[00:05:00] Host: During your studies, when you first started your practice, was the experience that your parents and your grandparents, what they went through, did that ever come into your mind as far as constitutionality? Was there ever an itch of like, "Oh, maybe there's more to this?"

[00:05:27] Peggy: Absolutely. When I was in college, I wanted to do my senior thesis on the Korematsu, Hirabayashi, Yasui, and Endo cases. My thesis advisor said, "After you say that the Supreme Court had made some racist decisions, what else are you going to say about the cases?" He talked me out of actually doing my thesis on that. Then in law school, when I was in law class and we were reading Korematsu, I thought if I could ever do anything to write these cases, it would make these three years of torture worthwhile.

What could we do? They went to the US Supreme Court. What's the next court? The Court of Celestial, something well-being. Little did I realize, but I thought a lot about that. I grew up in the 60s so in terms of movements and racial discrimination and the Asian American student movement. It didn't look like there was anything that could be done.

[00:06:38] Host: At what point in your career did Minoru Yasui reach out to you?

[00:06:44] Peggy: I first met him in 1979. We in Portland, organized the second day of Remembrance. Now it's a national event. He was one of the keynote speakers at that event. His brother Homer was a doctor in Portland. I knew Homer. We were in the Japanese American Citizens League together. We were co-chairs of the redress committee, et cetera. I met him in 1979. Dale Minami knew me as a lawyer in Portland. Somebody referred Min to me.

I don't know if it's Dale, I don't know if it's somebody else but I got a call from him and he said, "I know you're a lawyer in Portland and I am thinking about the possibility of reopening my case. Would you be willing to organize a meeting of Asian lawyers in Portland?" I said, "Absolutely because I've been thinking about this for a long time."

[00:07:47] Host: Was it the movement towards redress that gave him the light at the end of the tunnel or that hope that maybe something could happen? What sparked his-- I don't want to say passion because I'm sure that's something he's dealt with his whole life, but what sparked that movement to go back?

[00:08:11] Peggy: It was Professor Peter Irons. I'm sure you've heard of him. He actually had brought a coram nobis case for himself. He was a law professor and he had found documents in the National archives that had him feel that the decision to incarcerate was based on race and not based on military necessity. He called all three, Fred Korematsu, Gordon Hirabayashi, and Min Yasui, and asked if they were interested in reopening their cases. That's what spurred Min on.

[00:08:50] Host: I guess we should get the history of Minoru. He's American-born from Oregon, which my family lives in Oregon too. Just to say, my mom's up in Salem. American born. He was a lawyer. He was an army reservist, like all American. Tell us what happened to him after Executive Order 9066.

[00:09:21] Peggy: His father wanted to become a lawyer, but back then you had to be a US citizen to be a lawyer. The Supreme Court said in 1922, Ozawa v. United States, that you had to be white to be a lawyer. His father could not become a lawyer because obviously, he wasn't white. He was an immigrant from Japan. Min graduated from high school, went to the U of O Law School, was the first Japanese American to graduate from the U of O Law School, was the first Japanese American member of the Oregon State Bar. So, when World War II, Pearl Harbor... he was working at the Japanese Consulate in Chicago, resigned his position, came back to Portland, tried to get back into the military because he was in the ROTC when he was at the University of Oregon. They refused because of his ancestry. He opened up a law practice in Portland to try to help anybody that needed help, especially in the Japanese American community. Then as the Executive Order 9066 came down February 19th of 1942, then John DeWitt, who was the commander of the Western Defense Command, started to make military proclamations, one of which was Proclamation Number Three, a curfew order that said that all persons of Japanese descent had to be in their homes between 8:00 PM and 6:00 AM. The day after that was promulgated, Min decided that he would be the test case. He tried to get somebody else to be a test case, a World War I veteran, a family person with children, et cetera. He couldn't find anybody. He decided he would become his own test case.

[00:11:38] Host: The test case is basically testing the constitutionality of this, correct?

[00:11:44] Peggy: Yes. He was especially testing the constitutionality of a curfew order that applied to US citizens without due process. Yes, he put his liberty and his profession on the line to say, "Somebody needs to do this, I will do that."

[00:12:05] Host: His understanding of law must have given him just cause to see that this was not constitutional.

[00:12:15] Peggy: Yes, I think so. I think that's why he was armed with the constitution to say, "We have got to tell the government this is wrong." That's one of his famous quotes. "If the government is wrong, as a citizen, it is my duty to say that they are wrong."

[00:12:38] Host: He was arrested and spent quite some time in solitary confinement.

[00:12:50] Peggy: Yes, he was arrested. He lost his case at the federal district court level in Oregon. Judge Fee said that the curfew is unconstitutional as to US citizens, but because Min worked for the Japanese Consulate in Chicago, he abrogated his US citizenship and therefore became an alien enemy. The curfew was applicable to alien enemies, and therefore he found him guilty.

[00:13:32] Host: As I read about this, my thought goes to in saying that, didn't he say that for all other citizens then this curfew would not be legal? At that point, all these Japanese American citizens were already incarcerated in camps, correct?

[00:13:55] Peggy: I think his trial was in June of 1942. They had been taken and removed and were in what they called assembly centers.

[00:14:10] Host: Assembly centers, yes.

[00:14:12] Peggy: Tanforan, Puyallup, Portland Expo, they turned all these track races and exhibition halls for animals, they turned them into stalls and cells for Japanese Americans.

[00:14:27] Host: As things progressed, the case finally gets to-- Walk me through it. At some point, nine months after being imprisoned, it fails in appeals and they say that his time is served and he gets sent to Minidoka.

[00:14:54] Peggy: Yes. He was sentenced to the maximum by Judge Fee. That's why he was in solitary confinement in the Multnomah County Jail, not in a state or federal penitentiary as his case went up to the Ninth Circuit that kept it going to the US Supreme Court. His case was a companion case to Gordon Hirabayashi's. Gordon Hirabayashi's case was both curfew and evacuation order. Min's was just curfew. His case was not as well known because he was the first person out of the box to violate the curfew.

[00:15:43] Host: Both Gordon Hirabayashi and Minoru, they were both seen or heard by the Supreme Court within two days of each other. Basically, the ruling was, "We already decided this for one of the cases, so our decision will basically be the same for the other." Do you think if more Japanese Americans had defied these orders or sought legal support to defend their constitutional rights, if there were more cases before the Supreme Court that it would've made a difference, or was the system too biased at that time?

[00:16:25] Peggy: I don't think it would've made a difference. The court seen its role. The court saw its role as, in time of war, we're going to step back and we're going to adhere to the opinions of the military. Even though, at the time, they didn't know that there was evidence to the contrary that was withheld from the US Supreme Court by the Department of Justice and the Solicitor General's office. They didn't know that the original military report from DeWitt, the commander of the Western Defense Command, said that a Jap is a Jap. The Japanese race is an enemy race. It doesn't matter how long you have and the time you have, you can't separate the goats from the sheep. There's no way you could tell who was loyal and who was not because the race itself was an enemy race. That's what he put in his original report. If the Supreme Court had had that in front of them, they would've realized that this was not a military decision, that he said it didn't matter how much time. That was the whole premise of the government. It was, "We didn't have time. It was a horrendous situation. We need to rely on the military." Instead of the Supreme Court doing its job as the third branch of government, it stepped back, which it has done time and time again in terms of military necessity or national security. You can see that all the way up to Trump v. Hawaii in 2017.

[00:18:20] Host: All of that was hidden or somehow lost.

[00:18:26] Peggy: Not lost.

[00:18:27] Host: It was just not presented as evidence at that point.

[00:18:30] Peggy: [crosstalk] Not presented. Yes. Edward Ennis, who was one of the Department of Justice lawyers and another lawyer tried to argue with the Solicitor General that at least you ought to have a footnote. Now, they didn't know about the original DeWitt report, but at least you should have a footnote that the Office of Naval Intelligence, the FBI, the FCC, all say that it is not necessary to incarcerate Japanese Americans. They do not pose a military threat. The Solicitor General declined to adhere to Ennis's request. None of that was before the court.

[00:19:15] Host: 40 years later or about 40 years, a little under 40 years later, Minoru reaches out to you. My audience are mainly students or lifelong students. I don't know how many of them are legal scholars. Would you give us an explanation of coram nobis?

[00:19:38] Peggy: Yes. Coram nobis, it's a writ of error coram nobis. It's nothing that I learned in law school as well. If you feel that someone's conviction was unlawfully obtained and they had already served their sentence. If there is material evidence that would have changed the outcome of a case if the court had the evidence in front of them, then if you are in jail at the time, you bring a petition for habeas corpus, which is what many people know more about. After you've served your sentence and you feel that there's material evidence and the decision would have been different, then you bring a petition for writ of a coram nobis. That's what we brought.

[00:20:33] Host: What was the outcome of that?

[00:20:38] Peggy: The Komatsu, Hirabayashi, and Yasui cases, as lawyers, we all gathered together. We drafted very similar and identical petitions except for names and certain other things that were different. All three cases went off in three different directions. In the Yasui case, what Judge Baloney, who was the federal district court judge said was that really the government and the petitioner want the same thing. The government's willing to say, "Vacate the conviction, dismiss the indictment," but the government said, "We do not want an evidentiary hearing.

We said we wanted an evidentiary hearing because we want to establish that the reason for Min's incarceration was not military necessity, but racial discrimination." The judge said that fact-finding of that sort 40 years later is unnecessary with no legal consequence. I am granting the government's motion to vacate his conviction and dismiss his petition, which is what dismisses indictment, which is what we wanted as well. The big difference is why. They wanted to hide it, we wanted to bring it out so that's why we filed for an appeal to the Ninth Circuit for an evidentiary hearing.

[00:22:10] Host: Did anything come of it? Did the government ever admit that they made a mistake?

[00:22:19] Peggy: Yes. Not in the Yasui case, because as his case was going up on appeal, he died. The government immediately filed a motion to dismiss based on mootness, because the petitioner was no longer alive. We countered with, this is not just his case, it's a case of 120,000 people. We did a writ of certiorari to the United States Supreme Court, and they denied the writ.

No. He passed without really getting the full extent of the remedy that he wanted. It was so tragic because he was a lawyer. He knew the law, he knew this was wrong, and yet he didn't see either the full attainment of his coram nobis case nor the Civil Liberties Act of 1988, in which President Reagan signed a bill for redress for Japanese Americans, and he was very much involved in that case.

[00:23:31] Host: Looking at-- We're in the first week of a new administration. There's a lot of fear. There's a lot of concern about rights being taken away. As a lawyer who deals with this, what do you recommend for those Americans who are nervous about protecting themselves and their rights in this unknown future of 2025 and beyond?

[00:24:03] Peggy: I have to say, I'm no longer practicing law.

[00:24:06] Host: Sure.

[00:24:07] Peggy: I'm inactive. I'm not giving a legal opinion, in other words.

[00:24:10] Host: Right.

[00:24:12] Peggy: What I would say is that Trump wants to use the Alien Enemies Act of 1798 to detain and deport people and that a bill was just introduced by Senator Hirono and Representative Ilhan, the Neighbors Not Enemies Act to repeal the Alien Enemies Act of 1798. We hope that that repeal will happen. I would say that people who thought they were going to be safe, I talked to immigrants after the election, and three out of four of them voted for Trump. They just thought it wasn't going to happen to me because I have documents or because of this, that, and the other thing.

I would say there are a lot of immigration projects, including the National Immigration Project, that they need to understand what their rights are. I think as Japanese Americans, we have the moral authority to speak about detention, deportation, and incarceration, and we have the moral obligation to speak out about it and do something about it. I'm hoping that folks will go to different immigration resources, including the Asian Americans Advancing Justice in DC, in LA, the Asian Law Caucus in San Francisco, one in New York to learn more about their rights because while many people think about Latinos or Mexicans or South Americans, really the second largest group are Chinese for targeted detention and deportation, and we need to take that seriously.

[00:26:16] Host: That's all I have unless there's anything else you'd like to leave us with.

[00:26:20] Peggy: I guess what I would say, and what I've learned from this is as I grew up with no idea that I would have the career or the life that I have, that if you can dream it, you can do it. That people need to stay empowered and hopeful and optimistic during this time. That I never would've believed that my career would be where it was and where it has been. I never would believe that I would still be doing one aspect or another of the Yasui case or the coram nobis cases. In 2017, we started the Minoru Yasui Legacy Project. It's an organization to continue his legacy of defending civil rights and social justice.

I think in this time, it's very important for people to gather together, to have communities, to have places where they can go so that they don't get discouraged because that's exactly what people want us to do. To not believe we can make a difference. All those executive orders came fluttering from the sky every which way. Part of it is to the shock and awe, as some people have said, but to very much discourage us from doing anything. Also expending resources like birthright citizenship. They're putting that into question and of course, people have to file lawsuits to defend that. Even though, hopefully in the end it will be deemed unconstitutional, you can't, et cetera.

Part of it is the level and the huge mass just blanketing every aspect of civil rights, human rights, social justice that we're seeing. We need to not get discouraged, even though it is easy to get discouraged and to be angry. I have a temper. I really know that one really well. If anything, what Minoru Yasui taught us is that one person from Hood River, Oregon who was a Boy Scout, who was an ROTC person, one person can make a difference if they want to. Recently, Mitsuye Endo Tsutsumi received the Presidential Citizens Award. I don't know if you knew that. He got it from President Biden on January 2nd. We all went to the White House for the ceremony.

It was the lead attorneys of the coram nobis cases that formed the Endo Presidential Medal of Freedom Committee. We filed a nomination with the White House. Catherine Bonna and I were the co-chairs of that. We knew that three out of the four Japanese American cases had been honored and recognized by a president and we wanted the fourth person, Mitsuye Endo to also be recognized. We were really worried that it wasn't going to happen. I was committed that if it wasn't going to happen during Biden, I was going to try to do something during Trump's administration, but President Biden awarded her that Citizens Medal.

Now all four petitioners have been recognized with a Presidential Award. She, as a lone woman petitioner, and she actually won her case, to me each of the cases shows that if you step forward, if you do what's right, if you're willing to put yourself out there, there's many things you can do, and that's what we need, are people willing to speak out, to come forward to support justice and democracy in the rule of law. Could I also say something else?

[00:30:44] Host: Please.

[00:30:45] Peggy: Because in 2014, Holly Yasui, Min's daughter, I visited her, she came to Portland and she had just been in a conference where she realized that Fred Korematsu and Gordon Hirabayashi had received Presidential Medals of Freedom. She said, "I really would like my father to receive a Presidential Medal of Freedom." I said, "Okay." I thought he was cut short by his coram nobis case. I said, "I'm willing to do that. I'll spearhead the movement." We did a move, really a grassroots to grasstops movement. Had 180-some letters of recommendation.

He was awarded a Presidential Medal of Freedom from President Obama in 2015 posthumously. He's the only Oregonian to have ever received a Presidential Medal of Freedom. Then in 2016, the Oregon Legislature unanimously created and passed legislation for Minoru Yasui Day, March 28th in Oregon. He's the only Oregonian with a day in Oregon.

[00:31:58] Host: Oh, I love that.

[00:31:59] Peggy: Signed by the Governor. Again, I didn't know when we started out on getting a Presidential Medal of Freedom, that he was the only one to receive one. I had no idea. I'm glad that no one told me. People said, "Ah, it's not going to happen, Peggy." I said, "You don't know who I am, and you don't know where I've been." When we did get it, it was quite an honor. When Mitsuye Endo did get her Presidential Citizens Medal, it was quite an honor to be at the White House, to see the event, and to go to the ceremony afterwards where people like Liz Cheney and Bennie Thompson were also given Presidential Citizens Medals at the same time.

[00:32:47] Host: We'd like to thank Peggy Nagae. 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.com, chapman.edu, and library.ca.gov.