This chapter depicts Korematsu’s uncertain legal and political status. It starts with a capsule o... more This chapter depicts Korematsu’s uncertain legal and political status. It starts with a capsule of 9/11 security measures and charges of excess and abuse. It also surfaces a hidden piece of liberty and security controversies—the philosophy of the noble (or ignoble) lie that enables some officials, ostensibly in good conscience, to dissemble to the courts and public on security matters in justifying what might be otherwise unjustifiable. With this backdrop, the chapter explores clashing contemporary usages of Korematsu. It charts the case’s “Chameleonic Deployment,” starting with policymakers’ volatile rhetoric and reliance upon Korematsu to legitimate sweeping Muslim exclusion and segregation proposals. Then the chapter canvasses Cold War cases citing Korematsu as standing precedent and cases after the Gulf War and into the Obama era clearly relying on Korematsu but without explicit citation. The chapter closes with a recitation of judges’ characterizing Korematsu as a stinging cautionary tale.
Bridging the Chasm... III In Peru, despite initial progress, those suffering from the government'... more Bridging the Chasm... III In Peru, despite initial progress, those suffering from the government's prolonged fight with insurgents called loudly for follow through on truth commission recommendations. 3 They demanded in 2013 badly-needed, long-delayed economic justice. 4 In South Africa, the widely praised post-apartheid reconciliation initiative faced charges of having "fallen tragically short."s The former chair of the Truth and Reconciliation Commission lamented in 2014 that by "choosing not to follow through on the commission's recommendations, [the] government not only compromised the commission's contribution to the process, but the very process itself.,,6 And in the United States, after apologizing to Native Hawaiians for the illegal overthrow of the sovereign Hawaiian nation and committing to reconciliation, shifting American political leadership and conservative justices halted steps in 2015 toward indigen()us self-governance. 7 "For too long," implored a Native Hawaiian leader, "[we] have waited for the United States ... to make right the wrong ... only to see the small.steps taken for J Se~ infra Section V.D (describing Peru Truth and Reconciliation Commission recommendations and impacts). 4 See infra Section V.D (describing the need for eco~omic justice in Peru). 5 See infra notes 6 and 238 and accompanying text. 6 Desmond Tutu, Tutu: 'Unfinished Business' of the TRC's Healing, MAIL & GUARDIAN (Apr. 25, 2014), http://mg.co.zaJarticle!2014-04-24-unfinished-business-ofthe-trc-healing; see also injra Sections liLA and IV.B & C (describing the South Africa Truth and Reconciliation Commission process and impacts). 7 See Chloe Fox, Supreme Court Blocks Native Hawaiians' Attempt to Form Own Government, HUFFINGTON POST (Dec. 2,2015), http://www.huffingtonpost.com/entry/supreme-court-hawaii-election_us _565f684ge4b079b2818d1767 (discussing how the Supreme Court of the United States granted an injunction, requested by a group of Native Hawaiians and non-Hawaiians, challenging an election that Native Hawaiians hoped to use to form their own government and therefore "indefinitely stopped" Native Hawaiians from moving forward "until at least the 9th U.S. Circuit Court of Appeals issues its ruling on the election"). VOLUME 15 • ISSUE 1 • 2016 our benefit persistently attacked ... Reconciliation has been an option thus far denied.,,8 In recent years, governments and populaces embarked on major reconciliation initiatives to heal the persisting wounds of historic injustices. With an emphasis on personal and societal benefits of victim storytelling, perpetrator apologies, compensatory or symbolic payments, institutional reordering, and public education, reconciliation initiatives emerged on the political agendas of both established and transitioning democracies. 9 Acknowledging and repairing the damage of grievous transgressions signaled government and populace commitments to human rights and reparative justice. 10 And it illuminated the high aspirations and moral tenor of civil societies. II Despite those aspirations and commitments and notwithstanding major reconciliation undertakings in South Korea, Peru, South Africa, the United States, and beyond, reconciliation initiatives stall. 12 Genuine social healing awaits. As eloquently recited by the National Survivors Network in its 2015 petition to the Kenyan National Assembly, the "lack of a framework for implementing the recommendations of the Truth, Justice and Reconciliation Commission" has "huge repercussions on the lives of hundreds of victims 8 Statement by Trustee Haunani Apoliona, Chairperson, Board of Trustees, Office of Hawaiian Affairs; Testimony offered to the Committee on Senate Indian Affairs, February 25, 2003; see also infra note 39 and accompanying text (describing partial United States and Native Hawaiian reconciliation efforts). 9 See, e.g., TRUTH & RECONCILIATION COMM'N OF CAN., http://www.trc.ca/websites/trcinstitutioniindex.php?p=3 (last visited July 15,2016); Hun Joon Kim, Truth Commissions in South Korea: Lessons Learned, MIDDLE EAST INST. (2013), http://www.mei.edulcontent/truth-commissions-south-korea-Iessons-Ieamed (describing South Korea's transitional justice measures since the democratic transition in 1987); see also infra Sections II & IV.B. • 10 See infra Section ILA (referencing various global reconciliation initiatives). II See infra Section ILA (describing an "Age of Reconciliation"). 12 See infra Section n.B (analyzing stalled global reconciliation initiatives). SEATTLE JOURNAL FOR SOCIAL JUSTICE theoretically-it draws from commonalities among several disciplines (particularly social psychology, political theory, economics, and human rights law).17 It is also pragmatic-it acknowledges practical redress experiences and the strategic significance of a convergence of interests and is attentive to words, actions, and realpolitik influences. IS And this approach to social healing engages individuals, communities, justice organizations, businesses, and governments in a dynamic process of recognition, responsibility, reconstruction, and reparation l9-the "Four Rs"-with the larger aim of fostering the kind of reparative justiCe that heals. 20
; as well as magazine articles. Bibliographic references are available in Ojiri's office. Esther ... more ; as well as magazine articles. Bibliographic references are available in Ojiri's office. Esther Arinaga prepared the final draft. Her sources included interviews with Patsy T. Mink, materials prepared for Representative Mink's various campaigns, local newspapers, law review articles, interviews with Democratic part colleagues, and numerous textbooks that discuss the implications of Mink v. E.P.A. Anne Russell's doctoral dissertation, "Patsy T. Mink: Political Woman" (University of Hawaii, 1977), provided an excellent description of Mink's early life but must be read with care, as there are a number of serious errors, especially with regard to names and events.
This chapter unravels the World War II majority and dissenting opinions in Korematsu v. United St... more This chapter unravels the World War II majority and dissenting opinions in Korematsu v. United States, describing the recited factual foundations of the Court’s ruling (along with the dissenters’ sharp counterpoints) and detailing the Court’s announced strict scrutiny standard alongside its actual extremely deferential judicial review. In closely examining the Japanese American internment (exclusion and incarceration) case, it concisely examines the documents and written and oral arguments about military necessity advanced by the government (and accepted by the Court majority), along with Justice Murphy’s factual rejoinders and condemnation of the majority’s complicity in the government’s descent into “the ugly abyss of racism.” It closes by examining Justice Jackson’s Korematsu “loaded weapon” warning, along with contemporary views of the warning’s relevance.
This chapter describes the Korematsu, Hirabayashi, and Yasui coram nobis reopenings of the World ... more This chapter describes the Korematsu, Hirabayashi, and Yasui coram nobis reopenings of the World War II curfew and exclusion cases. The mid-1980s coram nobis courts made startling findings of egregious unethical misconduct at the government’s highest levels in justifying the curfew, removal, and incarceration. A cache of previously hidden World War II government documents revealed frantic efforts by War and Justice Departments leaders to deliberately mislead the Supreme Court and American public and to alter and fabricate key evidence on national security. The chapter enfolds Acting U.S. Solicitor General Neal Katyal’s unprecedented 2012 “Confession of Error” acknowledging the World War II solicitor general’s deliberate and prejudicial misrepresentations to the Supreme Court. It closes by highlighting the outcome of pervasive government disinformation on security and court passivity: the judiciary’s legal validation of the political branches’ prolonged deprivation of a vulnerable group’s liberty on an unfounded claim of urgent need.
More than sixty years ago, as a young man, Fred Korematsu challenged the constitutionality of Pre... more More than sixty years ago, as a young man, Fred Korematsu challenged the constitutionality of President Franklin Roosevelt's 1942 Executive Order that authorized the internment of all persons of Japanese ancestry on the West Coast of the United States. He was convicted and sent to prison. In Korematsu v. United States,2 this Court upheld his conviction, explaining that because the United States was at war, the government could constitutionally intern Mr. Korematsu, without a hearing, and without any adjudicative determination that he had done anything wrong. More than half a century later, Fred Korematsu was awarded the Presidential Medal of Freedom, the nation's highest civilian honor, for his courage and persistence in opposing injustice. In accepting this award, Mr. Korematsu reminded the nation that, "We should be vigilant to make sure this will never happen again." He has committed himself to ensuring that Americans do not forget the lessons of their own history. Because Mr. Korematsu has a distinctive, indeed unique, perspective on the issues presented by this case, he submits this brief to assist the Court in its deliberations. SUMMARY OF ARGUMENT For approximately two years, Petitioners have been imprisoned incommunicado, without access to counsel and with no opportunity to contest in any forum the factual or legal basis for their confinement. Unlike Fred Korematsu, who, as a Japanese American internee, was at least permitted to challenge the constitutionality of his internment, Petitioners are being deprived of the most basic components of due process. The United States Government has defended these deprivations on the technical ground that federal courts lack reviewing jurisdiction because the Government has decided to incarcerate Petitioners on a military base over which it purports to disclaim "sovereignty." But the basis for that defense-the Government's voluntary decision to incarcerate Petitioners at Guantanamo Bay, thousands of miles from any battlefield-suggests a legal strategy, not a military one. Although certain aspects of the "war against terrorism" may be unprecedented, the challenges to constitutional liberties these cases present are 1. This brief is filed with the written consent of all parties. No counsel for any party authored this brief in whole or in part, nor did any party make a monetary contribution to the preparation or submission of this brief. The brief appears in substantially the same form as the version filed with the Supreme Court. 2. 323 U.S. 214 (1944).
descriptions that foreclose careful and continued scrutiny of actual behavior. 6 For these reason... more descriptions that foreclose careful and continued scrutiny of actual behavior. 6 For these reasons, overused labels such as liberal, conservative, or moderate obscure rather than illuminate 7 And, in our opinion, they are inadequate to describe Justice Ginsburg's dynamic approach to the complex issues of legal process.' This article sets aside the familiar political labels and engages in a deeper analysis of what Justice Ginsburg has done and said. What prompted Justice Ginsburg's reputation as a moderate may be, as a survey of her judicial opinions suggests, her willingness to accommodate a number of differing, sometimes contrasting concerns when crafting a judicial opinion. For 6 See MARTHA MINOW, MAKING ALLTHE DIFFERENCE 173-77 (1990), for a general survey
Clara L. Rev. 1 (1986) [hereinafter Yamamoto, Korematsu Revisited]. I was a member of the Koremat... more Clara L. Rev. 1 (1986) [hereinafter Yamamoto, Korematsu Revisited]. I was a member of the Korematsu legal team that litigated the coram nobis proceeding.
This Article is part of a larger project, entitled ReForming Civil Rights in Uncivil Times, that ... more This Article is part of a larger project, entitled ReForming Civil Rights in Uncivil Times, that will be published as a special 2001 issue of the UCLA Amerasia Journal, guest edited by Professors Horn and Yamamoto. The Article describes first the larger project, an interrogation of rights in the context of the U.S. civil rights legacy and the development of international human rights in the twentieth century. It then focuses critical discussion on two case studies, one current and one historical (Rice v. Cayetano and the Civil Rights Congress), and develops two theoretical and strategic aspects of the project: (1) an analysis of the dynamics of collective memory in framing present-day justice grievances and claims, and (2) a critique of the complex intersection of international and domestic rights discourse and practice.
Reviewed by Eric K. Yamamotot INTRODUCTION "I couldn't talk about it for over forty years. Not to... more Reviewed by Eric K. Yamamotot INTRODUCTION "I couldn't talk about it for over forty years. Not to my children. Not to friends. Not a word."l The sixty-year old woman, born and raised an American citizen, was speaking of the Japanese American internment: the U.S. government's World War II incarceration of 120,000 Americans of Japanese ancestry in desolate concentration camps without charges, trial or, as ultimately shown, evidence of group-based disloyalty or military necessity.2 The woman lost her home, family business, relatives and, most important of all, her dignity and freedom. Racial vilification followed her Copyright <£i 2001 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications.
national security necessity still stands-in future cases, they indicate, "We're going to defer." ... more national security necessity still stands-in future cases, they indicate, "We're going to defer." 16 The vituperative calls for mass exclusion and detention after the Paris and San Bernardino attacks and President Trump's ensuing Muslim exclusion and removal orders-against a backdrop of still pending post-9/11 civil liberties litigation by torture victims, religious communities, journalists and humanitarian groups 17-revivify Justice Jackson's warning. That warning and U.S. District Judge Marilyn Hall Patel's later Korematsu coram nobis call for judicial vigilance 18 remain hotly relevant. Could "it"a post-modern form of mass civil liberties violations-happen again? With the courts' stamp of approval? Consider a snapshot of recent events. In 2015, retired U.S. Army General Wesley Clark fueled the anti-Muslim fire of American politicians. The former Commander of the NATO Allied Forces and once Democratic presidential candidate called for placing into internment camps American Muslims who possessed "radicalized" views irrespective of actions. [T]hese people [radicalized Muslims] are. .. disloyal to the United States as a matter of principle, fine, that's their right.. .. It's our right and our obligation to segregate them from the normal community for the duration of the conflict. 19 After the 2015 Paris attacks, Tennessee General Assemblyperson Glen Casada channeled the World War II internment in calling for Syrian refugees' blanket segregation within, if not complete exclusion from, the state. The Republican Caucus Chair suggested National Guard mobilization to round up Syrian refugees. We need to activate the Tennessee National Guard and stop [Syrian refugees] from coming in to the state by whatever means we can. .. . I'm not worried about what a bureaucrat in D.C. or an unelected judge thinks.. .. We need to gather [them] up. .. . 20 16. Id.; see also Hassan v. City of New York, 804 F.3d 277, 307 (3d Cir. 2015) (describing the Korematsu majority's "unconditional deference" to the government's claim of military necessity);
This Essay explores "cultural performance" and legal process.) More particularly, the Essay speak... more This Essay explores "cultural performance" and legal process.) More particularly, the Essay speaks to legal advocates not about crafting doctrinal arguments but about some of the problems and possibilities of shifting the cultural frameworks of decisionmakers-frameworks that color how those decisionmakers understand hard evidence and social context in cases. In doing so, this Essay weaves a layered story of a pending United States Supreme Court case into an account of a multi-faceted Hawaiian hula dance performance, tying both to a developing LatCrit praxis. 2 We start with a story of indigenous Hawaiians. I. RICE V. CAYETANO At this wntmg, the Court is in the process of deciding Rice v. Cayetano,S probably the most important Hawaiian rights case ever. Rice puts at risk all of the federal and state Native Hawaiian programs designed to repair continuing harms to the Hawaiian * Professor of Law, William S. Richardson School of Law, University of Hawai'i Law School at Manoa. Copyright Eric. K. Yamamoto 1999. My thanks to Maile Shimabukuro for her research assistance and Brandon Kekoa Paredes for his contribution to the descriptions of the hula and the Kaho'olawe hula perfonnance. I
The journal explores, analyzes, and presents the history of law, the legal profession, and the co... more The journal explores, analyzes, and presents the history of law, the legal profession, and the courts-particularly the federal courts-in Alaska,
American and African American communities must actively seek and create agendas and issues that w... more American and African American communities must actively seek and create agendas and issues that will bond and strengthen both communities."); Ella UCLA ASIAN PACIFIC AMERICAN LAW JOURNAL understanding of differing group cultural behaviors 6-or on social structure-exploring ways in which dominant institutions construct racial conflict. 7 The search for common political-economic interests among racial groups and the focus on differing cultural behaviors and on Anglo American institutional power yields important insights. Those efforts, however, also constrain the field of inquiry; they tend to obscure a foundational component of groups "living peaceably and working politically together." That foundational component is interracial justice. Interracial justice, as I conceive it, reflects a commitment to anti-subordination among nonwhite racial groups.' It entails a hard acknowledgment of the ways in which racial groups have harmed and continue to harm one another, sometimes through forms of oppression, along with affirmative efforts to redress past harms with continuing effects. More specifically, interracial justice is comprised of two related dimensions. One dimen-Stewart, Communication Between African Americans and Korean Americans: Before and After the Los Angeles Riots, 19 AMERASA J. 23, 46 (1993) ("[S]earching for the one thread of commonality that can promote positive communication and good will among all people."); Armando Navarro, The South Central Los Angeles Eruption: A Latino Perspective, 19 AMEPRASIA J. 69, 83 (1993) ("Latinos must also participate in the formation of multiethnic/racial coalitions which are predicated on the inclusion of all groups and segments who share a common interest in the rebuilding of SCLA and Los Angeles."); Rodney E. Hero, Multiracial Coalitions in City Elections Involving Minority Candidates, 25 Uit. AFF. Q. 342, 349 (1989) (noting that some political observers assume that shared political concerns will bring blacks and Hispanics together as "likely allies in urban politics"). 6. See, e.g., Michael .C. Thornton & Robert J. Taylor, Intergroup Attitudes: Black American Perceptions of Asian Americans, 11 ETHNIC & RACIAL STUD. 474 (1988) (addressing 'escalating antipathy" between "blacks and Asian Americans" and suggesting "a better understanding of how these two populations [now] view each other"); S. M. Miller, Coalition Etiquette: Ground Rules For Building Unity, 14 Soc. PoL. 47 (1983) (suggesting codes of behavior to foster inter-group understanding to aid in coalition-building); Ken
Modified versions of these rules are pending before the Hawaii Supreme Court. The rules are recom... more Modified versions of these rules are pending before the Hawaii Supreme Court. The rules are recommended by the Judiciary's rules committee chaired by Judge Philip T. Chun. Professor Yamamoto served as counsel for the F.2d 633, 640 (9th Cir. 1980)). '* Id. at 111, 679 P.2d at 632.
2018 marked the 70th anniversary of the Jeju 4.3 “Grand Tragedy” and started, stalled and rejuven... more 2018 marked the 70th anniversary of the Jeju 4.3 “Grand Tragedy” and started, stalled and rejuvenated reconciliation efforts by the South Korea government and people. Even after a truth and reconciliation investigation and some legislative and executive actions, one question remains startlingly significant: how do the survivors, their families, Jeju Island and South Korea as a nation heal from the decades-old injuries that still ache in the present? This essay offers insights into an important potential next step towards Jeju 4.3 reconciliation. That is, comprehensive and enduring social healing through justice-healing for Jeju people who suffered from the 4.3 events, as well as for Korean society itself. One key justice piece of that social healing process – addressed in this essay – highlights the significance of formal apologies for those still suffering from the wrongful mass military tribunal convictions and executions and harsh imprisonment during 4.3 events, particularly for the eighteen survivors (and families) who recently reopened their convictions, seventy years later, in Jeju District Court and succeeded in impelling the court to vacate their convictions after retrial, clearing their names and those of all who had been wrongfully and horrifically incarcerated.
This chapter depicts Korematsu’s uncertain legal and political status. It starts with a capsule o... more This chapter depicts Korematsu’s uncertain legal and political status. It starts with a capsule of 9/11 security measures and charges of excess and abuse. It also surfaces a hidden piece of liberty and security controversies—the philosophy of the noble (or ignoble) lie that enables some officials, ostensibly in good conscience, to dissemble to the courts and public on security matters in justifying what might be otherwise unjustifiable. With this backdrop, the chapter explores clashing contemporary usages of Korematsu. It charts the case’s “Chameleonic Deployment,” starting with policymakers’ volatile rhetoric and reliance upon Korematsu to legitimate sweeping Muslim exclusion and segregation proposals. Then the chapter canvasses Cold War cases citing Korematsu as standing precedent and cases after the Gulf War and into the Obama era clearly relying on Korematsu but without explicit citation. The chapter closes with a recitation of judges’ characterizing Korematsu as a stinging cautionary tale.
Bridging the Chasm... III In Peru, despite initial progress, those suffering from the government'... more Bridging the Chasm... III In Peru, despite initial progress, those suffering from the government's prolonged fight with insurgents called loudly for follow through on truth commission recommendations. 3 They demanded in 2013 badly-needed, long-delayed economic justice. 4 In South Africa, the widely praised post-apartheid reconciliation initiative faced charges of having "fallen tragically short."s The former chair of the Truth and Reconciliation Commission lamented in 2014 that by "choosing not to follow through on the commission's recommendations, [the] government not only compromised the commission's contribution to the process, but the very process itself.,,6 And in the United States, after apologizing to Native Hawaiians for the illegal overthrow of the sovereign Hawaiian nation and committing to reconciliation, shifting American political leadership and conservative justices halted steps in 2015 toward indigen()us self-governance. 7 "For too long," implored a Native Hawaiian leader, "[we] have waited for the United States ... to make right the wrong ... only to see the small.steps taken for J Se~ infra Section V.D (describing Peru Truth and Reconciliation Commission recommendations and impacts). 4 See infra Section V.D (describing the need for eco~omic justice in Peru). 5 See infra notes 6 and 238 and accompanying text. 6 Desmond Tutu, Tutu: 'Unfinished Business' of the TRC's Healing, MAIL & GUARDIAN (Apr. 25, 2014), http://mg.co.zaJarticle!2014-04-24-unfinished-business-ofthe-trc-healing; see also injra Sections liLA and IV.B & C (describing the South Africa Truth and Reconciliation Commission process and impacts). 7 See Chloe Fox, Supreme Court Blocks Native Hawaiians' Attempt to Form Own Government, HUFFINGTON POST (Dec. 2,2015), http://www.huffingtonpost.com/entry/supreme-court-hawaii-election_us _565f684ge4b079b2818d1767 (discussing how the Supreme Court of the United States granted an injunction, requested by a group of Native Hawaiians and non-Hawaiians, challenging an election that Native Hawaiians hoped to use to form their own government and therefore "indefinitely stopped" Native Hawaiians from moving forward "until at least the 9th U.S. Circuit Court of Appeals issues its ruling on the election"). VOLUME 15 • ISSUE 1 • 2016 our benefit persistently attacked ... Reconciliation has been an option thus far denied.,,8 In recent years, governments and populaces embarked on major reconciliation initiatives to heal the persisting wounds of historic injustices. With an emphasis on personal and societal benefits of victim storytelling, perpetrator apologies, compensatory or symbolic payments, institutional reordering, and public education, reconciliation initiatives emerged on the political agendas of both established and transitioning democracies. 9 Acknowledging and repairing the damage of grievous transgressions signaled government and populace commitments to human rights and reparative justice. 10 And it illuminated the high aspirations and moral tenor of civil societies. II Despite those aspirations and commitments and notwithstanding major reconciliation undertakings in South Korea, Peru, South Africa, the United States, and beyond, reconciliation initiatives stall. 12 Genuine social healing awaits. As eloquently recited by the National Survivors Network in its 2015 petition to the Kenyan National Assembly, the "lack of a framework for implementing the recommendations of the Truth, Justice and Reconciliation Commission" has "huge repercussions on the lives of hundreds of victims 8 Statement by Trustee Haunani Apoliona, Chairperson, Board of Trustees, Office of Hawaiian Affairs; Testimony offered to the Committee on Senate Indian Affairs, February 25, 2003; see also infra note 39 and accompanying text (describing partial United States and Native Hawaiian reconciliation efforts). 9 See, e.g., TRUTH & RECONCILIATION COMM'N OF CAN., http://www.trc.ca/websites/trcinstitutioniindex.php?p=3 (last visited July 15,2016); Hun Joon Kim, Truth Commissions in South Korea: Lessons Learned, MIDDLE EAST INST. (2013), http://www.mei.edulcontent/truth-commissions-south-korea-Iessons-Ieamed (describing South Korea's transitional justice measures since the democratic transition in 1987); see also infra Sections II & IV.B. • 10 See infra Section ILA (referencing various global reconciliation initiatives). II See infra Section ILA (describing an "Age of Reconciliation"). 12 See infra Section n.B (analyzing stalled global reconciliation initiatives). SEATTLE JOURNAL FOR SOCIAL JUSTICE theoretically-it draws from commonalities among several disciplines (particularly social psychology, political theory, economics, and human rights law).17 It is also pragmatic-it acknowledges practical redress experiences and the strategic significance of a convergence of interests and is attentive to words, actions, and realpolitik influences. IS And this approach to social healing engages individuals, communities, justice organizations, businesses, and governments in a dynamic process of recognition, responsibility, reconstruction, and reparation l9-the "Four Rs"-with the larger aim of fostering the kind of reparative justiCe that heals. 20
; as well as magazine articles. Bibliographic references are available in Ojiri's office. Esther ... more ; as well as magazine articles. Bibliographic references are available in Ojiri's office. Esther Arinaga prepared the final draft. Her sources included interviews with Patsy T. Mink, materials prepared for Representative Mink's various campaigns, local newspapers, law review articles, interviews with Democratic part colleagues, and numerous textbooks that discuss the implications of Mink v. E.P.A. Anne Russell's doctoral dissertation, "Patsy T. Mink: Political Woman" (University of Hawaii, 1977), provided an excellent description of Mink's early life but must be read with care, as there are a number of serious errors, especially with regard to names and events.
This chapter unravels the World War II majority and dissenting opinions in Korematsu v. United St... more This chapter unravels the World War II majority and dissenting opinions in Korematsu v. United States, describing the recited factual foundations of the Court’s ruling (along with the dissenters’ sharp counterpoints) and detailing the Court’s announced strict scrutiny standard alongside its actual extremely deferential judicial review. In closely examining the Japanese American internment (exclusion and incarceration) case, it concisely examines the documents and written and oral arguments about military necessity advanced by the government (and accepted by the Court majority), along with Justice Murphy’s factual rejoinders and condemnation of the majority’s complicity in the government’s descent into “the ugly abyss of racism.” It closes by examining Justice Jackson’s Korematsu “loaded weapon” warning, along with contemporary views of the warning’s relevance.
This chapter describes the Korematsu, Hirabayashi, and Yasui coram nobis reopenings of the World ... more This chapter describes the Korematsu, Hirabayashi, and Yasui coram nobis reopenings of the World War II curfew and exclusion cases. The mid-1980s coram nobis courts made startling findings of egregious unethical misconduct at the government’s highest levels in justifying the curfew, removal, and incarceration. A cache of previously hidden World War II government documents revealed frantic efforts by War and Justice Departments leaders to deliberately mislead the Supreme Court and American public and to alter and fabricate key evidence on national security. The chapter enfolds Acting U.S. Solicitor General Neal Katyal’s unprecedented 2012 “Confession of Error” acknowledging the World War II solicitor general’s deliberate and prejudicial misrepresentations to the Supreme Court. It closes by highlighting the outcome of pervasive government disinformation on security and court passivity: the judiciary’s legal validation of the political branches’ prolonged deprivation of a vulnerable group’s liberty on an unfounded claim of urgent need.
More than sixty years ago, as a young man, Fred Korematsu challenged the constitutionality of Pre... more More than sixty years ago, as a young man, Fred Korematsu challenged the constitutionality of President Franklin Roosevelt's 1942 Executive Order that authorized the internment of all persons of Japanese ancestry on the West Coast of the United States. He was convicted and sent to prison. In Korematsu v. United States,2 this Court upheld his conviction, explaining that because the United States was at war, the government could constitutionally intern Mr. Korematsu, without a hearing, and without any adjudicative determination that he had done anything wrong. More than half a century later, Fred Korematsu was awarded the Presidential Medal of Freedom, the nation's highest civilian honor, for his courage and persistence in opposing injustice. In accepting this award, Mr. Korematsu reminded the nation that, "We should be vigilant to make sure this will never happen again." He has committed himself to ensuring that Americans do not forget the lessons of their own history. Because Mr. Korematsu has a distinctive, indeed unique, perspective on the issues presented by this case, he submits this brief to assist the Court in its deliberations. SUMMARY OF ARGUMENT For approximately two years, Petitioners have been imprisoned incommunicado, without access to counsel and with no opportunity to contest in any forum the factual or legal basis for their confinement. Unlike Fred Korematsu, who, as a Japanese American internee, was at least permitted to challenge the constitutionality of his internment, Petitioners are being deprived of the most basic components of due process. The United States Government has defended these deprivations on the technical ground that federal courts lack reviewing jurisdiction because the Government has decided to incarcerate Petitioners on a military base over which it purports to disclaim "sovereignty." But the basis for that defense-the Government's voluntary decision to incarcerate Petitioners at Guantanamo Bay, thousands of miles from any battlefield-suggests a legal strategy, not a military one. Although certain aspects of the "war against terrorism" may be unprecedented, the challenges to constitutional liberties these cases present are 1. This brief is filed with the written consent of all parties. No counsel for any party authored this brief in whole or in part, nor did any party make a monetary contribution to the preparation or submission of this brief. The brief appears in substantially the same form as the version filed with the Supreme Court. 2. 323 U.S. 214 (1944).
descriptions that foreclose careful and continued scrutiny of actual behavior. 6 For these reason... more descriptions that foreclose careful and continued scrutiny of actual behavior. 6 For these reasons, overused labels such as liberal, conservative, or moderate obscure rather than illuminate 7 And, in our opinion, they are inadequate to describe Justice Ginsburg's dynamic approach to the complex issues of legal process.' This article sets aside the familiar political labels and engages in a deeper analysis of what Justice Ginsburg has done and said. What prompted Justice Ginsburg's reputation as a moderate may be, as a survey of her judicial opinions suggests, her willingness to accommodate a number of differing, sometimes contrasting concerns when crafting a judicial opinion. For 6 See MARTHA MINOW, MAKING ALLTHE DIFFERENCE 173-77 (1990), for a general survey
Clara L. Rev. 1 (1986) [hereinafter Yamamoto, Korematsu Revisited]. I was a member of the Koremat... more Clara L. Rev. 1 (1986) [hereinafter Yamamoto, Korematsu Revisited]. I was a member of the Korematsu legal team that litigated the coram nobis proceeding.
This Article is part of a larger project, entitled ReForming Civil Rights in Uncivil Times, that ... more This Article is part of a larger project, entitled ReForming Civil Rights in Uncivil Times, that will be published as a special 2001 issue of the UCLA Amerasia Journal, guest edited by Professors Horn and Yamamoto. The Article describes first the larger project, an interrogation of rights in the context of the U.S. civil rights legacy and the development of international human rights in the twentieth century. It then focuses critical discussion on two case studies, one current and one historical (Rice v. Cayetano and the Civil Rights Congress), and develops two theoretical and strategic aspects of the project: (1) an analysis of the dynamics of collective memory in framing present-day justice grievances and claims, and (2) a critique of the complex intersection of international and domestic rights discourse and practice.
Reviewed by Eric K. Yamamotot INTRODUCTION "I couldn't talk about it for over forty years. Not to... more Reviewed by Eric K. Yamamotot INTRODUCTION "I couldn't talk about it for over forty years. Not to my children. Not to friends. Not a word."l The sixty-year old woman, born and raised an American citizen, was speaking of the Japanese American internment: the U.S. government's World War II incarceration of 120,000 Americans of Japanese ancestry in desolate concentration camps without charges, trial or, as ultimately shown, evidence of group-based disloyalty or military necessity.2 The woman lost her home, family business, relatives and, most important of all, her dignity and freedom. Racial vilification followed her Copyright <£i 2001 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications.
national security necessity still stands-in future cases, they indicate, "We're going to defer." ... more national security necessity still stands-in future cases, they indicate, "We're going to defer." 16 The vituperative calls for mass exclusion and detention after the Paris and San Bernardino attacks and President Trump's ensuing Muslim exclusion and removal orders-against a backdrop of still pending post-9/11 civil liberties litigation by torture victims, religious communities, journalists and humanitarian groups 17-revivify Justice Jackson's warning. That warning and U.S. District Judge Marilyn Hall Patel's later Korematsu coram nobis call for judicial vigilance 18 remain hotly relevant. Could "it"a post-modern form of mass civil liberties violations-happen again? With the courts' stamp of approval? Consider a snapshot of recent events. In 2015, retired U.S. Army General Wesley Clark fueled the anti-Muslim fire of American politicians. The former Commander of the NATO Allied Forces and once Democratic presidential candidate called for placing into internment camps American Muslims who possessed "radicalized" views irrespective of actions. [T]hese people [radicalized Muslims] are. .. disloyal to the United States as a matter of principle, fine, that's their right.. .. It's our right and our obligation to segregate them from the normal community for the duration of the conflict. 19 After the 2015 Paris attacks, Tennessee General Assemblyperson Glen Casada channeled the World War II internment in calling for Syrian refugees' blanket segregation within, if not complete exclusion from, the state. The Republican Caucus Chair suggested National Guard mobilization to round up Syrian refugees. We need to activate the Tennessee National Guard and stop [Syrian refugees] from coming in to the state by whatever means we can. .. . I'm not worried about what a bureaucrat in D.C. or an unelected judge thinks.. .. We need to gather [them] up. .. . 20 16. Id.; see also Hassan v. City of New York, 804 F.3d 277, 307 (3d Cir. 2015) (describing the Korematsu majority's "unconditional deference" to the government's claim of military necessity);
This Essay explores "cultural performance" and legal process.) More particularly, the Essay speak... more This Essay explores "cultural performance" and legal process.) More particularly, the Essay speaks to legal advocates not about crafting doctrinal arguments but about some of the problems and possibilities of shifting the cultural frameworks of decisionmakers-frameworks that color how those decisionmakers understand hard evidence and social context in cases. In doing so, this Essay weaves a layered story of a pending United States Supreme Court case into an account of a multi-faceted Hawaiian hula dance performance, tying both to a developing LatCrit praxis. 2 We start with a story of indigenous Hawaiians. I. RICE V. CAYETANO At this wntmg, the Court is in the process of deciding Rice v. Cayetano,S probably the most important Hawaiian rights case ever. Rice puts at risk all of the federal and state Native Hawaiian programs designed to repair continuing harms to the Hawaiian * Professor of Law, William S. Richardson School of Law, University of Hawai'i Law School at Manoa. Copyright Eric. K. Yamamoto 1999. My thanks to Maile Shimabukuro for her research assistance and Brandon Kekoa Paredes for his contribution to the descriptions of the hula and the Kaho'olawe hula perfonnance. I
The journal explores, analyzes, and presents the history of law, the legal profession, and the co... more The journal explores, analyzes, and presents the history of law, the legal profession, and the courts-particularly the federal courts-in Alaska,
American and African American communities must actively seek and create agendas and issues that w... more American and African American communities must actively seek and create agendas and issues that will bond and strengthen both communities."); Ella UCLA ASIAN PACIFIC AMERICAN LAW JOURNAL understanding of differing group cultural behaviors 6-or on social structure-exploring ways in which dominant institutions construct racial conflict. 7 The search for common political-economic interests among racial groups and the focus on differing cultural behaviors and on Anglo American institutional power yields important insights. Those efforts, however, also constrain the field of inquiry; they tend to obscure a foundational component of groups "living peaceably and working politically together." That foundational component is interracial justice. Interracial justice, as I conceive it, reflects a commitment to anti-subordination among nonwhite racial groups.' It entails a hard acknowledgment of the ways in which racial groups have harmed and continue to harm one another, sometimes through forms of oppression, along with affirmative efforts to redress past harms with continuing effects. More specifically, interracial justice is comprised of two related dimensions. One dimen-Stewart, Communication Between African Americans and Korean Americans: Before and After the Los Angeles Riots, 19 AMERASA J. 23, 46 (1993) ("[S]earching for the one thread of commonality that can promote positive communication and good will among all people."); Armando Navarro, The South Central Los Angeles Eruption: A Latino Perspective, 19 AMEPRASIA J. 69, 83 (1993) ("Latinos must also participate in the formation of multiethnic/racial coalitions which are predicated on the inclusion of all groups and segments who share a common interest in the rebuilding of SCLA and Los Angeles."); Rodney E. Hero, Multiracial Coalitions in City Elections Involving Minority Candidates, 25 Uit. AFF. Q. 342, 349 (1989) (noting that some political observers assume that shared political concerns will bring blacks and Hispanics together as "likely allies in urban politics"). 6. See, e.g., Michael .C. Thornton & Robert J. Taylor, Intergroup Attitudes: Black American Perceptions of Asian Americans, 11 ETHNIC & RACIAL STUD. 474 (1988) (addressing 'escalating antipathy" between "blacks and Asian Americans" and suggesting "a better understanding of how these two populations [now] view each other"); S. M. Miller, Coalition Etiquette: Ground Rules For Building Unity, 14 Soc. PoL. 47 (1983) (suggesting codes of behavior to foster inter-group understanding to aid in coalition-building); Ken
Modified versions of these rules are pending before the Hawaii Supreme Court. The rules are recom... more Modified versions of these rules are pending before the Hawaii Supreme Court. The rules are recommended by the Judiciary's rules committee chaired by Judge Philip T. Chun. Professor Yamamoto served as counsel for the F.2d 633, 640 (9th Cir. 1980)). '* Id. at 111, 679 P.2d at 632.
2018 marked the 70th anniversary of the Jeju 4.3 “Grand Tragedy” and started, stalled and rejuven... more 2018 marked the 70th anniversary of the Jeju 4.3 “Grand Tragedy” and started, stalled and rejuvenated reconciliation efforts by the South Korea government and people. Even after a truth and reconciliation investigation and some legislative and executive actions, one question remains startlingly significant: how do the survivors, their families, Jeju Island and South Korea as a nation heal from the decades-old injuries that still ache in the present? This essay offers insights into an important potential next step towards Jeju 4.3 reconciliation. That is, comprehensive and enduring social healing through justice-healing for Jeju people who suffered from the 4.3 events, as well as for Korean society itself. One key justice piece of that social healing process – addressed in this essay – highlights the significance of formal apologies for those still suffering from the wrongful mass military tribunal convictions and executions and harsh imprisonment during 4.3 events, particularly for the eighteen survivors (and families) who recently reopened their convictions, seventy years later, in Jeju District Court and succeeded in impelling the court to vacate their convictions after retrial, clearing their names and those of all who had been wrongfully and horrifically incarcerated.
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