Shafiq Rasul, et al., Petitioners v. George W. Bush et al., Respondents and Khaled A.F. Al Odahet et al., Peititoners v. U.S., et. al.. Respondents – Brief of Amicus Curiae Fred Korematsu in Support of Petitioners


For approximately two years, Petitioners have been imprisoned incommunicado, without access to counsel and with no opportunity to contest in any forum the factual or legal basis for their confinement. Unlike Fred Korematsu, who, as a Japanese American internee, was at least permitted to challenge the constitutionality of his internment, Petitioners are being deprived of the most basic components of due process. The United States Government has defended these deprivations on the technical ground that federal courts lack reviewing jurisdiction because the Government has decided to incarcerate Petitioners on a military base over which it purports to disclaim “sovereignty.” But the basis for that defense-the Government’s voluntary decision to incarcerate Petitioners at Guantanamo Bay, thousands of miles from any battlefield-suggests a legal strategy, not a military one. Although certain aspects of the “war against terrorism” may be unprecedented, the challenges to constitutional liberties these cases present are similar to those the nation has encountered throughout its history. The extreme nature of the Government’s position here is all too familiar as well. When viewed in its historical context, the Government’s position is part of a pattern whereby the executive branch curtails civil liberties much more than necessary during wartime and seeks to insulate the basis for its actions from any judicial scrutiny. E.g., Korematsu, 323 U.S. 214. Only later are errors acknowledged and apologies made. E.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (holding that the writ of habeas corpus had been wrongfully suspended during the Civil War); Proclamation No. 4417, 41 Fed. Reg. 7741 (Feb. 20, 1976) (acknowledging wrongfulness of internment of Japanese-Americans). It is no doubt essential in some circumstances to modify ordinary safeguards to meet the exigencies of war. But history teaches that we tend to sacrifice civil liberties too quickly based on claims of military necessity and national security, only to discover later that those claims were overstated from the start. Fred Korematsu’s experience is but one example of many in which courts unnecessarily accepted such claims uncritically and allowed the executive branch to insulate itself from any accountability for actions restricting the most basic of liberties. Fortunately, there are counterexamples. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), this Court invalidated President Truman’s nationalization of the steel mills during the Korean Conflict, despite the Commander in Chief’s insistence that his actions were necessary to maintain production of essential war material. During the Vietnam War, this Court rejected a Government request to enjoin publication of the Pentagon Papers, refusing to defer to executive branch claims that publication of this top-secret document would endanger our troops in the field and undermine ongoing military operations. New York Times Co. v. United States, 403 U.S. 713 (1971). In deciding the cases now before it, this Court should follow the tradition those cases represent, not the one exemplified by Korematsu. To avoid repeating the mistakes of the past, this Court should reverse the decision of the District of Columbia Circuit and affirm that the United States respects fundamental constitutional and human rights–even in time of war.

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