American History Tellers - Supreme Court Landmarks | Loaded Weapon | 4

Episode Date: November 11, 2020

Through most of 1941, as fighting raged across Europe, the United States held back from entering the war. That all changed in December, when Japanese fighter planes bombed Pearl Harbor and the nation found itself mobilizing for World War II. Suddenly, the frenzy to fight enemies abroad turned to suspicion against those at home.President Roosevelt signed Executive Order 9066, giving the military the power to detain and permanently jail over 110,000 Japanese Americans living on the West Coast. But three young detainees would defy their fate.Fred Korematsu, Gordon Hirabayshi and Mitsuye Endo would challenge the U.S. policy of Japanese internment and bring their cases all the way to the Supreme Court — pitting the wartime powers of the United States against the constitutional rights of American citizens.Listen ad free with Wondery+. Join Wondery+ for exclusives, binges, early access, and ad free listening. Available in the Wondery App. https://wondery.app.link/historytellersSupport us by supporting our sponsors!See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge new seasons of American History Tellers early and ad-free right now. Join Wondery Plus in the Wondery app or on Apple Podcasts. Imagine it's a bright Sunday morning in December 1941. You're 21 years old. You've parked a car at the top of a hillside, looking down on the San Francisco Bay, and you kneel to share a blanket with your fiancée. Music plays from the car radio. She flips through a newspaper while you look at the ocean below.

Maybe we should move up to Washington State. Maybe. I asked Walt if he knew whether Japanese could marry white women up there. He said he didn't know. Well, Walt doesn't know everything. Maybe there's a number we could call. Like, uh, hello, yes, I'd like to find out where your state stands on racial intermarriage, please. You try and chuckle, but all you can manage is a smirk.

The two of you have been dating for three years. But when you got engaged, both your family and hers objected. The two of you have been dating for three years, but when you got engaged, both your family and hers objected. Joy's going crazy. A Japanese-American man and an Italian-American woman. Both have the word American in them. There shouldn't be any problem. She nods, but doesn't say anything. And why should she? You're the one who looks different. She could be Irish or French, like a lot of Americans. But you'll always be seen as Japanese, even though you were born here. You scramble up off the blanket, move towards the car radio. The city of Honolulu has also been attacked.

And considerable damage done. You turn the radio off, as if turning it off could make the news stop. The drumbeat of war has been intense lately. But the thought that Japan just attacked you and other Americans on your own soil leaves you shaken. Your stomach tightens up as you feel a sickness coming over you. We need to get going. I need to see my parents. But you don't think it's going to be okay. You're worried about your parents, your brothers, your family who lives in the city. What will happen to all of you once everyone believes

you're an enemy? enemy. right now by joining Wondery Plus. From Wondery comes a new series about a lawyer who broke all the rules. Need to launder some money? Broker a deal with a drug cartel? Take out a witness? Paul can do it. I'm your host, Brandon Jinks Jenkins. Follow Criminal Attorney on the Wondery app or'm Lindsey Graham, and this is American History Tellers. Our history, your story.

Music As December began in 1941, war raged across Europe, and Japan was extending its reach through Asia. But the United States had not yet officially entered the conflict. Everything changed on Sunday, December 7th, when Japanese fighter planes bombed Pearl Harbor. President Franklin Roosevelt called it a date which will live in infamy. From then on, the nation would join a world war against Germany, Italy, and Japan. Suddenly, calls against enemies abroad ignited suspicion at home. Japanese Americans became prime targets of wartime paranoia. Within two months, the U.S. War Department would force

all men, women, and children of Japanese heritage from their homes into barren internment camps, and it didn't matter that many were American citizens. Japanese internment would mark one of the worst violations of civil liberties in American history, and it would be authorized directly by the President of the United States. Three young Japanese Americans would fight their government's mistreatment head-on, challenging the military order in federal court. One of these cases, called Korematsu v. United States, would lead to a shocking decision in an almost 40-year battle for justice. This is Episode 4, Loaded Weapon. Once the United States entered World War II, the military moved quickly to secure the western border of the United States,

a 6,600-mile stretch of land that lay directly across the Pacific from Japan. Almost immediately, the military and powerful politicians began to cast suspicion on those of Asian ancestry. In the eyes of fearful West Coast residents and officials, Japanese Americans were the so-called fifth column of Japan's army, secret supporters of the enemy, spying on Americans in their own backyard. This distrust was not new. Asians had been discriminated against since the mid-1800s when Chinese laborers crossed the Pacific to fill low-paying jobs in the West. After Congress passed a law to ban Chinese workers from immigrating to the United States, the Japanese began to fill the void in the American labor force. By the 1920s, Japanese

American farmers oversaw nearly a half million acres of California farmland, providing fruits and vegetables for millions of Americans. But their success made enemies of the American Federation of Labor and other groups who felt that non-Asian workers should control the land and reap the profits. Congress soon passed legislation banning most immigration from Japan. These laws also prohibited Japanese immigrants from becoming American citizens or owning land. By 1942, there were over one million German and Italian American citizens, and some of them also faced discrimination because of the war. But Japanese Americans, who numbered just one-tenth of that, drew most of the focus from military officials and racist propaganda. They lacked political power and a voice in government

and were hamstrung in mounting their own defense. West Coast newspapers drummed up fabricated rumors of Japanese spy rings. They warned of Japanese submarines lurking just off the coast. An LA Times columnist compared Asians to a lethal snake, writing, A viper is nonetheless a viper, wherever the egg is hatched. State politicians and many citizens quickly pushed for the removal of all ethnic Japanese from the West Coast. egg is hatched. State politicians and many citizens quickly pushed for the removal of all ethnic Japanese from the West Coast. And in the halls of the U.S. government, these fears were amplified by Lieutenant General John DeWitt, head of the Western Defense Command. DeWitt warned

President Roosevelt that if Japanese Americans were allowed to sow conspiracy in states like California, Oregon, and Washington, the results could be disastrous. DeWitt's theories were founded on conjecture and racist stereotyping. He claimed the so-called alien nature of the Japanese made it impossible to determine who might be spies on American soil. Citing few details and no proof, DeWitt ominously warned that Japanese people had secretly organized themselves to betray the United States and were ready for concerted action at a favorable opportunity. Before Pearl Harbor, the FBI had spied on German, Italian, and Japanese foreigners in the U.S. who it considered threats. But FBI Director J. Edgar

Hoover objected to DeWitt's findings. His agents had found no evidence to support DeWitt's claims of potential treachery from Japanese Americans on the West Coast. Nevertheless, on February 19th, Franklin Roosevelt signed Executive Order 9066. The directive allowed the military to set up areas called exclusion zones, where they decided who could enter, remain in, or leave, controlling the flow of people in and out. These exclusion zones included large parts of California, Oregon, Washington, and Arizona. No ethnic group was specifically mentioned in the executive order, but it was worded to enable the military to target anyone of Japanese descent living in the U.S., both citizens and non-citizens alike. For these Japanese emigrants and their descendants, known as Nike,

the military exclusion zones were the equivalent of declaring martial law. Anyone with as little as one-sixteenth of Japanese blood was required to turn themselves in. The community scrambled to respond. Officials in the Japanese American Citizens League had pledged support to both the President and the United States directly following the Pearl Harbor attack. And even now, in the face of the executive order, the leadership advised its members to cooperate. Frightened, confused, and intimidated, many Nikkei did. As one of the Citizen League organizers recalls, we were led to believe that if we cooperated with the army, the government would be as humane as possible to the evacuees.

The organization also stressed that refusal to cooperate would make Nikkei appear to be traitors. For the family of Fred Korematsu, the executive order meant that they had to abandon their homes in the San Francisco Bay Area. Father, mother, and sons would all have to report to designated assembly points in the city, where a bus would then transport them to hastily constructed camps many miles away. Fred Korematsu grew up working in his family's flower business. He recalled, My folks were so worried. All they could take was what they could carry.

Many neighbors, Caucasian people, came over asking, Can I have this wheelbarrow? You can't take it with you. What about those tires? You can't take them. But Fred was also in love. Because of his Italian-American fiancée, he didn't want to relocate. When his fiancée found an ad for a plastic surgeon in San Francisco,

he was so desperate to stay, he considered changing his physical appearance. He figured if he could manage to look less Japanese, he would get harassed less. And if he and his fiancée moved to Nevada, outside the exclusion zone, it might be easier for them to get married. So Fred set off to try and chart his own way around the government's executive order. Imagine it's early March 1942. You're halfway up the stairs to a Victorian house on a hilly street in San Francisco. The house at the top of the stairs looks like any other, but it's actually

the office of Dr. B.B. Mastin, a plastic surgeon. You've already climbed these stairs once and turned around, but now you're climbing them again, swallowing your hesitation. What you're about to do seems pretty crazy, but it also makes a lot of sense. Just days ago, you read the state of California has started building what they're calling an assembly center out at Tanforan Racetrack. But really, it's more like a prison. You're a Japanese man with Japanese features. If the United States want to round you up and put you in a camp, then what if you made yourself look less Japanese? Hello, Mr. Korematsu. Have a seat.

The doctor's office is right in the front parlor. He stubs a cigarette out in the ashtray while you look around. Do the surgeries happen here? No, not in this room, no. We have an operating room in the back. It's a small operation here, but we get things done at the right price. Your brow furrows. You take a look around at the green, sallow carpet, the tan stains on the ceiling,

as if the surgeon has been smoking cigarettes at the same desk for 20 years. He leans forward, though, all business. Now, tell me why you want to look Spanish. My wife and I, well, we're married, and I'm a Japanese-American, and she's American too. You mean she's white. You don't like this characterization, but you're not in a position to argue. Sure, yeah, she's white. And I don't want her to have to be subjected to comment and harassment by other people.

That's understandable. He squints, considering your face. You wonder what he thinks about Executive Order 9066. About the camps that are being built at the racetrack. Well, I'm going to come right out and say it. I cannot make you look like an American, but I can build up your nose and remove the folds around the inner corner of your upper eyelids.

Filipino, Pacific Islands. I can give you something like Hawaii. You like Hawaii? Sure, but I've never been there. Well, now you'll be from there. The Spanish part will be all up to you. I think that's smart. Mix it up a little bit. Make yourself a mutt about the fee. The fee is $300, which I would need right away. I only have $100. He nods at you, expecting to see what you

have. You twist around in your chair and you pull out your wallet, placing the bills on the table. Well, $100 is better than nothing at all, right? Let's schedule you for two weeks from today. As he busies himself with writing something on a pad, you take a look around his parlor. It's not the kind of place you'd ever take your girl. But you're doing this for her, for your love of her, and also for your safety. But you wish it didn't have to be this way. Fred Korematsu emerged from the surgery almost totally unchanged. The surgeon had corrected his previously broken nose, but done nothing else. One look in the mirror told the truth. He had

wasted his money. Still, Korematsu began calling himself Clyde Sarah to escape discovery. He thought Clyde sounded Spanish. Sarah was his fiancé's middle name. One week after Korematsu's surgery, Congress passed a bill making it a federal crime to disobey the president's executive order. For people of Japanese descent, failure to report to a relocation center was now in itself a crime. On Memorial Day, Fred Korematsu was arrested while walking down the street with his fiancée. At the precinct station, he gave the name Clyde Serra and insisted he was Spanish-Hawaiian but born in Las Vegas. However, once it became clear he couldn't speak Spanish, Korematsu confessed to his Japanese heritage. He was

charged with disobeying military evacuation orders and was held in San Francisco County Jail. Korematsu's arrest was featured in a local newspaper, and his case quickly drew the attention of the American Civil Liberties Union. The organization's director, Ernest Besig, went to visit Korematsu in jail. The ACLU was helping organize cases to challenge the government's evacuation order in federal court. There were others, Besig told Korematsu, other Nikkei who were protesting internment. One was a 24-year-old college senior named Gordon Hirabayashi. He had been attending the University of Washington when the government ordered him and his family to board a bus bound for a camp. Hirabayashi protested and was arrested for disobeying a military order. In San Francisco, 22-year-old Mitsui Endo

had obeyed the government's order and been relocated to a camp with her family. But Endo was a government employee. Before relocation, she'd worked as a stenographer for the California Department of Motor Vehicles. When she was hired, she had formally declared her allegiance to the United States. Now, the ACLU was challenging her imprisonment on the grounds that she could not be legally proven as disloyal. Hearing all this, sitting in a jail cell, Fred Korematsu considered his options. He was hurt by his treatment at the hands of the government, but he was heartened that others had fought back as well. He would later say, I didn't feel guilty because I hadn't done anything wrong. Every day in school, we said

the pledge to the flag. I believed that I was an American citizen, and I had as many rights as anyone else. In September, Korematsu appeared in federal court. His lawyers argued that his constitutional rights had been violated by his arrest. Korematsu did not deny that he had violated the executive order, but he testified that he was a loyal citizen of the United States. He voted. He carried a draft card. He would gladly bear arms for his country if so required. Still, the judge pronounced him guilty, and Korematsu was hustled out of the courtroom by military police. He was sent for Tanforan, a temporary detention center erected

at a racetrack in San Bruno, California, while waiting appeal. Korematsu and his fiancée had written letters back and forth to each other while he was in jail waiting to see the judge. But soon, their letters dropped off. Fred would never see his fiancée again. After his arrest, month after month passed. By this point, most of the Japanese Americans on the West Coast, over 110,000, had reported to the government's detention centers. And then word came through. Fred was headed to a more permanent facility in Utah. Now, after losing his fiancée, his home, and his job, Fred would be on his way to join the rest of the Korematsu family, and many others, in an American concentration camp. For more than two centuries,

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It was an order. I'm your host, Brandon James Jenkins. Follow Criminal Attorney on the Wondery app or wherever you get your podcasts. You can listen to Criminal Attorney early and ad-free right now by joining Wondery Plus in the Wondery app or on Apple Podcasts. While Fred Korematsu awaited trial with his family at the Topaz Relocation Center in Utah, over 110,000 Japanese Americans and their descendants, the Nikkei, also faced the grim reality of the American government's internment policy. Nearly 70,000 of them were American citizens.

Relocation centers, as the government called them, opened up as quickly as they could be built. They were constructed at fairgrounds and in desert locations. At Tanfran Racetrack in San Francisco and Santa Ana Racetrack in Los Angeles, horse stalls were converted into housing. Thousands of Nikkei families were crowded into military sites scattered across eight states. At camps like Gila River in Arizona and Manzanar in California, living quarters were bleak, cramped, dirty, and poorly constructed. Green lumber used to build the walls shrank,

and gaps formed, letting in wind and rain. Buildings were often hot in the summer and cold in the winter. And Nikkei families had been given precious little time to make arrangements for property or businesses left behind. It was a devastating blow to the hard work of generations. Japanese Americans lost between $100 and $300 million in property and income during internment, around $3 billion in today's dollars. Life in the camps was also regimented and difficult. Roll call was held twice a day.

There were endless lines for bathroom and dining facilities. But despite this, the Nikkei did what they could to adapt. They decorated, built their own furniture, started clubs, schools, and held church services. They formed leadership organizations to meet with the military heads of camp and advocate for better quality food and housing. In 1943, General John DeWitt, the architect of the United States internment policy, issued a formal questionnaire to the people in each of the camps. There were 28 questions designed to gauge the intern Nikkei's loyalty towards the United States. But as detainees read the forms, it became clear there were only two questions that really mattered.

One, would you as a Japanese detainee swear unqualified allegiance to the United States of America? And two, would you faithfully defend the United States from any or all attack by foreign or domestic forces? Signatures were obligatory. Answering yes to these questions made some detainees eligible for release, provided that they agreed to settle outside the West Coast. 16,000 people were freed this way. But the intern Nikkei who answered no to both questions became known as no-nos. Around 14,000 intern people were branded

as officially disloyal and sent to camp at Tule Lake in Northern California. There, conditions were much harsher. The camp resembled a military prison with barbed wire and guard towers. But leaders and organizers branded by the military as troublemakers from other camps were now all in one place. They could share stories and tactics, and they grew bolder in pressing for their rights. Prisoners went on labor and hunger strikes.

Tensions grew high between the Nikkei and the military guards, who soon began to retaliate in their own ways. Imagine this late summer, 1943, inside one of the military barracks of the Tule Lake Segregation Center. That's what the name is now. They change it from Detention Center to Segregation Center. It's probably the most truthful statement you've heard from the American government in months. This room, where you live with your brother and and father is about the size of two Hayes Valley garages from back in your San Francisco hometown. It's the illusion of freedom, but really it's just an open-air jail. You're always being watched, by the guards in the towers or by the MPs patrolling the chain-link fence that separates your camp from the administration building. Psst, they're coming this way. Your brother Albert draws away from the doorframe.

Inside the barracks with you and your father, he looks nervous. What's with you? It's not your name that's on the stockade list. You're trying to sound tough. You know judo. You know how to handle firearms. But what do you do when the American military police are coming to put you in the Thule Lake stockade? You might sound tough, but you don't feel it. You did nothing wrong. Our family's done nothing wrong. We've never agitated at Santa Anita, at Topaz. Oh no, we answered no, and we did it twice.

This quiets your brother momentarily. All three of you, he, your father, and you, refuse to swear allegiance to a country that had already locked you in a prison camp. Now you're here, herded together with thousands of other Japanese Americans accused of disloyalty. But you did something worse. Once you got to Tule Lake, you started organizing, trying to get better food than the slop they serve you twice a day, trying to get better bedding materials for your elders to sleep on. Look, the guards are just trying to scare me. It's part of the new rules. But what if they kill you? Just shut up, okay?

I haven't done anything wrong. The guards have done things like this before. They've rounded us up. We're already in jail. Maybe I'm just going to a smaller one, you know? It's not much difference. Kunitake Yamanaka. You don't move.

None of you move. One of the officers steps into your room. Kunitake Yamanaka, come with us. On what charge? You are being detained for questioning. We'll have you back soon. But I don't have a choice, do I? The officer puts some handcuffs around your wrists. These are for your security. As you're led toward the waiting army truck outside, your brother stands up.

We are American citizens. It makes you wince. He's right, but only technically. Maybe not even technically anymore. In the back of the army truck, at least 15 other Nikkei men huddle, handcuffed like you are. They're wearing tough faces, too, just like you are. But not a one of you feels tough. You're all headed into the unknown.

In November, the Army imposed martial law in Tule Lake. Redesignated as a segregation center, it became an armed camp with prisoner curfew, barrack searches, and the end of normal daily activities. After months of repression and hardship, the Nikkei organizers turned themselves in to camp authorities. They were locked in overcrowded army stockades within the camps. They were interrogated, beaten, and held with no hearing or trial. The army justified their imprisonment and arrest by describing them as troublemakers, or with phrases like, too well-educated for his own good, and definitely a leader of the wrong kind.

Meanwhile, one of the ACLU's test cases had finally made its way to the Supreme Court. It was to challenge the arrest and interment of Gordon Hirabayashi, the college student who had refused to board an interment bus in Washington. Chief Justice Harlan Stone presided over the hearings. He and his eight fellow justices heard cases inside the court's new opulent home, constructed in the 1930s, with wide, expansive steps leading to a columned, neoclassical structure. Many noted that it resembled a Greek temple more than a courthouse.

For his part, Chief Justice Stone thought the building was pretentious, complaining that its bombastic design was wholly inappropriate for a group of old boys such as the Supreme Court. But it was in these regal new surroundings that in June 1943, Stone delivered the court's ruling in the matter of Hirabayashi v. the United States. In a unanimous decision, the court upheld Hirabayashi's conviction for resisting a military order. The court said his imprisonment was a protective measure that the U.S. military had a right to implement. In his opinion, Chief Justice Stone wrote

that the basis of race could be used to intern citizens. In a time of war, he wrote, residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different country. The court's decision relied heavily on flawed and unproven information gathered by General DeWitt and the War Department. In this moment in a time of war, the court had no desire to go against the military or the orders of the White House. But Justice Frank Murphy's concurring opinion read much more like a dissent. He compared the country's treatment of its Japanese citizens to the treatment of Jews in

Germany. Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war. Following the decision, Gordon Hirabayashi was sentenced to a federal work camp in Arizona. The course decision was terrible news for Mitsuyi Endo and Fred Korematsu. By the end of 1943, both were still interned, Endo at Tule Lake and Korematsu at Topaz. But then a bit of good news came Korematsu's way. He'd received the United States loyalty questionnaire and answered an enthusiastic yes to both questions. And after a few months, he was granted a short-term leave permit to Salt Lake City. He wouldn't have to live at the Topaz camp anymore,

though he'd still have to check in periodically with authorities. Then a second piece of news arrived. A federal court had upheld his conviction, finding that the military's evacuation orders were constitutional and the government could arrest him for disobeying. But there was a silver lining in this decision. It meant his upheld conviction meant his lawyers could finally appeal. Now, as he struggled to make a new life

for himself in Utah, Fred Korematsu would find his case headed to the Supreme Court. By early 1944, the war overseas was still in full swing. American troops were badly needed, and the U.S. government was getting ready to send its first Japanese-American soldiers to fight in Europe. The year before, the military had finally allowed Japanese-Americans to enlist. Nearly 5,000 of them had signed up. They formed a special segregated unit called the 442nd Regimental Combat Team. They went on to become the most highly decorated unit of World War II, fighting critical battles in Italy, France, and Germany. But even as Japanese-American troops were being killed abroad, tens of thousands of Japanese-Americans remained held in internment

camps at home. Meanwhile, the military's top brass was undergoing changes. General John DeWitt, who had helped launch the internment camps two years before, was replaced by General Delos Emmons. Emmons had overseen military operations in Hawaii, where more than a third of the population was Japanese-American. Unlike his predecessor, he didn't see people of Japanese descent as inherently dangerous saboteurs or as disloyal simply because of their race. General Emmons felt that they should be released from the camps immediately. But inside the Roosevelt White House, DeWitt's internment policy continued to hold sway.

In January 1944, the War Department released a copy of DeWitt's final report to the public. This report was a 618-page rationale for what the government called its evacuation program. The document included a detailed summary of logistics, along with charts, tables, and photographs. All of it insinuated that Japanese people were a threat inherently loyal only to their homeland. Citizens or not, they could not be trusted on American soil. DeWitt's final report would become a key element for the arguments in Fred Korematsu's Supreme Court case. Korematsu's lawyer, Wayne Collins, would use the report as printed evidence that the Exclusion Order violated several different constitutional amendments. Among these were the Fourth Amendment,

which protected against unreasonable search and seizure, and the Thirteenth, which abolished involuntary servitude. In addition, Collins planned to argue the Exclusion Order gave the United States military unlimited planned to argue the exclusion order gave the United States military unlimited power to decide the fate of Japanese Americans. But it was the courts, not the military, that should decide guilt or innocence. By the fall of 1944, the Supreme Court would have a chance to make that decision itself. Both Korematsu and Endo's cases would be heard at the same time. Mitsuyi Endo remained at Tule Lake with her family. The camp was still reeling from conflict between military guards and Nikkei prisoners,

some of whom had engaged in work stoppages and other acts of nonviolent resistance. She was not able to make the trial. But Fred Korematsu had been given leave to move from Salt Lake City to Detroit. He took a job at a machine shop, lived in a YMCA, and reported once a month to a probation officer. He was still living in Detroit when the court began hearing arguments in Korematsu v. The United States in October of 1944. But Washington, D.C. was a faraway place from Detroit. It had been over two years since the Japanese internment program had started. But after months of uncertainty, Fred's case was about to find a resolution, one way or the other, in the Supreme Court. Now streaming.

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In the Pitcairn trials, I'll be uncovering a story of abuse and the fight for justice that has brought a unique, lonely Pacific island to the brink of extinction. Listen to the Pitcairn Trials exclusively on Wondery+. Join Wondery in the Wondery app, Apple Podcasts or Spotify. Opening arguments in Korematsu versus the United United States began on October 11, 1944. The nine justices took their seats on a bench before a courtroom crowded by lawyers, tourists, and interested spectators. As planned, Fred Korematsu's lawyer, Wayne Collins, argued that the president's order did not technically give the military the authority

to detain Japanese Americans. The order had been issued without congressional approval. Furthermore, the order was a violation of Korematsu's constitutional rights. It was motivated by racial prejudice rather than national security concerns. Charles Fahey, a solicitor general representing the government, countered that the president's order was not unconstitutional. Rather, it was a valid exercise of the war power. The Constitution allowed for such action even though it restricted liberty because the action had been deemed a military necessity. Besides, Fahey told the justices that the case was not about the detention of all Japanese Americans. It was simply about one man, Fred Korematsu, disobeying a military order during wartime. Fahey had also represented the government in the previous year's case against Gordon Hirabayashi, and he would argue points against Mitsui Endo one day after Korematsu's hearing.

So he was well prepared to defend the government's actions. He argued that the camps had been built to actually protect Japanese Americans, set free in the United States during wartime, who knew what kind of racial hostility they might face. Fahey offered many lines of defense for the government's internment program, but he failed to turn over key pieces of evidence. In June of 1942, just five months after the bombing of Pearl Harbor, the Japanese army had suffered crippling defeats at the Battle of Midway.

By 1943, military intelligence was reporting that the Army of Japan no longer posed a threat to the American West Coast. But over 110,000 Nikkei people had already been confined in detention camps, and the government could not admit that the military had overreacted without losing credibility. No one outside the military knew this information, and Fahey was not about to let on that he knew. So after two days of arguments, the government rested its case, and Wayne Collins and the ACLU lawyers sat back and held their breath. On December 17, 1944, the U.S. Army announced that Japanese Americans

would no longer be excluded from the West Coast, effectively ending the government's racial internment policy that had been in place for almost two full years. The very next day, the Supreme Court upheld Fred Korematsu's criminal conviction. Riding for the 6-3 majority this time was Justice Hugo Black, a Franklin Roosevelt appointee. Black wrote that the supposed danger of espionage justified the establishment of exclusion zones. Korematsu was not excluded from the military area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire. Black stressed that the court's ruling upheld the Exclusion Act itself, but not the detention

and internment camps that followed. However, he continued, hardships are part of war, and war is an aggregation of hardships. Justice Frank Murphy's dissent built on the critiques he'd made in the previous year's Hirabayashi case. Murphy attacked the stereotyping on which the court's majority opinion rested. He wrote, it was largely an accumulation of much of the misinformation, half-truths, and insinuations directed against Japanese Americans. Fellow Justice Robert Jackson dissented as well. He was frustrated by Justice Black's refusal to strike down the Exclusion Act itself and worried the decision set a troubling precedent for justifying racial discrimination.

He added a dark warning for the future. The principle then lies about a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. The same day, the Supreme Court also reached a decision in the Endo case. Unlike the Hirabayashi and Korematsu cases, the court ruled in Endo's favor. It said that although the government may be justified in detaining other classes of citizens during wartime, it had no right to hold conceitedly loyal citizens. Because Mitsuyi Endo had pledged her allegiance to the U.S. while working as a government employee, there was no authority to detain her. In his concurring opinion, Justice Murphy added that the detention of Japanese was an act of racism and utterly

foreign to the ideals and traditions of the American people. However, for Mitsuyendo and others like her, the court's decision was academic. She'd won her case against unlawful imprisonment the day after President Roosevelt had opened the camps. By then, she'd already been in prison for more than two years. The camps, except for Tule Lake, would close by the end of 1945. The 61,000 Japanese Americans still interned at that time began the journey back to their homes. The government supplied them with $25 for train fare, but many found there was no home to return to, only the wreckage of abandoned property and businesses. Farms had been taken over by someone else. Homes had strangers living inside them. In 1948, Congress approved payments

of more than $37 million to settle claims from over 26,000 Japanese Americans who had been detained during the war. But for Fred Korematsu and Gordon Hirabayashi, their legal judgments would continue to haunt them. Korematsu retreated into private life. He got married, had children, and eventually moved back to California.

But his criminal conviction hung like a yoke around his neck, making it hard to get work. Memories of the case were painful, too, and he rarely spoke about them to anyone, certainly not his children. It would take nearly four decades, but Korematsu and Hirabayashi would finally get a second chance at justice.

Imagine it's spring, 1982. You're a lawyer with a small private practice in Oakland, California. You also happen to be a third-generation Japanese-American and a member of a small group called the Bay Area Attorneys for Redress, or BAR for short. Your group has been working for years to make sure Japanese-American internment is called out for the appalling civil rights violation it was. But right now, you're standing in a convenience store near your office with a man from Washington. You grab a pack of gum, secretly congratulating yourself it's not a pack of cigarettes.

Huh, when'd you quit? Oh God, is it obvious? Oh, yeah, there are telltale signs. I used to be a smoker myself. You're talking to Peter Irons. He's a young researcher, about your age, and he's flown all the way out here from D.C. to talk to you about something he recently discovered while going through the Department of Justice archives. So the archivist was out sick that day,

and a fill-in just handed me the box without going through it or taking notes or anything. I started reading, and then I saw, well, I saw documents proving the War Department lied. Lied to the Supreme Court, to everyone. They destroyed files. You know, when you called, it was like something out of a dream. I remember reading about Korematsu when I was in law school. You shake your head in disgust. We out of a dream. I remember reading about Korematsu when I was in law school. You shake your head in disgust. We were never a threat.

My parents weren't a threat to this country. The Korematsu decision was about power, not about justice. If what you told me on the phone holds up, this is going to be huge. Yeah, I think so. I really do. We got Fred on board, which is also huge. Yeah, but it's been 40 years. Still, I think, especially around here, enthusiasm will be behind us. I'm excited for you to meet the rest of the team. The team? You didn't think it

was just going to be you and me. We've got attorneys from San Francisco, from the Asian Law Caucus, from Seattle, Portland. We might be young, but we've got the legal firepower our grandparents never did. Peter's face breaks into a broad grin. That's fantastic. I just want you to know I believe in this case. I'm glad we're going to work on it together. You have a feeling he's going to fit right into your group. Together, you're all going to try and tell a 40-year-old story the right way for the first time. In 1981, a researcher named Peter Irons uncovered evidence that the U.S. government had presented false information to the Supreme Court during Korematsu's case. Evidence had been altered to make it appear as if Japanese Americans were dangerous without any hard proof. The documents

showed that John DeWitt's reports in 1942, which led to the passing of Executive Order 9066, were based solely on racial prejudice and conjecture. Later, during Fred Korematsu's 1944 trial before the court, the government's lawyer, Charles Fahey, had continued the lie. Fahey withheld naval intelligence documents that would have disproven DeWitt's reports, along with the saboteur theories that upheld the rest of the government's exclusion policy. An Oakland attorney named Dale Minami, along with a team of lawyers, many of whose parents and grandparents had been incarcerated during the war,

brought Fred Korematsu's case back to court. In 1983, Fred Korematsu was able to testify in front of a U.S. district court. Now 64 years old, Korematsu urged the judge to reverse his conviction not just for himself, but for the entire nation. That same racial discrimination, Korematsu reminded the court, could happen to anyone during any conflict. Judge Marilyn Patel agreed. In her opinion, she wrote that the government had deliberately omitted relevant information and provided misleading information. Its claim of military necessity for internment had been based on unsubstantiated facts, distortions, and representations of at least one military commander whose views were seriously infected by racism. The United States did not appeal the

decision, which meant that Fred Korematsu's conviction was overturned. In the years that followed, Gordon Hirabayashi's conviction, along with the convictions of several other Japanese Americans, were also overturned. As the decades passed, the court's decision began to feel like a relic from a different era. Recent condemnations of the Korematsu ruling by Chief Justice John Roberts have done much to ensure the court's position. In a 2018 decision, Roberts wrote that the forcible relocation of U.S. citizens to concentration camps solely and explicitly on the basis of race is objectively unlawful

and outside the scope of presidential authority. Korematsu was gravely wrong the day it was decided and has been overruled in the court of history. But despite Roberts' denunciation, the ruling itself has yet to be officially overturned. To this day, the weapon that Justice Jackson feared in 1944 is still loaded. On the next episode of American History Tellers, the Court of Chief Justice Earl Warren establishes a path-breaking series of rulings weighing in on some of the most consequential social and cultural issues of the era.

From Wondery, this is Episode 4 of Supreme Court Landmarks for American History Tellers. If you like our show, please give us a five-star rating and leave a review. Be sure to tell your friends. I also have two other podcasts you might like, American Scandal and American Elections Wicked Game. For more information on the Japanese internment cases, we recommend Enduring Conviction by Lorraine K. Banai. American Scandal and American Elections Wicked Game. Sound design by Derek Behrens. This episode is written by George Ducker, edited by Dorian Marina. Our executive producers are Jenny Lauer Beckman and Marshall Louis, created by Hernán López for Wondery. If you like American History Tellers,

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