Duckworth: Why Did DOD Use Japanese Internment Camp Ruling to Justify Actions?

[WASHINGTON, D.C.] – U.S. Senator Tammy Duckworth (D-IL) today wrote to Secretary of Defense James Mattis to express alarm over the Department of Defense’s (DOD) positive embrace of a long disgraced World War II-era Supreme Court ruling that allowed Japanese-American curfews and internment camps to justify Defense Department policy. In a recent court filing, DOD positively cited the Hirabayashi v United States decision – one of three infamous “anti-canon” U.S. Supreme Court rulings that led to the creation and sustainment of Japanese-American internment camps during WWII – as a legal basis for preventing Guantanamo Bay detainees from sharing artwork they made while imprisoned there.

“Setting aside the specific facts and circumstances associated with the motion in hand in United States of America v. Khalid Shaikh Mohammad et al being heard before the military commission in Guantanamo Bay, Cuba – I am concerned that DOD appears to be seeking to rehabilitate a pillar of the disgraced World War II-era Japanese internment decisions by positively citing Hirabayashi as good law,” wrote Duckworth.

Earlier this summer, Chief Justice John Roberts opined that Korematsu v. United States, another cases that justified the detention of Japanese-Americans during World War II was “gravely wrong the day it was decided” and “has no place in law under the Constitution.” In 2011, the U.S. Department of Justice filed a notice confessing the Solicitor General’s errors during the Hirabayashi and Korematsu arguments and noted that, were it not for these mistakes, the Supreme Court likely would not have ruled the same way.  

“For DOD to cite, even in part, from Hirabayashi is highly alarming and I hope reflects a clerical error and not the official DOD legal interpretation,” Duckworth continued, asking if it was DOD’s position that these 3 Supreme Court decisions represent good law. “If DOD’s position is that none of the three cases represent good law, please provide an explanation of why Hirabayashi was positively cited and explain what reforms are in place or being implemented to prevent a repeat of this grave error.”

The text of the letter is available here and below. 

Dear Secretary Mattis:

I am writing to express grave concern and strong opposition to the U.S. Department of Defense (DOD) decision to favorably cite the deeply flawed and discriminatory 1943 ruling of the United States Supreme Court in Hirabayashi v. United States. As you should be aware, Hirabayashi v. United States joins decisions in Korematsu v. United States and Yasui v. United States to form a disgraceful trio of World War II-era opinions that have been ignored and criticized to such a degree that they are commonly referred to as “anti-canon.”

Setting aside the specific facts and circumstances associated with the motion in hand in United States of America v. Khalid Shaikh Mohammad et al being heard before the military commission in Guantanamo Bay, Cuba – I am concerned that DOD appears to be seeking to rehabilitate a pillar of the disgraced World War II-era Japanese internment decisions by positively citing Hirabayashi as good law:

The power to wage war is the power to wage war successfully. See Hirabayashi v. United States, 320 U.S. 81, 93 (1943). The Department of Defense has decided part of the way to win this war is to cut off a vital recruiting tool al Qaeda uses; the words and statements of their fighters who have successfully attacked America. This power to successfully wage war

…extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.

Hirabayashi, 320 U.S. at 93. To be sure, each accused, including Mr. Ali, will be able to speak on pertinent legal issues before the Commission, testify if he so chooses, and assist in his defense. And make no mistake, contrary to the Defense claims, “embarrassment” has nothing to do with this prohibition on dissemination of non-legal material: at trial the United States will not be apologizing for actions taken to prevent other attacks from occurring, or for any prohibitions it places on these men in order to defeat al Qaeda, even as it continues to ensure the war is prosecuted within the laws of armed conflict.^[1]

Hirabayashi and its closely related cases, Korematsu and Yasui have been widely discredited. For example, Chief Justice John Roberts authored an opinion in Trump v. Hawaii this year asserting:

“The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).”

Indeed, the U.S. Department of Justice filed a notice on May 20, 2011 confessing the Solicitor General’s errors during Hirabayashi and Korematsu and noting that, were it not for these mistakes, the Supreme Court likely would not have ruled the same way.^[2] For DOD to cite, even in part, from Hirabayashi is highly alarming and I hope reflects a clerical error and not the official DOD legal interpretation. To provide clarity, please confirm the following:

1. Is it the position of DOD that Hirabayashi v. United States represents good law;

1. Is it the position of DOD that Yasui v. United States represents good law; and

1. Is it the position of DOD that Korematsu v. United States represents good law?

If DOD’s position is that none of the three cases represent good law, please provide an explanation of why Hirabayashi was positively cited and explain what reforms are in place or being implemented to prevent a repeat of this grave error. Thank you for your prompt attention to this matter.

      Sincerely,

      Tammy Duckworth

      United States Senator

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