Stone writes Fred Korematsu’s amicus brief, as history repeats

In a “friend-of-the-court” brief filed in the U.S. Supreme Court Friday, Oct. 3, Geoffrey Stone wrote, “History teaches that, in time of war, we have often sacrificed fundamental freedoms unnecessarily.” The amicus curiae brief, which Stone wrote on behalf of World War II Japanese-American detainee Fred Korematsu, asked the high court to review the constitutionality of prolonged executive detentions under the Bush administration’s “War on Terrorism.”

Stone, the Harry Kalven, Jr. Distinguished Service Professor in the Law School, is the author of a major study of civil liberties in wartime, The Secret of Liberty, which will be published by WW Norton & Company in early 2004.

In 1942, Korematsu was arrested and convicted for defying the U.S. government’s World War II internment order of Japanese-Americans. The brief was filed in the cases of Khaled Odah v. United States, Shafiq Rasul v. George W. Bush and Yasir Hamdi v. Donald Rumsfeld. Odah and Rasul are being held at the Guantanamo Bay facility in Cuba, and Hamdi, possibly a U.S. citizen, in a military brig in Virginia. The plaintiffs are being held “without any fair hearing to determine guilt or innocence, without the assistance of counsel and without any meaningful judicial review,” Stone said.

“The extreme nature of the government’s position in these cases is reminiscent of its positions in past episodes, in which the United States too quickly sacrificed civil liberties in the rush to accommodate overbroad claims of military necessity,” he added.

More than 60 years ago, Korematsu challenged the constitutionality of President Franklin Roosevelt’s 1942 Executive Order that authorized the internment of 120,000 individuals of Japanese ancestry who were living on the West Coast. “This is an extraordinary convergence of events, spanning 60 years of this nation’s history,” said Stone. “Fred Korematsu has committed himself to ensuring that Americans do not forget the lessons of their own history.”

Korematsu, now 84, was born to a Japanese-American family in California that owned a flower nursery. After World War II broke out, Japanese living in Pacific states were first subject to curfews and were later sent to internment camps. In 1942, Korematsu’s family was taken for processing to Tanforan, a former racetrack south of San Francisco, but Korematsu, then 22 and working as a welder in an Oakland, Calif. shipyard, refused to go. He was arrested, convicted, given a suspended sentence and ultimately sent to the Topaz internment camp in Utah, where he and his family remained for the duration of the war.

In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld his conviction, ruling that because the United States was at war, the government could, on the grounds of military necessity, constitutionally intern him without a hearing and without any adjudicative determination that he had done anything wrong.

In 1983, Judge Marilyn Patel of the U.S. District Court in San Francisco overturned the conviction in response to a writ of coram nobis (to correct a judgment on the ground of an error of fact). A team of attorneys, many of whom had parents interned during the war, filed the appeal on Korematsu’s behalf. The Court ruled that the government’s 1942 case against Korematsu was based on false, misleading and racially biased information.

In 1988, Congress passed legislation that apologized for the World War II internment of Japanese-Americans and awarded each survivor $20,000. In 1998, President Clinton awarded Korematsu the Presidential Medal of Freedom. The citation read, in part, “Fred Korematsu challenged our Nation’s conscience, reminding us that we must uphold the rights of our own citizens even as we fight tyranny in other lands.”

In Korematsu’s amicus brief, Stone argued to the Supreme Court that “in order to avoid repeating the mistakes of the past, the Supreme Court should make clear in these cases that the United States respects fundamental constitutional and human rights-even in times of war. These cases present the Supreme Court with a direct test of whether it will meet its deepest constitutional responsibilities to uphold the law in a clear-eyed and courageous manner.”

David Strauss, the Harry N. Wyatt Professor in the Law School, and former University law professor Stephen Schulhofer worked with Stone on the brief.