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Oct. 16, 2003 Press Contact: Sabrina Miller
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Fred Korematsu, who challenged World War II internment of Japanese-Americans, asks U.S. Supreme Court to review “War on Terrorism” detentions

Fred Korematsu, who in 1942 defied the U.S. government’s World War II internment order of Japanese-Americans, filed a “friend-of-the-court” brief in the U.S. Supreme Court October 3 asking the high court to review the constitutionality of prolonged executive detentions under the Bush administration’s “War on Terrorism.” “Fred Korematsu has committed himself to ensuring that Americans do not forget the lessons of their own history,” said University of Chicago Law Professor Geoffrey R. Stone, the author of the Korematsu brief, with the assistance of two other noted Constitutional scholars.

The brief of amicus curiae was filed in the cases of Khaled Odah v. United States, Shafiq Rasul v. George W. Bush and Yasir Hamdi v. Donald Rumsfeld. Each of the plaintiffs has been held without formal charges - Odah and Rasul at the Guantanamo Bay facility in Cuba and Hamdi, possibly a U.S. citizen, in a military brig in Virginia, “without any fair hearing to determine “guilt” or innocence, without the assistance of counsel, and without any meaningful judicial review,” Stone said. “The extreme nature of the government’s position in these cases is reminiscent of its positions in past episodes, in which the United States too quickly sacrificed civil liberties in the rush to accommodate overbroad claims of military necessity,” he added.

More than sixty years ago, Korematsu challenged the constitutionality of President Franklin Roosevelt’s 1942 Executive Order that authorized the internment of 120,000 individuals of Japanese ancestry on the U.S. West Coast. “This is an extraordinary convergence of events, spanning sixty years of this nation’s history,” said Stone, who is the author of a major study of civil liberties in wartime, “The Secret of Liberty,” which will be published by WW Norton & Company in early 2004.

Korematsu, now 84, was born to a Japanese-American family in California that owned a flower nursery. After World War II broke out, Japanese living in Pacific states were first subject to curfews and were later sent to internment camps. In 1942, Korematsu’s family was taken for processing to Tanforan, a former racetrack south of San Francisco, but Korematsu, then 22 and working as a welder in an Oakland shipyard, refused to go. He was arrested, convicted, given a suspended sentence, and ultimately sent to the Topaz internment camp in Utah with his family for the duration of the war.

In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld his conviction, ruling that because the United States was at war, the government could constitutionally intern him, without a hearing and without any adjudicative determination that he had done anything wrong, on the grounds of military necessity.

In 1983, Korematsu appealed the conviction, which was overturned by Judge Marilyn Patel of the U.S. District Court in San Francisco in response to a writ of coram nobis (to correct a judgment on the ground of an error of fact), filed on his behalf by a team of attorneys, many of whose parents had also been interned. The Court ruled that the government's case against Korematsu in 1942 was based on false, misleading and racially biased information.

In 1988 Congress passed legislation apologizing for the World War II internment of Japanese-Americans and awarding each survivor $20,000. In 1998, President Clinton awarded Korematsu the Presidential Medal of Freedom, The citation read, in part, “Fred Korematsu challenged our Nation's conscience, reminding us that we must uphold the rights of our own citizens even as we fight tyranny in other lands.”

In Korematsu’s amicus curiae brief, Stone, the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago and a former University Provost and former Dean of the Law School, 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 time 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.”

In addition to Stone, Korematsu is represented by Professor David A. Strauss of the University of Chicago Law School and Professor Stephen J. Schulhofer of New York University Law School.
Last modified at 05:54 PM CST on Thursday, October 16, 2003.

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