American racial justice on trial - again: African American reparations, human rights, and the war on terror.

• Author: Yamamoto, Eric K.

Few questions challenge us to consider 380 years of history all at once, to tunnel inside our souls to discover what we truly believe about race and equality and the value of human suffering.

--Kevin Merida (1) (on African American reparations)

Secretary of State Colin L. Powell said today that terrorists can only be attacked from "the highest moral plan" and that there is no contradiction between the Bush Administration's war on terrorism and a continuing U.S. commitment to human rights.

--Karen DeYoung (2)

1. INTRODUCTION

   Much has been written recently on African American reparations (3) and reparations movements worldwide, (4) both in the popular press and scholarly publications. Indeed, the expanding volume of writing underscores the impact on the public psyche of movements for reparations for historic injustice.

   Some of that writing has highlighted the legal obstacles faced by proponents of reparations lawsuits, particularly a judicial system that focuses on individual (and not group-based) claims and tends to squeeze even major social controversies into the narrow litigative paradigm of a two-person auto collision (requiring proof of standing, duty, breach, causation, and direct injury). (5) Other writings detail the new research uncovering business and public institutional profiteering on the slave economy--banks, railroads, insurers, and universities. (6) Still other studies document African American social conditions and the persistence of subtle yet invidious discrimination against people of color and especially African Americans. (7) Our Essay does not retrace this terrain. Nor does it offer an in-depth study of reparations dynamics in specific cases.

   Rather the Essay examines the ongoing and impending African American reparations suits and frames in larger terms what may well be at stake in this forthcoming epochal trial of American Racial Justice. In particular, the Essay draws linkages among African American redress claims, the United States' approach to international human rights and America's moral authority to fight its preemptive "war on Terror." Drawing upon and extending Professor Derrick Bell's interest-convergence thesis (8) and Professor Mary Dudziak's ensuing research (9) into the international underpinnings of Brown v. Board of Education, (10) the Essay offers insights into what the future might be, here and in the eyes of worldwide communities, depending on what choices we in America make about African American justice claims and human rights.

2. EPOCHAL RACE TRIALS: THE JAPANESE AMERICAN INTERNMENT AND AFRICAN AMERICAN SLAVERY

   In the Myth of Sisyphus, (11) Albert Camus describes Sisyphus as a man whose life is a recurring trial. Sisyphus is charged with the immense task of rolling a giant rock up a steep hill. He struggles, not sure he will succeed. When, after great effort, he finally pushes the rock to the crest, it crashes back down. And Sisyphus starts over again. Yet Camus, a novelist and French resistor of the Nazis, tells us not to despair. Sisyphus's awareness of his recurring trial, the passionate effort he nevertheless dedicates each time, and the progress, albeit momentary, he achieves give genuine meaning to his life's struggle.

   So it is with American Racial Justice. Since the United States' inception, racial injustice has marked the American landscape--along with efforts to rectify it. Both are American recurring traditions. And law is often central to racial subordination and sometimes crucial, although less often, to liberation. That injustice repeats is not itself reason to despair. The key, as Camus suggests, lies in how we struggle with each trial.

   American society now faces two recurring trials of racial justice. These are epochal race cases. (12) The Bush administration's war on terror is effectively retrying the World War II Japanese American internment case, Korematsu v. United States, (13) and the national security and civil-liberty tension it embodies. That case, described briefly below, has already once been retried in 1984 (14) because of the belated discovery of egregious Justice and War Department misconduct in the original case in falsifying the military-necessity basis for the internment. That retrial provided a legal foundation for Japanese American reparations. (15) Now, it appears, some in government are seeking to resurrect the "old" Korematsu to justify the Bush administration's present-day national security curtailment of civil liberties. (16)

   The other impending, and related, epochal race trial grows out of the African American reparations suits recently filed and soon to be filed in American courts. (17) With the Korematsu "retrial" as a backdrop, those reparations suits are the focus of this Essay. Collectively, the suits seek not only to recover damages for African American descendants of slaves, but also to create historic fact-finding commissions and education/health/housing trust funds for African Americans most in need. (18) Equally important, as in the Korematsu case, the suits will likely display how the United States handles the deep injustices it visits on its own people. Because courts are sites of "cultural performances" (19) in controversial cases, the reparations suits promise to reshape the way the American public and countries worldwide view American racial justice.

   Filed in federal courts across the country, the suits are driven by African Americans who see reparations as a key to peaceful and just coexistence in America and by different teams of prominent lawyers, including attorneys involved in past Swiss Bank litigation on behalf of Holocaust victims. (20) The suits target both private businesses that profited from slavery and the state and federal governments. (21) They assert both traditional American law and international human rights claims. Through the international law claims, the suits connect with myriad postcolonial reparations efforts around the world and globalize African American reparations by linking "the highest moral plane" (22) to fight international terrorism to the United States' domestic efforts to rectify historic injustice. (23)

   By asking Americans of all colors to "tunnel inside our souls to see what we truly believe about race and equality and the value of human suffering," (24) the suits also speak to the possibility of repairing the continuing damage to the American polity itself. (25) The passionate support of and heated opposition to the suits (26) suggests that they have hit a deep public nerve. American racial justice is on trial again not only nationally but in the eyes of the world. And as Camus reminds us, the recurring trial is not itself reason for despair. The African American reparations suits are attempting in part to repair-the-nation, and what matters in this trial is how Americans engage the struggle.

   1. Retrying Korematsu and the Japanese American Internment--National Security and Civil Liberties Revisited

      In 1983, former Supreme Court Justice Arthur Goldberg admonished the Korematsu legal team: Forget it; trying to reopen the case is ill-advised; you haven't a chance. (27) He made sense. Forty years earlier, the Court decided the notorious Korematsu case (28) with seeming finality. (29) The Court in 1944 upheld the constitutionality of the race-based internment of 120,000 innocent persons of Japanese ancestry on the West Coast during World War II. Those persons, mostly American citizens, were incarcerated for years in desolate prisons surrounded by barbed wire and armed guards, without charges, trial or bona fide evidence of any threat to national security. They lost their homes, jobs, businesses, personal belongings, and, in many instances, their health and families. (30) Although sharp criticism of the case immediately followed, (31) the decision stood as a judicial landmark.

      What chance, then, did a group of young volunteer attorneys have of persuading a federal district court in 1983 first, to vacate Fred Korematsu's conviction for refusing to accede to the military's internment orders, and second, to remove the continuing stigma of group disloyalty imprinted by the original Korematsu internment case? What chance did the team have of successfully "retrying" a forty-year-old case that, at the time, had validated eighty years of harsh anti-Asian laws and public discrimination against what politicians and media called the "yellow peril"? (32) What chance did the team and Korematsu have of reopening the case to push the United States to the "highest moral plane"--to deter future governmental civil-liberties abuses under the false mantle of national security? No chance at all, said retired Justice Goldberg.

      Nevertheless, as a complement to the Japanese American redress movement in Congress, the legal team pressed forward in court, fueled by the recent discovery of a cache of War and Justice Department documents from World War II. (33) Those official documents revealed three extraordinary facts: first, before the internment, all involved government intelligence services unequivocally informed the highest officials of the military and the War and Justice Departments that West Coast Japanese Americans, as a group, posed no serious threat to national security; (34) second, the key West Coast military commander ordering the internment based his decisions on invidious racial stereotypes about inscrutable, inherently disloyal Japanese Americans and on falsified evidence of espionage and sabotage; (35) and third, the military and the War and Justice Departments concealed and destroyed crucial evidence and deliberately misled the Supreme Court in 1944 when the Korematsu case was argued and the Court was assessing the military-necessity justification for the internment. (36)

      In January 1983, Fred Korematsu filed a rarely used petition for a writ of error coram nobis (37) to undo what the Supreme Court had originally done. The petition sought to set aside Korematsu's conviction in...