This month marks the 75th anniversary of another controversial presidential order
By Mark S. Kende, Iowa View contributor
Few people know that Fred Korematsu, one of the named plaintiffs in perhaps the U.S. Supreme Court’s most troubling racist wartime decision, actually lived long enough to defend some Muslims who were deprived of due process under President George W. Bush. Perhaps there is a lesson here for President Donald Trump and the U.S. Supreme Court. Let me explain.
President Trump issued an executive order that precluded citizens from seven mainly Muslim nations to travel here, as well as invalidated many of their visas. He also banned admission of refugees who go through years of security screening. However, he provided a special exemption for persecuted Christians in these nations. Our country, founded in part on freedom of religion and on the promise of being a sanctuary, became the opposite. Trump enshrined Christianity as our preferred state religion in probable violation of several parts of the U.S. Constitution.
He justified the order on national security grounds and on the danger of “radical Islamic terrorism,” even though the vetting process for these individuals is thorough. Many of those affected sought to avoid being killed in the Syrian civil war or in other devastated places. Trump omitted from his ban the Muslim nations whose citizens were largely responsible for 9/11.
Coincidentally, Feb. 19 marks the 75th anniversary of another controversial presidential directive that resulted in the U.S. Supreme Court’s 1944 decision, Korematsu v. United States. There, the court upheld the military incarceration of 112,000 American residents of Japanese descent, mostly citizens. They were interned in desolate camps. They had done nothing wrong. Nonetheless, the military enforced President Franklin Roosevelt’s broad executive order.
The president acted because of Pearl Harbor, as well as irrational fears that Japanese-Americans would be disloyal, unlike Americans of German or Italian descent. Unfortunately, the United States had a legacy of discrimination against Americans of Asian descent. Legal historians, such as Eric Muller, have later shown that the U.S. government’s lawyers knowingly lied to the court about the level of danger in a related World War II case about the Japanese called Hirabayashi.
Returning to the present, an appeals court and virtually all of the federal district courts to examine the Trump executive order have temporarily banned it as likely unconstitutional. There is, however, a single Massachusetts federal district court that has upheld the government’s position, providing the division that often causes the Supreme Court to intervene and promote uniformity.
If this case does reach the Supreme Court, the one part of history I hope the court remembers is Fred Korematsu, the brave and dignified plaintiff in the World War II case who was unconstitutionally interned. His conviction has been repudiated, and the U.S. government has even apologized and provided $20,000 in reparations to the incarcerated still living in 1990. Survivors of the camps still exist.
Mr. Korematsu, who died in 2005, spent most of his life speaking out against the injustice, even defending Muslims in the never-ending “war on terror.” During the Bush administration, the government declared many Muslims found in Afghanistan, Iraq and elsewhere to be mere “enemy combatants” without the rights of prisoners of war under the Geneva Convention. Hundreds were flown to Guantanamo, but eventually released after many years. One American citizen, Yaser Hamdi, was instead sent to a U.S. military base, deprived of counsel, deprived of contact with his family, and not even charged with a specific war crime.
In 2004, the U.S. Supreme Court ruled that the government deprived Hamdi of due process. Despite being “radioactive” in his level of danger, according to the Bush administration initially, he was released abroad shortly thereafter. An Amicus Brief was filed on Hamdi’s behalf in the name of Fred Korematsu.
This was a rare victory for a detainee in the U.S. Supreme Court during wartime. One can hope the current justices (whether eight or nine in number) reject President Trump’s un-American order and honor the likes of Fred Korematsu.
Mark S. Kende is James Madison Chair in Constitutional Law and director of the Drake University Constitutional Law Center. Contact: firstname.lastname@example.org