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MC: Do you think that the Supreme Court decision in Korematsu v. United States is still a threat to our civil liberties, even today?

LB: I do think it is. Certainly, as I said, given the coram nobis case, it should be read knowing that the factual underpinnings of the case have been found to be fraudulent. Yet the case still is on the books for a few very dangerous propositions. One proposition that Korematsu can be read to support is that the military does have authority over civilians during time of national crisis. Certainly it is not the only relevant authority that exists out there. There are other cases that do say that military power over civilians must be seriously scrutinized and curtailed, and that the Constitution is the ultimate authority, even in time of crisis. But Korematsu still stands for that very dangerous proposition that the military can exercise control over civilians, number one. Number two, it stands for certainly the dangerous precedent that civilian authorities can just delegate outright to the military the authority to take whatever acts it deems necessary, and that civilian authorities, the President, Congress, whatever, (can) totally give up their Constitutional authority to protect the citizenry. The other proposition it still stands for is, and probably the most dangerous one as far as I'm concerned, is that the courts can absolutely relieve themselves of any responsibility for making sure the Constitution protects us as civilians. In Korematsu, if you read the opinion, the court basically said that the military thought that there was military necessity, and it is not for us to question the wisdom of that military judgment because the military's the wisest authority during time of war. And there was tremendous, if not total, deference to General DeWitt's opinion that it was necessary to intern Japanese Americans. We rely on our court system to come in and say it's okay for the government to do this and it's not okay for them to do that, and not to wholesale just agree with the government's actions just because the government thought it was right to do at the time.

So I think that Korematsu can be read to support some of these various propositions. Now, many people would say it can't be read to support those points any longer. But I come back to my ultimate belief, which is that these case opinions and statutes are merely pieces of paper, and that if the will of the people is to do something like this, if mass hysteria erupts and people want a scapegoat, a particular ethnic group, racial group, a particular group because of their physical disabilities or whatever, it will happen, and that decisions like Korematsu can be there to help support that hysteria. So I suppose my ultimate opinion is that it kind of doesn't matter what Korematsu still stands for today, if the will of the people and their legislators desire to single out a particular group for differential treatment.

<End Segment 36> - Copyright © 2000 Densho. All Rights Reserved.