<Begin Segment 18>

LB: So one of the things that's often asked is, is Korematsu v. United States still good law, and what effect did the coram nobis cases have on that?

EY: That is a question that's asked a lot, and it's a very important question. As a technical, narrow, jurisprudential method, the Korematsu case from World War II still is good law, because it's never been formally overruled by the U.S. Supreme Court. And several of the United States Supreme Court opinions recently have acknowledged that. But because of the coram nobis cases, the entire factual underpinnings for the Korematsu 1944 ruling have been undercut. Equally important, by showing the prosecutorial misconduct, and also showing the destruction of the crucial evidence showing no military necessity, those two things in combination, there's a real strong, clear sense now that even though the Supreme Court opinion hasn't, decision hasn't been overruled, that it was legally wrong. And that's huge. And so not that, just that it was a mistake but they did the right thing or they followed the law, but that it was actually legally wrong even at the time. And what it showed is that even though the Court in 1944 in the Korematsu case said it was gonna exercise strict scrutiny of the facts and the government's justification for the internment, that it in fact failed to do so. That, in fact, if the Court had exercised strict scrutiny, it would have discovered the underlying fabrication, the suppression of evidence and destruction of key evidence. It would have discovered all the government's lies about military necessity, and therefore the Court would have invalidated the internment. So what's happened is that the Supreme Court itself has now repudiated but not formerly overruled the Korematsu World War II decision. And that's very significant in many ways.

But what the Court has done -- at least some Justices have done -- is they don't refer to Korematsu anymore, but they still replicate the argument that was essentially adopted by the U.S. Supreme Court in the original Korematsu case. That the court should take a hands-off role in reviewing the President's national security decisions. And so in important respects, the bad part of the Korematsu decision, that ultimately the Court should back off from reviewing government military necessity, national security restrictions of civil liberties, that part of the decision is still being replicated by some Justices and some lower court judges. But the good thing is that we have what actually happened in the Korematsu case, and why it was actually wrong, we have that to work with now as a way to challenge what those current Justices and judges are arguing in terms of judicial deference.

And one of the key pieces to that counterargument is Fred Korematsu's amicus brief in the Hamdi and the Rasul cases. And the Rasul case in particular was important. Hamdi was an individual American citizen who had been picked up in the theater of war in Afghanistan and was held as an "enemy combatant." The Rasul case was the case for the so-called "enemy combatants" being held en masse in Guantanamo Bay and deprived of a hearing, charges, access to attorneys, let alone families. And it turns out many of them were picked up for no good reason other than they were Arab ancestry or Muslim. And so Fred's amicus brief -- and Dale and I were two of the co-authors of that amicus brief in the Rasul case -- said, "Look at the history of scapegoating during times of national distress." And then it said, "Look at my case, and look at the scapegoating and look at the false national security justifications, look at the abuse of government power for popular reasons. And courts, you should know this happens over and over, and that's why it's your job to exercise strict scrutiny over the government's actions." And ultimately, to reject this call that, "Oh, the Court should step away and just defer." And in fact, the jurisprudence that's emerging now, although unevenly, but emerging out of the U.S. Supreme Court, is yes indeed, the courts have a special duty as a third branch of government, and it's overseeing the political branches of government to protect the Constitution, to protect the Constitutional rights of all people, and to assure the government doesn't scapegoat under the false mantle of national security. So Fred's voice and his case are being heard. And Fred's voice and his coram nobis case and Gordon's coram nobis case and Min's coram nobis case litigation together really, I think, are having an impact in how law is developing around national security, civil liberties, and around how our government can and will treat Americans.

<End Segment 18> - Copyright © 2009 Densho. All Rights Reserved.