4th Amendment, Constitution, criminal law, Due Process, Faculty Blog, Fourth Amendment, Friedman, Hansen, New England Law Review, Trump, U.S. Supreme Court

Faculty Blog: The Post-9/11 Weight of Korematsu

By: Lawrence M. Friedman and Victor M. Hansen 

Associates of President-elect Donald J. Trump have suggested that the infamous Supreme Court decision upholding the internment of Japanese-Americans during World War II, Korematsu v. United States, could be used to justify measures aimed at tracking and potentially detaining Muslim-Americans and Muslim immigrants. As Professor Noah Feldman has recently noted, the Korematsu decision is widely regarded today as having been wrongly decided and it has been, as Justice Stephen G. Breyer has put it, “discredited.”

But there is another reason why the precedential value of Korematsu has been diminished: its basic premise has been undermined by the Supreme Court’s more recent decisions in Hamdi v. Rumsfeld and Boumediene v. Bush.

The quarantine order in Korematsu resulted, primarily, in the internment of Japanese-Americans despite the lack of evidence that any of them, individually, had either engaged in disloyal conduct in the past or were likely to engage in such conduct in the future. The government offered up to the Court only, as Professor Feldman noted, “incomplete and false evidence . . . claiming military necessity,” while “suppressing the fact that allegations of Japanese-American espionage had been refuted by the F.B.I. and military intelligence.”

In Hamdi, by contrast, the Court concluded that the government could not detain U.S. citizens allegedly connected to terrorist causes absent some kind of showing that their liberty would pose a continuing danger. A plurality rejected the government’s assertion that detention could be upheld merely on the basis of an affidavit by a government official. Rather, the government had to produce some evidence—which the defendant would have the opportunity to challenge—showing why the defendant posed a danger. Justice Antonin Scalia, concurring in the result, would have gone farther, holding the government must bring criminal charges against citizens the government seeks to detain.

Hamdi led to the creation of specialized tribunals for both citizen and non-citizen detainees at which individualized determinations were made regarding the continuing danger each detainee posed. While the fairness of these tribunals has been frequently criticized, they represent a more robust process than the government employed in Korematsu, and they provide a more recent precedent for the minimum process required in order to detain citizens and non-citizens in an era of terrorist threats.

In Boumediene, the Court extended the right of habeas review to aliens being detained by the United States at Guantanamo Bay, thus insuring that they, no less than citizens, have the opportunity to seek judicial review of the circumstances that led to their detention. This review is even more robust than existed in the tribunals created after Hamdi.

What these decisions add up to is a constitutional imperative that the government cannot simply round up and detain individuals based upon some generalized suspicion about the class to which they all belong. Rather, the government must articulate a reason to justify individualized detention, and it must produce some evidence—however minimal—that the detention of particular individuals is warranted. Even under the showing required by the plurality in Hamdi—that the government must develop cases against individuals as individuals—the government could not simply declare an entire class of persons a national security threat, as essentially happened during World War II with Japanese-Americans.

As Professor Feldman argues, we may regard Korematsu simply as bad constitutional law, and therefore inapplicable. But, even crediting the fact that the Supreme Court has not formally overturned Korematsu, still it can be readily distinguished by the more recent and relevant precedent in the post-9/11 cases, Hamdi and Boumediene.

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