This spring, the Trump administration cited a World War II-era case that allowed for wartime discrimination against Japanese-Americans to support its argument in a case involving a Guantanamo Bay detainee.
An excerpt from a leaked April briefing, which has yet to clear the government’s review process, revealed that the Department of Defense cited a 1943 Supreme Court decision, Hirabayashi v. United States, in its argument to keep Guantanamo Bay detainees from disseminating their artwork.
The Hirabayashi decision upheld the idea that curfews against a minority group ― in that case, Japanese-Americans ― are constitutional during a time of war.
While the Trump administration filing is from April, Steve Vladeck, a professor at The University of Texas School of Law, recently shared the excerpt on Twitter, leading to an outcry from the Asian-American community ― especially since Hirabayashi’s convictions were overturned years later through a writ of coram nobis.
“Gordon Hirabayashi’s wrongful conviction, which was vacated in 1986 after it came to light that attorneys for the government had deliberately misrepresented evidence before the Supreme Court, is bad law, plain and simple,” Nina Wallace, communications coordinator for Densho, an organization that preserves Japanese-American history, told HuffPost. “This is a repugnant attempt to rewrite history and normalize governmental abuse of power. We must learn from the mistakes of our past, not repeat them.”
The Department of Defense declined to comment on the case.
The Trump administration briefing responds to a motion filed by the lawyers of Ammar al-Baluchi, who was accused of helping to plot the 9/11 attacks. He is currently being detained in U.S. detention facilities in Guantanamo Bay, Cuba. Al-Baluchi’s attorneys argued that the Department of Defense had violated their client’s rights by blocking him from giving the artwork he makes in his cell to his attorneys or releasing it to the public.
In response, the Department of Defense claimed that by preventing the dissemination of al-Baluchi’s work, it was cutting off a “vital recruiting tool al Qaeda uses.” Quoting from the Hirabayashi case, the department argued that the power to wage war “extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of armed forces from inquiry and from the dangers which attend the rise, prosecution and progress of war.”
Al-Baluchi’s motion was denied.
“This is a repugnant attempt to rewrite history and normalize governmental abuse of power.”
- Nina Wallace, Densho
The Hirabayashi case has been discredited for decades, Wallace said.
Gordon Hirabayashi was a college student when, in 1942, he decided to disobey the wartime curfew imposed on Americans of Japanese descent. He was eventually arrested for defying both the curfew and exclusion orders ― orders handed down by the head of the Western Defense Command, Gen. John L. DeWitt, that led to the incarceration of Japanese-Americans during World War II.
The Supreme Court, which opted to rule only on the curfew violation, decided unanimously to uphold the curfew conviction, with Chief Justice Harlan Fiske Stone going as far to say that “some infringement on individual liberty” was permissible in times of war.
Decades later, Hirabayashi’s conviction was vacated, and in 2011, the Justice Department formally confessed to its mistakes in the Japanese-American internment cases, making the Defense Department’s use of the case for a legal argument all the more shocking.
“That the government has resorted to using the Hirabayashi case as precedent is astonishing,” Gary Mayeda, president of the Japanese American Citizens League, said in a statement on the Defense Department’s briefing. “These government lawyers have sworn to uphold the Constitution, and yet they quote from a case that tore the Constitution to shreds.”