OPEN LETTER TO THE COUNTRY
in Opposition to Executive Order 13780,
subsequent versions of the Muslim Ban, and Abuse of Executive Authority
On February 19, 1942, President Franklin Roosevelt issued Executive Order 9066, authorizing the Secretary of War and his designated military commanders to prescribe zones from which any and all persons could be excluded, and to issue such policies and orders necessary to carry out such exclusion;
Lt. General John L. DeWitt, military commander of the 8 western states comprising the Western Defense Command, first imposed a curfew and travel restrictions on Japanese Americans, followed within weeks by orders requiring them to report to temporary detention camps while 10 permanent prison camps were constructed from California to Arkansas, where by the end of 1942 over 120,000 persons of Japanese ancestry were incarcerated–losing their homes, their businesses, their dignity, and for some, even their lives;
Gordon Hirabayashi, Minoru Yasui, Fred Korematsu challenged the constitutionality of the military curfew and internment orders before the Supreme Court in 1943 and 1944;
The government responded to those challenges by claiming that Japanese Americans’ racial and cultural ties to Japan rendered them potentially disloyal and prone to espionage and sabotage, and that ”military necessity” required the Court to defer to the military commander’s judgment that these people posed a threat to the nation’s security;
The Supreme Court failed to scrutinize the government’s claims to ascertain whether they had any basis in fact, but acquiesced in the government’s contention that the incarceration was a “military necessity,” and ruled that the military internment orders were constitutionally valid, despite being imposed upon an entire ethnic population without due process;
In 1983, Hirabayashi, Yasui, and Korematsu filed federal petitions for writs of error coram nobis based on the discovery of official documents showing that the government had knowingly suppressed critical reports and memoranda from the Office of Naval Intelligence (ONI), FBI, FCC and Army, categorically denying Japanese Americans had committed any wrong or posed any threat to national security; and had altered then destroyed General DeWitt’s original Final Report, which had starkly revealed the racist underpinnings of his internment orders. Justice Department lawyers at the time characterized General DeWitt’s claim that Japanese Americans were engaging in espionage and sabotage as “intentional falsehoods,” and argued that failing to disclose these intelligence reports to the Supreme Court “would approximate the suppression of evidence;”
In 1983-1987, the federal courts vacated the convictions of Hirabayashi, Yasui and Korematsu, and in granting the petitions found that, as alleged, the government had perpetrated a manifest injustice and a fraud on the Supreme Court by suppressing, destroying and altering material evidence refuting that Japanese Americans posed any threat to our national security. In granting Korematsu’s petition, Judge Marilyn Hall Patel declared that “in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability”;
In 2011, in an extraordinary “confession of error,” the Acting Solicitor General Neal Katyal acknowledged the government’s role in the miscarriage of justice found by the coram nobis courts, and admitted that the government had known that its own intelligence “undermined the rationale” behind the mass removal and incarceration program;
In 2017, the President issued a series of executive orders and proclamations banning people from Muslim-majority nations from entering the U.S., causing innocent travelers to be detained, stranded abroad and separated from their families, and cancelling thousands of validly issued visas, including those for refugees—fleeing for their lives from terrorism—who had already undergone a lengthy and stringent vetting process;
Court challenges have followed, arguing that the travel ban constituted discrimination based on religion and national origin, and was not truly meant to protect our nation against terror attacks, but rather fulfills the President’s campaign promise to “shut down” Muslim immigration to the United States;
In defending the Travel Ban, the government claims that “national security” requires the courts to bow to the will of the President and not question his decisions and motives, thereby giving him near-absolute deference in spite of the great importance of judicial review in our Constitutional system of checks and balances;
The Solicitor General has refused to reveal to the courts the factual basis for its claim that all persons from certain Muslim-majority countries and other countries disfavored by the President constitute a bona fide threat to national security;
In March 2017, the Department of Homeland Security itself cast doubt upon the efficacy of the ban, noting that an extremely small percentage terrorist attacks have been carried out by immigrants from the designated countries;
The children of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui remind the public of the civil liberties disaster stemming from the Supreme Court’s abdication in 1943-44 of its constitutional role and duty to closely scrutinize governmental actions denying or infringing on our fundamental rights and values.
We, the undersigned,
- Oppose Executive Order 13780 and any other order or proclamation that promotes the Muslim Travel Ban.
- Urge the U.S. Supreme Court to #StopRepeatingHistory and demand disclosure of documents withheld from the Courts by the Trump administration which claim to justify the Muslim ban, a demand which it failed to do for the Japanese American incarceration in the original Hirabayashi, Yasui and Korematsu cases.
- Support efforts to promote awareness in the legal community and general public of the power of Executive Orders and the crucial constitutional role that the courts must play in a democracy to act as a check and balance on the Executive to ensure that no one, not even a President, is above the law.
- Support the creation of a National Day of Remembrance to commemorate February 19, 1942, the day President Franklin Roosevelt signed Executive Order 9066 which led to the exclusion and imprisonment of 120,000 Americans of Japanese Ancestry, as a reminder of the fragility of our civil rights and as a commitment to never allow this civil rights disaster to occur again.
- Support S 2250, and HR 4680, the Korematsu-Takai Civil Liberties Protection Act of 2017, which bars the detention of any person solely because of his or her race, ethnicity, national origin, religion, gender, gender identity or sexual orientation.
If you’re an individual, please sign our Open Letter to the Country.