INTO THE NEXT STAGE: 25 Years After Redress, Time for Repudiation

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By GEORGE TOSHIO JOHNSTON

In my Aug. 8 column titled “Redress, Remembrances and Reagan,” (http://tinyurl.com/nowzdqg), I led the piece by noting that despite its historic significance from a civil rights perspective, Aug. 10’s 25th anniversary of the signing of the Civil Liberties Act of 1988 probably wouldn’t garner much attention outside the vernacular press.

That prediction proved to be true.

Although there were a few mainstream news outlets like NPR that gave some attention to this civil rights milestone that directly affected Japanese Americans but had vast implications for all Americans, compared with the copious and well-deserved coverage given the 50th anniversary of Rev. Martin Luther King Jr.’s historic “I Have a Dream” speech, as far as redress was concerned, media coverage was nil. Shou ga nai.

Fortunately, though, after sharing my piece with a co-worker, he was kind enough to share with me a hyperlink to something that opened by eyes to more “Unfinished Business,” as filmmaker Steven Okazaki might say.

My allusion to that Oscar-nominated documentary is fitting, because its principal subjects — Minoru Yasui, Gordon Hirabayashi and Fred Korematsu — are also the subject of a recent, very fascinating legal treatise written by Prof. Peter Irons, who was also a principal in that same documentary.

Those four men are tied together historically because the first three — Yasui, Hirabayashi and Korematsu — each consciously, yet for different motivations, decided to resist and challenge the very premise of President Franklin Roosevelt’s Executive Order 9066. Their initial cases went all the way to the Supreme Court. All three lost.

Decades later, Irons — author, UC San Diego law professor and legal historian — re-examined those cases and sparked the movement to legally revisit them, based on an obscure legal concept known as writ of error coram nobis.

This was preceded by Aiko Herzig-Yoshinaga’s discovery of evidence — the last remaining copy of a report that was supposed to be destroyed — that there was in fact no military necessity to remove and incarcerate West Coast Japanese Americans.

Essentially, the writ of error coram nobis can be invoked after a case has been decided and it is later learned that the judges were willfully misled or lied to, or when critical evidence that would have changed the outcome of a verdict is wrongfully withheld or denied.

The wartime Supreme Court cases of Gordon Hirabayashi, Min Yasui and Fred Korematsu were reopened in 1983.

In the cases of Yasui, Hirabayashi and Korematsu, that criteria existed and then some. 1986’s “Unfinished Business” told that story up to that point in time, but since then much has happened. Although Korematsu’s original conviction was voided, Hirabayashi’s overturned and Yasui’s vacated, all three coram nobis litigants have died: Yasui in 1986 (I attended his memorial service in Denver and prior to that recorded what is probably his final audio interview), Korematsu in 2005 and Hirabayashi in 2012.

President Bill Clinton presented Korematsu with the Presidential Medal of Freedom in 1998; he was the subject of the documentary, “Of Civil Wrongs & Rights: The Fred Korematsu Story” by filmmaker Eric Paul Fornier, and in California, he now is recognized annually with the Fred Korematsu Day of Civil Liberties and the Constitution each Jan. 30.

Hirabayashi, meantime, also received the Presidential Medal of Freedom, posthumously, in 2012 from President Barack Obama.

In Denver, Yasui not only has had an annual community service award given in his name since 1974, there is a bronze bust in his likeness in the building named in his honor.

In 2011, Neal Katyal, at the time the acting solicitor general, issued an admission that his WWII-era predecessor, Charles Fahy, “ … misled the U.S. Supreme Court by omission of findings by the Office of Naval Intelligence that West Coast Japanese Americans (and legal permanent residents of Japanese ancestry who were at the time denied the right to become naturalized U.S. citizens) were not a military threat.” (The preceding is quoted from my May 26, 2011 “Into the Next Stage” column.)

Katyal’s edict was, of course, significant to the coram nobis cases. It was, in effect, a repudiation of a decades-old but still troubling and potentially dangerous precedent.

Now, there is another repudiation that needs to be addressed, one for the Supreme Court itself and which is the subject of the earlier referenced legal treatise by Prof. Irons.

First, take a look at the following link from the Volokh Conspiracy, by a law blog written by law professors and maintained by UCLA law professor Eugene Volokh; the link is: http://tinyurl.com/ljzdynp.

The post in question, by Ilya Somin, describes Irons’ treatise as such: “Legal scholar Peter Irons, a leading academic expert on the Japanese internment cases, has written a powerful article calling on the Supreme Court to explicitly repudiate those decisions. Those notorious cases, most notably Korematsu v. United States, upheld the forcible detention of over 100,000 Japanese-Americans in internment camps during World War II, as well as various other racially discriminatory policies against them.”

In other words, Irons makes the case that the Supreme Court should repudiate the cases of Hirabayashi, Korematsu and Yasui because the original decisions were so deeply flawed.

Somin summarizes Irons’ work this way: “A formal repudiation by the Court would have great symbolic value, even if it isn’t technically legally binding.”

I’m not a lawyer but I’ve tried my best under deadline to outline the background in describing what Irons’ repudiation essay is about. Prof. Irons, however, is far more knowledgeable and eloquent. Be forewarned — while essential, it’s not light reading. But it’s not obtuse, either. Give it a read at: http://tinyurl.com/kk83e5z.

Incidentally, Irons dedicates his treatise thusly: “This essay is dedicated to Ms. Aiko Herzig-Yoshinaga, whose research for the Commission on Wartime Relocation and Internment of Civilians uncovered crucial evidence for the coram nobis petitions. An internment survivor, Aiko has never abandoned her search for justice for all.”

Also, to tie this back to King’s “I Have a Dream” speech, I found the following, in reference to Korematsu’s case before Judge Marilyn Hall Patel: “Peter Irons described Korematsu’s ending statement during the case as the most powerful statement he’d ever heard from anyone. He related the statement as being as empowering as Martin Luther King’s famous ‘I Have a Dream’ speech.”

It makes me wonder: Will Irons’ latest writing inspire filmmaker Okazaki to revisit “Unfinished Business”? Sequels are, after all, quite popular these days.

I think that after redress, reparations and remuneration, there’s another “R” to think about: repudiation.

Until next time, keep your eyes and ears open.

(George Toshio Johnston has written this column since 1992 and can be reached at [email protected] The opinions expressed in this column are solely those of the author and do not necessarily reflect policies of this newspaper or any organization or business. Copyright © 2013 by George T. Johnston. All rights reserved.)

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