JACL President Gary Mayeda took issue with the federal government for citing the Hirabayashi v. United States Supreme Court case in its support for its position on banning publicly sharing artwork by a Guantanamo Bay prisoner implicated in the 9/11 terrorist attack.
“That the government has resorted to using the [Gordon] 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.”
Attorneys for the prisoner, Ammar al Baluchi, issued a statement that reads: “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.”
In a statement, the JACL’s Washington, D.C., office said, “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.”
The JACL further stated: “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.”
Although the Hirabayashi, Yasui, and Korematsu cases were overturned through writs of coram nobis in the 1980s, the cases remain intact at the Supreme Court level. The JACL submitted an amicus brief in the case of the so-called Muslim travel ban, drawing a direct parallel between the racism that led to the Japanese American incarceration.
The JACL concluded: “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.”