FRED KOREMATSU AND JAPANESE INTERNMENT DURING WWII

Of the 120,000 Japanese Americans subject to relocation, exclusion and internment during World War II only 12 resisted. Fred Korematsu was one of them.

Those who willingly complied with the military order to leave their homes, businesses, and way of life complied not because of “patriotism” but fear. Anti-Japanese sentiment in the aftermath of the bombing of Pearl Harbor was high and Japanese Americans were subject to frequent abuses, discrimination, and hatred. On December 7, 1941, the United States entered World War II and at that time nearly 113,000 people of Japanese ancestry were located in California, Washington and Oregon. Fearing an imminent attack on the west coast of the United States, President Franklin D. Roosevelt signed Executive Order No. 9066 which permitted the United States Army to create military exclusion zones. Here is the story of how mass hysteria lead to the warrantless and baseless arrests of an entire population and was challenged by one man Fred Korematsu.

American Propaganda Poster Aimed at Stopping Fifth Column Activities

“The Japanese race is an enemy race. The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken”

— Lieutenant General John L. DeWitt

ANTI-JAPANESE HYSTERIA AND THE FIFTH COLUMN

Anti-Japanese hysteria in the United States was rampant even before the attack on Pearl Harbor. But after the attack, the 1940’s press was just as prone to clickbait as their modern successors and blasted out headlines warning of an imminent attack on United States Soil and “spies among us”. The press fueled by the Department of Justice lead the people to believe that there was a large underground network of spies located in the west coast, all of whom were of Japanese descent. Americans became concerned that this mass network of spies was capable of causing sabotages that would disable west coast defenses and leave the mainland vulnerable to a Japanese invasion.

This fear of subversive activity became known as “the fifth column” - a phrase that is given to residents of a nation assisting a foreign attacking force. The phrase is a translation of the Spanish Quinta Columna which was inspired by rebel general Emilio Mola during the Spanish Civil War who predicted that Madrid would fall as four columns of rebel troops descending on the city were joined by another hidden column of sympathizers within it. The phrase gained widespread popularity after Ernest Hemingway used it in the title of his 1938 book.

In a shameless dog whistle to the anti-Japanese sentiment that was brewing in the United States, Frank Knox, Roosevelt’s Secretary of the Navy, blamed Pearl Harbor on “the most effective fifth column work that’s come out of this war, except in Norway.” His attempt at blaming Pearl Harbor on subversive Japanese Americans was a clear effort to turn attention away from the United State’s significant intelligence failures that lead to the attack on Pearl Harbor.

There was no Fifth Column, no subversive activity, no massive underground network of spies - only an effort by the American Government to mask its own failures with American propensity for xenophobia.

And so, supported by an angered public falsely blaming Japanese Americans for the attack on Pearl Harbor, instead of looking inward to their own government - the groundwork was laid for Japanese internment. Surely anyone speaking out against internment would be cloaked in the stench of supporting Anti-American activity and even those with serious moral misgivings about what was to come would look the other way for fear of being ostracized or attacked by their own government as a sympathizers.

MASS ARRESTS OF JAPANESE AMERICANS

The first step towards Japanese internment was the mass arrest of Japanese American citizens suspected of being Japanese sympathizers. Department of Justice organized the arrests of 3,000 people that it considered “dangerous” enemy aliens, most were Japanese. Some were community leaders who were involved in Japanese organizations and religious groups. None of the arrests were supported by probable cause or warrants. At the same time bank accounts of all “enemy aliens” and all accounts in American branches of Japanese banks were frozen. This forced many Japanese American citizens who chose to do business with Japanese banks into bankruptcy. Businesses shuttered, families starved and their will was broken.

MILITARY EXCLUSION ZONES

President Roosevelt quickly passed Executive order No. 9066.

The executive order gave broad authority to military commanders to determine which areas require exclusion and provided absolutely no restraint on the size of the zones and who must be excluded. Following the executive order Lieutenant General John L. DeWitt, commander of the U.S. Army Western Defense Command, and in control of the western United States, established a large exclusion zone along the west coast and demanded that all Japanese Americans, including both citizens and non-citizens report to civilian assembly centers. His rationale was that Japanese citizens could signal with lights and make radio transmissions that would aid in a Japanese attack. None of these claims have been since verified.

General DeWitt submitted his recommendations orders to the president which called for the removal of all Japanese Americans and descendants of Japanese Americans from an entire area lying west of the Sierra Nevada and Cascade Mountains. He justified this action on the basis of “military necessity” stating “the Japanese race is an enemy race” and “the very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken”. As if lack of evidence is evidence of an impending invasion. On a moments notice, thousands of Japanese Americans, who established a peaceful life in the western United States, were forced to close their businesses, abandon homes, and farms and move into internment camps which were conveniently called “relocation centers”. Some detainees were sent back to Japan and others were moved to the eastern United States and outside the exclusion zones.

EVACUATION OF JAPANESE AMERICANS

In mid-February California congressman John Tolan headed congressional hearings to address the need for evacuation of Japanese Americans. The overwhelming majority of witnesses and congressmen supported the removal of all Japanese from coastal areas. And congress would later sign an act codifying the executive order and making it United States law. Public Law No. 503 made violating restrictions in a military area a misdemeanor and punishable by a $5,000 fine and a year in jail.

Pursuant to the evacuation orders evacuations began quickly leaving Japanese Americans only six days to relocate. By June 2, 1942, all Japanese in Military Area No. 1 were in army custody. Almost no one resisted - except Fred Korematsu.

THE ARREST OF FRED KOREMATSU

On memorial day 1942, Fred Korematsu was walking down the street in San Leandro California with his girlfriend when he was arrested “on suspicion of being Japanese”. Fred thought he wouldn’t get caught, the 23-year-old welder born in Oakland California to Japanese immigrant parents had surgery to change his appearance and changed his name to protect his Japanese identity. Clyde Sarah was the name he provided the San Leandro police - he said that his parents were of Spanish and Hawaiian ancestry. But his draft card looked altered, which alerted police to his real identity. Eventually, under the pressure of police interrogation he broke down and confessed. The news widely reported Korematsu’s arrest and the fact that he altered his appearance again to boost anti-Japanese propaganda.

KOREMATSU FIGHTS

Thankfully, there are citizens who have the willingness to fight oppression and organizations willing to help them in their journey.

But for the American Civil Liberties Union - this would be the last interesting fact in the Korematsu story. Under the threat of incarceration he would have plead guilty to the charge of evading detention and would never have challenged the internment order. Though the ACLU approached several resisters Korematsu was different. He had a passion for the belief in liberty and American ideals he learned in school and was more motivated than most to fight the charges. He was approached in custody by the ACLU while detained at the Tanforan Assembly Center. The “relocation center” was a former racetrack where he was forced to live in a horse stall with a cot, straw mattress and one lightbulb. His conditions of confinement in “relocation” were much worse than in jail.

Part II: THE TRIAL OF KOREMATSU

False Evidence

While at Tanforan, Fred received a visit from Attorney Ernest Besig, an ACLU lawyer looking for a client to challenge the order and Korematsu’s conviction. The ACLU had a tough time finding someone who had standing to challenge the order and was willing to fight. Just as with most criminal defendants, most were worried about making things difficult for themselves or additional government punishment for fighting the internment order. But due to the horrible conditions and treatment at Tanforan and Fred’s deeply held belief in liberty and justice - he agreed to fight.

At the outset, ACLU lawyers filed a motion to dismiss the charges. The motion argued that the order was not a valid exercise of constitutional power and that it violated Fred’s fourth and fifth amendment rights as well as his right to equal protection under the law. In response, the Government argued that Fred’s detention was a reasonable response to what was a national emergency. The government argued that there was a grave risk to the nation due to the possibility that there was a secret underground network of Japanese spies that were ready to disrupt United States war preparations on a moments notice. Facts that were later found to be completely false. Based on the wholly false information presented by the Government, Judge Adolphus St. Sure rejected the motion and set the case for trial.

Given the rejection of the motion and the court’s order determining the validity of the internment order as a valid exercise of government power, trial was short. The Government presented one witness to satisfy the sole element in the case - whether Fred Korematsu was “a person of Japanese descent”. But in this case, trial was a vital part of the proceeding because if Fred Korematsu would have pled guilty he could not challenge the conviction to the Supreme Court.

Given the narrow issues at trial, and the fact that a jury had no chance of acquitting Fred Korematsu of the charges, the trial was conducted without a jury. A federal defendant has a right to proceed to trial in front of a judge alone. This is a tactic that is generally used where the issues at trial or more legal and nature or where the passions of a jury may bleed so heavily into the case as to prevent a fair trial.

The prosecution presented one witness, an FBI agent that interviewed Korematsu after his arrest. On the strength of the testimony of the sole government witness, Korematsu was found guilty and sentenced to probation for 5 years. But his concern was not the sentence the judge would impose, it was his impending internment in Utah. After his sentence was pronounced, Fred and his family were sent to Topaz Utah, an internment camp created to provide a more permanent location for victims of internment than the relocation centers that were originally constructed.

While in Utah, the ACLU appealed Korematsu’s case on his behalf up to the Ninth Circuit court of appeals. The Ninth Circuit punted the issue and elected to “certify” the constitutional question for the Supreme Court of the United States. By certifying the question the Ninth Circuit avoided taking a constitutional stance on the issue and making a decision that would be unpopular and potentially later overturned by the Supreme Court.

The Supreme Court Case

Fred was now represented by appellate attorney Wayne Collins On appeal to the Supreme Court he attacked the internment order viciously, calling it: “imprisonment without cause, without justification and without trial in defiance of the very letter and spirit of the constitution order”. Solicitor General Charles Fahy argued that the Japanese prisoners were not prisoners at all and rather they were simply relocated and this was a small price to pay given all of the lives impacted by the war.

The Supreme Court issued its opinion on December 18, 1944. The opinion was split 6-3 with Justice Hugo Black in the majority he was joined by Justices Stone, Rutledge, Reed and Douglas. In the opinion, Justice Black, writing for the majority, balanced the need for interment with the need for individual liberties. He determined that the national emergency faced by the nation in a fight for its existence outweighed the rights of the people to be free from arrest and seizure without due process of law.

The Rise of Strict Scrutiny

While many read the opinion as a flaming disaster of civil rights decisions, such a reading would be short-sighted. In the opinion, the Supreme Court announced a test - one that would be responsible for greatly improving civil liberties in the future. The test was “strict scrutiny”. When balancing the equal protection under the law subsequent to a challenge that the law is unconstitutional, the Supreme Court applies tests to balance the government power with the rights of the people. Under “strict scrutiny” a law is only constitutional if it satisfies a “compelling government interest” and that there is no less burdensome way of achieving its objective. This test has only been met once.

Applying “strict scrutiny” the Supreme Court relied on the “evidence” presented by the United States of the dire national emergency that was satisfied by interning those of Japanese descent. Again, evidence that was later determined to be wholly false. And so, here, the Court relied on a government lie to establish a national emergency to satisfy its burden to show a “compelling government interest”.

The Dissent

The Justices in the minority were not just skeptical of the majority’s rationale. In a heated dissent Justice Robert Jackson, Owen Roberts and Frank Murphy dissented. Justice Jackson wrote that the Court’s decision would be “a far more subtle blow to liberty than the promulgation of the order itself” and that “like a loaded weapon for the hand of any authority that can bring forth a plausible claim of urgent need.” Justice Frank Murphy was not as measured with his criticism, he wrote: “the exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism.” He called it “one of the most sweeping and complete depravations of constitutional rights in the history of this nation.” Justice Murphy also peered through the lies surrounding the need for internment and found them baseless, writing: “[internment was] based on largely an accumulation of half-truths and insinuations”.

Justice Delayed

Korematsu, Gordon Hirabayashi and Minoru Yasui the three defendants who were convicted of violating the internment order filed a petition to overturn their convictions. The basis of the petition was new documents that showed the Government presented false evidence of the existence of “military necessity” for the internment orders. The Government agreed with the petitions and argued that the convictions should be set aside as “an unfortunate episode in our nation’s history.” In November of 1983, Federal District Judge Marilyn H. Patel issued an opinion overturning the convictions and finally providing vindication for Fred Korematsu.