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In the Shadow of KorematsuDemocratic Liberties and National Security$
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Eric K. Yamamoto

Print publication date: 2018

Print ISBN-13: 9780190878955

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780190878955.001.0001

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In the Shadow of Korematsu

In the Shadow of Korematsu

(p.123) 8 In the Shadow of Korematsu
In the Shadow of Korematsu

Eric K. Yamamoto

Oxford University Press

This chapter paints the arc of Fred Korematsu’s World War II resistance and legal challenge through his 1980s coram nobis case reopening and the 1988 Civil Liberties Act’s apology and reparations. It extends the arc over 9/11 controversies through Korematsu’s amicus brief in the Rasul Guantanamo Bay indefinite detention case and the Korematsu, Hirabayashi, and Yasui families’ brief in support of journalists’ efforts to stop threats of incarceration for protected speech and association activities in the Hedges case. The insights shared and prescriptions advanced in those friend-of-the-court briefs—particularly about the significance of judicial independence—are then enlivened by Judge Ambro’s poignant lessons-of-Korematsu opinion in the Hassan Muslim community harassment decision. The chapter closes by revisiting ongoing legal challenges to President Trump’s intensely contested 2017 exclusionary executive orders. It charts the Justice Department’s familiar refrain about the “unreviewable” nature of the executive’s national security justification—all the laws but one—as well as civil liberties groups’ constrasting advocacy for careful judicial scrutiny.

Keywords:   Korematsu coram nobis, Hirabayashi coram nobis, Yasui coram nobis, 9/11, amicus briefs, Rasul, Hedges, Hassan, Trump executive orders, judicial scrutiny

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