(I meant to promote this yesterday, but it is still worth noting. – promoted by Brian Leubitz)

Today, Feb. 19, 2012, is the 70th anniversary of Executive Order 9066, which ordered the imprisonment of some 120,000 Japanese Americans, about 3/5 of them US citizens.  They were imprisoned without charges, let alone convictions.

Less well known is the direct connection that one of the heroic resisters of that internment with President Bush’s similar imprisonment of uncharged, unconvicted men at Guantanamo.  So this is a good day to honor the memory of Fred Korematsu.

In 2003 Fred Korematsu filed an amicus habeas corpus brief in the case Shafiq Rasul v. George W.  Bush, in which Rasul, a British citizen, was represented by the Center for Constitutional Rights.  A District Court and a Court of Appeals had ruled that US courts had no jurisdiction over Guantanamo because it is not on US territory. Korematsu argued that “in order to avoid repeating the mistakes of the past, the Supreme Court should make clear in these cases that the United States respects fundamental constitutional and human rights-even in times of war. These cases present the Supreme Court with a direct test of whether it will meet its deepest constitutional responsibilities to uphold the law in a clear-eyed and courageous manner.”  He won, and the Supreme Court ruled against the Bush administration. Rasul and his fellow prisoner Asif Iqbal were released to the British.

Here is the whole story: Fred Toyosaburo Korematsu was born in Oakland, California, in 1919, where he attended school.  Rejected for the draft because of stomach ulcers, he worked as a welder in a defense plant until the attack on Pearl Harbor when he was fired.  Ordered to report to an internment camp, he joined a minority of American citizens of Japanese descent who determined to resist what they considered an unconstitutional order; he later said that he believed he was entitled to a fair trial and a chance to defend his loyalty to the US.  He was then jailed in San Francisco.  When asked by the ACLU, he agreed to become a “test case,” was tried, convicted of refusing the order, and forcibly taken to a camp.  He appealed and was again convicted in 1944 by the US Supreme Court, Justice Hugo Black writing the opinion, Frankfurter concurring.  Released after the War, he returned to Oakland.

The case was reopened 40 years later, when scholar Peter Irons discovered evidence that FDR’s Solicitor General had deliberately suppressed evidence that both the FBI and armed forces intelligence had determined that Japanese Americans offered no disloyalty threat.  Korematsu’s conviction was voided in 1983 and in 1988 President Clinton gave him a Presidential Medal of Freedom.

Fred Korematsu exhibited his citizenly courage once again in 2003-04.  He actually filed three amicus briefs, in Rasul v Bush, in Khaled A.F. Al Odah v. United States of America, and in Donald Rumsfeld v. Jose Padilla, assisted by several Bar associations and law firms, all with similar arguments: against imprisonment without trial.  Korematsu remarked, “If that principle was not learned from the internment of Japanese Americans, then these are very dangerous times for our democracy.”

Korematsu died in 2005 at age 85.  “I’ll never forget my government treating me like this. And I really hope that this will never happen to anybody else because of the way they look, if they look like the enemy of our country…. protest, but not with violence, and don’t be afraid to speak up. One person can make a difference, even if it takes forty years.”