[TIMELINE] Fred Korematsu Refused to Go to the Internment Camps
- Six decades before Guantanamo, Fred Korematsu refused to go quietly
when the government tried to put him in a prison camp because of his
By Gary Kamiya
June 29, 2004
On Monday, the U.S. Supreme Court ruled that "enemy combatants" --
prisoners seized in the "war on terror" who the Bush administration
argued had no legal recourse -- have the right to challenge their
detention in American courts. Writing for the majority, Justice
Sandra Day O'Connor wrote, "A state of war is not a blank check for
the President when it comes to the rights of the Nation's citizens."
Somewhere in the San Francisco Bay Area, a soft-spoken man named
Fred Korematsu is smiling.
Americans assume that their civil rights are sacrosanct, that civic
tradition and the Constitution are a sure bulwark against the
state's power to treat them without due process. They're wrong.
Civil rights are only as strong as the nation's commitment to
defending them. And the grim truth is that during wartime, that
commitment often fails -- especially when the gasoline of racism is
poured onto the flames of fear.
That is true today, as the dark-skinned prisoners in Guantánamo and
the thousands of harmless Arabs and Muslims deported or harassed
after 9/11 can attest. And it was true in 1942, when Fred Korematsu,
along with 120,000 other law-abiding Americans of Japanese ancestry -
- two-thirds of them American citizens -- were forcibly removed from
their homes, farms, businesses and communities and sent into
imprisonment in desolate camps throughout the West. Their crime?
Being of Japanese descent. It was the greatest mass violation of
civil rights in 20th century American history.
Fred Korematsu resisted the order. He took his case to the Supreme
Court. Of the four Supreme Court cases brought by Japanese-Americans
involving the internment order, his was the only one in which the
court directly ruled on the constitutionality of the relocation
order. In what is now regarded as one of the most disgraceful
rulings in the court's history, he lost -- and to this day, the
right of the government to act as it did in 1942 has never been
overturned. But his defeat carried within it the seeds of a larger
victory. Forty-one years later, a legal team made up of mostly young
Japanese-American lawyers -- many of whose parents had been in the
camps -- brought suit to bring justice not just to Korematsu, but
also to all those who had been wronged by the internment orders. In
a stunned and tearful California courtroom, his conviction for
refusing to report to an "assembly center" was overturned, and the
shame of a dark moment in American history was finally washed away.
Five years later, President Bill Clinton awarded Korematsu the
nation's highest civilian award, the Presidential Medal of Freedom.
That award recognized that the unassuming young welder had stood up
for something larger than himself. Fred Korematsu, who would not go
into the camps, had joined Rosa Parks, who would not give up her
seat, in the most exclusive, yet most universal, American club: the
club of ordinary heroes.
"We should be vigilant to make sure this will never happen again,"
Korematsu said upon receiving the Medal of Freedom. And he has
practiced that vigilance himself. Last October, he joined a friend-
of-the-court brief to the Supreme Court, arguing that the extended
executive detentions of "enemy combatants" are unconstitutional. Few
amicus petitioners have carried more moral authority.
The event that was to change Fred Korematsu's life forever took
place on Feb. 19, 1942, a little more than two months after Pearl
Harbor. That was the day that President Franklin Delano Roosevelt --
acting under pressure from military authorities, the media and West
Coast political leaders -- signed Executive Order 9066, authorizing
the mass evacuation of 120,000 Americans of Japanese ancestry from
the West Coast. The reason given was that the Japanese constituted a
military threat. No evidence was ever presented for this claim.
Roosevelt did not discuss the order with his cabinet, nor did he ask
Among the thousands of those affected was the Korematsu family,
which ran a nursery in Oakland. The elder Korematsus, like almost
all other Americans of Japanese descent, planned to obey without
protest. But their son, 22-year-old Fred Korematsu, took a different
view. He thought it was wrong and unfair that he should be forced to
abandon his home and be sent to a far-off prison camp simply because
of his race. After talking things over with his parents and his
Italian-American girlfriend, he decided not to go. He was one of
only a handful of Japanese-Americans who refused to comply with the
Korematsu, who had been working as a welder in a shipyard, changed
his name and had minor plastic surgery to make himself look less
Japanese. He succeeded in avoiding the authorities for about three
months, but on May 30, 1942, someone recognized him in a San Leandro
store and called police. He was arrested and sent to Tanforan Race
Track, where Japanese-Americans were processed (sleeping in horse
stalls reeking of manure) before being shipped off to various
desolate camps on the wind-swept plateaus of the West. Korematsu was
sent to the internment camp at Topaz, Utah.
Before he departed, however, he was visited in jail by a man named
Ernest Besig, the executive director of the Northern California
chapter of the American Civil Liberties Union. He had read about
Korematsu in the paper. He had been looking for a Japanese-American
who would challenge the legality of the internment order -- a test
case. Besig was acting without institutional sanction: the national
ACLU, intimidated by war fervor, had decided not to challenge the
constitutionality of the internment. He asked the young man if he
would agree to go to court.
Korematsu was utterly alone. His family was already gone. His
girlfriend was, too -- in fact, he never saw her again. His
community was scattered. The conservative Japanese American Citizens
League, the sole group representing both Issei (Japan-born
Americans, forbidden by racist U.S. law from becoming citizens) and
Nisei (their American-born children) had decided for strategic
reasons to go along quietly with whatever the authorities ordered.
By fighting the government, Korematsu risked alienating himself from
his peers, many of whom had decided that the only way to prove their
loyalty was to keep their heads down.
Korematsu agreed to fight the government in court. In October 1944,
with World War II heading into its brutal final winter, Korematsu's
case reached the Supreme Court. The government's lawyers argued that
in wartime, the military was required to take all steps necessary to
protect the national security. It cited a report by General DeWitt,
the officer responsible for the defense of the West Coast (and whose
recommendation was responsible for Executive Order 9066), claiming
that many people of Japanese ancestry were disloyal and that there
was no time to figure out which of them were loyal and which were
Korematsu's lawyers charged that the evacuation orders were
transparently racist and denied an entire class of people due
process and equal protection under the law. They pointed out that
not a single episode of espionage or sabotage had taken place during
the four months between Pearl Harbor and General DeWitt's first
evacuation order. (This fact did not faze DeWitt, who in his "Final
Report: Japanese Evacuation From the West Coast" boldly made the
Orwellian argument that "the very fact that no sabotage or espionage
has taken place to date is disturbing and confirming indication that
such action will take place.") They argued that DeWitt was himself a
racist, citing this statement he made in 1943 before a congressional
"A Jap's a Jap. It makes no difference whether he is an American
citizen or not. I don't want any of them ... They are a dangerous
element, whether loyal or not."
DeWitt's viewpoint was probably shared in some form by most
Americans. At bottom, the fear was of a racially tinged "clash of
civilizations": the Japanese were mysterious and opaque, not "real"
Americans, and when the chips were down they were likely to betray
their new nation in favor of their race. This belief was eloquently
expressed by none other than Earl Warren, the California attorney
general who was later to become the famously liberal chief justice
of the United States. Testifying in 1942 before a House committee,
Warren said, "the consensus of opinion among the law-enforcement
officers of this State is that there is more potential danger among
the group of Japanese who are born in this country than from the
alien Japanese who were born in Japan. We believe that when we are
dealing with the Caucasian race we have methods that will test the
loyalty of them, and we believe that we can, in dealing with the
Germans and Italians, arrive at some fairly sound conclusions
because of our knowledge of the way they live in the community and
have lived for many years. But when we deal with the Japanese we are
in an entirely different field and we can not form any opinion that
we believe to be sound."
This, then, was the intellectual climate in which the Supreme Court
heard the case. On Dec. 18, 1944, the court handed down its
decision. The divided court (6-3) ruled against Korematsu. In his
majority opinion, Justice Hugo Black essentially deferred to the
military authorities and Congress, who had stated that the presence
of an uncertain number of disloyal Japanese made it necessary to
remove all of them from the coast. Quoting the Court's opinion in
Hirabayashi, an earlier case involving a Japanese-American who
knowingly violated a curfew, Black wrote, "We cannot reject as
unfounded the judgment of the military authorities and of Congress
that there were disloyal members of that population, whose number
and strength could not be precisely and quickly ascertained. We
cannot say that the war-making branches of the Government did not
have ground for believing that in a critical hour such persons could
not readily be isolated and separately dealt with, and constituted a
menace to the national defense and safety, which demanded that
prompt and adequate measures be taken to guard against it."
Black denied that racism lay behind the relocation order, only
military necessity. But neither he nor the rest of the majority
seemed interested in trying to find out just what that military
necessity was. Certainly little evidence, and no convincing
evidence, was advanced of Japanese-American disloyalty. (In fact,
not a single case of sabotage or espionage by Japanese-Americans
ever took place during the entire war.) Black cited the fact that
5,000 internees refused to swear unqualified allegiance to the
United States, overlooking the fact that their forcible removal from
their homes and businesses without legal recourse might have had
something to do with their refusal. Nor did he deal with the
uncomfortable fact that neither Italian-Americans nor German-
Americans were evacuated from their homes and forced into prison
It is difficult to escape the conclusion that Black, who was a
former member of the Ku Klux Klan, subscribed at some level to the
same racist beliefs that infected so many other Americans. Why else
would he have so uncritically accepted the feeble national-security
arguments advanced by the government?
Whatever his motivations, it was a decision that was reportedly to
haunt Black for the rest of his life. After all, Black was one of
the court's greatest defenders of civil liberties, author of the now-
classic decision in the landmark Pentagon Papers case. (Ironically,
the most towering civil liberties advocate in court history, Justice
William O. Douglas, concurred with the majority in Korematsu.) But
though troubled by the ruling, Black was never able to bring himself
to admit he was wrong. In a 1967 interview, Black said, "I would do
precisely the same thing today, in any part of the country. I would
probably issue the same order were I President. We had a situation
where we were at war. People were rightly fearful of the Japanese in
Los Angeles, many loyal to the United States, many undoubtedly not,
having dual citizenship -- lots of them. They all look alike to a
person not a Jap. Had they [the Japanese] attacked our shores you'd
have a large number fighting with the Japanese troops. And a lot of
innocent Japanese-Americans would have been shot in the panic. Under
these circumstances I saw nothing wrong in moving them away from the
In a biting dissent, Justice Frank Murphy called the ruling "a
legalization of racism." But Korematsu had lost.
The war ended and Korematsu, along with thousands of other
internees, got out of the camps and on with his life. He did not
like to talk about his Supreme Court case; in fact, his own daughter
only learned about it in class. He wanted to reopen his case but
didn't know how. It was not until 1983 that his now-ancient legal
battle stirred again.
As recounted in Eric Paul Fournier's moving 2000 documentary "Of
Civil Rights and Wrongs," which with Steven Okazaki's "Unfinished
Business" offers a powerful account of Korematsu's fight, a San
Diego historian and law professor named Peter Irons made the kind of
discovery that historians, lawyers and journalists can only dream
about: He came upon documentary evidence proving that the government
had knowingly lied to the Supreme Court in the original Korematsu
In researching a book on the internment cases, Irons made a request
to the National Archives for the actual case files, which had been
misfiled. "It was just by chance that one slip of paper survived
stating where the cases were," Irons says in the film. "In fact,
they were sitting in three cardboard boxes that were covered with
dust, tied up with string. And it was obvious that I was the first
person in more than 40 years who'd looked at these files. I knew
that there would be a lot of case material, the kind of stuff that
lawyers produce -- memos, briefs, things like that. What I did not
expect to find was literally on the top of the first file, a
document from one of the Justice Department lawyers to the Solicitor
General of the United States saying we are telling lies to the
Supreme Court. We have an obligation to tell the truth to the court."
The documents showed that the solicitor-general of the United
States, Charles Fahey, knew that all of the military's arguments
that Japanese-Americans were engaging in subversive behavior were
contradicted by reports from the FBI and military intelligence --
and failed to share that information with the court. Smoking guns
don't get much more billowing.
Irons visited Korematsu at his San Leandro home and showed him the
documents. Korematsu sat in silence for 15 or 20 minutes, puffing on
his pipe, reading the documents. Then he asked Irons, "Are you a
lawyer?" Irons said he was. "Would you be my lawyer?"
And so the battle was joined again. This time, Korematsu would win.
A legal team led by Irons and a young Sansei (third-generation
Japanese-American) lawyer named Dale Minami filed a coram nobis
petition on Korematsu's behalf in a San Francisco district
court. "Coram nobis" is Latin for "before us": Like the related writ
of habeas corpus, which protects against illegal detention, coram
nobis applies to those individuals who have been convicted
wrongfully and have served their sentence. To prove coram nobis, the
petitioner must show that a fundamental error or manifest injustice
has been committed. Only egregious errors of fact or prosecutorial
misconduct, not interpretations of the law, will result in a
successful coram nobis writ.
Fortunately, that is exactly what Korematsu's attorneys had. In
fact, so incendiary were the documents that the lawyers feared they
would "disappear"; they met in secret for many months. The team made
a tactical decision to file in the District Court, rather than to
the high court, because there was a much greater chance they would
lose in the Supreme Court.
The government, clearly aware that it was doomed, stalled, arguing
about procedure. It offered Korematsu a pardon -- which of course
implies guilt. Korematsu refused.
Finally the judge hearing the case, Marilyn Hall Patel, grew
impatient with the government's delaying tactics. She asked the lead
government attorney whether the government was going to oppose the
petition or agree to it. The attorney said he didn't have the
authority to make that decision. She told him to go call
someone "right now" who did have that authority. He came back and
said he still couldn't make that decision. At this point, Patel
decided that the government had in effect confessed error, "even
though they don't say in those magic incantation words 'we confess
error.' They had done substantially the same thing." She prepared a
substantive decision to read in the courtroom the next day, knowing
that it would be packed with people.
The next day, the government made its arguments. It argued that the
case should not be reopened because to do so would be to reopen old
wounds. There was no reason to go back and try to find out what
actually happened back then, the government said -- why not just let
bygones be bygones?
Minami responded by pointing out that the only "old wounds" that
would be reopened would be those of a government that had lied to
the Supreme Court, not those of people who had already lost their
homes and livelihood. Then he asked if Fred Korematsu could make a
Korematsu said that 41 years ago, he entered this courtroom in
handcuffs and was sent to a camp that was not fit for human
habitation. Horse stalls are for horses, not people. He asked the
court to overturn his conviction, saying, in Minami's
recollection, "that what happened to him could happen to any
American citizen who looks different or who comes from a different
country and that it was important for this court to understand that
the relief given to him was not just for him personally, but in a
sense, for the benefit of the whole country."
When Korematsu finished, Patel read her ruling to the courtroom
right from the bench. She said that there was sufficient evidence of
governmental misconduct to overturn the conviction. Evidence had
been suppressed. The policies of the U.S. government were infected
with racism. She said that the Constitution had to be protected at
all times for all people. Then she got up and left the court.
For a moment, after she left, the entire audience was stunned.
History had been made in front of their eyes: a great injustice had
been legally expunged. But it was too big to take in. Korematsu
asked someone, "What happened?" He was told, "You won." Then it sank
in. The crowd, many of them camp survivors, was overcome with
emotion. They swarmed Korematsu, hugged him. Tears flowed -- but
this time they were tears of vindication. The young shipyard
welder's long odyssey had finally ended. He had carried not just
himself, but also his people, into the safe harbor of belated
justice. That justice did not make up for lives shattered, property
lost, hopes blighted. But it helped.
Korematsu's victory was not complete. The Supreme Court ruling in
his case has never been overturned; it remains on the books, like a
malignant virus, waiting to be activated when racist paranoia and
war hysteria sweep aside Americans' commitment to civil rights.
Every generation seems condemned to fight the same battles on
different grounds: Guantánamo is today's Heart Mountain. But the
knowledge that ordinary people like Fred Korematsu are there,
willing to stand quietly up for their rights, makes it possible to
dream that one day the battle will be won.