<Begin Segment 25>

MC: Before we get into the, the nuts and bolts of the case that you worked on, which was a case challenging Fred Korematsu's conviction in the '40s, it might be useful to kind of talk about the original Korematsu v. United States case and what he was actually convicted of.

LB: Uh-huh. Do you want me to keep to it to Fred's case?

MC: Sure.

LB: Okay. As you know, during World War II, there were a number of different orders issued against Japanese Americans. By authority of the President, the military was empowered to issue orders against the Japanese American community, to control the Japanese American community on the West Coast. There were several different orders that were issued. One was first, initially, a curfew order, then an order excluding Japanese Americans from the West Coast, followed by an order requiring Japanese Americans to report for detention. Most Japanese Americans complied with these orders.

Fred Korematsu, who was living in San Leandro at the time, refused to comply with those orders. When he was ordered to evacuate, he refused to go, and he stayed in the San Leandro area, and was subsequently arrested. He was convicted in the trial court level. He was convicted of violating the exclusion order, and his case went all the way up to the U.S. Supreme Court, which held that the exclusion order was constitutional, that the government had the power to impose a curfew, to order the exclusion of Japanese Americans because of quote "military necessity." Military necessity existed because we were at war with Japan, and so it was valid and constitutional for the government to order Japanese Americans removed from the West Coast. That was in 1944 that the U.S. Supreme Court upheld Mr. Korematsu's conviction, and that decision remained on the books up until the point in time that we brought our coram nobis actions.

MC: Now, there are at least two points about that original Korematsu v. United States case that are important, one of which is that the evidence that all the courts, including the Supreme Court, relied upon at the time was very, very minimal, even if you don't include the suppression issue, that there was just very minimal evidence that the Japanese American population actually constituted a, a danger to the national security of the United States. And the second point is that this was the first time in U.S. Constitutional history that a group, a law affected a group to the point that they would, they were in fact detained without individual hearing. And in our Constitutional system, as you know, due process requires in most cases an individual hearing before someone is detained, and so there are at least two things about the original decisions, even when they were decided, that seemed to be quite problematic.

LB: Uh-huh.

MC: So what was -- what was new? What, what persuaded Peter Irons and your team to attack those convictions in addition to those two things that I've already discussed?

LB: Uh-huh. The original, the United States Supreme Court's decision in Korematsu, again, was based on a finding that there was military necessity for the exclusion of Japanese Americans from the West Coast. And the government in that case had argued, and the Supreme Court agreed, that the situation was dire, that it was an imminent necessity, that there was no time to separate the loyal from the disloyal, to allow hearings. The Japanese Americans had to be removed from the West Coast right away to avoid any danger of sabotage or espionage. The documents that Peter Irons found and subsequent documents that were developed during the case and found by Aiko Yoshinaga Herzig and Jack Herzig proved quite conclusively that in fact the government's argument before the Supreme Court was based on intentional falsehood. The government had in its own possession intelligence reports from the FBI, from the Office of Naval Intelligence, from the FCC, that they had studied the Japanese American situation and did not feel that there was a grave threat or that mass internment was advisable. They disproved allegations of espionage and sabotage that had been put forth by General DeWitt, who was the commanding officer on the Western Defense Command. So the government had in its possession these intelligence reports that undermined the whole military necessity argument, and chose not to reveal those documents to the court. And in fact, one of the U.S. attorneys representing the government in the arguments wrote to his superior, and said, "If we don't tell the Supreme Court about these reports, it will be tantamount to suppression of evidence." And he was overruled, and those documents and intelligence reports were never given to the court. He tried to insert a footnote into the United States Government's brief disclaiming some reliance on General DeWitt's report, and that footnote was ordered deleted from the government's brief.

On top of that, one of the main documents that the Supreme Court relied on was General Dewitt's final report on the evacuation of the Japanese Americans from the West Coast. In that report, the Court found the statement, and relied on the statement, that there was insufficient time to separate the loyal from the disloyal. Unbeknownst to the Court, there was actually a prior version of that final report, and that prior version suggested that it didn't matter how much time they had, that they would have still removed the Japanese Americans from the West Coast because no matter how long you took, you could never figure out the loyal Japanese Americans from the disloyal. So time was not an issue, as the government had argued to the Supreme Court. That original version of the report that said time was not an issue was ordered destroyed and copies burned. Fortunately, a functionary within the army saved what didn't burn, one copy, and saved a copy of a document saying that he had burned the other copies. So what was before the Court was a revised version of the report that supported the government's position and the other report that contradicted the government's position was ordered destroyed. And Peter Irons and Aiko Yoshinaga were able to find the original copy of the report which seriously undermined the government's position, and all of that aided in our argument that the government had suppressed, altered, and destroyed material evidence before the Court.

MC: So there was new and quite powerful evidence...

LB: Uh-huh.

MC: ...that the government had doctored the, the evidence at the original criminal trial.

LB: Right. The government -- these new documents showed quite conclusively that the government had engineered the result that they wanted from the U.S. Supreme Court. And Peter certainly recognized that they could certainly provide a basis for reopening the Korematsu, Hirabayashi, and Yasui cases these many years later.

MC: At that point in time, was the evidence of the misrepresentation before the Supreme Court during the oral arguments by the Solicitor General, had that been discovered at that point in time; do you remember?

LB: No. I think that that might have been something that was developed later, but I'm not sure.

MC: Okay. Good.

<End Segment 25> - Copyright © 2000 Densho. All Rights Reserved.