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Judging an Injustice: During Asian Heritage Month, Japanese Internments Are Recalled

In the first months after Japanese bombs fell on Pearl Harbor in 1941, Atsushi Wallace Tashima’s life wasn’t much different from that of other young Americans.

Like others in his ethnically mixed Los Angeles neighborhood, Tashima’s family draped their windows at night, to protect against America’s new wartime enemies. But the Tashimas soon were branded, solely because of their ethnic heritage, as potential spies and saboteurs. By presidential order, 120,000 Japanese Americans living on the West Coast were uprooted from their homes, and shipped off to internment camps.

“I asked my mother where we were going, and she said she didn’t know,” recalled Tashima, whose family boarded a train in May 1942, and was taken to a massive compound in a Native American reservation in Arizona. “The first night at the camp, we were assigned a room in the barracks. We had to fill our own mattress bags, with hay from a haystack.”

Seventy-five years later, Tashima views those events from a very different perspective. Once the victim of an admitted national injustice, he has made a career of delivering justice as a federal judge.

Edward Chen also is a federal judge, and he too was affected by the mass relocation of Japanese Americans. In 1984, he helped exonerate Fred Korematsu, the central figure in one of the Supreme Court’s most controversial decisions, Korematsu v. the United States of America.

“What happened to Japanese Americans could be called the mother of all racial profiling,” said Chen. “One hundred and twenty thousand people were taken away, including children, women and the elderly—two-thirds of them American citizens—on the theory that they posed a high security risk.”

May is Asian Pacific American Heritage Month, a month that traditionally pays tribute to the generations of Asians and Pacific Islanders who have enriched America’s history. Some federal courts are focusing on a case that widely affected Japanese Americans, and raised questions about the balance between civil liberties and national security that remain relevant today.

Tashima, senior judge for the Ninth Circuit U.S. Court of Appeals, and Chen, a U.S. district judge for the Northern District of California, both are featured in “Not to Be Forgotten,” a video produced by the Ninth Circuit that examines the legal lessons of the Japanese internment. The circuit also is sponsoring a student essay contest. Other background and classroom activities on the Korematsu case are available in Educational Resources. 

Tashima was 7 when President Franklin D. Roosevelt signed Executive Order 9066, authorizing the internment. He and his family lived more than three years in the Poston War Relocation Center, in a desert on the California-Arizona border.

There, he attended a makeshift school, and with his friends frequently trooped three miles to the Colorado River, where he learned to fish and swim.

“There weren’t any kind of amenities, like a playground,” Tashima said. “Life in that kind of a camp is kind of a social leveler. Money didn’t do you any good because you couldn’t buy a car. We all had to order our clothes out of the Sears Roebuck catalogue.”

A Shroud of Silence

Tashima gradually learned to follow the war through a fellow internee’s copies of the Los Angeles Times. But he, his friends and his family never talked about their forced detention, and the possible violation of their rights.

“I don’t recall it ever being discussed,” he said. “As a youngster, I never thought, is this right, is this wrong, is there a constitutional issue involved?”

Even as a boy, however, one practice struck him as discordant—ceremonies honoring Japanese American soldiers who fought in the U.S. military, even as their families were detained as security threats.

“In camp, there were no movie theaters, but we had open-air movies just about every weekend,” Tashima said. “Occasionally, before the movie started, an Army officer in dress uniform would take the makeshift stage, and posthumously award a medal for bravery to the surviving mother for her son's intrepidity in battle. As a fifth grader, I couldn't put all the pieces of the puzzle together, but it did occur to me that something was wrong with that picture.”

In the years after Tashima’s family returned home to Los Angeles, he gradually began to question what had happened—a questioning hastened by lessons in college and subsequent history books on the internment. In time, he came to see Executive Order 9066 as a “gross injustice.”

Tashima, confirmed as a district judge in 1980, was still new on the federal bench when the internments returned to legal prominence.

Fred Korematsu, a San Francisco steelworker, had challenged the internments during World War II, but in 1944 the U.S. Supreme Court accepted the government’s argument of “military necessity” and rejected Korematsu’s appeal. 

Back in Court

In the late 1970s, researchers unearthed a military report that had dismissed the supposed threat caused by Japanese Americans. Lawyers persuaded Korematsu and two other internees—Gordon Hirabayashi of Seattle and Minoru Yasui, of Hood River, Oregon—to use this new evidence to seek to overturn their wartime arrests.

Chen was a Ninth Circuit law clerk when the exoneration cases were being organized, but when his clerkship ended, he joined the young, mostly Asian lawyers representing Korematsu. A Chinese American, Chen nonetheless understood the anti-Asian racism that the Japanese American internees had felt.

“There were differences, but there also were a lot of commonalities growing up as Asian Americans in those days,” Chen said. “You might be called a Jap or a Chink, but it was still the same.”

Chen described Korematsu as modest and shy, and initially reluctant to be a public spokesperson. “He was a very kind, principled, humble man. He wanted to avoid the press at first, but he understood the historic aspect of his actions. When called on to be the voice of this case, increasingly he took on that role.”

The legal team invoked an obscure legal tool, the writ of coram nobis. The writ permits federal courts to reconsider a case based on evidence not available in the original court record—in this case the military report downplaying any threat involving Japanese Americans.

Dale Minami, a San Francisco lawyer who led Korematsu’s legal team, and whose own parents were housed in filthy horse stables at the Santa Anita racetrack during the first part of their internment, said the legal strategy was chosen to enable Korematsu, and by extension all internees, a chance to reopen a long-closed case.

The Trial They ‘Never Had’

“This really was the trial that Japanese Americans never had,” Minami said. “It was a declaration that what was done was wrong, that there was no military justification. Many Japanese Americans had continued to live under a cloud of shame.”

In open court on April 19, 1984, Judge Marilyn Hall Patel overturned Korematsu’s 1942 conviction for attempting to evade the internments. Many of the first- and second-generation Japanese Americans in the courtroom wept at Korematsu’s exoneration, Chen said. “The room was filled with people so intimately and personally affected.”

Four years later, the government’s acknowledgment of wrongdoing was completed, when President Reagan signed the Civil Liberties Act, which issued a formal national apology and paid out $20,000 in compensation to each of the more than 100,000 surviving internees. In 1998, Korematsu was awarded the Presidential Medal of Freedom. Korematsu died in 2005, at age 86. 

Today, Chen says he still recalls Patel’s written ruling.

Korematsu v. United States of America, her opinion concluded, “stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. … [I]n times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.”

“It was an eloquent statement,” said Chen, who in 2001 was sworn in as magistrate judge, by Judge Patel, in the same ceremonial courtroom in San Francisco where Korematsu’s conviction had been overturned. “The closing paragraph was sort of prescient. These are words that are so relevant today.”

Tashima, while pleased that federal courts overturned the convictions of Korematsu and two other internees, remains disappointed that the original Supreme Court ruling stands.

“Almost every list of the 10 worst Supreme Court decisions includes Korematsu,” he said. “Courts, like other human institutions, are not error-free. The way our Constitution is structured, if the Supreme Court fails, there is nowhere else to turn."

Despite his varied experiences of America—internee, U.S. Marine, and finally federal judge—Tashima emerged with an optimistic view of the nation to which his parents immigrated.

“If you look at my life and my story, it should give hope, that our country is capable of changing for the better,” he said. “In 1942, America was an overtly racist society, enforced by the law. That changed because people made an effort to change it. People should never give up hope.” 

Related Topics: Judicial History