America's Concentration Camps

              Japanese-American
court. The evidence used to justify the
evacuation was, he wrote, largely an accumulation of much of the misinformation, half-truths and insinuations that for
^yearsjiave been directed against Japanese-Americans hv neonle with racial and
economic prejudices —the same people
who have been among the foremost advocates of the evacuation."
Despite the eloquent dissents, Korematsu stood. But it was clearly an unusual
decision. According to Jesse Choper, dean
of the University of California's Boalt
Hall and a constitutional expert, "Since
the Wartime Cases, the court has never
upheld racial discrimination." In the
years since Korematsu, the court developed the doctrine of "strict scrutiny" in
dealing with racial classifications, under
which the state must show a compelling
interest to act against a racial minority.
Reopening the Wartime Cases
As Peter Irons completed his research
for his appearance before the commission, he realized that he had enough information to reopen the Wartime Cases.
Not only were Yasui, Hirabayashi and
Korematsu all alive, but each was anxious to have his conviction vacated. In
1981, Irons began contacting Japanese-
American attorneys who might be interested in working on the cases, a large
number of whom were associated with
the Oakland-based Asian Law Caucus. A
fund-raising group, the Committee to
Reverse the Japanese Wartime Cases,
was formed to help finance the work.
The result was the filing this past January of a Ipnpthy petition Tor a writ of error coram nobis. According to Boalt Hall
professor Paul Mishkin, a specialist in
constitutional law, coram nobis is an old
common law writ that has not been used
much in the past 30 years. Nonetheless,
he says, it serves as "an excellent vehicle"
for presenting new evidence in old cases,
irons says that coram nobis is "limited to
cases where appeals are exhausted and
the sentence served; you cannot relitigate
the case."
The Korematsu petition alleges "numerous and related acts of governmental
misconduct" resulting in "manifest injustice." The petition charges that the de-
PfirtmpnK ^rJjTstice and war alteredT des-^
troved and suppressed evidence such as
Ringle's report exonerating the Japanese
community. Evidence for these charges
comes from the FOIA documents obtained by Irons. One particularly illuminating memo quoted in the petition was
sent by John L. Burling of the Justice De-
partment's Alien and Enemy Control
Unit to Assistant Attorney General Her
bert Wechsler, on September 11, 1944. It
states:
You will recall that General De
Witt's report makps fl^TstaTements ,
concerning radio transmitters and
ship-to-shore signalling_which are
TaTegorically deniecTby the FBI and.
JHejederal Communications Corn^
' mission. There is no doubt that
These statements areintentionaL
Sseh^QdsH^ . .
THe~petition also charges that thegov^.
ernment abused the doctrine of ludicial
notice in the Korematsu case., and in doing
so^4perpetrated a fraud upon the courts."
Judicial notice is the act by which a court
recognizes the existence of facts and propositions that are not reasonably subject to
dispute and that may be immediately and
accurately determined by reference to
sources of reasonably indisputable accuracy. In the Wartime Cases, judicial notice
was unaccountably extended to such evidence as De Witt's assertions of Japanese-
American disloyalty.
Japanese-Americans
received $40 million
in reparations at
a rate of 10 cents
on the 1942 dollar.
As the petition notes: "The government
sought judicial notice of'evidence' that allegedly proved the disloyalty of Japanese-
Americans and their consequent predisposition to commit acts of espionage and
sabotage. However, government officials
had knowledge of contrary evidence on
each of these issues." According to the petition, Nanette Dembitz, a member of the
Justice Department's alien unit, noted in a
memo dated August 11, 1942, that the
factSDjffifipted iqjhe cases were not appropriate f^r j^di^ial notice.
The Justice Department currently is remaining officially silent about the three petitions. According to Victor Stone, the
department's special counsel, the government cannot comment on the case. Privately, Justice Department officials say
they consider the petition for a writ of error coram nobis "a very peculiar pleading" and take pains to refute the petitioners' claims. "No one doubts that the
decision to relocate the IapnneslTwa~s
probably wrong in retrospect. They
shouldn't have Hone it hut ibm dpesn t
mean it was a manifest injustice." says one
official.
In its final report issued in mid-June,
however, the Commission on the Wartime
Relocation and Internment of Civilians
recommended that Congress adopt a resolution formally apologizing to those in
terned for the "grave injustice" they had
suffered. The commission concluded that
there was no justification for the intern-
ment, citing war hysteria, racial hatrecT
"and a faihire of political leadership as ifa
raoises. lne commission also recommended1, among other things, that persons
convicted of violating a curfew or refusing
to report for relocation receive a presidential pardon.
Congressional action on the commission's recommendations is likely to take
several years, however. In addition ^MeaiL.
granted, a pardon would not satisfy Korematsu's original goal of having his conviction vacated. According to Minami, Korematsu, Yasui and Hirabayashi will probably pursue their current actions.
Whatever the disposition of their cases
by the courts, the Japanese-American
community feels it was victimized. For 40
years, the internees have tried to forget
their wartime experiences. But many have
not been able to close that chapter of their
lives. Perhaps one reason is that th&_£ctY:-
ernment never adequately compensated
^the jnternees for theTFmaterial losses. Acf
cording to Michi Weglyn, aufnor'of a
comprehensive^study of the evacuation,
Years of Infamy (William Morrow, 1976),
the Japanese-American community lost
$400 million as a result of the evacuation. I
The Evacuation Claims Act of 1948 stipu- 1
latedlhat tosses would be settled at 1942 \
prices, minus a 10-percent lawyer's fee.
Japanese-Americans cautiously filed $132  |
million in claims but ultimately received   I
less than $40 million, or 10 cents on the
1942dollar. ^J
In its final report, the wartime relocation commission recommended that the
government pay $20.000 to each of the approximately 60,000 surviving internees. A
study conducted for the commission' estimated the economic losses of the internees
TSbiias high as $6.2 billion in 1983 dollars^
with inflation and interest added.,
^ UlS-isjiir of financial rcpnration! however, is a separate one from the issue of vacating a criminal conviction. And al-
fliough some may view the reopening of a
40-year-old case as a quixotic venture, the
Japanese-American attorneys working on
the case think otherwise. "One of the
main reasons we took Korematsu," says
Dennis 11 ay as hi of the Asian Law Caucus,
"is the issue of present civil rights, not
merely the vacating nf old wrongs^ We
don'twant this decision to remain on the
books."
Regardless of what the courts decide
about the Wartime Cases, at least one Japanese-American feels a small sense of triumph. "I had always wanted to fight it
somehow," says Fred Korematsu, "but I
never had the means. I think this is
great." □
August 1981
3!