← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Truth, Reconciliation, and Korematsu v. United States
01:03:30
A lesson from history in finding the truth when the Justice Department has been complicit in the cover-up.
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- [00:07]
Don Tamaki
The whistleblowers who called upon the attorney general and the solicitor General to tell the truth and who had plainly said in their memos that we're about to tell lies to the U.S. supreme Court. They were rebuffed and they kept their mouth shut.
- [00:23]
Judge Edward M. Chen
The government has enormous amount of leverage, enormous amount of power, has monopoly on the information. If anything underscores the duty of the court to serve as a check to make sure that the civil liberties, the civil rights and the constitutional rights of the citizenry are protected and that the government is being forthright and that the playing field is level and it didn't do so in this case.
- [00:58]
Dahlia Lithwick
Hi Hi. And welcome back to Amicus. This is Slate's podcast about the Supreme Court and the courts and the law and the rule of law. I'm Dahlia Lithwick. I cover a whole bunch of those things for Slate. And on this, the first show of 2021, we are going to actually take a moment to look back to look like a long way back to World War II and the Japanese internment and one of the most shocking stories of corruption of the Constitution and corruption of the judicial process all the way up to the Supreme Court in U.S. history. And my urge to revisit this chapter of history was actually sparked by a film that I watched in the summer of 2020. The documentary was called Alternative the Lies of Executive Order 9066. And it's actually about the factual basis, the underpinning for the Japanese internment during World War II and all the ways in just completely fake facts known fake facts became not just a part of the litigation record in Korematsu and related cases all the way up to the Supreme Court, but actually then became a part of Supreme Court doctrine itself. I decided to just replicate an incredible panel I did this past summer for the American Constitution Society's Ohio branch. And on the panel we talked about not just about the movie and about that history, the the largely lost history, but all the ways in which it still echoes and resonates today. First, just a quick heads up to our Slate plus members who are no doubt longing for their fix from Mark Joseph Stern. Mark will be back in two weeks for our regular segment breaking down all the latest from the Supreme Court and the federal courts. If you are not a Slate plus member, you should know that membership gets you access to bonus content from all of your favorite shows and Slates network, including this show. No ads in any of our shows and you will never hit a paywall on slate.com. most important, you would be supporting the journalism that we do here at the magazine, and we so appreciate it. So you can always join us@slate.com amicusplus Back to our discussion of the Japanese internment and the ways in which the history of that time is lost to us and how correcting the record, even all these decades later, teaches us so much about our current moment and about truth and reconciliation and wending our way back to what is real. I am so honored to welcome to this podcast my two compatriots for that panel we did, and who really both opened my eyes to the truth of what this work involves. The Honorable Judge Edward M. Chen, an Obama nominee to the US District Court for the Northern District of California. Before he was elevated to the bench, Judge Chen was a longtime public interest advocate. He was also a staff attorney with the ACLU of Northern California, where he served on the Quorum Nobis team for Fred Korematsu. Later on in the show, we're going to actually talk about that groundbreaking legal work and what Corum Nobis even means. So first off, welcome Judge Chen. It's a delight to have you here on the show.
- [04:21]
Judge Edward M. Chen
Thank you for having me.
- [04:23]
Dahlia Lithwick
And I'm going to just say what I always say on the occasions in which judges come on this show, which is obviously they are not allowed to discuss pending cases or current events or political matters. And so by necessity, Judge Chen is somewhat limited in what he can discuss. And I think obviously it's really important to honor that rule and that principle. My other guest today is Don Tamaki. He is the managing partner of Minami Tamaki and among many other impact accomplishments in his life. Don also served on the legal team that reopened the Korematsu case, overturned Korematsu's criminal conviction, and helped clarify the historical record, including at the Supreme Court. Don was a 2020 recipient of the American Bar Association's Spirit of Excellence Award. So he is in some sense a living history of both ferreting out this historical wrong and also putting it Don, it is such a delight to get to talk to you again and to have you on the show.
- [05:31]
Don Tamaki
Happy to be here. And Ed Sheown as an attorney, was on that team as well. So pleasure to be with him.
- [05:38]
Dahlia Lithwick
Well, it is really good to have the band back together, so to speak. And I just want to start with what's going to seem an obvious question to the both of you, but I think it'll set the table for our listeners. And that is simply this racism, deep, deep, explicit racism has been a part of US History all the Way back to the founding, all the way back to slavery. Racism against Asian Americans does not begin in World War II, however. And I wonder if you can just set the table. We can talk about the Chinese Exclusion act of 1882, but just the ways that this is a long standing problem that in some sense long predates Fred Korematsu.
- [06:20]
Don Tamaki
You said it exactly right, Dalia. There's patterns of racism that tend to repeat themselves. And throughout the issue seems to be government leaders and the society itself defining who is an American and who is not, who belongs here and who doesn't. And it just so happens in the turn of the century, in the late 1800s and early 1900s, there was Japanese American immigration from Japan and immigration from China and other countries. And at that time, just as the Civil War was ending and they couldn't preserve slavery any longer, but the idea was to preserve white supremacy. That canon was also turned against Asian Americans at approximately the same time. So on the west coast, there's a slew of laws in particular aimed at Asian Americans restricting where they could work, where they could live, certainly their citizenship. They were not eligible to become citizens, couldn't own most kinds of real property. The effort was to benefit from their contributions in terms of labor, but to keep them moving so they would not establish roots in America.
- [07:28]
Judge Edward M. Chen
And I think what's important to note historically, which we see an echo of in Korematsu, is that that discrimination against Asian Americans was rooted in scapegoating the first real wave. Dalia mentioned the Chinese Exclusion act of 1882 that essentially banned the entry of all Chinese immigrants into this country and forbade their citizenship, was in response to a recession. At the time, Chinese had been brought over as workers to work on the railroads, in the mines, in the fields. And then when there was a slowdown in the economy and white workers were left jobless, eyes naturally turned to the culprit, the villains, the perceived villains. And at that time it was Chinese Americans. Later on it would be Japanese immigrants, Filipinos at various other points. And so the scapegoating of this group on which to blame the ills of the economy and society started back before the turn of the century. And we see that as we'll discuss in the Korematsa case.
- [08:31]
Dahlia Lithwick
So I want to lay out the facts of or the not facts, the fake facts, the alternative news of the j internment. And I think if you'll both jump in, we'll try to get it laid out so we can get to the part of it that I think is the Kind of atrocity at the Supreme Court. So, in effect, we have General DeWitt. He's posted at Presidio. He's a lieutenant general in the FDR administration. He's kind of on his way out toward the end of his career for reasons maybe one of you can explain. The Navy has jurisdiction over the entire Japanese American community on the West Coast. And DeWitt. And this precedes Pearl Harbor. Right. He has real anxiety about that community. And after Pearl Harbor, I think initially he's hesitant to round up all the Japanese Americans. Eventually, I think he gets there and he starts making these assertions about unfounded assertions about, you know, fifth columns Japanese that are signaling with mirrors and lights. Overtly claims he heard Japanese bombers in the skies over San Francisco in December of 1941. This is all false. It's all slander. This whole fifth column story is slander. But the press kind of jumps on. And this in some sense feels like. Is it unfair to lay this at the feet of General DeWitt that this kind of starts as his fever dream?
- [10:10]
Don Tamaki
Well, I would say that the rounding up of almost 120,000Americans, 70,000 of whom were American citizens by birth, they were born in this country, was certainly in part led by General John L. DeWitt. But he wasn't the only one. This was the most popular thing at the time. And you're right, Dalia, it was fueled by conspiracy theories and appeals to prejudice. And among other protagonists, here is Earl Warren. He was then Attorney General of the State of California. He was campaigning for governor on the slogan that Japs must go. And he was one of the key leaders fomenting the rounding up farmers in the Central Valley. Very much wanted the Japanese out because they posed competition. They were producing enormous amounts of produce and doing it for less money. So that was the political move to get them out. The newspapers, the media, you know, the more lurid the stories about Japanese Americans, the more papers they sold. The most striking thing, however, about this whole period of history is the reasons for the Japanese Americans rounding up. That is to say, the claims that they were engaging in espionage and sabotage were completely made up. But the government knew it at the time, but yet proceeded to suppress that evidence in their own intelligence reports from the United States Supreme Court. So at the end of the day, while General DeWitt was a leader in getting this done, he wasn't the only one. There are very few defenders of Japanese Americans at that time. This was a very much a popular movement.
- [11:51]
Judge Edward M. Chen
And I think this is where the history of discrimination against Asian Americans makes this a very easy play for the public and for leaders at the time. The image of Asian Americans being foreigners, perpetual foreigners, never American, never a part of this country, even if they've been here for generations, even if they work in the community and provide tremendous economic contributions to the community, nonetheless, they have always been seen as foreigners. And it was very easy to exploit that notion. And that's exactly what happened.
- [12:25]
Dahlia Lithwick
And Judge, can you just lay out, I know this is complicated doctrinally, but can you lay out after FDR signs the order and the internment begins, the basis of the challenges and the case that goes on to become Korematsu?
- [12:43]
Judge Edward M. Chen
Well, there are three cases that ultimately reach the Supreme Court. The first two cases involving Yasui and Hirabayashi were challenges to sort of the first step that led to internment. And that was the first thing that the government did was impose a curfew on Japanese Americans. And so challenges were brought in Portland and in Seattle to challenge the race based curfew. It only applied to Japanese Americans, didn't apply to Italian Americans, didn't apply to German Americans, even though we were at war similarly with those countries. And so that was a challenge based on a claim of unconstitutional racism, racial classifications. And that led to the first major case, the Hirabayashi case, which upheld the curfew. And that laid the groundwork for the next step, which was the actual rounding up and exclusion. It's phrases and exclusion, but really an internment of all Japanese Americans on the West Coast. And that was challenged by Fred Korematsu and he brought his case and we'll talk about that all the way to the Supreme Court. And so the next decision hereafter was in the Korematsu case in which the court on a 6 to 3 vote, upheld the exclusion and I think internment of Japanese Americans.
- [14:06]
Dahlia Lithwick
And now let's return to our conversation with the Honorable Judge Edward M. Chen of the U.S. district Court for the Northern District of California and Don Tamaki, managing partner of Minami Tamaki. Both served on the legal team that reopened Fred Koremazzi's case and overturned his criminal conviction. And Don, just before we get too in the weeds on the doctrine piece of this, I really would love for you to describe what that internment was like. I mean, one of the things that I think that sometimes gets lost to history is what it meant for people to pack up all their belong, leave their homes, how they lived. Can you talk about that for a moment? I think it's important.
- [14:50]
Don Tamaki
Well, the velocity in which this happened was Startling, and that is to say, you know, December 7th was the attack by Japan. Within hours, agents swept into Japanese American communities in Seattle and Portland, San Francisco, Los Angeles, Arizona, all up and down the west coast, and began arresting leaders. These were Buddhist priests, these were Japanese school language teachers, these were civic leaders in the community. And they were immediately taken away. And within weeks, as Judge Chen just recited, a curfew was imposed against Japanese Americans. They couldn't leave their houses before at 6 in the morning. They had to return to their homes at eight at night. The first part of the rounding up involved reports to be interned in temporary military detention camps. So, for example, my parents, who were living in the Bay Area, received notices that they would report to Tan Ferran Racetrack. They were put into buses, and these racetracks and fairgrounds up and down the west coast were converted into temporary prisons surrounded by barbed wire and machine gun towers. And my father, who was about to graduate from the University of California at Berkeley, which was quite an accomplishment because you were very poor growing up in Japantown, was unable to be there at Berkeley. And he was sent his diploma. And I keep his mailing tube. It says, address to Tan Ferrand Assembly Center, Barrack 85, Apartment 5. Barrack 80, Apartment 5 was a horse stall. The entire family was put in a horse stall without heat, without hot water. And you've got almost 6 to 7,000 Japanese Americans from the Bay Area put in tanforan until 10 more permanent American style concentration camps were being constructed from California to Arkansas. So by the end of 1942, almost 120,000 people had lost their freedom, they had lost their property, they lost their businesses, and some had even lost their lives. And the government claimed that Japanese Americans were doing two things. This is all based on their claims that Japanese Americans were engaging in espionage in the form of signaling enemy ships from shore, and that they were so different, they were so unassimilated, they were so un American that they were prone to disloyalty. And on that basis, the rounding up proceeded. General John L. DeWitt called the Japanese race an enemy race. And he said, the very fact that no sabotage has occurred is disturbing confirmation that it will happen. And that's the kind of crazy logic it was. The very fact that you've never been charged or accused of a crime was proof positive that you will be a criminal. That was a predicament that Japanese Americans found themselves. That was a conspiracy theory of the day. And the passion of prejudice was so strong that literally facts didn't matter. And I think that's probably the relevant part to today's world in which we live in.
- [18:16]
Dahlia Lithwick
It is. And it also brings us to the reason that I summoned you both back to this show to talk about this, this issue again. And that's because this all becomes baked right into the Supreme Court process itself. That's the part of it I know you both work to correct. But I wonder if we can talk a little bit about how all these fake facts, all this fake news that you just laid out, Don, actually becomes part of the record in this litigation. And I think maybe we can start by playing a clip from the film Alternative Facts, the Lies of Executive Order 9066, explaining that for the folks at the Justice Department, this was not an easy lift for them. Some of them were very uncomfortable crafting a record in a lawsuit based on what even they at the time knew was false. And specifically, Edward Ennis, then director of the Alien Enemy Control Unit at doj, was very clear that there was a problem with the government's justifications for the internment, especially in light of a Naval Intelligence report that actually concluded that Japanese Americans posed no danger and recommended against rounding up civilians.
- [19:37]
Don Tamaki
He writes to the Solicitor General of the United States, a guy by the name of Charles Fahey, and Annette says, it occurs to me that if we don't disclose the contents of the Navy report to the court, that we are engaging in the suppression of evidence. Ennis writes to the FBI director, J. Edgar Hoover, and basically says, what about these reports by DeWitt of illicit signaling by Japanese Americans? And J. Edgar Hoover writes back, we've investigated every single claim of shorter ships radio transmissions, and we could find no evidence on which prosecution would lie.
- [20:25]
Judge Edward M. Chen
Ennis got in touch with James Lawrence.
- [20:27]
Don Tamaki
Fly, who was the chairman of the Federal Communications Commission.
- [20:32]
Judge Edward M. Chen
He prepared reports which they sent to.
- [20:35]
Don Tamaki
Ennis, which concluded that there was no.
- [20:38]
Judge Edward M. Chen
Substance to any charge that Japanese Americans had committed accident of espionage or sabotage.
- [20:45]
Dahlia Lithwick
So this is where the story becomes, if possible, yet more shocking, as if rounding up American citizens and depriving them of their freedom based entirely on race is not shocking enough. As if General DeWitt's final report insisting that Japanese Americans pose a national security threat despite having no evidence to support that claim was not shocking enough. The Justice Department, people within the Justice Department working on the Supreme Court cases, they all know this is fake. They know it's wrong. They know the internment has been executed on a completely demonstrably false premise, and they cover it up. Here's another clip from the documentary about that moment when a War Department lawyer, John Burling tries to raise a flag about what he knows is happening.
- [21:40]
Don Tamaki
When the final draft of the government's.
- [21:43]
Judge Edward M. Chen
Brief to the Supreme Court in the.
- [21:45]
Don Tamaki
Korematsu case was being prepared, John Burling decided to insert a footnote. It was a cautionary footnote that said, we are in possession of information that contradicts General DeWitt's final report, particularly as it involves the commission of acts of.
- [22:05]
Judge Edward M. Chen
Espionage and sabotage by Japanese Americans.
- [22:10]
Don Tamaki
The brief actually goes to the printing presses. John J. McCloy found out about the footnote. He contacted Solicitor General Charles Fahey, and Fahey ordered the printing presses stopped. The original footnote that John Burling drafted was deleted.
- [22:31]
Dahlia Lithwick
And I suppose my question for the both of you is just this. Institutionally, how does this happen? How does the Justice Department, the Justice Department lash itself to a pile of lies like these? I know the short answer is going to be because the military wanted them to, but that doesn't strike me as super comforting.
- [22:54]
Don Tamaki
Maybe I could give some framing and then ask Judge Chan to sort of fill in the details. So when Fred Korematsu challenged this, again, the government defended these cases on the grounds that Japanese Americans were engaging in espionage and sabotage. And to his surprise, he lost. His case went all the way up to the U.S. supreme Court, and in 1944, he lost. And the government ruled that this is not a case of prejudice or racial hostility against Japanese Americans. This is a case of military necessity.
- [23:29]
Judge Edward M. Chen
And it should be noted, Don, that Fred Kormantsu was convicted without a trial. He had no chance to present evidence. He had no chance to contest the assertions that the government were making about espionage and spying. He basically, I think, by today's standard, was deprived of a basic due process. Right. So that's the record that went up to the Supreme Court, correct?
- [23:53]
Don Tamaki
Yeah. There was only two things that the government had to prove. One, he was Japanese American, and two, he was defying the incarceration, and therefore he was convicted. So this is a very short trial. And so the cases wind their way up to the US Supreme Court and Edward Ennis, who then is the director of the Enemy Alien Control Division and responsible for supervising the drafting of the government's brief defending the entire program. Calls up the intelligence reports from the FBI, from the Navy, which has primary jurisdiction over national security on the west coast, and from the Federal Communications Commission, which is responsible for radio signaling what goes on in the airwaves and that sort of national security. And he expects to find that each of these intelligence agencies will corroborate the claims of the army and DeWitt that Japanese Americans were somehow engaging in sort of signaling. And what he finds, to his shock and alarm, is that they're direct opposite. Every single intelligence agency responsible for this. Japanese Americans on the west coast says these people have done no wrong. The Navy says they should never have been rounded up in the first place. And the Federal communications commission says General DeWitt's men are picking up radio transmissions emanating from Tokyo and calling them short of ship transmissions. They can barely read 10 words a minute. They know nothing about signal propagation and radio intelligence procedure, and they're picking up signals from foreign countries and calling them shorter ship transmissions. The Department of Justice fellow lawyer with Edward Ennis fellow by the name of John Burling says there's no doubt that the Army's claims that Japanese Americans are engaging in spying are intentional falsehoods. And so we didn't find this evidence until literally 37 years after the cases were decided in 1944.
- [25:58]
Dahlia Lithwick
I guess I'm going to ask the same question a different way, Judge Chan, which is, I know I sound naive. I don't mean to sound naive, but this is such a flagrant and, you know, don't even get me started on a lawyer's responsibility to tell the truth to the courts because that's, that's over. And above all that, this just seems as though the COVID up here is shocking in part because it's contemporaneous with the crime.
- [26:29]
Judge Edward M. Chen
This episode in history illustrates how powerful government is, especially when they bring a criminal prosecution. There's an enormous amount of discretion and power because the government has the information and that information is sort of monopolized. So we have to rely in large part upon the good faith of the government to share information that's relevant. After Korematsu, as cases have developed, courts have held that there is a due process right of a criminal defendant, for instance, to obtain helpful evidence under Brady v. Maryland that has to be disclosed to the other side. But even with that precedent, even in. In today's America, there are a number of episodes and stories about how evidence has not been fully shared in criminal prosecution. So it's still, in large part we depend upon the good faith and the ethics of the prosecutors. And in this case, where there's enormous political pressure and you're under pressure in times of war, those are the forces that acted, as I think Don will explain, and I think as the clips explained, how there was tremendous pressure not to disclose the full record to the court because they wanted to win. And we'll talk about this in a minute. But that fact that the government has enormous amount of leverage, enormous amount of power, has monopoly on the information, if anything, underscores the duty of the court to serve as a check to make sure that the civil liberties, the civil rights, the constitutional rights of the citizenry are protected and that the government is being forthright and that the playing field is level and it didn't do so in this case.
- [28:14]
Dahlia Lithwick
This is the part that I think is so powerful to me, Don, is that again, it's very clear. We hear it in the film, they know they are telling lies to the Supreme Court. But the hope is that if you just get rid of this footnote, if you burn the original DeWitt report, somehow you're going to cover it all up. And I feel like this will be my only meta question to the two of you. But it seems that the COVID up never works right. This stuff always comes out. Thanks in no small part to some of your labors. This has all come out. It suggests to me part of the lesson here has to be not just what Judge Chen says, which is it's the duty of the court to probe the facts and make sure they have the facts, but the deeper question that you can't tell lies on this order of magnitude in turn, this many people predicate it on completely false claims about ship to shore signals and expect the government to not ever be accountable to that.
- [29:19]
Don Tamaki
Well, they did escape scrutiny for 37 years, I gotta say. The whistleblowers who called upon the Attorney General and the Solicitor General to tell the truth and who had plainly said in their memos that we're about to tell lies to the US Supreme Court, this is highly unfair to this racial minority that these lies be put forth before the court and in the final report of John DeWitt. But they were rebuffed and they kept their mouth shut. And when 60 Minutes did its story, Ed Bradley, the famed correspondent, asked Edward Ennis in an interview, why didn't you do something? His response was Watergate hadn't happened yet. And he recalls the Nixon administration firing of the independent prosecutor, calling upon the Attorney General, then Elliot Richardson to do that. And instead of doing that, he resigned. And he said Watergate hadn't happened yet. Didn't occur to me to resign. And we just kind of sucked it up and lived with it. So it did work. But the evidence was quite startling. You mentioned burning of the evidence as Judge Chen said there was no factual record for Fred Korematsu. So in order to prove that this whole program was Justified. And bear in mind, by the time the cases wound their way up to the U.S. supreme Court, this imprisonment was a fait accompli. And so they had two choices. Either fight to uphold it or say, you know, we made a terrible mistake. This should never had happened. And there was a fierce debate in the Justice Department. And ultimately the whistleblowers were literally shouted down and the evidence was suppressed. But during the course of that, you know, DeWitt issued a final report with the justification for the rounding up. And he basically said, you know, these people are so disloyal, they're such an enemy race that you cannot ever trust them. Therefore, it wasn't as if we didn't have enough time to separate the loyal from the disloyal. The fact is, no matter how much time we would have had, theoretically they're inscrutable. You can't separate the sheeps from the goats. And the War Department read that first draft. There were 10 versions of that final report. The War Department read that and said, this is a racist argument. We're arguing that the reason why the roundup had to happen was precisely because there wasn't time to separate the loyal from the disloyal. You got to rewrite this. So DeWitt and historians didn't know this. There were actually two final reports. And he wrote the second report, which was consistent with the government's representations in the courtroom below that the reason why the mass roundup was necessary was because it wasn't time to separate the loyal from the disloyal. And the War Department recalled those original copies of the final report, but only nine were returned. They were burned. The original galley proofs were ordered burned. And we have documentation from a sergeant who wrote a declaration saying, I witnessed the burning of the final report. But they didn't burn every report. There was one missing document that was 37 years later found in the Department of Commerce. And that's just one indication. And there's one part of the suppression and the COVID up.
- [32:41]
Judge Edward M. Chen
And that distinction between being able to separate the lawyer from the disloyal ever, or having to do so under exigent circumstances was pivotal to the Supreme Court's decision upholding the internment. The court said, quote, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of the population whose number and strength could not be precisely and quickly ascertained. So that was pivotal to the Supreme Court's decision. And the historic fact that Don points out shows you how material that cover up was.
- [33:17]
Dahlia Lithwick
So in some sense, now we're talking about the COVID up within the COVID up, right? Which is that the initial cover up was too racist even for now, for this moment, we have to paper over that. And then, as Don has said a couple of times, the ways in which all of the material then is hidden away until it's found. In the 1980s, pursuant to reexamining this.
- [33:45]
Don Tamaki
That story was Peter Irons, a professor, stumbles upon these documents that had been misfiled in the Commerce Department. He was wanted to write a story about Fred Korematsu. And he couldn't find Fred Korematz's Justice Department files in the archives. And he traces them to the Commerce Department. And he opens boxes that had not been opened in 40 years. And he discovers these internal memoranda from Justice Department lawyers really going through an internal dilemma about their duty to be truthful to the U.S. supreme Court. And on the other hand, pressure from this War Department, from the Solicitor General, from the Attorney General, to cover up and suppress and even destroy this information.
- [34:32]
Dahlia Lithwick
Judge Chan, maybe you can reflect for a minute on this question that I think you're poking at it, but maybe we could talk about it very, very explicitly, which is it is really difficult to know how racist, is too racist for the U.S. supreme Court. They back out of what appears to be really, really deep seated racism, still very racist, and the court blesses it. And I little bit wonder about that power wash. And I know partly it's just claims about executive power in wartime, but also, even absent that, if you read the dissenters in Korematsu, it's clear that the court is well aware that this is still maybe not as racist, but very, very, very racially disturbing.
- [35:21]
Judge Edward M. Chen
Thank goodness we have a dissent. Justice Murphy points out how racist and how much of stereotyping and scapegoating is going on here. And yet that was not enough to move the majority. The majority, including Justice William Douglas, one of the great liberals of the court, including Felix Frankfurter, one of the great legal minds who by the way served on board, the board of the national ACLU at one point all went along with this. And if you look at the two decisions, the Hirabayashi decision and the Korematsu decision, the degree of explicit stereotyping that goes on is just phenomenal. I mean, the court, in saying why we can't really trust the Japanese, that there's too much of a risk, talks about they have never really fully integrated into American life. Some of them go to Japanese language schools, they Attend Japanese temples, they isolate themselves, et cetera, et cetera. Of course, all of it untrue, because if you look at the history of, for instance, Japanese Americans in the communities San Francisco and in the valleys and in Los Angeles, they were very much an integral part of the economy and the population. But this was the kind of stereotype that we certainly could look at today and say, this is ridiculous. Talk about profiling. This is sort of the mother of all profiling in some ways, and they had to be conscious of that. We know that because of Justice Murphy's dissent, and that makes it quite disturbing that this is not something in an era where, you know, we didn't know about slavery, you know, being so evil, you sort of excuse the founding fathers for possessing enslaved people. This is right in their face. You have a dissent. And yet that was not enough to overcome their reliance upon these stereotypes.
- [37:05]
Don Tamaki
Murphy's fellow dissenter, Justice Jackson, said the court for all time has validated the principle of racial discrimination and removing American citizens. And he said that the case lies around like a loaded weapon, ready for the hand of any authority who could put forth a plausible claim of an urgent need, meaning the naked assertion of the government alone would be enough to imprison an entire population. And he understood the danger of that. But regrettably, we're kind of seeing a repetition today.
- [37:39]
Dahlia Lithwick
So before we pivot to today, there's one other piece of this that I would like to button down, and that is, can one of you kindly explain what a writ of corum nobis is? It doesn't necessarily feel utterly familiar, maybe to all of our listeners, and why it was important to the two of you and to the other folks involved in this to set the record straight. And I don't mean that in terms of cliches about, you know, we want to have the factual record corrected, but that maybe it is the loaded weapon. Don. But what it means when the court has built an edifice out of racism and lies about racism, why that cannot be allowed to simply persist.
- [38:32]
Don Tamaki
Well, I wonder if Judge Chan has seen a writ of Coromnobus yet before. For him, in all of the years.
- [38:39]
Judge Edward M. Chen
On the bench, it's a very rare writ. The usual writ that we see is a writ of habeas corpus. That's how people try to correct unjust convictions. But habeas corpus is something that you can use if you're in custody or you're under the supervision of the courts. So once you've suffered a conviction and you're beyond probation, habeas Corpus is not going to help you. And that was the case of Fred Korematsu. And so thanks to some great researchers, which did not include me, I will admit, I think it was Don and some others, they found the then little known writ of Coromnobus which does allow for revisiting and reopening of a case if, number one, you have some consequences of the conviction that you live with. And the fact that Fred Korematsu still had a conviction on his record, which actually could impact, you know, certain licenses and things that he could get or could not get. And you find that there was a fundamental injustice, a violation of due process. And so it's a very narrow window. It's a little used tool, but thank goodness that tool was available here and.
- [39:44]
Don Tamaki
It has no statute of limitations. You know, I was probably asleep during criminal procedure when rid of air Korv Novis was discussed. So Professor Peter Irons really fashion that we were looking for a device to reopen an ancient case and that was the only one available. It would allow Fred Korematsu to clear his name. There's no money attached to it, no damages for the imprisonment, but at least he could get the record straight. And for Japanese Americans, he symbolizes the trials that they all never had. And so that's why it was important to them.
- [40:20]
Dahlia Lithwick
We'll be right back. Judge Chen, you started with this and I think we're there now. But for you, I think the big lesson here is the role of the judiciary. And I wonder if you could talk a little bit about the judicial responsibility, as you said, to scrutinize facts, to act as a check when there's such an asymmetry of power between the government and a citizen. And maybe lessons that you take from this, good and bad about what the judiciary gets right and wrong.
- [41:02]
Judge Edward M. Chen
Well, there are two remarkable things that are consequential about the Korematsu and the Hiromiyashi decisions. One is what we just talked about, the need for the court to serve as an active participant, to find the truth, simply put, and to examine the facts. The other is its role as guardian of the constitution and of civil rights, particularly of those groups which are who've been called discreet and insular minorities in a famous Caroline Products case back in the 30s, that there's a special role, I think, of the courts to protect those who are disadvantaged in the normal political democratic process. They're the ones that, that are likely to be subject to scapegoating, to alienation, to being disenfranchised. And the courts have a role to make sure that there's equal justice under law. And both of those basic principles were violated here by these decisions. And as I read earlier, when the court says, in the end, we cannot reject as unfounded the judgment of the government, we cannot say that the war making branches did not have a ground for believing, et cetera, et cetera. That shows that the court basically says, I don't care about the facts. It's what the government says we're not going to second guess. And there are reasons for that. There's things that we call deference. When sometimes the courts have to defer to agencies they don't have the competence or they're. There are various policy reasons to do that. But I think we have to keep in mind that when the court takes that position, when it refuses to scrutinize a record, when it refuses to hold the government to prove its case, it really is abdicating a fundamental role of the courts as we think of them. We go to court to find the truth. We're the one institution where truth is supposed to reign above everything else. We're supposed to find out what the facts are. That's why we have jury trials. That's why we have evidentiary hearings. We're here to determine the truth. And imagine if you are arrested and charged with a crime and you go to court and you want to plead your case and show that you're innocent, but the judge says, well, you know, you belong to a particular demographic group, you're the right age, you're the right race, you're the right gender, and you're in the general area of this high crime neighborhood. That's good enough for me. We would think that the court is not performing its role. And yet, in a way, when the court says we cannot reject as unfounded the judgment of the government without asking for facts, without demanding some kind of proof, that's what happens. And it makes it doubly bad when it does so. When that act that's being challenged is directed against politically unpopular, politically powerless group that cannot go to the press and find support, cannot go to Congress, cannot go to the executive branch or other centers of political power for relief. The only hope for a group like that in that situation are the courts. And that's the backstop to the Constitution. And instead the court says, well, Japanese Americans are inherently likely to be disloyal because of. And they go on to talk about all the stereotypes that the court engaged in. So it's a double wrong. It's a double wrong. And that's what makes these decisions, I think, really such a black mark in judicial history.
- [44:35]
Dahlia Lithwick
And a double wrong. Because as you know, Judge, not only does it put a sum on the scale of that asymmetrical relationship. Right. It throws in with the power side, but also because we live in a country where precedent matters. And Don, I guess this question is for you, but it's not simply a one off, an injustice done to Fred Korematsu or those thousands and thousands and thousands of people who were interned who, as you said, didn't get trials. But it comes to stand for a principle that we are still grappling with today.
- [45:09]
Don Tamaki
We are. And a good illustration of that was a Muslim ban. You know, and after a year of then candidate Trump running for president and saying Islam hates us, Muslims are terrorists and vowing to shut down the borders for Muslims entering the country, the Muslim ban was being challenged. And here was an opportunity for the court to actually correct the record in Korematsa vs. The United States because very similar kind of facts. But in 2018, you know, in a 5 to 4 decision, the the court upheld the ban. And it's very eerily similar to the Korematsu case. You know, both of these cases involve the government invoking national security to shield its decision from judicial scrutiny. Both involve targeted minorities in which officials, high officials, engaged in very explicit rhetoric of racism against those groups. Both involved hidden intelligence reports that the government refused to disclose that they claimed was the basis for rounding up in Japanese Americans or in the case of the muscle ban, shutting down the borders. And both resulted in the court standing down and failing to question whether such deprivation of fundamental freedoms really makes the nation safer or in fact were rather the fulfillment of a bigoted campaign promises and racist political ideas. So Judge Chen is absolutely right. That is the province of the court. And you know, the founders of the country anticipated that in order for democracy to survive, there would be a need for a check and balance system really to thwart the rise of kings and tyrants. But when those branches fail, when none of them serve as a check and balance of the other, it becomes a civil liberties disaster. And I think the example of the Japanese American incarceration illustrates that.
- [47:08]
Dahlia Lithwick
Judge Chen, I'm not sure how much you want to talk about ways in which some of this has carried over into this moment, but to the extent that I think we are in a profound experiment in how alternative facts and fake news and straight up lies and, and mea culpa, but the press sometimes, and Just kind of fever swamp thinking is inflecting into the legal and judicial process. Again, if you don't want to answer any of those nine part questions, that's fine. But is there a way in which we think that Korematsu is in the far, far distant past and yet that we're living in its shadow still?
- [48:04]
Judge Edward M. Chen
Well, Don's reference to the Trump versus Hawaii, which is the Muslim ban case, I think is a really good manifestation of that very point. I would urge, if your listeners haven't already read the decision by Chief Justice Roberts and then read the dissent by Justice Sotomayor, you will see that echo very clearly and quite explicitly. You know, I'll leave it to the scholars and others to debate that. But if you look at it, a couple things stand out. One is that for those of us who served on the Korematsu team, it was a bittersweet sort of victory, or maybe even a Pyrrhic victory in the sense that finally, after all these years, the Supreme Court took on Korematsu after avoiding reference to it in the Guantanamo case and all these other things. When they had an opportunity, they finally addressed it because I think the echo was so strong that they had to deal with it. And Chief Justice Roberts finally, in the last part of his decision, expressly overrules Korematsu. But he does so arguably by sort of narrowing what Korematsu said. He describes Korematsu as the involving the forcible relocation of U.S. citizens to concentration camps solely and explicitly on the basis of race. Well, that was not the reasoning of Korematsu. It wasn't solely because of race. It was because of national security. It was because of the threat of military, you know, the need for military necessity. And that's the point. And the thing that's interesting is I read to you a couple of times now this language from Korematsu. We cannot reject as unfounded the judgment, you know, of the military, etc. We cannot say that the war making branches did not have ground for believing notice sort of a double negative. Anytime a court uses a double negative, you know they're sort of reaching and in trouble. Well, if you look at the majority opinion in the Muslim ban case, Chief Justice Roberts says it cannot be said that it is impossible to discern a relationship to legitimate state interests or that the policy is inexplicable by anything but animus. Again, a double negative. But it's like it sets the bar so low, it's almost no bar at all. It really echoes the we cannot reject as unfounded language in Korematsu. And that's why Justice Somayor really takes the majority to task and explains how, although Korematsu was overruled in name, the court, in her view, did exactly what Korematsu did in the close of her opinion. She analogizes, step by step everything that the court did in Korematsu to what it did in this case. Now, you can agree or disagree with her decision, her dissent, but I would.
- [50:50]
Dahlia Lithwick
Recommend it to your listeners, and worth noting, too, Judge, that she's very, very careful to say that the court has hived off anything in the record, including Trump's tweets, which she. She lists overtly, that the court chooses, in some sense to blinker itself to the evidence of racial animus, because that's how they get to their conclusion. So I think in a weird way, we're back to a perfect circle on Korematsu, where if you distort the record to the place that you don't have to get to those questions, it's very easy to get to the answer. Right, Don, that. That's a valence here.
- [51:37]
Don Tamaki
That's more or less what Hugo Black did in the Korematsu case, basically denying that this has anything to do with racism, but standing down and not asking any questions. And Justice Roberts said Korematsu was, quote, overruled in the court of history, but then basically comes to the same conclusion of the Korematsu case in 1944. That is to say that when the government invokes the magic incantation of national security, the court is not going to ask any questions. Well, when that happened in 1944, the result was a civil liberties disaster. And we think the worst aspects, or I certainly think the worst aspects of the Korematsu case have been imported into a new vessel. And the new vessel is Trump versus Hawaii, the Muslim ban case, where the court given the opportunity to ask questions as to whether separating Muslim American families, and it's still going on right now, actually makes the nation safer. Does it serve any utility, especially when the ban itself did not include any countries in which domestic terrorism happened in the United States? I mean, there was all kinds of issues, and even government's own intelligence reports questioned the value of the ban. So none of these things were asked or discussed by the High Court. They simply ruled in favor of the band.
- [53:02]
Dahlia Lithwick
I want to ask both of you, before I let you go, whether there's a way to think about everything we're talking about today and the closure. Slash, not closure. The resolution. Slash, not resolution. The quorum, nobis Korematsu. All of this, in some sense resolves. It resolves the historic question that we began with. As you've both noted. It resolves nothing in terms of a loaded gun still lying around, stripped of explicit racism, but still lying around for the reasons you've both described. And this larger conversation we're having right now in this country about reconciliation, about the possibility of getting back to truth, about the possibility of. Of making amends and reparations and finding our way back to sort of shared values. And again, I apologize after an hour for the big meta question, but it seems to me that maybe you can talk a little bit about what seems like a lost, you know, into the mists of history story that you've revived here. And this very urgent, I think, question, probably the bulk of all my listener email about truth and reconciliation. In this moment, at this time when we seem to be drowning in both fake news and kind of abuse of the press, the courts and power, what did we learn from what you've learned about Korematsu? Reparations, forgiveness, working our way back.
- [54:50]
Don Tamaki
The lessons of the Japanese American incarceration, of course, focus on people losing their freedom and their property. But ultimately, I think what we're talking about is what is this culture? And, Dalia, you mentioned racism being a part of the founding of American history. And we're really talking about a culture that normalizes behavior. I mean, one of the great contributions of the Black Lives Matter movement is to shine a light on not just police brutality, but systemic racism. And with one police shooting after another of young black men, it would barely evoke a shrug until the George Floyd killing. Why? Because it was normal. And again, the Korematsu case, when that happened and DeWitt's rounding up of these Americans was completely normal, that was so logical and so expected that by the time the case came up to the US Supreme Court, of course you have to uphold it. I mean, that was the pressure of the day. And so Ed talked about how this culture is accomplished. I think there are three parts to this playbook, and it's a playbook that tyrants have used since time immemorial. One, appeals to prejudice, two, fear monger and scapegoat. And three, traffic and conspiracy theories, falsehoods and alternative facts. And when you combine all of those three things where facts don't matter, where the press is the enemy of the people, a culture that says Mexicans are drug dealers and rapists, Muslims are Terrorists, Chinese bring disease, any number of these things, once they become normalized and they grip the culture, then almost anything is possible. And we can look to Germany in the 1930s. We can look to contemporary countries now that are experiencing what's called populism, which is really authoritarianism and the rise of dictatorships. And the dangerous thing is we're seeing these elements of this thing infecting our own democracy. And it's happened in the past before, but never on this scale. You know, Joseph McCarthy in the 50s was an example who understood demagoguery very well, but we've never had it at a presidential level. And what is going on now with not just certain people, but large portions of the population, including our representatives, engaging in challenges to the election process where literally no facts exist. To do that and not understanding the danger in the long run is very frightening. And I think it's on us, really, to raise that issue. So I appreciate sleight in doing this.
- [57:46]
Dahlia Lithwick
Judge Chen, I wonder if you have a final, oh, maybe somewhat more optimistic or sanguine take. Although I'm with Don, I find us in a worrying moment, but just on the possibility of reconciliation, correcting the record.
- [58:06]
Judge Edward M. Chen
Justice thank you, Talia. There are two things that come to mind. First, one of the lessons I think we've learned from Korematsu is that where there's an injustice, we cannot afford to forget it. And the fact that people continue to labor to bring about justice for 40 years after what happened in the 40s to Japanese Americans, really, this is an example where it's made a difference. That consciousness never died. And thanks to the work of Don and others and many others in the movement, there are countless others involved in the reparations movement and everything else that never died. And the fact that the court in Trump versus Hawaii in 2018 had to deal with Korematsu tells you that that tale was not over, that ghost was still there, that injustice still had to be addressed. And I think we've learned this throughout history, both here in this country and elsewhere. The value, for instance, of truth and reconciliation commissions and everything else. We cannot let an injustice just go away and be forgotten. We need to be reminded of it so that we can do better. Second, and maybe this is coming from a partisan as a judge, but I have a deep and abiding faith in the courts. Notwithstanding its imperfections, notwithstanding, you know, the many instances of terrible decisions that we can think about, whether it's Dred, Scott Plessy or Korematsu, it is still the institution where, at least as an ideal, that we are bound by the rule of law, that law matters more than who the people are before it, it's to be applied with equal justice and that we put a premium on truth. And even though the Court failed, I think in. In the Korematsu case, that was not the ideal. The ideal remains that we seek the truth. And I think that's a model for society generally, where we act on accuracy and truth, where we abide by the notion that we're a nation of laws and not people, or that the laws are to be applied with equal application, equal justice. I think they still represent the beacon of hope for our society. And I still have faith. I have to have faith because that's my job. I still have faith in the courts because what I see day in, day out, what I do, what my colleagues do, with an earnest effort to go about, to find the truth and to do justice. Now, it's true there's an ongoing debate that's been going on for hundreds of years and will probably continue about the role of the courts, how much it should play in terms of oversight and checking the other branches, what the scope of review should be. Are there times when the courts should defer in certain situations. And those are fair debates. And again, that debate between Chief Justice Roberts and Justice Sotomayor is a good illustration of that. And I think that discussion needs to go on. We need to be conscious of it and we need to argue about it. And it is so critical, so critical to our society. But I continue to have faith in our courts as an institution that could sort of show us the right path in terms of how we can go about and become a fairer and more just society.
- [61:26]
Dahlia Lithwick
I want to thank both of you for reminding me why I do a podcast about the courts and the law. The Honorable Judge Edward Chen is a district judge on the U.S. district Court for the Northern District of California. He was a staff attorney with the ACLU of Northern California, where he served on the Quorum Nobis team for Fred Korematsu. Don Tamaki is managing partner of Minami Tamaki. He also served on the legal team that reopened that 1944 Korematsu case overturning Fred Korematsu's criminal conviction for defying the removal of almost 120 Japanese Americans after Pearl Harbor. To both of you, I thank you so, so much. Not just for your work, finding this history and making sure it's corrected, but in your work spending time with me today, explaining to people why it's not in fact history at all. Thank you both.
- [62:21]
Judge Edward M. Chen
Thank you for having us.
- [62:22]
Don Tamaki
Thank you, Dalia.
- [62:26]
Dahlia Lithwick
So that is a wrap for another episode of Amicus, the New Year Edition. Thank you so much for listening in. And if you want to hear more about the issues we've discussed in this show today, the documentary Alternative the Lies of Executive Order 9066 has just released a DVD so you can watch at home. And we're going to include a link to the documentary's website in the show notes. I actually watched with my kids. You can keep in touch with us us@amicuslate.com or you can always find us@facebook.com AMICUSpodcast we love your letters. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate Podcasts. And we'll be back with another episode of Amicus in two short weeks. Happy, happy New Year. Keep well.