>> the supreme court of the united states. >> landmark cases. c-span special history series produced in cooperation with the national constitution center. exploring the human story and

constitutional dramas behind 12 historic supreme court decisions. >> 759. >> number 18. ro against wade. >> quite often in many of our most famous decisions, ones that the court took on the populace. >> let's go through a few cases that illustrate dramatically and visually what it means to live in a society. it is the story of korematsu

versus the united states. fred korematsu was a japanese-american who challenged the right of the government to detain people during world war ii. you may know a little bit about this history. many japanese-americans were gathered up, 120,000 by some estimates and attained through the course of the war. fred said that was no right and took it all the way to the supreme court. let me introduce you to two people who will help us learn the story. peter irons is a civil rights attorney. he is the author of 10 books including justice at war. in the course of researching his work on this case, he found proof the government used tainted evidence to convict fred korematsu and to justify the internment of japanese americans. thank you for being here. karen is fred's daughter and she

continues the family legacy as executive director of the institute in san francisco. , which does what? karen: education. k-12 and the general public. susan: we are glad to have you at the table. we are going to start with the big chair. when this case came to the court, what were they asked to decide? >> the issue was whether the government can signal out a group of people solely on the base of their race or ethnicity and hold them in literally concentration camps indefinitely without any due process, without a hearing, a lawyer, a trial and whether this was justified under the government's powers as they asserted it to protect the country from potential espionage or sabotage by members of this group. it was an issue that at the time

, very few people, particularly outside of the west coast had any knowledge of japanese americans and they thought, this group, they look like the enemy and they may actually support the japanese. so it is better to round them up and put them away and the president has the power to do this under the war powers of the constitution. that was the issue. susan: what makes it a landmark case? prof. irons: first devote, the supreme court in 6-3 ruling upheld the government's power to do this and fred korematsu's conviction for violating the order he report to these internment camps. the court upheld them. that set a precedent. we could say today that is very unlikely to happen again. this is just an aberration in our constitutional history.

i don't think it is. even gents this -- even justice anthony scalia said this could happen again. we have to be on the lookout and the alert at all times. are we in a situation where some other rube whether it is arab americans or other group comes under this kind of hostility and scrutiny and as one of the supreme court justices dissenting in the case said, this principle lies around like a loaded weapon ready for the hand of any authority with a plausible reason. susan: looking at the history of the time as you have studied the, was this particular to japanese americans? on the east coast, there were threats of german submarines coming to the unit states. were german-americans rounded up? why were japanese americans singled out? karen: there were some german-americans and italian americans who were put into some of the prisons and camps.

they were on a case-by-case basis. with the japanese americans, they were singled out because they quote, looked like the enemy. therefore, that was why they were rounded up without any due process. and put in these american concentration camps. it was racially based. even justice robert jackson and murphy in their decisions said it had to do with racial discrimination. susan: will you tell us -- you tell us in your book there was a long history of bias and prejudice toward asians coming to the united states. in the 1880's, the chinese exclusion act. set the stage before the 1940's, the feeling of majority white americans especially on the west coast for asians coming to the country. prof. irons: there had been

hostility toward asian americans ever since chinese immigrants came to this country. largely, they worked on the railroads and the minds and -- and the mines and in agriculture. there was a powerful nativist movement shared largely from organized labor, which is sort of odd. they sell them as low-wage competition. -- they solve them as boat -- they saw low-wage competition. there were very few japanese americans. when they started coming to this country around the turn of the 20th century in larger numbers, congress passed a law singling them out as what they called aliens ineligible for citizenship. japanese were the only people who could not become naturalized citizens. so they remained aliens. then he had lived in this

country for many years. they were loyal to this country. they put up their children to be loyal americans. the children who were born here were birthright citizens. that is a somewhat controversial topic now. they were american citizens. the hostility particularly when japan became aggressive in asia toward china and people began to fear there might be some outbreak of war or hostility with the japanese. the interesting thing is, after the japanese bombed pearl harbor in december of 1941, for more than a month, there was no organized call to deport or intern or roundup japanese americans. the newspapers were saying they are loyal americans. we don't need to give into the fears. but then, the hearst press on

the west coast and politicians started saying, we have to end -- the farmer grower association in california said this is whitman's country. they actually said that. -- this is white man's country. they actually said that. they exerted pressure on president roosevelt who finally capitulated and issued the order which i'm sure we will talk about in a minute that gave the military the power and to detain -- the power to detain, exclude any person of any ancestry but only japanese americans were singled out. susan: peter touched on the back story that needs to be emphasized, especially with the agriculture. the japanese were doing so well up and down the west coast. a lot of people were very jealous. it was kind of what we hear today. they were taking away our jobs. they are taking away our opportunity, our land.

as we do in this country, we go into other countries where we can get cheap labor and especially for japan at the turn-of-the-century when the economy was very poor, they went into the prefectures of the counties where it was highly agriculture and said come to america, the land of opportunity and that is how my grandfather came to the west coast. no different to what they did to the chinese and what we are doing for the mexicans. susan: we are going to show a video that is about the pearl harbor attack. this is a government film on japanese relocation. let's watch. >> december 7, 1941, a date which will live in infamy. >> the japanese attacked pearl harbor. our west coast became a

potential combat zone. living in that zone are more than one under thousand persons of japanese ancestry. it was determined that all of them would have to move. the actual migration got underway. the army provided vans to transport household belongings. buses to move the people to assembly centers. evacuees cooperated wholeheartedly. behind them, they left shops and homes they had occupied for many years. some were taken to race and fairgrounds or the army almost overnight had built assembly centers. they built here until new pioneer communities could be built in the interior. the army provided housing and plenty of helpful nourishing food for all.

at this relocation center, evacuees were met by japanese who arrived some days earlier. naturally, the newcomers looked about with some curiosity. they were in a new area. land that was raw, untamed. they were free to educate their children. this goes back to a story that has yet to be told. when all i don't hands are on productive work in public land. it will be clinical only one circumstances permit loyal american citizens to once again enjoy the freedom we in the scud c cherish -- we in this country cherish. in the meantime, we are setting

a standard for the rest of the world and the treatment of the people who may have loyalty to another nation. susan: there we see the government's take on all of this. how was the country reacting once the order was given? prof. irons: the reaction was very unusual because as the propaganda film said, the vast majority of japanese americans cooperated because they had no choice. where else could they go? what would happen to them? what would happen to their families, their children, their parents and grandparents? so they did cooperate and go into the camps. the camps as i am sure anyone who has been in them can tell you were not like this propaganda film. most americans did not think about it. it was not an issue that concerns them. they were stuck away on indian reservations and the desert and mountains of the west and in the swarms of arkansas. for most of the war, most people

did not think about what was going on. susan: plus there was a war going on and people had sons overseas fighting in their focus was on america winning the war. your folks and relatives and people like them were in these internment camps. let's bring fred into the story. how old was he when the order was given? karen: he was 23 years old. susan: what had he been doing up to that point? karen: he actually had been a welder. he tried to enlist in the service even before the talk of the draft. he and his buddies wanted to stay together so they thought they would apply. they applied to the national guard and when they went to the post office to enlist, the military officer refused to give my father an application. that was even before pearl

harbor. my father always wanted to support the military effort. he decided to go to welding school and get his license and became a welder. in the shipyard. even there, he was fired as pearl harbor got closer just because he was of japanese ancestry even though he was an american citizen born in oakland, california. susan: the executive order at stake was what exactly that fdr gave? prof. irons: this is an executive order which would later follow it up by an act of congress, which made violation a criminal offense. what the executive order did was to empower the west coast military commander to issue

orders that would exclude any or all persons from designated military zones. the whole west coast was a designated military zone from the canadian border to mexico, extending inward several hundred miles, the state of arizona, california, oregon, washington. the order was open-ended. but it was only applied to japanese americans. what general dewitt did systematically starting in washington, bainbridge island across said that they had to report, usually within a week, and had to report to these assembly centers. as the propaganda film said, there were racetracks and fairgrounds, but the conditions were actually terrible. but, they had no other choice. if they resisted, they were subject to criminal penalties. this is what motivated not only

karen's dad, but also the two other japanese-americans. a man in seattle. due to at the university of washington, -- he was a student at the university of washington, and a man in portland, who was a lawyer. they both refused to report for internment, and they violated the curfew that the general had imposed on japanese-americans. and so, they were all charged by the government, all convicted, and their cases all went to the supreme court. susan: our next video is actually fred korematsu about his family life and this. of time in his life, let's watch. fred: at the nursery, my parents were all around the radio listening. they were not saying very much. my mother was crying. my father was just disgusted. all that work that my parents did for the nursery. a few days later, the police came down and confiscated all of the flashlights and cameras.

they confiscated everything that they thought that we would use for signaling. before the war, my parents were very proud people. they always talked about japan. also about the samurais and stuff like that. and, after pearl harbor, they just kept it to themselves. they were afraid to talk about it. i thought the exclusion order would be only for aliens. those that were born in japan. i did not think that it would go as far as to include american citizens. susan: so karen korematsu, did your grandparents go to the camps? karen: oh yes, everyone of japanese ancestry along the west coast was forced, removed from their homes. susan: but your father did not? karen: that was correct. my father was the third son of four boys.

he was 23 years old at that time. he was old enough to be more independent. he learned about the constitution in high school. he thought he had civil rights as an american citizen. so, i remember him telling me that at first, he thought that maybe something might happen to his parents, because, even though they had wanted to become citizens, they weren't. certainly, the american citizens would be protected. so, once this order was issued, he just did not think it was right. all due process was basically thrown out the window. there were never any charges, never any hearings, never access to an attorney, or your day in court. so, he just wanted to get on with his life as an american citizen. and that is what he decided to

do. susan: he also had a personal reason. he had an italian-american girlfriend. karen: thank you. yes. not my mother. because she said she would have never deserted him. that was another reason. how american is that? to want to stay behind, because, you know -- you want to stay with your girlfriend, and just be an american. that is all he ever wanted to do. susan: how did he get arrested? karen: he was on a street corner and san leandro, california, which is a suburb next to oakland in the san francisco bay area, and he was visiting his girlfriend that day on the corner and he went into this kind of corner store to buy some cigarette and he thinks he was spotted. somebody recognized him. he was on the corner, and all of a sudden the san leandro police showed up and said something to him like, have you seen any short japanese guys around here? and my father said no.

then the military police came and that was it. then they took him first to the san leandro jail, and then to oakland. they do not know what to do with him. host: one of the important things to know about fred korematsu. his initial steps with the law. peter: the initial steps were very rudimentary, to say the least. he was put in to the federal jail, and while he was there, he was visited by the director of the northern california aclu, a man in earnest. he had read about fred's arrest in the newspaper, and he was hoping to find somebody who would be willing to undertake a test case. this was a test case that had no guarantee of success whatsoever. but fred said, ok, i will do it. there were two other

japanese-americans led been picked up, later sent to the camps, who were unwilling to do this. they just wanted to get this over with. but fred said, no, i will do this. they held a trial, the interesting thing about the trial is that first of all, it lasted less than one day. there was only one witness against fred and that was the fbi agent who interrogated him after he was arrested. there were only two questions asked at the hearing. are you a japanese-american? which he obviously was. secondly, did you violate the exclusion order, which he obviously did. so, you're guilty. the judge actually, in that case, instructed the jury that they had to find fred guilty. his defense attorney tried to argue constitutional issues, the judge dismissed all of them. but one interesting thing, susan, is that after the judge declared that fred was guilty, sentenced he imposed was probation, which normally means that you are free to go about as long as your report monthly to a probation officer. as soon as fred had posted the bail, which was very small, -- karen: ernie wrote the check.

peter: they were walking out of the courtroom as a free man. there were military police standing in the doorway with guns drawn, and they said, we have orders to take him into custody, and they said wait a minute, you cannot do that. the judge has already put him on probation, he is free to go. they said, we are sorry, that is our orders. they took fred away, and that was the last freedom he had before he was sent to the internment camps. susan: when you talk your father, in later years, as a 23-year-old, did he understand the significance of his decision to go forward as a test case? karen: i don't think he really knew the impact. but, his decision was very simple. it was not compensated. -- it was not complicated. he thought the government was

wrong to incarcerate 120,000 people of japanese ancestry. he was right to take a stand. he lived by his principles. of right and wrong. not everyone can say that. but he was this kind, very gentle person. and he truly believed in what he was doing. susan: how did other japanese-americans who were interned, react to fred standing up against this? karen: from the time that he entered -- he went to the detention assembly center in the san francisco bay area which was the racetrack -- that was kind of a temporary quarters that were basically horse stalls. dysentery was rampant throughout the track. this is was bad.

that is where he ended up first, and so his -- once everyone knew that he was there, one of his brothers and the community of japanese-american men said that they wanted to have a meeting to determine whether or not my father should even pursue his legal case. they did. they did not really include my father. in that discussion. afterward, my father's oldest brother, talk to my father and my father asked, what did they say? they said, well we do not think you should continue. he was really vilified from day one, because, they thought that if they associate it with my father, some harm i come to them. they thought that he was just too good for himself. basically, he was ostracized.

as we were until his case was reopened in 1983. susan: did that remain an issue in your family over the course of a lifetime? karen: not such a big issue. i didn't know about until later years. susan: did the brothers ever have a falling out? karen: no, not really. later on, they became closer again. susan: most people just did not want to make waves with the government, is that what was going on? peter: that's right. there were no real alternatives. the only alternatives were to go to the camp willingly, but under duress of sorts, because you had no other choice. or, to go to jail. there were no other choices. fred took the one that was a very minority view, willing to undergo the legal process, be convicted, because there was no question that he would be found guilty. and, risk going to the prison for a year.

they finally sent him to one of the camps, but, the point is, when his case went through the court to the supreme court, very few people had any sympathy for, not only fred, but? me -- but japanese-americans in particular. the military, in fact, was tremendously hostile. general dewitt had said publicly things like a jap is a jap. there is no such thing as a loyal japanese. it is impossible to determine their loyalty. with the odds stacked against them like that, it was very unlikely that they would find much sympathy even on the supreme court. susan: you saw the government's case of so-called propaganda

film that they made to tell people what was going on with japanese interment. in a few minutes, we'll show you video of what the next stop and fred korematsu's saga was, which was in utah. the topaz internment camp, and what it looks like today. >> fred and his family would have arrived here in september of 1944 -- 1942. fred korematsu's family would have arrived in delta by train. they would have been either bust or tracked out here. here was the administrative areas, and back in there would have been over 600 barracks all lined up. there were 250 people in each block. six barracks on one side and then six on the other. this is where the korematsu family lived. this is a re-creation of one of the barracks at topaz.

they were 20 feet wide, 120 feet long, divided into six different rooms. this particular room that we have re-created here is 20 feet by 20 feet. oddly, this is exactly the same sized room as fred korematsu lost family would've lived in. everyone was given a mattress, just a cotton mattress with two army blankets. these are in the kind of mattresses and cots that they slept on. when people came, many of the rooms were not finished. they did not have sheetrock, they do not have ceilings, they did not have the masonite on the floor. it would have been freezing, even in the daytime. the only heating they would have had would have been a potbellied stove, but this would not have been able to heat the entire room in a comfortable kind of way. it was freezing cold here, but in the summer, because the outside of the barracks were

covered with black tar paper, would have absorbed the heat and it would have been stifling. susan: what was daily life like for people? what did they do to occupy their time? what did the government provide? you said they only had 50 pounds worth of their own belongings. how did they pass the time? karen: the japanese-americans were very resourceful. for the most part, they said, we have to get on with our lives. the parents wanted schooling for their children, so they had a kind of makeshift classroom in these barracks. sometimes they were able to bring in some teachers. i remember george takei who now has his opening broadway show, "allegiance", here members looking out the window of where his classroom was an looking at desolate land.

there was baseball, finally. baseball teams. people finally have some music, so they either had instruments sent in, and they had some dance dance. there even boy scouts and girl scouts. they had their churches. slowly but surely, they made the best of a terrible, horrible situation. susan: we have another video to show you, just to get a sense of this. this is a very rare piece of video. a home movie made by another an internee. he was also in the topaz camp. he snuck a camera in then recorded scenes of what life was like there. he later on made a documentary film about it. let's watch. >> this is a shot of the evacuees doing volunteer work of repairing the pipes, which broke.

they had poor materials, so things would break. then we had a volunteer road crew repair the pipes. here we have the dust storm. this was taken on a long sunday afternoon, and everyone had to keep their windows closed, shut tight. it was very hot. the winds blew, and the dust would come inside the cracks in the windows. and the doors. you stayed cooped up inside. my brother came to visit as, and the sad part is, the u.s. army uniform, he had to come through the u.s. army guards to come to visit his family.

susan: can you pick up on that last point? there are probably other men interned in the camp of military age? how did the government treat them if they were interested in serving in the work? peter: it was a very complicated situation because initially the military resisted, particularly the army, resisted any involvement of the japanese-americans as soldiers. but, they finally decided, mostly as a pr gesture, that they would set up a separate battalion the 442nd battalion composed of japanese-americans, most of whom came out of the camps and volunteered to serve their country. fighting against an enemy that used concentration camps while their own parents were in camps. they were sent to the european theater. they fought gallantly, particularly in italy. they suffered the greatest casualties of any battalion, and

they were the most decorated. one u.s. senator, from hawaii, was a member of that battalion and he lost an arm during the war. they fought valiantly. there were other people in the camps who resisted the draft. this is a little-known, little told story. they said, as long as we are being locked up, simply because of our race, why should we fight for a country that treats us like this? and they refuse to go. they were known as the resistors. many of them were convicted and sentenced to prison. finally, president truman, after the war, pardon them all. it was a mixed thing, because the army treated them as a special -- they also did with african-american soldiers during the war -- it was a segregated army. they fought for the country and fought and suffered and died for

the country, but were not treated as real americans. susan: a series of questions asked of people interned in camps. question 27 in the loyalty form: are you willing to serve in the armed forces were ever ordered? and 28, we swear unqualified allegiance to the u.s. and faithfully defend the u.s. from any or all attacks by foreign or domestic forces and forswear any form of allegiance or obedience to the japanese emperor and any other foreign government, our organization? those who said no he came the no-nos. i want to take a couple more calls. the justice department document acknowledging that the government knew about the japanese-americans that form the

basis for fred's case later on in life. let's watch. >> this give you an indication of the discussion and debate that went on over the decision of whether or not to interned japanese-americans on the west coast of the united states. this one is very interesting, it is from the assistant to the attorney general of the u.s. to fdr. asking, to alert the president of the situation that is going on in california. he says it looks like it may explode any day now. there is a huge amount of public pressure to move them out of california. citizens and aliens alike. he also says that they will probably require suspension of the writ of habeas corpus. we should have another supreme court right on our hands. he is clearly concerned about the legal implications and the constitutionality of trying to intern japanese-americans.

here's a document from the attorney general of the u.s. to fdr. first, he identifies in the opening paragraph that there clearly is a racist element involved in this discussion of trying to intern japanese-americans during the war. he says that west coast people distrust the japanese, special interest groups would welcome their removal from good farmland, and the elimination of competition. but, he says, in spite of that, my last advice on the war department is that there is no evidence of imminent attack. from fdr, that there is no evidence of sabotage. he is dismissing the fundamental arguments in favor of interning japanese-americans. here, actually, is the actual text of the executive order. this document is actually not all that specific, in terms of which nationalities or ethnic

group might be ultimately affected by it. what it does is it defines this idea that the department of war has the authority to create his military exclusion zones. these are be fairly large areas on the west coast of the u.s. as a result of this, under this authority, the japanese-american community on the west coast, including american citizens, would be moved into internment camps. susan: we see that there were people within the fdr administration who predicted there be a court challenge. how in fact did the court case get to the supreme court? what was the mechanism? peter: after he was convicted, there was an appeal. the appeal went to the ninth circuit court of appeals, which did not decide the case, it just send it on to the supreme court. the court had already decided in 1943, in the previous cases, but those involved the curfew. the curfew was considered much less of a burden on japanese-americans, after all,

it only said you had to be in your home between 8:00 p.m. and 5:00 a.m. the interment itself, the exclusion order, was the issue before the court. it is very clear, now, in hindsight, that the court was misled. but the point, i think that is even more important, is that it was clear at the time, there were government officials, including attorney general, and several of the justice department lawyers who were involved in these cases who said no, we can't do this. it violates the constitution. in what became, i think, one of the great tragedies of american law, the government's highest-ranking lawyer, the solicitor general of the united states, got up before the supreme court and said, this is something we have to do because the president and the congress have decided on this. we're not going to challenge them. we're not going to second-guess them. there are americans lying at the

bottom of pearl harbor were killed by the japanese. we have to be vigilant about this. susan: so, in our last week's case, which was a world war i case, we learn that the justices were really imbued with a lot of patriotism during the time of the war and world war i -- was it the same sort of feeling that these justices wanted to support the war effort? peter: it was, almost exactly. in contrast to the decision in the previous case, which was unanimous, the decision and fred's case was a split decision, as you said. 6-3. but, what is very interesting, is some of the most liberal justices on the court, by reputation, and historical account, justice hugo black for example, who wrote the opinion upholding fred korematsu's conviction. justice william douglas. felix frankfurter, considered the great liberals of the court, they voted to uphold the

conviction. there were three justices, however, dissented. every constitutional scholar agrees that these defense by these three justices completely obliterated the reasoning and justice black's opinion. they pointed out -- they made two serious points. first of all, abject deference to the executive even during wartime is not a function of the judiciary. it is upholding the constitution. secondly, this is decided simply on the basis of race. they made that point as justice murphy said, i dissent from this legalization of racism. and very soon, after these decisions, within a year, one of the most noted law professors in the country, professor at eugene yale law school wrote in the yale law journal, saying that the korematsu case is a constitutional disaster.

this is not something that 40-70 years later, we say oh, that was a mistake back then. but they had their reasons for it. they had no reason at the time, except to uphold what they thought was a patriotic duty. susan: for the record, i want to get some of this on the screen, so people can have the reference here it first of all, the chief justice at the time was harlan. he was appointed by whom? what was his persuasion? peter: he was appointed by herbert hoover. he was a republican. he would not have been a republican today. because, he was, in fact, one of the great chief justices that we have had. susan: also a number of other names have become famous to people.

you mentioned justice douglas, just as referred her -- justice frankfurter. the constitution of the court was what at this time? peter: eight of the nine members of the court with the exception -- seven of the nine members, with the exception of justices don't and jackson had been appointed by fdr. they were the new deal justices when fdr threatened to pack the court back in the 1930's by adding new justices, he finally got his wish. he appointed a majority of the court. these were people who owed some kind of personal and institutional loyalty to the president. peter: in this particular case, during wartime, it is very hard for anybody, including a member of the supreme court, to say as -- that the president was wrong and what would be the implications of that. susan: the court said, yes. and the second question, should fred korematsu's conviction be upheld?

and the court said, yes. and it was a 6-3 decision. i want to read a lit -- little bit of the opinion. in your book, you noted it started out with the decline of racism. how did it switch? peter: because like many people, supreme court justices included, you can believe in one thing and the exact opposite at the same time to make an argument. justice black did say racism is wrong. korematsu was not convicted did -- because of hostility to him or his race.

susan: i will read a bit of that. "he was not excluded because of hostility to him or his race, he was excluded because we are at war with the japanese empire. military authorities, decided that the urgency of the situation demanded that all citizens of japanese ancestry be separated. congress, as inevitably it must, determined that they must have the power to do just this." so what is notable about that? peter: there are several aspects that are notable. the judiciary has no means in this. the president could not sentence people to death without a trial in the civilian court. the judiciary has done that in the past, even during the civil war. they could not intern people indefinitely or even sentence

them to death without a trial in the civilian court. so that aspect of it was wrong. secondly, this is just in that, -- the suggestion that, as both you and i quoted, justice black said that he was not convicted because of his race. and that was wrong. that is what the dissenters pointed out, including justice murphy. who pointed out that this whole thing was based on racial assumption. as i had quoted general dewitt earlier as a saying, there is no such thing as "a loyal japanese." the military argued the reason for the interment was there was no way to sort out the loyal from the disloyal. or as general dewitt put it, the goats from the sheep. he said it was impossible to do that. they accepted that. susan: here's something from justice jackson's dissent. one of three in the case. he said that guilt is personable, not -- personal, not

inheritable. even if all antecedents had been convicted of treason, the constitution for bids for its penalties. here is an attempt to make otherwise innocent acts a crime merely because such criminal law, i suppose this court should refuse to enforce it." peter: that's a powerful statement. the dissent of justice holmes in many famous cases, for example, that in abrams v. united states, those dissents are the expected version of what the constitution means. the majority opinions have gone down. the only problem is that in fred's case, the decision remains on the books. because the president, the supreme court, has never

revisited the case or said flatly, we were wrong. karen: when did in the camps close? karen: at various times. people actually left in different stages. the thing is, the evidence was already there, even day one when people started going into these concentration camps. these were not dangerous people. there was no military necessity. so you know, at some point, the government was saying, well, what do we do with the 120,000 people when they all are going to leave the camps? so, the community leaders, they got them to go in and help people to get jobs. you could go east before the end of the war, but you cannot go west. that is what my father did, which was surprising for me to

learn since he already had a federal conviction. thanks i want to show one more piece of video. this piece of video is from 1998, january 15. this takes place at the white house. let's watch. bill clinton: in the long search for justice, some names of ordinary citizens stand for millions of souls. plessy. brown. parks. for that distinguished list, today we add the name of fred korematsu. [applause]

susan: karen, what was the path from the supreme court to the president of the united states giving him the medal of freedom? tell us the story. karen: he was able to leave the topaz concentration camp to pursue a job opportunity. first, he went to salt lake city. i almost died of there of pneumonia. that is when he met and married my mother. they could not get married in south carolina, where she was from. they got married in detroit.

susan: interracial marriage? karen: yes. susan: what about the legal side of the case? what happened? peter: this is one of the great experiences you never anticipate. back in 1981, i decided to write a book about these cases, an academic book, really. you have a copy of it, it is called "justice of war." in the research for the book, i learned about these cases in law school in my constitutional law class. we read them. everybody agreed these were terrible cases, terrible decisions. my question was how could this happen, with all these liberal justices to make such a terrible mistake? i started researching it. i came up with documents. in the government's own file, it showed that during the prosecution of these cases,

before the supreme court, lawyers had warned charles fahey that the evidence he was playing -- planning to present, that there was evidence of espionage, that it was absolutely false. the fbi had found no evidence to support it. they had all agreed there was no evidence to support this. he demanded, he said it is highly unfair to this racial minority that these lies about them in an official publication go on corrected. the solicitor general in 1994, he stood up before the supreme court and said, standing behind every word in light of the military report, claimed there had been acts of espionage and sabotage.

we found these documents, me and other researchers. we put together a legal team in san francisco, portland, seattle, where the three cases started, and filed suits under a provision that means you can go back to court even if after you have served your sentence, even then, you can if you have evidence the government has committed misconduct. in all three cases, the judges agreed the government had lied to the supreme court. so they vacated them. the decision and fred korematsu's case was a powerful symbol of the fact that we can correct our mistakes. susan: staying with the story.

there was a commission created to look into the interment process. they decided to do what? karen: during the reagan administration, the redress of reparations movement started. just before my father's case was reopened. through the war relocation authority, they were reviewing how the japanese-americans were treated during the incarceration. when people in my community got wind that my father is going to reopen his case, there are people that were not in favor of that. they thought that if my father lost, korematsu vs. united states, that would hurt their chances. my father, as he said before, said he wanted to go on with this. people took risks. the legal team took a risk. so, but my father was determined to go along with this.

susan: ultimately the commission found that the japanese who were interned were found to be due reparations. how much money did they get and how was it done? peter: there was an official apology issued by president reagan, who initially opposed reperation. it was interesting, because it is -- his mind was changed by conservative members of congress, including leading republicans, who said this is something this is important and it needs to be done. congress voted that each surviving in tourney -- internee, about 60,000 of the 120,000, we get a check for -- would get a check for $20,000. that's people saying, the government didn't do it, we didn't do it, that was years and

years ago. why should we pay reparations? and i always tell people when this comes up, if you were put in a concentration camp without charges, put into the desert for three years, how much money would it take for you to do that? no one would do it for $20,000. karen: the money wasn't the important issue. it was the apology. here, these japanese-americans had done what the government wanted them to do to prove they were good americans. they carry that weight on their shoulders for years. that was more important than the money, but sometimes you don't get the government's attention unless you talk about money. susan: your father continued his advocacy until the end of his life. he filed amicus briefs.

i want to play equip talking about the courts reasoning and comparing it to decisions in guantanamo, which is very much in the news this week. let's listen to justice breyer. justice breyer: they thought that, well, we can't get involved. it's the military trying to protect us from invasion. now, we run the war or roosevelt runs it, and we cannot run it. we have to let him do what he wants. now going back to the guantanamo question, what i think is the very, very difficult and very important question in this area is, is there a role for the court to protect basic individual human rights, guaranteed in the constitution, in time of war without turning the constitution into a suicide pact?

it is not a suicide pact. the president and the congress have to have and they do have in the document, adequate power to protect the country. so when these two things can lick, -- conflict, does the court just get out of the way and say no, it is someone else's job, or does the court make some effort to reconcile these two competing and opposite necessities? in guantanamo, they tried the latter. i want people to understand what it is the court did. it won't be for many years before people know whether the court was right or wrong. host: what did the court do? justice breyer: they decided in favor of the guantanamo prisoners.

susan: so there are two threads of legal legacy here. >> what the justice pointed out, and i think quite rightly, is that we cannot classify citizens anymore, or any person, for that matter, simply on the basis of their race or ethnicity. that is forbidden by the constitution, the due process clause, and the equal protection clause. what we can do is individualize and target protection of the country against specific threats and dangers. for example, if there is a credible threat that a particular person or even a member of a particular group is planning or about to carry on -- out harm to the united states, and this is in the news now with airplane bombings, the government has the power to detain that person for a reasonable period.

and if they have evidence, they can bring them into court. they will have a lawyer, hearing, they can testify on their own defense. it is the government's burden to show this person is a danger. that could not happen in the interment cases. there was a blanket assumption that simply being japanese-american, whether born in this country or born abroad, that you were by implication disloyal to the country. that is the principle that just nash justice breyer said, quite rightly, conflicts with the idea of the guiltless individual in our society. susan: justice scalia never allowed cameras to come into his speeches, but we do have his words onscreen to show you what he said.

"you're kidding yourself if you think the same thing will not happen again. in times of war, the laws fall silent. that's what happened. the panic about the war, that is what happens. it was wrong, but i would not be surprised to see it happen again in times of war. it is no justification, but it is the reality." what is your reaction to that karen? karen: unfortunately, korematsu v. united states in 1944 is more relevant today than it was then. clearly, the lessons in many cases have not been learned. we keep, you know, repeating these mistakes. for justice scalia to make that quote now is very scary. that why -- that is why it is so important that we teach these lessons of history, so that we do not keep making these mistakes. supreme court rule should not be

in times of war, the law falls silent. there is nothing wrong with the constitution, as people try to change it, it is some of the people who try to interpret it for their own use. my father felt like it applied to him, as it should for all americans. susan: another lesson about the court is that people can appeal cases. korematsu got to make it. what do you say about that? peter: you can take your case the highest court in the land. but that does not mean they will hear the case, they only hear about 1% of the cases that are brought up. or that they will rule in your favor. getting to the supreme court is the first step. the most important thing is how the court decides the case and

what the lasting consequences of that are going to be. i don't think justice scalia was endorsing the interment or the korematsu decision. in fact, he was deploring it. what he was saying is that we are kidding ourselves if we think this can't happen again, or that the courts are going to say no, you can't do it. the court, in the end, is swayed by factors other than the text of the constitution. they are swayed by public pressure, patriotism, personal loyalty, the president who appointed them, judicial philosophies, and all of those things come together in a crucible of intense disagreement and debate over what are we going to do with this society to protect ourselves and also to protect our citizens?

susan: thanks for being here to tell us about the case. thanks for your time. ♪ ♪ [captions copyright national cable satellite corp. 2021] [captioning performed by the

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