By James K. Doane
The Board of Governors of the Washington State Bar Association, meeting at Gonzaga University in Spokane on the morning of Jan. 27, unanimously passed a Day of Remembrance resolution to recognize the 75th anniversary of President Franklin D. Roosevelt’s Executive Order 9066, signed on Feb. 19, 1942. At about the same time, President Donald J. Trump announced a series of Executive Orders imposing a U.S. travel ban on refugees and citizens of certain Muslim-majority countries.
Executive Order 9066, racially neutral on its face, resulted in the targeting of 120,000 persons of Japanese ancestry, including U.S. citizens residing on the West Coast, for curfews, exclusion, removal, and incarceration under the guise of military necessity.
The U.S. government prosecuted Japanese Americans on the West Coast who did not comply with the curfew, exclusion, and removal orders, such as U.S. citizens Gordon Hirabayashi, a University of Washington student, Minoru Yasui, a lawyer in Oregon, and Fred Korematsu, a welder in California. They challenged the constitutionality of their convictions in landmark U.S. Supreme Court cases, and lost. The Supreme Court avoided ruling on the constitutionality of the initial incarceration of Japanese Americans. The Court ducked the question again in the case of Mitsuye Endo, a typist, but ordered her release following three years behind barbed wire, not finding any authority for further incarceration of an admittedly loyal U.S. citizen. Endo’s case is the one that led to the closing of the camps.
The wartime Supreme Court cases belong to a small but odious group of cases in American legal history that rationalized bigotry, and the Supreme Court has never overturned them. Justice Robert H. Jackson, one of three dissenting justices in the Korematsu case, which upheld the constitutionality of his removal, warned that “once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination ….The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Seventy-five years ago, lawyers and their bar associations, including the Washington State Bar Association, remained silent, except for a brave few. Meanwhile, government lawyers and courts imposed and enforced wartime restrictions against Japanese Americans. However, in the 1980s and afterward, a new generation of lawyers and the public, led primarily by Asian Americans, vacated the convictions of Hirabayashi, Korematsu, and Yasui, obtained judgments of misconduct by government lawyers in the wartime Supreme Court cases, obtained Congressional redress and multiple Presidential apologies for camp survivors, won Presidential revocation of Executive Order 9066, and even received a confession of error from an Acting Solicitor General of the United States for his wartime predecessor’s suppression of evidence that there was no military necessity for the actions taken against Japanese Americans. In addition, several states, including the Washington state legislature, have for many years annually recognized a Day of Remembrance, lest we forget that what happened to Japanese Americans could happen to any of us if we are not vigilant.
Fast forward to now. In the months before the Jan. 27 Executive Orders imposing U.S. travel bans on refugees and citizens from Muslim-majority countries, some pundits were eagerly telling the mainstream news media that what happened to Japanese Americans during World War II was “precedent” for what could be considered for other groups, such as for Muslims. Our new president’s tweets proposing total exclusion of Muslims and “extreme vetting” are a matter of public record, notwithstanding his more recent tweets that his Executive Orders are not a Muslim ban and that he is merely protecting us from terrorists.
Today, lawyers, judges, governors, state attorney generals, the public, companies, and the clergy are not silent. Even the Justice Department’s top lawyer resigned rather than enforce the Jan. 27 Executive Orders in court. Unlike 75 years ago, people are speaking loudly when others rush to judgment against entire groups of people that may not appear to fit mainstream preconceptions of what it is to be American or someone we might accept as a neighbor, colleague, or family member. Thanks to their efforts, there is now a nationwide temporary restraining order against enforcement of the Jan. 27 Executive Orders. The judge who issued that sweeping order, James L. Robart, a mainstream Republican, was slapped by a tweet from President Trump calling him a “so-called judge” and his order “outrageous.” So far, the Ninth Circuit Court of Appeals appears to agree with this “so-called judge” from Seattle, who was already well known for stating from the bench that, Black lives matter.”
The Supreme Court, with or without President Trump’s potentially tie-breaking appointee, may yet have an opportunity to test whether that rusty “loaded weapon” that dissenting Justice Jackson warned of in the Korematsu decision can still fire, following telephonic arguments on Feb. 7 before the San Francisco based Ninth Circuit Court of Appeals that otherwise might have been heard in person at the William Kenzo Nakamura United States Courthouse in Seattle. That building in Seattle is the same one where Gordon Hirabayashi’s conviction for violating curfew and exclusion orders was thrown out in the 1980s. By way of reminder, William Kenzo Nakamura, posthumous Medal of Honor winner, made the ultimate sacrifice after America removed him from Seattle, at gunpoint, to an American concentration camp following Executive Order 9066.
James K. Doane is on the Board of Governors of the Washington State Bar Association and is Corporate Counsel at Costco Wholesale Corporation.