Top photo by Mark Fong.
Minami Tamaki LLP congratulates Partner Donald K. Tamaki on being honored with an ABA Spirit of Excellence Award for 2020. The award was presented at the 2020 ABA Midyear Meeting in Austin, Texas, on February 15, 2020.
The award celebrates the efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession. Awardees excel in their professional settings; personify excellence on the national, state or local level; and demonstrate a commitment to racial and ethnic diversity in law.
“There are a lot of people who agree that diversifying the profession is important, but it’s sometimes put on the back burner,” said Helen Kim, chair of the ABA Commission on Racial and Ethnic Diversity, to the ABA Journal. “What the Spirit of Excellence Awards do is focus on its importance by highlighting and showcasing those who are promoting diversity and inclusion in the profession. It also inspires the people in the audience to join in the cause.”
Don served on the legal team that reopened the 1944 U.S. Supreme Court case of Fred Korematsu, overturning his criminal conviction for defying the removal and unjust incarceration of almost 120,000 Japanese Americans. He was also on the team that filed an amicus brief in Trump v. Hawaii on behalf of Korematsu’s daughter and the children of Gordon Hirabayashi and Minoru Yasui, two other Japanese American plaintiffs in Supreme Court cases challenging curfews.
“My father once told me when he was a kid he wanted to be a lawyer, but it was impossible,” said Don. “To this day, I keep his [college] diploma. It is wrapped in a mailing tube that was addressed to a concentration camp. The fact that now I’m getting recognized, it’s important to me, I’m honored, but it’s important for the entire public to remember how far we’ve come.”
Donald K. Tamaki Remarks as Prepared for Delivery
Thank you ABA, its Commission on Racial and Ethnic Diversity, its chair Helen Kim, the NAPABA Awards Committee, NAPABA’s President, Bonnie Lee Wolf, and past President Daniel Sakaguchi.
Thank you to my lovely wife, Suzanne Ah-Tye, whose formidable persona keeps me in line, and who blessed me with twin sons, Blake and Philip, here today with their spouse and fiancée, respectively, Michelle Tamaki and Annie Wang.
Finally, I want to lift up my law partners, Mark Fong and Olivia Lee, and in particular, Dale Minami—the 2019 awardee of the ABA Medal—who, to my delight, I am occasionally mistaken for, since we all look alike. And when I’m congratulated for Dale’s achievements by people thinking I am him, I simply say, humbly, “Thank you, but I owe it all to Don Tamaki.”
My parents have passed, along with most of the 120,000 Japanese Americans who were incarcerated in 1942, so allow me to be their voice.
When FDR issued the Executive Order—authorizing Lt. General John L. Dewitt to do the mass removal—my father was about to graduate from UC Berkeley. But because he had been taken away, Berkeley scrolled up his diploma in a mailing tube, and addressed it to him at “Tanforan Assembly Center, Barrack 80, Apt 5, San Bruno.”
Do you know what “Barrack 80, Apt 5” was? It was a horse stall. The government surrounded race tracks on the West Coast with barbed wire and machine gun towers and forced these Americans at gunpoint out of their homes while 10 more permanent detention camps were being built from California to Arkansas.
Metaphorically speaking for my father: This diploma was the promise of America. But the mailing tube, encircling and constraining that promise addressed to a horse stall reeking of manure, was his reality. I keep this memento because it reminds me of how far we’ve come.
My parents rarely talked about their bitter experience. Until one day in 1982, I showed them secret, intelligence reports from the Navy, the FBI, and the FCC admitting that Japanese Americans had done no wrong. Moreover, Justice Department memos revealed a scandal of epic proportions. DOJ lawyers urged their superiors that they had an ethical duty to disclose these official reports and not to lie or mislead the Supreme Court. They were rebuffed by the Solicitor General, the Assistant Attorney General, and War Department officials who suppressed, fabricated, and destroyed evidence.
For my parents this was a jaw-dropping mind-blowing revelation. They of course, knew that they were innocent, but had thought that their confinement was the result of wartime hysteria. They could hardly fathom that the government’s own files revealed that what might have started as hysteria ended at the highest echelons of our legal system as a calculated plan to manipulate the outcome of the Korematsu decision even if it meant lying to the Supreme Court.
THE SUPREME COURT CASES
Colonel Karl Bendetsen, a Stanford law graduate who should have known something about the Constitution, worked under General Dewitt to design the mass removal. He penned the following statement for DeWitt:
“The Japanese race is an enemy race… The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”
Wrap your head around that logic: the very fact that you’ve never committed a crime “is a disturbing and confirming indication” that you will commit a crime?
In other words, our people lost their freedom, their property, and ,for some, even their lives based on conspiracy theories and fake news. This was a time when “alternative facts” held sway over the real ones.
Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui, defied DeWitt’s orders, and were tried and convicted. They appealed.
Because not a single Japanese American was ever tried and convicted of espionage. The burden fell on General DeWitt to issue a “Final Report” to prove that what he did was reasonable. There was only one problem, it was entirely made up and the government knew it at the time.
In 1944, in Korematsu, Solicitor General Charles Fahy exhorted the Court not to second-guess the judgment of the military that locking up these Americans was necessary for the nation’s safety. Instead of asking questions, the Court deferred, thereby abdicating its constitutional role as a check and balance on the Executive Branch. In a 6-3 decision, Justice Black wrote that this was not a case of racial hostility, but a case of “military necessity.” How did the Court know that the round-up was necessary? Its reasoning was sheepish, “because the military said so”.
THE REOPENING AND CORAM NOBIS
37 years later, Professor Peter Irons, found DOJ records that had been misfiled in the Commerce Department and forgotten. With researcher Aiko Yoshinaga Herzig, they uncovered whistle-blower memos written by Edward Ennis, the official supervising the drafting of the government’s brief. When Ennis began searching for the evidence that Japanese Americans had committed espionage, to his alarm he found the opposite, that there was no evidence.
Naval Intelligence, the lead agency for West Coast security, concluded that Japanese Americans posed no threat and recommended against the round-up. Ennis wrote to Solicitor General Fahy:
“I think we should consider very carefully whether we have a duty to advise the Court of the …[the Navy’s] report… any other course of conduct might approximate the suppression of evidence.”
The FCC found that DeWitt mischaracterized radio signals coming from Tokyo as shore-to-ship transmissions. FBI Director Hoover confirmed:
“[e]very complaint has been thoroughly investigated…in no case had there been any evidence of illicit signaling.”
DOJ lawyer John Burling wrote to Assistant Attorney General Herbert Wechsler:
“…There is no doubt that [DeWitt’s]…statements are intentional falsehoods.”
Ennis wrote to Wechsler:
“[We have] an ethical obligation to…refrain from citing…DeWitt’s claims…if the [DOJ] knows that [they are] …are untrue…The…tenor of [Final] report is…that …overt acts of treason were being committed. Since this is not so, it is highly unfair to this racial minority that these lies…go uncorrected…”
In the end, the evidence was suppressed. The Solicitor General stood behind the Final Report even though every intelligence agency had debunked its claims. On this basis that a fraud on the high Court had been committed, our team of pro bono lawyers was able to have Fred Korematsu’s criminal conviction thrown out.
PARALLELS OF KOREMATSU TO THE TRAVEL BAN
The Court’s “rubber stamp” approach opened the door for this massive fraud to occur. Simply put, if the courts look the other way when the President invokes “national security,” the temptation for leaders to twist the facts, to engage in fabrications to achieve a political end, is likely to be irresistible. The founders of this nation understood this so they established a system of checks and balances to thwart the rise of kings and tyrants.
In 2017, the President banned travel from Muslim-majority nations, separating families and stranding U.S. residents abroad. Thousands of validly issued visas were canceled. Hundreds with such visas were prevented from boarding planes or denied entry on arrival—including Iraqi translators who risked their lives serving the US military.
The government claimed that an undisclosed Homeland Security Report showed that the ban was necessary for national security, and therefore, the Court should bow to the will of the President to impose, in Justice Sonia Sotomayor’s words, “an exclusionary policy of sweeping proportion.”
Opponents argued that the Travel Ban was not about security, but was the bigoted “Muslim Ban” that Trump had promised on the campaign trail.
In 2018, in a 5-4 decision, the Court upheld the Ban. Chief Justice John Roberts declared: “Korematsu was gravely wrong the day it was decided…”
But in the same breath, Roberts concluded that Korematsu has nothing to do with the Travel Ban held that the Court would not second-guess the judgment of the Executive in matters of security, and that Trump’s anti-Muslim vitriol didn’t matter.
As Harvard Law Professor Noah Feldman observed that’s more or less what the Court did in Korematsu. There, Justice Black denied that the orders requiring the forced removal were based on racial prejudice. The dissenters pointed out that this was preposterous.
To quote Peter Irons, the parallels between Korematsu and the Travel Ban are disturbing. Both arose out of war, both featured the government invoking “national security” to shield its actions from judicial scrutiny, both had abundant evidence of prejudice expressed by high officials against a targeted minority, both involved hidden intelligence reports, and both ended with the Court failing to question whether such sweeping deprivations of fundamental freedoms were necessary for the nation’s safety or were merely the fulfillment of bigoted campaign promises.
WHERE DO WE GO FROM HERE?
Friends—the lesson of Korematsu is that democracy is not necessarily lost in a sudden coup d’etat.
No, we can lose our freedom incrementally:
When the Congress, the Judiciary, and the Executive no longer serve as a check and balance to curb the abuse of power;
When the free press is attacked as “the enemy of the people;”
When the judiciary is disparaged as “so-called judges;”
When dissenters and whistleblowers are shouted down and retaliated against; and
When “alternative facts” are trotted out in place of the real ones.
No, a democracy is not always lost by overthrow if they are no checks and balances.
And if we fail to stand up and demand accountability to the Rule of Law, our democratic institutions can end up hollowed out from within to the point that we will no longer be able to recognize them.
In my travels with Fred Korematsu he always closed by saying:
“Don’t be afraid to speak up.”
So let’s not be afraid to speak up.
Let’s speak up. Our voices are more important now than ever.