On December 7, 1941, Japanese planes and submarines attacked the naval base at Pearl Harbor, Hawaii. The following day, Congress declared war against the Empire of Japan. On February 19, 1941, President Franklin Delano Roosevelt issued Executive Order 9066. The Order authorized military commanders to designate certain regions as ‘‘Military Areas’’ from which ‘‘any or all persons may be excluded.’’ The Secretary of War designated Lieutenant General John DeWitt Military Commander of the Western Defense Command. On March 2, 1942, General DeWitt issued a proclamation reciting that the entire Pacific Coast was particularly subject to attack, invasion, and espionage. The proclamation designated as military areas regions including all of the Pacific coast states and Arizona. Another presidential Executive Order, issued March 18, 1942, created the War Relocation Authority, charged with the creation of a program for the removal, relocation, and supervision of persons excluded from military areas.
On March 21, 1942, Congress ratified the exclusion program with an act making it a misdemeanor to enter, remain in, or leave a military area contrary to the restrictions imposed by the Secretary of War or any military commander. Three days later, General DeWitt issued a proclamation imposing an 8 p.m. to 6 a.m. curfew on all enemy aliens and Japanese Americans within the military areas. Beginning the same day, a series of Civilian Exclusion Orders began the process of removing Japanese Americans from coastal regions and concentrating them in camps. More than 120,000 people, mostly birthright citizens, were ultimately confined, spending an average of three years in the camps.
The constitutionality of these restrictions on the civil rights of Japanese Americans was litigated in four cases: Yasui v. United States, Hirabayashi v. United States, Korematsu v. United States, and Ex parte Endo. Divisive at the time, the cases have continued to resonate in the American psyche. Over the years they have been subject to a wide variety of interpretations, and the process continues to this day.
The cases deal with three different aspects of the internment program: curfews, exclusion from Military Areas, and detention within camps. Yasui and Hirabayashi, companion cases, considered the curfew orders.
Minoru Yasui and Gordon Hirabayashi turned themselves in to authorities in Portland and Seattle, respectively, to create test cases. Hirabayashi sought to challenge the exclusion order as well as the curfew, but the Supreme Court declined to decide the validity of that order. The decision to limit the Hirabayashi decision to the curfew may have been designed to allow the Court more time to consider the exclusion orders or perhaps to preserve unanimity in Hirabayashi itself. (In Justice Delayed, Peter Irons reports that Justice Frank Murphy, who had originally intended to dissent in Hirabayashi, was won over by Justice Felix Frankfurter’s argument that any dissent would support the enemy.)
On June 21, 1943, the Court unanimously affirmed the validity of the curfew order, although three Justices wrote separate concurrences expressing some reservations. Justice Harlan Fiske Stone, writing for the Court, acknowledged that ‘‘[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people.. . .’’ But the principle that ‘‘racial discriminations are in most circumstances irrelevant and therefore prohibited’’ did not bar the government from drawing lines on the basis of race when such distinctions were in fact relevant. The circumstance of a war with Japan, Stone ruled, afforded ‘‘a rational basis’’ for the curfew order. Yasui’s conviction was affirmed the same day on the authority of Hirabayashi.
Unlike Yasui and Hirabayashi, Fred Korematsu was not a willing litigant. Wanting to remain with his Caucasian fiance´e, Korematsu refused to report for evacuation in compliance with the exclusion order, altered his draft card, and had minor plastic surgery in the hopes of evading detection. Arrested on a tip, he was convicted of violating the exclusion order. Although his case was initially argued before the Supreme Court along with those of Yasui and Hirabayashi, it was remanded to the court of appeals and was not reargued until October 1944. At that point, the outcome of the war was no longer in doubt, and the continued detention of Japanese Americans seemed increasingly unnecessary.
As in Hirabayashi, the Court limited the issues before it. Korematsu argued that the military orders required him to report to an Assembly Center, where he would be confined, and that the exclusion order could not be upheld without considering the legality of the detention. Justice Hugo Black, writing for the majority, restricted his analysis to the exclusion order, and explicitly noted that he was assessing it ‘‘as of the time it was made.. . .’’ After observing that ‘‘all legal restriction which curtail the civil rights of a single racial group are immediately suspect,’’ Black argued that Korematsu had not been subject to the exclusion order ‘‘because of hostility to him or his race’’ but rather ‘‘because we are at war with the Japanese Empire.’’
As it had in Hirabayashi, the Korematsu Court found a legitimate basis for wholesale exclusion in the military finding that it ‘‘was impossible to bring about an immediate segregation of the disloyal from the loyal.’’ Given this impossibility, Black held that the government had grounds to believe that the exclusion orders were necessary and refused to invoke ‘‘the calm perspective of hindsight’’ to say that they were unjustified. In contrast to Hirabayashi, the Korematsu Court could not maintain unanimity. Three Justices dissented, and one, Justice Frank Murphy, asserted explicitly that the exclusion orders had exceeded constitutional power and fallen ‘‘into the ugly abyss of racism.’’
In the third case, Endo v. United States, the Court addressed the legality of the detentions, but again it avoided the constitutional issue. Mitsuye Endo had complied with the exclusion order, reporting to the Walerga Assembly Center near Sacramento, from whence she was transferred to the Tule Lake camp near the Oregon border. Endo, who had worked for the state of California and whose brother had been drafted before the Pearl Harbor attack, was identified by the Japanese American Citizens League as an uncontrovertibly loyal American and thus an appealing litigant. She challenged her detention through a petition for a writ of habeas corpus and refused an early release that would have mooted her lawsuit.
Justice William O. Douglas’s opinion for the Court declined to decide the constitutionality of the detention program. Instead, it focused on the authorization for the detentions, finding that neither the Executive Orders, nor the Act of Congress ratifying them, granted the War Relocation Authority power to detain loyal citizens. The government conceded Endo’s loyalty, and the Court found her, therefore, entitled to unconditional release. No Justice dissented in Endo, but Justice Owen Roberts and Justice Murphy, who had dissented in Korematsu, wrote separately to reiterate their claims that the detentions were unconstitutional.
Justice Robert Jackson, dissenting in Korematsu, had argued for a conceptual split between the authority of the military and that of the civil courts. The Court, he argued, should accept its inability to judge military necessities and not try to countermand even an unconstitutional military order. But it should not distort the Constitution to approve that order; it should not allow the military order to be enforced in a civilian court. Jackson’s proposed dichotomy has a peculiar ambivalence to it, and Justice Frankfurter wrote a separate concurring opinion to reject its ‘‘dialectic subtleties.’’ Yet the Court’s careful limitation of the issues in each of the internment cases suggests that it likewise sought some middle course between interfering with a military operation and approving a racebased detention program.
The balancing act could have succeeded. Apparently alerted to the content of the impending Endo decision, the War Department announced on December 17, 1944, that Japanese Americans ‘‘whose records have stood the test of Army scrutiny during the past two years’’ would be released from internment. Korematsu and Endo were announced the next day, at which point the danger of a traumatic showdown between the Court and the military authorities had passed. And had Endo offered a constitutional denunciation of the race-based detention of loyal Americans, it might have become the most salient of the internment decisions.
But Endo rested on statutory interpretation, and despite Justice Black’s reference to it in Korematsu as illustrating the difference between detention and exclusion, Endo quickly fell from view. Korematsu received the lion’s share of public attention, and the attention was not favorable. Writing almost contemporaneously, Yale Law Professor Eugene Rostow pronounced the Japanese Internment cases a disaster, ‘‘our worst wartime mistake.’’ In 1948, Congress enacted the Japanese American Evacuation Claims Act, which provided compensation to detainees who had lost homes and businesses as a consequence of the exclusion orders. Widespread sentiment held that the internment program had been a tragic overreaction, and the Court’s performance a shameful capitulation.
At the same time as it assumed the role of villain in the public mind, however, the Korematsu opinion was embarking on a surprising second career in Supreme Court doctrine. The outcome of the case had been an acceptance of the government’s racial classification, of course, but Justice Black had also commented that laws curtailing the civil rights of a single racial group were ‘‘immediately suspect’’ and should be subjected to ‘‘the most rigid scrutiny.’’ These phrases persisted in the Court’s Equal Protection jurisprudence, and in 1954 the Supreme Court relied on them in a case striking down racial discrimination. That case was Bolling v. Sharpe, the federal counterpart to Brown v. Board of Education, in which the Court held unconstitutional the racial segregation of the District of Columbia public schools.
Korematsu and Hirabayashi had pursued a vision of Equal Protection under which government discrimination was unconstitutional if invidious—motivated by racism or hostility—but acceptable if supported by some legitimate purpose. In an effort to bring greater objectivity to Equal Protection analysis, the Court gradually refined this approach. The direct assessment of discrimination as invidious or noninvidious faded away; instead the Court began applying a demanding means–end fit test to forms of discrimination deemed highly likely to be invidious. Eventually, it settled on the modern form of strict scrutiny: discrimination on the basis of certain ‘‘suspect’’ characteristics such as race or national origin would be upheld only if the government could show that such discrimination was necessary to serve a compelling state interest.
The Court repeatedly cited Korematsu as the birthplace of strict scrutiny, giving it a strange place within Supreme Court doctrine. Korematsu remains the only Supreme Court case in which discrimination against a racial minority survived purportedly strict scrutiny. At the same time, however, it is acknowledged as the origin of the doctrine relied on in such landmark civil rights cases as Loving v. Virginia, which struck down a state ban on interracial marriage. More recently, Korematsu was again invoked in the cases extending strict scrutiny to affirmative action, Regents of the University of California v. Bakke and Adarand v. Pena.
Korematsu’s surprising emergence as a source of protection for racial minorities did nothing to rehabilitate the decision or the internment program in the public eye. Executive Order 9066 had terminated with the cessation of hostilities, but in 1976 President Gerald Ford issued a proclamation reaffirming the termination and branding the evacuation ‘‘wrong.’’ In 1980, Congress created the Commission on Wartime Relocation and Internment of Civilians. A stream of witnesses testified to the hardships and trauma they had suffered. The Commission’s report, Personal Justice Denied, was issued in 1982. It concluded that the internment had not been justified by military necessity but was rather the product of ‘‘race prejudice, war hysteria, and a failure of political leadership.’’ The report characterized the Supreme Court decisions as ‘‘overruled in the court of history.’’ The recommendations accompanying the report, released in 1983, included a suggestion that Congress appropriate funds to pay reparations of $20,000 each to the roughly 60,000 surviving detainees.
At around the same time, an activist movement was seeking redress, if not overruling, not in the court of history but in those of the United States. In 1983, Yasui, Hirabayashi, and Korematsu filed petitions in federal district court seeking to have their convictions vacated. Their argument was not simply that the internment had been unjustified. No one seriously disputed that point, but it would not have been enough to set aside the convictions. Instead, their petitions presented a story of government misconduct in the course of the Supreme Court litigation, misconduct severe enough to constitute a fraud on the Court.
Researching a book on the internment cases, Peter Irons had discovered considerable discord among the Justice Department lawyers assigned to the litigation. In internal memos, some lawyers had protested that the Department was engaged in the ‘‘suppression of evidence’’ and that General DeWitt’s Final Report on the evacuation, presented to the Supreme Court, contained ‘‘lies’’ and ‘‘intentional falsehoods.’’ Korematsu’s petition presented two main allegations of misconduct.
First, the Justice Department had argued to the courts that there was insufficient time to distinguish between loyal and disloyal Japanese Americans and that a wholesale evacuation was, therefore, necessary. Irons and Aiko Herzig-Yoshinaga discovered that DeWitt’s initial version of the Final Report had made no mention of insufficient time but asserted that there was simply no way to tell the loyal from the disloyal, a more frankly racist claim to which courts might have been less willing to defer. War Department officials revised the report to make it consistent with the Justice Department’s litigating position, burned the original version, and destroyed records of its existence.
Second, the War Department and the Justice Department withheld from the courts and Korematsu’s attorneys reports from the FBI, the FCC, and the Office of Naval Intelligence that contradicted DeWitt Report’s assertions about disloyalty and espionage activity among the Japanese American population. Given these contradictory reports, Justice Department attorney John Burling concluded that the DeWitt Report’s statements about illegal radio transmissions and shore-to-ship signaling were ‘‘intentional falsehoods.’’ Burling drafted a footnote for the Justice Department’s brief in Korematsu stating that the DeWitt Report’s factual assertions in support of the claims of military necessity were ‘‘in conflict with information in possession of the Department of Justice’’ and renouncing any reliance on those facts. At the insistence of the War Department, and over the objections of Burling and his superior Edward Ennis, Assistant Attorney General Herbert Wechsler revised the footnote to eliminate any mention of the contradictory reports. As submitted to the Supreme Court, the footnote simply asserted that the Justice Department relied on the DeWitt report only for facts asserted in the brief.
The government did not oppose Korematsu’s request that his conviction be vacated, but it urged the court not to delve into the issue of governmental misconduct. In its decision, however, the court explicitly discussed the footnote and its revision, concluding that the government knowingly withheld information from the courts. It granted Korematsu’s petition on April 19, 1984. Yasui’s conviction was likewise vacated, although the court in his case declined to make any findings of governmental misconduct. Yasui appealed the decision to the Ninth Circuit but died in November 1986 before the case could be resolved. Litigation over the last of the petitions, that of Gordon Hirabayashi, continued until 1988. Ultimately that petition too was granted, with the court announcing that the government had doctored the record submitted to the Supreme Court.
The question of reparations remained. In 1983, the National Council for Japanese American Redress had filed a class action on behalf of 125,000 interned Japanese Americans, requesting a total of $27 billion in damages. That suit was ultimately dismissed, but in 1988 Congress enacted a bill accepting the recommendations of the Commission on Wartime Relocations and awarded $20,000 to each surviving detainee.
The second round of cases had cast Korematsu in a slightly different light, suggesting that perhaps the blame lay less with a supine Court than with a disingenuous Executive. In the years following the coram nobis cases, some defenders of Korematsu emerged. In his analysis of civil liberties during wartime, All the Laws But One, Chief Justice William Rehnquist suggested that Korematsu was understandable as a product of Equal Protection doctrine that had not yet matured. Some years later Judge Richard Posner offered a stronger defense on the grounds that judicial deference to military judgment was appropriate and unavoidable during wartime.
What might have seemed academic speculation acquired real-world relevance after the attacks of September 11, 2001. In the wake of the attacks, the Executive asserted the authority to unilaterally declare American citizens ‘‘enemy combatants’’ and thereafter hold them indefinitely without charges or access to counsel. The constitutional permissibility of such detention came before the Court again in Hamdi v. Rumsfeld—not as an Equal Protection case but as one about the scope of Executive power.
Yaser Hamdi, an American citizen born in Louisiana, was seized in Afghanistan by local forces and turned over to the U.S. military. The military initially transferred him to Guantanamo Bay, but on discovering his American citizenship moved him to a naval brig in Norfolk, Virginia. The government asserted that Hamdi had been fighting for the Taliban and that his status as an enemy combatant justified indefinite detention without formal charges or proceedings. Hamdi’s father, filing a habeas petition on his son’s behalf, responded that he had gone to Afghanistan as an aid worker and had never supported the Taliban. The petition asked for the opportunity to rebut the government’s allegations at an evidentiary hearing.
The parallels to the Japanese internment could not have been lost on the Court, but they were made more emphatic by the participation of Fred Korematsu as a friend of the court. Korematsu filed a brief in support of Hamdi, chronicling historical examples of actions taken in the name of military necessity that hindsight had revealed as unnecessary restraints on liberty. He argued that the pattern of overreaction and after-the-fact regret should not persist, and he asked the Court to closely scrutinize the government’s asserted justifications to avoid the mistakes of the past.
The Supreme Court ruled that Hamdi was entitled to an opportunity to challenge the government’s assertions before a neutral decisionmaker. ‘‘[A] state of war,’’ wrote Justice O’Connor, ‘‘is not a blank check for the President when it comes to the rights of the Nation’s citizens.’’ She cited Justice Murphy’s dissent in Korematsu for the proposition that the military’s claims, like any others infringing the constitutional rights of the individual, must be subjected to scrutiny through the judicial process.
Korematsu remains a reviled decision. Many such cases, like Plessy v. Ferguson, in which the Court upheld racial segregation of railroad cars, have become what could be called antiprecedents. Court majorities tend to cite the dissents in these cases, and their majority opinions are invoked only as epithet or accusation. Korematsu’s role in the development of strict scrutiny has spared it that fate, but its appearance in Hamdi suggests it has become what might be called a historical antiprecedent. Quite apart from the legal principles it endorsed or inspired, the decision now stands as a reminder that courts must look carefully not only at military infringements on the liberty of American citizens, but also sometimes at civilian defenders of those infringements.
KERMIT ROOSEVELT, III
References and Further Reading
Cases and Statutes Cited
See also Dewitt, General John; Guantanamo Bay, Enemy Combatants, Post 9/11; Indefinite Detention; National Security; Roosevelt, Franklin Delano; World War II, Civil Liberties in