[00:03:28] Host: As you're studying law and looking at this case and thinking about your family's experience and starting to see the holes in the government's argument, did this influence the direction that your law study followed?

[00:03:47] Minami: That is an excellent question because I never thought it did. As I look back, these types of injustices were compartmentalized in my brain, just like watching the civil rights movement unfold on television because I'm that old, watching African Americans being blown away by water cannons, being bitten by dogs. All of that formulated a sense of values, I think, in my mind about injustice, about race discrimination. Yes, I did think about those things, but I didn't put all the pieces together till much later. When I was at Berkeley, the Third World Strike happened. The discussion of the narrative that was being promoted was not about marginalized people, not about our history as Japanese Americans or even African Americans, hardly Latinx. As a result, I felt like I was missing something. Yet, I had this emotional reservoir of-- It was a perception that this is not a fair country, and this is a racist country. It started to come out more and more after the Third World Strike in 1969.

[00:05:07] Host: Did you see that with the power of the legal system, that this was your way to fight that perception? Not even the perception but the reality of what America was at the time and still is.

[00:05:23] Minami: I had the exact opposite response, that the legal system was ineffective and it was not built to support the rights, in many cases, of marginalized people of color. I saw that because of the decisions of Korematsu, Hirabayashi, and Yasui. I saw how Brown v. Board of Education made a monumental decision, but it didn't change the plight of African Americans all that much. I felt that the legal system was ineffectual. I've changed my mind since then, but I've seen that really political action is where you need to make change. Legal action can support that political action, can support change. That's how my evolution of my thinking politically and judicially occurred.

[00:06:23] Host: I'm going to get back to this point at the end. I want to go back to this, the Fred Korematsu case. When you were learning about it or as you found yourself involved, did it surprise you that more people didn't resist the Executive Order or seek to defend their constitutional rights in 1942?

[00:06:49] Minami: It did, but when I was in college, a lot of the newly developed leftist groups were criticizing Japanese Americans, were criticizing their parents for not fighting back. Of course, they were unaware of, or not giving enough credit to the army that was forcing them into prisons. My father said, "How were we going to resist? Were we going to fight with guns? We didn't have guns." Our group of leftist, more progressive folks, full of ignorance and indignation, felt that the older generation should have fought back more. I took a little more moderate view of that, understanding both what my father said and the historical situation where we were.

The Japanese American community was disorganized. The average age was 19 years old, of the leaders, and so in the end, there was not much that could be done. In a sense, I was less surprised than some of my colleagues about the resistance. When I read about Fred, and Gordon, and Yasui, I really felt that at least-- some of the folks in the Heart Mountain resistors, I really felt a number of people stood up and had the courage to fight the most powerful country in the world. That gave me hope and inspiration.

[00:08:23] Host: Do you think it would have made a difference if more people had resisted?

[00:08:29] Minami: Yes, it would have made a slight difference, but I don't think it would have mattered. What would have made a difference is if some of the liberal groups like the ACLU, or the National Lawyers Guild, or the NAACP, or anybody would have supported Japanese Americans. They did not. ACLU came in later. Before then, nobody had supported the Japanese Americans, so from a point of political power, we were left alone. We were isolated. We were a weakened, unsophisticated ethnic group. It was disappointing to see some of the major figures of the time not stand up for Japanese Americans, I think in large part because they didn't know who we were.

They were ignorant. That history of racism that stems from 1619, that river overflows, and the ignorance that is perpetrated through the narrative of history, dominated. A few people did stand up, but they were individuals. Paul Robeson, the famous African American activist. A number of other African Americans stood up, and a lot of Caucasians stood up, but they did not have the type of power, influence, or organization to fight back. John Steinbeck and his group in Monterey. There were some really famous people who criticized the government, but it's all about power, and they didn't have that type of power.

[00:10:08] Host: Yes. Wealth, I would imagine, too.

[00:10:12] Minami: Yes.

[00:10:14] Host: Let's go to Fred Korematsu. Tell us a little bit about his original famous case.

[00:10:21] Minami: Fred was an interesting man. The reason he was interesting is he was-- They called him an ordinary citizen, which he was. He didn't have any spectacular life before he was arrested. What he did have is a rock-solid belief that he was an American. He should be given his civil rights. He was a very stubborn man in a good way. I didn't meet Fred. I read his case in a book. I didn't know anything about him.

I had heard that he made one public appearance, but it was a disaster. He went to a class at UC Berkeley, and it was a disaster because the students asked him, "Why didn't Japanese Americans fight? Why didn't you resist like armed resistance?" It was discouraging to him.

[00:11:17] Host: Fred resisted the Executive Order 9066. When he made that decision, did-- I know you didn't meet him until later in his life, but was it a political or civil act of resistance on his part?

[00:11:37] Minami: I'm not sure it was either of those, which made it more interesting. Gordon was a professor, and he had this very, not complicated, but an idealism about giving up his rights as a citizen, a very intellectual rationale for why he has resisted. Min Yasui was a lawyer. He knew his rights under the constitution. He had a very sophisticated rationale for resisting. Fred did not. Fred had a girlfriend. Fred wanted to stay here. Fred was more basic and fundamental in a sense that he wasn't your every man. He wanted to be treated fairly. His motivation came from very deep inside, from a very elementary sense of right-

[00:12:28] Host: Humanistic.

[00:12:28] Minami: -or wrong. It was refreshing. That's when we'd all get together to give these talks around the country, and Gordon would go on and on in a 45-minute soundbites because he was a professor. Min was a firebrand. He's a wonderful oratorical speaker in the old school, pounding the table and yelling. Fred just said, "I just thought it was wrong."

His genuineness of his rationale and the deep belief he had that he should not be treated like other people, I think, resounded in many folks because he just expressed something so basic that it's hard to argue with.

[00:13:20] Host: Right. Was it Ernest Besig and that Northern California ACLU intervening and using him as this tool that politicized the whole thing for him?

[00:13:36] Minami: Right. Ernest Besig came in from the Northern California chapter and thought this was just wrong. He was a wonderful man. I knew him because he had not passed by then. He was just outraged that they would do something like this to the Constitution and to an individual like Fred. He took on the case. The national ACLU tried to expel him in the northern chapter because they were so pro-Roosevelt. That was true of nearly all the national organizations. Not one stood up, except for perhaps the socialist and some random Quaker organizations. Everyone else went along with the program because we and the United States were at war for the survival of this country as it was perceived. A lot of rationales were created, manufactured, narratives told that were not really true in order to make sure that the United States people were absolutely committed to winning this war against fascism.

[00:14:49] Host: After this verdict, Fred was sent to a prison camp. The weight of that verdict and his time in the camp, how did that impact or change the trajectory of his life after the war?

[00:15:09] Minami: Fred was astounded. We all say, "I'll take this to the Supreme Court. We'll get justice." Of course, that's not true now. At that time, there were a number of liberals on that court, and so you would have a chance, maybe. He was sent first to the horse stalls at Tanforan, where he did live with horse manure and very difficult conditions. Then he was taken to Topaz, Utah, one of another dismal nether reaches of the United States where not a lot of people lived. He handled it very well, I thought, except for the fact that his own people, Japanese Americans, had prevailed on him in a very powerful way. They said, "Stop it, Fred, don't take your case to the Supreme Court. You're just going to bring more shame on us. There's nothing you can do." This is where Fred's stubbornness and belief that he was right made him a very, very strong individual and willing to fight his own community because he felt that he was being wronged.

[00:16:24] Host: We're going to flash forward almost 40 years. Tell us about Peter Irons and Aiko Herzig-Yoshinaga and what they found.

[00:16:37] Minami: They found remarkable evidence that the United States government altered, suppressed, and destroyed evidence that was favorable to Japanese Americans in the Supreme Court deliberations. That evidence which would have proven that many government officials did not feel this was an appropriate reaction to the attack on Pearl Harbor, that Japanese Americans deserved constitutional rights because two-thirds of them were citizens in the United States. They tried to alert their superiors who were arguing in the Supreme Court and quoting, "We're telling intentional lies about espionage, about sabotage of Japanese Americans about their disloyalty."

All these documents were actually found by Peter Irons and Aiko Yoshinaga Herzig were suppressed, altered. In one case altered and destroyed. The lieutenant general in charge of the West Coast who issued the orders for exclusion, the banishment, had written the rationale for it, and the rationale said, "It's not a matter of time. We have plenty of time. It's just that," in a sense he was paraphrasing, "These people are inscrutable. We'll never be able to tell the loyal from the disloyal." When the supervisors in Washington, DC, the War Department saw this, they say, "We cannot argue. This is patently racist. The Supreme Court will not accept an argument like this." They forced the general to change the report 180 degrees to we had plenty of time, and we can't tell from these people because they're inscrutable to a simple rationale that there was just not enough time-

[00:18:31] Host: Right. Wow.

[00:18:32] Minami: -to separate loyal from the disloyal. All of that was found by Aiko Yoshinaga Herzig, so that the altered version was presented to the Supreme Court. The original 10 reports by General DeWitt that advanced that narrative of we had plenty of time were actually burned, and Peter found the certificate of burning that was done. For some reason, probably some bureaucrat in DC thought he would be famous if he kept the original copy, and he kept it. Aiko Yoshinaga saw it on his desk in the National Archives-

[00:19:14] Host: Wow.

[00:19:15] Minami: -and was able to use that as-- It became a central argument in the Hirabayashi case and important in the Korematsu case. Peter found all this other evidence that the attorneys were telling their superiors, "We're lying to the Supreme Court. The FBI and the Federal Communications Commission, they have refuted the allegations that Japanese Americans were committing espionage and sabotage. They're simply untrue." Yet, the solicitor-general ignored that evidence and instead told the Supreme Court exactly the opposite, "I stand by every single word, sentence, and paragraph in that report" which, of course, made the accusations of espionage and sabotage, which other people in the government knew were absolutely untrue.

[00:20:09] Host: Then there's this concept of coram nobis. My conversation with Don and with Peggy Nagae, we explained what this is, but this is not a common act, is it?

[00:20:32] Minami: No, it's not. It's rarely used. It's an ancient writ derived from the courts in England, basically about-- Like habeas corpus, coram nobis is the writ that allows you to revisit your conviction and try to overturn it if you can prove that there was significant misconduct that led to that conviction and you only recently discovered it. When Peter told us we were going to use this writ of coram nobis, all of us on the legal team we thought, "What the hell is that?" We went to what we call Black's Law Dictionary. We looked it up, found out that it was a second cousin or first cousin to habeas corpus.

It was largely unknown, rarely used, and when we filed our case in Northern District of California, the clerk didn't know how to file it. He called in the chief clerk who came in, and he said, "Wow, I haven't seen one of these in 30 years." The interesting thing, part I felt, was that it's not strictly a criminal case. It could be filed as a civil case. The clerk asked me, "How would you like this filed?" I said, "It's a civil case." He filed it as such, and the civil case gives you so much more access to information, documents, depositions than a criminal case does.

[00:22:03] Host: You were reached out to to take the helm of Fred's case but also manage both Gordon Hirabayashi and Min Yasui's as well, correct?

[00:22:18] Minami: Correct. They called the coordinating attorney because Gordon had his attorney, Kathryn Bannai, already in Washington. He had selected her. They knew each other. Peggy Nagae was the only Japanese American attorney I knew in Portland in Oregon, which was fortuitous because she was doing civil rights work. To Peter's credit, this has to be told because Peter said, "I really feel that we should have Japanese Americans lead this monumental case. I've talked to people, and you're the only one who's done these impact large cases on the West Coast, or almost anywhere."

Because I had brought a lot of cases against the government, against San Francisco police, against California Blue Shield, and I just had the arrogance of youth, I guess, or the foolishness, I'm not sure. I got selected to lead the initial foray into a litigation, and then I got to be Fred Korematsu's lead counsel. Partly, it was I had more experience than any of the other people who were actually brilliant lawyers, but not the federal court experience or the civil rights experience. Plus, Fred and I-- Excuse me. Actually, Fred too, but Peter and I, we loved to drink beer then, and so we bonded over alcohol, which was not a very good story to tell. We actually did get along really well.

[00:23:59] Host: You get to see all this evidence that Aiko and Peter have discovered. Did it just seem like this is going to be a slam dunk, and we've got this in the bag, or was there an element of doubt?

[00:24:13] Minami: Yes, it happened in stages because when Peter called me and said, "Look, it--" I didn't know Peter for anybody else. He said, "I found these documents that prove that the United States government lied to the Supreme Court and obtained the appellate decisions, the affirmation of their convictions by fraud." I wasn't sure what to make of this.

I had thought about these cases for years. I read about them in Berkeley Law, and I volunteered for a project to help overturn the convictions, but I was rebuffed by the professor who thought there's no way we could do it.

Peter calling me up, I thought, "Let's see the evidence." When he sent us the evidence, it was in writing, it was in these memos where they're admitting to government misconduct. When you have a smoking gun, you tend to have a little more confidence. There was a problem. The problem was, what judge do you get? Because in federal district court, it's going to be a judge that makes the decision, and in the federal district court for the Northern District of California, it was pretty evenly split between liberals and really conservative judges. First choice was Marilyn Hall Patel. A second choice was Thelton Henderson, African American judge.

We hoped to get one of them because the way you get judges, and you still do, is mostly by random selection. In those days, they used to have these bingo balls in this rotating cage, and you pull one out, and then you get your judge name.

[00:26:02] Host: A lottery, essentially. Yes.

[00:26:05] Minami: Then, as we became more advanced, it became computerized. Our hope was that we would get Marilyn Hall Patel, whom we knew from, or I knew from Oakland, Piedmont Municipal Court. She was a judge there, and I had a number of hearings in front of her. I found her to be not only really smart, courageous, gracious, but tough. She was also very civil rights oriented. She was a general counsel for the National Organization of Women. I knew her personally. In fact, I wrote a letter to President Jimmy Carter, which she asked me to do, to support her nomination to become a federal district court judge. Of course, we didn't tell people that because why should we? Anyways. [laughter]

The Supreme Court justices now could go out hunting with their friends and take all these blandishments and gifts. This is, of course, after the fact, but it wasn't a big deal then because you-- I support a lot of judges, but it doesn't mean you have to recuse yourself. That's how we heard about the case. That's how we got the favorite judge we wanted, and that's how the evidence came through with our relationship with Peter and his willingness to work with a group of mostly Japanese American attorneys with both gracious and really politically progressive.

[00:27:37] Host: With this case, you can get the sentence overturned. It really isn't going to make a big difference in Fred's life at this point, other than just vindicating, but there is a bigger purpose behind this. Especially since, at that time, you were working on the Redress Movement as well.

[00:27:59] Minami: Yes. You nailed it. You nailed the big issue. Of course, we brought this case to retry history. We wanted to correct the history, the story that Japanese Americans had engaged in espionage or sabotage or were disloyal. We brought it to vindicate our own families because they were put into these prisons based on faulty evidence. We wanted to vindicate these three men who were so courageous to stand up to the United States government, the most powerful nation in the world, and say, "You're wrong. We want our convictions overturned." It was in the midst of the Redress Movement. That movement begun in the late '60s, early '70s by Japanese Americans who were partly motivated I think-- Not just motivated, but inspired by the Third World Strikes, the things we talked about earlier, where students in San Francisco state, then Berkeley, demanded a true rendering of their history and contribution of the country. We were in the middle of this movement that was started by a number of groups to get a redress and reparations, $20,000, and an apology from the government that what was done to Japanese Americans was wrong.

A wonderful woman had written a book about the lies that were told to the Supreme Court, the misconduct, but it wasn't as specific as the evidence Peter found and Aiko found. That also played the role in encouraging people to fight the government, to form committees, to advance legislation, to get the $20,000 in an apology. What the movement was lacking was a court decision. They already had a president's apology, they had vindication from so many historians, and yet the opponents of redress in Congress were arguing that, "Look, the Supreme Court already heard this. The Supreme Court justified these convictions. Why are you fighting now?"

It's hard for them to respond before our decision because they had the criticisms of noted scholars, brilliant men and women who disavowed that decision and ranked it up there with Dred Scott and Plessy v. Fergusonas some of the worst decisions the Supreme Court ever made. They didn't have an expressed disavowal of what the decisions actually said. When we were able to get an overturning of Fred's conviction with a decision that said that the evidence was manufactured, that a fraud was committed on the Supreme Court, that racism probably was the instigator of this type of misconduct, and that the decisions could have been different if the court knew the true facts.

What we were able to do is provide ammunition. Folks like Norman Mineta, who was then a congressman, and Bob Matsui, who was also a congressman, were able to really push our decision and the written decision, which Judge Patel wrote to counter the narrative told by the opponents that, "Hey, this is already done. The Supreme Court approved it." They did it on the basis of a foundation of fraud so how much credibility can you give to those decisions? We provided a missing piece to that fight for redress and reparations.

[00:31:55] Host: After this victory, and this is just a fun question, but were you ever able to go back to your professor who said this can't be overturned and just say, "See?"

[00:32:10] Minami: Go “Na,na,na!.” [laughter] No, I did not. I've seen him, but it was not a priority of mine because he didn't specifically say this is a correct decision, although he implied that. Plus, I didn't want to spend energy dealing with him when I really was on the road with Fred so much around the country giving talks about his decision and his role. We saw with Don Tamaki a different role for us at that point. We thought we needed to circulate or distribute the notion that this history that was presented in 1943 and '44 was absolutely false. We felt like we did when we started the Asian Law Caucus.

It was as important to win legal cases as it was to empower the community and educate the community. We pretty much saw that as our Chapter 2 of this whole episode. We spent the next years of-- We're still doing it now, talking about it, just like we're talking to you to make sure that we reach as many people as we could find about the lessons of those cases, the overreach by the government, the frauds, the manipulation, just so folks could become-- I don't want them to become cynical about the Supreme Court yet, although I'm very cynical and skeptical, but we'll see. Maybe they'll stand up to the President now. Maybe they'll stand up to this attempt to take over our democracy because that's what's happening.

[00:33:52] Host: Yes. I wanted to transition into that point. In that case, in the coram nobis case, Fred Korematsu said in court, "As long as my record stands in federal court, any American citizen can be held in prison or concentration camps without a trial or a hearing." In the dissent of the initial Supreme Court case, Justice Robert Jackson said, "Once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes that the Constitution to show that the Constitution sanctioned such an order, the court, for all time, has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens."

Both of these things feel so important today. How do you see how these two statements have reverberated to where we are today with regards to the threats and actions of our current administration?

[00:35:04] Minami: The notion that you can imprison an entire ethnic group or group of people without due process rights, if they're citizens or not, has been criticized constantly. In fact, in Trump v. Hawaii, Justice Roberts, who probably didn't want to do this, but in response to Justice Sotomayor's dissent, suggested, "Oh, this can't happen again." Justice Scalia said otherwise. If there's enough political will, anything can happen. They could do mass shootings of people. I think there's another precedent that needs to be addressed. While we thought we wanted to impair the precedent of rounding up and banishing and imprisoning an entire ethnic group, I think the other precedent turns out to be even more significant.

That's the precedent of deferring to the executive. In Korematsu, not admitting, because we don't even know what the reasoning was, but the evidence was manufactured. The Supreme Court said, "Look, we have a very thin, thin record here," because they didn't have any evidence of any Japanese American committing espionage or sabotage. They had J. Edgar Hoover and the head of the FCC saying, "The reports about espionage are absolutely false." What was important is the court deferred completely to the executive, to the president, and in a sense, just abdicated its duty to doing its own review of the facts to see if lies were being told or not.

That same precedent was used in the Trump v. Hawaii, where the government failed to produce the rationale for banning certain countries, which are almost all Muslim countries. The government failed to offer evidence or reports that they had secret reports that they had made. The court just caved in. The court said, "Okay. I guess we can still then rule in favor of the president. That precedent of the judicial failure to review the President of the United States, which started with Marbury v. Madison, one of the earliest Supreme Court cases, has now become weakened to the degree that we're seeing another tool for a would be despot or a tyrant to take over and not have the Supreme Court question him or her.

[00:37:45] Host: Yes, you mentioned earlier in our conversation. I want to pull this quote I got from your conversation you had with Densho. You said-- This is over 20 years ago, "The rule of law as absolute justice or absolute values is a total myth. The rule of neutral impartial arbitrators like judges is a myth, and that there are values beyond law that drive justice." You said your thoughts have changed since then with regards to the rule of law.

[00:38:21] Minami: I don't remember that. It has changed, and it changed in 2016 when I saw the judiciary stand up to Trump, just like it's doing now. It's rejecting his arguments. It's rejecting his programs. It's rejecting his attempted takeover of the government. I'm proud of the judiciary now in that sense. I'm not proud of the Supreme Court, but we'll see what they do, whether they actually defend the Constitution or they allow it to be degraded to the point that we don't have a third branch of government anymore. That's my biggest fear.

Second biggest fear, probably coequal, is that Trump will just ignore whatever ruling, even if it's from the Supreme Court that says, "What you're doing is unconstitutional." He'll be one of the former presidents that said, "The Supreme Court made its ruling. Let it enforce it." Which it can't do. It doesn't have that power. With a compliant sycophantic House of Representatives, you could see just Donald Trump saying, "I'm ignoring all of this. Call out the military. I'm taking over this country, and I'm going to be called King Trump rather than President Trump."

Unless you have resistance on every level, what we're going to see is a dictatorship in this country, which is-- I really do believe that's the ultimate goal of the Trump administration and the Elon Musk administration, the co-presidents we have in this country, one unelected.

[00:40:00] Host: What is your advice to people who may be afraid right now, who may not know their rights in the face of all of these changes that we're seeing?

[00:40:09] Minami: There's still people power. I think first you got to get over your depression, which I'm getting closer to getting over. Then you've got to feel the urgency to act and not just be an armchair revolutionary and say, "Oh yes, we got to do this, we got to do that." You hear and see so many of those I have in my life and get people to do things. Just the demonstration in the streets the other day, I thought about the immigration rules. It makes some difference, but it could be that the government or the president will call out the military. In that case, we don't have a constitutional crisis. It's far beyond that.

It's a crisis of whether you're going to survive in this country. You've seen the power of the people in the Philippines. You've seen it in other countries where they were able to bring down governments that were so corrupt and so evil that the only choice was to stand on the streets and die if you have to. At some point, my hope is that some of the Republicans will grow a spine. I'm so disappointed with Senator Collins. There's very few people out there in the legislators who have the courage to even defend the Constitution. I think they're so afraid, and they're so tied to the notion of power, of being elected, and having a job that they're chickenshit.

The Democrats need some leadership as well. I think they're starting to step up a little more, but unless they really come on strong. I think you've got to organize people. There's got to be some more ways to influence or defend against the takeover of our country, the loss of our constitutional rights. Then just talk.

[00:42:15] Host: We'd like to thank Dale Minami. Chapters podcast was produced by Past Forward and made possible with support from Chapman University and California Civil Liberties Public Education Program, a state-funded grant project of the California State Library. For more information, visit pastfoward.org, chapman.edu, and library.ca.gov.