60 Years On, Again Battling an Abomination of PowerFred Korematsu opposed Japanese internment in the '40s. Now he's urging the Supreme Court not to make the same mistakes with today's detainees.
By Jonathan Turley

November 17, 2003

Largely unnoticed in the hustle and bustle of politics, a quiet and frail 82-year-old man made a symbolic return to Washington, D.C., this month.

His name is Fred Korematsu, and his name graces one of the most infamous decisions ever rendered by the U.S. Supreme Court, the 1944 case of Korematsu vs. United States. With that decision, Korematsu was sent to internment camps to join 120,000 other Japanese Americans who were imprisoned solely because of their ethnicity.

Recently, Korematsu filed a brief before that same court on behalf of hundreds of Muslims being held at Guantanamo Bay, Cuba. For Korematsu and thousands of camp survivors, one of the darkest and most painful chapters of American history is repeating itself.

The Korematsu case has been largely taught in law schools as an abomination, a case in which the Supreme Court yielded to fear and pressure in sending tens of thousands of innocent men, women and children into camps.

Then came 9/11.

Soon, the Bush administration was relying on the arguments from the Korematsu case to assert the same authority exercised by President Franklin Delano Roosevelt to put individuals into detention without trial or access to the courts.

The administration has further argued that the president may do with the Guantanamo detainees as he wishes, including executing them under his own set of rules and standards.

By locating the camp in Cuba, the president holds that his actions are no longer controlled by constitutional law. Despite the fact that Guantanamo Bay is a sealed, highly armed U.S. military base, the court has previously held that it is legally "foreign" territory under the control of Cuban President Fidel Castro.

Of course, unlike World War II, there is no declared war against a nation-state. Rather, the president has declared war on terrorism, which is a category of crime. Under this interpretation, any president could declare such a war and claim wartime authority to indefinitely detain people and even execute them without access to the courts.

Korematsu has heard much of this before ? 60 years ago.