Fred Korematsu v. George W. Bush ('No Law Protects Them, No Court May Hear Their Pleas’)

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Fred Korematsu, an American Citizen imprisoned in a Utah internment camp during the Second World War, received the presidential medal of freedom in 1998 from President Clinton for eventually and successfully resisting the flagrantly unconstitutional imprisonment.

By order of President Franklin Delano Roosevelt, affirmed by the Supreme Court in Korematsu v. United States (1944), Fred Korematsu had been deprived in 1942 of all his due process rights solely because he was a Japanese American. So were 120,000 other individuals of Japanese ancestry living on the West Coast. It was one of the most shameful travesties of justice in Supreme Court history.

It wasn't until 1988 that Congress passed a law apologizing for this wholly unlawful mass imprisonment. Each surviving victim of the presidential order and of the Supreme Court's turning the rule of law upside down was awarded the meager sum of $20,000 by way of redress.

In 1942, when he was 22 years old, Fred Korematsu—working as a welder in a California shipyard—had refused to be put into an internment camp. He was arrested and locked up. It was that conviction that the Supreme Court upheld in the 1944 Korematsu v. United States case, deciding that in wartime, the government could indeed put him away without a hearing and without any judicial determination that he had done anything wrong. It is this king-like authority that George W. Bush now claims over those he designates as "enemy combatants."

It wasn't until 1983 that San Francisco Federal District Judge Marilyn Patel overturned that 1944 Korematsu conviction. Among the lawyers filing that successful 1983 appeal were some whose parents had also been imprisoned in those internment camps.

Now, at the age of 84, Fred Korematsu continues to protest against a president, George W. Bush, who also holds both American citizens and noncitizens in legal black holes without the most basic civil liberties guaranteed by the Constitution.

Korematsu has authorized an amicus brief to the Supreme Court of the United States, in his name, on behalf of American citizen Yaser Hamdi, designated an "enemy combatant" by President Bush and held for two years in an American navy brig without guaranteed Sixth Amendment access to a lawyer, and without any prospect of a trial at which he can defend himself. Secretary of Defense Donald Rumsfeld maintains that Hamdi can be held in this legal black hole for "the duration of hostilities," and that could take generations.

Fred Korematsu's message to the Supreme Court is also on behalf of non-American citizens imprisoned at Guantánamo Bay—Khaled A.F. Al Odah et al. and Shafiq Rasul et al.

In a companion brief by a coalition of national and international human rights organizations, attorney Jonathan Freiman describes the abandoned status of these prisoners of George W. Bush, many of them held in six-by-eight-foot cells for more than 23 hours a day:

"According to the [District of Columbia] Court of Appeals, no court has jurisdiction to hear their claims. . . . The Executive can do what it wishes to aliens abroad—even innocent aliens—because no law protects them and no court may hear their pleas."

The Bush administration agrees with that holding, saying that our prison camp at Guantánamo is on Cuban soil, beyond the reach of U.S. courts. But our permanent lease of that territory from the Cuban government grants the United States exclusive jurisdiction over the Guantánamo Bay Naval Base.

What the Supreme Court is going to decide about these prisoners is whether they have the right to challenge their imprisonment under the Constitution as well as under laws and treaties of the United States. For example, the 1948 American Declaration of the Rights and Duties of Man, part of the Inter-American System of human rights, declares:

"Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights." The U.S. government ratified that declaration.

As for the Hamdi case, the Supreme Court will decide whether George W. Bush can—as commander in chief—strip a citizen of all his rights indefinitely and without charges. If the high court decides that Bush has no such imperial power, the high court will decide what due process rights Yaser Hamdi is entitled to in our court system.

Fred Korematsu has involved himself in this confrontation with George W. Bush because of what happened to him and all the other Japanese Americans treated as nonpersons during the Second World War. His brief to the Supreme Court was filed by Geoffrey Stone, a truly distinguished law professor at the University of Chicago, whose casebook on constitutional law I'm often indebted to.

Speaking for Fred Korematsu, Stone tells the Supreme Court that, "in order to avoid repeating the mistakes of the past," it "should make clear in these cases that the United States respects fundamental constitutional and human rights—even in times of war."

"These cases," the Korematsu brief warned the president, the justices, and this nation, "present the Supreme Court with a direct test of whether it will meet its deepest constitutional responsibilities to uphold the law in a clear-eyed and courageous manner."

George W. Bush has failed that test. Will the Supreme Court give him and future presidents this loaded weapon against the Constitution?

Nat Hentoff is way off base in this article. One of my books, Manzanar, is on the imprisonment of the Japanese-Americans west of the Mississippi (but not including those in Hawaii) during WW II. In the course of that book I covered the case of Fred Korematsu. Korematsu was convicted of the "ctime" of violating the Executive Order of President Roosevelt that he, and 110,000 others, would be rounded up and imprisoned because they had "at least one Japanese grandparent." To its shame, the US Supreme Court approved that arrest, in 1942. Forty years later, Korematsu returned to federal court and got a District Court order striking his conviction.

When that case reached the Supreme Court, it turned cowardly. Rather than take the case and admit its error, the Court left standing without review the District Court determination that it had acted unconstitutionally. This is the only instance I'm aware of, where a District Court successfully ruled that the Supreme Court had acted unconstitutionally.

But there is a critical difference between Fred Korematsu and Jose Padilla. Padilla is a suspect, with significant evidence to support that, of a violation of the law of war. Korematsu was not suspected of any crime of any type. There is a separate, unanimous Supreme Court case, Quirin in 1942, that someone like Padilla (also an American citizen) CAN be held. charged, and punished for a violation of the law of war.

Do not be decieved by what Hentoff has written. He is DEAD WRONG on the constitutional law and factual aspects of the comparison he offers in this article.

Congressman Billybob

Click here, then click the blue CFR button, to join the anti-CFR effort (or visit the "Hugh & Series, Critical & Pulled by JimRob" thread). Don't delay. Do it now.

Thanks for the additional information. I agree with you that the comparison between Fred Korematsu and Jose Padilla is greatly flawed because Korematsu was accused of nothing more than not wanting to be locked up as an innocent citizen.

But your comment:

Padilla is a suspect, with significant evidence to support that, of a violation of the law of war.

Is not entirely accurate. Nobody has vetted the “significant evidence” of Padilla’s crimes. Not his lawyer (he doesn’t have one), not independent lawyers, not the press, not the people. Only the government has checked out this information and after a review, the government concluded that the government was correct.

I have a problem with that, just as I would if a Clinton was president and Janet Reno was Attorney General.

It sets an awful precedent to keep him locked up without charges. If Padilla has committed crimes serious enough to rescind his citizenship, the government should have no trouble getting a grand jury to charge him with a crime.

The Law of War is clear. Trials do not have to be in public -- as do all other US trials, per the Constitution. And, no one is "revoking" Padilla's citizenship.

Bruno Haupt, born in Chicago, was still an American citizen when he was convicted of sabotage after training in Germany and reentering the US from a submarine, with supplies and maps to blow up US facilities. Padilla will still be an American citizen, if an when he is convicted in a secret miliitary tribunal of similar acts.

Military secrecy is a necessary part of conducting warfare, and the Supreme Court has approved that, in this kind of case. I agree with you that the dangers of having powers like that in the hands of a "President Hillary!" are enormous. We just have to be on guard as long as she is alive and breathing, to prevent that from happening.

John / Billybob

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