Abstract

Korematsu II?

The article asks whether the U.S. Supreme Court will use the same rationale in deciding the fate of prisoners held at Guant& aacute; namo Bay, Cuba, as it did in the case of Korematsu v. United States, which upheld the internment of Japanese-Americans during World War II. The Supreme Court's November 10 announcement that it will review two cases challenging the detention, at Guant& aacute; namo Bay, Cuba, of foreign nationals as "enemy combatants" surprised many. The lower courts had unanimously ruled for the government. The Supreme Court rarely takes cases where the federal government has won below, and even more rarely where there has been no disagreement among the lower courts. So civil libertarians were heartened to hear that the Court had agreed to hear the cases. The detainees would probably be even more encouraged---that is, if they were allowed to know that the cases exist. But getting the Court to grant review and winning the cases are two very different matters. In times of crisis, the Court has almost always deferred to government claims of national security, no matter how unfounded--most infamously, in Korematsu v. United States, which upheld the internment of Japanese-Americans during World War II. The danger posed by the Guantánamo cases is that the Court will shirk this most critical responsibility and relegate the detainees to a permanent lawless state. If it does so, the Guantánamo cases may go down in history as Korematsu II.