The Passing of a Constitutional Law Legend

press release from Asian American Legal Defense and Education Fund

Press Contacts:

Legal Team Members
Don Tamaki (415) 788-2705
Dale Minami (415) 788-2703
Karen Kai (415) 255-7385
Bob Rusky 415) 255-7385
Lori Bannai (206) 398-4009
Eric Fournier (filmmaker) (415) 971-3305
Peter Irons (530) 284-6138

Fred Korematsu, who President Bill Clinton described as "helping to widen
the circle of democracy by fighting for human rights, by righting social
wrongs, and by empowering others to achieve," passed away on Wednesday
afternoon (March 30th) at his daughter's home. He died of respiratory
failure at the age of 86.

Born in Oakland, California on January 30, 1919 and an American citizen by
birth, Korematsu was among 120,000 Americans of Japanese ancestry living on
the West Coast when Japan attacked Pearl Harbor on December 7, 1941. In the
ensuing months, the Army issued orders rounding up these Americans into 10
Internment camps, each surrounded by barbed wire and machine gun towers and
located in desolate regions from California to Arkansas.

Korematsu defied the military orders, evaded authorities and was ultimately
arrested and jailed in 1942. He appealed his case to the U.S. Supreme
Court, arguing that it was unconstitutional for the government to
incarcerate Americans without charges, evidence or trial. He lost. In its
1944 landmark decision, the high court ruled against him, declaring that the
Internment was not caused by racism, but rather, was justified by the Army=s
claims that Japanese Americans were radio-signaling enemy ships from shore,
and were prone to disloyalty. The court called the Internment, a Amilitary
necessity.@

In a stinging dissent, Justice Jackson complained about the lack of any
evidence to justify the Internment, writing ".the Court for all time has
validated the principle of racial discrimination.and of transplanting
American citizens. The principle then lies about like a loaded weapon ready
for the hand of any authority that bring forward a plausible claim of an
urgent need." Constitutional law scholars have referred to the 1944 case as
a "civil liberties disaster."

Korematsu's case stood for almost 40 years until Professor Peter Irons with
the help of Aiko Herzig Yoshinaga, researching government's archives,
stumbled upon secret Justice Department documents. Among them were memos
written in 1943 and 1944 by Edward Ennis, the Justice Department attorney
responsible for supervising the drafting of the government's brief. As
Ennis began searching for evidence to support the Army's claim that the
Internment was necessary and justified, he found precisely the opposite --
that J. Edgar Hoover of the FBI, the FCC, the Office of Naval Intelligence
and other authoritative intelligence agencies categorically denied that
Japanese Americans had committed any wrong. Other memoranda characterized
the government's claims that Japanese Americans were spying as "intentional
falsehoods." These official reports were never presented to the Supreme
Court, having been intentionally suppressed and, in one case, destroyed by
setting the report afire.

It was on this basis -- governmental misconduct -- that a legal team of pro
bono attorneys successfully reopened Korematsu's case in 1983, resulting in
the erasure of his criminal conviction for defying the Internment.

During the litigation, Justice Department lawyers offered a pardon to
Korematsu if he would agree to drop his lawsuit. In rejecting the offer,
Kathryn Korematsu, his wife of 58 years remarked "Fred was not interested in
a pardon from the government; instead, he always felt that it was the
government who should seek a pardon from him and from Japanese Americans for
the wrong that was committed."

In throwing out Korematsu's 40 year old criminal conviction, Judge Marilyn
Hall Patel of the US District Court of the Northern District of California
wrote:

"Korematsu remains on the pages of our legal and political history. As a
legal precedent it is now recognized as having limited application. As a
historical precedent it stands as a constant caution that in times of war or
declared military necessity our institutions must be vigilant in protecting
our constitutional guarantees. It stands as a caution that in times of
distress the shield of military necessity and national security must not be
used to protect governmental actions from close scrutiny and accountability.
It stands as a caution that in times of international hostility and
antagonisms our institutions, legislative, executive and judicial, must be
prepared to protect all citizens from the petty fears and prejudices that
are so easily aroused."

In 1998, Korematsu received the Presidential Medal of Freedom, the nation's
highest civilian award. President Clinton's introduction of Korematsu
reflects the significance of his achievements: "In the long history of our
country's constant search for justice, some names of ordinary citizens stand
for millions of souls.Plessy, Brown, Parks.To that distinguished list, today
we add the name of Fred Korematsu."

Korematsu has been the subject of numerous documentaries including the Emmy
awarding film "Of Civil Wrongs and Rights" co-produced by filmmaker Eric
Fournier and Korematsu's son, Ken Korematsu. His daughter Karen
Korematsu-Haigh actively supported Korematsu's interest in civil rights,
helping to found the Korematsu Civil Rights Fund sponsored by the Asian Law
Caucus, the oldest Asian American public interest law firm in the nation.
Karen remarked "I know he was the country's hero, but he was my personal
hero."

Other awards include honorary doctorates from the University of San
Francisco, California State University Hayward, McGeorge School of Law, and
the City University of New York Law School, and official recognition from
the California State Senate.

Korematsu's other community activities include serving as past President of
the San Leandro chapter of the Lion's Club, and actively supporting the Boy
Scouts of America. Funeral arrangements are pending.