Hirabayashi proved ancestry is no crime
On Jan. 2, Gordon Hirabayashi died at age 93. He was the last of three Nisei men who defied the 1942 War Relocation Authority’s (WRA) edict ordering all persons of Japanese ancestry on the West Coast to assembly centers. He was convicted of both curfew and evacuation violations. In mid-1943 the U.S. Supreme Court reaffirmed Hirabayashi’s convictions as well as those of fellow resisters Fred Korematsu and Minoru Yasui.
Forty years later the three filed petitions for a writ of error coram nobis in federal court. In 1987 a three-judge panel of the Ninth Circuit Court ruled in Hirabayashi’s favor. Because the government did not appeal, Hirabayashi was exonerated without a Supreme Court ruling.
The Supreme Court dodged a bullet, since they would have had to concede what Gordon Hirabayashi knew all along and stated on the day of his exoneration: “Ancestry is not a crime.” A finding of error coram nobis would mean that the Supreme Court erred in upholding the racist rationale for the curfew, evacuation and the internment itself.
All of the WRA actions, even the executive order 9066 authorizing them, would have been found unconstitutional and hence illegal. To this day, despite the 1988 Civil Liberties Act, which provided a formal apology and monetary reparations to former internees, those actions remain legal and eminently repeatable.
Hirabayashi’s long struggle with the Justice Department’s Alien Enemy Control Unit (AECU) paid off because he found attorneys who believed in social justice and because there were laws on the books that adhered to the principle “innocent until proven guilty.”
The recently enacted National Defense Authorization Act (NDAA) bodes ill for future Gordon Hirabayashis and for all of us. What has been authorized is indefinite military detention of terrorism suspects. The key word is “suspect”: even U.S. citizens can be detained on mere suspicion. Legal impediments like habeas corpus, probable cause and timely trials will no longer burden those eager to get on with punishment. The NDAA is a very thin cloak for a more insidious version of the AECU.