Here's Where It Gets Interesting - Resilience: All the Way to the Supreme Court

Episode Date: October 17, 2022

On today’s episode of Resilience, we will hear more from Professor Lorraine Bannai about Executive Order 9066, Japanese American resistance, and how they were both important to key Supreme Court Cases. Hosted on Acast. See acast.com/privacy for more information. To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

Hello, friends. Welcome. I'm so glad you're here today as we continue our series, Resilience, Japanese Incarceration During World War II. We've spoken before about President Franklin Delano Roosevelt's Executive Order 9066, which gave broad legal authority to designate certain areas of the United States under the jurisdiction of the military. And in doing so, it required that that all Japanese Americans, citizen or immigrant, leave their home on the West Coast to be relocated and eventually incarcerated. Today we're going to hear about some of the legal challenges, what the Supreme Court had to say about Japanese incarceration. I'm Sharon McMahon, and here's where it gets interesting.

There was someone on the floor of Congress who said, you know, this is the vaguest lie I've ever seen. There was a serious question about vagueness that these orders that President Roosevelt's order and the congressional statute that made it a crime didn't identify any conduct itself. It was a military command. So I think that there were really serious questions about whether there was a constitutional basis for these orders. One of the biggest challenges the Japanese American community faced when they were being forced to leave their homes, their businesses, their schools, their lives, and relocate to incarceration camps behind barbed wire in the interior of the United States is what to do about it legally. Not only was there not a precedent for the incarceration of citizens without any kind of

a trial, without any kind of a hearing, without any accusation of a crime, the Supreme Court gave broad legal authority to the president when it came to matters of national security. And so what that did was it permitted the military and the executive branch of the government to have an incredible amount of jurisdiction to change people's lives forever. And that jurisdiction, that authority was supported by Congress. Congress made it a federal crime to disobey any of these orders. So not only were you legally required to obey the orders of the military, you were also forced to do so often at bayonet point. though forced to do so often at bayonet point.

We saw this all the way back in the late 1800s in a case that said that Chinese who had lived in this country couldn't reenter the country because Congress has the power to protect the country from the vast hordes of Chinese from taking over. So this idea of protecting the country has always been used to say that the government can do what it can to protect us. Now, the difficulty for me here is that one can understand that the president and government needs to have broad authority to wage war. And we think about war being on foreign soil. But here, this was a matter of rounding up and incarcerating American

citizens and lawful resident aliens here in this country. And that is a real concern. How do you define national security? Throughout the series, we have been hearing from Professor Lorraine Benai. Not only is she an attorney and a law professor, she's intimately acquainted with some of the legal cases involved in Japanese incarceration. And this question that she poses, what is national security? That really is the million dollar question. Of course, we assume that it means that we need to protect the safety of the country. But what is safe? How do we define safe?

What kind of freedoms are we willing to give up in order to get safety? Who gets to decide what makes us safe? These are all questions that don't have clear-cut answers. And I guess I would get even more basic than that, that basically the danger of fear, that when you have a toxic mix of stereotypes about communities of color that have existed since the beginning of this country, which is Asian Americans as foreign and dirty, blacks as criminal, all of these stereotypes. And you combine that with fear. This is when we get things like the Japanese American incarceration. And national security is part of that fear. Right.

So you've got people who are out there saying, Pearl Harbor has happened, you know, what shall we do about this? You'll only be safe if we round up the Japanese Americans. We have a problem with drugs. What should we do about it? Well, we have to round up people in these poor communities who are dealing in these drugs. And so when people are afraid, they're willing to kind of like, think about my safety and my family before whether people's rights are being trampled upon. Now, in some level, you kind of understand that it's like anything to keep me safe. But then again, who we see time and time and again paying the price are vulnerable communities and often communities of color and immigrant communities. So one of the things I warn people about is to watch out for the, this is not about race, it's about blank.

This isn't about race, it's about national security. This isn't about race, it's about public health. This isn't about race, it's about crime, that basically people are willing for some reason to turn the other way. And this is exactly what happened during World War II. The court in Fred Korematsu's case, which challenged the removal of Japanese Americans from the West Coast, said Fred Korematsu was not removed because of any hostility to him or his race. He was removed because we were at war with Japan. Well, of course, Japanese Americans were removed because of hostility to their race. They were the only ones that were removed. Yet we saw the Supreme Court say this was not about race. This was about national security.

I'm always concerned that people put it on General DeWitt because this was not just some crazy general. This was called for by responsible journalists, by the popular media, by the entire West Coast congressional delegation, by the government officials in the War Department, the American Legion, the farming associations. I mean, this was a very popular act. And so it certainly General DeWitt being given this power was something that was important to him. But there were much higher

ups than General DeWitt who were calling for the removal of Japanese Americans and the popular press and everybody. And so to me, it's one of the most frightening things about it is that there were influencers who were calling for it and a large, quiet, accepting majority who went along with it. Not only were Japanese communities small and vulnerable, they lacked political power, they lacked economic power. There was also a cultural element that made it difficult for communities to rise up in protest. There were powerful community groups that were encouraging people to go along with the incarceration, to say, this is our patriotic duty, that if we go along with this, this will be our contribution to the war effort. You have to think about the age of these individuals. Most of the parents were probably in their 40s or so, and they didn't speak English.

They were all immigrants. They had been denied the ability to vote, become citizens. They had been segregated from society, if not legally, effectively, and that their children were young adults in their 20s. My father was 22 years old. My mother was 16 years old. And so they did not grow up in a culture of protest. And when all this happened, they were responsible for taking care of their parents and their family. So aside from there not being a culture of protest, there were guns, there were army orders, these were young people. What could you do under those circumstances? And so I think it's really easy now in hindsight to ask how come they didn't protest?

But there's a whole lot of reasons that they couldn't. The city councils were against them. lot of reasons that they couldn't. The city councils were against them. The state legislatures were against them. All of the congressional members of Congress were against them. The president was against them. The National ACLU, none of the national civil rights organizations took a position against the incarceration of Japanese Americans when it happened. The National ACLU in Fred Korematsu's case was, he was represented by some lawyers that were obtained by the Northern California ACLU. The National ACLU refused to let his lawyers attack FDR's authority. So when you've got the national HLU trying to tie the hands of a challenge to this, how could Japanese Americans resist on any

mass level? The other thing too is we're only talking about 120,000 people, right? This was a very small community and a very disenfranchised community. But a few of them did protest. One of them was Fred Korematsu. And in episode seven, we discussed Min Yasui and Gordon Hirabayashi. Min Yasui challenged curfew orders while a student at the University of Washington and was convicted. And Fred Korematsu decided that he was not going to leave his home, no matter what the orders said. He chose to remain in Oakland, California with his Italian-American fianc fiance, the woman he loved and the place that had always been his home. And he was approached by Ernest Besig, a representative of the Northern California ACLU, to ask him if he'd be willing to bring a test case to challenge the removal orders. And Fred said yes. He was convicted at the trial court level of violating the exclusion orders, convicted

of a federal crime, and his case went up to appeal. At the same time, Gordon Hirabayashi and Min Yasui, Gordon Hirabayashi in Seattle, Washington, and Min Yasui in Portland, Oregon, had challenged the curfew orders, and Gordon also challenged the removal orders. They were convicted and their cases went up to the Supreme Court. I'm Jenna Fisher. And I'm Angela Kinsey. We are best friends. And together we have the podcast Office Ladies, where we rewatched every single episode of The Office with insane behind the scenes stories, hilarious guests, and lots of laughs. Guess who's sitting next to me? Steve! It is my girl in the studio! Every Wednesday, we'll be sharing even more exclusive stories from the office and our friendship with brand new guests.

And we'll be digging into our mailbag to answer your questions and comments. So join us for brand new Office Lady 6.0 episodes every Wednesday. Plus, on Mondays, we are taking a second drink. You can revisit all the Office Ladies rewatch episodes every Monday with new bonus tidbits

before every episode. Well, we can't wait to see you there. Follow and listen to Office Ladies on the free Odyssey app and wherever you get your podcasts. ladies on the free Odyssey app and wherever you get your podcasts. Those were the first cases decided, the Hirabayashi case. First of all, what the court said in Hirabayashi is that when you're dealing with decisions by the war-making branches of

government, it is not for the court to second- second guess those decisions. Again, this idea of acting in the name of national security and the court in Gordini-Hirabayashi's case said this was a national security issue and the government could certainly do this. And the court basically has no role or a very limited role in questioning that. Even though the court said its role was limited, it went on and talked about why there was sufficient showing of national security. And it said that there was a sufficient showing for basically two main reasons. One is that Japanese Americans have certain racial characteristics that the military could reasonably believe fostered their connection to Japan.

For example, Japanese children went to Japanese language schools, which were believed to be the source of Japanese nationalistic propaganda. This without any evidence of what was taught in Japanese language schools, no evidence that they disseminated Japanese nationalistic propaganda. But the army said this, and the government argued that. The Department of Justice argued that. They argued that many within the Japanese American community were of older years, mature years, and occupied positions of influence within their community. Well, that's true of everybody. The court, in its opinion, which you can go read, lists a litany of racial characteristics, I'm saying that in air quotes, that Japanese Americans

possessed that the government argued and the court agreed could strengthen their loyalty to Japan. Now this because, keep in mind, the government had no evidence of any acts of espionage or sabotage on the part of Japanese Americans. I mean, you would think that if you're claiming military necessity, the first thing you would say is, well, these are the acts of espionage and sabotage we found, but there were no acts. And so the government had to come up with an argument as to why these orders were based on national security. And they had this racial characteristics argument that we believe because of these things, they're prone to being influenced by Japan. That's the first reason. The second reason articulated by the government and the court is that there was insufficient time to separate the loyal from the disloyal.

That said, even though bombing of Pearl Harbor took place in the beginning of December and the first Japanese Americans weren't removed until mid or late March. And in that time, the government was saying there was insufficient time to separate those who were loyal from those who were perceived to be disloyal. And again, this population was relatively small, but the government said it could not do loyalty screening. So fast forward then another year and a half. Fred Korematsu's case gets up to the Supreme Court. Keep in mind that Japanese Americans now have been incarcerated for two and a half years. So we're talking about December 1944 when Fred Korematsu's case goes up and the court decides whether the removal of Japanese Americans was lawful or not. Now, of course, a removal of someone from their home is totally different from imposing a curfew on them.

But the court in Fred Korematsu's case said, for all the reasons we upheld the curfew in Harabayashi, we're going to uphold the removal order in Korematsu. And the court said, yes, granted, that curfew is really different from the removal of one's home. But the same reasoning applies. The same reasoning that the courts have a limited role in national security issues and that the government could reasonably decide that Japanese Americans posed a threat. said even more proof exists from the fact that after Japanese Americans were put in camp, 5,000 refused to swear unqualified allegiance to the United States. So Japanese Americans were given loyalty oaths to fill out while they were in camp. This is after they were behind barbed wires, after they'd been removed from their homes, they were asked whether they were unqualifiedly loyal to the United States, whether they'd be willing to serve in the armed forces, whether they would denounce any loyalty to Japan. The loyalty laws caused havoc within the camp because people didn't know how to answer it, what it meant, how the answers would be used, and some people were just angry. And so for the U.S.

Supreme Court to use the responses to that loyalty oath to justify the incarceration was crazy. You don't use facts after an arrest to justify whether the arrest was lawful or not. So in one of the most infamous cases in U.S. Supreme Court history in Korematsu, the court upheld the removal of Japanese Americans from the West Coast, again, from this idea of the fact that there was military necessity and Japanese Americans posed a threat. So the day that the Korematsu case was decided in December 1944 was not all bad news for the Japanese American community. The same day, the court decided a case that was brought by a woman named Mitsue Endo. Now remember that everyone who was incarcerated was being held without accusation of crime.

They were being held without ever having had a hearing. They were being stripped of their due process rights. And so when Mitsui Endo filed for a writ of habeas corpus, that's a legal term, and what that means is she was asking for a hearing. She was saying, I am being detained illegally, and I deserve the right to have my case heard in a court of law. At one point in time, Japanese Americans were allowed to leave camp. They had to pass the screening, though, not only establishing their loyalty, but also showing that they had a means of support where they were heading and that the community they were heading to would not be hostile to them. And she said that the government could not continue to incarcerate her. Mitsuha Endo said,

look, you've decided that I'm loyal. You can't further require me to show that I have a means of support and that the community I'm going to will not be hostile to me. If I'm loyal, you can't keep me anymore. And so her case went up to the Supreme Court. And on the same day that the court upheld the mass removal of Japanese Americans in Fred's case, it granted Mitsuo Endo's petition and said that the government could not continue to withhold Japanese Americans whose loyalty had been conceded. And so at that point in time, Japanese Americans were free to leave and free to go if their loyalty had been established. There were many who still had to prove their loyalty to the satisfaction of the government. But I think one of the most important things to remember about this

is that there's four cases that went up to the Supreme Court. Yasui and Hirabayashi that upheld the curfew order, Fred Korematsu's case that upheld the exclusion and removal orders, and Mitsuo Endo's case that said the government couldn't continue to hold loyal citizens. In none of the cases did the court ever decide the constitutionality of the original incarceration. In fact, the court was asked to decide the constitutionality of the original incarceration in these cases, and it refused to. It said that none of them involved an order of incarceration, and when someone appeals that

order, we'll address it. But as I mentioned, there was never an order. There was never an original order of incarceration. Years after Japanese incarceration ended, these legal cases continued to weigh heavily on the minds of not just the people who were convicted, not just Fred Korematsu, but the entire Japanese American community. And because the Supreme Court had heard these cases, there was no way to continue to appeal. There was nobody else to go to for relief. And whenever this question came up, well, we should do something about the Japanese American incarceration because it was so wrong. People would say things like, well, the Supreme Court said it was okay. So of course it's okay. So for many years, people just went back to work and tried to move ahead.

But in the 60s and 70s, and now again, with the advent of the civil rights movement and the advent of the call for ethnic studies and the empowerment of young Asian Americans, some people started to say, hey, what happened? It was wrong. How can we correct this wrong? And again, the answer was, well, the Supreme Court said that it was okay.

So many people started thinking, is there a way to challenge these Supreme Court cases? Early in like 1982, I think, this professor named Peter Irons, who was a professor at the University of Massachusetts, was doing some research for a book. And he decided to research the Department of Justice lawyers who had handled these Japanese American cases before the Supreme Court during the war. And he and this archival researcher named Aika Herzig-Yosinaga, and they found remarkable documents while doing their research in the National Archives. The documents basically fall into two main categories. First, it was discovered

that there was military necessity. DeWitt had claimed that there was military necessity. The government submitted DeWitt's final report to the court. The final report said that there was insufficient time to separate the loyal from the disloyal. The court said, okay, the government has shown there's sufficient military necessity. The documents that Peter and Aiko found, number one, show that that report had been altered. That when the report was written, DeWitt had originally said this was not about insufficient time. It was not that there was insufficient time to separate the loyal from the disloyal. Instead, with Japanese Americans, you can't tell the loyal from the disloyal. Instead, with Japanese Americans, you can't tell the loyal from the disloyal no matter how much time you have. The racial strains are so strong, you can't tell a loyal one from the disloyal one. Now, when it was recognized that that argument totally contradicted the government's argument to the Supreme Court when it was saying there was insufficient time, the Wits report was ordered changed to comply and support the government's argument about insufficient time. So it was changed to say there was insufficient time to separate the loyal from the disloyal.

The original versions of the report were recalled. A soldier burned those reports and destroyed them. And he wrote a memo that said, today, I destroyed all these copies of this original DeWitt report. He didn't destroy a copy of the memo, but he said he destroyed the report and he didn't destroy one copy of the report. And so that was found to show that the government supported a falsified doctored report to the Supreme Court. Secondly, DeWitt in his report had said that there was illegal short-of-ship signaling and radio transmissions. Peter and Eichel found documents from the FBI, from the Federal Communications

Commission, and from the Office of Naval Intelligence all saying that DeWitt's findings were false, that there was no evidence of illegal short-ship signaling or illegal radio transmissions. One of the attorneys within the Justice Department told his superior, we've got these reports, we have a duty to tell the U.S. Supreme Court about them. And if we don't, that approximates suppression of evidence. And he was overruled. if we don't, that approximates suppression of evidence, and he was overruled. From the government's own records in the National Archives, there was evidence that the government suppressed, altered, and destroyed material evidence while it was arguing before the U.S. Supreme Court. Based on that evidence, we filed a petition for writ of error quorum nobis, big Latin phrase, to exonerate Fred and to vacate his conviction 40 years after he was convicted, saying that his conviction should be vacated because it was based

on intentional falsehoods by the government. And the court in that case vacated Fred Korematsu's conviction because of those lies. Gordini-Habayashi's conviction and Minyasui's convictions were vacated Fred Korematsu's conviction because of those lies. Gordini Hibayashi's conviction and Minyasui's convictions were vacated as well. My family was incarcerated. Many of the lawyers on my legal team, their families were incarcerated. We always knew the incarceration was wrong. We had read the Korematsu case in law school. Just about every single lawyer in the United States has read the Korematsu case in law school, just about every single lawyer in the United States has read the Korematsu case. We knew it was wrong, but to find out that not only was it wrong, but the government lied to get the result that it wanted was absolutely unbelievable, but believable.

So it was quite moving. And Judge Patel's hearing, when she announced her ruling that the conviction would be vacated, was filled with Japanese Americans who had been incarcerated and their children. And it was one of the most moving moments, I think, I've ever experienced. It was the first time that Japanese Americans and Fred were back in court again in 40 years. It was the same court or a few blocks away from the court that had convicted Fred. And the tears that flowed after that decision were memorable and remarkable. Coram nobis is a legal term that means before us. And it is a rarely used legal procedure that is used to correct a significant error in a trial after the defendant has already been convicted and served a sentence. So it's a way of going back to try to correct some of the wrongs. My mother felt for all those years that she had been guilty of a crime,

that she felt that the Coram Nobis cases made her feel like she was free again, that she was exonerated. Now, of course, she didn't do anything wrong and she wasn't a criminal, but I think that she felt that way. And I think probably that a lot of other people did too, that there was a cloud over them, that these years had been taken away from them, that the Supreme Court had said that it was the right thing to do. And then now with the decision in Fred Korematsu and Gordini Hibayashi and Minyasui's cases, the courts were saying they were wronged. Now, in addition, at the same time,

the redress movement was going on in Congress. During the political movements of the 1960s and 70s, there became this sense that perhaps the injustice done to Japanese Americans should be raised and that there should be some kind of national reckoning with that wrong. There were several different movements that grew from that, and one of them was the movement for Japanese-American redress, reparations, and the introduction of legislation for that. And what resulted from that was a bill that authorized a study commission, a commission that came to be known as the Commission on Wartime Relocation and Internment of Civilians. And that commission was appointed to investigate the wartime incarceration and to make recommendations for appropriate remedies.

They conducted hearings all over the country with people who were part of the decision to incarcerate Japanese Americans. They talked to experts, constitutional law experts, military experts. And most significantly, they heard testimony from Japanese Americans who had been incarcerated during the war. And Japanese American after Japanese American came forward. And they told their stories about how they were incarcerated and about what the camps were like and how they had been enduringly affected. They told the government about their losses, not just in terms of money, but also their loss of dignity. And it was truly a remarkable experience for the members of the commission to hear and fully grasp the impact

of what the United States' actions had done. For many of us who are Sansei, third generation, our parents didn't talk about it. And so to see for the first time this outpouring from our community and hear what had happened to them was truly moving. As a result of that, the commission recommended reparations of $20,000 per person surviving the incarceration as of that date, as well as a national apology, as well as the establishment of an education fund. Many of the people who had been incarcerated, of course, by that time had died. And so the people who had passed away, their families did not receive this monetary reparations. And $20,000 is not a whole lot for the years of people's lives and the losses, but the apology was very

meaningful. These were letters that were signed by the president, President Bush. They were distributed in order of age, with the oldest receiving them first. But very significantly, this education fund has been really meaningful to fund books and curricula and libraries and museum exhibits and pieces of art to inform people about the wartime incarceration. I really want to emphasize a couple of things. One is certainly when people first went to Congress and said, we're going to introduce this redress bill, we would like to get your support on this, many of them said, but the Supreme Court said it was okay. And so it was really important to attack those Supreme Court cases. And I think people thought that it was really critical in order to gain reparations.

Secondly, I think what's really important is that reparations is so much more than money. I think it's the truth telling. I think it was the opportunity for the people who were incarcerated to tell their stories and to have the government listen and to have the commission say, we hear you. And this was really wrong. The commission ended up saying that the causes of the wartime incarceration were race prejudice, war hysteria, and a failure of political leadership. And to have the government say that to the people who survived the incarceration was so meaningful. And you might be asking yourself, well, surely, surely we have overturned the Korematsu case. Surely that is no longer the law of the land. And unfortunately, you would be wrong.

Although the Korematsu cases established that the Supreme Court was lied to during World War II, it doesn't overrule the Supreme Court Korematsu Hiroyoshi Yasui cases. These cases, the Korem Nobus cases, were decided by lower courts because we won. The cases didn't go back up to the Supreme Court, and the Supreme Court did not have an opportunity to address them. That being said, certainly the Coram Novus cases established that Supreme Court cases are built on a record of fraud, which creates a conundrum

for legal scholars to now figure out what effect the Coram Novus cases had on the Supreme Court cases. I'm sure as you're listening to this, you're asking yourself the question, what can we do? What can we do as ordinary citizens to make sure this never happens again? recognize the patterns. Certainly the pattern of historically embedded racist tropes combined with fear. That is one of the patterns we see over and over again, that basically it's a concern when marginalized communities have been treated as separate, as bad or diseased or whatever, whether it be the gay community, religious minorities, people of color. When there's a history that treats them as the other, combined with the fear that comes up, whether that be national security, whether it be public health, whether it be anything,

that's when we sacrifice the rights of others. So I think one of them is to think about the history of racism in this country and look for those patterns. Again, this idea of this isn't about race, it's about public health, this isn't about race, whatever. Look beyond the surface and see who's being harmed by this and whether that's okay with us as a civilized society of laws. The importance of the rule of law, know the system, know we're a country of laws, know we're a country where people have rights and put that above individual popularity or fear or rhetoric. The important role of the courts is something that I've just talked about. We make sure that we have public officials, whether they be in the legislature, in the executive, or even

to the extent that you can vote on judges, people who you believe to be fair and believe in the rule of law, and that we have courts that understand their vital role in the system of checks and balances. And I guess all of that is basically about education. One of the things I'm most concerned about right now are the attacks on being able to tell these histories in public schools. I really worry that people will not be able to share these stories about what happened to the Japanese American community. I really fear about the attacks on having certain books available to our students and being able to tell the histories of things that our country has done wrong, because understanding them is the only way to make sure that we don't do them again. To understand why did it happen and what can we do to prevent it comes from being able to understand what happened

and the failures that caused it. And the Japanese American incarceration took place because people didn't speak out, because our leaders didn't speak out or stand for the rule of law. And we can prevent things like that with an informed citizenry that uses their voice and uses their vote.

Thank you so much for being here today. And I hope you'll join us for the next episode as we find out what happens when the camps were closed. I'll see you again soon. Thank you so much for listening to Here's Where It Gets Interesting. And I'm wondering if you could do me a quick favor. I'll see you again soon. Here's Where It Gets Interesting is written and researched by executive producer Heather Jackson. Our audio engineer is Jenny Snyder. And it's hosted by me, Sharon McMahon. See you again soon. you