Bricolage: ‘Korematsu’: Unbinding the binding authority

Editor’s note: Bricolage is loosely defined as “do your best with what you’ve got.”

By Benjamin R. Kwan

They call it binding authority. You know, the explanations on the pages of the United States Reports that answer so many of our country’s disputed legal questions.

Take, for instance, the explanation for the mass incarceration of Japanese Americans and other people of Japanese ancestry from February 1942 through 1946, which is found beginning on page 214 of volume 323.

Those lines of the United States Reports teach that Executive Order 9066, signed by President Franklin D. Roosevelt in February 1942, justifiably locked away people of Japanese ancestry—some 110,000 of them, 60 percent American citizens—because of the “urgency of the situation” during World War II.

What urgency? The 1944 Supreme Court decision, Korematsu v. United States, continues on pages 223 and 224 of the United States Reports: “There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.”

Unfortunately for us, that simply was not true and we needn’t the benefit of hindsight to have gotten to the bottom of it. Turns out, American military leaders suppressed evidence that overwhelmingly contradicted the “evidence of disloyalty” used by the Supreme Court to uphold the decision to incarcerate Japanese Americans for all those years.

Call that nugget our unbinding authority – a historical lesson to release our country from just one of the bonds of a racist past.

That lesson was central to A Man of Quiet Bravery: A Reenactment of the Fred Korematsu Case, presented by the Minnesota Asian Pacific American Bar Association (MNAPABA) at the United States Courthouse in Minneapolis on September 18. MNAPABA’s production opened a weekend-long conference hosted in conjunction with the affinity bar’s affiliate, the National Asian Pacific American Bar Association.

MNAPABA adapted the play written by Peter Irons, a law professor and one of the lead researchers who discovered the evidence that contradicted the case made by the key architect of Japanese incarceration during WWII, U.S. Army Gen. John L. DeWitt.

Local lawyers, federal judges and state judges—from every level of the state judiciary including Justice David Lillehaug of the Minnesota Supreme Court—comprised the cast of players needed to bring to life the story of Fred Korematsu. Judge Tony Leung, magistrate judge for the federal District of Minnesota, played the part of Fred Korematsu, and it wasn’t without some butterflies.

“In the middle of the last rehearsal today, I see Karen Korematsu walk in and then I got nervous,” said Leung last Friday just before the reenactment. “Now I’m thinking, ‘oh my goodness,’ I am supposed to be this historically important person and here’s the person who grew up with him and it’s his daughter, and I’m going to play his part?”

Karen Korematsu, Executive Director of the Fred. T. Korematsu Institute and daughter of the late Fred Korematsu, had read the Peter Irons play before but had never seen a live presentation. She flew in from San Francisco especially for the event. She joined a packed courtroom of more than a hundred to see the living history her dad, who died in 2005, left as his legacy.

Local theater director Rick Shiomi volunteered to bring the case of Fred Korematsu to life (and to help—quite deftly—our local bench and bar moonlight as actors) for the audience.

“I think they take away a kind of everyman’s journey, a singular man who has this belief that all of us have,” said Shiomi, Co-Artistic Director of Full Circle Theater Company. “But he just happened to act upon it and I think that took him on a journey that he never expected.”

Fred Korematsu, Historical Figure

The story began in May 1942, six months after the bombing of Pearl Harbor. Korematsu, a welder at the time, was walking down a street in San Leandro, Calif., when authorities picked him up for refusing to comply with Executive Order 9066, which required all Japanese-Americans living on the West Coast to report to relocation camps.

At the time, Japanese Americans were given at most, a couple of weeks to sell or find someone who could care for their belongings. They had no idea if or when they would be able to return home. After he was arrested for refusing to evacuate, Korematsu challenged the constitutionality of the mass incarcerations.

Korematsu took his case all the way to the Supreme Court where his ultimate conviction was upheld in a 6-3 decision.

Korematsu kept quiet about this injustice for some four decades. In fact, Karen Korematsu recounted for the audience that she only learned about her father’s conviction during high school when a classmate was delivering an oral book report about the Supreme Court case.

What she did not learn back then ended up being the ultimate pieces of the story that would finally break her father’s silence in the early 1980s. After learning about the suppressed evidence and breaking his silence, Korematsu’s conviction was overturned on November 10, 1983, after Korematsu challenged the earlier decision by filing for a writ of coram nobis. Somescholars contend, however, that the invidious Supreme Court case is still “good law.”

History, revised

Professor Peter Irons, working with Aiko Herzig-Yoshinaga, a second generation Japanese American born in Los Angeles and incarcerated at camps at Jerome and Rohwer, Arkansas, poured through Department of Justice files to get to the bottom of the Korematsu case and the seemingly bare assertions of “disloyalty” used to support Japanese American incarceration during the war.

After a Freedom of Information Act request, the first dusty box Irons opened contained a report that “literally stunned” him, the play recounts.

“It was a memo, dated in April 1943, from Edward J. Ennis, an assistant attorney general and director of the Alien Enemy Control Unit, to Solicitor General Charles Fahy.

“Ennis had found a report, dated January 26, 1942, by Commander Kenneth Ringle, a Japanese-speaking naval intelligence officer, who had been detailed to investigate the possible extent of disloyalty among Japanese Americans.  Ringle’s report, which General DeWitt had been given before he issued the curfew and evacuation orders, estimated the number of Japanese Americans, and I quote, ‘who would act as saboteurs or agents of Japan’ as ‘less than three percent of the total,’ and were well known to naval intelligence and the FBI.

“Ringle’s report concluded: ‘In short, the entire Japanese problem has been magnified out of its true proportion, and should be handled on the basis of the individual, and not on a racial basis.’”

The reenactment audience, including six incarceration camp survivors, also heard that Gen. DeWitt ordered such reports destroyed, paving the way for the Supreme Court’s reliance on Gen. DeWitt’s threadbare and arguably racist bases for the incarceration.

Fred Korematsu’s four-decade silence was one way of dealing with the invidious incarceration of Japanese Americans. Sally Sudo, of Bloomington, recalled those decades with thoughts of shame after seeing the reenactment last Friday.

“Listening to the whole presentation, first of all, it made me angry to hear the deception on the part of the government,” said Sudo, who was incarcerated at the Minidoka War Relocation Center in Idaho as a child.

Sudo said she felt anger because the reenactment humanized the deception that caused the shame of her youth.

“I always felt that there was something wrong with me for being Japanese American because otherwise, why did people hate us so?” Sudo asked. “And why were we put in prison camps?”

Sudo said the way she and others coped was by becoming as “American as possible.” That’s why, she said, she adopted the name Sally. “My legal name is Shigeyo.”

This humanization of a Supreme Court case is just the thing MNAPABA organizers had hoped for—highlighting the untold, underlying story of Fred Korematsu to unbind the binding authority, to show that the courts do not always get it right.

“I hope that people who see this will remember that while we have a great system, because of its fallibility, we all must responsible in some way to learn about what decisions are being made in the courts,” said Leung. “And be educated that injustice at one time isn’t just an occurrence of ancient history, it can repeat itself.”

That’s why Karen Korematsu was happy to be in Minnesota for the event in a room full of lawyers and judges.  Her dad loved speaking to lawyers.

“That was his favorite audience,” she said. “Because he knew that if anything did happen again, that they had the ability to do something about it.”

Benjamin R. Kwan is a former television reporter and anchor. He practices plaintiff’s employment law at Halunen Law in Minneapolis.  He can be reached at [email protected]