October 28, 2025, will mark the 80^th anniversary of the closing of the American concentration camp at Minidoka, Idaho. Minidoka has profound meaning, of course, for the over 13,000 Japanese Americans who were imprisoned there.[i] They were among the 126,000[ii] men, women, and children of Japanese ancestry ordered from their West Coast homes and incarcerated in camps across the interior of the country with no charges or hearings and based solely on their race.

This anniversary also provides an important time of reflection for those of us who are lawyers, reminding us of our essential roles in a civil society and the choices we face in upholding the rule of law. The story of the Japanese American incarceration is full of lawyers. There are examples of the best in our profession—lawyers who challenged injustice against a racial minority and the offense to our constitution.

But there are also stories of lawyers who could have done better—the lawyers who were architects and enablers of one of the greatest deprivations of civil rights in recent history, as well as those who sought to defend the incarceration in the courts and to win at all costs, even if it meant suppressing evidence before the U.S. Supreme Court.

The Ultimate Exclusion After a History of Exclusion

            The Japanese American incarceration has to be viewed not as an isolated act, but as an ultimate exclusion after a history of exclusion. Soon after Japanese immigrants arrived in this country, anti-immigrant groups sought to get rid of them as threats to “American” life.[iii]

Japanese immigrants were unable to become naturalized citizens. Japanese Americans were prohibited from marrying whites. Alien Land Laws barred immigrant Japanese from purchasing the land they worked. And ultimately, in 1924, the exclusionists won a ban on further Japanese immigration to the United States. Japanese Americans were viewed as foreign, untrustworthy, and perceived as economic threats.

The bombing of Pearl Harbor took place against that backdrop of racial animosity. In the days following, immigrant community leaders—Shinto and Buddhist priests, Japanese language teachers, newspaper editors, and others— were picked up under the Alien Enemies Act, an act now prominently in the news to justify current detentions and deportations.[iv] In the months following, the public, the popular press, civic organizations, and public officials at every level of government called for the mass removal of all persons of Japanese ancestry, arguing that they, as an entire group, posed a threat of espionage and sabotage. 

Lawyers were among the loudest voices. Earl Warren, for example, who would be celebrated as a champion of civil rights during his tenure on the U.S. Supreme Court, advocated for the removal of Japanese Americans while serving as the Attorney General of California.[v]

            On February 19, 1942, in response to calls like Warren’s, President Franklin Delano Roosevelt signed Executive Order 9066.[vi] It was not only a disturbingly blank check for military authorities but despite its neutral wording, it was clear it was targeted at the West Coast Japanese American community. 

Congress made violation of any orders to be issued under EO 9066 a federal offense.[vii] However, nothing in the statute identified the specific conduct criminalized; that conduct would be described by not-yet-issued military orders. One U.S. senator criticized the bill’s vagueness: “I think this is probably the ‘sloppiest’ criminal law I have ever read or seen anywhere. . . I do not want to object, because the purpose of it is understood. . .. I have no doubt that in peacetime no man could ever be convicted under it.”[viii]

Under authority of EO 9066, Lieutenant General John L. DeWitt, the commanding officer responsible for the Western states, proceeded to issue a series of orders. One was a curfew issued against Italian and German immigrants, as well as all persons of Japanese ancestry, immigrants and citizens alike. That was followed by 108 Civil Exclusion Orders (which I’ll refer to as “removal orders”) posted in neighborhood after neighborhood, up and down the coast requiring persons of Japanese ancestry to report for removal. Two-thirds of those removed and incarcerated were, like my parents, American citizens.[CC1] 

The U.S. Supreme Court Cases

Three men resisted DeWitt’s military orders and took their challenges to those orders to the U.S. Supreme Court.[ix] All three were American citizens. Minoru Yasui was a 25-year-old attorney in Portland, Oregon, who set out to challenge the constitutionality of the curfew order. He walked the streets of Portland with a copy of the order in hand, but after failing to get arrested, he turned himself in at the precinct.

Gordon Hirabayashi was a 25-year-old student at the University of Washington when he defied the curfew and removal orders as acts of civil disobedience.

            Fred Korematsu was a 22-year-old welder in Oakland, California, when he refused to report for removal. He chose instead to remain with his Italian American fiancé—to remain with the woman he loved in the place that had always been his home.

In each of their cases, Hirabayashi and Yasui, which involved the curfew orders in 1943, and Korematsu, which involved the removal orders in 1944, the Court upheld the constitutionality of the military orders, deferring to the government’s claim that the mass removal was a military necessity.[x] Among the many important things about these decisions, I’ll focus on two.

The first point—the danger of court deference to executive decisions—has become highly relevant today. The government argued that the Court had to defer to government decisions related to national security. The Court agreed. In Hirabayashi, the Court stated, “[W]here, as they did here, the conditions call for the exercise of judgment and discretion by the war-making branches of government, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.”[xi]  

            Secondly, although expressing deference to military officials, the Court still explained why the government’s actions were justified. While claiming its actions were based on military necessity, the government could not point to any evidence that Gordon, Min, Fred, or other Japanese Americans had committed or threatened to commit any acts of espionage or sabotage. 

            Instead, the government argued, and the Court agreed, that military necessity existed because Japanese Americans had certain racial characteristics that showed they were unassimilated and susceptible to influence from Japan. These “characteristics” were based on stereotypes and racially biased assumptions.[xii] Further, the Court accepted the government’s argument that the mass removal was necessary because there was insufficient time to separate the loyal from the disloyal.[xiii] This, despite the fact that the first removal orders were issued almost four months after the bombing of Pearl Harbor.

            In the end, the Court held that both the curfew and mass removal of Japanese Americans were constitutional because they were based on military necessity. 

            While the Court unanimously upheld the curfew orders in Hirabayashi, three justices wrote vigorous dissents to the Court’s decision upholding the removal orders in Korematsu. Justice Owen Roberts said, “[this is not a] case of temporary exclusion. . .. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry . . . without evidence or inquiry concerning his loyalty and good disposition towards the United States.”[xiv]

Justice Robert Jackson objected, stating that there was no evidence taken on the factual basis for the removal orders. “So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable.”[xv] And he warned that “[a judicial validation of this order] lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”[xvi]

            It was not all bad news for Japanese Americans the day the Supreme Court issued the Korematsu decision. The Court also issued its decision in Ex Parte Endo.[xvii] After her incarceration, Mitsuye Endo filed a petition for writ of habeas corpus to gain her release. The government had a two-stage process that would allow some Japanese Americans to leave camp for the interior of the country. Mitsuye had completed the first step by establishing her loyalty. However, the government further required that she and others seeking to leave further show that, for example, they had a means of support at their destination and that the community would be receptive to them. The Supreme Court agreed with Mitsuye that she was entitled to release once her loyalty was established.

The camps began to close. Although the Supreme Court’s decisions in Hirabayashi, Yasui, and Korematsu were soundly criticized soon after they were decided,[xviii] they hung like a cloud over the Japanese American community as the highest court’s pronouncement that their incarceration was justified.

Newly Discovered Evidence[xix]

For almost 40 years, Gordon, Min, and Fred hoped for an opportunity to reopen their cases. An opportunity arose in 1981. Professor Peter Irons and archival researcher Aiko Herzig-Yoshinaga found remarkable documents proving that the government had suppressed, altered, and destroyed material evidence while arguing the Japanese American cases before the Supreme Court.[xx] 

The documents revealed that General DeWitt’s “Final Report,” relied on by the government to explain the reasons for his military orders, had been altered to support the government’s position before the Court. The government had consistently argued that mass removal was necessary because there was not sufficient time to separate the loyal from the potentially disloyal.

However, DeWitt’s report actually contradicted the government’s position before the Court, explaining that lack of time was not the basis for his orders. Instead, he stated that one could never separate the “sheep from the goats” within the Japanese Americans community no matter how much time one had.[xxi]

When the War Department saw DeWitt’s report, the report was ordered revised to align with the government’s position in court, and the original versions of the report were destroyed. One copy of the original report survived, and the soldier who destroyed the reports did not destroy his memo confirming the destruction. The Supreme Court in Fred’s case saw only the altered version.[xxii]

Further, the government, while arguing before the Supreme Court, had within its possession intelligence reports from the FBI, the FCC, and the Office of Naval Intelligence that contradicted DeWitt’s claims of Japanese American espionage and that refuted the necessity of any mass incarceration.[xxiii]

            Justice Department lawyer Edward Ennis urged his superiors to tell the Court of these reports. In a memo to Solicitor General Charles Fahy, Ennis urged, “I think we should consider very carefully whether we do not have a duty to advise the Court of the existence of the Ringle memorandum. . .. It occurs to me that any other course of conduct might approximate the suppression of evidence.”[xxiv] He was overruled.

Justice Department lawyer John L. Burling tried to insert a footnote in the government’s brief in Korematsu to advise the Court that the Department had information contradicting DeWitt’s report, but the footnote was ordered revised, so the Court never learned of the falsity of the report.[xxv]

Based on this evidence that the government had lied to the Supreme Court, legal teams were formed to reopen Gordon, Min, and Fred’s WWII cases. The teams were multicultural, and many were third generation Japanese Americans whose families had been incarcerated. Gordon, Fred, and Min were extraordinary clients. They knew their cases did not belong to them alone. They understood that their cases represented not only a way to achieve some measure of justice for Japanese Americans, but also a way to address a profound failure of our legal system—that their cases were about the need to protect civil liberties even during, or perhaps especially during, times of crisis.

            In January 1983, three teams of lawyers filed petitions for writ of error coram nobis, one for Fred in San Francisco, California; one for Gordon in Seattle, Washington; and one for Min in Portland, Oregon. A petition for a writ of error coram nobis—a request to a court to correct an error committed “before us” (the court)—is an ancient writ that allows a petitioner to seek vacation of their conviction after their sentence has been served on proof that the conviction was the result of a manifest injustice, which, in these men’s cases, was prosecutorial fraud.[xxvi]

            Months and years of legal wrangling followed. The government sought delay after delay. At one point, the government offered the men pardons, which the men rejected because a pardon normally implies that one was guilty and was being forgiven. They knew they had done nothing wrong.[xxvii]

            Fred’s case proceeded first. On November 10, 1983, Judge Marilyn Hall Patel vacated Fred’s conviction based on finding that the government withheld evidence in seeking to justify its actions during WWII.[xxviii]

In Min Yasui’s case, Judge Robert C. Belloni reached a different result. The government agreed that Min’s conviction should be vacated, but concluded that, because it agreed to vacation of his conviction, there was no need for the court to address his claims of prosecutorial misconduct. The court agreed.[xxix] Min appealed, arguing that the court should have made findings on the government fraud, but he died before his appeals were completed.

Gordon’s case proceeded to a hearing at which WWII Department of Justice attorney Edward Ennis testified to the suppression of evidence. The Ninth Circuit vacated Gordon’s convictions.[xxx]

            The cases proved that the government’s wartime orders were not based on any military necessity.

The Meaning for Us as Lawyers

            The coram nobis cases teach much about the roles we have as lawyers. During World War II, there were those who could and should have done better: lawyers who carried out the incarceration and lawyers who suppressed, altered, and destroyed evidence to win before the Supreme Court.

But it is also important to remember Department of Justice lawyers Edward Ennis and John Burling who spoke out against the actions of their superiors, as well as the lawyers who represented Fred, Gordon, and Min pro bono. They represented the best of our profession.

Many of those who played roles during the wartime incarceration later expressed their regret. Chief Justice Earl Warren later said,

It was wrong to react so impulsively, without positive evidence of disloyalty, even though we felt we had a good motive in the security of our state. It demonstrates the cruelty of war when fear, get-tough military psychology, propaganda, and racial antagonism combine with one’s responsibility for public security to produce such acts.[xxxi]

Further, Second, the wartime incarceration and cases show the very real danger when courts fail to fulfill their constitutional role to act as a check on their coordinate branches of government. During World War II, the Supreme Court stepped aside and deferred to the government. The Court, in so doing, was willfully blind in rubber-stamping the racial discrimination.

Fast forward to 2018. In Trump v. Hawaii, Chief Justice John Roberts, on behalf of a majority of the U.S. Supreme Court, upheld the President’s ban on travel from mainly Muslim-majority countries.^[xxxii] While noting candidate and President Trump’s prior anti-Muslim statements, the Court expressed the same deference to the government’s claims as it did in the wartime Japanese American cases. The Trump Court said, “we cannot substitute our own assessment for the Executive’s predictive judgments on [national security] matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’”^[xxxiii]           

            In her dissent in Trump, Justice Sonia Sotomayor drew parallels between the travel ban and Korematsu, including the group-based assumption of guilt and the Court’s deference to the government’s claims.^[xxxiv] In response, Justice Roberts for the majority said that “Korematsu has nothing to do with this case.”^[xxxv]

While distinguishing Korematsu, Justice Roberts still took the opportunity to repudiate it, stating “Korematsu was gravely wrong the day it was decided, and has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.”^[xxxvi] It is impossible to know what he meant in saying that Korematsu has been overruled “in the court of history,” but the Court’s opinion itself shows it did not overrule one of the most dangerous aspects of Korematsu—that courts should step aside and accept the government’s actions whenever it claims they are “plausibly related” to national security.^[xxxvii]

            My own view is that the actions of Congress and the President must always be subject to constitutional limits, and the courts must always decide in the end whether Congress and the President have acted in a justifiable manner. As the coram nobis cases of the 1980s proved, the failure of courts to question and examine the government’s claims of necessity can create fertile ground for fraud and misrepresentation. 

In her opinion vacating Fred’s conviction, Judge Patel reflected on the lasting meaning of Korematsu:

Korematsu . . . stands as a constant caution . . . that in times of distress the shield of . . . national security must not be used to protect governmental actions from close scrutiny. It stands as a caution that in times of international hostility . . . 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.”[xxxviii]

Finally, the wartime incarceration reminds us of the critical importance of not turning away when we have the ability to act. We need to preserve civil liberties, not only for vulnerable communities, but also for future generations. During World War II, few spoke out to protect Japanese Americans. Although some brave individuals and a few religious groups like the Quakers opposed the incarceration, none of the major civil rights groups at the time opposed it when it occurred, and a silent majority let it happen.

As lawyers with the proverbial keys to the courthouse, places like Minidoka remind us of what happens when our system of laws fails and that it uniquely falls on us lawyers to be the first responders.

Lorraine K. Bannai is Professor Emerita at Seattle University School of Law and helped direct the Fred T. Korematsu Center for Law and Equality there. While in practice, she served on the legal team that successfully challenged Fred Korematsu’s World War II conviction for refusing to comply with orders that resulted in the forced removal of Japanese Americans from the West Coast. Her books include the co-authored Race, Rights, and National Security: Law and the Japanese American Incarceration, and her biography of Fred Korematsu, Enduring Conviction: Fred Korematsu and His Quest for Justice.

[i] For a history of the wartime incarceration of Japanese Americans, see, e.g., Comm’n on Wartime Relocation and Internment of Civilians, Personal Justice Denied (1982). See alsoDensho: The Japanese American Legacy Project, https://perma.cc/HLJ8-9CQZ (last visited July 23, 2025), for its outstanding collection of information, interviews, and archival materials on the incarceration. For the history of Minidoka, see the Friends of Minidoka website, https://www.minidoka.org/.

[ii] Irei Project, About, Irei: National Monument for the WWII Japanese American Incarceration, https://ireizo.org/about/ (last visited July 23, 2025).

[iii] For more information on early anti-Japanese discrimination and the history of the wartime incarceration, see Eric K. Yamamoto, Lorraine K. Bannai & Margaret Chon, Race, Rights and National Security: Law and the Japanese American Incarceration 29–86 (3d ed. Wolters Kluwer 2021) [hereinafter Yamamoto, Race, Rights].

[iv] Alien Enemies Act, 50 U.S.C. § 21 (1940).

[v] Personal Justice Denied, supra, at 2.

[vi] Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942).

[vii] Act of Mar. 21, 1942, Areas or Zones, Restrictions, Pub. L. No. 77-503, 56 Stat. 173 (1942).

[viii] Congressional Record, Mar. 19, 1942, p. 2726 (quoted in Personal Justice Denied, supra, at 2).

[ix] For a discussion of these three men and their cases, see Peter Irons, Justice at War (1983).

[x] Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943); Korematsu v. United States, 323 U.S. 214 (1944).

[xi] Hirabayashi, 320 U.S. at 93 (emphasis added).

[xii] Id. at 96–99.

[xiii] Id. at 99.

[xiv] Korematsu, 323 U.S. at 225–26 (Roberts, J., dissenting).

[xv] Id. at 245 (Jackson, J. dissenting).

[xvi] Id. at 246 (Jackson, J. dissenting).

[xvii] Ex Parte Endo, 323 U.S. 283 (1944).

[xviii] Eugene V. Rostow, The Japanese American Cases–A Disaster, 54 Yale L.J. 489, 503 (1945).

[xix] For further discussion of the government’s wartime suppression of evidence and the coram nobis cases, see Peter Irons, Justice at War (1983); Yamamoto, Race Rights at 221–329.

[xx] For a discussion of the suppression of evidence, see Irons, Justice at War, supra; the Petition for Writ of Error Coram Nobis and Exhibits, available at https://ddr.densho.org/ddr-densho-405-1/ (the same petition was filed in all three cases); and the film Alternative Facts: The Lies of Executive Order 9066, https://www.kanopy.com/en/product/alternative-facts-lies-executive-order-906.  For a discussion of the coram nobis cases, the Petition, and Exhibits, see, e.g. Coram Nobis Cases, https://encyclopedia.densho.org/Coram_nobis_cases/ and https://ddr.densho.org/ddr-densho-405/.

[xxi] Yamamoto, Race, Rights, at 231–37. See also DeWitt Report, Japanese evacuation from the West Coast, 1942 (book), https://encyclopedia.densho.org/Final_Report,_Japanese_Evacuation_from_the_West_Coast,_1942_(book)/.

[xxii] Id.

[xxiii] Id. at 237–49.

[xxiv] Id. at 245–48.

[xxv] Id. at 244–57.

[xxvi] Margaret Chon, Remembering and Repairing: The Error Before Us, In Our Presence, 8 Seattle J. for Soc. Just. 643, 645-46 (2010).

[xxvii] For an account of the coram nobis cases, see Yamamoto, Race, Rights, Ch. 5; Peter Irons, Justice Delayed: The Record of the Japanese American Internment Cases (1989); Kathryn A. Bannai, Gordon Hirabayashi v. United States: “This is an American Case,” 11 Seattle J. for Soc. Just. 41 (2012); Peggy Nagae, Justice and Equality for Whom? A Person Journey and Local Perspective on Community Justice and Struggles for Dignity, 81 Or. L. Rev. 1133, 1141–42 (2002); Lorraine K. Bannai, Enduring Conviction: Fred Korematsu and His Quest for Justice (2015).

[xxviii] Yamamoto, Race, Rights, at 275–92; Korematsu v. United States, 584 F. Supp. 1406, 1419 (N.D. Cal. 1984).

[xxix] Id. at 292–94.

[xxx] Id. at 294–312; Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987).

[xxxi] Earl Warren, The Memoirs of Earl Warren 149 (1977).

[xxxii] Trump v. Hawaii, 585 U.S. 667 (2018). For a discussion of how the Court in Trump gave new life to Korematsu v. United States, see Lorraine K. Bannai, Korematsu Overruled? Far From It: The Supreme Court Reloads the Loaded Weapon, 16 Seattle J. Soc. Just. 897 (2018) and Yamamoto, Race Rights at 409–53.

[xxxiii] Trump, 585 U.S. at 708 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)).

[xxxiv] Id. at 752 (Sotomayor, J., dissenting).

[xxxv] Id. at 710.

[xxxvi] Id.

[xxxvii] Id. at 670.

[xxxviii] Korematsu, 584 F. Supp. at 1420.