In the government's response to a petition from Ammar al Baluchi, a prisoner at Guantanamo Bay and suspect from the 9/11 attack, the government apparently quoted from the Hirabayashi supreme court decision as basis for refusing Baluchi’s petition to show his artwork. A press statement from Baluchi’s lawyer dated May 11notes “Astonishingly, the only case cited by the government in support of the ban on detainee artwork was Hirabayashi v. United States (1943), one of the cases accompanying the infamous Korematsu case at the United States Supreme Court.”
Mr. al Baluchi’s lawyer’s statement seems to have garnered some media coverage for its relevance to the art world. While the JACL takes no position on the issue of whether Mr. Baluchi should be allowed to showcase his artwork, the government’s apparent use of the Hirabayashi case as the basis for its legal argument, which has much more significance to our nation’s understanding of our civil and individual rights has not received the appropriate attention nor the denouncement it deserves.
There is near consensus that the Hirabayashi, Yasui, and Korematsu cases are among the greatest failures of our Supreme Court to uphold the constitution. In a dissent 18 years ago, the late Justice Scalia cited the Korematsu and Dred Scott decisions together as penultimate examples of failures of the court to protect individuals rights.
JACL President, Gary Mayeda notes “That the government has resorted to using the Hirabayashi case as precedent is astonishing. These government lawyers have sworn to uphold the Constitution, and yet they quote from a case that tore the Constitution to shreds.”
Although the Hirabayashi, Yasui, and Korematsu cases were overturned through writs of coram nobis in the 1980’s, the cases remain intact at the Supreme Court level. JACL submitted an amicus brief in the case of the Muslim travel ban drawing a direct parallel between the racism that led to the Japanese American incarceration and the religious intolerance that appears to guide the current Muslim Travel ban. The Supreme Court now has an opportunity to reject the misguided rulings of Hirabayashi, Yasui, and Korematsu and strike down the equally misguided Muslim travel ban. Perhaps only then will there be no doubt that the Hirabayashi, Yasui, and Korematsu cases are not to be used as legal precedent.