By Avi Selk
The documents would expose everything: the racism inherent in the president’s executive order, the cynical politics behind it, the lies told in court to defend it.
Peter Irons was sure of this. The lawyer had stumbled across the papers in a government storeroom: secret admissions from U.S. officials that a supposed matter of national security was not what it appeared.
The executive order led to abrupt expulsions, mass detentions and the persecution of thousands on the basis of their ethnicity, but it was false to the core.
Irons intended to prove it. But he could not do it by himself.
With the documents in hand and a knot in his stomach, he stepped out of a taxi in San Leandro, Calif., in 1982 and walked up to Fred Korematsu’s house.
Irons knew the man only by reputation. Long ago, Korematsu had been arrested in this city, his home town, for defying an executive order that led to the expulsion or imprisonment of more than 100,000 Japanese Americans after Japan bombed Pearl Harbor.
Korematsu had gone to court to fight it, much as others now oppose President Trump’s executive order barring people from seven majority-Muslim countries from entering the United States.
Korematsu lost, in 1944, in the Supreme Court. Defeat changed him. For decades, he had been living quietly in a small house, refusing to discuss his case with anyone, even his children, blaming himself for what his government did to his people.
It had taken Irons two letters and a phone call just to get an audience in Korematsu’s living room. Now he sat across from the man, nervous, hoping that seeing incriminating documents the government had kept secret during his trial would convince him to fight again.
Korematsu was a quiet man. He sat in his chair, puffed on his pipe and read Irons’s papers in total silence.
“At least 20 minutes passed without a single word being said,” Irons recalled. “Then he looked over at me.”
“He said: ‘Would you be my lawyer?’”
Today, more than 30 years after he convinced Korematsu to challenge, for the second time, what is widely considered one of the most unjust government actions in U.S. history, Irons is closely watching another legal battle.
He watches the State of Washington and State of Minnesota v. Trump — another “poorly conceived, hastily executed, blanket dragnet,” as he sees it. And others do, too.
“The Trump executive order assumed people are dangerous because they’re Muslims, from Muslim-specific countries,” said Erwin Chemerinsky, who is dean of the law school at the University of California at Irvine and once called the Supreme Court’s ruling against Korematsu “one of the worst decisions in history.”
“That’s the fundamental flaw in both Korematsu and the Trump executive order,” Chemerinsky said. “To assume people are dangerous because of their race.”
As a young man in San Leandro, Korematsu once had a surgeon cut a bit of flesh from his eyelids — to look less Japanese, less suspicious to his neighbors.
It didn’t work.
He was not yet 23 on the day Japanese war planes killed more than 2,000 at Pearl Harbor.
Two months later, as he began to fight a world war, President Franklin D. Roosevelt signed an executive order that led to the roundup and imprisonment of every Japanese American on the West Coast.
Korematsu’s parents and siblings reported to military officials, who took them from their home to live in converted horse pens while permanent internment camps were constructed in other states.
Korematsu refused to go.
“My father was not a complicated man,” said Karen Korematsu. “He had learned about the Constitution in high school. He thought he had civil rights as an American citizen.”
So he made up a fake name and laid low in a rooming house. He lasted only a few weeks before he was spotted and arrested.
A director for the American Civil Liberties Union visited Korematsu in jail. Roosevelt’s order was popular in polls at the time, but the ACLU thought a judge would agree it was wrong.
“My father really believed that,” Karen Korematsu said. “He thought, certainly, the Supreme Court would think this was unconstitutional.”
Korematsu did not get to see much of his case as he was shuffled from jail to jail, then to an internment camp.
His daughter said some other Japanese prisoners looked down on him for causing a stir.
When the case reached the country’s highest court, one Supreme Court judge strongly agreed with Korematsu — writing that his federal conviction for merely staying home “falls into the ugly abyss of racism.”
But most did not. “Korematsu was not excluded from the Military Area because of hostility to him or his race,” the court ruled. “The military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”
Korematsu learned he’d lost by letter, before being allowed to return to California. “He was disappointed and disgusted,” said Karen Korematsu.
So much so that for the first 16 years of her life, her father never told her who he was.
A poster went up in Karen’s junior high school every anniversary of Pearl Harbor. Her classmates, she remembered, would take the opportunity to tell her to go back to Japan.
The idea seemed strange to her. Her mother wasn’t even Japanese, and her father had never set foot in the country.
In fact, she said, the Asian community in the Bay area seemed to hold her father in low opinion.
One day at school, a classmate gave a book report about Japanese American internment during the war.
“I said, ‘That’s interesting. I’d never heard about that before,’” Karen Korematsu said.
Her classmate went on — about “this one man that resisted and disobeyed and it ended up to be a landmark Supreme Court case.”
Karen heard her father’s name, but figured it unlikely. He was a low-paid draftsman, known as a pushover at the office, hardly a legal icon.
When her father came home from work that evening, Karen asked him about it.
“He said, simply, it happened a long time ago,” she said. “And what he did, he felt was right. And the government was wrong.”
The pain in her father’s face told her not to ask again.
And then years later, when she was grown, Karen Korematsu came home one day in 1982 to find her father sitting in his living room with a lawyer named Peter Irons and a stack of old papers.
Irons, who was also a political scientist at the University of California at San Diego, had come across the documents while researching a book.
In mislabeled boxes belonging to the Justice Department, he had discovered memos never seen during Korematsu’s Supreme Court trial.
In one, the general who ordered the internments wrote how the “racial characteristics” of Japanese people made them inherently less loyal.
In another, a naval intelligence officer estimated that fewer than 3 percent of the Japanese population might be saboteurs.
“I thought, ‘My God, there’s probably a lawsuit here,’” Irons recalled.
So he rounded up three Japanese Americans who had fought their internments at the Supreme Court. The first two were eager for a rematch. And hard as he’d been to track down, Korematsu was game, too.
“My father never gave up hope that some day he could reopen his case,” Karen Korematsu said. “He carried that burden all those years.”
As the case proceeded, more about the Japanese internment program was being revealed to the country. A document declassified since World War II contained an admission that the program was designed in part to appease “public morale,” The Washington Post has previously reported.
A congressional panel ruled in 1983 that “race prejudice, war hysteria and the failure of political leadership” prompted the detentions.
Korematsu’s had missed the end of his Supreme Court case in 1944, having been interned along with other Japanese Americans from the coast. But as a federal judge read out her decision in November 1983, Korematsu sat in a packed courtroom.
Irons sat beside him. Men and women who had been imprisoned like Korematsu sat all around.
By then, not even the government would defend Korematsu’s conviction.
“Apparently the government would like this court to set aside the conviction without looking at the record in an effort to put this unfortunate episode in our country’s history behind us,” U.S. District Judge Marilyn Hall Patel wrote in her decision.
She refused. Without ruling on the merit of Irons’s documents, she told the courtroom the government’s position was “tantamount to a confession of error.”
“There was a complete silence for several seconds as people took this in,” Irons recalled. “Then people erupted, cheering, clapping, crying.”
They rushed up to hug Korematsu — at age 63, a pariah and convict no more.
In the remaining years of his life, until his death at age 86, Korematsu would hear apologies from U.S. presidents. He would receive the Presidential Medal of Freedom from Bill Clinton. He would be not so quiet — sometimes even making a speech. And his name would sometimes be invoked when someone felt the government was again casting blanket suspicion on innocent people.
“The extreme nature of the government’s position is all-too-familiar,” reads Korematsu’s 2003 brief to the Supreme Court, arguing against the imprisonment without trial of people at Guantanamo Bay, Cuba. The court would later restore rights to the prisoners.
But with these victories, Karen Korematsu said, come new threats.
She hears echoes of her father’s old warnings in the way Trump’s order casts suspicion on an entire class of people, and the way its defenders in court make claim to national security without citing any evidence against the people the order affects.
She is reminded that during the campaign, Trump promised a broader ban on Muslim foreigners — as well as a registry of Muslims living in the United States.
She is reminded that one of his top backers cited her father’s case — which has never been overturned despite his exoneration — as legal precedent for such things.
“The Supreme Court case still stands,” Karen Korematsu said. “It’s been discredited, but this was always my father’s greatest fear.”