NYT: ‘A Discredited Supreme Court Ruling That Still, Technically, Stands’

By Adam Liptak, The New York Times, Jan. 27, 2014 — The Supreme Court’s 1944 decision in Korematsu v. United States was a disaster. In endorsing an executive order that required 110,000 Americans of Japanese ancestry to be removed from their homes and confined in detention camps, the court relied on wartime hysteria streaked with racism, sullying its reputation and damaging the constitutional principles it was meant to uphold.

Justice Antonin Scalia has ranked Korematsu alongside Dred Scott, the 1857 decision that black slaves were property and not citizens, as among the court’s most shameful blunders.

Justice Stephen G. Breyer has written that Korematsu has lost all potency as precedent. “The decision has been so thoroughly discredited,” he wrote in a recent book, “that it is hard to conceive of any future court referring to it favorably or relying on it.”

But Korematsu has never been overruled.

Read the full article:

SCOTUSblog: ‘A plea to cast aside Korematsu’

This post was written by Lyle Denniston of SCOTUSblog and originally published on January 16, 2014. It is reposted here in accordance with that publication’s Creative Commons license.

Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions.  The most famous of those rulings – often reviled – was the 1944 decision in Korematsu v. United States.

The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision.  They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.

The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists.

The Hedges case was turned aside by the U.S. Court of Appeals for the Second Circuit last July, but only on the basis that the challengers to the detention policy — journalists, authors, and political activists –  were found to have no right to sue because they could not show that they were actually at risk of being targeted by the policy.  The Circuit Court did not rule on the constitutionality of the 2011 law spelling out anew the power of the president to order the capture and possibly long-term confinement of potential terrorists.

There is a lively debate in legal circles whether that provision added to presidential power to detain, or simply reaffirmed the power given to the president after the terrorist attacks of September 11, 2001.  Unless the federal courts agree to resolve the meaning of the 2011 provision, the actual extent of that authority will remain unclear, but to be decided by the White House and Congress..

While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S.  In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended.   In the Hedges case, the claim is that the statement can be read to rely upon the Korematsu decision as support for such detentions — something that those challengers want to have clearly refuted.

Here is the language of the compromise provision: “Authorities. — Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

What concerns the challengers in the Hedges case, and the lawyers who wrote to the Solicitor General, is the phrase “existing law or authorities.”  In the petition in the Supreme Court seeking review of the Second Circuit’s decision, this was included as one of the questions at issue: “To the extent that the Second Circuit opinion holds that Koremasu is among the ‘existing law and authorities’…that relate to military detention of citizens and legal residents, should Korematsu be overruled?”

That question is the focus of the letter, dated last Friday, to Solicitor General Verrilli by eleven attorneys who note that they had represented Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui in successful efforts in lower federal courts to nullify their convictions for violating military curfew and exclusion orders “that led to the incarceration and indefinite detention of more than 110,000 Americans of Japanese ancestry.”

The letter said that, in the Hedges case, “the Supreme Court now has the opportunity to correct and formally overrule its decisions in the internment cases.”  The decisions in those cases, the attorneys wrote, “could be read as among the ‘authorities’” referred to in the new 2011 detention law.

Noting that Verrilli’s office was now preparing a response to the Hedges petition, the letter asked him to take one of two steps: ask the Court formally to overrule the internment decisions, or, as an alternative, to “make clear” that the federal government “does not consider the internment decisions as valid precedent for governmental or military detention of individuals or groups without due process of law, and as not among any ‘authorities’ to which [the new law] refers.”

Under the current schedule for the Hedges case, the government’s response is due by February 2 4. (The government this week received an extension of time to file that document.)  In the Second Circuit, the government relied heavily upon an argument that the challengers did not have “standing” to sue because they were not threatened by the new law, and that, in any event, the law did not add any new detention authority.

Those are likely to be the main arguments that Verrilli will make when the response is filed.  He presumably has the option, in discussing what the new provision means, to discuss what the disputed phrase conveys about prior detention precedents.

Citation: Lyle Denniston, A plea to cast aside Korematsu, SCOTUSblog (Jan. 16, 2014, 11:13 PM), http://www.scotusblog.com/2014/01/a-plea-to-cast-aside-korematsu/

California Gov. Signs Anti-NDAA Bill


Art Persyko of the SF 99% Coalition Civil Liberties Committee let us know that California Governor Jerry Brown has signed AB351, a law banning all cooperation with the 2012 National Defense Authorization Act (NDAA) or any other federal attempts to indefinitely detain people.

“California’s move against indefinite detention powers … marks a continuing trend among individual states,” reported RT.com. “Last year, Virginia signed a bill into law prohibiting state cooperation with federal government attempts at indefinite detention. The state of Alaska then passed a similar bill.”

Amicus Brief Co-Author Lori Bannai on HuffPost Live

Bannai_HuffPost_LiveLorraine Bannai, Director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, appeared on a Feb. 19, 2013, segment of HuffPost Live focusing on the Japanese American incarceration and how the NDAA risks repeating history by allowing the government to indefinitely detain American citizens and residents without due process.

Lori was one of the principal authors in the amicus brief filed by the children of families of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi in Hedges v. Obama, which challenges the constitutionality of the indefinite detention provisions of NDAA.

She was joined by Hiroshi Kashiwagi of San Francisco, who was incarcerated in the Tule Lake Camp; Prof. Bill Ong Hing, a University of San Francisco School of Law Professor; and Carl Mayer of Princeton, N.J., attorney for the plaintiffs in Hedges v. Obama.

Watch the video here.

Video: The Stream TV Show with Karen Korematsu

Karen Korematsu appeared on the Feb. 18, 2013, broadcast of The Stream television show on Al Jazeera English. Karen talked about the Japanese American incarceration, Fred Korematsu’s legacy, and how the NDAA risks repeating our country’s past wrong of incarcerating Japanese Americans during World War II without due process. She was joined on the show by Carl Mayer, the attorney for the plaintiffs in Hedges v. Obama, and Mary Murakami, who as a child was incarcerated in the Topaz Camp.

SF Supervisor David Chiu Introduces Resolution Opposing Federal Law on Indefinite Detention

supervisor david chiu san franciscoDavid Chiu, President of the San Francisco Board of Supervisors, today introduced a resolution at the Board of Supervisors opposing provisions of a federal law that allows the military to arrest and detain American citizens on U.S. soil without a warrant or due process.

Read coverage on the San Francisco Chronicle websiteRead Karen Korematsu’s remarks as prepared for delivery at today’s press conference.

Supervisor Chiu introduces the measure one week before Feb. 19th, the 71st anniversary of President Franklin Roosevelt’s signing of an executive order allowing the government to incarcerate Americans of Japanese descent during World War II.

“By standing by and allowing the NDAA’s indefinite detention provisions to remain law of the land, we risk repeating our history of incarcerating without due process Japanese Americans during World War II,” said Chiu. “I suspect Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi would be livid about this.”

Supervisors John Avalos, London Breed, David Campos, Jane Kim and Eric Mar are co-sponsoring the resolution, which is endorsed by the Coalition for Safe San Francisco and the Bill of Rights Defense Committee.

Provisions of the 2013 National Defense Authorization Act, or NDAA, authorizes the federal government to repeat the forced incarceration in the early 1940s of 120,000 Japanese Americans and Japanese immigrants who spent years in prisons without notice of charges, the right to an attorney, or the right to a trial.

A group of journalists and activists – including Chris Hedges, Daniel Ellsberg, Noam Chomsky, and Jennifer “Tangerine” Bolen – last year filed a lawsuit, Hedges v. Obama, challenging the indefinite detention provisions of the NDAA as unconstitutional.

On Dec. 17th, 2012, the families of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi filed an amicus brief in the Hedges case with in the U.S. Court of Appeals for the Second Circuit. The brief 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.

San Francisco Chronicle editorial ‘Indefinite detention: Echoes of World War II internment’

app-screenshot_0802The following editorial appears in the Dec. 21, 2012, edition of the San Francisco Chronicle and also online here. Special thanks to John Diaz at the Chronicle for writing this and to Dale Minami for connecting us with John on this issue.

In awarding a posthumous Presidential Medal of Freedom to Gordon Hirabayashi in May, President Obama spoke of the courage of the University of Washington student who refused an executive order to be among the 120,000 Japanese Americans sent to internment camps during World War II. Obama expressed his admiration for Hirabayashi as a champion of civil rights.

“In Gordon’s words, ‘It takes a crisis to tell us that unless citizens are willing to stand up for the (Constitution), it’s not worth the paper it’s written on,’ ” Obama said at a White House ceremony. “And this country is better off because of citizens like him who are willing to stand up.”

The president’s words were poignant, appropriate – and in direct contradiction with his own administration’s insistence on a provision in the National Defense Authorization Act that authorizes the U.S. military to indefinitely detain anyone, including American citizens, without due process if the government suspects them of supporting terrorism.

Neither Obama, his predecessor George W. Bush nor the U.S. Congress has shown a willingness to stand up for due process and civil liberties on this issue. Just this week, a House-Senate conference committee preserved the government’s ability to detain people indefinitely without trial in the latest version of the bill.

So who will stand up for the Constitution in this challenge to its cherished principles?

Count the children of Hirabayashi, Fred Korematsu and Minoru Yasui among those who see the dangers of giving government an unchecked ability to deprive Americans of their freedom in the name of national security.

Read the full editorial here.