Wednesday Open Thread: It's Fred Korematsu Day (California, Florida, Hawaii, Virginia)

It's Day 30 of the Year 2019 CE, meaning that it's January 30, 2019


Public Domain: WWII: Poston, Arizona Relocation Camp for Japanese-Americans by Hikaru Iwasaki, 1945 (NARA)



Fred Korematsu was a US citizen who refused to obey the WWII order requiring all persons of Japanese descent in California, Oregon and Washington to report to relocation centers from whence they were to be shipped off to concentration camps. He quite correctly felt that this deprived him of his right to a trial on the question of the adequacy of his loyalty and was equivalent to imprisonment without a trial. He was arrested and convicted in District Court of violating the law implementing the order and sent off to a camp. He was eventually able to appeal to the Ninth Circuit which upheld his conviction, and then to the Supreme Court, which did likewise.

In Korematsu v. United States, 323 U.S. 214, Justice Black, writing for the 6-3 majority pretty much lied in saying that Mr. Korematsu was not subjected to the exclusion order because "of hostility to him or his race", but because the military authorities felt it necessary and proper and we had to trust them in time of war. (There was hostility to the Japanese, but beyond that they were clearly singled out based on their race, insofar as nothing similar was perpetrated upon Germans and Italians in the Eastern US.) Justice Frankfurter, concurring, spewed something along the lines of "The war powers are part of the Constitution and hence cant' be unconstitutional, so we are bound to defer to the judgement and decisions of the military authorities". Justice Murphy, dissenting, called the order racism and deemed the majority's decision to be no less than the enshrinement of racism in the Constitution. Justice Robert Jackson's dissent did not use the word racism, but made it clear that this was very much a racist order and insinuated that it was tantamount to a retroactive bill of attainder. Justice Owen Roberts' dissent was milder in language, but made it clear that the order and law was all about Mr. Korematsu's ancestry and nothing else, which, to me, again raises the taint of some twisted ex post facto bill of attainder.

Of course, the Justice Department had lied and concealed evidence, as it so often does. When this came to light, Mr. Korematsu petitioned to have the case overturned as being so flawed as to constitute a travesty of justice that should not be allowed to stand. The government made a counter submission in which it admitted no errors but nonetheless requested that the decision be vacated without any findings of facts as to its merits. Judge Marilyn Hall Patel instead ruled that the Supreme Court had been fed a ration of shit which was sufficient grounds to overturn Korematsu's conviction. Unfortunately, she further ruled that because the reversal was based on prosecutorial misconduct, there was no error of law and any legal precedents established by the case would remain in force.

Recently, in Trump v Hawaii, Chief Justice Roberts, writing for the majority, noted obiter dictum, that Jackson's dissent in Korematsu was on the money and that Korematsu ws wrongly decided and bad law. Unfortunately, dicta have no precedential value. In dissenting from the majority decision in Trump v Hawaii, Justice Sotomayor took note of that dictum but said that the Trump decision used the same logic and reasoning as the Korematsu case used and merely replaced one horrible decision with another.

Beyond his own cases and challenges, Fred Koremstsu was a lifelong civil right activist. On September 23, 2010, Schwarzenegger legally designated January 30 of each year as the Fred Korematsu Day of Civil Liberties and the Constitution,. The main initial public celebration was held in UC Berkeley's Wheeler Auditorium. Since 2010, several other states have joined California in celebrating Mr. Korematsu.

So Fred Korematsu is a local hero and his conviction has been overturned. There are some schools and a street named after him, there have been awards in his name and in 2011 the Justice Department finally apologized and admitted to its wrongdoing in one of those "we did a bad thing, but we're past that and we'll be good going forward." types of speeches. The Korematsu Institute will carry on in his name. The Justice Department and the Supreme Court also have a legacy, a horrible one. Korematsu v US is still on the books and Justice Roberts' feel good obiter dictum cannot change the fact that it is still a legal precedent, just waiting to be used the next time the court decides that it wishes to arrive at a conclusion that Korematsu v US will support. We can be relatively sure that this will more likely than not happen and that the decision will be an odious one. The logic and language in Korematsu support a form of police statism, wherein nobody has any real rights in time of war, crises, or emergency other than to obey and do as they are told. This will apply equally to a war of national defence and a volitional, imperialistic endless war for profit, and even to a security state or police state triggered by the putative existential threat embodied in the phantom evil of the week. The courts have seriously chewed up and spit out the Bill of Rights and we really need to find a way to seize them back.

Image is: WWII: Poston, Arizona Relocation Camp for Japanese-Americans by Hikaru Iwasaki, 1945 (NARA) Public Domain

Its an open thread so have at it. The floor is yours
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detroitmechworks's picture

My sleep schedule has been screwed up for about 6 months now, and I'm trying to get somewhat back to a regular rhythm. On the plus side I do tend to write well early in the morning, so hopefully that keeps being a thing. Smile

These days I've realized that I'm not going to make everybody happy, and if I take stances, I will make people angry. I didn't used to be strong enough to accept that. I used to believe that it was possible to make everybody happy. That of course is the position of the Democratic Party, which believes that if we all sing fucking Kuhmbaya and fill our meaningless consumer driven lives with the proper representation, we will all get to the land of milk, honey and consumer goods.

[video:https://www.youtube.com/watch?v=sT0g16_LQaQ]

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I do not pretend I know what I do not know.

enhydra lutris's picture

@detroitmechworks
is good, so I guess that there's that. Have the best day you can.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

be motivated by:

1. Personal politics of each Justice; and

2. Reducing the number/kinds of cases that can come before the federal judiciary. IF Chief Justice Marshall can correctly be criticized for grabbing power for the federal judiciary when the nation was young, then later Justices can be criticized for their reluctance to exercise their power.

And, as we have seen from the FISA courts created by a Democratic Congress under President Carter, federal judges are highly unlikely to take it upon themselves to contradict the Executive or Congress when it comes to what does or does not constitute a matter of national security, especially if the nation is at war at the time (and when has the US not been at war lately?).

Readers, please note two things:

A. The emphasis on IF in number 1, above.

B. That I am not saying any of the above is correct or desirable or, for that matter, incorrect or undesirable--or, more significantly, constitutional or unconstitutional.

C. A federal court's deciding that something does not violate the Constitution does not, of course, mean it must be done. Elected officials still could have ended internment.

D. Germans and Italians were also interned, though in far, far fewer numbers than Japanese.

E. In my personal opinion, which has zero relevance, all the internments violated the due process clause of the Fifth Amendment.

Side note: The person responsible for carrying out FDR's internment orders as to Californians--from where the majority of interned Japanese were snatched--was California's Attorney General. That office was then held by one Earl Warren, who went on to be a Republican Vice Presidential candidate and one of the most liberal justices even to sit on the bench of the Supreme Court. And then, to head the Warren Commission, at the behest of LBJ, who apparently convinced Warren that his duty to his country required him to head the Commission.

When asked what decision of his he regretted most in his eight years as President, Eisenhower cited nominating Warren, who was Chief Justice when the Court decided Brown v. Board of Education .* According to Warren's autobiography, at a Republican fundraiser, Eisenhower remarked to Warren something like, "See, Earl? These are not bad people. They just don't want their little girls sitting next to some big gorilla." Or very similar words. (I read that excerpt on the internet years ago, but have not been able to find it again recently. I should probably buy the autobiography second-hand and check for that quote for myself.)

*But see this footnote to Warren's wiki article: Eisenhower biographer Jean Edward Smith concluded in 2012 that "Eisenhower never said that. I have no evidence that he ever made such a statement."[100] Nonetheless, Eisenhower privately expressed his displeasure regarding some of Warren's decisions, while Warren grew frustrated at Eisenhower's unwillingness to publicly support the Court's holding in Brown v. Board of Education. In 1961, when Eisenhower was asked whether he had made any major mistakes as president, the former president responded "yes, two, and they are both sitting on the Supreme Court."

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enhydra lutris's picture

@HenryAWallace on their beliefs, ideology and religion, and then find precedents and arguments to justify the decision thus made. They have always deferred to the executive in matters of "security" and to the cops and such in matters of "public safety" and tend to also side with corporations over citizens. This can often lead to decisions directly contradictory to precedent which yet do not overturn that precedent, such as Hobby Lobby viewed in the light of the doctrines that the "corporate veil" cannot be pierced without destroying the integrity of the corporate identity. This is because the idea that "bad facts make bad law" is amplified enormously when the decisions are driven not by facts and law but by ideologies and political goals.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

Lookout's picture

I'm proud my family interceded on behalf of Pete Seeger whose fiancee was part Japanese, and saved her from the internment camps.

... in the fall of 1942, Seeger, who was then 23 years old, wrote a letter of protest to the California chapter of the American Legion. It was to the point:

Dear Sirs –

I felt shocked, outraged, and disgusted to read that the California American Legion voted to 1) deport all Japanese after the war, citizen or not, 2) Bar all Japanese descendants from citizenship!!

We, who may have to give our lives in this great struggle—we’re fighting precisely to free the world of such Hitlerism, such narrow jingoism.

If you deport Japanese, why not Germans, Italians, Rumanians, Hungarians, and Bulgarians?

If you bar from citizenship descendants of Japanese, why not descendants of English? After all, we once fought with them too.

America is great and strong as she is because we have so far been a haven to all oppressed.

I felt sick at heart to read of this matter.

Yours truly,

Pvt. Peter Seeger

I am writing also to the Los Angeles Times.

Military intelligence officers across the country began probing Seeger and his background. They searched police records in various locales (and found nothing). They discovered that a House committee had come across his name twice while investigating subversives in the pre-war peace movement. They secretly read his mail, including letters from his Japanese American fiancee, Toshi Ohta, who was living in New York City. The investigators were concerned that Ohta was working for the Japanese American Committee for Democracy, which promoted the American war effort but was considered by the military gumshoes to be a Communist-influenced group. In one letter to Seeger, Ohta said she suspected that the combination of Seeger’s past work with the Almanac Singers, a group of lefty folk singers who sang mostly pro-labor songs, and his relationship with her would prevent him from being deployed overseas. She wrote, “Not that I mind that…from the danger point of view…But what good is your going through all this training and having the government spend so much money on you…if they don’t allow you to use it.” Seeger, several days later, wrote to his grandmother: “It is possible that I am being held here because of my former connections with the Almanac Singers and because of my engagement to a Japanese-American, but I doubt it. I have never tried to hide either fact.”

Early in the investigation, an officer at Keesler Field interviewed Seeger, who noted that he was puzzled that he had not been deployed as an aviation mechanic, given that he had completed his training. Seeger pointed out that he played the five-string banjo well and requested that he be assigned to the Special Services Department, which provided entertainment for the troops. Seeger was asked about Ohta, and he informed the officer that her father was a Japanese refugee who had come to the United States because he disagreed with the militarists of Japan. Seeger said Ohta’s father had been given the choice of being executed in Japan or leaving the country. He told the officer that the Japanese American Committee for Democracy sought to demonstrate that Japanese Americans were loyal citizens and that its sponsors included Albert Einstein and author Pearl Buck.

https://www.motherjones.com/politics/2015/12/pete-seeger-fbi-file/

Stay warm everybody!

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“Until justice rolls down like water and righteousness like a mighty stream.”

@Lookout @Lookout

which the wife he obviously loved so much spoke briefly about the sacrifices that she felt she had to make regarding herself and their kids, and their life in general, so that he could do what he did. We so seldom think of things like that when we admire and praise our heroes.

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enhydra lutris's picture

@Lookout
involved. Thanks for the detail/deep dive on the early stages of the hrassment and persecution of Seeger. I knew none of that.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

The Aspie Corner's picture

[video:https://www.youtube.com/watch?v=NjlxwWD5yR8&start_radio=1&list=RDNjlxwWD...

Lyrics in Latin:

Clarior ebore
Tardior tempore
Prima luna uespera
Trahit una sidera

Valles, montes, nemora
Amnes, fontes, aequora
Densae uelo caliginis
Aequantur caelo terminis

Quiescunt omnia sub tenebris
Cubantque somnia in palpebris:
Nox atra renouet mysterium
Quo curas remouet silentium

In English:

Brighter than ivory
Slower than time
As evening falls, the moon
Brings the stars together

Valleys, mountains, woods
Rivers, sources, seas
Under the veil of a thick shadow
Bring their borders to the sky

Everything lies in a quiet darkness
And sweet dreams sit on everyone's eyelids:
May the dark night renew its mystery
When silence removes all the troubles

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Modern education is little more than toeing the line for the capitalist pigs.

Guerrilla Liberalism won't liberate the US or the world from the iron fist of capital.

enhydra lutris's picture

@The Aspie Corner
the empire will go quietly. Whether it explodes or implodes, its end is likely to result in widespread misery and grief and probably a lot more deaths before it is over.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

NCTim's picture

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The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself. - Friedrich Nietzsche -

enhydra lutris's picture

@NCTim
got back, hopefully done with that for at least 6 mnths. I'll catch the tune as soon as I get the socks on the line. Have a great one.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

NCTim's picture

@enhydra lutris Three times since New Years. Took all my disposable income, too.

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The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself. - Friedrich Nietzsche -

enhydra lutris's picture

@NCTim
ex-accountants will tend to do, but it did bite into them. Then again, as we all know, reality bites.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

magiamma's picture

beloved teacher in Santa Cruz County

PERHAPS IT IS Ikemoto's humble beginnings that form the cornerstone for his style. One of eight children born to Japanese parents, Ikemoto grew up in Sacramento. His parents did a variety of things to stay afloat--everything from farming to owning a grocery store and running a hotel.

The family spent time in the Tule Lake internment camp during WWII, an experience that Ikemoto captured in paint, earning solo shows in Santa Cruz, Sacramento, Riverside and Redding. But Ikemoto doesn't want to talk about that time or his artwork, which Smith calls "visually and expressively absorbing."

He wants to talk about teaching, something he calls "a very honorable profession and one that's really hard to do right."

Though he began his career at Cabrillo in 1966, he left after two years, disturbed by the Vietnam War, unsettled by the assassination of Martin Luther King. He was 29, and Cabrillo seemed like "a very beautiful enclave. Very comfortable. Very green."

http://www.tritonmuseum.org/exhibitions_Ikemoto.php
http://www.metroactive.com/papers/cruz/11.15.00/ikemoto1-0046.html
http://goodtimes.sc/santa-cruz-arts-entertainment/art/howard-ikemoto-las...
https://wscjacl.files.wordpress.com/2018/08/september-20181.pdf

Ikemoto wrote that he and his siblings, all younger than 7, were required to wear tags when the evacuation began.

His mother had felt the hostility from the non-Japanese community, he wrote.

“She feared that the FBI was coming to take her husband away any day, because she’d heard that leaders in the Japanese community were being arrested and sent to prisons. Her knees shook each time there was a knock on the door or the doorbell rang,” Ikemoto wrote. “My mother destroyed many things she had collected over the years that related to our family’s ethnic heritage, for fear that the objects would identify us as sympathizers of Japan.

“No one knew what to expect. It was a frightening time.”

...

In 1943, Santa Cruz, Monterey and San Benito counties unanimously opposed the release of those interned at the camps, , claiming that people of Japanese ancestry could not be trusted as loyal Americans. It was not until 2002 that the counties rescinded their resolutions, and to date only Monterey County has issued a formal apology.

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enhydra lutris's picture

@magiamma
many. Didn't know about the 3 counties and their ordinances, or their uber-shameful delay in rescinding them. Racism, plain and simple.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

magiamma's picture

@enhydra lutris

82K people received reparations

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@magiamma
the depressing thing is that as a nation, we learned NOTHING.

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The earth is a multibillion-year-old sphere.
The Nazis killed millions of Jews.
On 9/11/01 a Boeing 757 (AA77) flew into the Pentagon.
AGCC is happening.
If you cannot accept these facts, I cannot fake an interest in any of your opinions.

magiamma's picture

@UntimelyRippd
Hashimoto said he thought it would “cheapen” the
government’s apology to the Japanese Americans. [to give reparations] But
after hearing about an elderly Issei, a first-generation
Japanese immigrant, who was living in Los Angeles on a
meager $5 a week for food, Hashimoto then realized that
$20,000 wasn’t enough

https://wscjacl.files.wordpress.com/2018/08/september-20181.pdf

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enhydra lutris's picture

@magiamma
us government granted promised every japanese internee 20K. They dragged their feet so long that a great number of internees died before payment was made. I know a guy who was the heir to one such.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

magiamma's picture

@enhydra lutris

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NCTim's picture

@magiamma

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The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself. - Friedrich Nietzsche -

enhydra lutris's picture

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

Lily O Lady's picture

was horrified that I hadn’t known before that. I learned about Anne Frank in junior high school (no middle school then), but had no idea about my own government’s injustice and racism so recently. Considering what we did to the Native Americans and African Americans, I shouldn’t have been so shocked.

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"The object of persecution is persecution. The object of torture is torture. The object of power is power. Now do you begin to understand me?" ~Orwell, "1984"

enhydra lutris's picture

@Lily O Lady
carefully do not teach us in school. I took some undergrad courses in civil rights law and was boggled by the implied obesiance of the courts to the military inherent in the decision.

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --