seated. Racism, still very racist, and the court blesses it. And I a little bit wonder about that power wash. And I know partly it’s just claims about executive power in wartime. But also, even absent that, if you read the dissenters in Korematsu, it’s clear that the court is well aware that this is still maybe not as racist, but very, very, very racially disturbing.

S5: Thank goodness we have a dissent. Justice Murphy points out how racist and how much of a stereotyping and scapegoating is going on here. And yet that was not enough to move the majority. The majority, including Justice William Douglas, were the great liberals of the court, including Felix Frankfurter, one of the great legal minds who, by the way, served on the board of the national ACLU at one point all went along with this. And if you look at the two decisions, the Hirabayashi decision and the Cromarty decision, the degree of explicit stereotyping that goes on is just phenomenal. I mean, the court in saying why we can’t really trust the Japanese, that there’s too much of a risk talks about they have never really fully integrated into American life. Some of them go to Japanese language schools. They attend Japanese temples, they isolate themselves, et cetera, et cetera. Of course, all of it untrue, because if you look at the history of, for instance, Japanese Americans in the communities in San Francisco and in the valleys and in Los Angeles, they were very much an integral part of the economy in the population. But this was the kind of stereotype that we certainly could look at today and says this is ridiculous. Talk about profiling. This is sort of the mother of all profiling in some ways, and they had to be conscious of that. We know that because of Justice Murphy’s descent. And that makes it quite disturbing that this is not something in an era where, you know, we didn’t know about slavery, you know, being so evil, you sort of excuse the founding fathers for for possessing enslaved people. This is right in their face. You have a descent. And yet that was not enough to overcome their reliance upon these stereotypes.

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S1: Murphy’s fellow dissenter, Justice Jackson, said the court for all time has validated the principle of racial discrimination and removing American citizens. And he said that the case lies around like a loaded weapon, ready for the hand of any authority who could put forth a plausible claim of an urgent need, meaning the naked assertion of the government alone would be enough to imprison an entire population. Then he understood that the danger of that. But regrettably, we’re we’re kind of seeing a repetition today.

S4: So before we pivot to today, there’s one other piece of this that I would like to button down, and that is can can one of you kindly explain what a writ of quorum nobis is? It doesn’t necessarily feel utterly familiar maybe to all of our listeners and and why it was important to the two of you and to the other folks involved in this to set the record straight. And I don’t mean that in terms of cliches about, you know, we want to we want to have the factual record corrected, but that maybe it is the loaded weapon, Don. But what it means when the court has built an edifice out of racism and lies about racism, why that cannot be allowed to simply persist?

S1: Well, I wonder just Judge Chan has seen a writ of Khorram Nebeski before or for him in all the years on the bench.

S5: It’s a very rare writ. The usual writ that we see is the writ of habeas corpus. That’s what how people try to correct unjust convictions. But habeas corpus is something that you can use if you’re in custody or you’re under the supervision of the courts. So once you’ve suffered a conviction and you’re beyond probation, a habeas corpus is not going to help you. And that was the case of Fred Korematsu. And so thanks to some great researchers, which did not include me, I will admit I think it was done.

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S2: And some others, they found the then little known writ of Cordoba’s, which does allow. Or revisiting and reopening of a case, if no one, you have some consequences of the conviction that you live with, the fact that Frankenmuth is still had a conviction on his record, which actually could impact certain licenses and things that he could get or could not get. And you find that there was a fundamental injustice, a violation of due process. And so it’s a very narrow window. It’s a little use tool.

S1: But thank goodness that tool was available here and it has no statute of limitations. You know, I was probably asleep during criminal procedure when rid of a requirement of us. What’s discussed. So Professor Peter Ion’s really fashioned that, that we were looking for a device to reopen an ancient case and that was the only one available. It would allow Fred Korematsu to clear his name. There’s no money attached to it, no damages for the imprisonment, but at least he could get the record straight. And for Japanese Americans, he symbolizes the trial set that they all never had. And so that’s why it was important to to them.

S4: Judge Chin, you started with this, and I think we’re there now, but for you, I think the big lesson here is the role of the judiciary. And I wonder if you could talk a little bit about. The judicial responsibility, as you said, to scrutinize facts, to act as a check when there’s such an asymmetry of power between the government and a citizen and maybe lessons that you take from this good and bad about what the judiciary gets right and wrong?

S5: Well, there are two remarkable things that are consequential about the Korematsu, the HIROMICHI decisions. One is what we just talked about, the need for the court to serve as an active participant to to find the truth.

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S2: Simply put and to examine the facts, the other is its role as guardian of the Constitution and of civil rights, particularly of those groups which are which have been called discrete and insular minorities in a famous Carolin products case back in the 30s, that there’s a special role, I think, of the courts to protect those who are disadvantaged in the normal political democratic process. They’re the ones that are likely to be subject to scapegoating the alienation to being disenfranchised. And the courts have a role to make sure that there’s equal justice under law. And both of those basic principles were violated here by these decisions. And as I read earlier, when the court says in the end, we cannot reject as unfounded the judgment of the government, we cannot say that the warmaking branches did not have a ground for believing, et cetera, et cetera, that shows that the court basically says, I don’t care about the facts, is what the government says. We’re not going to second guess. And there are reasons for that, that, you know, there’s there’s things we call deference when sometimes the courts have to defer to agencies. They don’t have the confidence or their various policy reasons to do that. But I think we have to keep in mind that when the court takes that position, when it refuses to scrutinize the record, when refuses to hold the government to prove its case. It really is abdicating a fundamental role of the courts as we think of him. We go to court to find the truth. We’re the one institution where truth is supposed to reign above everything else. We’re supposed to find out what the facts are. That’s why we have jury trials. That’s why we have evidentiary hearings. We’re here to determine the truth. And imagine if you are arrested and charged with a crime and you go to court and you want to plead your case and show that you’re innocent. But the judge says, well, you know, you belong to a particular demographic group. You’re the right age, you’re the right race, you’re the right gender, and you’re in the general area of this high crime neighborhood. That’s good enough for me. We would think that the court is not performing its role, and yet in a way, when the court says we cannot reject as unfounded the judgment of the government without asking for facts, without demanding some kind of proof, that’s what happens. And it makes it doubly bad when it does so, when that act that’s being challenged is directed against politically unpopular, politically powerless group that cannot go to the press and find support, cannot go to Congress, cannot go to the executive branch or other centers of political power for relief.

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S5: The only hope for a group like that in that situation are the courts, and that’s the backstop to the Constitution. And instead the court says, well, Japanese Americans are inherently likely to be disloyal because of and they go on to talk about all the stereotypes that the court engaged in. So it’s a double wrong. It’s a double wrong.

S4: And that’s what makes these decisions, I think, really such a black mark in judicial history and a double wrong, because, as you know, Judge, not only does it put a thumb on the scale of that asymmetrical relationship. Right. It throws in with the powerful side, but also because we live in a country where precedent matters. And, Don, I guess this question is for you, but it’s not simply a one off an injustice done to Fred Korematsu or those thousands and thousands and thousands of people who were interned who, as you said, didn’t get trials. But it comes to stand for a principle that we are still grappling with today.

S1: We are. And a good illustration of that was a Muslim ban. It after year of then candidate Trump running for president and saying Islam hates us, Muslims are terrorists, and vowing to shut down the borders for Muslims entering the country. The Muslim ban was being challenged and here was an opportunity for the court to actually correct the record and Korematsu versus the United States because a very similar kind of facts. But in twenty eighteen, you know, in a five to four decision, the court upheld the ban. And it’s very eerily similar to the Korematsu case. You know, both of these cases involve the government invoking national security to shield its decision from judicial scrutiny. Both involve targeted minorities in which officials, high officials, engage in very explicit rhetoric of racism against those groups. Both involve hidden intelligence reports that the government refused to disclose that they claimed was the basis for rounding up Japanese Americans or in the case of the musclebound shutting down the borders. And both resulted in the court standing down and failing to question whether such deprivation of fundamental freedoms really makes the nation safer. Or in fact, we’re rather the fulfillment of a bigoted campaign promises and racist political ideas. So Judge Chin is absolutely right. That is the province of the court and the founders of the country anticipated that in order for democracy to survive, there would be a need for a check and balance system really to thwart the rise of kings and tyrants. But when those branches fail, when none of them serve as a check and balance of the other, it becomes a civil liberties disaster. And I think the example of Japanese American incarceration illustrates that.

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S4: Judge Chin, I’m not sure how much you want to talk about ways in which some of this is carried over into this moment, but to the extent that I think we are in a profound. Experiment in how alternative facts and fake news and straight up lies and I mea culpa, but the press sometimes and just kind of fever swamp thinking is inflecting into the legal and judicial process. Again, if you if you don’t want to answer any of those nine part questions, that’s fine. But is there a way in which. We think that Korematsu is in the far, far distant past, and yet we’re living in its shadow still.

S5: Well, Don’s reference to the Trump versus Hawaii, which is the Muslim ban case, I think is is a really good manifestation of that very point. I would urge if if your listeners haven’t already read the decision by Chief Justice Roberts and then read the dissent by Justice Sotomayor, you will see that echo very clearly and quite explicitly. You know, I’ll leave it to the scholars and others to to debate that. But if you look at it, a couple of things stand out. One is that for those of us who served on the Korematsu team, it was a bittersweet sort of victory or maybe even a Pyrrhic victory in the sense that finally, after all these years, the Supreme Court took on Korematsu after avoiding reference to it in the Guantanamo case and all these other things, when they had an opportunity, they finally addressed it.

S2: I think the echo was so strong that they had to deal with it. And Chief Justice Roberts, finally, in the last part of his decision, expressly overruled Korematsu. But he does so arguably by sort of narrowing what Korematsu said. He describes Korematsu as the involving the forcible relocation of U.S. citizens to concentration camps solely and explicitly on the basis of race. Well, that was not the reasoning of Khurmatu.

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S5: It wasn’t solely because of race, it was because of national security. It was because of the threat of the need for military necessity. And that’s the point. And the thing that’s interesting is I read to you a couple of times now this language from Korematsu, we cannot reject as unfounded the judgment of the military, etc. We cannot say that the war making branches did not have ground for believing nor a sort of a double negative. Any time a court used a double negative, you know, they’re sort of reaching into trouble. Well, if you look at the majority opinion in the Muslim ban case, Chief Justice Roberts says it cannot be said that it is impossible to discern a relationship to legitimate state interest or that the policy is inexplicable by anything but animus. Again, a double negative, but it’s like it sets the bar so low, it’s almost no bar at all, it really echoes the we cannot reject as unfounded language and Korematsu. And that’s why the Justice Sotomayor really takes the majority to task and explains how, although Korematsu was overruled in name, the court, in her view, did exactly what Korematsu did and the clothes for opinion. She analogizes step by step everything that the court did in Korematsu to what it did in this case. Now, you can agree or disagree with her decision, her dissent, but I would recommend it to your listeners.

S4: And worth noting to judge that she’s very, very. Careful to say that the court has hived off anything in the record, including Trump’s tweets, which she lists overtly, that the court chooses in some sense to blinker itself to the evidence of racial animus because that’s how they get to their conclusion. So I think in a weird way, we’re back to a perfect circle on Korematsu, where if you distort the record to the place that you don’t have to get to those questions. It’s very easy to get to the answer, right, Don? That’s that’s a valence here.

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S1: That’s more or less what Hugo Black did in the Korematsu case, basically denying that this has anything to do with racism, but standing down and not asking any questions. And Justice Roberts said Korematsu was, quote, overruled in the court of history, but then basically comes to the same conclusion of the Korematsu case in nineteen forty four. That is to say that when the government invokes the magic incantation of national security, the court is not going to ask any questions. Well, when that happened in nineteen forty four, the result was a civil liberties disaster. And we think the worst aspects, or I certainly think the worst aspects of the Korematsu case have been imported into a new vessel. And the new vessel is Trump versus Hawaii, the musclebound case where the court given the opportunity to ask questions as to whether separating Muslim American families and it’s still going on right now, actually makes the nation safer. Does it serve any any utility, especially when the ban itself did not include any countries in which domestic terrorism happened in the United States? I mean, there was all kinds of issues. And even the government’s own intelligence reports questioned the value of the ban. So none of these things were asked or discussed by the high court. They simply ruled in favor of the ban.

S4: I want to ask both of you before I let you go whether. There’s a way to think about. Everything we’re talking about today and the closure, but not closure, the resolutions, not resolution, you know, the quorum nobis Korematsu, all of this in some sense resolves it resolves the historic question that we began with. As you’ve both noted, it resolves nothing in terms of a loaded gun still lying around, stripped of explicit racism, but still lying around for the reasons you’ve both described. And this larger conversation we’re having right now in this country about reconciliation, about the possibility of getting back to truth, about the possibility of making amends and reparations and finding our way back to sort of shared values. And again, I apologize after an hour for the big meta question, but it seems to me that maybe you can talk a little bit about what seems like a loss, you know, into the mists of history story that you’ve revived here and this very urgent, I think, question probably the bulk of my listener email about truth and reconciliation in this moment. At this time, when we seem to be drowning in both fake news and kind of abuse of the press, the courts and power. What do we learn from what you’ve learned about Korematsu?

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S1: Reparations, forgiveness, working our way back, the lessons of the Japanese American incarceration, of course, focus on people losing their freedom and their property. But ultimately, I think what we’re talking about is what is this culture? And you mentioned racism being a part of the founding of American history. And we’re really talking about a culture that normalizes behavior. I mean, one of the is the great contributions of the Black Lives Matter movement is to shine a light on not just police brutality, but systemic racism. And with one police shooting after another of young black men, it would barely evoke a shrug until the George Floyd killing. Why? Because it was normal. And again, the Korematsu case when that happened and DeWitt’s rounding up of these Americans was completely normal. That was so logical and so expected that by the time the case came up to the US Supreme Court, of course, you have to uphold it. I mean, that was the pressure of the day. And so Ed talked about how this culture is accomplished. I think there are three parts to this playbook, and it’s a playbook that tyrants have used since time immemorial. One, appeals to prejudice, to fear monger and scapegoat in three Trafficante conspiracy theories, falsehoods and alternative facts. And when you combine all of those three things where facts don’t matter, where the press is the enemy of the people, a culture that says Mexicans are drug dealers and rapists and Muslims are terrorists, Chinese spring disease, any number of these things, once they become normalized and they grip the culture, then almost anything is possible. And we can look to Germany in the nineteen thirties. We can look to contemporary countries now that are experiencing what’s called populism, which is really authoritarianism and the rise of dictatorships and the dangerous things. We’re seeing these elements of this thing infecting our own democracy. And it’s happened in the past before, but never on this scale. You know, Joseph McCarthy in the 50s was an example who understood demagoguery very well, but we’ve never had it at a presidential level. And what is going on now with not just certain people, but large portions of the population, including our representatives, engaging in challenges to the election process where literally no facts exist? To do that and not understanding the danger in the long run is very frightening. And I think it’s all on us really to raise that issue. So I appreciate a slight in doing this.

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S4: Judge Chan, I wonder if you have a final, oh, maybe somewhat more optimistic or saying we take although I’m with Don, I find us in a worrying moment, but just on the possibility of reconciliation, correcting the record justice.

S2: Thank you. There are two things that come to mind. First, one of the lessons I think we’ve learned from Korematsu is that where there is an injustice, we cannot afford to forget it. And the fact that people continue to labor to bring about justice for 40 years after what happened in the forties to Japanese Americans, really, this is an example where it’s made a difference, that consciousness never died. And thanks to the work of Don and others and many others in the movement, there are countless others involved in the reparations movement and everything else that never died. And the fact that the court in Trump vs. Hawaii in twenty eighteen had to deal with Korematsu tells you that that tale was not over, that that ghost was still there, that injustice still had to be addressed. And I think we’ve learned this throughout history, both here in this country and elsewhere. The value, for instance, of truth and reconciliation commissions and everything else. We cannot let an injustice just go away and be forgotten. We need to be reminded of it so that we can do better. Second, and maybe this is coming from a partisan as a judge, but I have. A deep and abiding faith in the courts, notwithstanding its imperfections, notwithstanding the many instances of terrible decisions that we can think about, whether it’s Dred Scott, Plessy or Korematsu, it is still the institution where, at least as an ideal, that we are bound by the rule of law. That law matters more than who the people are before it. It’s to be applied with equal justice and that we put a premium on truth. And even though the court failed, I think in the Korematsu case. That was not the ideal, the ideal remains that we seek the truth and and I think that’s a model for society generally, where we act on accuracy and truth, where we abide by the notion that we’re a nation of laws and not people, or that the laws are to be applied with equal application and equal justice. I think they still represent the beacon of hope for a society. And I have I still have faith. I have to have faith because that’s my job, that I still have faith in the courts, because what I see day in, day out, what I do, what my colleagues do with an earnest effort to go about to find the truth and to do justice. Now, it it’s true. There’s an ongoing debate that’s been going on for hundreds of years and will probably continue about the role of the courts, how much it should play in terms of oversight and checking the other branches, what the scope of review should be. Are there times when the courts should defer in certain situations? And those are fair debates. And again, that debate between Chief Justice Roberts and Justice Sotomayor is a good illustration of that. And I think that discussion needs to go on. We need to be conscious of it and we need to argue about it. And it is so critical, so critical to our society and that I continue to have faith in our courts as an institution that could sort of show us the right path in terms of how we can go about and become a fairer and more just society.

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S4: I want to thank both of you for reminding me why I do a podcast about the courts in the law. The honorable Judge Edward Chen is a district judge on the U.S. District Court for the Northern District of California. He was a staff attorney with the ACLU of Northern California, where he served on the Quorum Nobis team for Fred Korematsu. Don Tomoki is managing partner of Minami Tomoki. He also served on the legal team that reopened that 1944 Korematsu case, overturning Fred Korematsu criminal conviction for defying the removal of almost 120000 Japanese Americans after Pearl Harbor. To both of you, I thank you so, so much, not just for your work, finding this history and making sure it’s corrected, but in your work, spending time with me today explaining to people why it’s not, in fact, history at all. Thank you both. Thank you for having us. Thank you, Dahlia.

S3: So that is a wrap for another episode of Amicus, the New Year edition. Thank you so much for listening in. And if you want to hear more about the issues we’ve discussed in this show today, the documentary, Alternative Facts The Lies of Executive Order nine 066 has just released a DVD so you can watch it home. And we’re going to include a link to the documentary’s website in the show. Notes Actually Watched with my kids. You can keep in touch with us at Amoco’s at Slate Dotcom or you can always find us at Facebook dot com slash amicus podcast. We love your letters. Today’s show was produced by Sara Birmingham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. And we’ll be back with another episode of Amicus in two short weeks. Happy New Year, Capwell.