The Hirabayashi “coram nobis” case is a landmark civil rights case which exposed the racial prejudice of government officials in promulgating military orders which led to the internment of Japanese Americans during World War II.

After Japan’s attack on Pearl Harbor, a wave of anti-Japanese hysteria swept over the western United States. On February 19, 1942, seventy years ago, President Franklin Roosevelt signed Executive Order 9066. The order authorized the Secretary of War and military commanders to declare areas of the United States as military areas, “from which any or all persons may be excluded.” Pursuant to the authority granted him under Executive Order 9066, General John DeWitt, Commanding General of the Western Command issued several orders and proclamations directed toward all German and Italian aliens and all persons of Japanese ancestry, citizen or not, which included a curfew order and a requirement to report to a civilian control station as a prerequisite to being excluded from the region.

At that time, Gordon Hirabayashi was a 24-year-old senior at the University of Washington. Born in Seattle, Hirabayashi had never been to Japan. He believed that as an American citizen, he had rights protected under the US Constitution. He felt that the military orders were based on racial prejudice and decided to challenge the constitutionality of the military orders by refusing to follow the curfew orders and refusing to report to a civilian control station to be excluded into internment camps. Similar challenges were made by Min Yasui in Portland, Oregon and by Fred Korematsu in San Francisco, California.

Hirabayashi was arrested, indicted, tried, and convicted by a jury in the federal district court. Yasui and Korematsu were also tried and convicted in federal district courts in Portland and San Francisco. All three men appealed their convictions to the United States Supreme Court. Hirabayashi’s attorneys argued that the military orders were unconstitutional because the government had failed to prove an emergency situation to justify a racially based classification. The orders had focused on the ancestry of Japanese, regardless of whether they were citizens or not. While the military orders had also applied to German and Italian aliens, they were not applied to German American and Italian American citizens.

The government argued that the military orders were constitutional because they were based on a reasonable judgment of “military necessity.” It took the position that given the urgency of the situation, it made individual hearings to determine loyalty impossible to hold, that with 100,000 Japanese living on the West Coast, the government had to act quickly to remove the threat of an unknown number of disloyal Japanese, that there wasn’t time to separate the loyal from the disloyal.

The US Supreme Court accepted the government’s argument and ruled that the curfew orders were justified by “military necessity.” Hirabayashi v. United States, 320 US 81 (1943). Yasui vs. United States, 320 US 115 (1943). The following year, the Court applied the same military emergency rationale to uphold explicitly the exclusion of all citizens of Japanese ancestry from the West Coast. Korematsu v. United States, 323 US 214 (1944). The highest court in the land had spoken. The convictions for all three men were affirmed.

The Hirabayashi, Yasui, and Korematsu decisions were widely criticized by legal and history scholars through the years. Starting in the early seventies, the Japanese American community led the movement for wartime reparations. In 1980, Congress created the Commission on Wartime Relocation and Internment of Civilians to study the internment of Japanese Americans during World War II. It was in the course of doing historical archival research for the Commission that Aiko Yoshinaga-Herzig, in 1982, found a copy of General John DeWitt’s original report which explained his reasons for issuing the military orders. General DeWitt’s original report differed dramatically from the official version of the report. This report did not purport to place the basis for the military orders on the urgency of the situation but instead was based on traits peculiar to citizens of Japanese ancestry; that it would be impossible to separate the loyal from the disloyal, and that all would have to be evacuated for the duration of the wars. In other words, General DeWitt’s justification for his military orders was based on racial stereotyping against Japanese American. This report was suppressed from the defense attorneys representing Hirabayashi, Yasui, and Korematsu.

Coincidentally, at around the same time in 1982, legal historian Peter Irons decided to write a book about the Japanese American wartime cases. He conducted interviews with Gordon Hirabayashi, Min Yasui, and Fred Korematsu. During these interviews, Irons suggested to the men that they should go back to court to get their convictions reversed. He explained they could file a writ of coram nobis. A writ of coram nobis is a relatively seldom used legal procedure to correct a previous error “of the most fundamental character” to “achieve justice” where “no other remedy” is available. Korematsu, intrigued by the possibility, asked Irons to represent him.

Irons enlisted the aid of Dale Minami, one of the most prominent Asian American civil rights attorneys in the country, for Korematsu’s legal representation. Hirabayashi and Yasui had also agreed to sign on. Minami assembled a legal team in San Francisco. The original plan was to have one writ of coram nobis to cover all three men. However, based on the law, the writ of coram nobis had to be submitted to the trial court which had previously convicted them. Hirabayashi had to file his petition in Seattle, Yasui had to file his petition in Portland. Legal teams had to be assembled in Seattle and Portland. Lorraine Bannai was an attorney in Minami’s law firm. She had a sister, Kathryn Bannai, who was practicing law in Seattle. Kathryn’s then sister in law, Peggy Nagae, was a prominent civil rights attorney in Portland. Kathryn assembled a legal team in Seattle. Peggy assembled a legal team in Portland. Over 50 attorneys volunteered hundreds of hours and expertise to serve on the three legal teams.

In 1983, forty years after their convictions, Hirabayashi, Yasui, and Korematsu each filed petitions for write of error coram nobis in Seattle, Portland, and San Francisco. Each petition argued that the convictions should be overturned because the government had engaged in serious misconduct by suppressing and withholding evidence that would have supported their defense in their original trials and requested a full evidentiary hearing. In 1983, Korematsu’s petition was granted and his conviction was overturned without an evidentiary hearing. In 1986, Yasui’s petition was granted and his conviction was overturned without an evidentiary hearing. The Hirabayashi petition was the only one of the three petitions that went to hearing held in 1986 in the federal district court in Seattle.

The district court held a full evidentiary proceeding on Hirabayashi’s claims. The judge agreed with Hirabayashi’s factual contentions, overturned his conviction for violating the exclusion order, but did not overturn his conviction for violating the curfew order. Both the government and Hirabayashi appealed this decision to the US Ninth Circuit Court of Appeals. In 1987, the Ninth Circuit, in an opinion authored by Judge Mary Schroeder, vacated both Mr. Hirabayashi’s curfew and exclusion convictions on proof of the allegations of governmental misconduct. The effect of this decision was unprecedented because it had the effect of overturning the original Supreme Court decision made over forty years earlier.

The Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law will host a major conference Feb. 11, 2012, to commemorate the 25th anniversary of the Ninth Circuit opinion in the Hirabayashi v. United States “coram nobis” case. The conference will celebrate Gordon Hirabayashi’s principled stand in challenging the military orders that led to his 1943 Supreme Court case that upheld his convictions. Members of his coram nobis legal team will provide reflections on their roles in his case nearly 40 years later. There will be panel discussions regarding the significance of this case. Judge Mary Schroeder who wrote the landmark Ninth Circuit Court of Appeals decision will be a featured speaker. Admission is free but pre-registration is required. Please go to:

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