REFERENCE: Vol. 131 No. 15; Proceedings of February 18, 1985, Issue No. 14; and February 19, 1985, Issue No. 15, Are Combined.

TITLE: JUSTICE DELAYED 43 YEARS

SPEAKER: HON. NORMAN Y. MINETA OF CALIFORNIA IN THE HOUSE OF REPRESENTATIVES

TEXT: Text that appears in UPPER CASE identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

MR. MINETA. MR. SPEAKER, TODAY IS THE ANNIVERSARY OF EXECUTIVE ORDER 9066; THE DOCUMENT SIGNED 43 YEARS AGO WHICH AUTHORIZED THE EVACUATION, RELOCATION, AND INTERNMENT OF 120,000 LOYAL AMERICANS OF JAPANESE ANCESTRY PURELY BECAUSE OF THEIR RACE.

THIS INTERNMENT CONSTITUTES A SHOCKING AND STILL UNRESOLVED ABUSE OF THE CONSTITUTIONAL RIGHTS OF THOSE WHO WERE INTERNED. I AM PROUD TO BE A SUPPORTER, ALONG WITH MORE THAN 100 OF MY COLLEAGUES, OF H.R. 442, THE CIVIL LIBERTIES ACT OF 1985 WHICH SEEKS, ONCE AND FOR ALL, TO PUT THIS SAD EPISODE IN OUR HISTORY TO REST. JUST AS IMPORTANTLY, H.R. 442 ENSURES THAT SUCH A FUNDAMENTAL LOSS OF CONSTITUTIONAL RIGHTS IS NEVER IMPOSED UPON ANY OTHER GROUP OF AMERICANS IN THE FUTURE.

ONE OF THE U.S. COURT DECISIONS OF THE 1940'S WHICH UPHELD THE INTERNMENT WAS A CASE KNOWN AS KOREMATSU VERSUS UNITED STATES. RECENTLY, IN A U.S. DISTRICT COURT IN SAN FRANCISCO, JUDGE MARILYN PATEL OVERTURNED THAT CONVICTION, AND GAVE TO FRED KOREMATSU THE ONLY THING HE HAS SOUGHT: A CLEAR RECORD AND AN HONORABLE NAME.

I WOULD LIKE TO INSERT INTO THE RECORD AT THIS POINT A SUMMARY OF THE KOREMATSU CASE, AND THE DECISION OVERTURNING IT. THIS NATION OWES MR. KOREMATSU, HIS ATTORNEYS, AND JUDGE PATEL A DEBT OF GRATITUDE FOR THEIR EFFORTS TO BRING JUSTICE AFTER SO MANY YEARS.

THE SUMMARY FOLLOWS:

BACKGROUND ON WRIT OF ERROR CORAM NOBIS AND SUMMARY OF KOREMATSU VS. THE UNITED STATES

FRED T. KOREMATSU, AN AMERICAN CITIZEN, WAS CONVICTED ON SEPTEMBER 8, 1942 n1 FOR REFUSING TO OBEY MILITAY ORDERS LEADING UP TO THE MASS RACIAL INTERNMENT OF 110,000 JAPANESE AMERICANS, 70,000 OF WHOM WERE AMERICAN CITIZENS. n2 SPECIFICALLY, KOREMATSU WAS CONVICTED OF BEING IN A PLACE FROM WHICH ALL PERSONS OF JAPANESE ANCESTRY WERE EXCLUDED PURSUANT TO CIVILIAN EXCLUSION ORDER NO. 34 ISSUED BY COMMANDING GENERAL J. L. DEWITT. n3 HIS CONVICTION WAS UPHELD BY THE U.S. SUPREME COURT IN 1944, WHEN THE HIGH COURT ACCEPTED THE GOVERNMENT REPRESENTATIONS THAT THE INTERNMENT CAMPS WERE JUSTIFIED BY "MILITARY NECESSITY." n4

THE COURT'S FINDING OF "MILITARY NECESSITY" WAS BASED ON THE REPRESENTATION OF GOVERNMENT LAWYERS THAT JAPANESE AMERICANS WERE COMMITTING ESPIONAGE AND SABOTAGE BY SIGNALING ENEMY SHIPS FROM SHORE. THE GOVERNMENT ALSO CHARGED THAT IT WAS IMPOSSIBLE TO SEPARATE THE LOYAL FROM THE DISLOYAL DUE TO THE RACIAL CHARACTERISTICS OF JAPANESE AMERICANS. n5

HOWEVER, DOCUMENTS RECENTLY DISCOVERED UNDER THE FREEDOM OF INFORMATION ACT REVEALED THAT GOVERNMENT ATTORNEYS SUPPRESSED KEY EVIDENCE AND AUTHORITATIVE REPORTS FROM THE OFFICE OF NAVAL INTELLIGENCE, THE F.B.I., THE FEDERAL COMMUNICATIONS COMMISSION, AND ARMY INTELLIGENCE WHICH FLATLY CONTRADICTED THE GOVERNMENT CLAIM THAT JAPANESE AMERICANS WERE A THREAT TO SECURITY.

THE OFFICE OF NAVAL INTELLIGENCE REPORT ISSUED IN FEBRUARY OF 1942, BEFORE THE INTERNMENT BEGAN, WAS THE CULMINATION OF A TWO-YEAR STUDY OF THE WEST COAST JAPANESE AMERICAN POPULATION. AUTHORED BY THE ONI AUTHORITY ON JAPANESE AMERICANS, LIEUTENANT COMMANDER K. D. RINGLE, THE REPORT CONCLUDED THAT ONLY A SMALL AND READILY IDENTIFIABLE PORTION OF THE JAPANESE AMERICAN PEOPLE WERE EVEN POTENTIALLY DISLOYAL. "THE ENTIRE JAPANESE PROBLEM HAS BEEN MAGNIFIED OUT OF ITS TRUE PROPORTION LARGELY DUE TO THE PHYSICAL CHARACTERISTICS OF THE PEOPLE." n6

EDWARD ENNIS, DIRECTOR OF THE ALIEN ENEMY CONTROL DIVISION OF THE JUSTICE DEPARTMENT AND THE ATTORNEY RESPONSIBLE FOR SUPERVISING THE DRAFTING OF THE JUSTICE DEPARTMENT BRIEF IN KOREMATSU VERSUS THE UNITED STATES, ADVISED SOLICITOR GENERAL CHARLES FAHY IN APRIL OF 1943 THAT, "WE MUST CONSIDER MOST CAREFULLY WHAT OUR OBLIGATION TO THE COURT IS IN VIEW OF THE FACT THAT THE RESPONSIBLE INTELLIGENCE AGENCY REGARDED SELECTIVE EVACUATION AS NOT ONLY SUFFICIENT BY PREFERABLE [TO MASS EVACUATION]. I THINK WE SHOULD CONSIDER VERY CAREFULLY WHETHER WE DO NOT HAVE A DUTY TO ADVISE THE COURT OF THE EXISTENCE OF THE RINGLE MEMORANDUM AND OF THE FACT THAT IT REPRESENTS A VIEW OF THE OFFICE OF NAVAL INTELLIGENCE ... ANY OTHER COURSE OF CONDUCT MIGHT APPROXIMATE THE SUPPRESSION OF EVIDENCE. " n7

IN RESPONSE TO A REQUEST BY ATTORNEY GENERAL FRANCIS BIDDLE TO VERIFY THE ACCURACY OF MILITARY CLAIMS OF SHORE-TO-SHIP SIGNALING, J. EDGAR HOOVER WROTE IN FEBRUARY OF 1944 BEFORE THE KOREMATSU CASE WAS ARGUED, "EVERY COMPLAINT [OF SHORE-TO-SHIP SIGNALING AND RADIO TRANSMISSIONS] HAS BEEN INVESTIGATED, BUT IN NO CASE HAS ANY INFORMATION BEEN OBTAINED WHICH WOULD SUBSTANTIATE THE ALLEGATION THAT THERE HAS BEEN ILLICIT SIGNALING FROM SHORE TO SHIP... "n8

IN RESPONSE TO A SIMILAR REQUEST, JAMES FLY, THE CHAIRMAN OF THE FEDERAL COMMUNICATIONS COMMISSION, WROTE IN FEBRUARY OF 1944: "THERE WERE NO RADIO SIGNALS...WHICH COULD NOT BE IDENTIFIED, OR WHICH WERE UNLAWFUL." n9

IN A FEBRUARY 1944 MEMO TO ATTORNEY GENERAL FRANCIS BIDDLE, ENNIS CRITICIZED THE FINAL REPORT OF GENERAL J.L. DEWITT AS BEING HIGHLY INACCURATE IN STATING THAT JAPANESE AMERICANS WERE COMMITTING ACTS OF ESPIONAGE AND SABOTAGE AND WERE PRONE TO DISLOYALTY. HE WROTE, "[THE FINAL REPORT] STANDS AS PRACTICALLY THE ONLY RECORD OF CAUSES FOR THE EVACUATION AND UNLESS CORRECTED WILL CONTINUE TO DO SO. ITS PRACTICAL IMPORTANCE IS INDICATED BY THE FACT THAT IT IS BEING CITED IN THE BRIEFS IN THE KOREMATSU CASE IN THE SUPREME COURT..." n10

JUSTICE DEPARTMENT ATTORNEY, JOHN BURLING, ALSO RESPONSIBLE FOR DRAFTING PORTIONS OF THE KOREMATSU BRIEF, WROTE IN A MEMO TO ASSISTANT ATTORNEY GENERAL HERBERT WECHSLER IN SEPTEMBER OF 1944, "YOU WILL RECALL THAT GENERAL DEWITT'S REPORT MAKES STATEMENTS CONCERNING RADIO TRANSMISSIONS AND SHIP-TO-SHORE SIGNALING WHICH WERE CATEGORICALLY DENIED BY THE F.B.I. AND THE FEDERAL COMMUNICATIONS COMMISSION. THERE IS NO DOUBT THAT THESE STATEMENTS ARE INTENTIONAL FALSEHOODS..." n11

BURLING ATTEMPTED TO ALERT THE SUPREME COURT OF THE FALSITY OF THE MILITARY CLAIMS, PARTICULARLY WITH RESPECT TO ALLEGATIONS OF SHORE-TO-SHIP RADIO TRANSMISSIONS, BY INSERTING A FOOTNOTE IN THE KOREMATSU BRIEF STATING THAT SUCH ALLEGATIONS WERE IN CONFLICT WITH INFORMATION IN THE POSSESSION OF THE DEPARTMENT OF JUSTICE. WAR DEPARTMENT OFFICIALS OBJECTED TO BURLING'S FOOTNOTE AND THE PRINTING OF THE BRIEF WAS STOPPED IN MIDSTREAM .n12 DESPITE THE PROTESTATIONS BY EDWARD ENNIS THAT THE FOOTNOTE SHOULD REMAIN, THE JUSTICE DEPARTMENT ULTIMATELY OMITTED THE FOOTNOTE FROM THE GOVERNMENT'S KOREMATSU BRIEF. n13

ARMED WITH THIS NEW EVIDENCE, FRED KOREMATSU FILED A PETITION FOR WRIT OF ERROR CORAM NOBIS, A PETITION TO CORRECT "FUNDAMENTAL ERRORS" OR MORE "MANIFEST INJUSTICE," ALLEGING THAT A FRAUD HAD BEEN COMMITTED UPON THE COURT, AND THAT HIGH GOVERNMENT OFFICIALS AND JUSTICE DEPARTMENT LAWYERS KNEW THAT THERE WAS NO FACTUAL BASIS FOR THE CLAIM OF "MILITARY NECESSITY." ON NOVEMBER 10, 1983, IN FEDERAL DISTRICT COURT, JUDGE MARILYN HALL PATEL RULED THAT THE GOVERNMENT'S FAILURE TO SUBSTANTIVELY RESPOND TO KOREMATSU'S PETITION WAS "TANTAMOUNT TO A CONFESSION OF ERROR." n14 REFERRING TO THE CONGRESSIONAL REPORT OF THE COMMISSION ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS AND THE DOCUMENTS ATTACHED TO THE KOREMATSU PETITION AS EXHIBITS, JUDGE PATEL STATED THAT THE CLAIM OF MILITARY NECESSITY JUSTIFYING EXECUTIVE ORDER 9066 WAS BASED UPON "UNSUBSTANTIATED FACTS, DISTORTIONS AND REPRESENTATIONS OF AT LEAST ONE MILITARY COMMANDER, WHOSE VIEWS WERE SERIOUSLY INFECTED BY RACISM." n15

ON APRIL 19, 1984, JUDGE PATEL ISSUED HER WRITTEN OPINION FORMALLY VACATING KOREMATSU'S CONVICTION .n16 REFERRING TO THE NEWLY DISCOVERED GOVERNMENT DOCUMENTS ATTACHED AS EXHIBITS TO THE PETITION, JUDGE PATEL WROTE, "THE SUBSTANCE OF THE STATEMENTS CONTAINED IN THE DOCUMENTS AND THE FACT THE STATEMENTS WERE MADE DEMONSTRATE THAT THE GOVERNMENT KNOWINGLY WITHHELD INFORMATION FROM THE COURTS WHEN THEY WERE CONSIDERING THE CRITICAL QUESTION OF MILITARY NECESSITY IN THIS CASE." n17 CITING THE INSTANCE OF THE ORIGINAL BURLING FOOTNOTE WHICH REVEALED THAT THE JUSTICE DEPARTMENT ATTORNEYS POSSESSED REPORTS CONTRADICTORY TO THE ALLEGATIONS OF ESPIONAGE AND SABOTAGE, JUDGE PATEL NOTED, "THE RECORD IS REPLETE WITH PROTESTATIONS OF VARIOUS JUSTICE DEPARTMENT OFFICIALS THAT THE GOVERNMENT HAD THE OBLIGATION TO ADVISE THE COURTS OF THE CONTRARY FACTS AND OPINIONS. IN FACT, SEVERAL DEPARTMENT OF JUSTICE OFFICIALS POINTED OUT TO THEIR SUPERIORS AND OTHERS THE "WILLFUL HISTORICAL INACCURACIES AND INTENTIONAL FALSEHOODS" CONTAINED IN THE DEWITT REPORT. "THESE OMISSIONS ARE CRITICAL." n18 JUDGE PATEL CONTINUED, "OMITTED FROM THE REPORTS PRESENTED TO THE COURTS WAS INFORMATION POSSESSED BY THE FEDERAL COMMUNICATIONS COMMISSION, THE DEPARTMENT OF THE NAVY, AND THE JUSTICE DEPARTMENT WHICH DIRECTLY CONTRADICTED GENERAL DEWITT'S STATEMENTS. THUS, THE COURT HAD BEFORE IT A SELECTIVE RECORD." n19

IN CONCLUDING THAT CORAM NOBIS RELIEF EXISTS FOR A CLAIM OF PROSECUTORIAL IMPROPRIETY ,n20 JUDGE PATEL WROTE, "THERE IS SUBSTANTIAL SUPPORT IN THE RECORD THAT THE GOVERNMENT DELIBERATELY OMITTED RELEVANT INFORMATION AND PROVIDED MISLEADING INFORMATION AND PAPERS BEFORE THE COURT." n21 "THE JUDICIAL PROCESS IS SERIOUSLY IMPAIRED WHEN THE GOVERNMENT'S LAW ENFORCEMENT OFFICERS VIOLATE THEIR ETHICAL OBLIGATIONS TO THE COURT." n22

IN CLOSING, JUDGE PATEL WROTE OF THE ORIGINAL SUPREME COURT DECISION IN KOREMATSU, "JUSTICES OF THAT COURT AND LEGAL SCHOLARS HAVE COMMENTED THAT THE DECISION IS AN ANACHRONISM IN UPHOLDING OVERT RACIAL DISCRIMINATION AS 'COMPELLINGLY JUSTIFIED.' THE GOVERNMENT ACKNOWLEDGED ITS CONCURRENCE WITH THE COMMISSION'S [CONGRESSIONAL COMMISSION ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS] OBSERVATION THAT, "TODAY THE DECISION IN KOREMATSU LIES OVERRULED IN THE COURT OF HISTORY."

"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. IT STANDS AS A CAUTION THAT IN TIMES OF DISTRESS THE SHIELD OF MILITARY NECESSITY AND NATIONAL SECURITY MUST NOT BE USED TO PROTECT GOVERNMENTAL ACTIONS FROM CLOSE SCRUTINY AND ACCOUNTABILITY. IT STANDS AS A CAUTION THAT IN TIMES OF INTERNATIONAL HOSTILITY AND ANTAGONISMS OUR INSTITUTIONS, LEGISLATIVE, EXECUTIVE AND JUDICIAL, MUST BE PREPARED TO EXERCISE THEIR AUTHORITY TO PROTECT ALL CITIZENS FROM THE PETTY FEARS AND PREJUDICES THAT ARE SO EASILY AROUSED."n23

FOOTNOTES

n1 KOREMATSU V. THE UNITED STATES, 584 F. SUPP. 1406 (N.D. CAL. 1984), AT P. 1409.

n2 REPORT OF THE COMMISSION ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, "PERSONAL JUSTICE DENIED", DECEMBER 1982, P. 2.

n3 KOREMATSU V. THE UNITED STATES, 584 F. SUPP. 1406 (N.D. 1984), P. 1409.

n4 KOREMATSU V. THE UNITED STATES, 324 U.S. 885 (1944).

n5 LT. GEN. J. L. DEWITT, FINAL REPORT: JAPANESE EVACUATION FROM THE WEST COAST, 1942: "THERE WERE HUNDREDS OF REPORTS NIGHTLY OF SIGNAL LIGHTS VISIBLE FROM THE COAST, AND OF INTERCEPTS OF UNIDENTIFIED RADIO TRANSMISSIONS. SIGNALING WAS OFTEN OBSERVED AT PREMISES WHICH COULD NOT BE ENTERED WITHOUT A WARRANT BECAUSE OF MIXED OCCUPANCY. THE PROBLEM REQUIRED IMMEDIATE SOLUTION. IT CALLED FOR THE APPLICATIONS OF MEASURES NOT THEN IN BEING." QUOTE, AT P. 8. "BECAUSE OF THE TIES OF RACE, THE INTENSE FEELING OF FILIAL PIETY AND THE STRONG BONDS OF COMMON TRADITION, CULTURE AND CUSTOMS, THIS POPULATION PRESENTED A TIGHTLY-KNIT RACIAL GROUP. IT INCLUDED IN EXCESS OF 115,000 PERSONS DEPLOYED ALONG THE PACIFIC COAST. WHETHER BY DESIGN OR ACCIDENT, VIRTUALLY ALWAYS THEIR COMMUNITIES WERE ADJACENT TO VERY VITAL SHORE INSTALLATIONS, WAR PLANTS, ETC. WHILE IT WAS BELIEVED THAT SOME WERE LOYAL, IT WAS KNOWN THAT MANY WERE NOT. IT WAS IMPOSSIBLE TO ESTABLISH THE IDENTITY OF THE LOYAL AND THE DISLOYAL WITH ANY DEGREE OF SAFETY. IT WAS NOT THAT THERE WAS INSUFFICIENT TIME IN WHICH TO MAKE SUCH A DETERMINATION; IT WAS SIMPLY A MATTER OF FACING THE REALITIES THAT A POSITIVE DETERMINATION COULD NOT BE MADE, THAT AN EXACT SEPARATION OF THE 'SHEEP FROM THE GOATS' WAS UNFEASIBLE," AT P. 10. SEE ALSO HIRABAYSHI V. THE UNITED STATES, 320 U.S. 81 AT P. 99, "WHATEVER VIEWS WE MAY ENTERTAIN REGARDING THE LOYALTY TO THIS COUNTRY OF THE CITIZENS OF JAPANESE ANCESTRY, WE CANNOT REJECT AS UNFOUNDED THE JUDGMENT OF THE MILITARY AUTHORITIES AND OF CONGRESS THAT THERE WERE DISLOYAL MEMBERS OF THAT POPULATION, WHOSE NUMBER AND STRENGTH COULD NOT BE PRECISELY AND QUICKLY ASCERTAINED. WE CANNOT SAY THAT THE WAR-MAKING BRANCHES OF THE GOVERNMENT DID NOT HAVE GROUND FOR BELIEVING THAT IN A CRITICAL HOUR SUCH PERSONS COULD NOT READILY BE ISOLATED AND SEPARATELY DEALT WITH, AND CONSTITUTED AND MENACE TO THE NATIONAL DEFENSE AND SAFETY ..."

n6 "REPORT ON THE JAPANESE QUESTION", BY LT. COMMANDER KENNETH D. RINGLE, U.S. NAVY, OFFICE OF NAVAL INTELLIGENCE, JANUARY 26, 1942.

n7 MEMORANDUM FROM EDWARD ENNIS (DIRECTOR, DEPARTMENT OF JUSTICE ALIEN ENEMY CONTROL UNIT) TO SOLICITOR GENERAL FAHY, APRIL 30, 1983.

n8 MEMORANDUM FROM J. EDGAR HOOVER, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, TO ATTORNEY GENERAL FRANCIS BIDDLE, FEBRUARY 7, 1944.

n9 LETTER FROM F.C.C. CHAIRMAN JAMES L. FLY, TO ATTORNEY GENERAL FRANCIS BIDDLE, APRIL 4, 1944, AT P. 3.

n10 "MEMORANDUM FOR THE ATTORNEY GENERAL RE: GENERAL DEWITT'S FINAL REPORT ON JAPANESE EVACUATION", FROM EDWARD J. ENNIS TO FRANCIS BIDDLE, FEBRUARY 26, 1944.

n11 MEMORANDUM FROM J. L. BURLING TO ASST. ATTORNEY GENERAL HERBERT WECHSLER, SEPTEMBER 11, 1944.

n12 MEMORANDUM FROM J. L. BURLING TO ASST. ATTORNEY GENERAL HERBERT WECHSLER, SEPTEMBER 11, 1944; MEMORANDUM FROM J. L. BURLING TO EDWARD ENNIS, OCTOBER 2, 1944.

n13 SEE KOREMATSU V. THE UNITED STATES, 584 F. SUPP. 1406 (1984) AT 1417 AND 1418. JUDGE PATEL NOTES REGARDING THE FOOTNOTE REVISION: "THE FINAL VERSION MADE NO MENTION OF THE CONTRADICTORY REPORTS. THE RECORD IS REPLETE WITH PROTESTATIONS OF VARIOUS JUSTICE DEPARTMENT OFFICIALS THAT THE GOVERNMENT HAD THE OBLIGATION TO ADVISE THE COURTS OF THE CONTRARY FACTS AND OPINIONS. PETITIONER'S EXHIBITS A TO FF. IN FACT, SEVERAL DEPARTMENT OF JUSTICE OFFICIALS POINTED OUT TO THEIR SUPERIORS AND OTHERS THE 'WILLFUL HISTORICAL INACCURACIES AND INTENTIONAL FALSEHOODS' CONTAINED IN THE DEWITT REPORT."

n14 TRANSCRIPT FROM PROCEEDINGS OF "MOTION TO VACATE CONVICTION AND DISMISS INDICTMENT OF FRED T. KOREMATSU BEFORE THE HONORABLE MARILYN HALL PATEL", SAN FRANCISCO, CALIFORNIA, NOVEMBER 10, 1983, AT P. 35.

n15 TRANSCRIPT FROM PROCEEDINGS OF "MOTION TO VACATE CONVICTION AND DISMISS INDICTMENT OF FRED T. KOREMATSU BEFORE THE HONORABLE MARILYN HALL PATEL", SAN FRANCISCO CALIFORNIA, NOVEMBER 10, 1983, AT P. 37.

n16 KOREMATSU V. THE UNITED STATES, 584 F. SUPP. 1406 (N.D. CAL. 1984), AT P. 1409.

n17 IBID., P. 1417.

n18 IBID., P. 1418.

n19 IBID., P. 1419.

n20 IBID., P. 1420.

n21 IBID.

n22 IBID.

n23 IBID.