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A plea to cast aside Korematsu

Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions.  The most famous of those rulings — often reviled — was the 1944 decision in Korematsu v. United States.

The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision.  They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.

The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists.

The Hedges case was turned aside by the U.S. Court of Appeals for the Second Circuit last July, but only on the basis that the challengers to the detention policy — journalists, authors, and political activists —  were found to have no right to sue because they could not show that they were actually at risk of being targeted by the policy.  The Circuit Court did not rule on the constitutionality of the 2011 law spelling out anew the power of the president to order the capture and possibly long-term confinement of potential terrorists.

There is a lively debate in legal circles whether that provision added to presidential power to detain, or simply reaffirmed the power given to the president after the terrorist attacks of September 11, 2001.  Unless the federal courts agree to resolve the meaning of the 2011 provision, the actual extent of that authority will remain unclear, but to be decided by the White House and Congress..

While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S.  In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended.   In the Hedges case, the claim is that the statement can be read to rely upon the Korematsu decision as support for such detentions — something that those challengers want to have clearly refuted.

Here is the language of the compromise provision: “Authorities. — Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

What concerns the challengers in the Hedges case, and the lawyers who wrote to the Solicitor General, is the phrase “existing law or authorities.”  In the petition in the Supreme Court seeking review of the Second Circuit’s decision, this was included as one of the questions at issue: “To the extent that the Second Circuit opinion holds that Koremasu is among the ‘existing law and authorities’…that relate to military detention of citizens and legal residents, should Korematsu be overruled?”

That question is the focus of the letter, dated last Friday, to Solicitor General Verrilli by eleven attorneys who note that they had represented Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui in successful efforts in lower federal courts to nullify their convictions for violating military curfew and exclusion orders “that led to the incarceration and indefinite detention of more than 110,000 Americans of Japanese ancestry.”

The letter said that, in the Hedges case, “the Supreme Court now has the opportunity to correct and formally overrule its decisions in the internment cases.”  The decisions in those cases, the attorneys wrote, “could be read as among the ‘authorities'” referred to in the new 2011 detention law.

Noting that Verrilli’s office was now preparing a response to the Hedges petition, the letter asked him to take one of two steps: ask the Court formally to overrule the internment decisions, or, as an alternative, to “make clear” that the federal government “does not consider the internment decisions as valid precedent for governmental or military detention of individuals or groups without due process of law, and as not among any ‘authorities’ to which [the new law] refers.”

Under the current schedule for the Hedges case, the government’s response is due by February 2 4. (The government this week received an extension of time to file that document.)  In the Second Circuit, the government relied heavily upon an argument that the challengers did not have “standing” to sue because they were not threatened by the new law, and that, in any event, the law did not add any new detention authority.

Those are likely to be the main arguments that Verrilli will make when the response is filed.  He presumably has the option, in discussing what the new provision means, to discuss what the disputed phrase conveys about prior detention precedents.

Recommended Citation: Lyle Denniston, A plea to cast aside Korematsu, SCOTUSblog (Jan. 16, 2014, 11:13 PM),