my brother came to visit us, and the sad part is, the u.s. army uniform, he had to come through the u.s. army guards to come to visit his family. susan: can you pick up on that last point? there are probably other men interned in the camp of military age? how did the government treat them if they were interested in serving in the war? peter: it was a very complicated situation because initially the military resisted, particularly the army, resisted any involvement of the japanese-americans as soldiers. but, they finally decided, mostly as a pr gesture, that they would set up a separate battalion, the 442nd battalion composed of japanese-americans, most of whom came out of the camps and volunteered to serve their country.

fighting against an enemy that used concentration camps while their own parents were in camps. they were sent to the european theater. they fought gallantly, particularly in italy. they suffered the greatest casualties of any battalion, and they were the most decorated. one u.s. senator, from hawaii, was a member of that battalion and he lost an arm during the war. they fought valiantly. there were other people in the camps who resisted the draft. this is a little-known, little told story. they said, as long as we are being locked up, simply because of our race, why should we fight for a country that treats us like this? and they refused to go. they were known as the resistors. many of them were convicted and sentenced to prison. finally, president truman, after the war, pardoned them all. it was a mixed thing, because the army treated them as a

special -- they also did with african-american soldiers during the war -- it was a segregated army. they fought for the country and fought and suffered and died for the country, but were not treated as real americans. susan: ther were a series of questions asked of people interned in camps. question 27 in the loyalty form: are you willing to serve in the armed forces were ever ordered? and 28, will you swear unqualified allegiance to the u.s. and faithfully defend the u.s. from any or all attacks by foreign or domestic forces and forswear any form of allegiance or obedience to the japanese emperor and any other foreign government or organization? those who said no he came the no-nos. i want to take a couple more calls. the next stage is the case moving to the supreme court. we will find out how that happens. here is martha who is watching

us and from virginia. >> hello. the question is probably an answer will be answer, but i just remember -- i remember that i am 60 years old -- when i was 8 years old, she told me all about this and was outraged by it even then. this is in the early 1950's. she had just been a teenager, but she was still outraged at the way the japanese were treated, and we are from virginia, not known as a real liberal state. she was outraged by it, and what i wanted to know was, how the dissenters on the supreme court decision -- how do they make their judgment? what was there reason for dissenting against the majority? susan: thank you. we have not gotten to that yet. if you don't mind, we will hold the question until we do. let's take a call next from marvin who is in los angeles.

>> i am a retired high school u.s. history teacher, and the introduction to your program uses justice breyer saying -- he is talking about the role of law, i don't understand how the violation of the fifth amendment, section nine and article for -- article iv the right of a trial by jury could be ignored by somebody like justice douglas. that is the first part. second, i wonder if you know that at one time in the early administration of president obama, a japanese-american was three persons away from being president of the united states? the senator was the president of the u.s. senate.

the first person would be the vice president, the second would be the speaker of the house, and the third person in line to be president of the u.s. would be a japanese-american whose friends were put into laces like -- in into places like -- think you very much for the program. you are topping even the first ladies, and that is quite a task. susan: thank you. what is your reaction to those comments? peter: it is very interesting. the idea that when something terrible happens in the country, practically ours, we take our rights very seriously. that, once we have advanced past that, and we have come to understand -- the same thing happened with school segregation, for example. we got past school segregation, but in a sense, we never left it behind.

because, to get ahead of things, our schools are still segregated in many places. the idea that things like this cannot happen again -- marvin talked about the rule of law. members of the supreme court, of course, and all public officials in this country taken out to defend the constitution of the united states. it has these particular guarantees, he mentioned the fourth amendment and fifth amendment, the right to trial by jury, you cannot be sentenced to incarceration without a trial, without charges being brought against you. all of this was ignored, glossed over by the supreme court in the korematsu case. susan: next up is william in denver, colorado. >> thank you very much. mine is more of a personal -- i was around one of the three leaders -- became a very

distinguished civil leader in denver, and i was greatly honored many years ago to receive a civic award that was dedicated to him. i should say that it is true that the post-9/11 actions by the congress, the patriot act, remind us that this could happen over and over again, and that we do have to be vigilant, but also as you just were mentioning, how important it is that the hope triumphed in the end. people were displaced, but they did not lose faith, they came back, and the country is stronger, perhaps, for the experience. thank you. susan: thank you for the comments. next we are going to show you

that there was widespread debate in the fdr demonstration on the constitutionality of the japanese internment program. the justice department document acknowledging that the government knew about the japanese-americans posing as security threat, but what form the basis of the korematsu case. let's watch. >> these are the documents that we pulled from the fdr library archives, which give you an indication of a discussion and debate that went on over whether or not to intern japanese-americans on the west coast of the u.s. this one is very interesting, it is from the assistant to the attorney general of the u.s. to fdr. asking to alert the president of the situation that is going on in california. he says it looks like it may explode any day now. there is a huge amount of public pressure to move them out of california. citizens and aliens alike. he also says that they will probably require suspension of the writ of habeas corpus. we should have another supreme

court fight on our hands. he is clearly concerned about the legal implications and the constitutionality of trying to intern japanese-americans. here's a document from the attorney general of the u.s. to fdr. first, he identifies in the opening paragraph that there clearly is a racist element involved in this discussion of trying to intern japanese-americans during the war. he says that west coast people distrust the japanese, special interest groups would welcome their removal from good farmland, and the elimination of competition. but, he says, in spite of that, my last advice on the war department is that there is no evidence of imminent attack. from fbi, that there is no evidence of sabotage. he is dismissing the fundamental arguments in favor of interning japanese-americans. here, actually, is the actual text of the executive order. this document is actually not

all that specific, in terms of which nationalities or ethnic group might be ultimately affected by it. what it does is it defines this idea that the department of war has the authority to create his military exclusion zones. these would be fairly large areas on the west coast of the u.s. as a result of this, under this authority, the japanese-american community on the west coast, including american citizens, would be moved into internment camps. susan: we see that there were people within the fdr administration who predicted there would be a court challenge. how infected the court case get to the supreme court? was the mechanism? peter: after he was convicted, there was an appeal. the appeal went to the ninth circuit court of appeals, which did not decide the case, it just send it on to the supreme court. the court had already decided in 1943, in the previous cases, but

those involved the curfew. the curfew was considered much less of a burden on japanese-americans, after all, it only said you had to be in your home between 8:00 p.m. and 5:00 a.m. the interment itself, the exclusion order, was the issue before the court. it is very clear, now, in hindsight, that the court was misled. but the point, i think that is even more important, is that it was clear at the time, there were government officials, including the attorney general, and several of the justice department lawyers who were involved in these cases who said no, we can't do this. it violates the constitution. in what became, i think, one of the great tragedies of american law, the government's highest-ranking lawyer, the solicitor general of the united states, got up before the

supreme court and said, this is something we have to do because the president and the congress have decided on this. we're not going to challenge them. we're not going to second-guess them. there are americans lying at the bottom of pearl harbor who were killed by the japanese. we have to be vigilant about this. susan: so, in our last week's case, which was a world war i case, we learn that the justices were really imbued with a lot of patriotism during the time of the war and world war i -- was it the same sort of feeling that these justices wanted to support the war effort? peter: it was, almost exactly. in contrast to the decision in the previous case, which was unanimous, the decision and fred's case was a split decision, as you said. 6-3. but, what is very interesting, is some of the most liberal justices on the court, by reputation, and historical

account, justice hugo black for example, who wrote the opinion upholding fred korematsu's conviction. justice william douglas. the great liberals of the court, they voted to uphold the conviction. there were three justices, however, who dissented. every constitutional scholar agrees that these defense by these three justices completely obliterated, obliterated the reasoning and justice black's opinion. they pointed out -- they made two serious points. abject deference to the executive even during wartime is not a function of the judiciary. it is upholding the constitution. secondly, this is decided simply on the basis of race. they made that point as justice murphy said, i dissent from this legalization of racism. and very soon, after these

decisions, within a year, one of the most noted law professors in the country, professor at eugene of yellow school wrote in the yale law journal, saying that the korematsu case is a constitutional disaster. this is not something that 40-70 years later, we say oh, that was a mistake back then. they had no reason at the time, except to uphold what they thought was a patriotic duty. susan: for the record, i want to get some of this on the screen, so people can have the reference . first of all, the chief justice at the time was harlan. he was appointed by whom? what was his persuasion? peter: he was appointed by herbert hoover. he was a republican. he would not have been a republican today. because, he was, in fact, one of the great chief justices that we have had. susan: also a number of other

names have become famous to people. you mentioned justice douglas, just as referred her -- justice frankfurter. the constitution of the court was what at this time? peter: eight of the nine members of the court with the exception -- seven of the nine members, with the exception of justices don't and jackson had been appointed by fdr. they were the new deal justices when fdr threatened to pack the court back in the 1930's by adding new justices, he finally got his wish. he appointed a majority of the court. these were people who owed some kind of personal and institutional loyalty to the president. in this particular case, during wartime, it is very hard for anybody, including a member of

the supreme court, to say as -- that the president was wrong and what would be the implications of that. susan: the court said, yes. and the second question, should fred korematsu's conviction be upheld? and the court said, yes. and it was a 6-3 decision. want to read a little bit of a justice black's decision so you get the flavor of it. in your book, you noted it started out with the decline of racism. how did it switch? peter: because like many people, you can believe in one thing and the exact opposite at the same time to make an argument. justice black did say racism is

wrong. korematsu was not convicted did -- because of hostility to him or his race. susan: i will read a bit of that. "he was not excluded because of hostility to him or his race, he was excluded because we are at war with the japanese empire. military authorities, decided that the urgency of the situation demanded that all citizens of japanese ancestry be segregated. congress, as inevitably it must, determined that they must have the power to do just this." so what is notable about that? peter: there are several aspects that are questionable. the judiciary has no means in this.

even during the civil war, when the judiciary said that lincoln could not suspend habeas corpus and could not interned people indefinitely or sentence them to death without a trial in civilian court. the dissenters pointed out that it was wrong. on awhole thing was based racial assumption. as i had quoted general dewitt earlier as a saying, there is no such thing as "a loyal japanese." the military argued the reason for the interment was there was no way to sort out the loyal from the disloyal. or as general dewitt put it, the goats from the sheep. he said it was impossible to do

that. they accepted that. susan: here's something from justice jackson's dissent. one of three in the case. he said that guilt is personal, not inheritable. even if all antecedents had been convicted of treason, the constitution forbids for its penalties. here is an attempt to make otherwise innocent acts a crime merely because such criminal law, i suppose this court should refuse to enforce it." peter: that's a powerful statement. the dissent of justice holmes in many famous cases, for example, that in abrams v. united states, those dissents are the expected version of what the constitution means.

the majority opinions have gone down. the only problem is that in fred's case, the decision remains on the books. because the president, the supreme court, has never revisited the case or said flatly, we were wrong. the case was decided in 1944, when did the camps close? karen: by 1945, the cancer all closed. people actually left in different stages. the thing is, the evidence was already there, even day one when people started going into these concentration camps. these were not dangerous people. there was no military necessity. so you know, at some point, the government was saying, well, what do we do with the 120,000 people when they all are going

to leave the camps? so, the community leaders, they got them to go in and help people to get jobs. you could go east before the end of the war, but you cannot go west. that is what my father did, which was surprising for me to learn since he already had a federal conviction. susan: we will take more calls. gladys in pittsburgh. caller: good evening. i just wanted asked the panelists if they think this was completely racist to the japanese. germans were not interned. they were not bound. italians were not interned. they were not bombed. why would the japanese interned? thank you. susan: we certainly did bomb germany. not with the atomic bomb. but what about interment? karen: it was clearly racist,

and that lesson is relevant today. i mean, korematsu v. united states was about racial prejudice, clearly, and those lessons need to be learned. that is what brings relevancy to it, especially this situation after 9/11. my father was one of the first people to speak up, along with the japanese-american citizens'league, when they talk about rounding up americans and putting them in concentration camps. susan: do you think korematsu would have been decided differently if roosevelt's court packing went through? peter: it actually did go through, because of the conservative justices he wanted to replace actually left the court died or retired -- they died or retired, so he replaced them with his own choices.

in a sense, what we are indicting here, and i think it is an indictment of the court, is the assumption that if these are good, liberal civil liberties, civil rights supporters, how could they do something like this? there are two points to consider. one, as i pointed out earlier, is that they were motivated largely by patriotism. that it was not their function to tell the president, during a time of war, that he could not take these kinds of steps. second, that they were misled. they were lied to by the government. the supreme court was lied to. that was the impetus in the 1980's for reopening fred's case so he could have the trial he never had the first place. susan: on twitter, we are asked, " hard to believe that one of the greatest justices of all time, who go -- hugo black,

offered the majority opinion in korematsu." peter: in this case, he had a personal connection. he was a good friend who had lived for a time with general dewitt. he was a veteran of world war i and intensely patriotic about that. so, in a sense he was blinded by those dual loyalties, his loyalty to the president, his loyalty to the military, and general dewitt in particular. when the arguments were made that fred's conviction violated the constitution, he changed gears. he stopped being the person he usually was. in black's case, it was a sad

thing. he could have and the initial vote was 5-4. justice douglas switched his vote at the last minute. if they had stayed true to their principles and not been swayed by wartime pressures, we not be here talking about the case, because it would have been reversed. and the interment would have been seen for what it is, a racist act of power. susan: david is in brentwood, tennessee. caller: i never really liked alarmists, but looking forward, i wonder, in the unlikely event that nuclear bombs go off in our land, what do you think, in your expert opinion, is the likelihood that it would be a round up of muslims or a religious class?

peter: this was proposed after 9/11. there were thousands of arabs and muslim americans rounded up, some of them detained for lengthy periods of time. there is a lot that is going on challenging that. so the idea that it could not happen again, it's sort of wishful thinking. i would like to believe that we learn from our mistakes. it is encouraging to think that today's generation, particularly young people, have more of an appreciation for the rights they enjoy as americans. but, there are enormous pressures, particularly during times of war, as one of the judges pointed out. the judge who vacated fred's conviction in 1983 pointed out that during crisis, we have to be especially vigilant to protect our rights.

susan: i will show another piece of video. his conviction had been upheld by the supreme court. he traveled to the midwest of the united states. this piece of video is from 1998, and it takes place at the white house. bill clinton: in the long search for justice, some names of ordinary citizens stand for millions of souls. plessy. brown. parks. for that distinguished list, today we add the name of fred korematsu. [applause]

susan: karen, what was the path from the supreme court to the president of the united states giving him the medal of freedom? tell us the story. karen: he was able to leave the topaz concentration camp to pursue a job opportunity. first, he went to salt lake city. he almost died of there of pneumonia. that is when he met and married my mother. they could not get married in south carolina, where she was from. they got married in detroit. susan: interracial marriage? karen: yes.

susan: what about the legal side of the case? what happened? peter: this is one of the great experiences you never anticipate. back in 1981, i decided to write a book about these cases, an academic book, really. you have a copy of it, it is called "justice of war." in the research for the book, i learned about these cases in law school in my constitutional law class. we read them. everybody agreed these were terrible cases, terrible decisions. my question was how could this happen, with all these liberal justices to make such a terrible mistake? i started researching it. i came up with documents. in the government's own file, it showed that during the prosecution of these cases, before the supreme court, lawyers had warned charles fahey that the evidence he was playing -- plann