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Korematsu Center takes lead in amicus brief challenging indefinite detention

December 18, 2012

The Korematsu Center at Seattle University School of Law has joined the challenge to the National Defense Authorization Act with the filing of a critical amicus brief in Hedges v. Obama, a case pending before the Second Circuit Court of Appeals. The brief challenges provisions of the act that allow the indefinite military detention of civilians suspected of supporting terrorism, including American citizens, without basic due process guarantees.

The brief was filed on behalf of the children of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi, who took their wartime internment of Japanese Americans to the U.S. Supreme Court. It argues that courts must carefully scrutinize government national security actions that impinge on constitutional rights. Lorraine Bannai, director of the Fred T. Korematsu Center for Law and Equality, coordinated the drafting of the brief. She has previously testified before Congress against provision of the NDAA.

"During WWII, Japanese Americans were rounded up by the military without hearings or charges; we can't let this happen again under the NDAA," Bannai said. "Through this brief, we hope that the court will draw from the lessons of the wartime internment and affirm the lower court judge's courageous decision striking the NDAA's detention provisions."

The amicus brief describes a terrifying parallel to the incarceration of Americans of Japanese ancestry during World War II. Under the pretense of national security, the NDAA essentially repeats the decisions in the discredited World War II cases of Korematsu, Hirabayashi, and Yasui, allowing the government to imprison people without any due process rights for an indefinite time.

Korematsu Center Fellow Anjana Malhotra and Executive Director Bob Chang assisted with the brief, as well Eric Yamamoto (University of Hawai'i William S. Richardson School of Law), Bob Rusky, and Cayce Greiner, with contributions by Dale Minami (Minami Tamaki LLP) and other attorneys from the Korematsu, Yasui, and Hirabayashi legal teams.

Read the brief.

Read more about the case and the history behind it.