Fred Korematsu, 86; Fought WWII Internment of Japanese Americans

Fred Korematsu, the Japanese American whose court case over his refusal to be interned during World War II went to the U.S. Supreme Court and became synonymous with this nation’s agonized debate over civil liberties during times of war, has died. He was 86.

Korematsu died Wednesday of respiratory illness at his daughter’s home in the Northern California community of Larkspur, according to his attorney, Dale Minami.

“He had a very strong will,” Minami said of Korematsu. “He was like our Rosa Parks. He took an unpopular stand at a critical point in our history.”

In February 1942, about 120,000 U.S. residents of Japanese ancestry -- including citizens and noncitizens -- were ordered out of their homes and into camps after Japan’s Dec. 7, 1941, attack on Pearl Harbor. Korematsu did not turn himself in and was arrested, jailed and convicted of a felony for failing to report for evacuation.

Korematsu was one of several who challenged the constitutionality of President Franklin D. Roosevelt’s Executive Order 9066 authorizing the internment. His case eventually reached the U.S. Supreme Court, and in 1944 the court upheld the order.

But as was discovered many years later, the court -- and the nation -- had been gravely misled about the potential dangers from Japanese Americans.

Indeed, the Korematsu case was cited as recently as April 2004. At issue before the Supreme Court was whether U.S. courts could review challenges to the incarceration of mostly Afghan prisoners held at Guantanamo Bay Naval Station in Cuba in the aftermath of the Sept. 11, 2001, terrorist attacks. Korematsu, then 84, filed a friend-of-the-court brief saying, “The extreme nature of the government’s position is all too familiar.”

Last June, the U.S. Supreme Court ruled that the Bush administration’s policy of detaining foreign nationals without legal process at Guantanamo Bay was illegal.

The public stance taken by Korematsu in this and other civil liberties issues in the previous 20 years was in stark contrast to the four decades after the war in which he hid details of the ordeal from his own children.

“He felt responsible for the internment in a sort of backhanded way because his case had been lost in the Supreme Court,” legal historian and author Peter H. Irons said in a PBS “POV” documentary on Korematsu by Eric Paul Fournier.

The Korematsu case was reopened in the 1980s because of Irons, who was researching a book on wartime internment. Irons discovered that the government lied to the high court, a lie that would provide the basis for a landmark 1983 federal court decision to vacate Korematsu’s conviction.

Fred Toyosaburo Korematsu was born Jan. 30, 1919, in Oakland, where his Japanese-born parents ran a plant nursery. After graduating from high school, he was working as a welder when Japan’s attack on Pearl Harbor plunged the United States into war.

Official concerns that Japan would find sympathizers in the Japanese American community on the West Coast surfaced immediately, including the idea that there might be an effort to get messages to Japanese submarines offshore.

Like many other Japanese American homes, the Korematsus’ house was searched for flashlights and cameras, “everything that they thought we would use for signaling,” Korematsu said.

The following February, Roosevelt granted broad powers to the War Department to carry out internment, acting upon the assertions of Gen. John L. DeWitt, the Army general in charge of the West Coast, who believed that Japanese Americans were more loyal to Japan than to the United States.

Korematsu, then 22, watched as his parents prepared to leave their home, but he decided to remain behind with his Italian American girlfriend.

“I didn’t think that the government would go as far as to include American citizens,” Korematsu said in Fournier’s documentary, which won an Emmy in 2002.

He soon discovered it would. He traveled about, changed his name and had plastic surgery on his eyes. But on May 30, 1942, he was arrested.

While in jail, Korematsu was visited by Ernest Besig, executive director of the American Civil Liberties Union of Northern California, who was looking for cases to test the constitutionality of internment.

The lawyer posted $5,000 in bail to free Korematsu, but the military police wouldn’t release him. Korematsu was taken to Tanforan racetrack, an assembly center for Japanese Americans south of San Francisco, where he spent time in a horse stall.

“There’s no floor, it’s just dirt, so the wind was blowing through that and it was cracks all around the walls, and there was a light bulb up there, one light bulb on the ceiling and that was it,” Korematsu said in the documentary.

He ended up in a camp in Topaz, Utah, where he was shunned by his fellow inmates for having attempted to dodge internment.

Meanwhile, his case proceeded through the courts, but Korematsu lost at every turn, including a U.S. Supreme Court decision in 1944. Justice Frank Murphy, one of three justices who dissented, called the internment order “legalization of racism.”

But the six-member majority concluded that, in the words of Justice Hugo L. Black, “We could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal.”

Toward the end of the war, Korematsu was allowed to work as a welder in Salt Lake City as long as he promised not to return to the West Coast. He later went to Detroit.

The government finally ended the internment in late 1944 and like so many other Japanese Americans, Korematsu tried to put the ordeal behind him.

He returned to the Bay Area, where he and his wife, Kathryn, raised a son and a daughter. Korematsu worked as a draftsman but could not get a job at a larger firm or government agency because of his felony conviction.

In 1981, Irons asked to see the original documents in the case, which were in the hands of the Justice Department. The documents had been mislabeled and misplaced but finally were located.

“They were in two or three dusty cardboard boxes tied up with old string -- obviously no one had ever looked at them since they were sent off to the warehouse back in the 1940s,” Irons told The Times in 2004.

When Irons opened them, the first folder he saw contained a memo from a Justice Department lawyer to U.S. Solicitor Gen. Charles Fahy, the person responsible for arguing the government’s side in cases before the Supreme Court. In the memo, the Justice Department accused Fahy of lying to the Supreme Court.

In one example, the Justice Department strongly disputed the basis of DeWitt’s claims that people whose ancestry was Japanese, which DeWitt considered “an enemy race,” were engaging in “extensive radio signaling and in shore-to-ship signaling” to Japanese ships. Such activity, which would be evidence of treason, had formed a primary basis for the internment.

But the Justice Department memo asserted that DeWitt in fact had no evidence that overt acts of treason were being committed. There were some indications that the “signaling” was nothing more than youngsters going to outdoor toilets at night with flashlights.

Even FBI Director J. Edgar Hoover and officials at the Federal Communications Commission agreed that there was nothing to the signaling reports.

The 1944 Justice Department memo stated: “Since this is not so, it is highly unfair to this racial minority that these lies, put out in an official publication, go uncorrected.”

In the final briefs filed with the high court, however, the Justice Department’s views were diluted to such an extent that the high court could hardly have determined their meaning. The Supreme Court, Irons realized, had made its decision based on false information.

“I was totally astounded,” Irons said. “Then it struck me that this was evidence of a crime, to present lies to the Supreme Court.”

He contacted Korematsu as well as Gordon Hirabayashi, who had gone to prison rather than obey curfew and evacuation orders, and Minoru Yasui, who had served time for violating the curfew. All three cases had reached the Supreme Court in the 1940s, and all three lost.

Thus began a laborious 2 1/2 -year process to get the convictions of Korematsu, Hirabayashi and Yasui overturned. They would be the fair trials that Japanese Americans never had.

The real significance of Korematsu’s case, Irons said, was that it raised, for the first time, the central issue: Was the internment constitutional?

The lead attorney was Minami. He and the other lawyers petitioned the U.S. 9th Circuit Court in San Francisco to correct the error that was made before the court, which was that government prosecutors suppressed, altered and destroyed material evidence during its prosecution of Korematsu during the war. Rarely is such a petition, called a writ of coram nobis, ever granted.

The petition put the Justice Department, which had the responsibility for responding to it, in a position of having to defend the government’s action during internment, knowing that the department had failed to get accurate information to the court in the original case.

In preliminary discussions with U.S. District Judge Marilyn Hall Patel, who was presiding over the case, Justice Department lawyers tried to evade the issue. They suggested a pardon for Korematsu instead of proceeding with the case in court, but Korematsu didn’t want forgiveness for refusing to do something that he believed was unlawful.

The Justice Department was also unable to persuade Patel not to make formal findings of fact that would fix the blame on the government for the original misrepresentation. After studying the initial positions of the Justice Department’s attorneys, Patel said she viewed its position as “tantamount to confessing an error.”

She set a hearing for Nov. 10, 1983, in a larger, ceremonial courtroom so internees and their families could witness the historic hearing.

Toward the end of the hearing, in an unusual move, Patel invited Korematsu, then 64, to speak.

The courtroom grew still as Korematsu spoke for several minutes. “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,” he said.

Everyone expected Patel to take the case under submission for a later ruling, as would be normal. But in another surprise, she ruled from the bench, saying that she intended to vacate the conviction and make formal findings of fact -- everything Korematsu’s attorneys had asked for.

“I don’t think I was quite prepared for the response to it,” Patel said in Fournier’s documentary, “because it really didn’t seem to me there was a dry eye in the courtroom.”

Irons, who had been seated next to Korematsu during the hearing, said: “The audience literally was stunned. They had just witnessed an unprecedented event that this whole internment issue had been resolved by a court 40 years later in their favor.”

In her later written ruling vacating Korematsu’s conviction, Patel said in part: “[Korematsu] 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.”

Yasui’s conviction was vacated in 1984, although no evidentiary hearing was held. Hirabayashi’s conviction was vacated in 1987 by the 9th Circuit, which found that the government had engaged in “suppression of evidence” in its presentation of his original case to the Supreme Court.

In 1971, Congress repealed the law under which all three were convicted. Five years later, President Ford acknowledged that the internment had been a “national mistake,” and in 1983, a federal commission unanimously concluded that the factors that shaped the internment decision were “race prejudice, war hysteria and a failure of political leadership” rather than military necessity.

President Reagan in 1988 declared the internment a “grave injustice” and signed legislation authorizing reparations of $20,000 each to thousands of surviving internees, including Korematsu. In 1998, President Clinton awarded Korematsu a presidential Medal of Freedom, the nation’s highest civilian honor.

“In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls -- Plessy, Brown, Parks,” Clinton said. “To that distinguished list today we add the name of Fred Korematsu.”

The “Fred T. Korematsu vs. U.S. Coram Nobis Litigation Collection” -- 36 boxes of legal research, pleadings, memoranda, internal correspondence and personal litigation papers -- is now housed at UCLA’s Asian American Studies Center and the Young Research Library’s Department of Special Collections.

“What Fred represents as a symbol is the significance of dissent in a free society,” Minami said Thursday. “A courageous stance by individuals like Fred helps strengthen our Constitution and inspires us to be a stronger country.”

Korematsu is survived by his wife, Kathryn; son, Ken; and daughter, Karen Korematsu-Haigh.