suffolk university law review

SUFFOLK UNIVERSITY LAW REVIEW

Volume L 2017 Number 2

Journey Towards Justice: The Historical and Legal Legacy of Fred Korematsu and the Japanese American Internment in a

Post-9/11 World

By Harvey Gee*

I. INTRODUCTION

In January 2017, President Obama made a final push towards his longstanding national security goal of closing the military base at Guantanamo Bay and transferring its remaining forty-one detainees to U.S. facilities.1 Obama explained that the push “reflects the lessons that we’ve learned since 9/11, lessons that need to guide our nation going forward.”2 Unable to overcome congressional opposition, Obama was unsuccessful in realizing his plan before leaving office. His successor, President Trump, favors keeping

* Attorney, Washington, D.C.; LL.M., George Washington University Law School; J.D., St. Mary’s University School of Law; B.A., Sonoma State University. Mr. Gee previously served as an attorney with the Office of the Federal Public Defender in Las Vegas, NV and Pittsburgh, PA, the Federal Defenders of the Middle District of Georgia, and the Office of the Colorado State Public Defender. The author would like to thank Elma Delic, Madelyn McCormick, and the Suffolk University Law Review editors for their comments and assistance in preparing this Article. 1. See Ryan Browne, Obama’s Last Transfer of Gitmo Detainees, Trump Inherits 41, CNN (Jan. 19, 2017), www.cnn.com/2017/01/19/politics/obama-final-guantanamo-bay-transfer [https://perma.cc/2P2H2N EM] (considering Obama’s goal of closing Guantanamo unrealistic); see also Missy Ryan & Adam Goldman, Obama Asks Lawmakers to Lift Obstacles to Closing Prison at Guantanamo Bay, WASH. POST (Feb. 23, 2016), https://www.washingtonpost.com (to access follow perma.cc link) [https://perma.cc/62BX-9W25] (reporting on Obama’s February 2016 plan, noting congressional opposition); The Latest Bad Idea for Guantánamo, N.Y. TIMES (Sept. 19, 2016) http://www.nytimes.com/2016/09/20/opinion/the-latest-bad-idea-for-guantanamo.html [https://perma.cc/z855-xm6t] (reporting twenty Guantanamo prisoners cleared for transfer contingent upon government finding suitable destinations for them). But see J. Wells Dixon, President Obama’s Failure to Transfer Detainees from Guantánamo, in OBAMA’S GUANTÁNAMO: STORIES FROM AN ENDURING PRISON 39, 58 (Jonathan Hafetz ed., 2016) (asserting President “failed to do everything that he reasonably could have done to transfer detainees”). 2. Ryan & Goldman, supra note 1.

238 SUFFOLK UNIVERSITY LAW REVIEW [Vol. L:237

Guantanamo prison open.3 At the same time, the significant decrease in press coverage of Guantanamo Bay caused the plight of detainees held without adequate and meaningful due process to devolve into a mere afterthought. When the issue is discussed, American fears and continuing concerns about global terrorism make any arguments for closing Guantanamo unpopular.

This Article draws parallels between the internment of Japanese immigrants and Japanese Americans and the post-September 11, 2001 (9/11) “war on terror” to pose another lesson to remember: the relevance of the internment experience to the war on terrorism. As history revealed, the curfew and exclusion orders enforced against the Japanese were based on racial prejudice, unsupported by evidence of any real Japanese threat. These orders were egregious examples of how laws can be used as an instrument of racism, and how racist laws can be defended by claims that such laws are not based on race.4 It is well known that the U.S. Supreme Court’s internment case rulings—which gave great and undue deference to the government’s claims of military necessity—wrongly and shamelessly upheld the detention of Japanese Americans.5

Part II of this Article tells Fred Korematsu’s story and the sad history of the Japanese American internment. Part III focuses on the four internment cases heard by the Court: Yasui v. United States,6 Hirabayashi v. United States,7 Korematsu v. United States,8 and Ex Parte Endo.9 During World War II, the

3. See Matt Apuzzo & Mark Landler, With National Security Choices, Trump Builds Team to Bulldoze Status Quo, N.Y. TIMES (Nov. 18, 2016), https://www.nytimes.com/2016/11/19/us/politics/flynn-sessions-trump-administration.html [https://perma.cc/3F7U-ZUWU] (highlighting Trump appointments who support Guantanamo); Nahal Toosi, Bush Aides Could Get a Do-Over in Trump Administration, POLITICO (Nov. 15, 2016), http://www.politico.com/story/2016/11/george-w-bush-aides-trump-administration-231351 [h ttps://perma.cc/JKQ4-KMJU] (discussing Trump’s favorable views on Guantanamo use); see also Dixon, supra note 1, at 43 (relaying congressional opposition restricted Obama’s efforts to move Guantanamo prisoners). Dixon contends that despite Obama’s promises to close Guantanamo on the 2008 campaign trail, “[Obama] began to lose the initiative on Guantánamo issues by mid-2009, due to a series of errant political calculations and a lack of willingness to do what was necessary to close the prison, which the president nonetheless continued to claim was in the national security . . . of the United States.” Dixon, supra note 1, at 48. 4. See Eugene V. Rostow, The Japanese American Cases—A Disaster, 3 YALE L.J. 489, 496 (1945) (arguing racial prejudice—not military justification—underlaid evacuation); Judge Mary M. Schroeder, What Gordon Hirabayashi Taught Me About Courage, 11 SEATTLE J. FOR SOC. JUST. 65, 69 (2012) (noting racial prejudice led to Hirabayashi’s conviction). Judge Mary Schroeder presided over Gordon Hirabayashi’s successful coram nobis appeal in 1987. Schroeder, supra, at 65. 5. See ERIC K. YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE

AMERICAN INTERNMENT xxiii-xxvi (2001) (outlining list of issues). Professor Eric Yamamoto characterizes the “internment of over 100,000 loyal Americans” as a “human tragedy,” while the “legal tragedy” was the Court’s unquestioning acceptance of the government’s warped claim of military justification. Eric K. Yamamoto, Korematsu Revisited—Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 SANTA CLARA L. REV. 1, 30 (1986) [hereinafter Yamamoto, Korematsu Revisited] (arguing for more credibility). 6. 320 U.S. 115 (1943). 7. 320 U.S. 81 (1943). 8. 323 U.S. 214 (1944).

2017] JOURNEY TOWARDS JUSTICE 239

Court failed to be an independent, apolitical branch of the government, or serve as a careful and determined check against the excesses of the executive branch.10 Specifically, the wartime Court failed to apply an honest and meaningful judicial review of the internment machinery, and closed its eyes to the reality of the government interning Americans because of their race. Though we cannot know with certainty, it is plausible to theorize that the Justices were swayed by the combined factors of public opinion, personal loyalty to President Roosevelt, and judicial philosophy. Criticism is not limited to the judiciary. The government attorneys, lacking any political will to stand up against President Roosevelt and Congress, were also complicit. Government attorneys and their superiors lied and misled the Court, insisting that internment was necessary despite internal investigations finding no evidence of espionage or sabotage by Japanese Americans.11

Part IV describes how some forty years after the end of World War II, Fred Korematsu and two other Japanese Americans—Gordon Hirabayashi and Minoru Yasui—separately refused to give up their longstanding quest seeking redemption for themselves and all interned Japanese. These men successfully vacated their wartime convictions on the grounds of government prosecutorial misconduct and lack of military necessity in the coram nobis cases litigated in federal courts during the 1980s.12

Part V discusses the government’s use of “enemy combatant” designations after 9/11, and compares these classifications to the government’s issuance of the curfew and exclusion orders during World War II. This section illustrates how the Japanese American internment experience is relevant to the war on terrorism. Parallels include the combined machinations of: presidential interpretation of the law, expansion of executive authority, engagement in legal and policy maneuvering by government attorneys and the military, and the permeating influence of political patronage and public opinion. In two important periods in American history, the Court purported to follow the rule of law, yet the rulings in the internment cases and Guantanamo Bay cases yielded

9. 323 U.S. 283 (1944). 10. See Schroeder, supra note 4, at 74 (stating decisions “represent extreme illustrations of the U.S. Supreme Court demonstrating a lack of courage”). 11. See, e.g., Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 FORDHAM L. REV. 3027, 3034 (2013) (stating General DeWitt reported Japanese Americans signaling submarines and passing intelligence despite lack of evidence); Frank Wu & Reggie Oh, The Evolution of Race in the Law: The Supreme Court Moves from Approving Internment of Japanese Americans to Disapproving Affirmative Action for African Americans, 1 MICH. J. RACE & L. 165, 169 (1996) (stating Department of Justice “knowingly misrepresented the risk of disloyalty” by Japanese Americans); Mark V. Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 WIS. L. REV. 273, 288-89 (2003) (criticizing military report on alleged Japanese American activities). Tushnet asserts that General Dewitt’s report was unsupported by evidence and instead was based on racist assumptions. See Tushnet, supra, at 288 (arguing executive and military knew no necessity existed justifying mass incarceration). 12. See YAMAMOTO ET AL., supra note 5, at 284-86 (discussing Yasui and Hirabayashi cases).


different results. The courts deprived Japanese Americans of their constitutional rights, including the right to due process, in the name of military necessity. Yet sixty years later, the courts granted Guantanamo Bay detainees their constitutional rights and access to the judicial system. Part V explores the prosecutions of John Walker Lindh, Yasser Esam Hamdi, and Jose Padilla, discussing the ways in which race and citizenship of the detainees can influence the government’s handling of these types of cases.

Part VI argues that just as the petition for writ of habeas corpus was an inadequate remedy for Japanese American detainees in the 1940s, the writ similarly falls short for Guantanamo Bay detainees who seek release from indefinite detention. Guantanamo Bay detainees contesting their detention using writs of habeas corpus experience an extraordinarily long wait for a judicial decision on the merits of their petition. When the detainees’ petitions are eventually reviewed by the D.C. Circuit, the petitions are often denied due to the ease with which the government can make out a prima facie case against them.13 The government ordered the release of Japanese American internees in 1944, but as this section shows, Guantanamo Bay indefinitely holds detainees until the end of the war—an end that may never come.

II. THE STORY OF FRED KOREMATSU AND THE JAPANESE AMERICAN

INTERNMENT

As many civics teachers have explained and discussed, Fred Korematsu, a courageous twenty-two-year-old man facing significant prejudice, refused to comply with racist military orders that led to the U.S. government’s forcible incarceration of over 120,000 Japanese and Japanese American U.S. residents.14 Mr. Korematsu was the third of four sons born in the United States to Kakusaburo and Kostui Korematsu, operators of a flower nursery.15 In line with the anti-Asian sentiment of the times, which was primarily economically driven, Mr. Korematsu’s parents were allowed to immigrate to the United States but were precluded from becoming citizens due to a then-existing law.16

Born in the San Francisco Bay Area, Mr. Korematsu was fully immersed in

13. See KEVIN R. JOHNSON, OPENING THE FLOODGATES: WHY AMERICA NEEDS TO RETHINK ITS

BORDERS AND IMMIGRATION LAWS 21 (2007) (analogizing between severe measures taken during war on terror and against Japanese citizens in 1944). 14. Geoffrey R. Stone, Civil Liberties v. National Security in the Law’s Open Areas, 86 B.U. L. REV. 1315, 1320 (2006) (explaining American citizens made up nearly two-thirds of internees, constituting nearly ninety percent of Japanese American population). 15. See LORRAINE K. BANNAI, ENDURING CONVICTION: FRED KOREMATSU AND HIS QUEST FOR JUSTICE 11-12 (2015) (describing Fred Korematsu’s birth and childhood). 16. See Gabriel J. Chin et al., Beyond Self-Interest: Asian Pacific Americans Toward a Community of Justice, A Policy Analysis of Affirmative Action, 4 UCLA ASIAN PAC. AM. L.J. 129, 144 (1996) (highlighting hardships of Asian immigrants in early and mid-twentieth century). “Much as the law forbade most Asian immigrants from arriving, it prevented Asian immigrants who already had arrived from ever becoming citizens” because the law dictated that only free whites could become citizens. Id.


American mainstream culture.17 His life was typical of many well-rounded and integrated Japanese Americans at the time who did not speak Japanese and have never been to Japan. At Oakland High School, Mr. Korematsu swam, ran track, and played basketball and football.18 Most of his friends, including his girlfriend, were white. As a practical young man of the times, Mr. Korematsu made his own choices. He initially wanted to attend college, but his family could not help him financially.19 Mr. Korematsu tried to register under the first peacetime draft, but he was rejected because of a gastric ulcer.20 He then attended welding school and worked in a shipyard until he was eventually terminated because of his race.21

After the attack on Pearl Harbor on the morning of December 7, 1941, everything changed for Mr. Korematsu, his family, and other Japanese and Japanese Americans on the West Coast. Concerned with further Japanese threats, the Federal Bureau of Investigation (FBI) and Justice Department canvassed Japanese population centers on the West Coast, arresting and detaining Japanese, German, and Italian enemy aliens whose names appeared on preexisting alien lists.22 These investigations were not enough for an America still angry about Pearl Harbor. Soon politics and public opinion worked together to support the internment. Initially, there was wide debate and even conflict amongst officials in the Roosevelt Administration about deciding to intern the Japanese.23 For one, Attorney General Francis Biddle was against internment because he thought it was unnecessary and bad for morale.24 The Office of Naval Intelligence also concluded that the Japanese community was overwhelmingly loyal.25 But Roosevelt’s desire for reelection for a fourth term became a driving force for the internment. With that in mind, Roosevelt wanted assurances that he could carry the West.26 Seizing the moment, the government capitalized on the West Coast’s vague fears and rampant anti-

17. See BANNAI, supra note 15, at 11-12. 18. See id. at 16. 19. See YAMAMOTO ET AL., supra note 5, at 138. 20. BANNAI, supra note 15, at 18. 21. See id.; YAMAMOTO ET AL., supra note 5, at 138. 22. See Eric L. Muller, Hirabyashi and the Invasion Evasion, 88 N.C. L. REV. 1333, 1342 (2010) (discussing two thousand Japanese put into detention after initial sweep). 23. See YAMAMOTO ET AL., supra note 5, at 96-100 (providing overview of policies before and after Pearl Harbor bombing). 24. See JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH

ADMINISTRATION 43-45 (2009) (discussing Biddle’s objections to exclusion program); see also Stone, supra note 14, at 1321 (reporting Department of Justice and FBI initially opposed mass evacuation of Japanese Americans). 25. See ERIC K. YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE

AMERICAN INTERNMENT 8 (2d ed. 2013) [hereinafter YAMAMOTO ET AL. 2D ED.] (discussing investigation of “Japanese Question”). 26. See NOAH FELDMAN, SCORPIONS: THE BATTLE AND TRIUMPHS OF FDR’S GREAT SUPREME COURT

JUSTICES 243 (2010); Stone, supra note 14, at 1322 (stating politics “certainly played a role in Roosevelt’s thinking” during 1942 election year).


Japanese fervor.27 Reflecting the prevalent anti-Japanese propaganda at the time, newspapers like the Los Angeles Times referred to the Japanese pejoratively as “Japs” and “Nips.”28 Even then California Governor Earl Warren, who supported the President, called for the internment.29

Lieutenant General John L. DeWitt, head of Western Command, believed Japanese Americans were a treacherous threat to national security, and their removal from the West Coast was necessary.30 Though DeWitt lacked any concrete evidence to support his position, he made a final recommendation in favor of mass evacuation.31

Once in place, the internment’s design allowed for plausible deniability by President Roosevelt and Congress; the internment of an entire racial group was not directly authorized.32 Instead, military officers like DeWitt relied on military necessity to aim their curfew and detention orders solely at Japanese Americans.33 In his insightful book about Roosevelt’s powerful political influence on the Court, Professor Noah Feldman suggests that “[t]he legal structure adopted to facilitate the internment was a masterpiece of political buck passing.” 34 According to Professor Feldman, Roosevelt’s Executive Order No. 9066 authorized U.S. generals to issue their own vaguely worded

27. See Stone, supra note 14, at 1321-22 (describing fears and conspiracy theories held by Californians about large-scale Japanese invasion). 28. FELDMAN, supra note 26, at 237 (noting anti-Asian prejudices apparent in mainstream West Coast media). 29. See ED CRAY, CHIEF JUSTICE: A BIOGRAPHY OF EARL WARREN 159 (1997) (explaining Warren only regretted internment support later in his career). While initially supportive of Japanese internment due to his “ignorance, . . . fear, . . . [and] obedience to his patriotic duty,” Justice Warren later championed civil rights for all citizens. Id. (noting Warren “[came] of age in a state with a . . . history of discrimination against Asians”). Justice Warren’s initial opinions were aligned with those of powerful members of the public and mainstream media who supported Japanese internment. See BANNAI, supra note 15, at 29-30 (opining United States turned on Japanese Americans).

Anti-Asian sentiment, present on the west coast since the arrival of the Chinese in the 1840s, was fueled by both the economic success of the Japanese Americans and the Japanese military expansion of the 1930s and was actively promoted by groups such as the Native Sons of the Golden West, led by California Governor Earl Warren.

Natsu Taylor Saito, Symbolism Under Siege: Japanese American Redress and the Racing of Arab Americans As Terrorists, 8 ASIAN L.J. 1, 4 (2001) (highlighting Warren’s prior support of anti-Asian attitude). 30. See YAMAMOTO ET AL., supra note 5, at 98-100. 31. See BANNAI, supra note 15, at 24-25; YAMAMOTO ET AL., supra note 5, at 101 (nothing DeWitt’s order led to “mass detentions of approximately 120,000 people of Japanese descent”). 32. See Jerry Kang, Watching the Watchers: Enemy Combatants in the Internment’s Shadow, 68 L. &

CONTEMP. PROBS. 255, 267 (2005) [hereinafter Kang, Enemy Combatants] (noting suffering of Japanese Americans not attributed to responsible actors). As a preemptive measure because the White House expected legal challenges, none of the individual orders explicitly referred to members of any specific racial group. FELDMAN, supra note 26, at 239. 33. See YAMAMOTO ET AL., supra note 5, at 101, 104-05. 34. FELDMAN, supra note 26, at 239.


orders, avoiding a direct nexus to the President.35 Second, the War Relocation Authority (WRA) oversaw the removal, relocation, and supervision of persons pursuant to Executive Order No. 9066, which empowered the military to exclude people from designated areas, and gave military commanders authority to issue orders.36 It seemed to be the military who ordered the curfew, the exclusion, and the detention, thereby insulating the President from accountability.

Evidently, race was the sole consideration because only individuals of Japanese descent were interned, including American citizens who held no allegiance to Japan or its culture.37 To the U.S. government, Japanese and Japanese Americans were all foreigners who could not be trusted.38 Under the racial formation theory advanced by sociologists Michael Omi and Howard Winant, race is a dynamic, socially constructed identity determined by social, economic, and political forces—during World War II, Japanese Americans were perceived as foreign and unable to assimilate.39 Critical race theorists, echoing these sentiments, suggest that anti-Japanese racism existing before and during World War II was a manifestation of the intense dislike of Japanese agricultural workers and businesses as economic competition.40 Applied here, these theories demonstrate that the internment was consistent with a long legacy of racism and historical domination over Asian immigrants in the United States.41 In a social context, the government utilized and facilitated the

35. See Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 25, 1942) (authorizing Secretary of War to freely establish military areas); FELDMAN, supra note 26, at 239. 36. See YAMAMOTO ET AL., supra note 5, at 196-99 (highlighting “movement into and out of the camps”); Mark S. Kende, Justice Clarence Thomas’s Korematsu Problem, 30 HARV. J. ON RACE & ETHNIC

JUST. 293, 295 (2014) (noting executive order permitted military commanders to issue internment directives); Amanda L. Tyler, The Forgotten Core Meaning of the Suspension Clause, 125 HARV. L. REV. 901, 1001 (2012) (explaining coinciding with war outbreak, military forcibly relocated Japanese U.S. citizens to camps before long-term detention). 37. See YAMAMOTO ET AL., supra note 5, at 105-07, 126-28, 137-38 (relating U.S. citizens of Japanese descent’s internment experiences); Stone, supra note 14, at 1321 (asserting demand for evacuating those of Japanese descendant “exploded along . . . West Coast” after Pearl Harbor). 38. See YAMAMOTO ET AL., supra note 5, at 104-20 (noting General DeWitt established curfew due to distrust of Japanese U.S. citizens); see also FELDMAN, supra note 26, at 243 (asserting Korematsu decision “is widely considered one of the . . . worst in American history”). 39. See MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE

1960S TO THE 1990S 3-4 (2d ed. 1994) (considering race social construct influenced by specific factors). 40. See RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION 3 (2d ed. 2012) (discussing “critical race theory . . . collection of activists and scholars interested in . . . race, racism, and power”). The Japanese were demonized by white Americans who were jealous of the successes of Japanese farmers on the West Coast. See YAMAMOTO ET AL., supra note 5, at 163 (explaining many Japanese worked agriculture industries before and during World War II); Frank H. Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 234 (1995) (explaining productivity of Japanese Americans especially visible on farms, transforming agriculture on West Coast). As a byproduct, resentment against Japanese industriousness manifested itself into alien land laws that restricted real property ownership designed to exclude Japanese immigrants. See Wu, supra, at 234. 41. See Robert S. Chang, The Invention of Asian Americans, 3 U.C. IRVINE L. REV. 947, 953-56 (2013)


subordinating racial stereotypes of Japanese Americans as a racial and ethnic group that could not assimilate.42 And in a political context, mainstream American society viewed Japanese immigrants and Japanese Americans as economic threats to whites at a time when Roosevelt was seeking reelection.43

The U.S. government considered approximately 120,000 individuals of Japanese ancestry to be disloyal.44 About 80,000 of these people were U.S. citizens and held indefinitely.45 In the absence of even a single case of espionage on the West Coast during World War II, or any declaration of martial law, the U.S. government indefinitely detained Japanese men and women, children and elderly, without any semblance of due process. Like steerage, they were shipped off in trains to relocation centers and camps located in the most undesirable and remote regions in the country—the deserts and swamplands of California, Idaho, Utah, Arizona, Wyoming, Colorado, and Arkansas.46

Leaving behind their homes, businesses, and personal belongings, Japanese Americans were confined to temporary assembly centers and then to spartan internment camps.47 Given short notice, sometimes only a few days, most Japanese Americans were not able to preserve their homes, stores, farms, and personal property while they were rounded up and interned.48 Internees were fenced in by barbed wire, and similar to prisoner of war camps, the internment camps were watched by an army that had its guns turned inward.49

With Americans preoccupied with winning the war, there was no mass public outcry, and no activist groups spoke out against the internment of an

(describing U.S. historical laws discriminating against Asians, including restrictive immigration laws). 42. See YAMAMOTO ET AL., supra note 5, at 114-15 (noting previous beliefs Japanese Americans associated closely with Japanese culture). 43. See FELDMAN, supra note 26, at 236-37 (noting derogatory names used toward Japanese Americans in mainstream culture). 44. See YAMAMOTO ET AL., supra note 5, at 38-40 (detailing history of Japanese internment in United States). 45. See Jerry Kang, Denying Prejudice: Internment, Redress, and Denial, 51 UCLA L. REV. 933, 940 (2004) (asserting “approximately 70 percent [of internees] were U.S. citizens” because of their U.S. births). 46. See GORDON K. HIRABAYSHI ET AL., A PRINCIPLED STAND: THE STORY OF HIRABAYASHI V. UNITED

STATES x-xi (2013) (describing locations of various of notices directing Japanese Americans to Wartime Civil Control Administration); see also FELDMAN, supra note 26, at 236; Erwin Chemerinsky, Detentions Without Due Process of Law Following September 11th, 20 TOURO L. REV. 889, 891-92 (2005) (noting “[r]ace alone determined who was free and who was put behind barbed wire”); Sarah A. Whalin, National Security Versus Due Process: Korematsu Raises Its Ugly Head Sixty Years Later in Hamdi and Padilla, 22 GA. ST. U. L. REV. 711, 713 (2006) (describing different government branches coordinated efforts in continuing internment). 47. See Rostow, supra note 4, at 502 (comparing internment camps to concentration camps, where “humiliation of evacuation . . . ignored citizens’ rights”). 48. See BANNAI, supra note 15, at 31-32 (describing short notice given to families to store belongings prior to internment); FELDMAN, supra note 26, at 236 (explaining internment forced Japanese Americans to close businesses or sell property at deeply discounted rates); Rostow, supra note 4, at 533 (stating Japanese Americans suffered and continue to suffer heavy property losses due to internment); Saito, supra note 29, at 4 (explaining Japanese Americans forced to sell homes, businesses, and farms on short notice). 49. YAMAMOTO ET AL., supra note 5, at 196.


entire race of people—it was an afterthought. Most Americans did not even notice the internment because the Japanese Americans were moved to the most remote parts of the country, away from major cities. No charges were ever filed against them; no hearings were conducted; legal counsel was never appointed; and there were no trials. As good citizens with strong American identities, the Japanese went to camps because they were fiercely patriotic and did not want to make waves. This high level of loyalty was apparent when demonstrating their commitment to winning the war and their American culture. Young Japanese American men voluntarily shipped off to Europe to fight in the war. These brave Japanese American men became heroes, while their families lived in internment camps. Notably, the 442nd Regimental Combat Team, who counted the late Senator Daniel Inouye among its ranks, became the most decorated unit for its size and length of service in military history, and twenty-one of its members received congressional medals of honor.50

Against this backdrop, the U.S. government took Mr. Korematsu’s family away to an assembly center on May 8, 1942, while Mr. Korematsu defied the government order by not leaving and living his life as normally as he could.51 As an American, Mr. Korematsu believed he did nothing wrong.52 Attempting to fit in better, he even underwent plastic surgery to conceal his ethnicity.53 Despite the surgery, Mr. Korematsu’s Japanese ancestry was readily apparent. An officer later arrested Mr. Korematsu on Memorial Day in San Leandro, California while he was with his Italian American girlfriend.54

Mr. Korematsu felt alone in refusing to report for internment because there was little community support for his position.55 In fact, many Japanese Americans resented Mr. Korematsu for speaking up and taking a stand.56 At the time, the Japanese American Citizens League (JACL) urged the Japanese American community to avoid making waves, and encouraged compliance and cooperation with the military.57

Mr. Korematsu eventually got help. Believing he found an ideal test case to

50. See id. at 215 (describing the 442nd Regimental Combat Team’s military actions); Sarah Pruitt, Remembering Senator Daniel Inouye (1924-2012), HISTORY (Dec. 18, 2012), http://www.history.com/news/ remembering-senator-daniel-inouye-1924-2012 [https://perma.cc/9BDF-MSN5] (describing Senator Inouye’s life and legacy). 51. See BANNAI, supra note 15, at 39, 41 (describing Korematsu family’s experience entering internment camp). 52. Id. at 41 (noting Mr. Korematsu felt he “didn’t do any criminal act”). 53. Id. at 42. 54. BANNAI, supra note 15, at 42 (detailing Mr. Korematsu’s arrest and FBI interview); YAMAMOTO ET

AL., supra note 5, at 137-38 (reiterating Mr. Korematsu’s arrest story). 55. See BANNAI, supra note 15, at 47. 56. See id. at 48-49 (describing Mr. Korematsu’s violation of cultural norms causing community backlash). 57. Id. at 32 (noting JACL urged Japanese Americans to comply with orders); Kang, supra note 45, at 943 (citing JACL encouragement of loyalty).


challenge the removal order, Ernest Besig, Executive Director of the San Francisco Office of the American Civil Liberties Union (ACLU), met with Mr. Korematsu, and later recruited Attorney Wayne Collins to handle the defense.58 Collins challenged the authority of the President, Congress, and the military by claiming that the executive order, the exclusion order, and public law deprived Mr. Korematsu of his constitutional right to due process and equal protection.59 Assistant U.S. Attorney Alfonso J. Zirpoli counterargued that “Executive Order 9066, Congress’s Public Law 503, and Dewitt’s military orders were constitutional in light of the generalized fear that Japanese Americans posed a threat.”60

Mr. Korematsu waived a jury trial. During his bench trial before Judge Aldolphus St. Sure, FBI Special Agent Oliver Mansfield testified about interviewing Mr. Korematsu, and produced Mr. Korematsu’s statement admitting his Japanese ancestry and awareness of his defiance of the exclusion order.61 Mr. Korematsu testified that he lacked any connection to Japan, and that he was a loyal American citizen. On December 31, 1942, Judge St. Sure found Mr. Korematsu guilty and sentenced him to five years of probation to be served in military custody. On appeal, the Ninth Circuit certified his case along with Hirabayashi and Yasui to the Supreme Court, but the Court delayed review and remanded back to the Ninth Circuit to address the racial issue of the military’s right to exclude Japanese American citizens.62

On remand, the Ninth Circuit affirmed Mr. Korematsu’s conviction on December 2, 1943.63 Astonishingly, Mr. Korematsu waited until December 1944 for his case to be decided by the Court, one day after the executive branch stated that it would end detentions until the Supreme Court issued its opinion.64

III. SUPREME COURT INSISTENCE THAT “MILITARY NECESSITY” REQUIRED

DEFERENCE TO THE GOVERNMENT

A review of the Supreme Court’s internment jurisprudence shows that the Court was reluctant to second guess military judgment and more inclined to completely defer to the government’s justification for detention of Japanese Americans.65

58. BANNAI, supra note 15, at 43-44 (explaining legal approach); YAMAMOTO ET AL., supra note 5, at 138-39 (citing Collins’s recruitment). 59. BANNAI, supra note 15, at 59. 60. Id. at 62. 61. Id. at 65 (describing Mr. Korematsu’s waiver of right to jury trial and subsequent bench trial). 62. See id. at 74-75 (describing legal question certification process between Ninth Circuit and Supreme Court); YAMAMOTO ET AL., supra note 5, at 139 (declining to consider racial antagonism justification for restricting civil rights). 63. See Korematsu v. United States, 140 F.2d 289, 290 (9th Cir. 1943) (providing procedural history). 64. See YAMAMOTO ET AL., supra note 5, at 139 (discussing procedural delays in Korematsu leading to final Supreme Court decision). 65. See Eric K. Yamamoto, White (House) Lies: Why the Public Must Compel the Courts to Hold the


A. Hirabayashi and Yasui: The Curfew Cases

There were two curfew cases before the Court. First, Gordon Hirabayashi was convicted of violating Public Proclamation No. 3, which imposed a curfew on all enemy aliens and citizens of Japanese descent, requiring Japanese Americans to be home between 8:00 p.m. and 6:00 a.m.66 Mr. Hirabayashi was born and raised in Seattle, Washington, and had never been to Japan.67 After graduating from Auburn High School, he became a sociology student at the University of Washington, and was involved in the student Christian movement and the YMCA.68

Mr. Hirabayashi believed that the curfew was discriminatory and unjust.69 Based on this belief, and intent on challenging the exclusion orders, he went to Seattle FBI headquarters, accompanied by Quaker lawyer Arthur Barnett, to submit his written proclamation, “Why I Refuse to Register for Evacuation.”70 Later, a jury in Seattle convicted Mr. Hirabayashi of two separate counts of intentionally violating the evacuation order and the curfew order.71

The government urged the Supreme Court to decline to address the constitutionality issue by insisting that only the exclusion order was before the Court.72 Alternatively, the government argued that if the Court was inclined to determine the confinement’s constitutionality, the curfew was within the war powers of the President and Congress.73 Relying on the government’s war powers as the foundation on which to uphold the race-based order, Chief Justice Stone, writing for a unanimous Court, construed the order as a mild, temporary deprivation that was constitutionally permissible in this instance.74 Limiting his analysis to the four corners of the curfew order, Justice Stone offered a rational basis for the order: “[E]xclusion from a threatened area . . .

President Accountable for National Security Abuses, 68 L. & CONTEMP. PROBS. 285, 287-88 (2005) (stating Court “blindly accepted the Justice and War Departments’ false assertion of ‘military necessity’”); Yamamoto, Korematsu Revisited, supra note 5, at 21 (criticizing Court’s failure to scrutinize military’s assertions of purported necessity in Hirabayashi and Korematsu). 66. See Conduct of Enemy Aliens in Military Areas, 7 Fed. Reg. 2543 (Apr. 2, 1942) (outlining curfew order); Hirabayashi v. United States, 320 U.S. 81, 88 (1943) (quoting regulation establishing curfew). 67. See Hirabayashi, 320 U.S. at 84. 68. See HIRABAYSHI ET AL., supra note 46, at 43-44 (describing Hirabayashi’s educational path and extracurricular activities). 69. See id. at xi (noting location of internment camps). 70. See id. at xi-xii (discussing history of Korematsu litigation) (internal quotations omitted). 71. See YAMAMOTO ET AL. 2D ED., supra note 25, at 105; see also Kang, supra note 45, at 943 (noting “Hirabayashi admitted to violating both orders”). 72. BANNAI, supra note 15, at 87 (describing government’s argument for constitutionality of detention measures). 73. Id. (noting three separate briefs filed in case). 74. See HIRABAYASHI ET AL., supra note 46, at xiii (criticizing Supreme Court’s avoidance of constitutional issue). Hirabayashi “illustrates a situation in which the system of checks and balances broke down.” Id. As World War II raged on, there was increased pressure for a unified majority opinion, and the Court apparently succumbed to the pressure in Hirabayashi. See FELDMAN, supra note 26, at 243 (suggesting pressure decreased following Roosevelt’s reelection in 1944).


has a definite and close relationship to the prevention of espionage and sabotage. The military . . . concluded that curfew provided inadequate protection and ordered exclusion.”75 He surmised that there was evidence that some Japanese Americans were disloyal and that “the need for action was great, and time was short.”76

Here, the Court skirted the real issue of the case: Can the government intern an entire racial group? Instead, the Court reasoned that the military had a “rational basis” for imposing the curfew order, which was “a much lesser intrusion on liberty” than the exclusion of all Japanese Americans—allowing the Court to avoid the difficult issues of evacuation and internment.77 The Court simply upheld Mr. Hirabayashi’s conviction for violating the curfew.78

In the companion case, Minoru Yasui was a twenty-six-year-old U.S. citizen from Fort Hood, Oregon, and received his undergraduate and law degrees from the University of Oregon.79 Mr. Yasui was a member of the Oregon State Bar and the first Japanese American lawyer in the state; he was also a second lieutenant in the Army of the United States Infantry Reserve.80 Mr. Yasui’s father was arrested and placed in an internment camp.81 Intending to serve as a test case to challenge the evacuation orders, Mr. Yasui got himself arrested by walking the streets of Portland in defiance of the curfew order.82 After waiving his right to a jury trial, a judge found Mr. Yasui guilty.83 Mr. Yasui spent nine months waiting for his case to reach the Supreme Court. The same day as the Court decided Hirabayashi, it also sustained Mr. Yasui’s conviction.84

B. General DeWitt’s Discredited Final Report

Up to this point, the military reports were the Court’s primary source for its finding of military necessity. DeWitt’s Final Report on the removal of Japanese Americans was not made public until January 19, 1944—after the Hirabayashi and Yasui opinions, and eleven months before the Court relied on it in Korematsu.85

75. Korematsu v. United States, 323 U.S. 214, 218 (1944). 76. Id. at 223-224. 77. See BANNAI, supra note 15, at 79-80. Professor Jerry Kang argues that the Court applied a strategy of “segmentation” in Hirabyashi, separating the curfew from the evacuation, and later in Korematsu, it separated the evacuation from detention. Kang, supra note 45, at 964 (focusing on procedural aspects of wartime cases). 78. See Hirabayashi v. United States, 320 U.S. 81, 105 (1943) (stating conviction without “constitutional infirmity”). 79. FELDMAN, supra note 26, at 235 (describing Yasui’s background). 80. See id. (explaining beginnings of Japanese internment). 81. See HIRABAYASHI ET AL., supra note 46, at 43 (discussing Yasui’s plan to challenge internment). 82. FELDMAN, supra note 26, at 235 (describing Yasui’s arrest). 83. See Yasui v. United States, 320 U.S. 115, 117 (1943) (noting outcome of case). 84. See id. (holding citizenship not dispositive on outcome). 85. See BANNAI, supra note 15, at 83-84 (describing how “DeWitt recounted his reasons for seeking to clear Japanese Americans from the coast”).


Importantly, DeWitt’s Final Report, containing racial stereotypes and assumptions, was later discredited by Judge Patel’s granting of Korematsu’s writ of coram nobis.86 Given the report’s infirmities, it served as the perfect centerpiece in the coram nobis litigation forty years later. This report presented “facts” purporting concerns for espionage and sabotage on the West Coast such as: Japanese Americans were concentrated on the West Coast near military installations; Japanese Americans were not to be trusted because hundreds of Japanese organizations advanced Japanese war efforts before the bombing of Pearl Harbor; Japanese born in the United States had sympathy for Japan because thousands of them went to Japan for education where pro-Japanese ceremonies were held; Japanese Americans, as a racial group, were tied to the enemy by race, culture, and religion; Japanese American loyalties remain unknown; and Japanese Americans were involved in illegal signaling along the West Coast.87

It may not be an oversimplification to contend that the Court relied on misrepresentations made by government lawyers. Professor Eric Muller excavated archival evidence to support his claim that government lawyers materially misrepresented the perception that there would be a Japanese invasion on the West Coast in Hirabayashi.88 Further, the government was not anticipating or preparing for any possible Japanese West Coast invasion in late 1941 and early 1942.89 Professor Muller asserts that the only official documents suggesting a Japanese invasion of the West Coast at that time were the government’s representations to the Court.90 Incredibly, the government’s strategy relied on newspaper articles and public allegations instead of military documentation to persuade the Court to take judicial notice of the West Coast threat, which allowed Justice Department lawyers “to depict as true something they knew to be false.”91 Unfortunately, none of this may have mattered in the end because the Court likely would have decided the internment cases in the same way.92

C. Korematsu: The Exclusion Order Case

Conveniently, after postponing hearings, the rulings in the last two cases Korematsu and Endo came down after the presidential election and the

86. See Korematsu v. United States, 584 F. Supp. 1406, 1419 (1984) (“granting petitioner’s motion for coram nobis relief”). 87. BANNAI, supra note 15, at 84 (noting, however, DeWitt had no evidence of “illegal signaling”). 88. See Muller, supra note 22, at 1370 (noting military expected “raids” rather than invasion). 89. Id. at 1370 (asserting military officials’ inability to foresee Japanese invasion on West Coast). 90. Id. at 1368 (explaining lawyers elevated supposed Japanese invasion to central threat). 91. Id. at 1369-70, 1373. 92. See Kang, supra note 45, at 985-86 (arguing Court likely would uphold government policies even absent government misrepresentation); see also Muller, supra note 22, at 1384 (summarizing Kang’s opinion on Supreme Court’s susceptibility to racist schema).


Roosevelt Administration’s announcement about the camps’ closures.93 On December 18, 1944, the Court in Korematsu restricted its holding to the question of the evacuation alone, again avoiding the issue of the internment’s constitutionality.94 In upholding the exclusion order, Justice Black, writing for the majority, assured that the case was not about racial prejudice, but was instead about an exclusion order.95 “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 . . . .”96

Brinksmanship in calendaring the cases allowed the Court to rely on the analysis and precedent set in Hirabayashi and DeWitt’s Final Report, supporting the conclusion that the issues of exclusion and curfew were similar, and necessary under the circumstances, implemented because of military necessity.97 This set the stage for the Court to adopt its earlier rationale—the government may temporarily infringe on the rights and liberties of citizens.

The majority announced that it would not reject the judgment of the military and Congress that disloyal citizens were amongst the population and impossible for military authorities to immediately segregate the disloyal from the loyal Japanese Americans.98 But on historical retrospection, the majority’s faulty reasoning remains inexcusable. Professor Feldman professes that the Justices ignored the rule of law, and their loyalty to Roosevelt triumphed over racial justice.99

The majority opinion was met with backlash in the form of fierce dissents authored by Justices Murphy and Roberts, who vigorously and effectively countered the majority’s reasoning.100 Justice Murphy claimed that the entire

93. See FELDMAN, supra note 26, at 243. As Professor Feldman explains, the Court remained sufficiently loyal to the White House such that it did not want to issue an “embarrassing judgment” before the 1944 election. See id. 94. See Eugene Gressman, Korematsu: A Mélange of Military Imperatives, 68 L. & CONTEMP. PROBS. 15, 19 (2005) (highlighting Court’s refusal to apply standards of review in beginning of Korematsu, including testing constitutionality). 95. See Korematsu v. United States, 323 U.S. 214, 223 (1944) (asserting military “felt constrained to take proper security measures”). 96. Id. 97. See Rostow, supra note 4, at 508 (arguing Court interpreted exclusion order like curfew order in Hirabyashi). 98. See Korematsu, 323 U.S. at 218-19 (noting some interned “retained loyalties to Japan”); see also FELDMAN, supra note 26, at 380 (describing Black’s decision “[as] both a counterpoint . . . and precursor” to Brown v. Board of Education, 349 U.S. 294 (1955)); Yamamoto, Korematsu Revisited, supra note 5, at 27 (contending Korematsu Court laced precedent in its newfound extreme deference to military). Professor Feldman explains that Justice Black upheld the government’s constitutional authority to intern Japanese Americans “based on nothing more than their ethnicity,” asserting Justice Black was “disinclined to stand up for equality.” FELDMAN, supra note 26, at 380. 99. See FELDMAN, supra note 26, at 244. “Understanding the opinion in terms of loyalty rather than prejudice explains how Black could have written it—and how Frankfurter, Douglas, Stone, Reed, and Rutledge could have joined it without sensing that it was fundamentally shameful.” Id. 100. See Korematsu v. United States, 323 U.S. 214, 225-42 (1944) (Roberts, J. & Murphy, J., dissenting) (arguing policies placed individuals in concentration camps based on race).


internment was a “legalization of racism.”101 In his view, the case was motivated by racial prejudice that facilitated an erroneous, blanket racial assumption—all Japanese individuals born inside or outside of the United States were disloyal.102 Justice Murphy asserted that the justification for the exclusion was based on “questionable racial and sociological grounds” of expert military judgment, supplemented by “an unwarranted use of circumstantial evidence.”103 Justice Murphy makes these allegations again when he compares the difference in treatment between Japanese Americans who were not afforded hearings, and Germans and Italians to whom the government provided investigation and loyalty hearings.104 Justice Murphy further explained that because months passed between orders, there was no imminent or urgent danger to public safety, thus there was no military necessity.105

Equally damning was Justice Roberts’s dissent, which centered on the treatment of Japanese Americans, explaining that to focus solely on the validity of the exclusion orders “is to shut our eyes to reality.”106 He criticized the majority for dividing the race issue from the exclusion order, which he believed to be indivisible.107 Because the incarceration was ancestry based and clearly violating constitutional rights, Justice Roberts insisted that the case was about “convicting a citizen as punishment for not submitting to imprisonment in a concentration camp . . . without evidence or inquiry concerning his loyalty and good disposition towards the United States.”108

These sentiments about racial prejudice were further expounded in Justice

101. See id. at 242 (Murphy, J., dissenting). 102. See id. at 236; see also Yamamoto, Korematsu Revisited, supra note 5, at 24 (asserting Court adopted argument “based on racial myths and stereotypes”). The Court also seemingly ignored information contrary to the government’s assertions cited in the JACL and ACLU’s amicus briefs. See Yamamoto, Korematsu Revisited, supra note 5, at 24-25. 103. Korematsu, 323 U.S. at 236-37 (Murphy, J., dissenting); see also FELDMAN, supra note 26, at 380 (explaining Justice Murphy condemned majority decision to “pure racism”); Wu & Oh, supra note 11, at 184 (asserting Korematsu required government to provide empirical evidence for its justifications). 104. See Korematsu, 323 U.S. at 241-42 (Murphy, J., dissenting) (noting “[n]o adequate reason is given for . . . failure to treat . . . Japanese Americans on . . . individual basis”). 105. See id. at 241 (reporting almost eight months elapsed until last order issued following Pearl Harbor attack). 106. See Korematsu v. United States, 323 U.S. 214, 232 (1944) (Roberts, J., dissenting) (discussing unrealistic nature of leaving instead of following temporary exclusion order). 107. Id. at 226 (arguing Korematsu convicted due to race without evidence concerning loyalty). 108. Id. (concluding evidence of clear constitutional rights violation); see also BANNAI, supra note 15, at 95-96 (criticizing Court’s methodical separation of race from curfew and the exclusion orders). Professor Bannai suggests that “[t]he failure of the [C]ourt to scrutinize the orders is evident from how it mischaracterized . . . the program of removal and incarceration. . . . [T]he [C]ourt separated into phases [curfew versus exclusion] what was really one inseparable program that culminated in incarceration.” BANNAI, supra note 15, at 95-96. Professor Eugene Rostow posited that the Court validated “dangerous racial myths about a minority group, in arguments which can be applied easily to any other minority in our society.” Rostow, supra note 4, at 504.


Jackson’s dissent.109 Justice Jackson acknowledged that Mr. Korematsu was an American citizen by birth and had never been accused of being disloyal.110 He declared a double standard existed—had Mr. Korematsu been a German or Italian alien, the Court would not have found that he violated the order.111 Justice Jackson also questioned the necessity of the orders, especially given the lack of evidence before the Court.112 Without more, Justice Jackson explained, the Court is forced “to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination.”113 Aware of the dangerous precedent Korematsu would set and its potential to be a “loaded weapon” for the executive branch, Justice Jackson warned that once a judicial opinion rationalizes such an order to prove its constitutionality, “the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.”114 Although Justice Jackson would have overturned Mr. Korematsu’s conviction, he noted that reviewing courts are limited in examining the necessity of military orders, and deferred to the government’s claims of military necessity.115

The majority and dissenting opinions seem to bolster Professor Feldman’s theory that the only plausible explanation for the Court’s ruling in Korematsu is that loyalty to Roosevelt outweighed the Constitution and racial equality. To constitutional scholars, legal historians, and law students alike, Korematsu’s incoherent analysis becomes even more apparent when viewed through a modern strict scrutiny standard—the law or government regulation (race-based curfew and exclusion) must be justified by a compelling government interest, achieved through narrowly tailored means.116 The compelling interest prong is easily satisfied because the United States was attacked and the government wanted to protect the country, but the curfew and detention orders were not narrowly tailored to achieve that goal.

By any reasonable measure, the government’s internment of people in concentration camps was not the least restrictive way to accomplish their goal.117 In fact, there were other alternatives available, such as loyalty hearings

109. See Korematsu, 323 U.S. at 242-43 (Jackson, J., dissenting) (asserting Court inappropriately criminalized Korematsu solely because “he was born of different racial stock”). 110. See id. at 243 (arguing Korematsu “[was] convicted of an act not commonly a crime”). 111. See id. (explaining crime resulted not from anything said, done, or thought). 112. See Korematsu v. United States, 323 U.S. 214, 245 (1944) (Jackson, J., dissenting) (noting “no real evidence” before the Court that DeWitt acted reasonably). 113. Id. 114. Id. at 246. 115. See id. at 244, 248 (highlighting military judgment in analysis). 116. See YAMAMOTO ET AL., supra note 5, at 159-60 (describing arguments regarding “racial prejudice” and strict scrutiny). 117. See Rostow, supra note 4, at 508 (arguing exclusion program undertaken because Japanese “were . . . small enough group to be punished by confinement”).


or other administrative processes.118 Claims of narrowly tailoring the camps’ program designs are undermined by the following facts: Italian and German Americans were not interned, despite the United States declaring war on Italy and Germany; considerable evidence of German sabotage existed, yet no mass internment of German Americans ensued; and Japanese Americans residing near Pearl Harbor in Hawaii were not interned.119

The Court’s monumental failure did not escape the attention of Professor Eugene Rostow, an early critic of Korematsu. He pointed out that the Court missed an opportunity to make amends for its internment rulings. In his Yale Law Journal article published the year after Korematsu, Professor Rostow hypothesized that if the Court followed the rule of law and applied proper judiciary inquiry, “the episode would have been passed over as a national scandal, but a temporary one altogether capable of reparation.”120

D. Endo: The Only Habeas Case Brought Against the Government

The Court ruled in Endo on the same day as Korematsu; it was the only action not to challenge a criminal conviction because Mitsuye Endo was never charged or tried. Additionally, Endo was the only action that involved a petition for writ of habeas corpus, and Ms. Endo was the only female litigant in the internment litigation.121 Ms. Endo, a twenty-two-year-old American citizen of Japanese ancestry, worked as a stenographer for the California Department of Motor Vehicles in Sacramento, California.122 Like Mr. Korematsu, Mr. Hirabayashi, and Mr. Yasui, Ms. Endo was born in the United States and had never been to Japan, nor did she speak or read Japanese.123

After being dismissed from her job because of her race following the Pearl Harbor attack, Ms. Endo was housed at the Tanforan assembly center, a converted race track near San Francisco.124 Ms. Endo was not served with process and did not appear in proceedings.125 Although the WRA considered her loyal and offered to release her on the condition that she not return to

118. See id. at 499 (discussing alternative measure of loyalty “screenings”). 119. See Chin et al., supra note 16, at 147 (noting home removal internment affected neither German nor Italian Americans); Kende, supra note 36, at 295 (indicating only difference between detainees and German or Italian Americans “was their Asian race”); Natsu Taylor Saito, Interning the “Non-Alien” Other: The Illusory Protections of Citizenship, 68 L. & CONTEMP. PROBS. 173, 177 (2005) (stating despite evidence against Germans, no mass internment); Saito, supra at note 29, at 4 (highlighting “there was no wholesale internment of those of Japanese descent in Hawai’i”); Fritz Snyder, Overreaction Then (Korematsu) and Now (The Detainee Cases), 2 CRITICAL STUD. J. 80, 87 (2009) (asserting evacuation decision for Japanese Americans “was both underinclusive and overinclusive”). 120. Rostow, supra note 4, at 491. 121. See YAMAMOTO ET AL., supra note 5, at 167 (noting Endo background). 122. FELDMAN, supra note 26, at 236. 123. See YAMAMOTO ET AL., supra note 5, at 167-68. 124. See id. at 151 (outlining background of Endo). 125. See Ex Parte Endo, 323 U.S. 283, 285 (1944) (describing procedural background).


California, Ms. Endo courageously refused the offer and continued to seek judicial relief.126 With the assistance of James Purcell, a San Francisco attorney, Ms. Endo filed a habeas corpus petition in the United States District Court for the Northern District of California, arguing that she was a law-abiding U.S. citizen and was being held unlawfully because no formal charges were brought against her.127

Mirroring the proceeding cases, the Court in Endo also avoided determining the constitutionality of the internment.128 But unlike those cases, the Court based the Endo decision on administrative law.129 Justice Douglas, who was loyal to Roosevelt, and held higher political aspirations, wrote the unanimous opinion.130 Justice Douglas recognized that internees would eventually have to be released and expected that the Endo decision would require the release of most of the interned.131 At the time of the decision, the United States had gained momentum in the European and Pacific theater, and the military crisis on the West Coast had subsided.132 To Justice Douglas, the exclusion was about loyalty, not race.133 With that in mind, he perceived a petition for habeas corpus as a viable remedy for the interned seeking release after an affirmative loyalty determination.134 With this remedy, justice would be served by releasing the Japanese American internees, and the Roosevelt Administration could maintain the detention policy.135

Justice Douglas devoted two-thirds of the Endo opinion to the origins of the relevant executive orders and legislative acts.136 Executive Order 9066 delegated power to the military to bar access to military areas.137 The opinion explained that General DeWitt carried out the duties of Executive Order 9066,

126. See STEPHEN BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE’S VIEW 185 (2010) (explaining circumstances of Endo’s habeas corpus petition). 127. Endo, 323 U.S. at 285, 294 (arguing no suspicion of disloyalty). 128. See id. at 300-01 (assuming detention and relocation centers lawful). 129. See JENNIFER K. ELSEA, CONG. RESEARCH SERV., RL31724, DETENTION OF AMERICAN CITIZENS AS

ENEMY COMBATANTS, at CRS-23 (2005) (avoiding constitutional question, but suggesting Fifth Amendment guarantee of due process when determining loyalty). “By shifting the discourse from race to loyalty, the Supreme Court avoided rendering an opinion on the constitutionality of internment. . . . [I]n assessing the constitutionality of citizens’ detention, the Court brought the matter of loyalty into the analysis of the reasonableness of restrictions on civil liberties.” Masumi Izumi, Alienable Citizenship: Race, Loyalty and the Law in the Age of ‘American Concentration Camps,’ 1941-1971, 13 ASIAN AM. L.J. 1, 15 (2006). 130. See FELDMAN, supra note 26, at 188 (discussing vice presidential ambitions of Justice Douglas). 131. See id. at 246-47 (noting War Department decision to release internment coincided with Endo decision). 132. See id. at 243 (noting war gains reduced pressure to maintain unity). 133. See id. at 246 (dovetailing loyalty analysis with Korematsu language, considering exclusion about loyalty rather than race). 134. See FELDMAN, supra note 26, at 242 (creating real-world solution to end internment in Endo decision). 135. See id. at 246-47 (anticipating reduction in anti-Japanese sentiment resulted from internment release). 136. See Ex Parte Endo, 323 U.S. 283, 285-93 (1944) (summarizing executive orders and legislative acts leading to filing of case). 137. See id. at 287 (explaining ban combined with other executive orders resulted in internment).


which included issuing civilian exclusion orders, the WRA, and civil restrictive orders.138 Justice Douglas determined that the President and Congress did not authorize detention because none of the relevant executive orders or acts explicitly mentioned detention.139 Therefore, Justice Douglas concluded that the WRA was never authorized to detain Ms. Endo.140

Justice Douglas opined that the U.S. government could not continue to detain Ms. Endo, a citizen who was “concededly loyal” to the United States.141 At the same time, Justice Douglas justified the evacuation because it was an “espionage and sabotage measure,” while downplaying any discriminatory intent behind the evacuation.142 Nevertheless, there is an alternative explanation provided by Professor Jerry Kang, who asserts that the Endo Court’s finding that the internment was never authorized by the President and Congress was a deliberate attempt to “deny accountability” for Japanese American safety at the hands of the government.143 Ultimately, Ms. Endo’s victory rang hollow because even if she lost at the high court, she would have eventually been released following the War Department’s announcement of the forthwith release of internees.144

IV. VINDICATION AND HEALING IN THE 1980S: THE CORAM NOBIS LITIGATION

Following the end of the war and the internment, those interned invoked an informal and implicit code of silence. Japanese Americans did not talk about the internment; they just wanted to forget it. For example, Mr. Korematsu never told his son or daughter about his internment or his federal criminal conviction that led to his Supreme Court case.145 Interestingly, his children did not learn about their father’s case until a high school social studies discussion about important Supreme Court cases.146

A fortuitous finding by Professor Peter Irons in September 1981, as he was conducting research for his book, became the genesis for appealing the convictions in Korematsu, Hirabayashi, and Yasui in the coram nobis litigation. Acting under a Freedom of Information Act request, Irons combed through previously misfiled evidence showing that the War Department’s report about the internment was false, and he uncovered an apparent

138. See id. at 286-89. 139. See id. at 300-01 (stating act and order silence on detention does not mean power not implied). 140. See Endo, 323 U.S. at 302-04 (noting detention aimed at anti-espionage efforts resulted in interning loyal citizens). 141. Id. 142. See Ex Parte Endo, 323 U.S. 283, 302-04 (1944). 143. See Kang, Enemy Combatants, supra note 32, at 267 (asserting Court never authorized suffering attributed to “actors in fact responsible”). 144. See CRAY, supra note 29, at 159 (recounting War Department action on day before Korematsu decision). 145. BANNAI, supra note 15, at 126-27. 146. See id. (describing children’s discovery).


government cover-up.147 Irons learned that documents, which were never disclosed to the Supreme Court, revealed that the government suppressed and altered evidence, undermining its military necessity claim.148 Subsequently, Irons reached out to Mr. Korematsu and discussed the possibility of reopening the case.149 Mr. Korematsu was initially reluctant to talk about his case, but Irons was persistent.150 Mr. Korematsu eventually agreed.151 The coram nobis legal team was primarily composed of Sansei (third generation Japanese American) attorneys working pro bono, including Asian Law Caucus attorneys Dennis Hayashi and Don Tamaki, and private practice attorneys Dale Minami, Karen Kai, Edward Chen, and Eric Yamamoto.152 These lawyers shared Mr. Korematsu’s views and wanted to clear their families’ names and purge the stigma associated with the internment.153

On January 31, 1983, Mr. Korematsu filed a petition for writ of coram nobis in the Northern District of California, asking the court to overturn his criminal conviction because government attorneys suppressed or destroyed evidence that negatively impacted the court’s ruling.154 In response to Mr. Korematsu’s claim, the government acknowledged the internment as an “unfortunate episode,” but urged the court not to rule on the merits of the substantive allegations of fraud, misrepresentation, and suppression of evidence.155 Judge Marilyn Hall Patel, a jurist known to hold progressive views on social issues, was assigned to Mr. Korematsu’s case.156 Soon thereafter, Mr. Hirabayashi and Mr. Yasui filed separate coram nobis petitions in Seattle and Portland, respectively.157

As the coram nobis litigation gained momentum, the report by the Commission on Wartime Relocation and Internment of Civilians (CWRIC) recommended that Congress issue a national apology to Japanese Americans and provide redress of $20,000 to each surviving camp member, and that there be a presidential pardon of those convicted of violating military orders.158

147. See id. at 138 (recounting uncovering “more incriminating documents and furiously taking notes”). 148. See id. at 137-39 (describing documents received from Freedom of Information Act request); see also Tushnet, supra note 11, at 288 (discussing DeWitt’s racist motivations). 149. See BANNAI, supra note 15, at 139 (noting how Iron’s new evidence may help reopen case). 150. See id. (discussing Korematsu’s friendly, yet reserved manner). 151. See id. at 139, 148-49 (recounting Korematsu’s initial conversations with Irons). 152. See id. at 151-52 (listing attorney names and backgrounds); YAMAMOTO ET AL. 2D ED., supra note 25, at 6 (commenting on coram nobis attorneys’ national heritages). 153. See BANNAI, supra note 15, at 151-52 (noting lawyers’ personal interests in case). 154. See Korematsu v. United States, 584 F. Supp. 1406, 1410 (N.D. Cal. 1984) (detailing procedural history of case). 155. See id. at 1413 (alleging government’s position essentially constituted confession of wrongdoing). 156. See BANNAI, supra note 15, at 163 (stating “she would be a really good judge for this case”). Judge Patel’s husband was of East Indian ancestry, and she was a known supporter of civil liberties. Id. 157. See id. at 164-65 (discussing heavy press coverage of Korematsu, Yasui, and Hirabayashi cases). 158. See id. at 171-72 (noting, however, presidential pardon might insinuate Japanese Americans actually committed crimes); YAMAMOTO ET AL. 2D ED., supra note 25, at 6 (affirming the CWRIC provided basis for


Sensing the growing tide favoring redress, the government offered Mr. Korematsu a pardon, but he was not interested because he believed he did nothing wrong.159 Maintaining a principled stand, Mr. Korematsu wanted the government to admit to its lies before the Supreme Court.160

At the final hearing, Judge Patel cited to CWRIC’s findings to note that General DeWitt’s Final Report contradicted credible evidence from federal, civilian, and military authorities, concluding that denying Mr. Korematsu’s motion would result in manifest injustice.161 Judge Patel was especially critical of the government’s final brief to the court, which omitted any mention of contradictory reports about the justification for the evacuation.162 The government failed to provide this information despite many protestations by Justice Department officials about its obligation to disclose conflicting facts and information to the court.163

Judge Patel determined that the government relied on baseless misrepresentations and the racist views of the military commanders.164 Based on those findings, Patel granted a writ of coram nobis, and dismissed Mr. Korematsu’s indictment. Unfortunately, this was only a partial victory because, as Judge Patel explained, her ruling did nothing to affect the Supreme Court decision that remains law:

[T]he Supreme Court’s decision stands as the law of this case and for whatever precedential value it may still have. . . . Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.165

reparations legislation); Wu & Oh, supra note 11, at 170 (discussing reparations paid in 1970s and 1980s). 159. See BANNAI, supra note 15, at 172 (describing Korematsu’s stark disapproval of pardon). 160. See id. (narrating pardon negotiations between government and Korematsu). 161. See Korematsu v. United States, 584 F. Supp. 1406, 1417-18 (N.D. Cal. 1984) (noting admitted evidence proved government knowingly withheld information from court).

This alteration concealed DeWitt’s belief that racial characteristics predisposed all Japanese to disloyalty. It also concealed DeWitt’s statement that time was not a factor in the evacuation decision. . . . [I]t shifted the justification for the evacuation from unsupportable racial myths to logistical practicalities. Following the alteration, the War Department and the military attempted to destroy all evidence of the original report.

Yamamoto, Korematsu Revisited, supra note 5, at 11. 162. See Korematsu, 584 F. Supp. at 1417-18 (criticizing military rationale for detention of Japanese Americans). 163. See id. at 1418-19 (discussing executive branch’s available but unsubmitted reports). 164. BANNAI, supra note 15, at 185 (explaining evidence supporting finding of no military necessity). 165. Korematsu, 584 F. Supp. at 1420. Judge Patel’s sentiments are shared by other scholars. Some suggest that the decision has limited application and serves merely as a historical precedent standing for the proposition that during a time of war, or amidst claims of military necessity, the courts must protect


Over thirty years later, Judge Patel’s comments warrant a broader discussion

in a post-9/11 world. No court or government has ever cited Korematsu for its precedential value.166 Yet the case has never been directly overruled.167 Therefore, despite assurances that Korematsu has limited application, the case could arguably—and distastefully—serve as legal authority.168 As Professor Rostow observed, “[Korematsu] established a precedent which may well be used to encourage attacks on the civil rights of citizens and aliens, and may make it possible for some of those attacks to succeed.”169

In another article, I ask what might happen if there is a series of large-scale terrorist attacks close in time in the United States. “Amidst the immediate shock, anger, fear, and outcry, will the President choose to corral individuals or groups under suspicion based on the the National Defense Authorization Act” and Korematsu, both of which may provide the legal authority to do so?170 Concerning such a hypothetical, Professor Muller suggests that the possibility of a Court relying on Hirabayashi is more concerning, as a race or religious based curfew is more likely to survive judicial scrutiny than a “mass racial detention.”171

Finally, three years after the adjudication in Mr. Korematsu’s case, Mr. Hirabayashi and Mr. Yasui were also successful in their coram nobis cases.172 In Mr. Hirabayashi case, the Ninth Circuit held that his curfew and exclusion convictions should be vacated.173 Additionally, the Ninth Circuit overturned the district court’s ruling that the curfew order was less of an infringement on

constitutional guarantees. See Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 456-57 (2011) (stating Korematsu sets most cited-to precedent for appropriately applying strict scrutiny standard); Beverly E. Bashor, The Liberty/Safety Paradigm: The United States’ Struggle to Discourage Violations of Civil Liberties in Times of War, 41 W. ST. U. L. REV. 617, 627 (2014) (analyzing varying degrees of military deference during times of war). 166. See Greene, supra note 165, at 422-27, 456-60 (discussing problems with and subsequent history of Korematsu); see also Bashor, supra note 165, at 627 (explaining Korematsu’s limited reach). 167. See Bashor, supra note 165, at 627 (outlining impact of Korematsu). 168. See id. (noting “it stands as a constant caution . . . in times of war”). 169. Rostow, supra note 4, at 491. 170. Harvey Gee, National Insecurity: The National Defense Authorization Act, the Indefinite Detention of American Citizens, and a Call for Heightened Judicial Scrutiny, 49 J. MARSHALL L. REV. 69, 70-71 (2015) (asserting concerns about holding U.S. citizens indefinitely “are real”). 171. See Muller, supra note 22, at 1335 (contrasting applicability of Hirabayashi and Korematsu in today’s society). 172. See Hirabayashi v. United States, 828 F.2d 591, 593-94 (9th Cir. 1987) (noting “Hirabayashi and Korematsu decisions have never occupied an honored place in our history”); Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir. 1985) (discussing writ of error), superseded by rule stated in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), abrogated by Padilla v. Kentucky, 559 U.S. (2010). Because Endo was the only “successful” internment case, there was no need for Ms. Endo to file a coram nobis petition. See supra notes 134-135 and accompanying text (discussing appropriate remedy of writ of habeas corpus for releasing interned). 173. See Hirabayashi, 828 F.2d at 593-94 (highlighting “district court . . . reviewed hundreds of documents and heard the testimony of several witnesses”).


Mr. Hirabayashi’s freedom and that the Supreme Court should have have drawn a legal distinction between the curfew and exclusion orders.174 The Ninth Circuit panel assessed how “the information now in the public record constitutes objective and irrefutable proof of the racial basis that was the cornerstone of the internment order.”175

Afterward, the burden of the internment experience slowly began to lift off the collective shoulders of Japanese Americans. Moving forward, Mr. Korematsu became a symbol for social justice by seeking redress for Congress’s mistreatment of Japanese Americans.176 Mr. Korematsu traveled the country to give talks to students, civic organizations, and bar associations about his personal story. Professor Bannai explains that Mr. Korematsu’s message was about more than the wartime treatment of Japanese Americans; it was about preventing the United States “from again compromising civil rights and fundamental freedoms.”177 Later, as senior citizens, President Obama awarded Mr. Korematsu, Mr. Hirabayashi, and Mr. Yasui the Presidential Medal of Freedom.178

After 9/11, Mr. Korematsu and his family remained committed to preventing another internment from ever happening again by filing amicus briefs in the Guantanamo Bay cases.179 After Mr. Korematsu’s death, Seattle University School of Law established the Fred T. Korematsu Center for Law & Equity to

174. See id. at 608 (concluding “district court erred”). 175. Id. at 601. The Ninth Circuit dismissed the government’s contention that Hirabayashi’s motion should be dismissed on ground of laches. Id. at 605. The court also rejected the government’s assertion that Hirabayashi should have discovered DeWitt’s report much sooner, reasoning that it was not Hirabayashi’s fault for failing to find the single existing copy of DeWitt’s report, which even evaded discovery by professional historians. Id. 176. BANNAI, supra note 15, at 190 (explaining Korematsu’s social justice work later in life). 177. Id. at 200 (describing Korematsu’s human rights message given to groups and organizations nationwide). 178. See Press Release, White House Office of the Press Secretary, President Obama Names Presidential Medal of Freedom Recipients (Apr. 26, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012 /04/26/president-obama-names-presidential-medal-freedom-recipients [https://perma.cc/J7HE-8J9W] (naming Mr. Hirabayashi medal winner); Akil Vohra, Honoring Fred Korematsu, OBAMA WHITE HOUSE (Feb. 1, 2011), https://obamawhitehouse.archives.gov/blog/2011/02/01/honoring-fred-korematsu [https: //perma.cc/NG4K-G9QZ] (highlighting Mr. Korematsu’s achievements). Most recently, Mr. Yasui posthumously received the Presidential Medal of Freedom on November 16, 2015. Press Release, White House Office of the Press Secretary, President Obama Names Recipients of the Presidential Medal of Freedom (Nov. 16, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/11/16/president-obama-names-recipients-presidential-medal-freedom [https://perma.cc/XK82-SDGF]. 179. See, e.g., Brief for Fred Korematsu as Amicus Curiae Supporting Petitioners, Rasul v. Bush, 542 U.S. 466 (2004) (Nos. 03-334, 03-343), 2004 WL 103832 (urging U.S. courts to have jurisdiction to hear Guantanamo Bay detainees’ cases); Brief for Fred Korematsu as Amicus Curiae Supporting Petitioners, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (Nos. 03-334, 03-343, 03-6696), 2003 WL 22490565 (discussing enemy combatants’ legal rights); Brief for Karen Korematsu et al. as Amici Curiae Supporting Plaintiffs-Appellees, Hedges v. Obama, 890 F. Supp. 2d 424 (S.D.N.Y. 2012) (Nos. 12-3176, 12-3644), 2012 WL 6622648 (urging for heightened application of National Defense Authorization Act).


advance justice and equality through civil rights advocacy and litigation.180 Most recently, in an opinion-editorial in the New York Times, Karen Korematsu, Mr. Korematsu’s daughter, and Executive Director of the Fred T. Korematsu Institute, compared President’s Trump’s executive order temporarily banning travel from seven majority Muslim countries to the executive orders signed by President Roosevelt calling for the internment. Mr. Korematsu notes, “Executive orders that go after specific groups under the guise of protecting the American people are not only unconstitutional, but morally wrong.”181

V. TEACHINGS AND LESSONS LEARNED FROM KOREMATSU AND THE JAPANESE

AMERICAN INTERNMENT IN A POST-9/11 WORLD

The personal accounts of internment show how politics and racial prejudice can conspire to trample the civil liberties of an entire racial group during a time of war using fabricated claims of military necessary. A modern, searching analysis of the U.S. government’s actions after 9/11, including the prosecution of Guantanamo Bay detainees in military tribunals, highlights the need to follow the rule of law and provide due process of law.

A. Expansion of Executive Authority

In the immediate weeks after the terrorist attacks on the World Trade Center and Pentagon killed nearly 3,000 people, the U.S. government’s actions evoked echoes of the internment. Just as the U.S. government viewed Japanese Americans with suspicion after Pearl Harbor, policy makers and public security officers racially profiled Muslims and Arab Americans after 9/11. Closely paralleling the process leading up to the internment, the legislative branch aligned with the executive branch during the period of shock and grief following 9/11 in order to collaboratively sacrifice fundamental liberties in the name of national security.182 In fact, under the “war on terrorism” umbrella, executive power expanded at an unprecedented rate when Congress passed the 2001 Authorization for Use of Military Force (AUMF).183 The AMUF

180. See Fred T. Korematsu Center for Law and Equality, SEATTLE U. SCH. OF L., http://law.seattleu. edu/centers-and-institutes/korematsu-center (last visited Mar. 10, 2017) [https://perma.cc/E96Q-5TCJ] (noting organization promotes “justice and equality” in Korematsu’s name).

181. Karen Korematsu, When Lies Overruled Rights, N.Y. TIMES (Feb. 17, 2017), https://www.nytimes.com/2017/02/17/opinion/when-lies-overruled-rights.html. 182. See Susan Kiyomi Serrano & Dale Minami, Korematsu v. United States: A “Constant Caution” in a Time of Crisis, 10 ASIAN L.J. 37, 38 (2003) (explaining reemergence of Korematsu-like era of “national security and civil liberties tensions” after 9/11). 183. See Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (authorizing force against terrorists involved in 9/11 attacks); YAMAMOTO ET AL. 2D ED., supra note 25, at 391 (examining arguments about necessity of executive power expansion); A. Wallace Tashima, Play It Again, Uncle Sam, 68 L. & CONTEMP. PROBS. 7, 9 (2005) (noting executive’s determination to expand war powers not


authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks[,] . . . or harbored such organizations or persons, in order to prevent any future acts of intentional terrorism against the United States.”184 This broadly worded resolution aimed at a new kind of enemy who targeted civilians and did not represent a government.185

The government implemented a special registration of Arab and Muslim noncitizens, indefinitely detained “enemy combatants,” and selectively deported individuals based on their national origin and race.186 On this issue, Professor Sheryll Cashin explains, the “9/11 attacks contributed mightily to widespread identification of Muslims with terrorism. The 9/11 attacks arguably created a ‘terrorist’ stereotype that fuels a perception in the American psyche of Islam and the Middle West as being a civilization in direct opposition to that of the United States and the West.”187 Notably, considering the Arabs and Muslims as terrorist trope was not a new phenomenon; it just became heightened after 9/11. According to legal scholars Susan Akram and Kevin Johnson, even before 9/11, a history of racial animus against Arabs and Muslims already existed, facilitated through “[a] complex matrix of ‘otherness’ based on race, national origin, religion, culture, and political ideology.”188

Just as the Japanese internees were deprived of individual hearings to determine loyalty, individuals were rounded up without probable cause and due

against foreign enemy, but against own citizens). 184. Authorization for Use of Military Force § 2(a) (responding to 9/11 attacks). 185. See Sarah Lohmann & Chad Austin, When the War Doesn’t End: Detainees in Legal Limbo, 92 DENV. U. L. REV. ONLINE 1, 7 (2014) (noting different enemy type created legal confusion). 186. See Liette Gilbert, Immigration As Local Politics: Re-Bordering Immigration Through Deterrence and Incapacitation, in GOVERNING IMMIGRATION THROUGH CRIME: A READER 181, 185 (Julie A. Dowling & Jonathan Xavier Inda eds., 2013) (discussing controversial nature of discretionary detention power); YAMAMOTO ET AL. 2D ED., supra note 25, at 409 (noting only “half of Guantánamo detainees participated in any hostile act against the United States”); Sharon L. Davies, Profiling Terror, 1 OHIO ST. J. CRIM. L. 45, 45-51 (2003) (discussing government’s post-9/11 profiling of Arabs and Muslims); Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURV. AM. L. 295, 301-02 (2002) (discussing how 9/11 exacerbated demonization of Arabs and Muslims throughout U.S. history). The image of Arab and Muslim noncitizens as potential terrorists is a mainstream racial stereotype perpetuated by the media. See Akram & Johnson, supra, at 301-02. 187. Sheryll Cashin, To Be Muslim or “Muslim-Looking” in America: A Comparative Exploration of Racial and Religious Prejudice in the 21st Century, 2 DUKE F. FOR L. & SOC. CHANGE 125, 130 (2010) (noting increased discrimination against Muslims manifesting in implicit and explicit bias after 9/11); see also R. Richard Banks, Racial Profiling and Antiterrorism Efforts, 89 CORNELL L. REV. 1201, 1201 (2004) (discussing racial profiling and resulting undue burden on Arabs and Muslims); Victor C. Romero, Decoupling ‘Terrorist’ from ‘Immigrant’: An Enhanced Role for the Federal Courts Post 9/11, 7 J. GENDER, RACE & JUST. 201, 201-04 (2003) (discussing racial profiling of Arab-Muslim immigrants after 9/11, criticizing over and under inclusiveness). 188. Akram & Johnson, supra note 186, at 299. Akram and Johnson further argue that demonization can be traced to popular stereotypes, media misrepresentations, and politically motivated U.S. foreign policy in the Middle East. Id. at 301-02.


process.189 President Bush issued a military order directing the Secretary of Defense to create military tribunals and establish detention authority.190 With the prison established at Guantanamo Bay, President Bush convinced Congress that the denial of habeas corpus rights to alleged enemy combatants was necessary.191 The White House argued that the military could indefinitely detain individuals—without charge or due process—captured on the battlefield or arrested on U.S. soil.192 Remarkably, the overwhelming majority of the Guantanamo detainees—all foreign citizens who have not been convicted of any criminal offense—are indefinitely detained as illegal enemy combatants.193 Regarding this lack of due process, Professor Jonathan Hafetz argues that the U.S. government “waged a relentless campaign to deny the detainees access to a lawyer and a judge, all the while subjecting them to harsh interrogations, prolonged isolation, and other abuse.”194 This campaign was consistent with the Bush Administration’s treatment of terrorism as an armed conflict rather than criminal activity.195 Under this design, detainees were to be tried in military commissions where government prosecutors have a significantly lower evidentiary burden.196

189. See Gee, supra note 170, at 77 (describing lack of evidence shown to justify mass internment). In some cases, detainees were interrogated, and even tortured, in secret overseas prisons after extrajudicial rendition to third countries. See YAMAMOTO ET AL. 2D ED., supra note 25, at 414 (explaining “torture memos” released in 2009 detailed process for military detainees). 190. See Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1260-61 (2002) (noting detention criteria’s broad nature). “President Bush has claimed the power to create and operate a system for adjudicating guilt and dispensing justice through military tribunals without explicit congressional authorization.” Id. at 1308; see also JONATHAN HAFETZ, HABEAS

CORPUS AFTER 9/11: CONFRONTING AMERICA’S NEW GLOBAL DETENTION SYSTEM 130 (2011) (discussing failure to provide evidence, adequate counsel, and ultimately fair process to detainees). 191. See HAFETZ, supra note 190, at 150-52 (discussing President Bush’s explanation and Congress’s passage of Military Commissions Act). 192. See JOAN BISKUPIC, SANDRA DAY O’CONNOR: HOW THE FIRST WOMAN ON THE SUPREME COURT

BECAME ITS MOST INFLUENTIAL JUSTICE 332 (2005) (explaining Bush Administration claimed presidential powers include indefinite detention of war zone prisoners); HAFETZ, supra note 190, at 68-69, 76 (claiming classifying detainees “enemy combatants” replaced due process with “regime of indefinite military detention”); Neal Devins, Congress, the Supreme Court, and Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy by Placing Limits on Federal Court Jurisdiction, 91 MINN. L. REV. 1562, 1582 (2007) (explaining Bush Administration severely limited judicial checks on executive throughout prosecution of war on terror); A. Wallace Tashima, Jefferson Memorial Lecture: The War of Terror and the Rule of Law, 15 ASIAN AM. L.J. 245, 246 (2008) (explaining administration detains suspected terrorists without formal charge or designation of prisoner of war). 193. See HAFETZ, supra note 190, at 247 (noting Guantanamo detainees imprisoned for years based on government allegations); Owen M. Fiss, Law Is Everywhere, 117 YALE L.J. 258, 265 (2007) (describing treatment of Guantanamo detainees akin to that of illegal enemy combatants). 194. HAFETZ, supra note 190, at 247-48. 195. See id. at 2 (noting “detention policies sparked intense legal battles”); Charlie Savage, Obama Team Is Divided on Anti-Terror Tactics, N.Y. TIMES (Mar. 28, 2010), http://www.nytimes.com/2010/03/29/us /politics/29force.html [https://perma.cc/PC9J-PKKY] (asserting President Bush “claimed virtually unlimited power” to detain those deemed threats after 9/11 attacks). 196. See Frank Lindh, America’s ‘Detainee 001’—The Persecution of John Walker Lindh, GUARDIAN

(July 10, 2011), https://www.theguardian.com/world/2011/jul/10/john-walker-lindh-american-taliban-father [h


B. Double Standards of Race and Citizenship in the War on Terror

This section examines three detainee cases to illustrate how detainees’ race and citizenship affected their treatment. The first case is John Walker Lindh, who became known to the American public as “The American Taliban.”197 Frequent news coverage in December 2001 showed him laying down on a medical stretcher suffering from a gunshot wound as he was removed from a dark underground basement in Mazar-e-Sharif prison compound. In Mazar-e-Sharif, he was hiding with other Taliban detainees for a week, resisting Northern Alliance captors trying to force them out with bombs, fire, and cold water. A month before, Lindh, carrying an AKM rifle and two grenades, was captured by Northern Alliance troops near the front line in Takbar and detained at the compound. When Taliban detainees overpowered guards and armed themselves, Central Intelligence Agency (CIA) Agent Spann, who there to interview Lindh, was shot and killed.

The media portrayed Lindh, then a long-haired, bearded, twenty-year-old, white American from Marin County, California as an Islam convert, fighting alongside the Taliban in Afghanistan; many considered him a traitor. Lindh converted to Islam when he was sixteen and traveled to Yemen to study Arabic, immersing himself in Islamic culture.198

In the summer of 2001, Lindh, intending to fight in Afghanistan against the Northern Alliance, enrolled in a training program in Pakistan focused on “Jihad, physical exercise, and weapons training.”199 Lindh initially identified himself as an American when reporting to the recruitment center.200 During his training, Lindh met with Osama bin Laden for five minutes.201 In his affidavit to the court, Lindh stated that he never wanted to fight against the United States, and only learned about the 9/11 attacks when he was in Afghanistan.202

Unlike the other persons captured as enemy combatants in Afghanistan, the U.S. government brought Lindh over to stand trial as a criminal defendant.203 Lindh’s father, an attorney himself, enlisted famed San Francisco attorney

ttps://perma.cc/KVD8-K5ZL] (discussing John Walker Lindh through his father’s perspective, including his many legal challenges); see also Jonathan Hafetz, Reconceptualizing Federal Courts in the War on Terror, 56 ST. LOUIS U. L.J. 1055, 1094 (2012) (noting D.C. Circuit upholds use of hearsay evidence and deference to government’s evidence). 197. See Susan Orenstein, Trial by Fury, MOTHER JONES (Nov. 1, 2004), http://www.motherjones.com/ politics/2004/11/trial-fury [https://perma.cc/PBU3-8V48] (highlighting Lindh’s journey). 198. See Tung Yin, Enemies of the State: Rational Classification in the War on Terrorism, 11 LEWIS &

CLARK L. REV. 903, 907-08 (2007) (noting Lindh’s troubled childhood). 199. United States v. Lindh, 227 F. Supp. 2d 565, 567 (E.D. Va. 2002). 200. Id. 201. Id. at 568. 202. Id. (noting, however, Lindh “swore allegiance to Jihad”). 203. See Yin, supra note 198, at 907 (highlighting Lindh’s unique treatment). See generally MARK KUKIS, “MY HEART BECAME ATTACHED”: THE STRANGE JOURNEY OF JOHN WALKER LINDH, ch. 8 137 (2003) (describing Lindh’s capture, questioning, and journey to United States).


James Brosnahan, senior counsel at Morrison & Forester and former Iran-Contra prosecutor, to represent Lindh.204 Lindh faced ten criminal counts, including conspiring to kill Americans and providing support to al Qaeda; he pled guilty to a single count of supplying services to the Taliban, and received a twenty-year sentence.205

In contrast, the government apprehended Yasser Esam Hamdi, an American citizen of Arab decent, in the same basement as Lindh; however, the government did not treat Hamdi as a criminal defendant, nor did it ensure him due process. Rather, the government classified Hamdi as an “enemy combatant,” transferred him to Guantanamo Bay, and held him in solitary confinement for two years without charging him and/or allowing him access to counsel.206 The government’s reason for holding Hamdi is supplied in a Defense Department official’s affidavit, alleging Hamdi was affiliated with the Taliban and had received weapons training.207 In response, Hamdi maintained that he had been mislabeled as a Taliban fighter, and was denied the due process he deserved.

Hamdi was born in Louisiana in 1980 to a father who was a Saudi Arabian citizen temporarily employed in the United States.208 Three years later, he and his family moved to Saudi Arabia.209 In 2001, Hamdi went to Afghanistan for Taliban weapons training.210 As a member of a Taliban unit, he was seized by the Northern Alliance and turned over to the U.S. military.211 After an initial interrogation, the government moved Hamdi from Afghanistan to the U.S. Naval Base at Guantanamo Bay in January 2002.212

Hamdi’s father brought suit by filing a habeas corpus petition in the Eastern District of Virginia, alleging that his son, an American citizen, had no access to legal counsel or notice of charges brought against him in violation of the Fifth and Fourteenth Amendments.213 The district court appointed a federal public defender as counsel to Hamdi, and held that standing alone, the government’s declaration that Hamdi was associated with the Taliban and al Qaeda could not support his continued detention.214 On appeal, the Fourth Circuit reversed and

204. See Orenstein, supra note 197 (discussing Lindh’s legal battles). 205. See United States v. Lindh, 227 F. Supp. 2d 565, 566 (E.D. Va. 2002) (indicating Lindh’s charges ultimately included crimes of terrorism). 206. See Jonathan Turley, Camps for Citizens: Ashcroft’s Hellish Vision, L.A. TIMES (Aug. 14, 2002), http://articles.latimes.com/2002/aug/14/opinion/oe-Turley14 [https://perma.cc/5BYW-BB54] (identifying stark differences between Lindh and Hamdi detentions). 207. See id. (highlighting Attorney General John Ashcroft’s approach). 208. Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004). 209. Id. 210. Id. at 513. 211. Id. at 510. 212. Hamdi, 542 U.S. at 510. 213. Id. at 511. 214. See Hamdi v. Rumsfeld, 542 U.S. 507, 507 (2004) (holding detention unconstitutional when standing alone).


held that no factual inquiry or evidentiary hearing was necessary for Hamdi because he was captured in an active combat zone.215

When the case went to the Supreme Court, Justice O’Connor wrote the plurality opinion, joined by Chief Justice Rehnquist, and Justices Kennedy and Breyer; they affirmed the President’s power to detain members of al Qaeda and the Taliban indefinitely.216 The Court further held that Hamdi must be afforded due process, given judicial notice, and given a fair and meaningful opportunity to contest his detention.217 Justice O’Connor emphasized the importance of the basic constitutional due process guarantee to prisoners, stating that Hamdi must be granted the same right to contest the government’s basis for his designation as an enemy combatant.218 The Court explicitly rejected the government’s position that enemy combatants are not entitled to traditional legal rights.219 The Court also rejected the government’s claim that providing due process to enemy combatants would be a significant distraction to military officers on the battlefront.220 After the Court’s decision, the Justice Department released Hamdi, and he was returned to Saudi Arabia on the conditions that he give up his U.S. citizenship, renounce terrorism, and agree not to sue the U.S. government.221

In comparing Hamdi and Lindh, some scholars speculated that a racial double standard existed for the two men.222 Nevertheless, Professor Tung Yin explains that a closer look at the two cases reveals that Hamdi and Lindh were not similarly situated.223 Hamdi held dual Saudi-U.S. citizenship, and his national identity is Saudi because he was raised in Saudi Arabia by Saudi parents—he just happened to have been born in Louisiana, and held no other affiliation with the United States.224 Lindh, however, had an American national identity because he was raised in America by American parents and only later went to Afghanistan.225 Additionally, in reconciling the differences in treatment, Professor Yin reports that Lindh being white made it easy for

215. Id. 216. Id. at 508, 518 (elaborating on President’s broad power and authorization). 217. Id. at 508. 218. Hamdi, 542 U.S. at 509. 219. Id. 220. Hamdi v. Rumsfeld, 542 U.S. 507, 526-27 (2004). 221. See Richard B. Schmitt, U.S. Will Free Louisiana-Born ‘Enemy Combatant,’ L.A. TIMES (Sept. 23, 2004), http://articles.latimes.com/2004/sep/23/nation/na-hamdi23 [https://perma.cc/M849-4QDD] (describing release conditions). 222. See Erwin Chemerinsky, Post 9/11 Civil Rights: Are Americans Sacrificing Freedom for Security?, 81 DENV. U. L. REV. 759, 763 (2004) (considering race reasons Bush Administration and Justice Department treated Lindh and Hamdi differently); Turley, supra note 206 (examining Lindh and Walker cases and speculating about reasons for their different treatment). 223. See Yin, supra note 198, at 919 (considering national identity controlling, determinative factor in treatment). 224. See id. at 909, 925 (noting Hamdi’s upbringing completely Saudi). 225. See id. at 925 (asserting Lindh retained American national identity despite his stay in Pakistan).


Northern Alliance fighters to suspect him as an American, whereas Hamdi apparently did not find out about his U.S. citizenship until his transference from Guantanamo to a Navy prison.226 In light of this classification controversy, Professor Yin suggests that in an era of multiple citizenships, classifying detainees based on their national identity instead of citizenship is a better proxy for determining appropriate government action towards suspected terrorists.227

The shortcomings of the government’s inconsistent classification of enemies of the state becomes even more apparent when comparing Lindh’s case to Jose Padilla’s prosecution. Padilla grew up in Chicago and acquired a lengthy criminal history in his early years.228 He converted to Islam in 1994.229 From 1998 through 2002, Padilla traveled to Egypt, learned Arabic, and eventually married in Pakistan.230 All the while, he never renounced his U.S. citizenship.231 The Department of Defense detained Padilla pursuant to the President’s determination that he was an “‘enemy combatant’ who conspired with al Qaeda to carry out terrorist attacks in the United States.”232 FBI agents apprehended Padilla based on a material witness warrant, as he flew from Pakistan to Chicago on May 2, 2002 in connection with a grand jury investigation of the 9/11 terrorist attacks.233 When Padilla’s counsel moved to vacate the warrant, President Bush “issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an ‘enemy combatant’ and directing the Secretary to detain him in military custody.”234

Curiously, Padilla, an American, was initially placed in military detention for his actions occurring on U.S. soil, while Lindh was criminally prosecuted for conduct in Afghanistan.235 Eventually, Padilla was appointed counsel who filed a habeas petition in Rumsfeld v. Padilla,236 which the Court decided the same day as Hamdi.237

Prior to the Court granting certiorari, the New York Southern District Court denied Padilla’s habeas corpus petition challenging the lawfulness of his detention, finding that the President had the authority to designate and detain an enemy combatant captured on American soil during a time of war.238 On

226. See id. at 909 (explaining significance of Hamdi’s lack of knowledge of U.S. citizenship). 227. See Yin, supra note 198, at 919 (describing two instances when citizenship fails to adequately describe national identity). 228. Id. at 931. 229. Id. 230. Id. 231. Yin, supra note 198, at 931-32. 232. Rumsfeld v. Padilla, 542 U.S. 426, 430 (2004). 233. Id. at 430-31. 234. Id. at 431. 235. Yin, supra note 198, at 931. 236. 542 U.S. 426 (2004). 237. See id. at 432 (describing procedural history of Padilla case). See generally Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 238. See Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 588 (S.D.N.Y. 2002) (finding U.S.


appeal, the Second Circuit reversed, holding that the President, absent authorization from Congress, does not have the power under the Constitution to detain an American citizen seized on American soil outside the zone of combat as an enemy combatant.239 The Supreme Court, on review, declined to address the issue of Padilla’s designation as an enemy combatant, and instead remanded the case based on improper jurisdiction.240 Amidst criticisms by civil rights organizations and reacting to a negative Fourth Circuit ruling on President Bush’s sweeping powers, Padilla’s case was later transferred to federal court, and he was prosecuted on criminal conspiracy charges.241

Professor David Cole, who studied Padilla’s case and the internment cases, advocates for equal treatment for noncitizens and citizens.242 Professor Cole argues that there should be no basis for treating noncitizens differently than citizens—the basic rights of “political freedom, due process, and equal protection of the laws—are not limited to citizens.”243 He insists that treating people differently based on a citizen or non-citizen classification undermines the national security interest, compromising the United States’s legitimacy at home and abroad.244

C. Victories for Guantanamo Bay Detainees at the Supreme Court: Honoring Detainees’ Habeas Corpus Rights and the Rule of Law

Guantanamo Bay detainees have secured important victories at the Supreme Court. Unlike the internment cases where the Supreme Court Justices denied the racial reality of the camps, the Court in the Guantanamo Bay cases has rigorously analyzed the constitutional limits of detention.245 The Guantanamo

Constitution authorized President to direct military to detain enemy combatants), adhered to on reconsideration sub nom. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003). 239. See Padilla v. Rumsfeld, 352 F.3d 695, 722 (2d Cir. 2003) (reversing prior holding), rev’d and remanded, Rumsfeld v. Padilla, 542 U.S. 426 (2004). 240. See Padilla, 542 U.S. at 447 (holding Southern District of New York lacked jurisdiction to hear habeas corpus petition). 241. See Padilla v. Hanft, 423 F.3d 386, 396 (4th Cir. 2005) (highlighting how “Padilla poses the requisite threat of return to battle in ongoing armed conflict”). On remand, the district court had held that the President lacked authority for Padilla’s detention and that he must be criminally charged or released. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 53 (S.D.N.Y. 2003). Upon the government’s appeal, the Fourth Circuit reversed the district court’s ruling, holding that the detention of Padilla was authorized by the AUMF as interpreted in Hamdi. Hanft, 423 F.3d at 396-97; see also Neil A. Lewis, Terror Trial Hits Obstacle, Unexpectedly, N.Y. TIMES (Dec. 1, 2005), http://www.nytimes.com/2005/12/01/politics/terror-trial-hits-obstacle-unexpectedly.html [https://perma.cc/NU3C-UJ5Q] (arguing denial of basic rights to noncitizens violates constitution). 242. David Cole, Their Liberties, Our Security: Democracy and Double Standards, 31 INT’L J. LEGAL

INFO. 290, 292 (2003). 243. Id. Professor Cole warns “trading immigrants’ rights for citizens’ security is misleading, for what we let our government do to immigrants creates precedents for how it treats citizens.” Id. 244. Id. 245. See infra note 246 and accompanying text (noting Guantanamo Bay cases enabled judicial hearings for detainees). For example, Justice Souter referenced Korematsu and the internment in his concurrence in


Bay cases enabled detainees to receive judicial hearings in federal court, evaluating the legitimacy of their detentions.246

Hamdan v. Rumsfeld247 and Boumediene v. Bush248 are the most recent cases to reach the Court’s docket. The Hamdan Court held that the executive is bound to comply with the rule of law, and the Boumediene Court vindicated the importance of habeas corpus by striking down the Detainee Treatment Act of 2005 for violating the Constitution’s Suspension Clause.249 Boumediene rejected the President’s claim that he could detain prisoners without legal protections or hold them indefinitely without judicial review simply by imprisoning them outside the United States.250

Conversations about Guantanamo Bay and its legacy extended beyond President Bush’s Administration and into Obama’s presidency. American voters who believed that Obama’s presidency would mean detainees would have the right to challenge their detention in courts were sadly disappointed.251 To the dismay of many civil rights organizations, President Obama continued the indefinite detention of suspected terrorists without charge based on the AUMF.252 Professor Jack Goldsmith, former Attorney General of the Office of

Hamdi. See Hamdi v. Rumsfeld, 542 U.S. 507, 544-45 (2004) (Souter, J., concurring). And in Padilla, Justice Stevens cited to Endo in analyzing the immediate custodian issue in habeas cases. See Rumsfeld v. Padilla, 542 U.S. 426, 461 (2004) (Stevens, J., dissenting) (noting “decisions have created a unique and unprecedented threat to the freedom of every American”). In his dissent in Hamdi, Justice Thomas cited Hirabyashi for the proposition that the judiciary should defer to the executive branch. Hamdi, 542 U.S. at 584 (Thomas, J., dissenting) (highlighting distinguishable cases). 246. See Harvey Gee, Habeas Corpus, Civil Liberties, and Indefinite Detention During Wartime: From Ex Parte Endo and the Japanese American Internment to the War on Terrorism and Beyond, 47 U. PAC. L. REV. 791, 818 (2016) (summarizing consequences of Padilla decisions). 247. 548 U.S. 557 (2006). 248. 553 U.S. 723 (2008). 249. See Hamdan, 548 U.S. at 591 (reinforcing primacy of Constitution over President); Jonathan Hafetz, Calling the Government to Account: Habeas Corpus in the Aftermath of Boumediene, 57 WAYNE L. REV. 99, 101 (2011) (discussing significance of Boumediene). Hafetz notes that the Supreme Court had never invalidated a statute because it violated the Supremacy Clause before Boumediene. Hafetz, supra, at 101. 250. See David D. Cole, Against Citizenship As a Predicate for Basic Rights, 75 FORDHAM L. REV. 2541, 2547 (2007) (reporting Court rejected Bush Administration’s “claim of unfettered executive power” in Rasul and Hamdi); see also HAFETZ, supra note 190, at 2 (contrasting Court’s position on habeas rights with President’s actions). 251. See Gary A. Issac, The Wrong Person: How Barack Obama Abandoned Habeas Corpus, in OBAMA’S GUANTÁNAMO: STORIES FROM AN ENDURING PRISON 27, 33, 37 (Jonathan Hafetz ed. 2016) (listing actions at odds with Obama’s rhetorical defense of habeas corpus and determined to close Guantanamo). President Obama made campaign speeches about the importance of honoring the rule of law and habeas corpus rights for detainees. See id. at 33. 252. See Jonathan Hafetz, Military Detention in the ‘War on Terrorism’: Normalizing the Exceptional After 9/11, 112 COLUM. L. REV. SIDEBAR 31, 41 (2012) (noting lack of emergency rationale for confinement and prosecution).

Obama also had to navigate an increasingly treacherous political terrain, with members of the opposing party continually trying to make him appear weak on national security, often by distorting the facts, and with some members of his own party resisting his efforts to close Guantánamo and bring terrorism suspects to trial in the United States. In addition, Obama faced internal resistance


Legal Policy and Special Counsel to the Department of Defense during the Bush Administration, observes that “[c]ontrary to nearly everyone’s expectations, the Obama administration would continue almost all of its predecessor’s policies, transforming what had seemed extraordinary under the Bush regime into the ‘new normal’ of American counterterrorism policy.”253 As discussed in the remainder of this Article, the Court’s and the D.C. Circuit’s Guantanamo jurisprudence have created a new normal in detainee litigation today.

VI. A LOSING PROPOSITION: D.C. CIRCUIT GUANTANAMO BAY LITIGATION

AFTER BOUMEDIENE

This section argues that just as the petition for writ of habeas corpus was an inadequate remedy for Japanese American detainees in the 1940s, the writ similarly falls short for Guantanamo Bay detainees on at least two grounds. First, Guantanamo Bay detainees contesting their detention using a writ of habeas corpus experience an extraordinarily long wait for a judicial decision on the merits of their petition. Second, when the D.C. Circuit eventually reviews their petitions, the appellate court will likely easily deny the writs because the government can easily establish present prima facie contrary case.254 Given this reality, former President Obama’s failure to close the base, and President Trump’s intent to maintain the prison, the due process and fair trials remain out of reach for detainees.255

After Boumediene, district courts ruled in Guantanamo Bay cases with varied results. D.C. District Court judges have validated the government’s

from some senior military and intelligence officials determined to maintain the status quo. These pressures helped limit the extent to which the new administration was willing to risk political capital by breaking from the practices of its predecessors.

HAFETZ, supra note 190, at 253. 253. JACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11 5 (2012). Goldsmith considers Obama’s dropping of the “war on terror” and “enemy combatant” language as superficial changes because the Obama Administration never offered alternative rationales for detaining individuals indefinitely at Guantanamo Bay. Id. at 40-41; see also David Frakt, A Tale of Two Detainees, in OBAMA’S

GUANTÁNAMO: STORIES FROM AN ENDURING PRISON 187, 194 (Jonathan Hafetz ed. 2016) (acknowledging Obama’s lack of effort fulfilling campaign pledge attempting reformation, instead shutting down military commissions); Jonathan Hafertz, Introduction to OBAMA’S GUANTÁNAMO: STORIES FROM AN ENDURING

PRISON 3 (Jonathan Hafetz ed. 2016) (noting Obama also adopted rationale stemming from AUMF for presidential authority to detain individuals indefinitely without trial); HAFETZ, supra note 190, at 250-51 (noting Obama Administration maintained courts could not review Guantanamo detainee transfer despite allegations of torture). Mirroring the prior administration’s position, the Obama Administration maintained that the transfer of prisoners in the war on terror rested solely in the hands of the executive. HAFETZ, supra note 190, at 250-51. 254. See JOHNSON, supra note 13, at 21 (analogizing civil liberties during Japanese internment to post-9/11 rights suppression against citizens and noncitizens). 255. See HAFETZ, supra note 190, at 155 (noting Guantanamo closure replicates same problems but in United States).


broad claims that detainees not found on the battlefield could be classified as enemy combatants under the AUMF.256 Yet in a significant number of cases, district court judges alternatively assessed that the government failed to offer credible and reliable evidence to justify detainee imprisonment as enemy combatants.257 On this issue, one commentator opined that the government’s mischaracterization of the prosecution’s evidence is not a rare occurrence. In some cases, the government’s claims that the detainee is an enemy combatant should be met with skepticism, as government officials may have misstated the facts of the case.258 In these cases, the detainees were arrested by the Northern Alliance or Pakistani authorities, not U.S. forces:

Some were seized from their homes, places of work, or simply off the street, mostly in Pakistan, not Afghanistan, often based upon anonymous allegations of a connection to Al Qaeda or the Taliban. Most were never on a battlefield and have not been determined to have committed any hostile act against the United States or its allies.259

These sentiments are echoed by another scholar who contends that many Guantanamo detainees were imprisoned based on “shoddy intelligence, false identifications, and compelled confessions.”260

Recent developments in the Guantanamo detainee litigation in the D.C. Circuit, which has become the de facto court of last resort for detainees, highlights the incredibly high hurdle detainees have to clear in seeking release.261 On the procedural level, the likelihood of the D.C. Circuit granting habeas relief is slim to none, considering the government has a significant advantage in only having to satisfy a minimal standard of proof combined with the D.C. Circuit’s hostility towards these petitions.262 Because the D.C. Circuit broadly interprets executive detention authority, the government essentially only needs to show that a detainee has done something indicating an association with terrorists.263 Professor Jonathan Hafetz explains that the

256. See id. at 243 (explaining acceptance of definition upheld in Hamdi v. Rumsfeld). 257. See id. (highlighting contradictory court decisions regarding enemy combatant classification). “Once detainees finally were given hearings, and judges had a chance to take a look at the facts, it became clear that in many cases the government had been imprisoning people without any credible or reliable evidence.” Id. at 248 (reiterating AUMF abuse). 258. See Frank Goldsmith, The “Taliban Five” and the Prisoner Exchange, in OBAMA’S GUANTÁNAMO: STORIES FROM AN ENDURING PRISON 134, 148 (Jonathan Hafetz ed. 2016) (considering government’s mischaracterization of facts reasoning for “enemy combatant” status). 259. Id. 260. Omar Farah, Nourishing Resistance: Tariq Ba Odah’s Eight-Year Hunger Strike at Guantánamo Bay, in OBAMA’S GUANTÁNAMO: STORIES FROM AN ENDURING PRISON 119, 122 (Jonathan Hafetz ed. 2016). 261. See Stephen I. Vladeck, The D.C. Circuit After Boumediene, 41 SETON HALL L. REV. 1451, 1452, 1454 (2011) (explaining D.C. Circuit’s expansive jurisdiction over Guantanamo claims since 2004). 262. See id. (noting denials of habeas relief elicited few dissents, and Court denied certiorari in all cases). 263. See Hafetz, supra note 252, at 40 (explaining government’s low evidentiary burden of allowing hearsay and limiting detainees defense ability); see also Dixon, supra note 1, at 51 (observing “D.C. Circuit’s overt hostility to detainee legal challenges”).


government’s ability to successfully meet its burden can be largely attributed to the “evidence to support the government’s claim that a detainee was an ‘enemy combatant’ was often shockingly weak, sometimes consisting only of vague assertions, hearsay statements of other detainees, and summaries of raw, unverified intelligence reports.”264 Additionally, detainees are at a greater disadvantage as they are not permitted to review information deemed “classified,” and defense counsel is precluded from sharing such heavily-redacted “classified information,” including the disputed facts in the case.265

Further, in relying heavily on classified information combined with a generalized mosaic theory to support its claim that indefinite detention was warranted under the AUMF, the government typically argues that its allegations and evidence should be examined together, not in isolation. Professor Hafetz adds that “[t]he mosaic approach required the fact-finder to draw inferences from the government’s myriad allegations, connecting the dots without hard evidence.”266 As showcased in Latif v. Obama,267 the government routinely meets this easy threshold.268 Latif was a key decision allowing the government to prove the lawfulness of the petitioner’s detention with merely a single official government report.269 In its prosecution, the government relied on a heavily redacted report indicating that Adnan Farhan Abdul Latif traveled to Afghanistan in 2001, received weapons training from the Taliban, and was stationed on the front line against the Northern Alliance.270 Responding, Latif challenged the summation of his testimony by arguing that the statements were misunderstood or misattributed to him and that he left Yemen in 2001 to seek medical treatment for head injuries sustained in a 1994 car accident.271

Judge Brown’s opinion took a narrow reading of Boumediene, and concluded that “intelligence documents of the sort at issue here are entitled to a presumption of regularity, and second that neither internal flaws nor external record evidence rebuts that presumption in this case.”272 According to Judge Brown, the presumption of regularity means that “the government official accurately identified the source and accurately summarized his statement, but it implies nothing about the truth of the underlying non-government source’s statement.” 273 On that basis, the D.C. Circuit vacated the district court’s grant

264. HAFETZ, supra note 190, at 132. 265. See Goldsmith, supra note 258, at 144 (explaining procedural disadvantage for detainees); see also HAFETZ, supra note 190, at 251. 266. HAFETZ, supra note 190, at 245. 267. 677 F.3d 1175 (D.C. Cir. 2011). 268. See id. at 1178 (using “minimum threshold of persuasiveness” standard) (citation omitted). 269. See id. at 1206 (Tatel, J., dissenting) (highlighting district court found “single report” not sufficiently reliable to prove association with terrorist groups). 270. Id. at 1177 (majority opinion). 271. Latif, 677 F.3d at 1177. 272. Id. at 1179. 273. Latif v. Obama, 677 F.3d 1175, 1180 (D.C. Cir. 2011).


of Latif’s writ of habeas corpus, holding that district courts must give a “presumption of regularity” to official government records even though district courts had previously found that evidence was unreliable.274

Next, the analysis of Guantanamo cases thus far in this section suggests if the government is intending to hold detainees at Guantanamo Bay until the end of the war, it may be years or even decades before they are released at the conclusion of the longest war in U.S. history.275 On this issue, Professor Goldsmith cautions that the war on terror has “no apparent end, [and] mistaken identifications of the enemy can result in indefinite and thus brutally unfair confinement, simply on the basis of mistakes about membership.”276 Along a similar line, because courts have focused almost exclusively on the threshold issue of whether a detainee falls within the terms of the AUMF, Professor Hafetz contends that there is no real effort to determine the issue of when the government’s detention authority ends “as time passes and circumstances change.”277

Two recent cases support this notion of a war with no foreseeable end. The D.C. Circuit addressed the issue of who determines the end of hostilities for AUMF detention in Al Warafi v. Obama.278 Applying a preponderance of the evidence standard, the court held that the President’s speeches were not law, and it denied Al Warafi’s petition for writ of habeas corpus.279 Mukhtar Yahia Najial al Warafi was captured by the Northern Alliance in Afghanistan in November 2001.280 The United States took custody of him, and has detained him at Guantanamo since 2002.281 Challenging the legality of his detention at Guantanamo Bay, Al Warafi filed for a writ of habeas corpus in 2004, which the court denied in 2010 after it found that the government had shown Al Warafi, more likely than not, belonged to the Taliban when he was captured.282

In Al Warafi’s second challenge to his detention, the government argued that determining when hostilities have ended is reserved for the political branches,

274. Id. at 1176 (articulating basis for remand). 275. See Chemerinsky, supra note 222, at 763 (noting Bush’s satisfaction with holding detainees extending “beyond any of our lives”). 276. GOLDSMITH, supra note 24, at 116. 277. See Jonathan Hafetz, Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing, 61 UCLA L. REV. 326, 330-31 (2014) (noting judges mainly focus on “front-end classifications”); see also GOLDSMITH, supra note 253, at ix (considering war against terrorists “endless” and constituting America’s longest war continuing on several fronts); Aya Gruber, Raising the Red Flag: The Continued Relevance of the Japanese Internment in the Post-Hamdi World, 54 U. KAN. L. REV. 307, 401 (2006) (asserting “War on Terror is vague . . . [so] Court must construct . . . limits on military detention power”). 278. No. 09–2368 (RCL), 2015 WL 4600420 (D.D.C. July 30, 2015), vacated and appeal dismissed (D.C. Cir. 15-5266) Mar. 4, 2016. 279. Id. at *5 (finding President’s speeches not dispositive on existence of active hostilities). 280. Id. at *1. 281. Id 282. Al Warafi, 2015 WL 4600420, at *1 (noting procedural history).


while Al Warafi claimed that the President could determine when a conflict is over.283 Al Warafi cited to a number of speeches wherein President Obama stated that America’s war in Afghanistan is coming to an end or that the war is over in reference to the withdrawal of U.S. troops.284 Al Warafi considered the President’s stance on the existence of hostilities as conclusive.285 Rejecting this argument, the court concluded that the President’s speeches are not dispositive on the existence of active hostilities.286

In the Spring of 2016 in Razak v. Obama,287 District Court Judge Kessler denied Haji Hamdullah’s petition for writ of habeas corpus because active hostilities continue in Afghanistan, and pursuant to the AUMF, the United States can continue to hold him.288 Hamdullah is an Afghan citizen who the government captured in July 2003 in Afghanistan, and he has been detained at Guantanamo Bay, for over eleven years.289 Judge Kessler cited to the AUMF’s silence on any expiration date as justification for holding individuals at Guantanamo Bay concluding the “United States presence of nearly 10,000 troops certainly supports the conclusion that ongoing active hostilities exist.”290

Further, President Obama announced in the summer of 2016 that 8,400 U.S. troops will remain in Afghanistan indefinitely to provide security while Afghan security forces improve their operational infrastructure.291 In the following week, Defense Secretary Carter explained that the government was sending 560 troops to Iraq to raise the troop presence to 4,647, supporting Iraqi forces in their efforts to rid the Islamic State of Iraq and Syria from Mosul.292

VII. CONCLUSION

This Article shows that the internment experience and the Supreme Court internment case rulings represent some of the worst events and judicial decisions in American history. In honoring Fred Korematsu’s legacy, and remembering the internment in a post-9/11 world, we are reminded that the constitutional rights of American citizens must always be safeguarded during

283. Id. 284. See Al Warafi v. Obama, No. 09–2368 (RCL), 2015 WL 4600420, at *1 (D.D.C. July 30, 2015) (discussing Warafi’s legal strategy regarding presidential letters), vacated and appeal dismissed (D.C. Cir. 15-5266 Mar. 4, 2016). 285. See id. (asserting ending detention justified due to hostilities). 286. Id. 287. 174 F. Supp. 3d 300 (D.D.C. 2016), vacated and appeal dismissed (D.C. Cir. 16-5074 Oct. 5, 2016). 288. Id. at 307-08 (noting detainment also does not violate Third Geneva Convention). 289. Id. at 302. 290. Id. at 307 (noting what constitutes “active hostilities” never clearly defined). 291. See Bryan Bender & Louis Nelson, Obama to Keep 8,400 Troops in Afghanistan, POLITICO (July 7, 2016), http://www.politico.com/story/2016/07/obama-to-keep-8-400-troops-in-afghanistan-next-year-225157 [https://perma.cc/RP8S-YT7C]. 292. See Austin Wright, Obama Approves 560 More Troops to Iraq, POLITICO (July 11, 2016), http:// www.politico.com/story/2016/07/obama-approves-560-troops-iraq-225358 [https://perma.cc/YK5H-ZSNH].


times of war, national emergencies, and in the darkest of times in American history.

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