Korematsu Institute commemorates 40th anniversary of coram nobis cases

HISTORY MAKERS ­— (L to R): Peter Irons, Eric Yamamoto, Neal Katyal, Karen Korematsu, Judge Mary Schroeder and Judge Marilyn Hall Patel (seated) attended the Korematsu Institute’s commemoration of the coram nobis cases’ 40th anniversary. photo by Tomo Hirai/Nichi Bei News

Though several months delayed from Fred Korematsu’s birthday on Jan. 30, the Fred T. Korematsu Institute held its annual celebration Oct. 21 at the Marriott Marquis in San Francisco, commemorating the 40th anniversary of the coram nobis cases.

Despite the delay, Jana Katsuyama, reporter with KTVU Fox 2 and emcee for the evening, said the dinner and program fell close to the Nov. 10, 1983 anniversary date when Judge Marilyn Hall Patel issued her verdict on Korematsu’s case.

In 1942, Korematsu refused to report for wartime imprisonment as a person of Japanese ancestry. He was “arrested and convicted of defying the government’s order, (and) he appealed his case all the way to the Supreme Court. In 1944, the Supreme Court ruled against him, arguing that the incarceration was justified due to military necessity,” the Korematsu Institute’s Website states.

Korematsu’s case, which the U.S. government overturned after Patel’s decision, gave widespread recognition to the fact that the U.S. government lied to the Supreme Court in justifying its incarceration of some 120,000 people of Japanese descent during World War II.

The event featured an esteemed gathering of attorneys, including many former members of the legal teams representing Korematsu, as well as Gordon Hirabayashi and Minoru Yasui, including Peter Irons, the legal historian who discovered the “smoking gun” in the National Archives that reopened the men’s wartime Supreme Court cases. Along with the legal teams, Marilyn Hall Patel and Mary M. Schroeder, two judges who issued rulings for Korematsu and Hirabayashi’s cases respectively, and former Acting Solicitor General of the United States Neal Katyal headlined the evening.

“This was a once in a lifetime opportunity, because … these people that are living now will probably not come together again,” Karen Korematsu, daughter of the late Fred Korematsu, said. “And especially in this time of divide in our country, it’s so important to let people know that we’re in this together, that we can make a difference, because this is about all of us.”

The event recognized the coram nobis teams’ work in the 1980s in overturning the wartime supreme court cases. Diners ate vadouvan rubbed chicken and pilaf and watched “The Coram Nobis Cases Historical Overview,” a half-hour documentary featuring interviews with legal team members talking about how and why the attorneys sought to overturn the cases.

Karen Korematsu, founder and president of the Korematsu Institute, said she is continuing her father’s work to speak out for justice.

“After winning his federal case and getting the letter of apology from the government, my father decided his life would be to tell his story and to prevent history from repeating itself,” Korematsu said. “He just didn’t want something like the Japanese American incarceration to happen again. After that point, he toured the country, speaking to audiences of all ages, and he was recognized for his bravery and resolve with a Presidential Medal of Freedom, as was Gordon and Min.

“Without Peter Irons and Aiko Herzig Yoshinaga’s research, without the work of the pro bono legal teams who represent my father, Gordon and Min, without the verdicts of Judge Marilyn Hall Patel and Judge Mary Schroeder, we would not be here tonight, and I likely would not have spent the last 14 years of my life dedicated to carry on my father’s legacy.”

Around a dozen former legal team members attended the dinner, including representatives from Hirabayashi and Yasui’s teams.

However, two members were also recognized after having recently passed. Dale Minami, team lead for the Korematsu legal team, remembered Robert Rusky who passed away last year while Peggy Nagae, team lead for Minoru Yasui’s legal team, remembered his daughter Holly Yasui, who passed in 2021.

Along with the coram nobis team, several other noteworthy guests attended, including Ann Forwand, daughter of Ernest Besig, and Peter Burling, son of John Burling. Ernest Besig first represented Korematsu in 1942 during the initial Supreme Court case as an attorney for the Northern California affiliate of the American Civil Liberties Union. John Burling was an attorney for the Justice Department during the war. His memo, penned with fellow attorney Edward Ennis, served as the “smoking gun” Irons would discover decades later.

As part of the commemoration for the 40th anniversary, the program hosted a “fireside chat” with Patel and Schroeder led by Edward M. Chen, a former member of the Korematsu legal team and now a judge for the United States District Court for the Northern District of California. Patel, a retired judge for the United States District Court for the Northern District of California, vacated Korematsu’s federal conviction. Schroeder, a judge on the United States Court of Appeals for the Ninth District, wrote the majority opinion to vacate Hirabayashi’s case in Seattle in 1987.

Schroeder said Hirabayashi’s case concerned two convictions, one for the breach of a curfew and a second on the failure to report for the wartime incarceration. According to Schroeder, Judge Donald S. Voorhees of the United States District Court for the Western District of Washington wanted the case to be appealed and granted the writ of coram nobis for the failure to report while denying it for breaking curfew. Schroeder’s decision affirmed Hirabayashi and the U.S. government declined to appeal the decision.

“I was not thinking so much of history,” Schroeder said. Rather, she said she was more concerned about getting a unanimous ruling and keeping the case away from the Supreme Court. “And actually, that is what happened, the government did not appeal, which infuriated Gordon Hirabayashi who wanted the case to go on up to the Supreme Court, and I kept telling him, ‘Gordon, don’t run after the train after you’ve caught it.’ I could never have convinced him, but he was the most courageous person that I have ever met, and I was very proud to be a part of this whole historical chapter.”

Patel said she issued her decision on Korematsu with the hope it would be resolved at the district court level.

“You never know what’s going to happen, particularly with the Supreme Court. So if you can nail it down sufficiently so that it’s not appealable essentially, almost, you should really try to do that,” Patel said.

The organization presented Katyal The Fred Korematsu Social Justice Award for his work to “help further the idea of civil rights and social justice.” He also gave the keynote speech at the event.

Katyal, in 2011, issued a confession of error, stating his office had made mistakes during the wartime supreme court cases. He said he recalled the Korematsu case from an undergraduate class on Asian American history and decided to look into the matter during his “down time” in the summer of 2010. He explained the tactics John Burling and Edward Ennis used to attempt to convince then Solicitor General Charles Fahy to acknowledge the U.S. government’s justifications for Japanese American wartime incarceration was flawed, although Fahy ultimately succeeded in papering over the truth while arguing before the Supreme Court.

Still, as his office admitted the errors, in part thanks to the paper trail Ennis and Burling left, he said the Justice Department was ultimately able to “right itself” several decades later. However, the mistakes made in Korematsu were repeated in 2018 in Trump v. Hawai‘i, even as the Supreme Court overruled Korematsu in the decision.

“(The) language of the chief justice, we put side-by-side against the language of Justice Black in the majority in Korematsu, it’s the same language. And then you look at the dissent and it’s the same dissent language from Korematsu … It’s the same basic point,” he said.

“You now have a new loaded weapon lying around, this new decision in Hawai‘i versus Trump, which is going to allow presidents a lot of leeway to do horrible, horrible things.”

Although Trump prevailed in the Muslim ban, Katyal said he returned to the Supreme Court twice more to successfully challenge cases.

He said it was thanks to a commentary by conservative political commentator Ann Coulter, who said Katyal was arguing to “end our country through mass immigration.”

“Why do I continue to fight? Why must we all continue to fight? Well, for me, the idea of being a first generation American would disqualify me, instead of recognizing how much the country has given me. The idea that mass immigration would end the country instead of understanding that’s the rock on which the country was built,” he said.

And with his own loss with Trump v. Hawai‘i, Katyal expressed his hopes that future legal scholarship will bring to light that the Muslim ban was not justified.

“The Justice Department admitted, quietly, after the oral argument that the President actually didn’t have (documents citing national security as justification for the ban),” Katyal said. “That’s the first domino to fall. I’m sure there will be some Professor Irons at some point in the future using FOIA and other things to see what the true record was on national security.”

Irons, who did not formally speak at the program, told the Nichi Bei News the coram nobis cases would not have been possible if people did not keep challenging the U.S. government.

“The main thing I’ve noticed, … is that you cannot make any progress or achievement without challenging the deep-rooted, racist underpinnings of our institutions,” Irons said. “And we have to deal with that … if we’re gonna move forward. There’s no other way. The Japanese American internment cases are simply one example of this. That was 80 years ago. There have been calls to intern other groups — Cuban Americans, for example, who fled the Castro regime. And so what we have to do is, as Thomas Jefferson said, … be eternally vigilant.”

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