May is Asian Pacific Islander American Heritage Month, a celebration of Asian and Pacific Islanders in the United States. Meshing this occasion and the Crime and Punishment theme of this month's Bar Bulletin is a true story of an Asian American whose crime and punishment was based solely on his Japanese ancestry.
This story was made possible through the extraordinary work of Prof. Lorraine K. Bannai, who is on the faculty at Seattle University School of Law. I have excerpted just one of three stories from her article, Taking the Stand: The Lessons of Three Men Who Took the Japanese American Internment to Court, 4 Seattle Journal of Social Justice 1 (2005). Each story tells about acts of personal courage that come in many forms, whether bold and momentous or quiet acts of resolve. This is Fred Korematsu's story of personal courage.
Fred Korematsu was born in Oakland, California, and was 22 years of age in the fall of 1941. His parents had both immigrated from Japan in 1906. Because of their status, his parents were denied the ability to become naturalized citizens of the United States. Further, anti-miscegenation statutes prohibited Japanese immigrants and Japanese Americans from marrying Caucasians and California had enacted the Alien Land Law Act of 1913, which barred aliens who were ineligible for citizenship from purchasing land. However, because he was born in the United States, Fred was accorded citizenship. Fred grew up in this atmosphere of racial antagonism.
The bombing of Pearl Harbor on December 7, 1941, shocked the country, but brought particular fear and anxiety to the Japanese American community. Shortly thereafter, in the spring of 1942, the public and press began to call for the removal of the Japanese Americans from the West Coast. In response, President Roosevelt signed Executive Order 9066 on February 19, 1942, which granted sweeping power to the military.
Lt. Gen. John DeWitt, commanding officer for the western states, undertook the control of the Japanese population on the West Coast. Congress made a violation of any military order pursuant to Executive Order 9066 a federal crime. Gen. DeWitt issued Civilian Exclusion Order No. 34, which excluded all persons of Japanese ancestry from the Oakland area and required them to report to an assembly center.
Pursuant to these orders, Fred's family, along with 110,000 other persons of Japanese ancestry, chose to report to "assembly centers." Fred, on the other hand, chose to stay in Oakland out of his belief that he should be able to go about his life like any other citizen. After just three weeks, Fred was arrested and transferred to the federal jail in San Francisco. Ernest Besig, executive director of the San Francisco office of the ACLU, visited Fred and agreed to represent him in challenging the internment orders. Fred was ostracized by his own community for resisting the internment orders, but maintained his resolve.
On September 8, 1942, Fred's case went to trial in the U.S. District Court for the Northern District of California. Fred testified as to his own loyalty and willingness to take up arms in defense of the country. Nevertheless, he was found guilty of violating the civilian exclusion order. Convicted, he ultimately was moved to an internment camp in Topaz, Utah, surrounded by barbed wire and armed guards.
After bouncing back and forth between the appellate courts, it took almost two years for Fred's case to reach the Supreme Court. His case was argued before the Supreme Court on October 11, 1944. Hopeful for vindication, Fred waited for the opinion, which was issued December 18. However, the Court affirmed his conviction, reasoning that the exclusion order was justified by "imminent military necessity."
The Court concluded that Fred's case was not about race: "Korematsu was not excluded from the Military Area because of hostility to him or his race." Rather, the Court explained he was excluded because of the military judgment that it was necessary to "temporarily" segregate Japanese Americans from the West Coast.
Reopening the Korematsu Case
Fred waited for an opportunity to reopen his case and clear his name. The opportunity came in 1982 when Prof. Peter Irons visited him. Irons was researching a book about the lawyers involved in the internment cases when he discovered evidence in the Justice Department's files that the government had suppressed, altered and destroyed material evidence during the pendency of Fred's WWII case.
On January 19, 1983, a petition for writ of error coram nobis* was filed on his behalf in the same court that had convicted him 41 years earlier. Fred presented proof that, even prior to the internment, the government's own intelligence agencies had concluded that Japanese Americans were loyal and advised against mass internment; that the government attorneys failed to disclose these reports to the Supreme Court; and that an early version of Gen. DeWitt's final report was ordered revised and original copies burned because it undermined the government's argument before the Supreme Court.
On November 10, 1983, Fred stood before Judge Marilyn Hall Patel, who then granted the petition and vacated Fred's conviction. Fred's stance was more than his belief that he was personally wronged. He believed that the internment of a group of people based solely on race was wrong. Until his death in 2005, Fred continued to fight for justice so that a mass internment of Americans based on race would never happen again.
Gary Maehara is the current president of the King County Bar Association. He can be reached at mailto:garmae@safeco.com.
* Professor Bannai served on the legal team that filed the writ of error coram nobis on behalf of Fred Korematsu in San Francisco. A similar petition was filed on behalf of Gordon Hirabayashi in Seattle, seeking to vacate his conviction on similar grounds. Hirabayashi's defense team included Seattle attorneys Rod Kawakami, Kathryn Bannai, Arthur Barnett (who represented Hirabayashi during World War II), Sharon Sakamoto, Michael Leong, Nettie Alvarez, Camden Hall, Daniel Ichinaga, Gary Iwamoto, Craig Kobayashi, Nina Mar, Richard Ralston, Roger Shimizu, Benson Wong, Jeffrey Beaver and Karen Narasaki.
