[With] no indictment; no jury; . . . no examination of the witnesses; no counsel for defense; all is darkness, silence, mystery, and suspicion. —Congressman Edward Livington, New York, 1798, in opposition to President John Adams’s denial of due process to noncitizens.
The proposition is this: that in a time of war the commander of an armed force . . . has the power . . . to suspend all civil rights and their remedies, and subject citizens . . . to the rule of his will. . . . If true, republican government is a failure, and there is an end of liberty regulated by law. —Chief Justice David Davis, ruling for the Supreme Court in Ex Parte Milligan (1866), declaring commander in chief Abraham Lincoln’s suspension of habeas corpus and other denials of due process during the Civil War unconstitutional.
Fred Korematsu, an American Citizen imprisoned in a Utah internment camp during the Second World War, received the presidential medal of freedom in 1998 from President Clinton for eventually and successfully resisting the flagrantly unconstitutional imprisonment.
By order of President Franklin Delano Roosevelt, affirmed by the Supreme Court in Korematsu v. United States (1944), Fred Korematsu had been deprived in 1942 of all his due process rights solely because he was a Japanese American. So were 120,000 other individuals of Japanese ancestry living on the West Coast. It was one of the most shameful travesties of justice in Supreme Court history.
It wasn’t until 1988 that Congress passed a law apologizing for this wholly unlawful mass imprisonment. Each surviving victim of the presidential order and of the Supreme Court’s turning the rule of law upside down was awarded the meager sum of $20,000 by way of redress.
In 1942, when he was 22 years old, Fred Korematsu—working as a welder in a California shipyard—had refused to be put into an internment camp. He was arrested and locked up. It was that conviction that the Supreme Court upheld in the 1944 Korematsu v. United States case, deciding that in wartime, the government could indeed put him away without a hearing and without any judicial determination that he had done anything wrong. It is this king-like authority that George W. Bush now claims over those he designates as “enemy combatants.”
It wasn’t until 1983 that San Francisco Federal District Judge Marilyn Patel overturned that 1944 Korematsu conviction. Among the lawyers filing that successful 1983 appeal were some whose parents had also been imprisoned in those internment camps.
Now, at the age of 84, Fred Korematsu continues to protest against a president, George W. Bush, who also holds both American citizens and noncitizens in legal black holes without the most basic civil liberties guaranteed by the Constitution.
Korematsu has authorized an amicus brief to the Supreme Court of the United States, in his name, on behalf of American citizen Yaser Hamdi, designated an “enemy combatant” by President Bush and held for two years in an American navy brig without guaranteed Sixth Amendment access to a lawyer, and without any prospect of a trial at which he can defend himself. Secretary of Defense Donald Rumsfeld maintains that Hamdi can be held in this legal black hole for “the duration of hostilities,” and that could take generations.
Fred Korematsu’s message to the Supreme Court is also on behalf of non-American citizens imprisoned at Guantánamo Bay—Khaled A.F. Al Odah et al. and Shafiq Rasul et al.
In a companion brief by a coalition of national and international human rights organizations, attorney Jonathan Freiman describes the abandoned status of these prisoners of George W. Bush, many of them held in six-by-eight-foot cells for more than 23 hours a day:
“According to the [District of Columbia] Court of Appeals, no court has jurisdiction to hear their claims. . . . The Executive can do what it wishes to aliens abroad—even innocent aliens—because no law protects them and no court may hear their pleas.”
The Bush administration agrees with that holding, saying that our prison camp at Guantánamo is on Cuban soil, beyond the reach of U.S. courts. But our permanent lease of that territory from the Cuban government grants the United States exclusive jurisdiction over the Guantánamo Bay Naval Base.
What the Supreme Court is going to decide about these prisoners is whether they have the right to challenge their imprisonment under the Constitution as well as under laws and treaties of the United States. For example, the 1948 American Declaration of the Rights and Duties of Man, part of the Inter-American System of human rights, declares:
“Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights.” The U.S. government ratified that declaration.
As for the Hamdi case, the Supreme Court will decide whether George W. Bush can—as commander in chief—strip a citizen of all his rights indefinitely and without charges. If the high court decides that Bush has no such imperial power, the high court will decide what due process rights Yaser Hamdi is entitled to in our court system.
Fred Korematsu has involved himself in this confrontation with George W. Bush because of what happened to him and all the other Japanese Americans treated as nonpersons during the Second World War. His brief to the Supreme Court was filed by Geoffrey Stone, a truly distinguished law professor at the University of Chicago, whose casebook on constitutional law I’m often indebted to.
Speaking for Fred Korematsu, Stone tells the Supreme Court that, “in order to avoid repeating the mistakes of the past,” it “should make clear in these cases that the United States respects fundamental constitutional and human rights—even in times of war.”
“These cases,” the Korematsu brief warned the president, the justices, and this nation, “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.”
George W. Bush has failed that test. Will the Supreme Court give him and future presidents this loaded weapon against the Constitution?