This is History for the Reckoning, a podcast that dives deep into the history that's hard to hear but critical to understand. Season 1: American Concentration Camps, the story of World War II Japanese Incarceration. Welcome to another episode of the podcast. I'm your host, Spencer Ford. Last episode, we learned about the legal mechanisms the U.S. government employed to create and carry out the incarceration, and mentioned that they knew there would be legal challenges. Today, we're going to discuss some of those legal challenges, namely the four cases related to Japanese incarceration that ended up before the United States Supreme Court. Talking us through this history is our incredible guest, Lorraine Banai. Lori is Professor Emerita at Seattle University School of Law and Director Emerita of the Fred T. Koramatsu Center for Law and Equality. She's an author and presenter, speaking and writing regularly about the incarceration and its significance, and her work in the legal profession will become directly relevant to us in a couple episodes' time. So stay tuned for that. Lori, thank you so much for joining me today. Talking about the Supreme Court cases, you suggested we start with Yasui and Hirabayashi. So tell us first about uh Gordon Hirabayashi, who he was, how this case came about. So actually, I wonder if it would be good to talk about the orders. Also, please do. Because so I'm going to start out before I talk about the Supreme Court cases. I want to talk about the orders. Because they were convicted of violating these orders, and the cases were about whether these orders were constitutional. And so I'll talk out, I'll start out with the discussion about the orders that were used to justify the mass incarceration. So you already know from this podcast that President Roosevelt, on February 19, 1942, President Roosevelt signed Executive Order 9066, which provided sweeping powers to the Secretary of War and any military or military officials he designated. After that, Congress passed Public Law 503 that made violation of any of these yet-to-be-issued military orders a criminal offense, which is actually really very bizarre because it was incredibly vague, right? It's like orders hadn't been issued yet, but then Congress passes a law saying if you violate any of these orders, you'll be convicted of a crime. And actually, someone, uh Congressperson actually said on the floor, um, this is the vaguest law I've ever seen. And it would never hold up during peacetime, but everybody knows what it means, so I'll vote for it. Um pursuant to Executive Order 9066, Lieutenant General John L. DeWitt, who was a commanding officer responsible for the West Coast, um, started issuing a series of orders pursuant to EO 9066. First, he imposed a curfew on all persons of Japanese ancestry, um, including citizens and immigrants. The curfew applied only to Italian immigrants and German immigrants, but to all persons of Japanese ancestry, prohibiting them from leaving the West, from going out during the evening hours or traveling certain distances. Then he imposed a freeze order, prohibiting persons of Japanese ancestry from leaving the area they lived until further order, unless there was another order. And then that was followed by a series of 108 civilian exclusion orders posted on telephone polls up and down the West Coast in neighborhood after neighborhood, requiring them to report for removal. They were called exclusion orders, um, but I call them removal orders because they were much more than excluding Japanese Americans from the West Coast. They were basically ordering Japanese Americans to report for removal. And as a result, as you know from this podcast, over 120,000 persons of Japanese ancestry were taken from their West Coast homes. So those are the orders that are involved. Three men challenged DeWitt's orders up to the U.S. Supreme Court. Minoto Yasui was a 26-year-old attorney in Portland, Oregon, who walked the streets of Portland with a copy of the curfew order in his hand seeking to be arrested. He saw a police officer, and the police officer said, run along home, you don't want to get into trouble. So Min ultimately turned himself in to a police station and he was arrested. Gordon Hirobayashi was a 24-year-old college student at the University of Washington who defied the military orders as an act of civil disobedience. He was convicted of violating both the curfew and the exclusion orders. Fred Kormatsu was a 22-year-old welder living in Oakland, California, when he chose to violate the removal orders. He chose instead to remain in Oakland with his Italian-American fiance, to remain in with the women he loved in the place that had always been his home, a right that he felt he had like any other American citizen. So all three of these men were American citizens, and each was convicted at trial and appealed their convictions to the U.S. Supreme Court. Shall I go ahead and talk about Gordon and Mint's case? Let's circle back and talk about, I mean, amazing stories that these were all choices that people made. I love that, first off, that these were all they knew they were violating what was then the law of the land, and they knew that there would be consequences. So yeah, let's circle back to Gordon Hirabayashi. So the first case that went up to the US Supreme Court was Gordon Hirabayashi's case. It was decided first in June of 1943. And men's case was decided as a companion case. Um I'll mention a few significant things about the case, the opinions. Yeah, can you tell me what a companion case means to the Supreme Court? Is this a usual thing? Is this common? So sometimes cases go up to the Supreme Court. They're different cases, but they involve the same issues. So these were two different cases, two different individuals who violated the same law, the curfew um ordinance, although Gordon also violated the exclusion or exclusion order. So these two cases made it up to the Supreme Court at the same time, and the court decided to decide them at the same time. So they issued a longer ruling in Gordon's case and then a shorter ruling in Min's case, which I can talk about. But they basically said for all the reasons you know we discussed in Hirabayashi, we affirmed the curfew order in Yasui. So companion cases when the cases go up at the same time. Awesome and are decided together. All right, sorry, back to Gordon. Okay, so in Hirabayashi, the court addressed, so remember Gordon Hirabayashi was convicted of violating both the curfew order and the removal order, the exclusion order. But when the case went up to the US Supreme Court, the court decided only to address the validity of the curfew conviction, only the con the validity of the curfew um uh order. Um and uh Which is to say that they upheld the ruling about the exclusion order from They ignored it. They basically chose not to address the exclusion order, and I'll I'll tell you why. But I will say the consequence of addressing only the curfew order is that Japanese Americans by this time had been incarcerated most for over a year and a half. And so here the courts just saying, well, we're gonna decide the curfew order, we're not going to decide whether it was okay to put Japan to remove Japanese Americans from their home, which is like really crazy, right? It's like we've got these people wallowing in camps, and we're not going to address whether they were validly taken from their homes. Um and the and then so Japanese Americans wouldn't hear about whether that was valid until another year and a half when the court addressed koromatsu. So if you like the thing about getting into weeds, the weeds here are pretty egregious because it's like on a technicality, hear the court saying we're not going to address um the exclusion or we're going to address curfew. And I'll tell you why. This is really so when the court chooses to only address a certain thing, how common is that? Is this totally common? It happens just about every day. Okay. Um, that the court says, here are the issues that are presented for us, and we're going to only decide this because we only have to decide this, and we're going to ignore everything else because we don't have to deal with it. And so you see these things coming up every day where it's like, we're only going to decide this procedural issue, right? Like, was it timely? Or is a class action proper? We're not going to get to quote the merits, like whether this order is constitutional or not. We're going to just slice and dice. And that's kind of very common of what the Supreme Court, or what any court does, is the slice and dice. Now, there's a legal reasons for it. I'm not saying there aren't legal reasons for it, but can be infuriating for a public that wants to know the is this legal or not, right? And so I would say it happens all the time. It's happening today, where it's like, we're just going to decide this, but we're not going to decide that. So I'll tell you why this happened is that Gordon, when he was being sentenced, made a fateful decision. So what happened is that he was convicted of violating both the curfew and the exclusion order. And so the court, the judge, sentenced him to 30 days for each conviction, right? So, okay, that's fine. 30 days for each, 60 days total. Gordon asked if he could serve a longer sentence because he had heard that if his sentence was longer, he'd be able to serve it outdoors in a work camp. People didn't want to go through the paperwork for a work camp for a short sentence, only for longer ones. And so the judge, Judge Fee, accepted Gordon's request and sentenced him to 90 days for each count to be served concurrently at the same time. This result allowed the Supreme Court to address only the curfew conviction, reasoning that it upheld one conviction. It didn't have to uphold address the other one because it's the same 90 days, right? So we can uphold the 90-day curfew conviction. So, because of that, Japanese Americans, so the court found a way out and found a way to dodge deciding the exclusion order and just decide the curfew order, and Japanese Americans would need to wait another year and a half. Okay, but you were telling us how the court does this all the time. They choose what they're going to rule on. So why did they give a reasoning in this case? They felt like it was expedient to the public or well, they give a reason when they when they decide. I mean, they may not give a reason, but but usually it's pretty clear where it's kind of like a case goes up and it's like they just have to decide whether the court has jurisdiction. So they decide where the court has jurisdiction and then they send it back down again. And so this is this is a similar thing where it just, you know, they explain, you know, this is why we're only doing this. And and so you can figure out why courts are slicing and dicing, you know, in other cases as well. Like I said, it's really just more infuriating to the rest of us who are kind of like, wait a minute, in the meantime, this horrible thing is going on while you're deciding it on a procedural um basis. So I'm not saying it's legally wrong. I'm just saying that courts, courts will say they have to slice and dice. Um but I will I would say that in this particular case, they could have decided the removal order, but but they didn't. So maybe this is something that you don't know, but what was the attitude of the courts, and particularly the highest court, in relation to the entire incarceration and all wartime powers? So this is a really significant thing that's going to come out of the discussion today is that um the government did all this to Japanese Americans out of their war power. And the question is, what's the limits of the war power? And during World War II, it was pretty extensive that they allowed the incarceration of all of these people, including American citizens. Um, and the court actually um fairly specifically discussed the extent of the war power. Of course, today it's the same issue. What's the extent of the president's war power? And the president today is saying the war power is really quite broad and allows the president to do lots of things. And so you see the discussion in the in the Koramatsu and Hirabayashi case that the power to wage wars is in is entrusted to our president and Congress, and the power to wage wars is um you you need to be able to win it, right? The whole idea behind the war power is to be able to win a war. And so courts really don't have a role when it comes to second-guessing the executive in Congress on their war power. This goes back probably to generals being actually on the field of war, that courts can't come in and say, well, no, don't send the left flank out there, or you know, send the right one. You know, you don't want courts doing that, and they can't. This has been extended to the president and Congress being able to wage war successfully. The power to wage war is the power to wage war successfully, is the quote. And so courts are loathe to get involved, and that that principle is very much firmly embedded in these World War II cases, which I can get into here. Please do. And a huge issue today, right? Yeah. Um, because the government's saying that the power to wage war includes the power to stop drug smugglers coming into our country because they're killing people, that that's the war power, which some people would say is totally not what the war power was designed to do. The war power was designed to protect us from invading nations, you know, like Pearl Harbor being bombed. That's what the war power is for. It's not about other things. But we see um over history, executives and Congress, mainly executives, pushing the war powers, seeing we can do more. So at the time of World War II, were the courts fairly liberal with their definition of war powers? Were they generally siding with the government? Uh, well, and and Kormasu and Hira Boyashi and Yasui are examples of of the court siding with the government on the war power, saying it even included incarcerating American citizens. Right. Right? And so this is, I mean, probably people, you know, I mean, uh it's it is pushing the war power. When you think about the war power normally being thought of as protecting the country against invading um nations, here it gave me chills when I was reading the government's briefs in these cases because it said, here we're fighting a war on our own soil, right? Basically a war against these Japanese Americans who are on our own soil. So it was kind of an interesting casting of we're fighting the war here now, um, in Los Angeles, in Seattle, right? And the way they were casting it was that, that basically, yeah, you know, we think about war as being one thing, but actually the war today is something else, which is that we have um potential uh saboteurs in our midst, living in our cities. And we the government needs to protect us against that, which is why these orders are constitutional. Does that make sense? Yeah. Let's circle back to the actual stories at issue. Yeah, the Gordon case, sorry. Okay, so so a couple of really important points out of Gordon's case. And the first important point is the one we were just talking about, which is that the court said it had to defer to the government when it claims its actions are based on national security. So in Hirobayashi, the court said, and I quote, whereas they did here, the conditions call for the exercise of judgment and discretion by the war-making branches of government, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs. So basically, when the government, when Congress and the executive are acting in the name of national security, it's not for the court to sit in judgment of whether what they did was right or not. Given that we've all learned about the importance of the system of checks and balances, like in elementary school or middle school and stuff, that we've got three branches of government that act on checks on each other to prevent overreaching by any one of them. It's very frightening that there's some areas where the court says it really doesn't have much power, right? The court should always act as a check on its coordinate branches of government. And this is especially true in light of what we'll talk about in the quorum novus cases. Um it's really important that there be a check on the actions of government, even if it's operating in the name of national security. Despite its statement that it could not second-guess the um actions of government, the court actually did say, well, let's look at whether there's a reasonable basis for the government's orders, and it's and it decided to look at some of the government's arguments about why its actions were justified. Specifically why it put a curfew down? Yes. Okay. So even though the court was only talking about the curfew orders, it later on went on and said all the reasons we discussed in Hirabayashi justify the removal orders. So this is getting into what are the what are the government's arguments as to why there was military necessity for this. The government could not point to any evidence that Japanese Americans had committed or threatened to commit any acts of espionage or sabotage. Not even threatened to commit. Not even. There wasn't any evidence that Japanese Americans were disloyal, and so that's why we can do it. Number one. Number two, even if there was evidence that one Japanese American or two Japanese Americans had done or threatened something, you don't put in 120,000 people into camps because one or two people did something. I mean, we've got guilt is individualized, right? So those two people would get charged with a crime and incarcerated, but you don't do anything to everybody else. So I think a lot is made about how there wasn't one episode of espionage or sabotage, but I also think that misses the point, right? It doesn't matter if there was one or two or 10 or 20 or 50. You still don't incarcerate a whole people. Um so the court went on and said the government argued, and the court ultimately agreed with the government's argument, that military necessity existed for two reasons. Number one, the court accepted the government's argument that Japanese Americans had certain racial characteristics that made them prone to be loyal to Japan. For example, the court said that there was support for the view that Japanese American the Japanese American community was unassimilated, paying no mind to the entire history that I think you've already talked about, of exclusion, all these discriminatory laws and practices that excluded Japanese Americans from participating in mainstream society, anti-miscegenation statutes, you can't intermarry, you can't vote, you can't do all of these things. And here the court is saying that Japanese Americans are unassimilated, which is one reason why they're so suspicious. In another example, the court explained that large numbers of Japanese children, Japanese American children, um go to Japanese language schools, which are known to be sources of ready mean sources of Japanese nationalistic propaganda cultivating allegiance to Japan. Again, no evidence submitted that Japanese language schools are sources of Japanese nationalistic propaganda. So there's this list of examples that the government argued and the court accepted as to why Japanese Americans have these racial characteristics that make them prone to perhaps be mobilized into siding with Japan and helping them, helping Japan. Those examples, like others cited by the government and the court, drew inferences of disloyalty from stereotypes, innuendo, and unsubstantiated allegations. The court said in light of this data, and I use quotes because the court used the word data, the president and Congress could have reasonably concluded that the conditions encourage the continued attachment of Japanese to the country of Japan. Wow. And that's in the that's in the legal record, the highest court of the land. That's in the opinion, the Hirabayashi opinion. Another reason the court argued that its actions were proper and the court accepted was that the orders were necessary because there was insufficient time to separate the loyal from the disloyal. This, even though Pearl Harbor was bombed on December 7th, and the first Japanese Americans were removed in March, the end of March, right? Or middle to end of March. So the curfew, you know, was imposed. I forget the date of it, but basically there was a period of time, in other words, where you might have been able to screen 120,000 Japanese Americans. Number one. Number two, this point about insufficient time becomes very important when we get to the discussion of the Quorum Nobis cases, because in those cases it was established that the government had evidence that contradicted its claim that there was insufficient time to separate the loyal from the disloyal. Are you suggesting then that the government made a false, knowingly made a false argument? Absolutely. Okay. And that's what the Koram Nobis case has proved. Wow. So that's that's what I have to say about the Hirobayashi case. Yeah, can you tell me, yeah, in the cases of Hirabayashi and Yasui, what was it that their attorneys argued? What were they trying to make as their primary points? Well, basically, the lawyers for Min and Gordon and Fred Koromatsu argued that these orders were unconstitutional, right? That they they were unconstitutional because they discriminated on the basis of race. They were issued against Japanese Americans and not issued against other people. I mean, the curfew was issued against German and Italian immigrants, but it was issued against all persons of Japanese ancestry, including citizens. Um the removal orders were only, the freeze orders and the and the removal orders were issued only against persons of Japanese ancestry. And so the arguments that the lawyers made in these cases was that this was discriminatory. Um they also made in in Koromatsu, they also made the argument that this was an unlawful delegation of power, that the president had unlawfully delegated presidential power to military authorities. I mean, I talked about how it was a blank check. And so the unlawful delegation is basically saying you basically said you can do anything a president does, right? As far as militarily, you can choose anyone in these military zones, you can establish military zones, and with regard to anyone in those zones, you can decide where people move, you know, who has to leave and and what they have to do. So those were the the main arguments that the attorneys made. Tell me if the the justices, in their opinions, responded to those arguments or if they just gave their opinion. They did respond to the argument that it was um racial. I can't remember if they how they responded to the unlawful delegation of authority. I know that they did. I can't remember how right now. So this is bizarre. The 14th Amendment applied to the states. There was no specific um equal protection clause um in uh against the federal government. So there was some case law, I believe, that said that if if the states are prohibited from discriminating on the basis of race by the 14th Amendment, of course, the Fifth Amendment has the same rule with regard to the federal government. But I believe at the time of Koramatsu, there wasn't like a very clear thing that said the federal government can't discriminate on the basis of race. So it was kind of like, yeah, it's kind of in the Fifth Amendment. Even though the Fifth Amendment doesn't have specific language saying the federal government can't discriminate on the basis of race, what it says is you can't deprive someone of due process. You can't deprive someone of life, liberty, and the pursuit of happiness without due process. So the courts had to read equal protection into the due process clause. You want to get nerdy? This is nerdy. So, but I I believe that there was um some footnote or someplace along the line that said the 14th Amendment um prohibits prohibit prohibition against discrimination applies to the federal government as well. Okay. So when we get to the 40s, there is precedence. They are not arguing a brand new argument before the Supreme Court. Not brand new. I think it was it, no, I don't think it's brand new. And they were arguing that you can't discriminate on the basis of race. Okay, awesome. So this first uh opinion comes down, they strike down this joint case, uh, but Koromatsu comes up later. How did it yeah? Let me talk about Min's case, and you can decide whether you want to um what you want to do with it. So the Supreme Court decided Min's case the same day as it decided Yasui. And of course, based on Hirobayashi, it upheld the curfew order in Min's case. Um, however, Min's case had a really interesting bit of a twist. The trial judge in Min's case had decided that Min had relinquished his citizenship when he took a job with the Japanese consulate in Chicago. He couldn't find a job as a lawyer, so his father got him a job with the Japanese consulate in Chicago. Um, when this case went up to the Supreme Court, the Supreme Court said that's just ridiculous. He didn't relinquish his citizenship. Um, and the whole reason about his citizenship is because people who are citizens have more rights than people who are immigrants, or at least in general, that was the thinking of the trial judge. And so the Supreme Court said, Yasui didn't denounce his citizenship. So we're going to send it back down to the trial court, to the trial judge for resentencing. So they upheld the curfew um orders for the reasons it did in Hirabayashi, but men's case had um this bizarre other twist to it. There's a lot of bizarre stuff in these cases. Wow. So Koromatsu. Please so it took the Supreme Court another year and a half to decide Fred Koromatsu's case, in which it addressed, of course, the much more egregious order ordering Japanese Americans to leave the West Coast. And although the removal order was much more egregious than the curfew order in Hirabayashi, the court said for all the reasons that we upheld the curfew order in Hirabayashi, we uphold the removal order in Koramatsu. Which is to say they didn't have enough time and the racial characteristics. Okay. And further, the court found confirmation that there were disloyal Japanese Americans in the fact that after they were incarcerated, 5,000 American citizens of Japanese ancestry refused to swear unqualified loyalty to the United States. And of course, they got this from the information in the other podcast episodes from the loyalty oaths, these really controversial, horrible um uh loyalty oaths. And then so people didn't know how to answer them, right? And and they didn't know what the answers meant. Um and in addition, it defies logic, of course, to use the answers to an oath made after you're incarcerated to justify being sent to incarceration. Significantly, also, the court said that it would not address the lawfulness of any detention. So in Koromatsu, the court upheld the orders excluding Japanese Americans from the West Coast. It did not address whether it was lawful to then incarcerate them. And the court said we are purposely not addressing the lawfulness of any incarceration. Mr. Koromatsu argued that the court needed to rule on the unlawfulness of the incarceration because removal and detention were inseparable parts of a whole thing. People were removed into detention, right? Oh, so they're saying we're going to rule on whether we can tell you to leave a place, but we're not going to rule on whether we can lock you up. Absolutely. Okay. And the court said that removal and detention were two different things. While some measure of detention is inherent in the removal process, right, in order to remove you, we need to put you someplace. So a certain level of detention is inherent into removal. Entry into the temporary, so-called temporary assembly centers did not guarantee, necessarily guarantee that you would be sent to the more permanent camps later on. They involved, the court said, separate orders. And Fred had been convicted only of defying the removal, not for failing to report for incarceration, but the court's opinion fails to recognize there was never a separate order of incarceration. There was never an order telling Japanese they had to go to camp. What happened is that they were ordered to leave the West Coast in order to report to the government, which put them into these so-called temporary assembly centers and then sent them to the more permanent camps in the interior. So the Supreme Court saying there will be time enough to decide the lawfulness of the incarceration or detention when that order comes before us. And there was no such order. So you asked me about how the court and government deal with the issue of race, right? Their attorneys were saying this was racial discrimination. Despite the fact that the orders were issued only against Japanese Americans, the court, Koramatsu court, went on to say that Fred's case was not about racial hostility against him or his race. Instead, his removal was necessary to protect the country. Here I quote again: Koramatsu was not excluded from the military area because of hostility to him or his race. He was excluded because the properly constituted military authorities decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily. And of course, the removal was not at all temporary. By this time, Japanese Americans had been in camp for over two and a half years. So again, this whole disconnect between the court sitting in Washington, D.C. and the reality of what's happening on the ground. Right? So the court's saying, well, we'll look at the imprisonment order when it comes to us. And the court's saying, well, all we're saying is that it was okay to remove these people temporarily. The court said in Koromatsu that the uh the orders removing Japanese Americans or excluding Japanese Americans from the West Coast were constitutional because of military necessity. But they had not decided if you could lock people up based upon race, based upon okay. No. Three justices wrote vigorous dissents. Justice Owens Roberts said this is not a case of temporary exclusion. On the contrary, it's a case of convicting a citizen as punishment for not submitting to imprisonment in a concentration camp based on his ancestry, without evidence or injury or inquiry concerning his loyalty and good disposition to the United States. Justice Frank Murphy said such exclusion goes over, quote, the very brink of constitutional power, end quote, and falls into the ugly abyss of racism. Justice Robert Jackson, in what seems like a premonition of the Quorum Nobis cases to be filed 40 years later, criticized the court for blindly accepting the government's arguments that its actions were correct. The government had based its arguments on the final report of General DeWitt, which was offered to explain his justification for the removal, including the unsubstantiated allegations that Japanese Americans had engaged in illegal shortage ship signaling and radio transmissions and posed a threat to the West Coast. Justice Jackson complained that there was no evidence taken on the factual basis for the removal orders. They just had this report that made these assertions. So he says, in quotes, the court having no real evidence before it has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. In addition, he warned about the lasting impact of the court's decision. He said, a judicial validation of this order, quote, lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of urgent need. That last quote is the one that's really people pull all the time from the Koromatsu case because it uh it is eerie. Yeah. I wonder if we can circle back to more nerdy procedural stuff. Who was it that were pushing through these three cases we've already talked about? Because it takes a lot of time, money, and particular expertise to get all the way to the Supreme Court. How did these cases get there? So um Gordon Hirobayashi had this a friend, Arthur Barnett, um, who was a friend of his who was a lawyer who um was a Quaker, a fellow Quaker. And he went with Gordon to turn when he turned himself in with Gordon's statement that he wrote. He Arthur was able to put together a group of local people, uh, state senator Mary Farquarson and some other people who put together a Gordon Hirabayashi defense team and the local chapter of the ACLU, I think, was involved. Um Fred Koromatsu uh was approached by uh Ernest Besick, who was the president of the local Northern California chapter of the ACLU, who asked if Fred wanted a lawyer and because he was looking for a test case, and Fred said yes. Um and the Northern California ACLU supported, um barely supported the case. Um but I will say one thing is that the Northern the National ACLU refused to support the cases. Um that basically they were um supportive of Roosevelt and didn't want to attack Roosevelt's um authority to issue these orders. The national ACLU did say that these um these men could challenge the uh the orders on the grounds of DeWitt's racism, but they couldn't challenge the president's authority to issue orders like this. Um and so actually there was a total rift between the national ACLU and the local chapters um uh overhandling these cases, and actually um the national didn't want the ACLU to be able to make these arguments about how the orders were racist and challenge um Roosevelt's authority. And there's some really great stuff online that people have investigated national ACLU's um role in this. Can you remind us now? We've been through three of the cases. What's the timeline up till now? When was the first two decided? When was Koramatsu decided? The first one was decided, I think, in June 1943, the middle of 1943, Fred Koromatsu's case was decided in December 1944. Okay. And the same day Fred's case was decided, um, the court decided in Ray Endo. Oh, I didn't know. Would you like me to talk about Endo? Please. So this is the this is people reference this one all the time as talking about the big case, I guess. Yes. The day the decision in Koramatsu was announced wasn't all bad news for the Japanese American community. In the case of Ex parte Endo, the Supreme Court held that the government could not continue to incarcerate Japanese Americans whose loyalty it conceded. In 1942, Mitsuo Endo was a 22-year-old clerical worker in California's Department of Motor Vehicles in Sacramento when she and other state employees of Japanese ancestry were dismissed from their jobs. Attorney James Purcell agreed to represent the fired employees, but the employees had to report for removal before Purcell could file a lawsuit. So Purcell decided to file a petition for written for a writ of habeas corpus, and Mitsue Endo became the named petitioner. Do you want me to explain habeas corpus? Okay. Through a habeas corpus petition, a court requires the government to produce the incarcer an incarcerated person. Habeas corpus meaning you should have the body, um, so that the court can then determine whether they can be freed. So it's basically a proceeding where an incarcerated person goes to court and says, I'm being wrongly held. Oh, that's interesting because when I've heard it described before, it's more about uh they have to produce the precedent under which the incarceration occurred. But you're saying it's it's more about they have to produce the person who is has been who says they're being wrongly held, and the argument is she's being wrongly held because this is wrong, right? So the government has to prove that she's being held properly. So it's right, what's being said is right, but if you want to know the technical definition of habeas corpus, it's basically you have to produce the incarcerated person, but you have to produce them to show cause, show reason why this is lawful. The government had been allowing Japanese Americans to leave camp for the interior if they could pass essentially a two-part test. First, the person seeking to leave was screened for loyalty, you know, the loyalty oaths and all of that stuff. But second, the person had to show that they had an adequate means of support at the place that they were going to. They had a job, they had someone, they had a place to live, and that the community where they were heading would accept them, that there wasn't hostility against them. And they would also remain obligated to report to the war relocation authority if they changed an address or changed their job or something like that. So there was this two-part um process for leaving. Mitsua Endo had been determined to be loyal. So the government conceded that she was loyal, but challenged the need to prove more in order to leave. If you're loyal, you should be able to leave. The government argued that both steps had to be complied with in order to have an orderly release from camp. They couldn't just open the doors and let all these Japanese Americans wander around. Inland states objected to the unsupervised release of incarcerees that would allow them to go whenever they wanted. And so the WRA said we really need this procedure so that it's orderly. So they looked at the language and said, nothing here says that you can actually hold somebody. The laws, as I said to you before, are very vague and very, very broad. There's nothing that said you have to go to be detained. And importantly, the court did not base its decision on constitutional grounds. They didn't say that holding someone who's conceded loyal is unconstitutional. They said it's a war measure, you can't keep keep holding them if they're loyal. And in addition, looking at the statute and the executive order, there was not any language that says you can continue to hold them. So it wasn't a constitutional ruling. Um, and soon thereafter, the camps began to close. I'm sorry. So you said it is not a constitutional ruling, which is to say the court has not, at least in this case, has not said it is not allowed on a constitutional basis to lock people up on the basis of race. Yes, true. So the Supreme Court never addressed the lawfulness of the incarceration itself. Hirobayashi upheld the curfew order. Koromatsu upheld the exclusion removal order. Endo said the government could not continue to incarcerate citizens who were concededly loyal. None of the cases addressed the original incarceration. Wow. Now that's the thing that I don't, yeah, most people aren't going to think about is they think the case was settled, therefore everything at issue was endo was completely justified. She won. None of the cases addressed the lawfulness of the original incarceration. All right. So the endo case then comes down on this very specific ruling. They say they cannot continue to hold on to people. Maybe I missed the jump between so uh Mitzia Endel, among other employees, was fired from her job on the basis of race. What was their original lawsuit? What were they challenging in court? So what happened is that James Purcell was going to represent them on their firing, but they were ordered to leave the state. They were ordered removed before he could bring the lawsuit. And so it morphed. Purcell decided to bring the hate rid of habeas corpus to gain their freedom, to gain her freedom. Okay. So then the entire case, even though it started in one place, it becomes the Supreme Court data hinges on the habeas corpus. There never was a lawsuit about the termination, the employment termination. So thank you so much for sharing your expertise, Lori. So based on the history of these cases that you've so exhaustively given us, what do you want people to learn from these very important cases? So the Koromatsu and Hirabayashi, and of course, by invocation, Yasui cases had been condemned, had been condemned by legal scholars. Actually, one legal scholar condemned it right after Koromatsu came out, basically saying they're based on racist assumptions turned into public policy, uh, in an atmosphere in which stereotype and fear took over. Sadly, um, of course, koromatsu, these cases have continuing relevance, so much so that we hear on the news sometimes the word koromatsu used like a noun. Oh, are we having another koromatsu? We have to make sure we don't have koromatsu again. For example, in 1988, during the AIDS epidemic, there was talk of quarantining people living with AIDS, many of whom were members of the gay community. And an article, AIDS and Mr. Koromatsu, came out saying that the wartime incarceration demonstrated that we have to be really careful when government is exercising its power over disadvantaged and heavily stigmatized communities. During the Gulf War, the Japanese American incarceration was again raised in an essay that's entitled Remembering Koromatsu, which said the Arabs are the Japanese of 1991. Never mind that Arab Americans are American citizens and that they're more likely to be the victim of per victim than the perpetrators of racial violence. And then Koromatsu was again in the news when President Trump issued a travel ban, banning travel from several Muslim-majority countries after making anti-Muslim statements while he was candidate and then President Trump. At oral argument in the Hawaii case, lawsuits were filed all over the country. At oral argument in the Hawaii case in 2017, Ninth Circuit Judge Richard Paez raised Koramatsu in questioning acting solicitor Jeffrey Wall. The government had argued to the court that it had to defer to the government on issues of national security. The same argument that it had made and won in Koromatsu during World War II. Judge Paez asked the government, wouldn't the leeway the Justice Department is seeking from the court also have justified the incarceration during World War II? He said internment during World War II. Wall said, this case is not Koramatsu, and I wouldn't be standing here, and the United States wouldn't be defending it if it was. You're nowhere near Koramatsu. On June 12, 2018, in Trump versus Hawaii, Justice Roberts, on behalf of a majority of the Supreme Court, upheld the travel ban. Roberts, writing for the majority, after quoting a list of anti-Muslim statements that were made, upheld the travel ban. He did so by deferring to the government's claim that the actions were required by national security, saying, quote, we cannot substitute our own assessment for the executive's predictive judgments on national security matters, all of which are delicate, complex, and involve large elements of prophecy. Justice Sotomayor in dissent said the numerous ways in which the travel ban was similar to Koromatsu. Again, she said the court was upholding a group-based suspicion of espionage and sabotage. And like the court did in Koromatsu, the court here deferred to the government where the government claimed that it was acting in the name of national security. In response to Justice Sotomayor, Justice Roberts said, quote, Koramatsu has nothing to do with this case. The forcible relocation of U.S. citizens in concentration camps solely and explicitly on the basis of race is objectively unlawful and outside of presidential authority. While explaining how the travel ban was different from the wartime incarceration, he still took the opportunity to purportedly repudiate Koromatsu. He said, quote, Koromatsu was gravely wrong. The data was decided and has been overruled in the court of history. And to be clear, has no place under the constitution. So then it begs the question: what does it mean that Koromatsu has been overruled in the court of history? I would say, I don't know anyone who knows what the court of history is, and I don't know what that means. But it's important that at least in words, the Supreme Court has said that Koromatsu was wrong, but that that those words are hollow. You would think all of us would be jumping up and down, right, when we heard the Supreme Court say koromatsu was wrong, but we didn't, because those words were hollow when at the same time it upheld a travel ban based on characterizations of Muslims, based on statements that were made that Muslims hate us, um, and and singling out, not singling out, but basically most of the country, most of the countries singled out were Muslim majority. Um so it's it was hard to be excited about this when the court basically upheld a Muslim ban that had its roots in branding a whole people as potential terrorists based on religious stereotypes. Second, it's clear the court did not overrule one of the most dangerous aspects of koromatsu, which is basically that courts should step aside when the government actions, the government says that it's acting on national security grounds. So instead of burying Koramatsu, actually what the court did was basically give this dangerous precedent new life. Um so these horrible cases that upheld the Japanese-American incarceration aren't dead. I mean, they live on in basically the idea that the government can do what it wants in the name of national security. If it says we need to do this in order to protect the country, then courts are stepping aside. The government's arguing, and in fact, it's arguing today. The court has to has to exercise deference when we're acting on national security, and so we can do these different things. Well, it's incredibly relevant today. Thank you for your expertise on the individual level. So I am not a lawyer, I will never be a lawyer. What do you want students of the law and then just American citizens? Uh, what can they take away from this? What should they pay attention to or do? I would say be watchful, be vigilant for situations in which vulnerable communities are targeted in the name of national security. And what I mean is not just in times of active war, but I mean whenever the country says that a group of people are threatening our welfare. Um, so national security can mean protecting us from war, but national security can also mean much more, keeping us safe, keeping us healthy, keeping us whatever. And we see this actually recently when it's kind of like this argument that, well, these people are bringing drugs into the country. And so what we're doing is we're acting in national security to prevent these people from bringing drugs and killing people. And the government's arguing that that's in the name of national security, when again, national security should be something more like an attack on our country. Um, so we've seen this in the past. During World War II, um, the government said that in the name of national security, it was okay to round up 120,000 Japanese Americans without any trials, without any charges, and including American citizens. We saw this, as I said, during the AIDS crisis, where people are talking about quarantining people with AIDS, again, to protect us, to protect our public health. We saw this with the discussion about the China virus. You know, we, I mean, the the government saying we need these Chinese people. Um, we see this today with regard to immigrants saying that we have to do about immigrants who are causing crime in this country and who are taking away American jobs. And so we need to do something about them to protect our country. We see it with new alien land laws that basically there were alien land laws against Japanese Americans to prevent them from owning the land that they farm. Now we're seeing alien land laws that prevent Chinese who are not citizens of this country, um, foreign-born Chinese from owning property because of concern that the government, that the Chinese are going to start um infiltrating our infrastructure. And so I think the thing, the takeaway is basically whenever the government is targeting a community of color or a vulnerable community is to, or a racial group, is to just ask yourself what are the reasons that the government's putting this forward? And if they're saying it's to protect our country, ask yourself for the evidence. Ask yourself for is this really true, what's being said about this group of people and how they're causing this, causing these problems that are claimed. And in addition, ask whether a group-based response is appropriate, that basically you should treat the whole group the same because you think that some people are doing this illegal conduct. So be sure you know the facts, beware of casting doubt on entire groups, and then speak up for communities less able to speak up for themselves. Well, Lori, thank you so much for sharing that is a message I hope that we all take to heart. And we're so excited to talk to you in a couple episodes' time. So thank you again, Lorraine Banai, for coming on. Thank you. Season one of History for the Reckoning is made possible by support from the JACL Mount Olympus chapter, as well as generous financial support from the Takahashi Family Foundation and the JA Community Foundation. The music was produced by Patrick Coffin. If you want to support the show, follow us on Instagram at History for the Reckoning. 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