An Enduring Response to Injustice
By Elaine ElinsonJanuary 30, 2016
Enduring Conviction by Lorraine K. Bannai
“All of a sudden I had, you know, thirty-five pairs of eyes kind of staring at me,” she writes. “The thought never even occurred to me that it had anything to do with my father […] because I thought I would have been told.”
When she asked her father about it later that night, he told her that it was his case, that he had been judged guilty and he still had a criminal record. It was hard for the teenager to reconcile the man in the history books, who defied the US government during wartime, with the gentle soft-spoken father who stood before her: the two-time president of the San Leandro Lions Club, the man who drove her to Girl Scouts and worked two jobs to provide a secure suburban life for their family.
That is the enigma that Lorraine Bannai probes in her excellent new book, Enduring Conviction: Fred Korematsu and His Quest for Justice, published in November by the University of Washington Press.
Bannai, currently a professor at Seattle University School of Law, was part of the original legal team that pursued the seemingly quixotic goal of overturning Fred’s wartime conviction four decades later. In Enduring Conviction, she skillfully weaves the story of the landmark court case with Fred’s personal journey. Her insider view is valuable not only in analyzing the complex legal issues, but also in providing insight into the Japanese-American community and the personal and political forces that motivated Fred Korematsu throughout his life.
It is surprising that, aside from several books aimed at young readers, this is the first biography of a man whose landmark case challenging the wartime incarceration of Japanese Americans is taught in every law school. Yet the story of the man behind that infamous case well deserves the attention. The son of immigrant Japanese nursery owners in Oakland initially defied the government order to evacuate because he was in love with an Italian-American girl and he didn’t want to leave her. That initial act led to imprisonment, a Supreme Court case, a rare legal reversal, and a life committed to ensuring that such an injustice never happens again. Fred Korematsu, who died in 2005, was an ordinary man who took an extraordinary stand and ended up transforming not only himself and his community, but also the nation.
Bannai traces the history of Japanese immigration to the United States and the evolution of anti-Asian sentiment that led to the Oriental Exclusion League, legal prohibitions on Japanese immigrants from becoming citizens or owning property, and, ultimately, the xenophobic atmosphere that paved the way for the incarceration of 120,000 Americans of Japanese descent during World War II.
After the bombing of Pearl Harbor on December 7, 1941, President Franklin Delano Roosevelt issued Executive Order 9066, forcing 120,000 people of Japanese descent to leave their homes, taking only what they could carry. The Japanese-American community, Bannai explains, “reacted […] in tens of thousands of different ways.” There was disbelief, sorrow, anger, confusion — but with only a week’s notice, most felt they had no choice but to obey the order. Their leading civic organization, the Japanese American Citizens League (JACL), endorsed a policy of compliance.
The Korematsu family was no different. On the day after Mother’s Day, they boarded a bus for a journey into the unknown, forced to abandon their nursery, losing their crop, their money, and all the labor that had gone into it.
But their third son, Fred, had other ideas. He remembered:
When the exclusion order was posted on telephone poles in 1942, I felt angry and hurt and confused about my future. I could not understand how the United States Government could do this to American citizens, who were interned while Americans of German and Italian descent were allowed to be free.
Fred did not board the bus. He and his fiancée Ida Boitano hoped to evade the authorities and set up a quiet life somewhere. But that was not to be. Within weeks, he was arrested on a San Leandro street corner and jailed for disobeying the exclusion order.
At the same time, Ernest Besig, executive director of the American Civil Liberties Union of Northern California, was looking for a way to challenge the exclusion order. When he read of Fred’s arrest, he recalled, “I was hopeful that he would […] be willing to be the test case — the person who would challenge the government’s discrimination against him. And, ultimately, he did.”
Alone in his jail cell, Fred was stunned when he heard he had a visitor — his family and friends had all been taken to the makeshift “Assembly Center” at Tanforan race track, where they were housed in horse stalls and guarded by armed soldiers. But, he recalled, meeting Besig “changed everything.” Fred did agree to become the test case. Though despite Besig’s best efforts, he was denied bail and sent to Tanforan.
Fred was not greeted with a hero’s welcome. Bannai explains that many saw him as betraying his family and community, and ostracized him. As Fred described it, “The other internees knew about me and they kept away from me. They figured I was a troublemaker.”
Along with his family, he was put on a train to the Central Utah Relocation Camp at Topaz, Utah. George Hagiwara describes what they saw when they arrived:
The site of the concentration camp at Topaz was ugly and desolate, barbed wire fencing all around and barren desert, with nothing but sage brush and scorpions. There were military police guards with rifles stationed atop high towers at the four corners of the compound.
It was a hard time for Fred. Inside the crowded, dusty camp, many of his fellow incarcerees felt that he had broken the law, and they shunned him as a criminal. Ida wrote him a Dear John letter.
It was not very different outside. Very few voices opposed the mass incarceration. Only two others challenged the order: Oregon attorney Min Yasui, who wanted to test the curfew order, and Gordon Hirabayashi, a 24-year-old senior at the University of Washington, who was arrested for resisting the curfew and exclusion orders.
Though Besig had recruited the tenacious attorney Wayne Collins to represent Fred, his case faced many obstacles. One came from the ACLU itself: national ACLU director Roger Baldwin instructed the West Coast ACLU affiliates not to take the cases challenging the constitutionality of Roosevelt’s order.
Besig responded angrily, writing to Baldwin, “I think the [national ACLU] Board has one helluva nerve […] I for one do not intend to be faithless to the commitments we have made with Korematsu. […] We don’t intend to trim our sails to suit the Board’s vacillating policy.”
The JACL also opposed the legal challenges to Roosevelt’s order, criticizing those individuals who did as “self-styled martyrs.”
Against this widespread opposition inside and outside the camps, Fred continued to express his gratitude to those who stood by him, even sending Besig 75 cents for a subscription to the ACLU News.
Bannai’s legal acumen is especially valuable as she traces the three complicated cases all the way up to the Supreme Court. She also reveals the dissension in the Roosevelt administration and its eventual reliance on the Final Report, composed by General John DeWitt. The report’s findings — that Japanese Americans were disloyal and could endanger national security if allowed to remain on the West Coast — became the justification for the mass removal and internment.
Collins argued Fred’s case before the Supreme Court, along with an attorney from the national ACLU, which had eventually submitted a friend of the court brief as did the JACL. “To penalize these American citizens for their ancestry, race and color is contrary to the fundamental concepts,” he told the court. “There is no decision in history upholding the idea that citizenship is a thing of degree.” He charged that the government was hiding behind euphemisms:
By evacuation the General [DeWitt] meant banishment and by relocation he meant detention so that the whole outrageous program … as planned and carried into execution, was imprisonment without cause, without justification and without trial in defiance of the very letter and spirit of the Constitution.
But the court determined otherwise, ruling 6-3 against Fred. It upheld his conviction, as it had for Yasui and Hirabayashi. The court determined that in cases of national defense, citizens of one ancestry may be placed in a different category than others. Justice Robert Jackson provided a scathing dissent:
[T]he Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.
The return home after the war was difficult: many families found their homes and property stolen or destroyed. They faced hostility and mistrust as they tried to rebuild their lives, and many decided not to return to the West Coast. Wherever they landed, most never spoke of their life behind barbed wire during the war.
Fred had gone to work in Detroit, and there he met Kathryn, a science student from the South. Because she was white, it was still illegal for them to marry in their home states of California and South Carolina. After they married in Michigan, they settled near Fred’s family in San Leandro, raising two children and, like many of those who had been incarcerated, never discussing his harrowing wartime experience. As poignantly highlighted by Bannai’s story of Karen’s high school experience, the silence lasted decades.
But all that changed when Fred received a visit from law professor Peter Irons in 1982. Irons brought with him documents that he and fellow researcher Aiko Herzig-Yoshinaga had found deep in government archives in dusty cardboard boxes wrapped in string, never opened for decades. The documents included irrefutable evidence that the government had fabricated lies in order to convict Fred and the others. Irons was convinced that it that was strong enough to reopen their cases. Fred was skeptical at first. But when he perused the documents, he turned to Irons and said simply, “They did me a great wrong.”
Irons, who wanted the case to be litigated by Japanese-American attorneys, recruited a number of Sansei (third-generation Japanese American) lawyers; Bannai was among them. Fred and Kathryn were at first concerned about the youth and inexperience of the lawyers: “[T]hese look like high school kids,” he told Irons.
But as the avid legal team combed through the documents, they found damning materials indicating that the DeWitt Final Report was so discredited that the Justice Department had considered not using it. Eventually, the report was amended and the original versions were ordered destroyed. The government lawyers and the Supreme Court received the altered version.
Lacking funds and in-depth legal experience, the team ran on tenacity, commitment, and creativity. As attorney Don Tamaki explained,
To be able to reopen the case, to be able to vindicate our families, and to rewrite the books on this was a real opportunity. And we weren’t paid for it, but, to be honest with you, I would have paid to be on the team. We were motivated by a sense of injustice […] [a]nd our desire to right a wrong.
During the course of the litigation, the government offered Fred a pardon. He refused: “I should be the one pardoning the government,” he said with characteristic simplicity, since “they were wrong.”
Fred also was reluctant for the JACL to become part of the case, bitterly remembering how they had abandoned him during the period of incarceration, not even raising funds for his case. The organization had since changed its stance, becoming a key player in the movement for redress and reparations, which was unfolding at the same time.
The team decided to pursue a writ of coram nobis, a proceeding so rare that few had heard of it. It is a proceeding that challenges a criminal conviction that is based on erroneous material presented to the court.
The vision, hard work, and tenacity of Fred and his team paid off. On November 10, 1983, the ceremonial courtroom in US District Court in San Francisco was packed with hundreds of people, the majority from the Japanese-American community, cramming into every available seat including the jury box.
Dale Minami presented Fred’s case to Judge Marilyn Hall Patel:
This is a monumental precedent which affected deeply and irrevocably the lives of a hundred thousand Japanese Americans […] by mass banishment of a single racial minority group. The total in lost property, lost opportunities, broken families and human suffering was staggering.
This case also established one of the most criticized and controversial precedents in legal history. First, it justified the mass exclusion of an identifiable minority based on race without notice, without hearing, without an attorney. Secondly, it established that military judgments in times of crises are virtually unreviewable by the courts, even though the courts are functioning and no martial law has been declared.
Minami then asked if Fred could address the court directly. He stood and spoke in a hushed voice:
The horse stalls that we stayed in were made for horses, not human beings. According to the Supreme Court decision regarding my case, being an American citizen was not enough. They say you have to look like one, otherwise they say you can’t tell a difference between a loyal and disloyal American.
Judge Patel then announced to a surprised courtroom that she would make her ruling from the bench. Her decision to overturn Fred’s conviction was met with celebratory cheers and hugs; there was not a dry eye in the room.
In her written opinion issued several months later Judge Patel wrote, “There are few instances in our judicial history when courts have been called upon to undo such profound and publicly acknowledged injustice.”
Following the ruling, Fred’s life took a more public turn. With Kathryn at his side, he crisscrossed the country speaking at campuses, conferences, and forums of all kinds about his case and the need to fight against the scapegoating of an ethnic group during times of war. In 1998, President Bill Clinton honored him with the Presidential Medal of Freedom, leading Minami to note, “It’s a beautiful irony. He is being honored for what he was in prison for 56 years ago.”
After 9/11, the passage of the Patriot Act, and the roundup and registration of Middle Eastern men, Fred’s efforts became even more vigorous. He signed on to several amicus briefs challenging the indefinite detention of Muslim men without warrants, charges, or access to representation. This time he was not alone: he was joined by the JACL and many others in the Japanese-American community who came forward to bitterly denounce their imprisonment during the war — and urge that it never happen again. Though he was already an octogenarian, Fred said,
It was my hope that my case and the cases of other Japanese American internees would be remembered for the dangers of racial and ethnic scapegoating. […] If that principle was not learned […], then these are very dangerous times for our democracy.
Today, as leading presidential candidates revive the hateful rhetoric of the past — smearing whole communities for terrorist acts based solely on their ethnicity and religion — and the mayor of a major city invokes the mass incarceration of Japanese Americans as something Roosevelt was “compelled” to do [the mayor has since apologized], Fred’s words are even more vital.
Bannai did not know that her book would be published just when our political leaders would again be calling for harsh measures targeting people based solely on their ethnicity. Yet her elegant telling of the story of the incarceration and Fred Korematsu’s fight against it could not be more timely.
We are reminded that though Fred’s conviction was vacated, the Korematsu ruling has never been overturned. Justice Jackson’s statement that it lies like a “loaded weapon” is more frightening today than ever, as many reactionary politicians seem poised to pick up that weapon. Hopefully, the inspiration provided by Fred Korematsu may be an even more enduring response to injustice.
Elaine Elinson is the former editor of the ACLU News and the co-author of Wherever There’s a Fight, winner of a Gold Medal in the 2010 California Book Awards.
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