How far have America and her courts come since World War II? Not as far as one might think, given the sixty years of civil rights history between Pearl Harbor and 9/11 during which the United States government delivered apologies and made reparations to the survivors of the Japanese internment camps. This lack of progress suggests a troubling conclusion: While the racist sentiment toward Asians and asian Americans may have diminished since Korematsu, the tolerance for racism inherent in Korematsu may have persisted. In a sense, sixty years later, Korematsu continues.
Suspicions of Terrorism, Then and Now
How far have America and her courts come since World War II? A recent case indicates there has been limited progress since the internment camps and the Supreme Court's validation of those internments in Korematsu v. United States.
On October 17, 2002, a federal district court in New Jersey issued an opinion that used language remarkably similar to that used in Korematsu. The opinion is Dasrath v. Continental Airlines, Inc., written by Judge Debevoise. The opinion covers two of five suits filed in 2002 by the American Civil Liberties Union (ACLU). The suits allege the racially discriminatory removal of a passenger from a commercial flight.
In the opinion, the court explains a statute that permits "an air carrier . . . [to] refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety." It is Judge Debevoise's explanation of the statute in Dasrath that echoes Justice Black's validation of the internment order in Korematsu.
Dasrath mimics Korematsu in several ways. Most significantly, both opinions use threats to national security to deflect attention from race-based actions. In Dasrath, the court wrote:
[T]he objective assessment of a carrier's decision must take into account all the circumstances surrounding the decision, including . . . not least, the general security climate in which events unfold. . . . In the present case, it should not be forgotten that the decisions at issue were made in an atmosphere pervaded by the fears and uncertainty's [sic] arising from the events of September 11, 2001.The Korematsu Court asserted:
To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire [and] because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures . . .
Both opinions also use the need for quick decisionmaking as an excuse for hasty or ill-considered decisions. They note the consequences of inaction and the constraints of time on information-gathering. According to Judge Debevoise:
The test . . . rests upon the facts and circumstances of the case as known to the airline at the time it formed its opinion and made its decision. . . . [T]he objective assessment . . . must take into account . . . the (perhaps limited) facts known at the time [and] the time constraints under which the decision is made. . . .
In this case Plaintiff's burden will be a heavy one considering the heightened actual dangers arising from the increased risk of terrorist acts, the catastrophic consequences in the case of air travel of the failure to detect such acts in advance, and the necessity that pilots make safety decisions on short notice without the opportunity to make extensive investigations.
In Korematsu, Justice Black wrote:
[W]e cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal [Japanese Americans], whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with . . . demand[ing] that prompt and adequate measures be taken. . . . [T]he military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that at that time these actions were unjustified.
And throughout the opinion, Justice Black noted "the twin dangers of espionage and sabotage," "the gravest imminent danger to the public safety," and "circumstances of direst emergency and peril."
Finally, Dasrath and Korematsu both make hollow gestures toward equal protection of racial minorities and rigorous judicial review. For example, Judge Debevoise observes that "a racially motivated removal would not be sheltered by [the statute here]." The Korematsu opinion similarly assured: "Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."
Judge Debevoise also insists that "the standard for review . . . is not a subjective one," noting that even the case that "offers one of the most emphatic endorsements of broad discretion under [the statute]" recognized explicit limitations. This, too, is in Korematsu: The internment order was to be subject to "the most rigid scrutiny."
"Imminent Danger" Vs. "National Security"
But the two cases do differ in many ways. Most obviously: Airline discretion to remove a passenger "inimical to safety" is far from blanket exclusion of all Americans of a particular ethnic ancestry; a federal district court's denial of a motion to dismiss is not the same as a final decision by the United States Supreme Court; and an action by a private air carrier is wholly unlike a military decree given pursuant to a presidential executive order.
So is it truly legitimate to imply that Dasrath is essentially Korematsu? Yes. In Dasrath, Judge Debevoise used Korematsu's rhetoric -- when he need not have-and it is Korematsu's rhetoric that makes the case unique. This is not to say Korematsu's facts and circumstances are irrelevant. But there have been other opinions reviled for their facts and circumstances.
What makes Korematsu unique is its use of "national security" and "imminent danger" rhetoric in lieu of logical and consistent legal reasoning. As one commentator has said, "The Court in Korematsu failed to provide a logical explanation for reaching its result and instead deceptively relied on persuasive rhetoric."
Understanding Dasrath as a Reincarnation of Korematsu
Asians faced prejudice and racial discrimination the moment they set foot in this country. And while Japanese Americans were interned, prospective Asian immigrants were still subject to severe quotas -- quotas that would not be lifted until 1965 and that were more restrictive on immigrants from Asia than on immigrants from Europe. Korematsu continued this existing anti-Asian sentiment. But the Court could not do so overtly, and thus undertook its unique rhetoric to cloak the desired, but racist, conclusion in legal legitimacy.
A reincarnation of Korematsu therefore is an indication of existing racism and the cloaking of that racism in rhetoric. In particular, Dasrath is a natural progression, and shrouding, of previously existing anti-Arab and anti-arab American sentiment.
This notion of an abiding racist attitude toward Arabs and arab Americans is not pure speculation. In early 2001 (months before 9/11), Natsu Taylor Saito documented how Arabs and arab Americans have been "raced" as dangerously foreign-"terrorists." Thomas Joo has also noted this "racialization of terrorism," citing an ABC News poll in which fifty-nine percent of the respondents "associated Arabs with terrorists."
Perhaps the most publicized instance of this racism occurred in 1995, when America immediately sought men "of Middle Eastern origin" in connection with the Oklahoma City bombing, for which Timothy McVeigh, a white man, was actually responsible. This finding should come as little surprise since other groups, such as Asians and Asian Americans, have been "raced" unceasingly as perpetually foreign. Saito, in fact, argues that Asians and asian Americans have made no progress since Korematsu; she believes that Arabs and Arab Americans follow the same path. Korematsu's return in Dasrath confirms the latter.
- Dasrath v. Continental Airlines, Inc., 228 F. Supp. 2d 531, 539 (D.N.J. 2002).
- Korematsu v. United States, 323 U.S. 214, 223 (1944) (emphasis altered).
- Dasrath, 228 F. Supp. 2d at 538-40 (emphasis added, and internal citation and quotation marks omitted).
- Korematsu, 323 U.S. at 218, 223-24 (emphasis added and internal quotation marks omitted).
- Id. at 217, 218, 220 (emphasis added).
- Dasrath, 228 F. Supp. 2d at 540 n.12.
- Korematsu, 323 U.S. at 216.
- Dasrath, 228 F. Supp. 2d at 539.
- Korematsu, 323 U.S. at 216.
- Dean Masaru Hashimoto, The Legacy of Korematsu v. United States: A Dangerous Narrative Retold, 4 ASIAN PAC. AM. L.J. 72, 96 (1996).
- Natsu Taylor Saito, Symbolism Under Siege: Japanese American Redress and the "Racing" of Arab Americans as "Terrorists," 8 ASIAN L.J. 1, 11 (2001).
- Thomas W. Joo, Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race Before and After September 11, 34 COLUM. HUM. RTS. L. REV. 1, 32 (2002).
Copyright © 2005 by Elbert Lin. This essay is derived from a longer work entitled "Korematsu Continued . . ." that was originally published in The Yale Law Journal, April 2003 (Volume 112, pp. 1911-1918). You can download and read the original piece here.
Suggested reference: Lin, Elbert. 2005. "Korematsu's Legacy and the Treatment of Arab Americans" Asian-Nation: The Landscape of Asian America. <http://www.asian-nation.org/korematsu.shtml> ().
Elbert Lin is an attorney currently practicing in Washington, D.C.
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