The text of this introduction is derived from the Amici Curiae’s Statement of Interest and Overview. The text here is not intended to reflect verbatim the content of any section of the brief, which can be downloaded here.
Amici are the children of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui, three American citizens of Japanese ancestry who, as young men during World War II, challenged the constitutionality of the military orders subjecting Japanese Americans to curfew and forced removal from the West Coast.
Deferring to the government’s claim of military necessity, and failing to scrutinize the basis for the government’s actions, the Supreme Court affirmed their criminal convictions for defying the military orders, placing its stamp of approval on one of the most sweeping deprivations of constitutional liberties in recent American history.
Forty years later, Korematsu, Hirabayashi, and Yasui successfully reopened their cases and had their wartime convictions vacated, based on proof that in order to secure favorable decisions from the Supreme Court, the government had suppressed, altered, and destroyed military and civilian intelligence directly refuting its claim that military necessity justified the wartime internment of Japanese Americans. These men showed that the internment was far more than an unfortunate “mistake,” as many had concluded, but was the product of a fundamental and pervasive abuse of power.
The federal courts, especially the Supreme Court, failed to accord the internment of Japanese Americans the exacting scrutiny the government’s wholesale deprivation of constitutional liberties demanded. Had it done so, the lack of bona fide factual justification for the internment–as well as the government’s fraud on the courts, the Japanese American community, and the nation–would likely have been revealed. The NDAA’s indefinite detention scheme echoes the indefinite detention that characterized the internment, and, similarly, it is factually unsubstantiated as well as ill-defined and overbroad in scope, as Judge Forrest found.
The threshold issue here is whether this Court will exactingly review the government’s legal and factual defense of the NDAA’s indefinite detention provision, as Judge Forrest did, or will instead uncritically defer to the government’s position, as the Court did in the internment cases. Given the constitutional liberties at stake here, and in the spirit of their fathers’ defenses of those same freedoms, amici urge this Court to draw upon the revelations of the Japanese American internment and coram nobis cases and affirm Judge Forrest’s application of heightened scrutiny to her review of the NDAA’s indefinite detention provisions.