Kathryn, I'd like to start with having you share about your family's experience following Executive Order 9066. And then tell me if these were stories that were talked about while you were growing up or if this was something that was kind of hidden or protected from you.

[00:02:54] Bannai: My parents, my grandparents, and all of my relatives were living in the Los Angeles area, and they were subject to the forced removal pursuant to Executive Order 9066. In fact, they were all removed to the Manzanar concentration camp. When I was a child, my parents took me to Manzanar. So I had an opportunity when I was, I guess I was about 10 years old to be with them there. It was before there was any sort of visitor interpretation center or anything like that. It was just a desolate space, but it certainly helped me understand that they had been removed to a place that was somewhat uninhabitable, remote. Not the sort of place that they, as than young adults... My father was a young man who was working in a bank in Los Angeles, Little Tokyo area. My mother had just started high school. And in my mother's case, her mother was a widow with four young children. So that was probably the most memorable experience I had as a child in terms of understanding what it meant when they said they were in camp.

My father, once he entered the camp, turned his mind to getting out as soon as he could, and when he had an opportunity to go work in sugar beet fields in Idaho, he took that. He then joined, volunteered for the army, and he was assigned to the 442nd, an artillery battalion, trained with them, was ready to ship out to Italy when he was reassigned to the military intelligence service. So he spent the war years in the Pacific Southwest, and particularly he actually served with the Australian Army as an interpreter and translator. But, in the meantime, my mother was in high school and she shared with me what it meant to her to be unjustly deprived of her civil liberties and behind barbed wire during that period. She graduated from Manzanar High School and she in particular shared a story about being a part of the yearbook committee and how they knew that their charge was to produce a yearbook that made it appear that they were just an ordinary high school in America. But they knew that they weren't. And they sought to find a way to make a statement that would pass the censors, because this would be under review. So they placed on the back page of the yearbook a guard tower. And they weren't confident that it would pass the censors. But when it did pass the censors and it became a part of the yearbook, they had a great sense of accomplishment, that they had made it known that, yes, you could look at these images of girls and boys and clubs and sports in their graduation portraits, but you would also know by looking at the yearbook that they were behind, that they were surrounded by guard towers, and that little bit of exercise of agency and resistance would always be a point of personal pride for her that she was a part of that and a story that she passed on to me.

[00:06:55] Host: Was that understanding of losing civil liberties, that experience that your mother had? As you were a young person kind of reflecting on her experience, did any of that influence your pursuit of law?

[00:07:17] Bannai: Yes. I, you know, I also add that I grew up in Gardena, California, which was at that time had the largest concentration of Japanese Americans outside of Hawaii. And so many of the people who were my neighbors, people in my community, had also been incarcerated during World War II. So my knowledge of the injustice that profoundly affected my family and others in my community influenced my decision to attend law school years later.

[00:07:52] Host: Did you go with the intent to study civil liberties law or civil rights law? Or what did you, what were your thoughts as you entered into law school of what type of law you wanted to practice?

[00:08:11] Bannai: First of all, I should say that I understood when I entered law school that the Supreme Court, you know, had made decisions on the cases, and so those are final judgments. But I was also aware when I applied for law school of the Korematsu and the Hirabayashi cases, and I also was a child of the 60s, so I had been influenced by the civil rights movement of the 60s, the passage of the Civil Rights Act. I was living in Gardena very close to the Watts Rebellion at the time that that occurred and I was very aware of social justice movements at the time in terms of trying to address poverty in the United States and was also against the Vietnam War at that time. I graduated high school in 1968, which was then the year that Martin Luther King was assassinated. It was the year of the Chicago Democratic Convention and the protests related to that. And so all of those things caused me initially to wonder whether the law simply upheld the status quo, but then later I came to think from talking with people that in fact there would be opportunities to, through the law as a lawyer, to address issues of social justice and civil rights. So when I went into law school, it was certainly, and especially as I progressed through law school, I sought out opportunities to learn more about civil rights and how the law protected the civil rights of minorities and others because I was then in the era post-Civil Rights Act, and an opportunity to see how laws against discrimination on the basis of race, national origin, ancestry, religion, and disability were developing. And I was interested in being a part of that. So actually, in my final year of law school, I was an intern for the head of what was then called the Fair Employment Practices Commission in California, then the lead commission against that investigated discrimination complaints and developed policy. And so that was in 1976, 1977. And then I went on later to work in civil rights and human rights, both in the US and in Canada.

[00:11:16] Host: Now, while you were in law school, did the concept of writ of coram nobis ever come up in your studies? I know when I interviewed Dale Minami, he said that once this term was brought up to him, he had to dive deep into Black's Law Dictionary in order to find it, that he had never heard of it before. Was it something that you were familiar with?

[00:11:45] Bannai: No, I think, I believe for all of us, it was something that was a new writ. We had heard of writ of habeas corpus, of course, but writ of coram nobis certainly was unfamiliar.

[00:12:02] Host: Let's talk about how you first met or were introduced to Gordon Hirabayashi.

[00:12:13] Bannai: When I first met Gordon, I happened to be attending a meeting in Vancouver, British Columbia, Canada, and he was sitting on basically a panel of representatives who were discussing Japanese-Canadian redress when I realized that the person with the Alberta placard was Gordon Hirabayashi. I was stunned because up until then I only knew of him as a civil rights icon, somebody who I had learned about in Asian American studies. I also, because by then I was a lawyer in Seattle, had finished law school, knew about his case and knew really nothing about his personal circumstances. So for me to be, to have that opportunity to meet him meant a great deal to me. It also turned out that I was in Canada because I was organizing a symposium and bringing to Seattle an exhibition about the Japanese-Canadian experience. And so when I spoke with him, I said, oh, you know, I'm putting together this symposium and I'm wondering if you might assist me. And he said, oh, I'm going to be in Seattle on sabbatical starting the new academic year, so it meant that he could join my committee. So he was very approachable. He was very professorial in the way he spoke. I think most people noticed that when they met him.

I got to know him from that experience. He joined my committee. I then later learned more about him. The fact that he had grown up, he had been born in Seattle, but grew up in a farming family. He had been a Boy Scout, and in 1942 he was a student at the University of Washington, and he was aware of the curfew order, but also aware that his friends who were international students were not subject to the curfew order, whereas he as an American citizen of Japanese ancestry was, and so he decided that he would refuse to obey the curfew order. And then as time went on he reflected upon it further and decided that he would in fact not submit to the removal orders because of his strong beliefs about his rights as an American citizen and also because of his belief in the wrongness of Japanese Americans being treated as a racial group en masse in this manner. He also in the days in May of 1942 he was assisting families affected by the alien Enemies Act, where the fathers had been picked up and interned under that act, leaving their wives and the children to have to comply with the removal order without sufficient support. And so Gordon, as a Quaker and a member of the American Friends Service Committee, stepped up and helped the families pack and be transported to the Western Washington Fairgrounds and Puyallup, Washington to enter detention.

So he did that up until May 16, 1942, and then on that day he asked his friend, fellow Quaker and lawyer, Arthur Barnett, to take him to the local FBI office where he submitted his written statement objecting to the removal of Japanese Americans en masse from their West Coast homes and stating that he felt as a matter of duty to maintain democratic standard that he must refuse the order for evacuation, an order for removal and staunchly maintained that position in spite of much pressure for him to relent and so was jailed and eventually went to trial in in in Seattle where he was convicted of violating both the curfew order and the removal order. And that case went up to the U.S. Supreme Court in 1943, and the Supreme Court upheld the constitutionality of the curfew order, holding that the curfew order issued against Japanese Americans was justified by imminent military necessity.

[00:17:18] Host: Do you know if when he walked into the FBI office, do you know if it was his assumption that that's what was going to happen and that he was kind of playing a role of a martyr at that point, knowing that he would be convicted and incarcerated?

[00:17:42] Bannai: I don't think he thought of himself as a martyr. I think he thought himself someone who is an ordinary American citizen who did what was necessary to stand up for his rights and that that was a necessary act for him to take if he were to believe in this country and its principles and its Constitution. I believe that he understood that he would be incarcerated because he would be he was it was an act of resistance it was an act of civil disobedience that he wouldn't he knew under the law would have consequences that he would face jail that he would face a trial but he always believed that once his case went to the US Supreme Court that the Constitution he believed in would bind that the removal order and the curfew orders were unconstitutional.

[00:18:47] Host: So, 40 years later Gordon comes to you to, after he received this massive amount of evidence discovered by Aiko Herzig-Yoshinaga and Peter Irons, he comes to you to be the lead counsel and to build a team to bring his case back to court. With all of that evidence that was discovered about either lies that were told or evidence that was destroyed, how much certainty or how much faith did you have that this was a case that could be won?

[00:19:31] Bannai: You know, while there was certainly no certainty about winning, you know, we did have compelling evidence that we believe would meet the requirements for Gordon to succeed in his Coram Nobis petition. We also felt that this was an extraordinary cause, not only to ensure that Gordon obtained justice, but also, by extension, Japanese-Americans who were subjected to the military orders. Further, we felt that this would help ensure that there would be lesser opportunity for such governmental actions, both against the court and against a vulnerable minority, we felt that by taking the case forward that we would help prevent this from happening.

[00:20:38] Host: Now, I would love to talk about, you know, I've been able to discuss Fred Korematsu's Coram Nobis case and Min Yasui's Coram Nobis case. I'd love to talk about how Gordon's proceedings differed and, you know, one of the main benefits you had was in in having Judge Voorhees as the preceding judge.

[00:21:10] Bannai: So, 40 years later after the Supreme Court case, we filed Gordon's Coram Nobis petition on January 31 ^st, 1983 in the US District Court for the Western District of Washington in Seattle where Gordon was convicted during World War II. So, after we filed Gordon's petition, as in Fred and Min's cases, the government agreed to vacate Gordon's convictions while seeking to dismiss the petition. However, the government took a more aggressive stance than it had in Fred's case. It argued that the petition should be dismissed because the government had discretion to do so, that Gordon had delayed in bringing the petition, and that he did not suffer continuing harm because of the convictions.

On May 18th, 1984, Judge Donald S. Vorhees, who was assigned to Gordon's case, convened a hearing. On behalf of Gordon, I led the argument, joined by team member Camden Hall, against the government's motion. We refuted the government's arguments and reviewed the evidence supporting the petition. We reviewed the alteration and destruction of crucial evidence contained in General John L. DeWitt's original final report and the withholding of federal intelligence reports that undermined the government's World War II claim of military necessity, all of which deprived Gordon of his constitutional rights to a fair trial and appeal. We also urged Judge Voorhees to grant an evidentiary hearing. When Judge Voorhees permitted Gordon to make a statement, Gordon stated, “this is not only my case. This is not only a Japanese-American case. This is an American case.” He posed the question, can it happen again? And he continued, “Since the answer is yes, it is important during periods of relative calm to ensure that such governmental conduct that deprives people of civil liberties has less opportunity to occur again.”

Gordon felt that it was essential that the evidence supporting the vacation of the convictions be presented in a hearing that could be attended by the public, the media, and especially Japanese-Americans who had been incarcerated, and their children. So obtaining the evidentiary hearing was extremely important to Gordon and our team. We succeeded. Gordon's case was the only coram nobis case that advanced to an evidentiary hearing. The evidentiary hearing and subsequent appeal resulted in factual findings that specified the misconduct along with legal analysis, and concluded that he had been denied due process and his convictions were vacated. The evidentiary hearing took place in Seattle in June 1985. During the hearing, Gordon's attorneys presented proof of governmental misconduct. Witnesses included Edward Ennis, the Department of Justice lawyer who was responsible for the government briefs in the Japanese-American Supreme Court cases, and Aiko Herzig-Yoshinaga, the researcher who discovered the original version of General DeWitt's final report. The government shockingly sought to defend the wartime actions by arguing there was evidence of potential Japanese-American disloyalty. This was surprising, especially since President Ford had issued a proclamation that stated the removal was wrong.

After the seven-day hearing, Judge Voorhees vacated Gordon's removal conviction. However, he did not vacate Gordon's curfew conviction. Gordon and the government both appealed Judge Voorhees' decision. On appeal to the Ninth Circuit Court of Appeals, Judge Mary Schroeder, writing for a unanimous panel in 1987, so this would be a three-judge panel, agreed that the wartime government had doctored the documentary record to reflect that General John L. DeWitt, who issued the curfew and removal orders and wrote a report that explained the basis for his orders had made a judgment of military exigency. The original version of DeWitt's final report showed instead that the basis for DeWitt's orders was not military exigency. Judge Schroeder also stated that the information now in the public record constitutes objective and irrefutable proof of the racial bias that was the cornerstone of the internment orders.

[00:26:39] Host: So the evidentiary hearing, as you just mentioned it, I would just want to reiterate the most important part of having an evidentiary hearing is kind of outing that bias in public record. So it's not just that this evidence was found, but now it is in public record because it was used as evidence in an evidentiary hearing, is that correct?

[00:27:09] Bannai: Right, so we now have a decision by the Federal District Court, by Judge Voorhees, having heard seven days of evidence, including the government's defense. So, it's been tried, the evidence, the witnesses who testified under oath, under cross-examination, the government put forth what it considered its best defense, and Judge Voorhees then made factual findings and legal conclusions. And then it went up to the Ninth Circuit Court of Appeals. And so we now have a decision of an appellate court, which agreed with Judge Voorhees, except for the point of finding that, in fact, Gordon's conviction on the curfew order should also be vacated. And I think that for Gordon, this was one of his litigation goals, was, in fact, to have this matter brought into the public sphere before the media and for it to actually be tried in the judicial system and for there to be decisions made after a trial or evidentiary hearing.

[00:28:34] Host: You had written about this, and I just want to quote something that you wrote in the Seattle Journal for Social Justice. “The court had an opportunity in Gordon's case to deter government officials, including prosecutors, from engaging in similar unlawful conduct that restricts easily identifiable minority groups”. And in reading that, it's really hard not to connect that statement to what is happening right now. In the US, as masked enforcers are pulling people off the street because of the color of their skin or the language they speak, or the accent they may have. So I'd love for you to talk about, I mean, it's kind of a clear line, but I'd love for you to talk about how Gordon's case kind of reverberates to where we are now as a nation.

[00:29:32] Bannai: Well, first during World War II, the government cited military necessity, essentially national security. And we're seeing national security invoked today. So the, you know, the government invoked national security as a justification for removing American citizens and permanent residents without due process. And the Supreme Court said it had to defer to the government claims that its actions were justified by national security. Given what we've all learned about the system of checks and balances, It is a frightening proposition that there are some areas when the court will defer to coordinate branches of government. And as the Korem Nobis cases showed, there was no military necessity. And as recognized by the Ninth Circuit Court of Appeals in Gordon's case, the cornerstone for the government's actions against Gordon and other Japanese Americans was racism. Today, we are seeing the government again invoking national security to justify a broad range of actions and arguing that the courts need to defer to it. For example, there is a targeting of groups and individuals, for example, undocumented immigrants and deployment of federal forces and National Guard units to cities such as Los Angeles, and Portland to purportedly address protests, illegal immigration, and crime. As in the past, these actions show the danger of allowing the government to act without a check on its actions. The right to due process is not based on citizenship. We see individuals who are suspected of being members of Venezuelan gang being deported without due process. They were denied a hearing and an opportunity to show whether they were members of the gang or have or haven't been engaged in any criminal conduct. Gordon's Coram Nobis case involved the wartime government's suspicion that all Japanese Americans were potential spies. Today, the government is targeting immigrant communities on group-based suspicion that these individuals threaten national security.

[00:32:03] Host: Now, as a former lawyer and somebody who was kind of steeped into this story, what is your experience of what's happening now?

[00:32:16] Bannai: I am dismayed and saddened and outraged, I think. I'm experiencing a lot of the emotions and reactions that I think many fellow citizens are experiencing at this moment. However, I will say that during World War II, there were very few voices and very few people who stood up for Japanese-Americans when the government was engaging in the forced removal of Japanese Americans from their communities. There are certainly, I can think of an exception, like the Walter Milley Woodward of the Bainbridge Review, who expressed their outrage. And the American Friends Service Committee certainly stood up, and there were others. but for the most part, there were few voices. And I'm heartened by the fact that there are many influential people and organized groups that are standing up and seeking to make known our beliefs and what this country stands for and wanting change.

[00:33:49] Host: Kathryn, I want to finish. I've had the privilege and honor of discussing the three coram nobis cases and the three Supreme Court cases of Japanese Americans during World War II and after following Executive Border 9066, but I have yet to discuss Mitsuye Endo's case. So I would love if we could finish by giving a little history of Mitsuye Endo and the Ex-Parte Endo case.

[00:34:29] Bannai: Mitsue Endo's case was the only successful challenge before the Supreme Court related to the government's treatment of Japanese-Americans during World War II. Her case was decided on December 18, 1944, the same day as Fred Korematsu's case. Endo was a 22-year-old Sacramento native and a clerical worker in California's Department of Motor Vehicles in Sacramento when she was dismissed from her job, along with other Japanese-Americans, state employees, after Japan attacked Pearl Harbor. The California State Legislature had adopted a resolution effectively barring persons of Japanese ancestry from civil service employment. Lawyer James Purcell appealed the dismissal of these employees, including Endo. Before that appeal could be decided, Endo was required to report for removal and she was sent to the Sacramento Assembly Center. Then she was sent to the Tule Lake Relocation Center. While there, she agreed to have Purcell file a petition for writ of habeas corpus to challenge the wartime incarceration in her name. Habeas corpus is available to an individual who is incarcerated to challenge their wrongful detention and to seek release from imprisonment.

Purcell filed the petition on June 12th, 1942. The petition alleged that Endo was a loyal and law-abiding citizen, that no charge had been made against her, and that she was being unlawfully held under armed guard and against her will. The government had established a procedure for permitting Japanese-Americans to leave camp if they passed a two-part screening. For the first part, the person was required to apply for leave clearance and establish their loyalty. For the second part, the person needed to apply for indefinite leave clearance, and the applicant needed to show that they had an employment offer or other means of support at their proposed destination and that there was favorable public sentiment at the proposed destination in the interior. Endo applied for leave clearance on February 19, 1943, which was granted. Even though she was eligible to do so, she did not apply for an indefinite leave clearance, the second part.

War relocation solicitor Philip Glick offered her release if she agreed not to return to the West Coast. She refused because accepting that offer might result in dismissal of her habeas corpus petition. She would later explain this decision by stating, the fact that I wanted to prove that we of Japanese ancestry were not guilty of any crime, that we were loyal American citizens, kept me from abandoning the suit. That is her habeas corpus case. As a result, she continued to be imprisoned for over another year. By that time, she had been transferred to the Central Utah Relocation Center, also known as Topaz.

When the case reached the Supreme Court, the government conceded that Endo was a loyal and law-abiding citizen. However, it argued that detention for a period after leave clearance was necessary. The government pointed to the opposition of officials, including governors of the intermountain states, as a rationale for the leave program of supervised relocation. The Supreme Court unanimously decided that the government could not continue to detain Endo, a conceitedly loyal American citizen. The government did not have authority to subject citizens who are conceitedly loyal to its leave procedure.

[00:38:45] Host: So how did that case kind of determine what happened to the other 120,000 Japanese Americans who were still incarcerated?

[00:39:00] Bannai: So the government, of course, was aware that Endo's case was proceeding through the court system that it was already before the US Supreme Court. And so the day before the Endo decision and the Korematsu decision came down the same day, came down. So the day before, on December 17th, the government announced that the camps would be closed. And so Endo's case was a significant factor on the closing of the camps, and the lifting of the exclusion of Japanese Americans from the West Coast.

[00:39:43] Host: Now, I want to finish with– there's something else that's happening in this country right now, and it seems to be a push to erase some of this history, whether it's monuments, whether it's actual history in history books. But I want to talk about how important it is to continue to tell these stories and to share this history.

[00:40:16] Bannai: The Japanese American National Museum and the Japanese American Citizens League conducted a survey of the Asian American, Native Hawaiian and Pacific Islander population and the U.S. general population between January 7th and January 14th of this year. The study found that 67% of the general population were aware of the World War II executive order that led to the roundup and incarceration of Japanese individuals in the United States. However, when asked, were the incarcerated individuals mostly citizens of Japan or citizens of the United States, only 55% correctly answered that they were mostly US citizens. And when asked, do you believe the incarceration was right or wrong? Only 59% responded that it was wrong.

[00:41:19] Host: Oh, wow.

[00:41:22] Bannai: The general population needs to know that the incarceration was wrong, the incarcerees were Americans, and that the US government has acknowledged the wrong and apologized. And it needs to understand the needless suffering caused by the forced removal and incarceration of citizens and permanent residents on the basis of race. Now, there's some encouraging data. When asked, do you think the subject of the incarceration of Japanese Americans during World War II should be included in high school classes in the US, 73% of the general population responded yes. The challenge of educating the public about incarceration is increasing because of pressures to censor and remove information that is seen to emphasize negative aspects of our country's history. As a Japanese American, I am profoundly disturbed about actions of this nature. As stated by Ann Burroughs, President and CEO of the Japanese American National Museum. In speaking about efforts to reshape the Smithsonian museums to fit the administration's historical interpretation, “History does not yield to censorship. These latest attempts to sanitize and reshape history to fit a narrow ideological narrative amount to nothing less than the erasure of history.”

[00:42:56] Host: We'd like to thank Kathryn Bannai. 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 pastforward.org, chapman.edu, and library.ca.gov.