‘Stop Repeating History’ Article in Center for Gender & Refugee Studies Newsletter

The latest newsletter of the Center for Gender & Refugee Studies will include an article by Don Tamaki connecting the dots between the WWII incarceration of Japanese Americans 75 years ago and the President’s targeting today of immigrants and Muslims. This post is an expanded and updated version of the article.

On January 27, 2017, President Trump signed the first of thrice-revised executive orders banning travel of people from Muslim-majority nations.  Travelers having nothing to do with terrorism were detained.  U.S. residents were stranded abroad and separated from their families.  Thousands of validly issued visas were immediately canceled.  Hundreds with such visas were prevented from boarding planes or denied entry on arrival, including refugees running for their lives from terrorism who had already undergone a stringent 18-month vetting process.  Chaos at the nation’s airports reigned.  Court challenges followed, arguing that these orders were not truly meant to protect against terror attacks, but rather was the “Muslim Ban” that the President had promised during his run for the Presidency.  In defending these orders, the government claims that national security requires that the Judicial Branch bow to the will of the Executive Branch, giving it near-absolute deference with respect to the President’s authority to deny visas and suspend the entry of refugees.

Echoes of President Roosevelt’s issuance of Executive Order 9066 in 1942 when the Army reported that Japanese Americans were engaging and espionage and sabotage and ordered their removal en masse.  Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui challenged these orders.  The government defended the incarceration of almost 120,000 Japanese Americans, 70,000 of whom were American citizens, by arguing that national security demanded that the Court stand down and defer to the decisions of the Executive Branch.  To its everlasting shame, the Court failed to scrutinize whether the Army’s claims had any basis in fact, accepted without question the government’s contention that the incarceration was a “military necessity,” and ruled against these litigants.  However, the utter lack of evidence to support the mass round-up troubled dissenting Justice Robert Jackson enough that he wrote “[h]ow does the Court know that these orders have a reasonable basis in necessity? No evidence whatever has been taken by this or any other court.  There is a sharp controversy as to the credibility of the [Army’s claims].  So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by cross-examination, that what he did was reasonable.”

40 years later, in 1983, Justice Jackson’s worries were validated.  Petitions for writ of error coram nobis were filed in the Federal Courts in behalf of Korematsu, Hirabayashi, and Yasui based on the discovery of secret Justice Department, FBI, FCC, Navy and Army intelligence reports and memoranda, categorically denying Japanese Americans had committed any wrong, and admitting that there was no reason to lock them up.  Justice Department lawyers responsible for defending the government at the time characterized the Army’s claims as “intentional falsehoods,” and unsuccessfully urged Solicitor General Charles Fahy disclose to the Court these intelligence reports, stating that to withhold their contents “would approximate the suppression of evidence.”  Indeed, despite the protestations of Justice Department lawyers, the evidence was suppressed in order to manipulate the outcome of these landmark decisions.  In 2011, in an extraordinary “confession of error,” the Acting Solicitor General acknowledged the government’s role in the miscarriage of justice found by the coram nobis courts, and admitted that the government had known that its own intelligence “undermined the rationale” behind the mass removal and incarceration program.

Today, the children of Korematsu, Hirabayashi and Yasui have joined together to remind the public that during WWII when the Court abdicated its constitutional duty to be a check and balance on the Executive Branch by failing to asking probing questions, it was a civil liberties disaster, causing great damage to the Constitution and the Rule of Law.  As Justice Jackson presciently wrote, “…the principle lies around like a loaded weapon, ready for the hand of any authority who can bring forward a claim of an urgent need.”  Furthermore, when the Court stops asking questions and “looks the other way”, it inadvertently invites Executive overreach and government misconduct, as was the case in 1943-44.

On October 10, 2017, the Supreme Court sent one of the two travel ban cases (Trump v. IRAP) back to the 4th Circuit with instructions to dismiss the case as moot because the relevant provisions of the ban in question expired on September 24.   The Supreme Court’s action was not related to the merits of the case. The Court made no mention of the other travel ban case, Trump v. Hawaii, but it is expected that a similar order will issue after October 24, when another provision of the Executive Order on which that case is based (the 120-day suspension of the refugee program) is due to expire. The Court’s order vacates the 4th Circuit decision, essentially wiping it from the record and eliminating any precedential value, and similarly, the 9th Circuit decision is also expected to be vacated.

On October 17, Federal District Court Judges Derrick Watson in Hawaii and Theodore Chuang in Maryland issued nation-wide orders blocking the third iteration of the travel ban issued on September 24 by the Trump administration.  Judge Watson ruled that significant portions of the ban discriminate against travelers based on national origin in violation of the Immigration and Naturalization Act, rejecting the President’s claims that his orders are unreviewable, and holding that the President has made no findings that the ban makes the nation safer.  Judge Chuang found that the order was unconstitutional as it discriminates on the basis of religion and citing the President’s Twitter feeds proclaiming his campaign promise of a “complete and total Muslim Ban.” These new rulings will certainly be appealed at the 9th Circuit and 4th Circuit, respectively, and very well could be again consolidated into another Supreme Court case.

Whatever happens in the courts, we have launched the educational campaign, StopRepeatingHistory.Org, to promote awareness of the dangers of unbridled Presidential overreach with little or no judicial checks and balances, using the Japanese American incarceration as the example of the damage to fundamental freedoms that can occur when the courts abandon their duty to hold the Executive Branch to the requirements of the Constitution.

Recent press coverage includes the USA Today feature story:

https://www.usatoday.com/story/news/politics/2017/10/10/children-japanese-american-legal-pioneers-world-war-ii-fight-travel-ban/740910001/

The “Call to Action” from Karen Korematsu, Holly Yasui and Jay Hirabayashi, along with the amicus brief we filed in their behalf, can be found at https://stoprepeatinghistory.org.

Our social media posts:

https://www.facebook.com/stoprepeatinghistory
http://twitter.com/JAincarceration

We invite you to join us in this campaign.

Don Tamaki is a partner at Minami Tamaki LLP and a member of the Coram Nobis Legal Team which in 1983, represented Fred Korematsu to reopen his landmark case, vacating his criminal conviction for refusing to obey orders leading to the incarceration of Americans of Japanese ancestry.