VOX POPULI: We Will Never Stop Fighting

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By DONALD K. TAMAKI

The Minami Tamaki law firm has a long history of fighting for the rights of people of color, women, immigrants, marginalized people, and others.

Last year we reconvened the legal team that represented Fred Korematsu in the 1980s to reopen his terrible landmark case legalizing the incarceration of entire racial population for no good reason. We joined the Korematsu Center for Law and Equality at Seattle University School of Law and the law firm of Akin Gump in representing Karen Korematsu, Jay Hirabayashi, and Holly Yasui, the adult children of Fred Korematsu, Jay Hirabayashi, and Min Yasui, to file an amicus brief in the Supreme Court’s review of the Muslim ban.

We also created a parallel public education effort through the Stop Repeating History campaign (https://stoprepeatinghistory.org), a project of the MTYKL [Minami Tamaki Yamauchi Kwok & Lee] Foundation.

While Fred and Gordon Hirabayashi and Min Yasui have long passed, we resolved to represent their adult children to file an amicus brief in the Supreme Court’s review of the Muslim ban.

We needed to remind the Court of the civil liberties disaster 75 years ago, when the Court failed to question the executive branch and simply took its word for it that the incarceration of Japanese Americans was necessary for national security.

Disappointingly, the Court last week upheld the Muslim ban, 5-4. We have very mixed feelings, and on balance, most of those feelings are negative. We’re angry but determined to keep fighting.

Here’s one major positive: the Court got one thing partially right. After nearly 75 years, the Court overruled Korematsu, taking “the opportunity to express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — “has no place in law under the Constitution.” 323 U.S., at 248 (Jackson, J., dissenting).” That means a lot to our families who were incarcerated.

But the Court’s repudiation of the decision in Korematsu tells only half the story. Although it correctly rejected the abhorrent race-based relocation and incarceration of Japanese Americans, it failed to recognize — and reject — the rationale that led to its infamous decision.

In fact, it repeated its mistakes, rubber-stamping (without asking any questions) the government’s bald assertions that the “immigration travel ban” is justified by national security. For targeted Muslims, refugees and immigrants, and their children being held in Walmart-turned-into-cages, last week’s ruling is appalling.

Nevertheless, the Court has overruled Korematsu, a very dangerous precedent.

Out of the more than 100 amicus briefs filed in this case, our brief representing Karen Korematsu, Jay Hirabayashi, and Holly Yasui (the children of Fred, Gordon and Min, the WWII challengers) is cited in Justice [Sonia] Sotomayor’s dissent:

“As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. Compare Korematsu v. United States, 584 F. Supp. 1406, 1418–1419 (ND Cal. 1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American Citizens League as Amicus Curiae 17–19, with IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35–36, and n. 5 (noting that the Government “has gone to great lengths to shield [the Secretary of Homeland Security’s]report from view”). And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy.”

Sotomayor’s dissent nails what’s wrong with the majority’s decision:

“Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38. Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

Unfortunately, this is likely to embolden Trump to become more extreme, and detention camps are already in the works around the country.

We invite you to join us in continuing this important effort. Your donation to our Stop Repeating History campaign (http://bit.ly/mtykl) will help us fight today’s injustices by educating the country about the shameful legacy left by the Japanese American incarceration.

Together we will continue this fight.

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Donald K. Tamaki is a partner at Minami Tamaki LLP in San Francisco and a board member of the MTYKL Foundation, which he established with Dale Minami, Brad Yamauchi, Minette A. Kwok and Jack W. Lee. The Rafu Shimpo management and staff continually strive to maintain high editorial standards for professionalism as well as accurate and balanced news coverage. The inclusion of a particular piece, including columns and op-ed submissions by contributing writers in print and/or digitally, does not necessarily reflect the policy or position of the owners, management, individual staff members, and editors. The Rafu Shimpo welcomes responses to any article published in print or digitally. Responses may be sent to author directly or emailed to [email protected]

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