Asian American Empowerment - Korematsu After 9/11

© 2005 By Elbert Lin
Special to ModelMinority.com
March 2005

How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. A recent case, however, 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 revived Korematsu in Dasrath v. Continental Airlines, Inc. by using language remarkably similar to that used in Korematsu. Dasrath concerns two of five suits filed in 2002 by the American Civil Liberties Union (ACLU), each of which alleges the racially discriminatory removal of a passenger from a commercial flight. In the opinion, the court explains 49 U.S.C. § 44,902, a statute permitting “an air carrier . . . [to] refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.” Judge Debevoise’s explication of the broad discretion granted by § 44,902 and his justification for the “heavy” burden the statute imposes upon a plaintiff echo Justice Black’s validation of Exclusion Order No. 34 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:

[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.[1]

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 . . . .[2]

Both opinions also use the need for quick decisionmaking as an excuse for hasty or ill-considered decisions. They note the real consequences of inaction, as well as 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.[3]

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.[4]

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.”[5]

Finally, Dasrath and Korematsu make hollow gestures toward both equal protection of racial minorities and (at least somewhat) rigorous judicial review. For example, Judge Debevoise observes that “a racially motivated removal would not be sheltered by § 44902.”[6] The Korematsu opinion similarly assured: “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”[7] 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 § 44902” recognized explicit limitations.[8] This, too, is in Korematsu: The Exclusion Order was to be subject to “the most rigid scrutiny.”[9]

But while their rhetoric may be uncannily alike, does Dasrath really “revive” Korematsu? After all, the two cases 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.

Is it truly legitimate to describe Dasrath as a revival of Korematsu? Yes—for two reasons. First, in Dasrath, Judge Debevoise reprised Korematsu’s rhetoric—when he need not have—and it is Korematsu’s rhetoric, not its substance or procedural posture, that makes the case unique. This is not to say Korematsu’s facts and circumstances do not contribute to its notoriety. But there have been other reviled opinions. The use of “national security” and “imminent danger” rhetoric as a stand-in for logical and internally consistent legal reasoning, however, is peculiar to Korematsu. 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.”[10]

Second, a “revived” Korematsu need not resemble Korematsu in every way. To believe that it must would be foolish. A “new” Korematsu might simply embody a unique element of Korematsu. Dasrath is such a case. More compellingly, because Korematsu and the Japanese internment are widely despised, a “revived” Korematsu likely will not, and arguably cannot, resemble Korematsu in every way. It will not, because it is extremely unlikely that the public will allow the facts of the case—e.g., an internment pursuant to a presidential order followed by a Supreme Court validation—to replay. It cannot, because a "new" Korematsu that sought to duplicate every circumstance of Korematsu could not repeat one notable circumstance: When it was decided, Korematsu was widely supported.

* * *

Dasrath has more to offer than merely an interesting observation. Understanding Dasrath as a reincarnation of Korematsu sheds light on an existing racist sentiment toward Arabs and Arab Americans.

Korematsu was not a single event, but “a logical extension” of all the existing anti-Asian sentiment that had come before.[11] Asians faced prejudice and racial discrimination the moment they set foot in this country. Over time, early intolerance manifested itself in law: Localities instituted anti-Asian ordinances, the Supreme Court refused to allow Asians to naturalize, and Congress passed one exclusionary immigration act after another. 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. A proper understanding of Korematsu—which is to say, an understanding of why the Court used its now-reviled rhetoric—is that it was necessary 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 validating rhetoric. In the case of Dasrath, the existing racism that is being shrouded by rhetoric is 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.”[12] 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.”[13] 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.

* * *

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. Dasrath—ironically, a victory for the ACLU—reveals not only existing racism toward Arabs and arab Americans, but also a willingness to conceal that racism beneath the rhetoric of national security.

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.

This essay is derived from a longer work by the same title that was originally published in The Yale Law Journal, April 2003 (Volume 112, pp. 1911-1918). Download and read the original piece here.

Notes

1. Dasrath v. Continental Airlines, Inc., 228 F. Supp. 2d 531, 539 (D.N.J. 2002)
2. Korematsu v. United States, 323 U.S. 214, 223 (1944) (emphasis altered)
3. Dasrath, 228 F. Supp. 2d at 538-40 (emphasis added, and internal citation and quotation marks omitted).
4. Korematsu, 323 U.S. at 218, 223-24 (emphasis added and internal quotation marks omitted).
5. Id. at 217, 218, 220 (emphasis added).
6. Dasrath, 228 F. Supp. 2d at 540 n.12.
7. Korematsu, 323 U.S. at 216.
8. Dasrath, 228 F. Supp. 2d at 539.
9. Korematsu, 323 U.S. at 216.
10. Dean Masaru Hashimoto, The Legacy of Korematsu v. United States: A Dangerous Narrative Retold, 4 ASIAN PAC. AM. L.J. 72, 96 (1996).
11. Natsu Taylor Saito, Symbolism Under Siege: Japanese American Redress and the “Racing” of Arab Americans as “Terrorists,” 8 ASIAN L.J. 1, 8 (2001).
12. Id. at 11.
13. 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).