Federal law on indefinite detention risks repeating Japanese American incarceration injustice

On Dec. 17, 2012, the families of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi filed an amicus brief in Hedges v. Obama, a lawsuit that challenges the constitutionality of a provision of the National Defense Authorization Act For Fiscal Year 2012 (NDAA). The brief was filed in the U.S. Court of Appeals for the Second Circuit.

The 2012 NDAA authorizes the U.S. military to arrest and indefinitely detain anyone, including American citizens on U.S. soil, without a warrant or due process if the military simply suspects them of supporting terrorism. This is exactly what the U.S government did in 1942 to 120,000 Japanese Americans, two-thirds of whom were American citizens, and who spent years in prisons without notice of charges, the right to an attorney, or the right to a trial.

Korematsu, Yasui, and Hirabayashi each refused to obey the military orders leading to the internment, and challenged their resulting criminal convictions, and the internment as a whole, as violations of their fundamental constitutional freedoms. In decisions condemned as civil liberties disasters, the Supreme Court affirmed, deferring without question to the government’s claim that the internment was a military necessity.

More than 40 years later, evidence was discovered proving that the government had committed a fraud on the Supreme Court by suppressing, altering, and destroying critical evidence that Japanese Americans were not a danger to national security.

This newly discovered evidence undermined the government’s justification for the incarceration and contradicted the government’s arguments made before the Supreme Court in the original cases. All three men were vindicated in the 1980s when courts overturned their tainted convictions. The Korematsu, Yasui, and Hirabayashi families and lawyers who helped overturn the convictions have returned to fight the attacks on civil rights by filing an amicus brief in support of the legal challenge against NDAA.

The amicus brief (download) describes a terrifying parallel to the incarceration of Americans of Japanese ancestry during World War II. Under the pretense of national security, the NDAA essentially repeats the decisions in the discredited World War II cases of Korematsu, Hirabayashi, and Yasui, allowing the government to imprison people without any due process rights for an indefinite time.

These potential infringements on the constitutional rights of citizens and residents doom us to repeat history and subverts what should have been lessons learned from the wartime imprisonment.

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