Stop Repeating History: Responding to the Muslim Ban

November 7, 2017 - On September 18, 2017, the children of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu filed an amicus brief to the U.S. Supreme Court opposing the Trump Administration’s second travel ban, which barred from entry nationals from six Muslim-majority countries. In conjunction with the amicus filing, Hirabayashi, Yasui, Korematsu, and their legal team launched a viral messaging campaign, StopRepeatingHistory.Org, dedicated to educating the public about the dangers of unbridled Presidential overreach with little or no judicial checks and balances. “Stop Repeating History” uses Japanese American incarceration as the example of the damage to fundamental freedoms that can occur when the courts abandon their duty to hold the Executive Branch to the requirements of the Constitution.  

The Minami Tamaki LLP law firm played a critical role in reconvening the Hirabayashi, Yasui, and Korematsu legal team and developing the “Stop Repeating History” campaign. Throughout its 40-year history, Minami Tamaki LLP has championed civil rights. Its newly formed charitable organization, the Minami Tamaki Yamauchi Kwok & Lee (MTYKL) Foundation, leverages the firm’s resources to support legal and social advocacy nonprofits. Outraged by the anti-immigrant rhetoric that characterized the 2016 presidential election cycle, the MTYKL Foundation created its Immigrant Rights Initiative, awarding a total of $100,000 to nonprofits dedicated to protecting immigrant and refugee communities. Following the election of President Trump, the Foundation doubled its giving to $200,000. CGRS has been honored to receive the MTYKL Foundation’s support, which has enabled us to bolster our efforts to defend the right to asylum in jurisdictions that are particularly hostile to asylum seekers. We are also proud to have as a friend and ally MTYKL Foundation co-founder Minette Kwok, who has long served as an integral member of our Advisory Board.

The following piece, authored by Minami Tamaki LLP partner and MTYKL Foundation co-founder Don Tamaki, calls on us all to reject the shameful legacy of Japanese American incarceration and hold our courts accountable to their constitutional duties.

Stop Repeating History

Guest Author: Don Tamaki

On January 27, 2017, President Trump signed the first of thrice-revised executive orders banning travel of people from Muslim-majority nations. Travelers having nothing to do with terrorism were detained.  U.S. residents were stranded abroad and separated from their families. Thousands of validly issued visas were immediately canceled. Hundreds with such visas were prevented from boarding planes or denied entry on arrival, including refugees running for their lives from terrorism who had already undergone a stringent 18-month vetting process. Chaos at the nation’s airports reigned. Court challenges followed, arguing that these orders were not truly meant to protect against terror attacks, but rather was the “Muslim Ban” that the President had promised during his run for the Presidency. In defending these orders, the government claims that national security requires that the Judicial Branch bow to the will of the Executive Branch, giving it near-absolute deference with respect to the President’s authority to deny visas and suspend the entry of refugees.

Echoes of President Roosevelt’s issuance of Executive Order 9066: in 1942 the Army reported that Japanese Americans were engaging in espionage and sabotage, and pursuant to EO 9066 and acts of Congress, Lt. General John L. DeWitt ordered their removal en masse. Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui challenged these orders. The government defended the incarceration of almost 120,000 Japanese Americans, 70,000 of whom were American citizens, by arguing that national security demanded that the Supreme Court stand down and defer to the decisions of the Executive Branch. To its everlasting shame, the Court failed to scrutinize whether the Army’s claims had any basis in fact, accepted without question the government’s contention that the incarceration was a “military necessity,” and ruled against these litigants. However, the utter lack of evidence to support the mass round-up troubled dissenting Justice Robert Jackson enough that he wrote “[h]ow does the Court know that these orders have a reasonable basis in necessity? No evidence whatever has been taken by this or any other court. There is a sharp controversy as to the credibility of the DeWitt Report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by cross-examination, that what he did was reasonable.”   

40 years later, in 1983, Justice Jackson’s worries were validated. Petitions for writ of error coram nobis were filed in the Federal Courts on behalf of Korematsu, Hirabayashi, and Yasui based on the discovery of secret Justice Department, FBI, FCC, Navy, and Army intelligence reports and memoranda, categorically denying Japanese Americans had committed any wrong, and admitting that there was no reason to lock them up. Justice Department lawyers responsible for defending the government at the time characterized the Army’s claims as “intentional falsehoods,” and unsuccessfully urged Solicitor General Charles Fahy disclose to the Court these intelligence reports, stating that to withhold their contents “would approximate the suppression of evidence.” Indeed, despite the protestations of Justice Department lawyers, the evidence was suppressed in order to manipulate the outcome of these landmark decisions. In 2011, in an extraordinary “confession of error,” the Acting Solicitor General acknowledged the government’s role in the miscarriage of justice found by the coram nobis courts, and admitted that the government had known that its own intelligence “undermined the rationale” behind the mass removal and incarceration program.

Today, the children of Korematsu, Hirabayashi, and Yasui have joined together to remind the public that during WWII when the Court abdicated its constitutional duty to be a check and balance on the Executive Branch by failing to ask probing questions, it was a civil liberties disaster, causing great damage to the Constitution and the Rule of Law. As Justice Jackson presciently wrote, “…the principle lies around like a loaded weapon, ready for the hand of any authority who can bring forward a claim of an urgent need.” Furthermore, when the Court stops asking questions and “looks the other way,” it inadvertently invites Executive overreach and government misconduct, as was the case in 1943-44.    

On September 24, 2017, within days of oral argument to be heard on the President’s second Executive Order (“EO-2”) which had amended his first Executive Order imposing the ban (“EO-1”), he issued a third version of the ban (“EO-3”). In response, on October 10, the Supreme Court sent one of the pending cases challenging EO-2 (Trump v. IRAP) back to the 4th Circuit Court of Appeals with instructions to dismiss the case as moot because the relevant provisions of EO-2 expired on September 24.  Similarly, on October 24, the Supreme Court sent the other challenge to EO-2 (Trump v. Hawaii) back to the Ninth Circuit Court of Appeals with instructions to also dismiss that case as moot because the relevant provisions of EO-2 (the 120-day suspension of the refugee program) expired on October 24. While the Court’s actions in both appeals have no bearing on the merits, the result is that the Fourth Circuit and Ninth Circuit appellate decisions blocking the Travel Ban have been vacated, eliminating their precedential value. Justice Sotomayor dissented, taking the position that the writ of certiorari should have been dismissed as “improvidently granted” which would have preserved the judgments of the Courts of Appeal instead of vacating them.

In the meantime, new actions were filed to enjoin EO-3. On October 17, Federal District Court Judges Derrick Watson in Hawaii and Theodore Chuang in Maryland issued nation-wide orders blocking EO-3.  Judge Watson ruled that significant portions of EO-3 discriminate against individuals based on national origin in violation of the Immigration and Naturalization Act, rejecting the President’s claims that his orders are not subject to judicial review, and holding that the President has made “no finding that nationality alone renders entry of this broad class of individuals a heightened security risk…” or that “…tie[s] these nationals in any way to terrorist organizations…” Judge Chuang found that the order was unconstitutional as it discriminates on the basis of religion against “…those individuals who have a credible claim of a bona fide relationship with a person or entity in the United States,” citing the President’s Twitter feeds and public statements proclaiming his campaign promise of a “total and complete shutdown of Muslims entering the United States…” On October 20, 2017, the government filed an appeal in the Fourth Circuit challenging Judge Chuang’s order, and on October 24, 2017, the government filed an appeal with the Ninth Circuit to contest Judge Watson’s order. It is widely believed that these cases will again be consolidated and end up before the Supreme Court. If so, oral argument could be heard as early as the Spring of 2018.

Whatever happens in the courts, we have launched the educational campaign, StopRepeatingHistory.org, to promote awareness of the dangers of unbridled presidential overreach with little or no judicial checks and balances, using the Japanese American incarceration as the example of the damage to fundamental freedoms that can occur when the courts abandon their duty to hold the Executive Branch to the requirements of the Constitution. 

Recent press coverage includes the USA Today feature story: https://www.usatoday.com/story/news/politics/2017/10/10/children-japanese-american-legal-pioneers-world-war-ii-fight-travel-ban/740910001/

The “Call to Action” from Karen Korematsu, Holly Yasui, and Jay Hirabayashi, along with the amicus brief we filed on their behalf, can be found at https://stoprepeatinghistory.org.

Our social media posts:
https://www.facebook.com/stoprepeatinghistory
https://twitter.com/JAincarceration

We invite you to join us in this campaign.

Don Tamaki is a partner at Minami Tamaki LLP and a member of the Coram Nobis Legal Team which in 1983, represented Fred Korematsu to reopen his landmark case, vacating his criminal conviction for refusing to obey orders leading to the incarceration of Americans of Japanese ancestry.