NDAA law on indefinite detention risks repeating Japanese American incarceration injustice


On Dec. 17, 2012, the families of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi filed an amicus brief in Hedges v. Obama, a lawsuit that challenges the constitutionality of a provision of the National Defense Authorization Act For Fiscal Year 2012 (NDAA). The brief was filed in the U.S. Court of Appeals for the Second Circuit.

The amicus brief describes a terrifying parallel to the incarceration of Americans of Japanese ancestry during World War II. Under the pretense of national security, the NDAA essentially repeats the decisions in the discredited World War II cases of Korematsu, Hirabayashi, and Yasui, allowing the government to imprison people without any due process rights for an indefinite time.

The 2012 NDAA authorizes the U.S. military to arrest and indefinitely detain anyone, including American citizens on U.S. soil, without a warrant or due process if the military simply suspects them of supporting terrorism. This is exactly what the U.S government did in 1942 to 120,000 Japanese Americans, two-thirds of whom were American citizens, and who spent years in prisons without notice of charges, the right to an attorney, or the right to a trial.

Korematsu, Yasui, and Hirabayashi each refused to be incarcerated in wartime camps and challenged the government’s decisions, but each was found guilty and their convictions were upheld by the U.S. Supreme Court in landmark decisions in 1943 and 1944. More than 40 years later, evidence was discovered proving that the government had committed a fraud on the Supreme Court by suppressing, altering, and destroying critical evidence that Japanese Americans were not a danger to national security.

This newly discovered evidence undermined the government’s justification for the incarceration and contradicted the government’s arguments made before the Supreme Court in the original cases. All three men were vindicated in the 1980s when courts overturned their tainted convictions.

The Korematsu, Yasui, and Hirabayashi families and lawyers who helped overturn the convictions have returned to fight the attacks on civil rights by filing an amicus brief in support of the legal challenge against NDAA.

The principal drafters of the brief were Eric Yamamoto (University of Hawai’i William S. Richardson School of Law), Lorraine K. Bannai (Korematsu Center for Law and Equality, Seattle University School of Law), Bob Rusky, and Cayce Greiner, with contributions by Dale Minami (Minami Tamaki LLP), Anjana Malhotra and Bob Chang (both with the Korematsu Center for Law and Equality, Seattle University School of Law), and other attorneys from the Korematsu, Yasui, and Hirabayashi legal teams.

These potential infringements on the constitutional rights of citizens and residents doom us to repeat history and subverts what should have been lessons learned from the wartime imprisonment.
Join us in spreading the word about this issue:  https://www.stoprepeatinghistory.org

Thank you!

Dale Minami is a partner in the Minami Tamaki law firm in San Francisco. The views expressed in the preceding commentary are not necessarily those of the Nichi Bei Weekly.

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