By Korematsu Institute
When our legal team stood in the courtroom of the U.S. District Court for the Northern District of California on a rainy Nov. 10, 1983, to argue for the overturning of Fred Korematsu’s 40-year-old conviction for failure to obey the military orders directed at Japanese Americans in 1942, we knew that an extraordinary event would be unfolding before us.
Our first clue was the reassignment from Judge Marilyn Hall Patel’s courtroom to the “ceremonial courtroom,” a larger and more grandiose venue for what might become a historic occasion.
The second clue was the crowd. Folding chairs were brought in to accommodate the more than 1,000 people. Reporters were stuffed into the jury box that usually seated only 12 people. Third, the composition of the audience was unusual for a court case – many JAs including Nisei, former internees, 442nd members and our friends and family were there.
The entire scene produced a palpable electricity for JAs who were about to get their first day in court on the issue of their incarceration. Finally, the hearing was held in the middle of a Redress campaign in full momentum even though members of Congress and the public were questioning why Redress should be given when the Supreme Court had legally validated the imprisonment in 1943 and 1944.
Much was at stake that day.
It was a different world than in 1942, when all branches of the government contributed to the civil rights disaster known euphemistically as the “internment.” The executive branch through President Franklin Roosevelt issued Executive Order 9066. The legislative branch through Congress passed a law criminalizing the defiance of yet-to-be-issued military orders. And the Supreme Court validated the curfew and exclusion of JAs in the landmark cases brought by Gordon Hirabayashi, Minoru Yasui and Fred.
As a result, 120,000 JAs were imprisoned without the right to trials, notice of charges or the right to attorneys – all in derogation of their constitutional rights.
By the time we appeared in Judge Patel’s court 40 years after the original convictions were upheld, two branches of the government had repudiated the incarceration. President Gerald Ford had rescinded E.O. 9066 and Congress had made findings through the Commission on the Wartime Relocation and Internment of Civilians that the incarceration was unjustified and caused by “racial prejudice, lack of political leadership and wartime hysteria.”
Only the judiciary had yet to speak on this dark episode of American history.
So 40 years after the incarceration, Fred was asking the judiciary to speak. Personal reputations and perhaps an impact on the future of Redress were at stake for the young attorneys who handled the coram nobis cases and for Fred, who lost his first case in 1944 and felt the weight of responsibility for the decision that justified imprisonment of his people.
I was 35 years old and one of the older members of our team when we started the cases. But our youthfulness didn’t put a dent in our belief in the strength of our cases. We knew the evidence of governmental misconduct was strong. This evidence that the Supreme Court never saw would have refuted the arguments that JAs were dangerous or disloyal. Clearly, a fraud was committed on the Supreme Court in 1943 and 1944.
Our confidence was so high that when ex-Supreme Court Justice Arthur Goldberg publically announced at the start of our work that our efforts were unnecessary and potentially damaging to the Redress Movement, we hesitated for only a second before dismissing his comments as ignorance.
We were on a mission with a clarity of vision and moral righteousness one gains rarely in a lifetime. Plus, we had the evidence Justice Goldberg didn’t know about. Perhaps we had the wisdom of fools or the fearlessness of youth, but we just KNEW that we would win these cases.
We would never have been in that courtroom if Fred and Kathryn (his wife, lifelong partner and our cheerleader) had not made a crucial decision earlier in the case. In the middle of the litigation, the government made offers to cut a deal. They would give Fred a pardon if he would give up his case. The pardon would admit the guilt of his “crime” of refusing military orders but would absolve him of any punishment. Fred and Kathryn refused the offer in a nanosecond.
Then the government offered a more favorable deal – a Pardon of Innocence, which would both forgive any punishment and formally establish Fred’s innocence of the charges. We researched this pardon, but could not find anything. So when I asked the government attorney for the legal basis for this pardon, he told me there was none. They had made the pardon up!
At that pivotal moment in the litigation when we so desperately wanted factual and legal findings on the lack of justification for the incarceration, Fred could have avoided any trial of his case and walked away with a record of innocence for his stance in 1942.
But after we presented the offer to Fred and Kathryn, their response was what we had hoped for. They said, “We won’t accept any pardon from the government; we should be pardoning the government.” We walked out of their home that night with a big “YES” in our hearts.
Their decision was perfectly in character. Fred’s personality and nature was one of quiet strength and integrity. But he also loved to have fun. He golfed, loved to eat and drink beer (in moderation) and greatly appreciated parties! He was an uncomplicated man. Right and wrong were simple concepts to him.
Kathryn also had a great sense of justice – our moral compass with a brilliant mind that remembered everything. Their decision to refuse the pardons were as simple as Fred’s decision to refuse the military orders – they were just the right decisions to make.
So we came to this moment in time after almost two years of work grappling with some monumental legal questions: How do we overturn a 40-year-old conviction affirmed by the Supreme Court? How to prove what no one has claimed before – that a fraud was committed on our highest judicial body?
Can we introduce evidence so old that most of the authors and creators are deceased? Can we show that the justices of the Supreme Court would have changed their minds if they knew the truth? Perhaps most importantly, how do we wield a civil rights disaster not well known in the larger American community into a tool to educate Americans and support the Redress effort?
I argued the case for Fred. The U.S. attorney argued that no legal or factual decisions were necessary. And in an unusual accommodation, the court allowed Fred to speak. In a strong, firm voice he asked the court to overturn his conviction so that what happened to him would never happen to another American again.
Judge Patel then ruled from the bench and stated decisively that the justification of “military necessity” for the executive and military orders were based on “unsubstantiated facts, distortions and representations of at least one military commander, whose views were seriously infected by racism.” With those words, she threw out Fred’s 40-year-old conviction.
From my personal perspective, the Korematsu and coram nobis cases changed my life. To have the opportunity to retry history, overturn a conviction upheld in a monumental Supreme Court decision, and to correct the historical record that was often distorted was the chance of a lifetime.
But there are regrets. I gained a measure of acclaim and recognition that I always felt should have been distributed more equally to members of our legal team who made great contributions: Don Tamaki, Bob Rusky, Karen Kai, Lori Bannai, Dennis Hayashi, Donna Komure, Leigh Ann Miyasato, Eric Yamamoto, Ed Chen, Akira Togasaki and Debbie Ching to the Hirabayashi and Yasui legal teams.
Of course Peter Irons, the progenitor of the case, received his 25 years of fame. And Aiko Yoshinaga-Herzig, the researcher who discovered some of the major documents, has finally been recognized for her indispensable discovery of much of the evidence we used.
Also, we have not fulfilled the second goal of our case, which is to inject the story of the incarceration and the flawed Supreme Court decisions into every constitutional law course in the country so that when Korematsu v. the United States is taught (as it has been for 65 years), professors will also teach about the corruption and manipulation that rendered parts of these decisions flawed. We had great plans, but we were just too tired and too broke after devoting a part of our lives to these cases.
Fred’s enduring value is not just in his individual victory. It was a victory for JAs. It was a victory for Americans and it was a victory for justice. His victory taught America about the fragility of civil rights especially during times of international tensions. It reinforced our belief that civil rights must be fought for and are not simply guaranteed by the courts or by any governmental institution.
Korematsu and the incarceration taught us about the dangers of racism and the need for political action. His case inspired students to go to law school and made us all grateful that our parents struggled so we had the opportunity to pay them back in a small way.
And in the end, Fred, Gordon and Min inspired all of us with the courage to stand up and speak out against injustice.