In the letter, ADC expressed serious concerns that if the interment cases are not repudiated as existing authority, these cases may be used to justify the detention of Arabs and Arab Americans without due process of law. This is a grave concern for ADC as NDAA enforcement and the detention of alleged terrorist supporters are disproportionately made against Arabs and Arab Americans. The NDAA §1021(e) calls into question the level of due process owed to an American citizen who is merely under suspicion of providing ‘substantial support’ to terrorist organizations.
ADC stated, “The Office of the Solicitor General should make clear that the internment cases cannot be used as valid precedent for the U.S. government or military detention of American citizens without due process under NDAA §1021(e).”
The United States Supreme Court upheld the indefinite detention of Japanese American citizens based on violations of military curfew and exclusion orders in the Karematsu, Gordon Hirabayashi, and Minoru Yasui cases of 1943 and 1944. However, these case convictions were based on laws that were clearly motivated by discrimination based on national origin, and thus violated the fundamental right to due process of these American citizens. In the 1980s, the internment cases were reconsidered after research revealed that the government had knowingly presented false charges of disloyalty and espionage. The convictions were set aside because of the egregiously fraud, but the cases were never officially overturned by the Supreme Court and held unconstitutional.
In the 2004 Hamdi v. Rumsfeld case, the Supreme Court of the United States called the Korematsu case a “cautionary tale” that should not be repeated. Further, on January 13, 2014, Minami Tamaki LLP and other legal teams which had previously worked on the internment cases petitioned the Solicitor General to call on the Supreme Court to overrule the interment cases and clarify that these cases are not valid precedent for government or military detention of American citizens.