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Adia Samba-Quee:
Civics 101 is supported in part by the Corporation for Public Broadcasting.

Hannah McCarthy:
Let's try a thought experiment. I'd like you to imagine that you're an American citizen. You're an American citizen and always have been. You were born here in California, to be exact. You went to school here, played with the kids on your block, got a B in algebra, hated taking out the trash, had a crush on the kid who taught you how to surf, worked an after school job at the supermarket in town. Life is good. Mostly not perfect, but this is home. And then one Sunday afternoon, you're lying around your living room with some friends and you hear something on the news. The United States has been attacked. This attack means that the country is joining a war, which is reason enough for You an American citizen to be concerned. But there's another thing. The nation that staged this attack, your parents immigrated from there, and that's why your home is about to turn on. Bars and clubs print hunting licenses, declaring open season on anyone of your heritage. Magazines print articles explaining what physical features distinguish you from other Americans. Businesses hang signs telling you and your family to go back to where you came from. And then the government, your government, issues a curfew. Anyone descended from the country that attacked the United States has to stay indoors between 8:00 p.m. and 6:00 a.m.. And finally, an order comes down, the president will allow the military to remove and relocate whoever it wants. The military picks You mere months after a foreign nation attacked American soil. You, an American citizen who has never been to that foreign nation are forced out of your home and incarcerated in a camp without due process of law. Because you look like the enemy. Now, here's the question. Does that seem constitutional to you? This is Civics 101, I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And today we're exploring a case that upheld the removal and relocation of 120000 people of Japanese heritage, the majority of them American citizens, to isolated camps for nearly four years during World War Two. We're talking about the 1944 case, Korematsu versus the United States.

Karen Korematsu:
My father learned about the Constitution in high school. He was born in Oakland, California, attended Castlemont High School, was just like any other American kid and hung out with his friends. But he was paying attention to the Constitution that day in class and he thought he had rights as an American citizen. And the Executive Order 9066 was issued.

Hannah McCarthy:
This is Karen Korematsu, daughter of the late Fred Korematsu, the plaintiff in Korematsu v. United States. She founded and serves as director of the Fred Korematsu Institute for Civil Rights and Education.

Nick Capodice:
And what is Executive Order 9066?

Karen Korematsu:
The executive order gave the military the authority to forcibly remove anyone of Japanese ancestry from the West Coast.

Hannah McCarthy:
This order was issued at the height of anti Japanese sentiment in the United States following the attack on Pearl Harbor in Honolulu, Hawaii, on December 7th, 1941 by the Imperial Japanese Navy, Air Service

Nick Capodice:
And everything you described at the beginning of this episode, the signs on businesses, the magazine articles, the hunting licenses, the curfew did all of that happened to Japanese immigrants and Japanese Americans in the U.S.?

Hannah McCarthy:
It really did. It also needs to be said that anti Asian sentiment was already rampant in the United States. The Japanese military attacked Pearl Harbor, the U.S. entered World War to Japan, officially became an enemy nation. And the reasoning was, well, you can't separate the sheep from the wolves in sheep's clothing. There may be spies and saboteurs among Japanese immigrants and Japanese Americans. So lock them all up. Racism is necessarily not separate from that. That is something to keep in mind when we get to Fred Korematsu case. And speaking of the case, Karen Korematsu, Fred's daughter, is an expert on it now, but she didn't even learn about it until she was 16 when a school friend of hers mentioned Korematsu versus the United States in a book report.

Nick Capodice:
And are you telling me that Karen Korematsu didn't know her father was part of this monumental Supreme Court case until she went to high school? How is that possible?

Karen Korematsu:
I always ask the question, well, why didn't anybody talk about this? Well, it wasn't it wasn't acceptable at that time to even speak up. At least now what we're trying to do is now we need to speak up, as my father said. But at that time, it wasn't acceptable in our culture, in the Japanese, in Asian culture, you're you're you're quiet. You're not you don't make trouble. You you go along, you do what you're told, especially if it's from the government. You don't make waves. And they all wanted to prove that they were good American citizens and to follow along with the government's orders. You can't fault anyone for that,

Nick Capodice:
And the government's orders were what exactly?

Lorraine Bannai:
So President Roosevelt issued executive order nine six six allowing or basically delegating to the secretary of war the ability to broad powers and the ability to remove or alter the movements of anyone, the secretary of war or his designate, SOF, that there was nothing on the face of the order that was directed at Japanese Americans. But everybody knew. And you could tell from the entire history behind it that it was really directed at controlling the Japanese American population.

Hannah McCarthy:
This is Lorraine Bannai, director of the Fred Korematsu Center for Law and Equality and Professor of Lawyering Skills at Seattle University School of Law.

Lorraine Bannai:
Pursuant to Executive Order 9066, Gen. John L. DeWitt, who was the commander of the Western defense, issued a series of orders against the Japanese American community. He first issued a curfew order that required Japanese Americans to stay near their home and to stay in their homes during certain hours. And that was followed by a series of one hundred and eight civilian exclusion orders requiring Japanese Americans in zone after zone after zone on the West Coast to report for removal from the West Coast. And this included the entire population, including babes in arms and the very elderly. Two thirds of the people who were removed up to one hundred ten thousand one hundred twenty thousand people were like my parents and like Fred, American citizens by birth. So Japanese Americans were first being moved to temporary confinement centers and then ultimately to 10 camps in desolate regions across the United States.

Hannah McCarthy:
These were called internment camps, internment, meaning to imprison somebody, especially during wartime, and Japanese immigrant and Japanese American internment. That is an entire civics one on one episode unto itself. But I do want to make clear before we get to Fred Korematsu case, both Karen and Lorraine refer to the government's actions as incarceration. These remote camps were surrounded by barbed wire. They were presided over by armed guards who had orders to shoot anybody who tried to leave.

Nick Capodice:
But did people do when these orders came down? I mean, I'm thinking about this moment you described at the beginning of the episode. You're you're going on with your life and suddenly your own government starts treating you like the enemy. How do people respond?

Lorraine Bannai:
Deputized Americans reacted to this in a myriad of different ways. There's a kind of a story up there that's kind of like Japanese Americans cooperated and went. And and it's really important, I think, that we kind of like diffuse that. Many Japanese Americans complied. They complied for any number of reasons to show their loyalty, to show they were loyal citizens, because they were frightened, because they were scared, because they didn't know what's going to happen, because they didn't want to be separated from their parents or their children or whatever. So the bulk of Japanese Americans complied. A few did not. And that's kind of what the story is about, is that a few men did not comply.

Hannah McCarthy:
Speaking of noncompliance, let's get back to Fred Korematsu.

Lorraine Bannai:
Fred Korematsu was a twenty two year old welder living in Oakland, California, when he decided to refuse to report for removal. He chose instead to remain in Oakland with his Italian American fiancee, basically to remain with the woman he loved in the place that had always been his home and decided to stay behind when his family was taken away.

Hannah McCarthy:
I should also say Fred Korematsu also just knew this wasn't right.

Karen Korematsu:
He just thought that the government was wrong to put people in prison just because they look like the enemy. He was born in this country who is an American citizen. He had never been to Japan. He was the last of his family. It wasn't even until two thousand and one in the spring was the first time he he even went to Japan. My my husband I took took my parents.

Hannah McCarthy:
There was another significant court case, by the way, that had already upheld the constitutionality of the curfew order, the one requiring Japanese Americans to stay indoors during certain hours. That one called Hirabayashi the United States, which is important to mention because of the argument the government used against Gordon Hirabayashi, because there was no evidence of espionage or sabotage. They went with this. Japanese Americans are prone to disloyalty because of a natural solidarity with their motherland.

Lorraine Bannai:
We have this litany of, quote, characteristics. The Japanese had to say that given those characteristics, the military could, in its judgment, reasonably believe that the Japanese people posed a threat to the country and that the court had to accept that determination. So Hirabayashi upheld the curfew.

Hannah McCarthy:
The Supreme Court agreed with the government. Chief Justice Harlan Stone wrote that racial discrimination was acceptable because, quote, In time of war, residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry, end quote. Again, this is the case that upheld the curfew order.

Lorraine Bannai:
A year and a half later, the Korematsu case comes up before the Supreme Court. And this order was different. The Korematsu case was about the removal of Japanese Americans from their homes, very, very much more intrusive order than one that simply is a curfew that you can't leave your home at night. But the court said that for all the reasons we upheld the curfew order in Hirabayashi, we uphold the removal orders and Korematsu.

Hannah McCarthy:
So the Supreme Court first rules that people of Japanese descent have the racial characteristic of loyalty to Japan that makes them prone to pose a threat to the United States. Then the court rules that the military removal order in the case of Fred Korematsu is constitutional.

Lorraine Bannai:
And in saying that the court upheld the military order and for Mozza, based on the conclusion that this was a military necessity, a military urgency, and it wasn't about race. In other words, this was a military decision. It wasn't a race based decision. And the court actually said Korematsu was not excluded from the military area because of any hostility to him or his race. He was excluded because of the military urgency of the situation.

Nick Capodice:
But the Fred Korematsu case is following this decision that is based on race. And it certainly seems like the incarceration of Japanese immigrants and Japanese Americans must be based on race, because how else do you decide to isolate people of certain descent, but based upon their descent?

Lorraine Bannai:
What's really important here is that every indication was that the removal orders were about race. They were targeted only at Japanese Americans. And yet the court said this wasn't about race. There was about military necessity. And I can go in to how the big concern we have in so many laws that impact minority communities. It's that story. It's like this isn't about race. It's about national security. This isn't about race. It's about public health. The government argued this was a military necessity. The military made a judgment that it was necessary to protect our country. And so it's constitutional that basically the court needs to uphold it because it's within the executive's constitutional power.

Nick Capodice:
So what happened to Fred Korematsu?

Hannah McCarthy:
Well, he had already been convicted by a lower court, this Supreme Court case upheld that conviction. He received five years probation and a federal record. And when we do talk about what happened to Fred Korematsu, I also want people to remember that though this seems like something that happened a long time ago in a different kind of America, Fred and his legal team did not expect to lose this appeal. And the court was not unanimous in upholding Japanese immigrant and Japanese American removal and relocation.

Karen Korematsu:
My father thought for sure that by the time that his case reached the Supreme Court, the Supreme Court would say it was unconstitutional. That's how much he believed in in in our democratic process, you know, and and that in the Supreme Court and the Constitution, because all due process of law was denied. So they didn't have access to an attorney, to a hearing. And they there was no charges against them because quote of the executive order. Right. So that's the process. And so by the time that my father's case, because of appeals was heard by the Supreme Court on December 18th, 1944, it was not a unanimous decision by the Supreme Court. And that's also important. And I encourage students and teachers to to look at the dissenting opinions because the dissenting opinions are still relevant today. The dissenting opinions of of Justice Robert Jackson, who said that might refer to my father's Supreme Court case as this is around like a loaded weapon ready for anyone to pick up and use with a plausible cause. I'm paraphrasing here, Justice Murphy. And forty four call it the ugly abyss of racism. That's very telling. And and Justice Owen Roberts called it unconstitutional

Hannah McCarthy:
After Fred's conviction was upheld. He was sent to the Central Utah War Relocation Center in Topaz, Utah.

Lorraine Bannai:
One thing is that he was ostracized by his own community for taking the stand. And secondly, he was criticized for basically doing this for selfish reasons. He wanted to stay with his girlfriend. It wasn't like he was doing this as an act of civil disobedience, right out of principle for the for the Constitution and make a statement about the Constitution.

Karen Korematsu:
He had a federal prison record for almost 40 years. He could even work for the government. There's a lot of things he couldn't do, but most importantly. He did this for for all American citizens because he didn't want something like the Japanese American incarceration to happen again. That's why after his conviction was was overturned in 1983, he found his voice with encouragement from his legal team to crisscross this country and speak to everyone about his own story and about the treatment of Japanese Americans and the aftermath.

Nick Capodice:
Ok, so Korematsu v. U.S. was overturned in 1983.

Hannah McCarthy:
No, Fred Korematsu conviction was overturned in 1983. The Supreme Court case, however, was not overruled. Still, it's a story worth telling because it reveals exactly how undeniably unjustified the government's actions were in this case. One last thing I haven't yet mentioned about Professor Lorraine Bannai. She was on Fred Korematsu legal team when his conviction was overturned in 1983.

Lorraine Bannai:
During World War Two, the government suppressed, altered and destroyed material evidence while it was arguing its case before the U.S. Supreme Court. General DeWitt, who was the commander of the Western defense who carried out the program of curfew and removal, had written a final report that basically summed up his reasons for the incarceration of what he based his decisions on. And it was discovered that the government had given a copy of this report to the Supreme Court, but it was an altered version. So. General DeWitt had written his final report, and in that report, he said that there was no way to tell loyal Japanese Americans until Japanese Americans, no matter how much time you had truly revealing the racist reasoning behind the incarceration, the Japanese were as a group disloyal and you couldn't figure out a loyal one, disloyal one, no matter how much time you have. At the same time, the government was arguing to the Supreme Court that the reason for the incarceration was because there was insufficient time to tell the loyal from the disloyal, which was totally contradicted by DeWitt's reasoning.

Nick Capodice:
So DeWitt was saying there is no amount of time or energy that could determine who's loyal and who is not. At the same time, the government is telling the court, we had to do this because we didn't have enough time.

Hannah McCarthy:
Right. DeWitt's report exposed the fact that he made a blatantly racist choice when it came to the execution of executive order 9066. All Japanese immigrants and Japanese Americans are suspect, period. The government changed that report when they argued before the court and ordered all copies of DeWitt's original report destroyed. So the copies were collected and burned.

Lorraine Bannai:
What survived, however, was a soldier's memo that said Today I destroyed all these copies of this report along with one co- one surviving copy of the original report

Nick Capodice:
Really says some soldier was crossing the T's and dotting his eyes and left behind proof of this evidence destruction. So I'm guessing after this, Lorrain in the rest of the legal team pretty much had this case in the bag.

Hannah McCarthy:
They did. And Fred Korematsu conviction was, as you know, overturned. But of course, the facts of the case remain and the facts are pretty depressing.

Lorraine Bannai:
It was really pretty amazing and sad. I mean, I think when. When my parents when many Japanese Americans who had been incarcerated learned of this evidence, it was great because we could reopen the cases. But it was heartbreaking to know not only that their incarceration had been wrong, but that there had been this massive coverup to lie to the Supreme Court to justify their incarceration.

Nick Capodice:
All right. We'll give it to me straight. At what point was Korematsu v. United States finally actually overturned?

Hannah McCarthy:
So this one's a little trickier. I want to introduce you to one more guest. This is Judge Wallace Tashima of the U.S. Court of Appeals for the Ninth Circuit. He is the third Asian-American and first Japanese American to be appointed to the U.S. Court of Appeals. He has had a long and illustrious career in law. He is also a former internee of the Post and War Relocation Center in southwestern Arizona, a story that we'll hear in our episode on internment. But as we were speaking about his experiences, I asked him to weigh in on Korematsu and whether or not it actually has been overruled. Because the truth is, it is not clear to me.

Judge Wallace Tashima:
You know, usually when a case report overrules one of its own cases, it only does it because it has to reach a different result. I mean, the primary example is the Brown vs. Board of Education member. Before that, the constitutional doctrine was the government could comply with the equal protection laws by having separate facilities. Brown versus Board of Education overruled Plessy versus that the court had to overrule the other case or decide. That's not the kind of ruling that happened in way.

Hannah McCarthy:
That would be a 2018 case called Trump v. Hawaii, which challenged President Trump's executive order restricting travel to the U.S. by people of certain, notably predominantly Muslim nations. The Supreme Court reversed a Court of Appeals decision that this order likely violated the Immigration and Nationality Act and ruled that the president did, in fact, have the power to restrict that travel. Both the opinion and the dissent referenced Korematsu. Chief Justice Roberts wrote the opinion.

Judge Wallace Tashima:
Then he said the dissent referenced requirements affords the court the opportunity to make express what is already obvious. And then he quotes Justice Murphy. Korematsu is wrong. The day was decided has been overruled by the court of history. And to be clear, it has no place in law under the Constitution. Well, that's all good, and I'm sure you know that. But it's not something that the court had to do in order to reach the result because in spite of, you know, Justice Sotomayor is dissent. The majority still said that, you know, this this proclamation by President Trump is constitutional, so it's really kind of odd, I'd say almost bizarre way case.

Hannah McCarthy:
So is that an overruling? Judge Tashima leans yes, but calls it a weird one. People may generally agree that, quote, being overruled in the court of history is being overruled. And again, legal scholars haven't really sunk their teeth into this one yet. Lorraine Bannai and Karen Korematsu being too strong outliers.

Lorraine Bannai:
First of all, he didn't say he overruled it. So Justice Roberts, that has been overruled by the court of history, so he didn't overrule it. We don't even know what the court of history is, actually. But even when he said it's been overruled by the court of history, he didn't specify what he was overruling. Did he mean we can never incarcerate one hundred and twenty thousand persons on the basis of race again? But what's most important to those of us who are so disappointed in what he did was that it's really clear that he didn't overrule one of the most important things from Korematsu or several important things from form UTSU. One is the idea that courts should defer on issues of national security, that basically Korematsu was so dangerous because the Supreme Court said if and if the military wants to do this, if it's a matter of military necessity, the court doesn't have a role in in questioning that

Karen Korematsu:
When when Chief Justice Roberts said that Korematsu was overruled in the court of history is dicta that's a legal term, meaning it was just a reference to the case. It did not. There was no overruling in support of the decision of Trump vs. Hawaii. So, yes, who knows what would happen. I mean, this is what my father was always afraid of, is somehow his case would be would be cited for for, you know, as a precedent in another legal case. And that and that still could happen.

Nick Capodice:
See, that is something that is particularly eerie to me about this case, like the famous relationship between Plessy v. Ferguson and Brown v. Board. You know, Brown versus Board of Education overruled Plessy v. Ferguson. But Korematsu has not been explicitly overruled in the same way. And essentially the mass incarceration of people in the U.S. without due process has not been canceled in the books, even though pretty much everyone agrees that it's wrong.

Judge Wallace Tashima:
Well, I think it's important to study it, to understand how it came about. And I think to also understand that Korematsu, I'm sure at the time it was decided was a reflection of the great sentiment in the country, partly because America was at war with Japan. I think study it, one to assess, well, was it just, was it not just? If you conclude it was unjust then, you know, I think studying it is going to help you maintain your visual not to let something like that happen again to another group. That's the worry.

Hannah McCarthy:
Part of keeping that conversation alive, according to Lorraine Banai, is that it serves as a reminder of how easily this kind of thing can happen in America.

Lorraine Bannai:
That this isn't just a story about some some crazy people who decided to be racist, incarcerate Japanese Americans. It's a story about an entire American public that left this happened. And to be able to learn from that, how easy it is for us to walk over that line if we're not paying attention.

Hannah McCarthy:
You know, ultimately, the lesson is really twofold for Karen. One element is this long arc of history that leads to racist actions that we have to understand.

Karen Korematsu:
What people don't realize is the intersectionality of of the the history of this country, the racism, the marginalization, the inhumanity. That's why history is so important. People think, well, why do you have to teach history or why do we have to have Asian Pacific Islander history or why do we have to have black history? Well, because we haven't learned the lessons of history, obviously.

Hannah McCarthy:
And the other part of the lesson is, well, what her dad did.

Karen Korematsu:
Would like everyone to remember my father's words stand up for what is right and don't be afraid to speak up.

Hannah McCarthy:
If you're thinking that we barely scratched the surface of Japanese incarceration during World War Two in this episode, we agree and we have an addendum in the works. Check out the feed for more from Karen Korematsu, Lorraine Bannai and Judge Wallace Tashima. Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice.

Nick Capodice:
Our staff includes Jackie Fulton, Mitch Scacchi and Erica Janik is our executive producer. Music in this episode by Alex Mason, Bio Unit Croawander, Hinterheim and Xylo Zico.

Hannah McCarthy:
You can learn a lot more about Fred Korematsu and Japanese incarceration at our website, civics101podcast.org. While you're there, you'll find a link to densho.org, which I cannot recommend enough for learning more about the incarceration during World War Two.

Nick Capodice:
And remember, you can listen to any of our hundreds of episodes and how American democracy works on Apple podcast, Spotify or your podcast app of choice or our website civics101podcast.org.

Hannah McCarthy:
Civics 101 supported in part by the Corporation for Public Broadcasting and is a production of NhPR, New Hampshire Public Radio.

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