Korematsu v. United States, the 1944 ruling where the
Supreme Court upheld
President Franklin Roosevelt’s wartime internment of
Japanese-Americans, is a notorious and shameful piece of work. Yet
it still remains a valid decision, having never been overruled by a
later Court.
But let’s say a new case appeared on the horizon today
presenting the chance to formally repudiate Korematsu.
Would the Obama administration join in the effort to wipe the ugly
precedent off the books? Surprisingly, the answer turns out to be
“no.”
Among the petitions currently seeking review by the Supreme
Court is one from a case known as
Hedges v. Obama. At issue is whether a group of
antiwar journalists and writers, including author Chris Hedges and
MIT professor Noam Chomsky, have standing to challenge a section of
the National Defense Authorization Act for Fiscal Year 2012
authorizing the president to “detain” any person “who was a part of
or substantially supported al-Qaeda, the Taliban, or associated
forces that are engaged in hostilities against the United States or
its coalition partners.” The U.S. Court of Appeals for the 2nd
Circuit
ruled against those plaintiffs on standing grounds last summer,
prompting the December petition to the high court.
In addition to raising questions about President Barack Obama’s
power to indefinitely detain terrorism suspects, Hedges
also raises the question of Korematsu‘s continuing
validity. That latter point was driven home to the Obama
administration on January 13, 2014, when Solicitor General Donald
Verrilli
received a letter from three prominent civil rights lawyers
urging him to use Hedges as a welcome opportunity for the
federal government to repudiate Korematsu once and for
all. Here’s a portion of that letter sent to Verrilli:
A request by your Office that the Court formally overrule the
internment decisions would fulfill the duty of absolute candor that
was sadly lacking in the government’s briefs and arguments in 1943
and 1944. Should you decide not to make such a request, however, we
urge that your Office make clear in its response to the
Hedges petition that the government does not consider the
internment decisions as valid precedent for governmental or
military detention of individuals or groups without due process of
law, and as not among any “authorities” to which Sec. 1021(e) [of
the National Defense Authorization Act for Fiscal Year 2012]
refers.
Last week the Obama administration finally submitted its
response to the Hedges petition. And as Lyle Denniston
reports
at SCOTUSblog, the letter quoted above failed to do the trick:
Korematsu went entirely unmentioned in the government’s
brief. “The Obama administration, urging the Supreme Court to turn
aside a new challenge to presidential power to detain
individuals suspected of terrorism links,” Denniston observes,
“chose not to support a years-long campaign to get the Court
to repudiate one of its most heavily criticized opinions from the
World War II era.”
The administration’s refusal to act is baffling.
Korematsu is enveloped in a bipartisan chorus of
disapproval. Legal experts from across the ideological spectrum
agree it was a terrible ruling. So the White House would seem to
risk little and gain much by taking a strong legal stand against
such an easy target. Hopefully a future administration will take a
different view of the matter when the next opportunity arises.
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