Korematsu v. US (1944)
Can the United States government , in time of war or national emergency, intern a group of Americans of a certain race or nationality, on the basis that it poses a threat to national security? This is exactly what happened to Japanese Americans living on the West Coast of the United States. President Franklin Roosevelt, on February 19, 1942, shortly after the Japanese bombed Pearl Harbor, Hawaii, issued Executive Order 9066, giving the army the authority to condemn Japanese Americans (120,000 of them) to internment camps. The most famous of these camps was Manzanar, in the California desert. Japanese Americans (remember, these were American citizens, the vast majority not charged with any crimes, who had lived peacefully among their neighbors) were forced to sell their property at low prices and were displaced into totally alien, stark places, with barbed wire. Effectively, they were concentration camps in all but name.
Fred Korematsu (pictured above), a Japanese American man, evaded the Army order to go to an internment camp because he refused to be separated from his non-Japanese girlfriend. He had not committed any crime. He was eventually arrested. He hired an ACLU lawyer to appeal his case, which eventually wound up in the Supreme Court. By a 6-3 decision, the Court sided with the government. This is an excerpt from the majority decision, written by Justice Hugo Black:
Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified.
In other words, because we are at war, if the military decides that a certain group needs to be interned, that's enough. It doesn't matter if most of the group members are law-abiding citizens. Not having committed a crime is not a defense.
The Court was split, 6-3. Here is an excerpt from a dissenting Justice, Mr. Murphy:
This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism.
The story doesn't end here. In the 1980s, a lawyer, Peter Irons, came across evidence that Charles Fahy, the Solicitor-General of the United States, had deliberately fabricated reports from the FBI that Japanese Americans posed no security risk to the United States. In 1983, Irons filed a suit to overturn Korematsu's conviction, which the judge approved.
In 1988, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom.
In his later years, Mr. Korematsu was an active advocate in cases where he saw other groups being persecuted in similar ways to the Japanese Americans. He filed a friend of the court brief on behalf of Mr. Padilla, one of the Guantanamo detainees. He also spoke out against discrimination against Arab Americans.
Could this happen today? The legal framework, amazingly, is still in place. The law that FDR used dates back to John Adams. It is the Alien Enemy Act of 1798, one of the Alien and Sedition Acts passed when the fear was war with France.