Japanese internment trial rerun

Japanese internment trial rerun for newer generation
Thursday, August 13, 2009
By DAVID OLSON The Press-Enteprise

Two leading constitutional scholars Thursday traveled back 65 years in a Riverside courtroom to a landmark World War II-era case that upheld the expulsion of Japanese-Americans from their homes -- but they reminded onlookers that the same tension between national security & civil liberties remains alive today.

Erwin Chemerinsky, dean of the UC Irvine School of Law, & John C. Eastman, dean of the Chapman University School of Law in Orange, re-enacted 1944 U.S. Supreme Court oral arguments from Korematsu v. United States, with judges of the Riverside-based division of the California Court of Appeal peppering them with questions.
Just as the deans disagreed over key elements of the Korematsu decision, they sparred over the constitutionality of Bush administration detention of terror suspects after Sept. 11, 2001.

U.S.-born Fred Korematsu was arrested in 1942 after refusing to obey a government order to leave his home near Oakland, which like the rest of the West Coast was deemed a "military area" for fear of a Japanese invasion.

The American Civil Liberties Union took Korematsu's case in an attempt to invalidate the order to remove 112,000 Japanese-Americans from the West Coast. In 1944, the U.S. Supreme Court agreed with the government & upheld the order. Some people spent more than 3 years in internment camps, losing their jobs & businesses.

Korematsu's daughter, Karen Korematsu-Haigh, sat in the audience Thursday, rising after oral arguments to recount through tears how her father was stunned by the court's decision. Korematsu, who died in 2005, had faith in the U.S. legal system & was sure the court would strike down an order that he knew was discriminatory, she said. "We can't forget," Korematsu-Haigh said. "People have short memories. If we don't learn from history, we're doomed to repeat it."

The event, presented by the court & several bar associations, was the first of what will be a series of historical case re-enactments to be held by the 2nd Division of the 4th Appellate District, which includes Riverside & San Bernardino Co. The next is scheduled for 2011.

Babe Karasawa, 81, traveled from Whittier to witness the re-enactment. He was interned for 2 ½ years, first at a temporary "assembly center" at Santa Anita Race Track in Arcadia & then at the Poston internment (camp 3) in the Arizona desert. He recalled having to use a broom & buckets of water to clear horse manure out of the stable he shared with his 2 brothers at Santa Anita for nearly 5 months, & the scorching heat in barracks at Poston. Karasawa said it was vital that discussion of the Korematsu case continue, so people understand what he believes is the racist reasoning that led the court to justify the expulsion. "I don't want this sort of thing to happen to anyone again," he said.

The re-enactment wasn't exact. The deans & justices sometimes fast-forwarded past 1944 for references to cases that had not yet been decided. But it captured the flavor of the debate over the expulsion issue at the time.

Chemerinsky & other legal scholars view the Korematsu decision as a racist stain on the country's history. Eastman said it had to be viewed in the context of a country at war. "This is not about race ...," Eastman said as he put himself in the place of a 1944 government lawyer defending the expulsion order. "It's rather about people who are currently citizens of an enemy nation or just one generation from that."

Nearly 1 in 10 Japanese-Americans covered by the order had petitioned to be repatriated to Japan, indicating an allegiance to an enemy government, Eastman said.
"There's a reasonable fear of invasion & espionage & sabotage activity," Eastman said.

Chemerinsky insisted the case was about race, citing comments by military officials deeming the Japanese an "enemy race". Race can never be the basis for taking away someone's liberties," he said.

If there had been a credible fear of Japanese-Americans collaborating with Japan, the U.S. government should have individually assessed each suspected spy, rather than issuing a sweeping order against everyone of Japanese ancestry, Chemerinsky said. About 70,000 of the 112,000 people expelled from their homes were U.S. citizens. Chemerinsky said the futility of the Japanese internment camps was illustrated by the lack of any espionage accusation against a Japanese-American during World War II.

Yet, Eastman said in an interview after the re-enactment, the detention of Japanese-Americans may have prevented a Japanese attack, just as the Bush administration's detention of terrorism suspects without trial may have headed off another terrorist attack. Eastman said he was repelled by the racially charged language of some World War II military officials. He also said that while it was appropriate to temporarily remove Japanese-Americans from the West Coast, they should not have been placed in internment camps. Instead, they should have been briefly moved further inland, to live freely, & then investigated one-by-one for possible sympathy with Japan. Eastman said the Bush administration used much narrower grounds for detaining people than the Franklin D. Roosevelt administration did.

Yet, Chemerinsky said, Bush used similar national security rationale for curtailing civil liberties. Like Bush after Sept. 11, Roosevelt believed his actions were protecting the homeland, but the result was to undermine constitutional rights, he said. "It is so tempting to believe that the ends justify the means," Chemerinsky said. "But there are some means that are abhorrent. In Korematsu, the means were abhorrent."


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