Since 2010, six states—California, Hawai’i, Utah, Illinois, Georgia, and Virginia—have designated January 30th as Fred Korematsu Day, the first day in U.S. history named after an Asian American. The recognition honors the birthday of the civil rights leader best known for resisting Japanese American incarceration during World War II. Several other states, including Michigan and Pennsylvania, have or are considering legislative recognition. This year’s Fred Korematsu Day celebration in San Francisco, which would have been Fred’s ninety-seventh birthday, features a panel that includes Lorraine K. Bannai, author of Enduring Conviction: Fred Korematsu and His Quest for Justice, which the UW Press released in November. As a young attorney in the 1980s, Bannai was part of the volunteer legal team that resurrected Korematsu’s case and got his unjust conviction overturned.
The following excerpt from Bannai’s book reflects on Fred Korematsu’s growing legacy.
Since Fred’s passing, the relevance of his life and case has only grown. His story has remained important as the nation has continued to try to heal the wounds of the wartime incarceration. On May 20, 2011, for example, Acting Solicitor General Neal Katyal publicly acknowledged the improper actions of his World War II predecessor, Charles Fahy, when arguing Fred’s case before the Supreme Court. In his blog post “Confession of Error: The Solicitor General’s Mistakes during the Japanese-American Internment Cases,” Katyal explained that while solicitor generals have played important roles throughout history in advancing civil rights, “it is also important to remember the mistakes.”
Citing the evidence presented in Fred Korematsu’s and Gordon Hirabayashi’s coram nobis cases, Katyal related that Fahy was aware of “key intelligence reports that undermined the rationale behind the internment” but failed to disclose those reports to the Court. “And to make matters worse,” Katyal continued, “[Fahy] relied on gross generalizations about Japanese Americans, such as they were disloyal and motivated by ‘racial solidarity.’” He concluded, “Today, our Office takes this history as an important reminder that the ‘special credence’ the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court. Only then can we fulfill our responsibility to defend the United States and its Constitution, and to protect the rights of all Americans.” Peter Irons commented that he thought the statement was “good and very long overdue.” “This was a deliberate, knowing lie by Fahy to the Supreme Court. For the nation’s highest counsel to make that statement now is quite noteworthy and admirable.”
Fred’s words have further echoed hauntingly as the country has continued to grapple with issues of race, profiling, and the protection of civil liberties during times of crisis. For example, provisions of the National Defense Authorization Act (NDAA) again raise the specter of indefinite military detention without charges or trial, and Fred’s name and case have been invoked to warn of the danger of compromising due process guarantees. Section 1021 of the NDAA of 2012, still in effect, affirms the authority of the military to indefinitely detain individuals who, in the judgment of military authorities, are considered to have “substantially supported” terrorist organizations. Many criticize that this language is so vague it would allow the indefinite detention of innocent individuals, including American citizens, if the military believed them to be “supporting” terrorism, without charges or trial or other judicial review.
In support of legislation to require due process protections, Senator Dianne Feinstein recalled before the Senate Judiciary Committee how her father had taken her to see the wartime detention center at Tanforan when she was a young girl. There, she saw the throng of Japanese Americans held in confinement “for no reason other than that we were at war with Japan.” She said, “I think I didn’t really realize the impact of that until many years later. It remains in my view as a dark stain on our history and our values and also something we should never repeat.” She reminded the committee of Fred, to warn of the need to check the exercise of military discretion:
I want to be very clear about what this bill is and what it’s not about. It’s not about whether [those] who would do us harm should be captured, interrogated, incarcerated, and severely punished. They should be. But what about an innocent American like Fred Korematsu or other Japanese Americans during World War II? What about someone in the wrong place at that wrong time, who gets picked up and held without charge or trial until the end of hostilities—and who knows when these hostilities will end? The Federal government experimented with the indefinite detention of United States citizens during World War II—a mistake that we now recognize as a betrayal of our core values.
Lori Bannai, a member of Fred’s legal team, testified at the same hearing, asking that the country not forget the camps of World War II.
The lessons of the Japanese American incarceration are many. . . . First, of course, is the real, tangible meaning of the guarantee of Due Process. . . . During World War II, persons of Japanese ancestry were incarcerated without any due process. . . . There were no charges brought against them; they had no hearings [and] the rule of law was suspended. We are now confronted with new fears against new peoples, and, while we do need to ferret out and prosecute criminal conduct, we need to do so in a way that preserves our system of laws.
Second, the Japanese American incarceration teaches us about the danger of unfettered discretion. Seventy years ago this month, on February 19, 1942, President . . . Roosevelt essentially issued the War Department and military authorities a blank check, delegating to them the authority to take whatever actions they deemed necessary against whomever they saw fit. Pursuant to this authority, General John L. DeWitt . . . issued orders subjecting Japanese Americans to curfew and then removal from the West Coast and into indefinite detention. . . .
Finally, the wartime incarceration of Japanese Americans teaches us about human frailty during times of crisis. Those who played roles in the incarceration were smart and educated, and saw themselves as devoted public servants who thought that they were doing what was in the best interests of the country. Many came to later regret their decisions. . . . In this regard, we are warned to ensure that executive and military decisions are checked by the civil branches of government and constitutional limits. This is particularly true in times of crisis when fear and racism can infect responsible judgment.
When the NDAA was challenged in court in Hedges v. Obama, Fred’s children, Karen and Ken (in a brief drafted by Fred’s legal team members Eric Yamamoto, Lori Bannai, and Bob Rusky) joined Gordon’s and Min’s children in asking that the courts remember their fathers’ cases and not again allow military detention without due process.
Karen has carried on her father’s work, educating others about the lessons to be learned from his case and seeking to preserve his legacy. As executive director of the Fred T. Korematsu Institute in San Francisco, she speaks out against threats to civil rights such as the indefinite detention provisions of the NDAA. She is involved in recognitions of her father, such as the installation of his photographs in the National Portrait Gallery. She has seen four schools named for him. One of those schools is the Fred T. Korematsu Discovery Academy, a K–5 school focused on math and science opened on the site of Stonehurst Elementary School, the school that Fred and his brothers attended as children. Karen travels the country providing trainings and curriculum packets to teachers to help them educate their students on the wartime incarceration.
Karen has further been involved in efforts to recognize Fred’s birthday, January 30, as a day for public reflection on the constitutional rights he fought so hard to protect. On September 23, 2010, Governor Arnold Schwarzenegger signed legislation recognizing Fred’s birthday as Fred Korematsu Day of Civil Liberties and the Constitution in California, the first time in U.S. history that a day has been named for an Asian American. Six other states have also recognized Fred’s birthday as a day to remember the wartime incarceration. The U.S. Commission on Civil Rights has urged that the president and Congress create a national holiday in Fred’s honor.
Two other endeavors also work in Fred’s name to advance the causes he stood for—equal rights and healing historic injustice—extending his fight for social justice to other contexts, on behalf of other communities, both nationally and internationally. In 2009, the Fred T. Korematsu Center for Law and Equality was founded at Seattle University School of Law. The Korematsu Center, under the leadership of center executive director Bob Chang and director (and Korematsu legal team member) Lori Bannai, seeks to advance Fred’s legacy through civil rights litigation, including the filing of amicus briefs; policy work; research; and other programs. In Fred’s name, the center has, among other projects, fought an Arizona statute used to dismantle Tucson’s successful Mexican American Studies program, criticized the use of national origin profiles, and addressed issues of racial bias in the criminal justice system.
In addition, in 2012, the University of Hawai‘i School of Law named Korematsu legal team member Eric Yamamoto its inaugural Fred T. Korematsu Professor of Law and Social Justice. In his work, Eric contributes to amicus briefs and political initiatives calling for judicial vigilance in the delicate balance of national security and civil liberties, and advocates for the support of reconciliation and reparation efforts abroad. Most recently, he has worked on redress with officials and communities in Jeju, South Korea, to heal persisting wounds of U.S.-related injustice. Both the center and professorship seek to train law students in social justice advocacy, making education central to their missions, just as it was central to Fred’s. Fred’s journey and message continue to be important in many ways.
His call for vigilance is as relevant now as it ever was and will remain so as long as individuals are targeted based on stereotypes and fear. As recently as February 3, 2014, at a session with students at the University of Hawai‘I School of Law, Supreme Court Justice Antonin Scalia stated his belief that something like the wartime Japanese American incarceration could happen again. When asked about Fred’s World War II case, he replied, “Of course Korematsu was wrong. . . . But you are kidding yourself if you think the same thing will not happen again. . . . That’s what was going on—the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality.” Scalia’s words would have been chilling to Fred, who was always fearful that history would repeat itself.
But Fred’s story remains important not only for the warning it provides. It also reminds us of what we, each of us, can do to advance justice. Fred didn’t have lots of money, an advanced education, or great political influence; what he had was a power and grace that grew from a commitment to live by his principles, to refuse unfairness and injustice, and to stand up for others. His story reminds us that we, each of us, have the ability to make those same commitments, and if we do, our communities and country will be all the better for it.
Lorraine K. Bannai is director of the Fred T. Korematsu Center for Law and Equality and professor of legal skills at Seattle University School of Law.
Praise for Enduring Conviction:
“A remarkable story of a man who stood up and spoke out in the same tradition of others in this country who have spoken out against oppression and discrimination. This is what makes America strong – people who have faith in our ideals and who have the guts to stand up for them. Fred Korematsu was an ordinary man who did extraordinary deeds and with that he made history.”—George Takei, actor and activist
“Wonderful! A moving portrait of a seemingly ordinary man, motivated by love, whose passionate resistance transformed him into Fred Korematsu—an icon of the Japanese American Redress movement, and a true defender of American liberties.”
—Lane Hirabayashi, coauthor of A Principled Stand: The Story of Hirabayashi v. United States