Resisting arrest

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 camps.

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 danger area."

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 case.

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 short statement.

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.

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