From exclusion of Japanese Americans to the Muslim ban, lawyers speak out against exclusion
On this edition of next Your Call, listen to our conversation about building solidarity across communities to protect civil rights and liberties.
As part of our series "HEAR: Histories of Exclusion and Resistance," we spoke with a panel of attorneys about the policies that led to the forced removal and incarceration of more than 100,000 Japanese Americans during World War II, and how current immigration policies mirror them. How are activists and attorneys mobilizing to end the travel ban, immigration detention, and other hardline anti-immigration policies.
Don Tamaki, attorney and a partner at the law firm of Minami Tamaki LLP, cofounder of the Asian Law Alliance in San Jose and former Executive Director of the Asian Law Caucus in San Francisco
Leila Sayed-Taha, immigration staff attorney at the Arab Resource and Organizing Center, with a focus on women’s empowerment, immigration, civil liberties and national security
Bill Ong Hing, professor of Law at the University of San Francisco and Professor of Law Emeritus, UC Davis, director of the USF Immigration and Deportation Defense Clinic, and author of American Presidents, Deportations, and Human Rights Violations: From Carter to Trump
Splinter: A Short, Brutal History of ICE
Rose Aguilar: Welcome. I’m Rose Aguilar, and this is a special live taping of Your Call recorded at the Stage Werx Theatre in San Francisco. Today's show is part of our series HEAR: Histories of Exclusion and Resistance. Over the past few months we have done live shows exploring the connections between the forced removal and imprisonment of more than 110,000 Japanese Americans during World War II and other US policies that violate civil rights and liberties.
After President Franklin D. Roosevelt’s Executive Order 9066 ordered the removal of people of Japanese descent living on the West Coast, a 23-year-old welder named Fred Korematsu resisted incarceration by the U.S. Army. He was criminally charged. In 1944, after his case went all the way to the Supreme Court, the court upheld the government's internment policy deeming it justified as a national security measure. Fred Korematsu was jailed and later interned. In his dissent, Justice Robert Jackson warned that “Korematsu lies around like a loaded weapon ready for the hand of any authority who could bring forward a plausible claim of an urgent need.”
Now all of the Japanese American activists that we've had on our live shows see very direct connections between Japanese internment and civil liberties violations today, including the Trump administration's travel ban, which we will talk about today that affects seven countries, five of which are majority Muslim. The Supreme Court upheld that ban last June and in the decision, Chief Justice John Roberts referenced the case of Fred Korematsu and agreed that revising the camps could be intolerable but implied that the travel ban is not the same. So today we're going to talk about how the courts are interpreting America's history of exclusion and how lawyers and scholars and activists are calling out these abuses of power and building solidarity across communities.
And today we are joined by Don Tamaki an attorney and partner at the law firm of Minami Tamaki LLP. Don served on the case that led to Fred Korematsu's exoneration on November 10th, 1983. Don is an East Bay native whose parents were incarcerated at the Tanforan Racetrack in the Bay Area and then at the Topaz Detention Center in Utah. Don helped found the Asian Law Alliance in San Jose, and he was executive director of the Asian Law Caucus in San Francisco and Don thank you so much for joining us.
Don Tamaki: Pleasure.
RA: We're also joined today by Leila Sayed-Taha, an immigration staff attorney at the Arab Resource and Organizing Center or AROC. For the past decade, Leila has been active on issues pertaining to women's empowerment, immigration civil liberties and national security. She's worked with refugee and immigrant communities in the Middle East, the UK, and the southwest side of Chicago, where she was previously based. Leila, thank you for joining us.
Leila Sayed-Taha: Thank you.
RA: And Bill Ong Hing is professor of law at the University of San Francisco and professor of law emeritus at UC Davis. Bill teaches immigration policy, rebellious lawyering—I really like that title— evidence and directs the USF immigration and deportation defense clinics. He's written a number of books including his most recent American Presidents: Deportations and Human Rights Violations from Carter to Trump. Both of Bill’s parents were detained on Angel Island upon entering the United States in the early 20th century. Thank you so much for joining us Bill.
Bill Ong Hing: Thank you.
Expressions of Solidarity
RA: This moment that we're in right now, I think one of the themes that has really come out of all of these shows is people specifically who are connected to and impacted by Japanese American internment said that, no one stood up for us. Although the Quakers did express solidarity with people who were interned. And they say it is our responsibility to stand up for whether it's Muslims or Central American immigrants and that has been a very strong theme throughout the shows. What are your thoughts on that, Don?
DT: Well, you don't have to convince Japanese Americans that national security claims unchecked can be a civil liberties disaster. That our community has experienced this. My family was incarcerated here at, you know, horse stall in Tanforan San Bruno — a shopping center now, but it used to be a racetrack. They surrounded it with barbed wire put machine gun towers over it, and about 8,000 Bay Area Japanese Americans were housed there, incarcerated there until 10 more permanent American-style concentration camps were being constructed from California to Arkansas.
So by the end of 1942, you had almost 120,000 Japanese Americans who lost their businesses. They lost their property. They did not have their jobs and for some that even lost their lives. When these challenges that you mentioned Rose came up Fred Korematsu in particular, the court had an opportunity to ask the government, you know, is there a reasonable basis for locking these people up? The Army claims that Japanese Americans are spying for Tokyo. “What is the proof of that,” the court could have asked. But instead because the government invoked national security the court stood down, the court abdicated its traditional role of asking probing questions. In essence the court took the position that if the government tells us that these people are dangerous, that these people must be locked up, then we believe the government.
That is the everlasting shame of that case and that's the problem with history repeating itself today particularly in the travel ban Trump vs. Hawaii that I'm sure Leila and Bill will expand on.
RA: Bill, what would you add when it comes to the solidarity that you're seeing around these issues?
BH: What I'm most appreciative of is in the litigation that's challenged, not just the Muslim ban, but also many of the the atrocious policies of the Trump Administration dealing with other types of detention, for example — the detention of families and the detention of children — that the Japanese American communities actually stepped up and voiced its support for immigrants and for Muslims asking that history not repeat itself. What keeps me and many of my friends and allies motivated is the fact that there's a broad base of support in the immigrant rights community that includes folks that aren't traditionally immigrant rights people, such as Don.
RA: Leila, I was just thinking about how incredible it was to see so many people just flock to airports when we learned about the travel ban. What are your thoughts about the solidarity around these issues?
LST: I think the solidarity piece is essential. What we're talking about, I mean, we're obviously attorneys and legal scholars, so we're talking about the methods in which we utilize the law to overcome these types of atrocities, but the fact of the matter is as we've seen Korematsu and Trump vs. Hawaii, the law isn't the solution in and of itself and we rely on that solidarity piece — the grassroots organizers, the lived experiences of people — to really address these issues.
RA: And given the travel ban, the Supreme Court upheld that ban last June. Given that, what can people do about this travel ban, I mean especially activists in this country?
LST: There's different ways to approach this. There's a level of awareness right? I think there's a lot of people that don't even realize the Muslim ban is still in effect and how that relates to U.S. foreign policy. What's going on in Syria? What's going on in Yemen? But also realizing that especially in a diverse area as the Bay Area, you probably know someone that is directly impacted by the ban. And there is this issue of when we're talking about national security, when we're talking about this type of balancing act the executives is supposedly trying to play when it comes to these issues, it's about humanizing these stories and it's about really understanding the human element that's lost in the rhetoric regarding national security and threats of terrorism and understanding really the human cost.
Weaponizing National Security
RA: Since you brought up national security, can we talk a little bit about this because after 9/11 the U.S. government created the Department of Homeland Security (DHS) which absorbed 22 other agencies. This is according to a 2018 report from Splinter, immigration which had been under the Department of Justice and Customs part of the Treasury Department were completely reshaped under the Department of Homeland Security. Can you just talk about the effects of shifting all of these departments under DHS and how huge that has become?
LST: The national security issue in general is really interesting and this type of funding that's going on. You have the CVE [Countering Violent Extremism] programs which were actually adopted based on these anti-counterterrorism programs in the UK called Prevent. And the idea was the U.S. Government goes into the community — the Department of Homeland Security — goes into the community, reaches out to mosques, local schools, social workers and basically gives them a checklist of things they should watch out for in the community regarding perspective terrorists. So they even have like, I believe regulations on how to figure out whether a six-year-old might, you know, have terrorists parents based on what they might say at school or what kind of pictures they might draw.
There's a lot of money in this. But effectively what you're doing is paying people to snitch on their fellow community members. It's more about creating opportunities of further criminalization and surveillance within these communities and I mean within immigration law just last week, it came out in The New York Times that now in order to apply for a U.S. Visa, you have to disclose five years worth of social media. And this has been something we've been seeing kind of I think being experimented a bit with within the context of the ban. There are clients that are getting these types of forms in which they have to disclose this social media. We saw that in the past year, but it wasn't really a formal regulation until it came out in the media last week that that was formalized.
RA: Bill, you testified against folding immigration into the Department of Homeland Security back in 2002.
BH: I did. And the reason I did that was because back then there was the Immigration and Naturalization Service (INS) that was part of the Department of Justice (DOJ) and the service part of INS was actually taken seriously that there was a clear bifurcation between providing benefits, having Visa applications, and that was done. We didn't always like the way it was done. But those folks who worked in the service part knew that's what they were there for. After the creation of DHS and INS got folded in and taken away from the Department of Justice and put into the DHS. A couple of things happened: One the service part, which is now part of what's called CIS Citizenship and Immigration Services, it has to be self-funded. They fund themselves through filing fees. The government actually doesn't appropriate money for the service part. That's a problem. And the other thing is that once it's labeled Homeland Security everything's viewed through the lens of, as you said, national security. And so the way that gets manifested is even early on right after DHS was formed, what we predicted occurred. Everything got delayed. Every application was slowed down: naturalization, a petition for a spouse, to petition for a parent, that all got slowed down.
It started getting sped up a little bit more under the Obama Administration, but now Trump has learned the lesson after the Trump v. Hawaii case — the Muslim Ban case — he's learned. If you pay attention to what he does every announcement he makes he says, “There's a national security problem.” And the reason he does that is because the court deferred once again, even though they paid lip service to saying that the Korematsu case really shouldn't be valued anymore. They followed Korematsu and they blindly agreed with the Trump Administration that yeah, this is a national security problem and part of the evidence was that North Korea and Venezuela were added. And he was smart to do that because the first iteration of the travel ban did not have those countries and let's face it, this is very much Mr. Trump trying to slow down the entry of people of color into the United States.
RA: What would you add Don?
DT: What we're witnessing is a shift in the culture and an attempt to redefine what it is to be an American. So whether that's you know, 600 tiki torch-marching folks saying, “Jews will not replace us;” or Mexicans as being drug dealers and rapists, Haitians all have AIDS, Nigerians would never go back to their “huts in Africa” from Trump. This is what we're facing and if we get to a point where the alternative facts matter more than the real ones then this is how dictators get started and I wasn't alive during the rise of Nazi Germany or any of these other dictatorships having grown up in America, but I would suspect that's how the process begins. And before you know it you lose your country.
So I think we are witnessing this and it serves unscrupulous people well because dictators and demagogues have done this for time immemorial and that is through misdirection they gain political clout in order to achieve policy objectives and remain in power. So as we see the march toward the 2020 elections, we have a lot to be worried about there for that reason.
The Effects on Immigration Policy as Lower Federal Courts Move Right
RA: I was thinking about checks and balances and how so many organizations and people like you take cases to courts to right the wrongs. But what happens when you have a Supreme Court that we have now and this administration — which this is not getting as much attention as it deserves — is appointing very extreme right wing lifetime judges to the lower courts? And these are courts that get more cases than the Supreme Court.
BH: That's just so unfortunately a great point, that President Trump is remaking the Federal Judiciary right now. What's interesting is that in the last couple of years the first round of these cases — a lot of them which have been filed here in the Northern District of California for strategical reasons — have gone on behalf of the immigrants. But you're right, our fear is when you get to the Supreme Court, what's going to happen? Anywhere from not just a travel ban, but the termination of Temporary Protected Status, termination of DACA [Deferred Action for Childhood Arrivals], recently the remain in Mexico policy, the threat to shift money from military efforts to the wall. The challenge is going to be what's going to happen when this gets to the court and I fear because of the “national security claim,” I don't have confidence in the Supreme Court, Rose. And what it means is Don's point is ever more important. In the end this is going to end up being a political battle. And if the White House has lost again to Donald Trump, the map and the face of the Federal Judiciary, we will see Kavanaughs throughout the country, including here in Northern California where there are a couple of openings and then throughout the Ninth Circuit, the Court of Appeals, there are several openings.
Temporary Protected Status for many immigrants at threat under Trump
RA: I was working on a story about refugees from Liberia and Somalia. And a lot of refugees from Africa are not included in a lot of the conversations that we're having and Liberian refugees who fled the Civil War some of these people have lived here for 25 years. They have homes. They have lives. They have children and under the George W. Bush and Obama Administrations, they had to go to the office and get new papers once a year. But under this administration, they basically said no more – and they've got a deadline. I think it's next March, right? It's feels like every week there's something new. What is this administration's end game do you think?
DT: I think it's political currency. And that's one way to rally your base and continue to remain in control and in power and it’s really up to the rest of us to recognize that we're looking at a cultural shift and to start to speak out before the country slips away. But I think once that cultural shift finds its way into policy, into judicial appointments then you're looking at generational change in terms of how traditionally America's been looked at, you know, like the inscription of the Statue of Liberty says, “give me your poor, your tired, your hungry.” [The direct quote is: “Give me your tired, your poor, your huddled masses yearning to breathe free.] It doesn't say, “Give me your people from Norway.”
RA: Well and so for listeners who aren't aware of this, I mean, I'm I just learned a little bit more about Liberians doing this story, so for 20 years, they have Temporary Protected Status (TPS). They did not have U.S. citizenship. Twenty years living here and no citizenship and they renewed it every year. Of course, they'd rather have citizenship, but they renew it and it's pretty low-key and all of a sudden this administration comes out and says, “That's it. The program's done. We're going to give Congress one year to figure this out. If not, Bye-bye. You have to go back to Liberia.”
BH: Incidentally that's why the House of Representatives earlier this month did pass this law, which is not unfortunately going to get anywhere in the Senate which would grant a pathway to citizenship for Dreamers and for Temporary Protected Status. But a lot of your listeners may not be familiar with Temporary Protected Status because it covered up to 10 different countries including Haiti and El Salvador and others were kind of the big countries. Many listeners understand the Dreamers, DACA — the Deferred Action for Childhood Arrivals — that it covered up to about 800,000. So that's a lot, but there were also several hundred thousand people that were protected by Temporary Protected Status, people that fled parts of the world kind of different humanitarian reasons and DACA, if it ever ends, they will lose their employment status over a period of time because each one has a two-year rolling period, whereas the TPS holders if they get terminated, several hundred thousand people are going to lose their status overnight rather than on a rolling basis.
DT: They’ll be deported.
BH: And they'll be subject to deportation. Absolutely.
The Rippling Effects of the Travel Ban Targeting Majority Muslim Countries
RA: I wanted to ask you more Leila about the travel ban because the details of the ban are not covered on a regular basis. I mean if you look for the coverage you can find it but you have some interesting stories especially about Yemenis... I mean we've done shows about just the tragedy in Yemen and what's happening there. And I understand that there are people in Yemen whose entire family is in the United States, but they still cannot get here.
LST: We have several cases of community members here in the Bay Area here in San Francisco, actually U.S. citizens, people with pending immigration status that have young children, that have elderly family members, that are currently stuck in Yemen — one of the largest humanitarian crises right now. Obviously the U.S. is also directly contributing to that furthering that crisis and simultaneously banning people from seeking refuge in this country. So the U.S. creates the conditions and then prevents people from fleeing them.
The latest status, I believe approval rate for waivers, basically, so, if you are from one of those countries and you want to apply for a Visa — being an immigrant or non-immigrant, you have to basically convey to the U.S. government that the denial of the Visa would cause undue hardship, particularly to the U.S. citizen petitioner. And so the idea was well, you know, in really like tear-jerking type of cases the U.S. government would be like that's fine the ban isn't applied for you, but in practice obviously we're seeing it's a very haphazard approach. The latest stat is like six percent I think of last month, but it includes people who convey to the U.S. government that actually the ban doesn't even apply to us whether it be because they’re dual citizens or ...they were mistakenly considered to be of particular citizenship. So it's not even that we have six percent of waivers being approved. It’s just 6% of people from these particular countries that are applying are being approved to come in.
RT: In these shows we've talked about how hard it was for people who were detained in Japanese internment camps when the camps closed, how hard it was to rebuild their lives after losing everything. And I just wonder, Bill, I mean your parents were detained on Angel Island upon entering the United States in the early 20th century. How did this country get past that? How did we get to a place where people said, “You know what that was wrong and that cannot happen again?”
BH: Well Rose, I'm not sure we have got past that but I understand your question and from what I know and Don obviously knows this better of the Japanese who left the internment camps and people like my parents who finally made it out of Angel Island. They, in many cases, they put it behind them. And I know many Japanese Americans who were interned actually didn’t love talking about that with their children. There's this well-known story and Don knew Fred Korematsu better than I do. Fred never talked to his family and his daughter Karen Korematsu didn't find out until she was in high school and she read about this Korematsu case in a high school textbook and went home and asked her father and he said, yeah this is that was me.
The same is in my opinion is true about the Chinese who went through Angel Island. I don't think that the racism that Asian Americans, we don't talk a whole lot about it, but it was there and it continues. People put their nose to the grindstone and I hate stereotyping in generalizing Asian Americans in that manner, but many of them did put their nose to the grindstone and just did what they did. In my case, it was parents —it's not atypical story — running a small grocery store in the middle of nowhere in Arizona. And so and just working for their children. And I know that that's what most immigrants do today.
It's not a new story what immigrants do today and unlike who Donald Trump apparently would have when he announced that near the end of May what his vision of immigration system would be which is people who have big degrees and speak English that isn't the story of America. The story of America: Yeah, there's a part now called Silicon Valley, but the rest of the America and what happened, it’s about working class immigrants that came; refugees that came of all different sizes shapes and stripes and they built this country.
RA: Bill Ong Hing is professor of law at the University of San Francisco and professor of law emeritus at UC Davis. He teaches immigration policy, rebellious lawyering evidence and directs the USF immigration and deportation defense clinic. He is the author of several books including his most recent, American Presidents: Deportations and Human Rights Violations from Carter to Trump. Both of Bill’s parents were detained on Angel Island upon entering the United States in the early 20th century.
We're also joined today by Leila Sayed-Taha, an immigration staff attorney at the Arab Resource and Organizing Center. For the past decade Leila has been active on issues pertaining to women's empowerment immigration civil liberties and national security.
And Don Tamaki is an attorney and a partner at the law firm of Minami Tamaki. Don served on the case that led to Fred Korematsu's exoneration on November 10th, 1983. Don is an East Bay native whose parents were incarcerated at the Tanforan Racetrack in the Bay Area and at the Topaz Detention Center in Utah. And this is a live taping of Your Call. We are here at the Stage Werx Theatre in San Francisco. And this show is part of our series called HEAR: Histories of Exclusion and Resistance. This is Your Call and we'll be back after this.
This is a special live taping of Your Call. I'm Rose Aguilar. We are here at the Stage Werx Theatre in San Francisco. Today's show is part of our ongoing series HEAR: Histories of Exclusion and Resistance. Over the past few months, we have done live shows exploring the connections between the forced removal and imprisonment of more than 110,000 Japanese Americans during World War II and other U.S. policies that violate civil rights.
And today we are joined by Bill Ong Hing, professor of law at the University of San Francisco and professor of law emeritus at UC Davis. Leila Sayed-Taha is an immigration staff attorney at the Arab Resource and Organizing Center. And Don Tamaki is an attorney and a partner at the law firm of Minami Tamaki LLP.
Justice Department’s Intentional Falsehoods and Fabrications
Don, one of the other themes in the shows with Japanese Americans whose relatives were interned: I think almost all of them said that their families never talked about it. In fact, one of our guests Norm Ishimoto shared his story on stage for the first time ever. Did your parents talk about what they went through?
DT: No, I think it was similar to Fred Korematsu and other Japanese Americans and probably similar to any families that have gone through trauma. They, you know, they don't talk about it and when the camps closed this is the last inmates — I'll call them —left the camps months after the war ended — after they closed — they were left with the prospect of returning to the very communities that exiled them in the first place.
And remember the rounding up of Japanese Americans was overwhelmingly popular. The newspapers, the media were behind it. Politicians built their careers including Earl Warren, who was then Attorney General of California running for governor on the slogan the “Japs Must Go” later becoming the terrific Chief Justice on the U.S. Supreme Court leading Brown vs. Board of Education which ended segregation in America essentially. But his past was that. The under Secretary of War John J. McCloy who really was one of the architects of this rounding up process later became an advisor to seven presidents and president of the World Bank. So there were many people that benefited greatly from this civil liberties catastrophe. And they didn't talk about it, you know. So Japanese Americans were left with the prospect of getting on with their lives.
I'll tell you a personal story for both Fred and my family, after quite by accident 37 years later, researchers Peter Irons and Aiko Yoshinaga accidentally found secret wartime justice department memoranda reports from the FBI, the Federal Communications, the Office of Naval Intelligence — every intelligence agency having any jurisdiction over Japanese Americans and national security. Reported that what the Army was claiming and … about to argue before the U.S. Supreme Court were “intentional falsehoods and fabrications,” and there were memos going back and forth between Justice Department lawyers saying, “We're about to lie to the U.S. Supreme Court that there was a reason to round these people up, we ought not to be doing that.” And it occurs to me this was Edward Ennis writing — he's the guy responsible for supervising the government's brief defending the government's program in the Korematsu case — he writes to the Attorney General of the United States and the Solicitor General of the United States, Charles Fahey, and he says, “If we don't disclose what our own intelligence agencies are saying, it occurs to me that this approximates the suppression of evidence.” And ultimately what they tried to do is insert a footnote in the Korematsu brief essentially saying that the intelligence agencies have all contradicted what the Army is claiming that Japanese Americans have engaged in spying. And as I said, the Justice Department memos just said these are “intentional falsehoods.”
And the War Department found out about the footnote, they literally ordered it removed and it was revised to basically say the reports corroborated the Army's claims. And then for the next 37 years people kept their mouths shut. And when I brought these documents home — we were preparing almost a year in secret because we were still looking for archive documents that might be further evidence of the government misconduct — and showed them to my parents, then they started talking about that. And Fred Korematsu the same, he was very reluctant to reopen his case because when we met with him, the last time that happened it was, the headlines read “Jap Spy Arrested in San Leandro.” And he was imprisoned here in the Presidio in a stockade before ending up in Tanforan Racetrack on a horse stall with my parents’ family and 8,000 others. And then he also ended up in Topaz in the desert camp there. And so when he thumbed through these reports, he was a man of few words, but he said “They done me a great wrong.” Well, those few words spoke for an entire generation of people, entire racial population.
And on that basis, of course even almost 40 years later we have the bases of reopening at least their criminal convictions. We couldn't overturn their Supreme Court cases, but we wiped out their criminal convictions, but the factual underpinnings on which this terrible Supreme Court precedent rested were revealed as a foundation of fraud and fabrication.
I want to reiterate however what Bill said in the Trump vs. Hawaii travel ban Justice Roberts said, you know that Korematsu case, it was gravely wrong from the day it was decided. It has no place under law in the Constitution. But in the same breath he said, it has nothing to do with Trump's travel ban and basically the court chose to ignore Trump's obvious bigotry and accepted the explanation that this made the country safer no matter the underlying reality. And in essence on the one hand saying that Korematsu case was a bad thing, but on the other hand, basically imported the most dangerous aspect of Korematsu vs. the United States into a new vessel Trump vs. Hawaii. And what was the most dangerous aspect the fact that as a co-equal branch of government, the court is not going to be a check and balance on the unbridled exercise of executive power and when the court just rolls over and surrenders that's not good for democracy and it doesn't bode well for all these cases that are coming up now on the census case, the TPS cases involving immigration. What is the court going to do? Is by invoking national emergency is the court going to simply say we'll take your word for it? We're not going to question you. We're not going to look to whether this is motivated by racism and bigotry. That's a problem in a democracy. And that's why the Japanese American incarceration is so directly connected to what's happening now.
Don Tamaki’s Work on Fred Korematsu Case
RA: What was it like for you to work on that case?
DT: It's been downhill ever since. I was 6 or 7 years out of law school. Of course, we knew that the Japanese American incarceration was bad. We grew up with it. We grew up in the shadow of it. We never dreamed we'd actually have something to say about it. And can you imagine something that all of our families in our community faced and I'm looking at Justice Department memorandum being sent to the highest levels of government — the Attorney General Francis Biddle, the Solicitor General Charles Fahey —and basically saying I'm attaching the Federal Communications report, which says we've investigated every single claim of Japanese Americans signaling enemy ships from shore and none of it is true. J. Edgar Hoover writing we've looked into every single claim and nothing has occurred since the beginning of the war.
And this is basically the reason why 120,000 people lost their freedom and their property and so to be able to have some say about that was important, I guess on three levels. One, we wanted to reverse their criminal convictions. We wanted to validate their stance: Fred Korematsu, Gordon Hirabayashi, and Min Yasuiwho defied the orders. Secondly, we wanted to vindicate our own families. I think this was a real personal thing. But thirdly this is a real American issue. How do we know that? It's repeating itself now. That's how we know. And so the fact that we really need to and I’m so pleased about the show because it educates the public that yes, history is repeating itself and it's dangerous.
History Dangerously Repeating Itself
RA: And I think it's important to talk about those connections because the first show that we did, I remember getting a listener question and he said, how are you making connections between Japanese internment and the kids who are separated from their families at the border?
BH: Well to me Rose the direct correlation is that whether or not we are going to accept the executives explanation for why it does what it does and the argument that they need to detain children who are unaccompanied for national security reasons is of course insane because we know that there are systems available for sending these children to other relatives that are here, other family members, friends, neighbors and there are foster parents that are interested. The fact that we need to separate children from their parents under a zero tolerance policy where we're prosecuting the parents for illegal entry, which is something we didn't do to this scale before —again, accepting that explanation. And then finally a family detention in places like Texas to a scale that's never existed before, if we're going to accept that explanation the way the explanation was accepted in the Korematsu case without really pressing the Executive Branch on what its rationale and what's what's the evidence? What's the need for this instead of deferring? Then we're in deep trouble. And I fear that the Trump Administration is getting away with this.
DT: I would add one more thing to what Bill just said. When these travel bans went to the lower courts. In the Maryland District Court, Judge Theodore Chuang asked the solicitor general, “What is this based upon? Does this really make the country safer or is this instead the fulfillment of a campaign promise?” The solicitor general said, “It's based on a global Homeland Security report, extensive report and so on.” And the court says, “May I see it?” And the government's answer was, “No it's confidential.” And so echoes of Korematsu vs. United States.
The parallels are quite disturbing, you know, both the Korematsu case and the travel ban case Trump vs. Hawaii, both arose out of war both involve the government invoking national security in order to shield its decisions from any judicial scrutiny where the court just abdicates and stands down. Both involve overtly prejudicial statements expressed by high officials against a targeted minority, both involve hidden government reports, which the government refused to disclose, and both ended with the court basically accepting the government's word for it: That this makes the country safer when in fact it's really the fulfillment of a campaign promise. I think racist and anti-Islamic policies.
RA: That is Don Tamaki, an attorney and a partner at the law firm of Minami Tamaki LLP. We're also joined by Bill Ong Hing, a professor of law at the University of San Francisco and professor of law emeritus at UC Davis, and Leila Sayed-Taha, an immigration staff attorney at the are Resource and Organizing Center and this is a special live taping of Your Call recorded at the Stageworks Theatre here in San Francisco. This is part of our series HEAR: Histories of Exclusion and Resistance and we're here in front of a live audience. So if any of you have any questions or comments, please take the microphone. And if you can say your name and your question, please.
Avenues for Change
Pete: Thank you. My name is Pete and I live in Oakland. Huge supporter of AROC and all the incredible work you do. Thank you all for really great discussion. Quick question: What do you all see as legal avenues to fight back at any level? I'm an organizer. I know that we need to do a hell of a lot more than sue and fight in court rooms. We need to change minds and change power but I’d also love to hear as you see it. And I’d also love to hear about ...as folks were interned, that you've talked eloquently about the loss of wealth and that and the stripping of placement in community and houses, businesses, so on and so forth. I'm wondering if there is a legal avenue towards reparations in some way towards the Japanese people who were interned. Thank you.
DT: Well, maybe I'll answer that real quickly.In the late 1980s under the Reagan Administration interestingly enough there was a movement that began actually 10 years earlier for redress in reparations for Japanese Americans. And it started out as an idea that gained momentum and by the time the Korematsu legal team uncovered the evidence of government misconduct that the government knew that there was no reason to do this to these people and they knew it at the time. They knew it at the time. I think there was a lot of goodwill on both sides of the aisle to pass that legislation granting $20,000 for each surviving camp member —camp survivor. So if you passed away your estate would not be eligible. But you know the losses that they faced far exceeded $20,000. But the thinking was — and I think this is right — that unless there’s some money behind it doesn't mean anything. The president did issue a formal apology. And so that did happen. As far as your other part of your question, maybe I'll defer to Leila or Bill.
BH: What legal challenges? I think that was part of your question mostly led by ACLU. I do want to tip my hat to them because they've lead most of the important litigation. The prayer is that you draw a sympathetic judge and that judge rules in your favor. And it doesn't go much beyond that. And for example recently the Supreme Court rejected an expedited request to hear the DACA case, the DACA termination case… because four Courts of Appeal have ruled that Trump did not properly terminate DACA. And the hope in immigrant rights community is that it stops there that for some reason because there's not a conflict in the different Circuits that —and it is a hope and a prayer —that the Supreme Court actually will not take the DACA case. But that's what we're relying on and if the court actually decides to take because it’s an important issue which they have the right to do, then I worry.
RA: Leila, what would you add? What are the best ways to fight back?
LST: ... I know there's a number of bills on the Senate and Congressional floors regarding the repealing of the Muslim ban ...and the idea that we don't want any type of ban based on religion or national or ethnic origin to ever exist in the future. There's another I believe bill regarding the idea this whole idea of appropriation of funds, that funds should not be appropriated to help enact or to help keep the ban going. And yeah, there's a couple of...I think in Maryland yesterday or last week...there was a federal judge that allowed a case to go forward regarding the ban trying to really hone in on the constitutionality elements, which really the Supreme Court didn't want to really touch. So that's basically what I'm aware of.
BH: I would say the answer just to, you know, tag along on that is political. It’s not necessarily legal. And you know 2016 what was like one of the lowest voter turnouts ever —Like 51 percent and the election was decided essentially by 70,000 votes in three electorally important states. People if they don't like what's going on really have to be active. I don't have to convince anyone listening to this but pay attention to what's going on because I think it is… we've not seen this except Japanese Americans have witnessed a lot of the consequences.
RA: Thanks for the question. Hi.
Rich: Hi, my name is Rich. You know, I've always been fascinated and intrigued by American history. I'm kind of a student of history and one of the things that I've always found so interesting and somewhat unique about the United States of America is that there's, as with any country, there's many great things about this country. I think anybody in this room could list off just tremendous things about the United States of America, but there's also a lot of awful things about this country that in many respects, this whole experiment that we call the United States was built on racism from native genocide to black slavery. What I find very interesting is when I talk to folks that I know that are moderately conservative — I don't really have any extreme conservatives in my personal life — but when I talk to them, I find that it's really difficult to have these conversations. It's easier to have the conversations about the greatness of America. It's much more difficult to talk about the mistakes we've made in this country and how it is it country in many respects that is built on racism and it's clearly still manifesting today. How do we talk about this issue of: Yes, it's great to celebrate how great we are, but we also need to talk about what we've done, and what we're doing now that's terrible, if we're to become a better people, if we were to become, you know, a more perfect union to use that phrase?
DT: Well again through the lens of Japanese American community initially people did not want to talk about it, but then we realized I think community in general realized if we don't talk about it, we don't move forward. We don't get better as a country. And so that was part of that whole movement where people you know began to tell their stories of what happened. And so I think that's an effective way of going forward.
And you know, we talk about Japanese Americans, but it's really is an American story. And triumphant in some ways, you know, you have people who were victimized but then basically shined a light on it in order that it would never happen to any other people ever again. And I think … there’s plenty of opportunities to do that. I know, you know Bill raises this issue a lot through the six children died in ICE custody and the first child was big news, by the time the sixth child died, hardly anybody knew about that. Is that the country we want? And again do we let others define our circumstances or we do we define our own circumstances? So it requires each of us to rethink in big and small ways what we're going to do going forward, especially now.
BH: Yeah, I really think the storytelling is the key. We can throw out as much data as you want but it kind of goes in one ear and out the other in my experience. Maybe that's the way I teach, but the truth is that these conversations are very difficult. It's like talking about racism and which partly this is. But I really do think that — I'm thinking of experiences I've had for example speaking at library groups, where I think that I may be deluding myself — where a description of something that has happened to an individual actually affects one or two people in the audience and they come up and tell me. And I kind of declare victory at that point because if I can influence the changing of a mind or an opening of a mind of one or two people in an audience of 30, it was worth it for me that night. And but you're right. I think that's the question is right. Other people don't want to listen and they don't want to hear and you move on and you keep on trying but I think the stories are the key.
LST: No, absolutely. I agree. I think the type of moderates you're discussing I think you know, it goes down to a sense of, you know, it messes with our sense of self. It messes with our sense of identity. I think it would be really, it's a lot more comfortable to think of America as the way you described, you know, this a land of opportunity that does all these great things and not think about the very fact that this country's racist — the way it was created was founded on slavery and genocide. I think really and being able to really open that up to people, break that open in a way in which you don't necessarily guilt them into realizing we're all accountable, we all have a role to play, but really using this level of empathy and humanizing on that level rather than this political grandstanding. I think that really transcends the dynamics this type of administration is trying to create within this country politically.
RA: Thank you for the question. I want to thank all of you for joining us tonight. Leila Sayed-Taha is immigration staff attorney at the Arab Resource and Organizing Center, Bill Ong Hing is professor of law at the University of San Francisco and professor of law emeritus at UC Davis. And Don Tamaki is attorney and partner at the law firm of Minami Tamaki. Thank you all so much for joining us.
This is a special live taping of Your Call. We are at the Stage Werx Theatre in San Francisco. This series HEAR: Histories of Exclusion and Resistance is made possible by the California State Libraries, California Civil Liberties Public Education Program. Special thanks to Ty Mckenzie and the Stage Werx Theatre. Thanks also to everyone who helped bring the show together Laura Flynn, Laura Wenus, Phil Surkis, Lea Ceasrine, and photographer John Orvis. Your Call is a production of KALW public radio in San Francisco, and thank you all for joining us. I'm Rose Aguilar, it's Your Call.
Rose Aguilar, host
Laura Wenus, producer
Laura Flynn, project producer
Phil Surkis, assistant producer
HEAR is made possible by funding from the California State Library's California Civil Liberties Public Education Program.