1) Long thread on Japanese internment and Korematsu v. United States, apparently overturned officially by the Supreme Court today. Today’s ruling was actually problematic, since it strangely mischaracterized the original ruling in 1944. Here’s the passage: 
2) Note that I underscored the line “solely and explicitly on the basis of race,” which is how Chief Justice Roberts herein describes the Korematsu ruling’s basis. But that simply was not the case with this ruling.
3) Korematsu, of course, is vital to our understanding of the one episode in American history where we did actually round up citizens and put them in concentration. Appallingly, the court found it all constitutional.
4) Even more appallingly, it remained (until today) good law. It was never officially overturned, though it had long since fallen into complete disrepute, and other internment-related rulings were indeed overturned. Not Korematsu.
5) So today’s ruling was welcome in that it finally did so. And compliments to the Roberts court. But its characterization of Korematsu is actually deeply problematic, particularly in the context of the larger findings of the court in Trump v. Hawaii.
6) This is because race was neither the sole basis, and certainly was not an explicit one in any event, for the decision to evacuate everyone of Japanese descent from the Pacific Coast, beginning in the spring of 1942.
7) Indeed, just as with the Trump travel ban order, both the executive order issued by FDR (EO 9066) and the subsequent Korematsu v. United States ruling that upheld its constitutionality specifically avoided any mention of the race or nationality involved.
10) As you can see, EO 9066 uses anodyne language that essentially confers upon the military authorities the ability to restrict anyone they consider a security threat from any area they deem necessary. To wit:
11) FDR authorized them to act “… whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine…
12) … “from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.”
13) The military authorities – namely, Lt. Gen. John L. DeWitt, the Western Commander based in San Francisco – wrote the document that determined that everyone of Japanese descent on the Pacific Coast posed a security threat.
14) This was DeWitt’s ‘Final Report,’ issued June 5, 1943. By then, the military had already rounded up the Japanese farming community on Bainbridge Island, WA, and incarcerated them in Manzanar, CA.
sfmuseum.org/war/dewitt0.ht…
sfmuseum.org/war/dewitt0.ht…
15) DeWitt’s logic was bizarre: “The continued presence of a large, unassimilated, tightly knit and racial group, bound to an enemy nation by strong ties of race, culture, custom and religion along a frontier vulnerable to attack constituted a menace which had to be dealt with."
16) …. “It therefore follows that along the vital Pacific Coast over 112,000 potential enemies, of Japanese extraction, are at large today. There are indications that these are organized and ready for concerted action at a favorable opportunity. "
17) The clincher: “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”
Straight out of Kafka.
Straight out of Kafka.
18) Of course, there were no such indications, other than vague and groundless rumors. Both the FBI and Office of Naval Intelligence investigated and found nothing to DeWitt’s fantasies.
19) However, his decision made the evacuation and internment a fait accompli. (It was originally going to be a ‘voluntary evacuation’ until a pack of bigoted Western governors got together and insisted on incarceration in camps.)
20) Fred Korematsu was a Bay Area man who tried to stay behind after the evacuation by posing as a Filipino, and got caught. The ACLU picked up his case.
21) Before his case had even reached the Supreme Court, however, a historic debate occurred between the Justice and the War departments over the validity of DeWitt’s Final Report and thus the justification for the evacuation.
22) The DOJ’s Edward Ennis and John Burling found that DeWitt’s finding of ‘military necessity’ was in fact false, built on racial prejudice and inappropriate.
23) Burling attempted to add a footnote to the government’s brief before the high court saying as much, in fact. It wound up being contested by the War Department and diluted.
24) So the justices may well have been aware of this information, even if it did not appear in their briefs. Nonetheless, they ruled to uphold Korematsu’s conviction for breaking the curfew/evacuation orders.
25) Their language was similar to Justice Roberts’ language upholding the Trump travel ban, insisting that this was about the law pro forma, rather than racial prejudice.
26) "Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast …”
27) “…. and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, …”
28) “… and, finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this.”
29) So, no, Korematsu on its face was not about racial selection. It became a matter of racial selection because of the sweeping powers that FDR had authorized – which were upheld by the court in both Korematsu and Trump v. Hawaii.
30) It wasn’t until Feb. 10, 1986, that a federal court judge threw out the conviction of another Nisei man arrested for violating the exclusion – Gordon Hirabayashi of Seattle. The judge cited governmental misconduct.
31) This cleared the way for reparations and redress, which were finally achieved in 1987. Korematsu’s conviction was never overturned, though it was the subject of a 2011 DOJ admission of error, which negated the ruling’s precedent value.
32) Considering that Donald Trump’s tweets expressing anti-Muslim hostility as justification for the ban are every bit as ethnically bigoted as Gen. DeWitt’s ‘Final Report,’ it’s remarkable to see the Roberts Court repeat the mistake of its 1944 predecessor.
33) Especially in a ruling that ostensibly overturns that same mistake officially. There’s a serious disconnect there. Which makes it seem doomed to the fate of its predecessor – a black mark on the court’s jurisprudential history. /fin/
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