By Andrew Hamlin
Northwest Asian Weekly
Professor Lorraine Bannai. (Photo provided by University of Washington Press)
Japanese American Fred Korematsu (1919–2005), a Nisei, made American legal history in 1942. With the help of the American Civil Liberties Union, he fought against his government-mandated internment in a camp.
Korematsu lost his case in federal court, and spent most of the war at the Central War Relocation Center in Utah. But decades later, he tried again. His conviction was vacated in 1983. President Clinton presented Korematsu the Presidential Medal of Freedom in 1998. His singular story is recounted in the new book “Enduring Conviction: Fred Korematsu and His Quest for Justice” by Lorraine Bannai.
For Bannai, an attorney and a member of Korematsu’s latterday legal team, now a teacher of legal skills at Seattle University School of Law, her former client’s story carries some echoes of her own. “I am a third generation Japanese American — a Sansei,” she explained. “I was born in Gardena, Calif., a community that had a large population of Japanese Americans — I think the largest concentration of Japanese Americans on the U.S. mainland.”
I was lucky to grow up in a community with many Japanese American role models, one that merged Japanese cultural traditions brought by my grandparents, with the American lifestyle of my parents, into a unique Japanese American upbringing. I was greatly influenced by Nisei civic leaders in my community, including my father, and their commitment to public service. I was also greatly influenced by my grandmothers and mother who were wonderful, strong, smart women.”
Bannai became aware of Korematsu through activist Peter Irons, who contacted her in the early 1980s. Her then-small legal firm in Oakland, Calif. did work advocating redress for Japanese Americans for their wrongful incarceration. Bannai said Irons found evidence that during World War II, the government had suppressed, altered, and destroyed material evidence while it was arguing Fred Korematsu’s, Min Yasui’s, and Gordon Hirabayashi’s cases to the U.S. Supreme Court.
“I first met Fred,” Bannai recalls, “when a number of us crowded into the living room of his home in San Leandro. He struck me as being like one of the many other Nisei dads who were around me when I grew up.
He was a bit quiet and soft-spoken, and I think he was a bit skeptical, seeing how young we all were. But he was also fully behind the idea of moving forward with reopening his case. He had waited for over 40 years to challenge the ruling that he knew was wrong. In many ways, he and his wife, Kathryn, later came to treat us like members of their family, something I’ll always treasure.”
In 1942, when Japanese Americans were ordered to leave the West Coast to be incarcerated, Korematsu refused. He was arrested and convicted, and he appealed his case to the U.S. Supreme Court. In 1944, in Korematsu v. United States, the Supreme Court upheld the forced removal of Japanese Americans. A year and a half earlier, in 1943, in the Hirabayashi and Yasui cases, the Supreme Court upheld the curfew orders issued against Japanese Americans.
The Supreme Court’s decision in Korematsu is one of the most infamous cases in American legal history for several reasons. One, the Court upheld the orders based on racial stereotypes about Japanese Americans.
And two, the Court deferred to military authorities without scrutinizing whether their actions had any factual basis.
Bannai recalled the extensive work undertaken by the legal team Irons helped to assemble. “We worked on legal and factual research for about a year before filing a petition for writ of error coram nobis on Fred’s behalf in January 1983. A petition for writ of error coram nobis seeks vacation of a criminal conviction that was the result of a manifest injustice.
“There were many legal issues we had to work through,” she explained. “What court to file in, how to handle possible procedural roadblocks. We also struggled to ensure we had the money to pursue the effort.
Bannai said they relied on their parents and family friends for money. In addition, at one point, former Supreme Court Justice Arthur Goldberg publicly stated that their effort to challenge the Korematsu case was ill-advised, even before he had seen any evidence. “We were, of course, undeterred. Youthful idealism?”
Bannai said. “We knew the evidence could not be refuted. After all, the evidence was from the government’s own records.”
Bannai went into teaching law, and that eventually took her to Seattle University. “I also have the great privilege of now working with [Seattle University’s] Fred T. Korematsu Center for Law and Equality,” Bannai said. The Center is engaged in advocacy on a wide range of civil rights cases all over the country. For example, Bannai revealed, it is challenging an Arizona statute used to terminate a highly successful Mexican American Studies program in the Tucson Unified School District.”
Asked what the Korematsu case can teach us today, Bannai mustered these sobering thoughts. “In vacating Fred Korematsu’s conviction, Judge Marilyn Hall Patel reflected on the lasting meaning of his case when she said that it ‘stands as a caution that in times of international hostility . . . our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.’
“Although she wrote those words 34 years ago,” Bannai concluded, “her words show how Fred’s case has a disturbing and continued relevance. This country continues to vilify individuals and groups perceived to be the enemy. Now those perceived enemies are Muslims, persons of Middle Eastern descent, and anyone believed to look like them. Our institutions, and each one of us, needs to be vigilant to protect vulnerable populations from prejudice, exclusion, and attack.”
Andrew Hamlin can be reached at info@nwasianweekly.com.