Excerpts from A BRIEF BIOGRAPHY: FRED KOREMATSU

By Eric Yamamoto and May Lee

Fred Korematsu sits quietly through his introduction to a group of first year law students in a Race, Culture and Law class at Boalt Hall School of Law. His wife Kathryn sits by his side, and his daughter Karen a row behind. He has spoken at numerous schools across the country, from the University of Hawaii to Princeton. He does not charge lucrative speaking fees, although he could. “I go where they invite me to speak,” he says, smiling. It is comments from people like first-year law student Josephine Yeh, “Mr. Korematsu, I just want to tell you that I saw you speak to my class two years ago at UC Berkeley, and you are the reason I went to law school,” that motivate him to travel, sharing his story to thousands of law students across the country. With pleasure, and a small degree of pride, he tells of some of the people whom he has spoken to who have gone on to become social justice lawyers.

Early Years

Born in 1919, Fred Toyosaburo Korematsu grew up in Oakland as one of four sons of Japanese immigrants. His family owned a rose nursery, and he attended Castlemont High School, where his closest friends and girlfriend were Caucasian. “Being born in this country, I learned about American history, and this was my country,” he remembers, “I just thought of myself as American.” After graduation from high school in 1938, he attended the Master School of Welding and went to work on the Oakland docks as a steel welder, where he was quickly promoted to a foreman position.

The war in Europe, however, changed his life. America began providing war supplies to Great Britain in their war against Germany, while German allies — the Japanese-waged war in Asia and the Pacific. At home in California, when Mr. Korematsu entered restaurants, waiters refused to serve him. The same thing happened when he tried to get his hair cut. When he tried to join the United States Coast Guard along with his Caucasian friends, he was not allowed to fill out an application. “We have orders not to accept you,” he was told by the recruiting officer. Later, a commanding officer even forbade one of his friends from associating with him. The BoilerMakers Union terminated his membership.

He eventually found work with a trailer mobile company, but after the Japanese bombing of Pearl Harbor in December 1941, his employer fired him. On February 19, 1942, President Roosevelt signed Executive Order 9066 authorizing the military commanders on the West Coast to issue whatever orders were necessary for national security. Curfew and exclusionary orders soon followed. Although his family reported to the Tanforan racetrack assembly center in San Mateo on May 9, 1942, as directed by Exclusion Order Number 34, twenty-two year old Fred Korematsu chose to defy the order.

With his Caucasian girlfriend, Mr. Korematsu planned to move inland to Nevada. He sold his car, threw away his California driver’s license, and on his draft card assumed a new identity as Clyde Sarah, a Las Vegas born Spanish Hawaiian. Mr. Korematsu even had plastic surgery in an attempt to change his appearance. Nevertheless, the police stopped him on May 30, 1942 in San Leandro, California and turned him over to the FBI. Mr. Korematsu was charged with violating the military’s exclusion order. A newspaper headline read, “Jap Spy Arrested in San Leandro.”

While in the San Francisco federal prison, the Executive Director of the American Civil Liberties Union of Northern California, Ernest Besig, read about Mr. Korematsu’s situation in the newspaper and offered to defend him. After having spent two and a half months in jail, Mr. Korematsu was released when Besig paid his $5,000 bail. The moment they stepped outside of the courthouse into the sunshine, however, military authorities handcuffed Mr. Korematsu and took him to the Tanforan Assembly Center.

Tanforan Assembly Center was a racetrack that had been hastily converted to hold thousands of Japanese-American families. Armed guards manned watchtowers. Barbed wire surrounded the entire area. At night, searchlights swept the camp watching for anyone attempting to escape. Like the other internees, Mr. Korematsu lived in a horse stall. “The stall had one big door to let the horse in and there was an opening of six to eight inches at the bottom where the wind was blowing right through. It was a dirt floor, with straw on top of a cot, and a light up above; that was it. That was your room.”

Although imprisoned at Tanforan, Mr. Korematsu chose to challenge the exclusion order instead of pleading guilty. “The internment was wrong,” he reasoned, “we didn’t do anything disloyal.” Nonetheless, he had little support from within the Japanese American community. The Japanese American Citizens League initially did not support his constitutional challenge. Other Japanese Americans in interment camps knew about him and avoided him, fearing for the safety of their own families. The federal district court in San Francisco ultimately found Mr. Korematsu guilty of violating military exclusion orders and sentenced him to five years probation under military authority. Attorneys from the ACLU appealed.

Upon his “release” on probation by criminal authorities, Mr. Korematsu was incarcerated in what he calls the “concentration camp.” Mr. Korematsu and his family were moved to Topaz, Utah—nicknamed by internment camp officials as “the Jewel of the Desert.” This “jewel”, lay in the middle of the desert, surrounded by the same armed guards, barbed wire, and watchtowers.

Here, Mr. Korematsu was a pariah. His defiance of the government order and challenge of the exclusion orders caused mixed reactions. Even his family initially branded him a troublemaker. While in the interment camp Mr. Korematsu’s mother developed ulcers that were left untreated because there was not any treatment available at the camp. Mr. Korematsu’s mother eventually died from a perforated ulcer and never saw the day her son received an apology from President George Bush for his part in correcting the injustice that was done to the 120,000 Japanese Americans unjustly interned during World War II.

After a year-and-a-half of laboring in the internment camp, Mr. Korematsu’s qualifications as a skilled welder enabled him to leave the camp, provided that he not return to California. He got a job as a welder in an iron works company in Salt Lake City. Eventually he made his way to Detroit.

The Supreme Court Case

Mr. Korematsu’s appeal eventually reached the Supreme Court in 1944. The Court upheld the lower court’s ruling in a 6-3 vote, stating: 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 grounds for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. And, in a statement which speaks volumes of the absurdity of this decision, the court declared, “Korematsu was not excluded from the Military Area because of hostility to him or his race.”

Mr. Korematsu petitioned for a rehearing, but it was denied in February, 1945. He was devastated. He had lost; Japanese Americans had lost; the Constitution had failed him. He worried about the impact his ruling may have on his own children and other Japanese Americans. “Are we Americans or not? Are we citizens of this country? They can put us away without a hearing. If you look like the enemy they can put you in a box.”

After the Camps

After closure of the internment camps, Mr. Korematsu met his future wife Kathryn. They moved back to San Leandro, where they raised a son and a daughter. Although involved in the community, volunteering in the Boy Scouts and the Lion’s Club, and trying to put the internment experiences behind him, Mr. Korematsu could not pursue many job opportunities because his violation of the exclusion order left him with a criminal record. When filling out an application to become a real estate broker, he came across the question that asked if he had any prior criminal convictions, and he threw the application away. Although he worked many years as a draftsman, he did not apply to the larger companies or government agencies; they would not hire someone who had a prior “disloyalty” conviction on his record. As a result today Mr. Korematsu has no pension plan and still works part-time to make ends meet.

Re-Opening His Case

The long road to the reconsideration of the Korematsu, Yasui, and Hirabayshi internment cases began with a letter from history professor Peter Irons. Irons and Aiko Hertzig-Yoshinaga had discovered irrefutable evidence that top government officials knew and covered up significant government intelligence information that the Japanese Americans had not actually posed a threat to national security at the time of the internment. That evidence also revealed that top U.S. Justice Department officials, including the Solicitor General, lied to the Supreme Court about the “military necessity” justification for the internment. As the evidence of government misconduct began to accumulate, the possibility of reopening his case became more of a reality.

On January 19, 1983, a volunteer legal team filed a petition at the San Francisco federal district court so obscure that the clerk had to ask whether they wanted it filed as a civil or criminal suit. The legal procedure was a petition for writ of error coram nobis. A writ of coram nobis is limited to rare cases in which the courts are compelled to correct “fundamental error,” or “manifest injustice” in their own processes, which are discovered after a person has been convicted and released from prison.

Despite the compelling evidence produced, the legal team still faced a monumental task — to reconstruct events 40 years before which denied Korematsu a fair hearing. In a sense, they were retrying history with documents and evidence from the forgotten files stored away in the deep recesses of the government archives. But the legal teams proceeded with an unmistakable sense of destiny propelled by the courage of a man who demanded complete vindication. At one point in the litigation, for instance, Mr. Korematsu was offered a pardon by the government. He rejected this offer, telling the legal team, “I don’t want a pardon. If anything, I should be pardoning the government.”

Korematsu’s Second Day in Court

So on that drizzly Fall day in November, 1983, in a packed ceremonial federal courtroom, Dale Minami, Korematsu’s lead counsel, argued that the public interest demanded nullification of his conviction along with findings by the court about the manifest injustice that not only tainted Korematsu’s conviction but also the incarceration of all Japanese Americans:

This is not just a 40 year old misdemeanor, as the government characterizes it. This is a monumental precedent which affected deeply and irrevocably the lives of a 120,000 Japanese Americans, and countless numbers of friends and neighbors by the mass banishment of a single racial minority group...The public interest, then, demands more than a sterile recitation that we should let bygones be bygones and requires that the real substantial reasons [for the imprisonment] be exposed so that this tragedy will never be repeated.

Victor Stone, the United States Attorney representing the government, argued against such a position. The Court was silent and still when Fred Korematsu stood to address the court that had convicted him 41 years earlier. In a simple but powerful manner, Korematsu said:

As an American citizen being put through this shame and embarrassment and also all Japanese American citizens who were escorted to concentration camps, suffered the same embarrassment, we can never forgot this incident as long as we live....As long as my record stands in federal court, any American citizen can be held in prison or concentration camps without a trial or a hearing....Therefore, I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed or color.

At the conclusion of argument, United States District Court Judge Marilyn Patel ruled from the bench, vacating Mr. Korematsu’s conviction on grounds of “manifest injustice.” In her ruling, Judge Patel found that:

[The] records show the facts upon which the military necessity justification for the Executive Order, namely Executive Order 9066, the legislative act...and the exclusion orders...were based upon and relied upon by the government in its arguments to the Court and to the Supreme Court on unsubstantiated facts, distortions and representations of at least one military commander, whose views were seriously infected by racism.

She went on the comment on the claims of military necessity by the government:

The overwhelming number of Japanese were citizens, were residents of the United States, were loyal to the United States; that the various acts that suggested either the potential for espionage or sabotage that had occurred or could occur in the future, were essentially non-existent or were controverted by evidence that was in the possession of the Navy, the Justice Department, the Federal Communications Commission and the Federal Bureau of Investigation.

In conclusion, Judge Patel commented on the lessons of Korematsu v. United States:

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 feats and prejudices that are so easily aroused.

After Korematsu’s conviction was overturned, federal district courts in Portland and Seattle also vacated Min Yasui’s and Gordon Hirabayashi convictions respectively, although Hirabayashi had to endure a full trial and further appeal to the Ninth Circuit before his convictions were erased.

Note from the Editor: This article previously appeared in the AABA Newsletter. Eric Yamamoto, a former professor at Boalt Hall and current professor at the University of Hawaii School of Law, was part of the legal team that reopened the Korematsu case. Professor Yamamoto has graciously allowed the AABA Newsletter to print these excerpts from his upcoming article, A BRIEF BIOGRAPHY: FRED KOREMATSU which will be published soon.

After the successful coram nobis petition, Fred Korematsu continued to be a tireless advocate for civil rights, visiting and speaking at countless colleges, law schools and functions. In 1998, Korematsu received the Presidential Medal of Freedom, the nation's highest civilian award. Korematsu has been the subject of numerous documentaries including the 2001 Emmy awarding film "Of Civil Wrongs and Rights" co-produced by filmmaker Eric Fournier and Korematsu's son, Ken Korematsu.