One-on-one with attorney Donald K. Tamaki

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From the historic coram nobis cases to the state task force to study Black reparations, attorney Donald K. Tamaki has been at the heart of landmark social justice issues for the past 40 years.

The senior counsel at Minami Tamaki LLP sat down with the Nichi Bei News to discuss the landmark coram nobis cases, which lit a spark in the movement for Japanese American redress, as well as his current role as the only non-Black member of the Task Force to Study and Develop Reparation Proposals for African Americans.

This first of two parts, will discuss the coram nobis cases, and the Stop Repeating History movement that carries on that legacy.

Nichi Bei News: At a meeting at Dale Minami’s Oakland, Calif, home on May 8-9, 1982, attorney Peter Irons met with more than a dozen West Coast attorneys and students to discuss the evidence that he and Aiko Herzig Yoshinaga had uncovered. He was also there to share his idea to reopen the Fred Korematsu, Gordon Hirabayashi and Minoru Yasui cases through the coram nobis process. You were among the idealistic young attorneys there. What do you remember most about that initial meeting and how did that impact you?
Donald Tamaki: It was amazing. We were skeptical that a researcher and a couple of them — Aiko Herzig Yoshinaga and Peter Irons — uncovered evidence that would lead to reopening this infamous case that occurred some 36, 37 years earlier.

Every law student, lawyer is familiar with Korematsu v. United States. It’s recognized as one of the worst decisions of the U.S. Supreme Court and characterized as a civil liberties disaster.

The idea of reopening that case, especially when it involved our own families and our own community, was unthinkable, really.

Peter sought us out and a meeting was held and he brought with him copies of intelligence files from the FBI, the federal communications, the Navy, Justice Department memos that characterized the Army’s claims of General DeWitt as “intentional falsehoods and fabrications.”

Every intelligence report, having any responsibility with national security on the West Coast, had also basically said that none of DeWitt’s claims that Japanese Americans were a dangerous population or spying were correct. They were all false as admitted. So as we saw this and again, whistleblower memos going back and forth between justice department lawyers having really an ethical dilemma about whether they ought to be lying to the U.S. Supreme Court. That was remarkable. … I think the other remarkable thing is that Peter would come to primarily Japanese American attorneys as the means to re-open this case. So it was a momentous meeting.

NBN: So the coram nobis petitions were formally announced at a press conference on Jan. 19, 1983, 40 years ago. This was at the height of Japan-bashing, and Vincent Chin would be killed in Detroit some six months earlier, being mistaken for being Japanese. Under those circumstances, was there any trepidation in trying to right a wrong from World War II, which was a super patriotic war? What challenges did the legal team face in trying to overcome some potential hostility?
DT: Well, unlike today, one of the challenges was ignorance. In getting ready for announcing this reopening of this ancient Supreme Court case, I called up news desks and these are well educated journalists, who — they’re traffic directors for news that comes in. When we announced we were going to reopen Korematsu v. United States, first question is, ‘What’s that?’ When we talked about the incarceration of Japanese Americans, the journalists said, ‘What’s that about?’ ‘That happened in America?’ ‘Aren’t you talking about Japanese prisoners of war?’ I said, ‘no, these are Americans — 120,000 of them. 70,000, who were citizens by birth, removed and taken away into 10 American-style concentration camps.’

This was quite remarkable to the journalists. They did immediately gravitate toward it because it involved elements of suppression of evidence, a historical wrong, and following Watergate, which was the misconduct by the Nixon administration and the coverup, … it was of that nature and so, we happened to hit on a very slow news day and it was, in many cases, the lead story for network television nationally, as well as front page of the major publications like The New York Times and The Washington Post, as well as local coverage.

I think the message was although this involved our community, it was a matter of American democracy, in which all three institutions of government, … which was Congress, the Presidency, and ultimately, the judicial branch, all failed and basically collapsed, demonstrating the perils to democracy when racism shouts louder than the Constitution.

NBN: A hearing was scheduled on Nov. 10, 1983 in San Francisco District Court, reportedly attended by more than 300 spectators, mostly Nisei and Sansei. Judge Marilyn Hall Patel was randomly assigned to the case. What do you remember about that hearing and what was the energy in the room?
DT: Electric. I mean there were three things going on here thematically. One, I think the legal team, as well as the Japanese American community, were out to vindicate our own families.
Everybody, of course, knew that the roundup was wrong and they were victims, but the conventional wisdom and the history of the time was that this was a grave mistake. What Peter Irons and Aiko Herzig Yoshinaga uncovered, and what the cases of Fred Korematsu, Gordon Hirabayashi and Min Yasui revealed, was that this was more than a mistake. What may have started as racial wartime hysteria ultimately culminated at the highest levels of our legal system. Right at the very top, the attorney general of the U.S. Supreme Court, the solicitor general as a calculated plan to manipulate the outcome of this momentous decision and the imprisonment of a huge American population, even if it meant lying to the U.S. Supreme Court with our own families at the center of a scandal of epic proportions. So certainly, that was one reason why the room was filled with camp survivors, who in essence, wanted to have experiences in the trials that they never had.

I think the second thing was to impair the legal precedent of Korematsu v. United States, which stands for the proposition that without evidence, without trial, an entire population of Americans could be deprived of their homes, their property, their businesses, for some, even their lives, without any due process whatsoever. The impairment of that legal dangerous principle was very important and then the third principle was win or lose this case, it was critical for the sake of American history to make sure that this never happens again to any other group. It had deep meaning — that hearing had deep meaning, we did not know at the time how (Judge Marilyn Hall Patel) was going to rule …

The U.S. government had continued to defend these cases, on the grounds that there was a military necessity and there was a reason for the roundup. You know the truth was on the line and facts were on the line, the meaning of the Constitution was on the line, so it was a big day.

NBN: How do you think Judge Patel’s decision to vacate Fred Korematsu’s conviction impacted the movement for Japanese American redress?
DT: Well, the fact that the case arose at the same time, contemporaneously, with the Japanese American redress and reparations movement was just luck.

Well, it was two things that intersected. Peter Irons was out to investigate and write a book about these momentous decisions and he happened to cross paths with Aiko Herzig Yoshinaga, who was hired as a researcher for the Commission on Wartime Relocation and Internment of Civilians. The two of them just struck a fast friendship and shared information. That’s the lucky part. The intersection was incredible. But the fact that the timing of the case and Judge Patel’s ruling coincided with the movement and the lobbying effort going on for the Civil Liberties Act of 1988. That whole movement was an incredible good fortune and I think the fact that Judge Patel, the court ruled that the government had lied to the U.S. Supreme Court, that there was no reason for this roundup and. most importantly, the government knew it at the time, but intentionally suppressed, altered and destroyed evidence — in one case, an intelligence report from the Navy by burning it.

That not only established that this was not a mistake, this was an intentional fraud on the high court, with our own community, our own families as the victims of this. I think that gave impetus and even more meaning and more importance that a great wrong had to be repaired and I think it boosted the reparations movement because it said to those people, ‘no, this was not a mistake.’ This was an intentional act and all the more reason and all the more justification for reparations.

NBN: One of the lasting impacts of the 1983 decisions is reflected in your work in Stop Repeating History, drawing parallels between wartime incarceration and contemporary discrimination. Can you tell us a little about what Stop Repeating History is and what it does?
DT: Well, it was for — by the Trump administration and what was going on was the denialism of facts and of science, and it just occurred to the Korematsu, Hirabayashi and Yasui legal teams that this is history repeating all over again. We know full well of a time when our own community experienced when facts didn’t matter, the law didn’t matter, the Constitution didn’t matter. What mattered at the time was conspiracy theories, … fear mongering and scapegoating. Politicians … used Japanese Americans as the stepping stone to advance their own political careers.

And fast forward to January of 2017, when Trump issued the first of thrice-revised orders banning travel from six Muslim-majority nations, Americans were caught literally mid-air in flights or unable to board airplanes that they had valid tickets for. Refugees fleeing terror, who had already undergone a stringent 18-month vetting program, were denied entry at the border and all in the name of national security. And we reasoned that this similarly to Japanese American history, was not a question so much of national security, but rather, fulfilling the campaign promise that Trump had made on just about every whistle stop on the campaign trail, vilifying Muslim Americans as being terrorists.

What followed, everybody can remember, is Asian Americans were characterized as the spreaders of the “Chinese virus,” Mexicans were called drug dealers and rapists, Jews and immigrants were characterized as being poised to replace white people by supremacists and throughout the Trump administration, and years before and even today, countless Black people dying at the hands of law enforcement and rarely evoked a shrug. The reasoning behind “Stop Repeating History” is just that: it’s important to understand that this is a recycling kind of event that we ought to be concerned about. And more than that, the Japanese American experience and the Korematsu case in particular, demonstrates really the collapse of democracy and we saw that in real time on January 6 of 2021 when the Capitol became under siege. Five people died, 25,000 troops were deployed to protect the peaceful transfer of power that we haven’t seen in modern history. Literally, the upshot is millions believe the election was stolen, despite the utter lack of any evidence, fraud that would’ve made any difference. And so looking at the Japanese American experience, looking at the Korematsu case, we can learn a lot from that history and regrettably that learning part is deeply relevant to what’s going on today.

An excerpt of this interview will be broadcast in the Feb. 16 edition of the “Nichi Bei Café” (www.nichibei.org/cafe), and the full interview will be released as a podcast on Feb. 19, the Day of Remembrance.

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