The children of Japanese-Americans whose internment during World War II was upheld by the infamous Supreme Court ruling Korematsu v. United States are stepping into a new legal battle over whether the military can indefinitely detain American citizens.
Writing that their parents "experienced first-hand the injustice resulting from a lack of searching judicial scrutiny," the children of Fred Korematsu and other Japanese-Americans who were interned filed a brief on Monday in support of a lawsuit against the National Defense Authorization Act of 2012. Critics say the law allows the military to lock Americans away without trial merely on suspicion of support for terrorist organizations.
"During WWII, President Roosevelt essentially issued the military a 'blank check,'" Korematsu's children wrote in a friend-of-the-court brief. The military's orders, "to which the Court uncritically deferred, culminated in the internment. In reviewing the NDAA’s new detention provision, the courts cannot afford to mimic the wartime Supreme Court’s failure."
The government says that law-abiding Americans have nothing to worry about, and that courts have no business intervening in the president's war powers. But for the children of Korematsu, those claims sound frighteningly similar.
During World War II, they said, the War Department fabricated evidence to paint all Japanese Americans as potential spies, and the Supreme Court failed to take a hard look at the government's facts. Earl Warren, who was the attorney general of California at the time and later went on to serve as chief justice of the court, said in his 1977 memoir he "deeply regretted" his support for that decision. Korematsu is not the sort of mistake the judiciary should make again, the brief's authors write.
"It is precisely during times of national stress that the government has too often targeted vulnerable individuals and groups, denying their fundamental rights and liberties. ... Undue judicial deference enables such injustice."
The Government Accountability Project, a non-profit that supports government whistleblowers, filed another brief on Monday arguing that indefinite detention could be used against those who simply speak up against government malfeasance.
Whether the courts will act against the NDAA, however, is very much in doubt. Although a district court judge issued an injunction in September against a key passage of the law granting the military detention powers, the Second District Court swiftly blocked that injunction. Activists are now relying on that same court to overturn the indefinite detention portion of the law as unconstitutional.
In Congress, meanwhile, efforts to explicitly forbid indefinite detention powers within the U.S. are floundering. The Senate -- including Sen. Dianne Feinstein (D-Calif.), who cited her own experience witnessing Japanese Americans jailed -- added an amendment in November to end indefinite detention of citizens in the U.S. But it was stripped out of next year's version of the NDAA by a House and Senate conference committee on Tuesday.