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THE ASIAN AMERICAN HOUR has gotten bigger - we are now on the air weekly on public radio
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A WIN IN THE U.S.  SIXTH CIRCUIT COURT OF APPEALS. On August 18, 2014 in Nifadev v. Holder, (Case No. 13-3704/4222
6th Cir. 2014), the United States Court of Appeals for the Sixth Circuit held that Mikheil B. Nifadev has proven his claim that he
had suffered persecution by reason of his Russian ethnicity at the hands of the security and regular police of Uzbekistan.   The
Court vacated the decision of the Board of Immigration Appeals (BIA) in Washington, D.C. which had denied Mr. Nifadev asylum,
and the Court remanded the case with additional instructions to the United States Attorney General, including that the BIA should
determine whether the BIA should also reconsider its denial of Nifadev’s application for withholding of removal and protection
under Convention Against Torture (abbreviated CAT for Convention Against Torture And Other Cruel, Inhuman or Degrading
Treatment or Punishment of the United Nations) in light of the opinion of the Court.  The Sixth Circuit opinion essentially and
explicitly held that
"[b]ecause the IJ [Immigration Judge] appears to have erred in her determination that Nifadev did not suffer
past persecution and because the IJ clearly misinterpreted Nifadev’s credible testimony regarding the ethnic animus of the
Uzbekistan security officials, we find that Nifadev has made out a credible case of being a refugee under the definitions of
8 U.S.C. § 1158(b)(1)(A)."
 [Emphasis added].   The United States Immigration Court in Cleveland, Ohio, had initially
found Mr.  Nifadev and his witnesses to be credible but declined to grant asylum because it erroneously determined that
Mr. Nifadev had NOT suffered persecution.   Shown in photograph on the right is Mr. Mikheil B. Nifadev with Charleston
C. K. Wang, Esq.  who represented Mr. Nifadev during trial and both appeals. To read complete opinion, please
click here.
Pursuant to the Sixth Circuit opinion, the BIA on January 5, 2015, ordered the Immigration Court to grant asylum to Mr. Nifadev.
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July 4 - Citizenship with Mary Joan Reutter, Esq.
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STRICT SCRUTINY IS NOT A PANACEA:  THE HISTORICAL  LIMITS OF CONSTITUTIONAL JUDICIAL REVIEW IN NATIONAL SECURITY CASES

Strict scrutiny as a form of judicial review is taught in law schools and practiced in the United States courts today.   Strict scrutiny is the most rigorous standard applied by the federal judiciary to
balance the power of government on one hand and the vindication of a constitutionally protected right on the other.   While the "levels of judicial scrutiny" may be traced to a footnote in U. S.
Supreme Court decision,
United States v. Carolene Products Co. (1938), the actual articulation of strict scrutiny as a standard of judicial review occurred in the World War II Japanese American
internment case of
Korematsu v. United States (1944).

Similarity to Dred Scott and Plessy

This writer would respectfully suggest that Korematsu today can be thought of as a twentieth century case  that resounds with the footsteps of Dred Scott v. Sandford (1857) and Plessy v.
Ferguson (1896).   Dred Scott, most civil rights and civil liberty observers will recall, is the infamous Supreme Court decision which enunciated the principle of "once a slave, always a slave," and
rejecting Missouri's "once free, always free" judicial standard.  This Taney Court decision squandered the opportunity to abolish slavery from within the judicial forum and was an ignomious failure
that led to and was bloodily repudiated by fire and steel in the Civil War (1861-65).   
Plessy is the post-Civil War decision of the Supreme Court which upheld the "separate but equal"
underpinnings of Jim Crow, a decision that lingered until the beginning in the 1950's when the Supreme Court begain to look at civil rights in a new light, and culminating in the Civil Rights
legislation of the 1960's.  Taken together, Dred Scott and Plessy represent two landmark failures of the high court to mete justice in what we now know as civil rights.   Presently, add to them
Korematsu v. United States as we shall now explore.

Fred Korematsu Decides to Challenge Internment

Korematsu, albeit with 20-20 hindsight, similarly failed to protect the liberty interests of those American citizens of Japanese ancestry who were relocated into camps by Executive Order 9066
after the attack by imperial Japanese forces on Pearl Harbor in 1941.   Fred Korematsu was a Japanese-American man who decided to stay in San Leandro, California and knowingly refused to
obey the order of the United States government.  He was arrested and convicted regardless of his argument that E.O. 9066 violated the Fifth Amendment to the United States Constitution (no
person shall be deprived of life, liberty or property without due process of law).   There was no question of Korematsu's loyalty to the United States. During the course of the litigation, charges
had been leveled that United States Solicitor withheld from the Court naval intelligence reports exonerating the Japanese Americans of spying and other acts of disloyalty

The U.S. Court of Appeals for the Ninth Circuit affirmed the conviction.  The Supreme Court granted certiorari.

In the famous 6–3 decision, the Court found for the government and rejected Korematsu's constitutional challenge.  Six of the eight Roosevelt appointees sided with the President.   A Justice
Roberts of a previous century, entered a vigorous dissent which must be remembered:

"This is not a case of keeping people off the streets at night, as was
Hirabayashi v. United States, nor a case of temporary exclusion of a citizen from an area   for his own safety or that of the
community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of
convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry
concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly
labor the conclusion that Constitutional rights have been violated."

This the lone Justice appointed by a Republican President was joined by Justice Frank Murphy who passionately wrote:

"I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any
setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood
or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States.  They must, accordingly, be treated at all times as the heirs of the
American experiment,  and as entitled to all the rights and freedoms guaranteed by the Constitution."

The third dissent came from Justice Robert Jackson  although he rather honestly conceded that "military decisions are not susceptible of intelligent judicial appraisal."

Thus Came and Then Comes Strict Scrutiny

As noted above, it was in Korematsu that the United States Supreme Court laid claim to the power to exercise judicial strict scrutiny and demand the government show a "compelling interest"
when its action applies to a "suspect classification," such as race or national origin.  This maneuver recalls
Marbury v. Madison (1803) through which the Marshall Court formulated the basis for
the exercise of judicial review and judicial supremacy in the United States.   Should it be surprising that
Marbury also left the petitioner for writ of mandamus, William Marbury, without a remedy as
was the fate of Fred Korematsu one and a half centuries later?/FN1/

Korematsu did however give the United States Supreme Court the opportunity to establish the doctrine of strict scrutiny which can be viewed as the twentieth century refinement of the judicial
review of old according to Marbury.  Fred Korematsu can derive some comfort in knowing that since that first articulation of strict scrutiny, this modern doctrine has gone on to provide relief to
many civil rights (suspect class) claimants, to include the petitioners in such famous cases as
inter alia (1) Brown v. Board of Education (1954), (2) Griswold v. Connecticut (1965), (3) Loving v.
Virginia (1967) (4) Roe v. Wade, (1973), and (5) quite recently United States v. Windsor, (2013).

Redress for Fred Korematsu and Other Internees

Coming back to Fred Korematsu and the infamy of the internment of Japanese Americans after Pearl Harbor which drew the United States into World War II, it was not until the 1980's that the
Korematsu, Hirabayashi, and Yasui cases would be reopened by petitions for coram nobis, proceedings would eventually void the convictions of the 1940s.  These petitions, however, are
docketed in the lower federal trial courts and may not have appellate stature and precedential authority.  Nevertheless a "cure" after nearly half a century!  Leadership for redress was provided
by the Japanese American Citizens League.

In 1988, President Ronald Reagan signed the Civil Liberties Act, and providing for financial redress of $20,000 for each surviving detainee.   In 1992, President George H. W. Bush signed the
Civil Liberties Act Amendments, appropriating an additional $400 million to ensure all remaining internees received redress payments.   President Bush issued another formal apology from the U.
S. government on December 7, 1991, on the 50th-Anniversary of the bombing of Pearl Harbor stating "In remembering, it is important to come to grips with the past. No nation can fully
understand itself or find its place in the world if it does not look with clear eyes at all the glories and disgraces of its past. We in the United States acknowledge such an injustice in our history.
The internment of Americans of Japanese ancestry was a great injustice, and it will never be repeated."  In 2001, Congress authorized  the ten detention sites are to be preserved as historical
landmarks: "places like Manzanar, Tule Lake, Heart Mountain, Topaz, Amache, Jerome, and Rohwer will forever stand as reminders that this nation failed in its most sacred duty to protect its
citizens against prejudice, greed, and political expediency".

But Strict Scrutiny is Not Panacea

But it must also never be forgotten that at that crucial hour of need for constitutional protection, strict scrutiny failed Fred Korematsu, just as judicial review failed Dred Scott and Homer
Plessy before him.   Thus is strict scrutiny no panacea.   Will such failure occur again today?

The late Supreme Court Chief Justice, William H. Rehnquist wrote in his 1998 book All the Laws But One – Civil Liberties in Wartime,  "An entirely separate and important philosophical
question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no
reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their
predecessors." (page 124).

More recently, on February 3, 2014, the late Justice Antonin Scalia told law students at the University of Hawaii at Manoa that "the Supreme Court's Korematsu decision upholding the
internment of Japanese Americans was wrong, but it could happen again in war time."   Again during October 2015 Justice Scalia told law students at Santa Clara University that Justice
Jackson's dissenting opinion in Korematsu was the past court opinion he admired most, adding "It was nice to know that at least somebody on the court realized that that was wrong."

The Civil War Habeas Corpus Cases

At the start of the Civil War in 1861 John Merryman, a lieutenant in the Baltimore County Horse Guards, a state militia, participated in the destruction of several bridges north of
Baltimore to prevent Federal troops from Pennsylvania from marching into Baltimore to provide security from rioting.   Federal troops arrested and detained Merryman inside Fort
McHenry.   After the refusal of a writ from the district court, Chief Justice Roger Taney riding circuit (not as a member of the  Supreme Court but he was the same jurist who wrote the
Dred Scott decision a few years before the start of the war) issued a second writ of habeas corpus which was delivered to the Union General commanding in Maryland who under
orders from President Lincoln again refused to bring the prisoner to the court.  A writ of habeas corpus is a judicial order commading a jailer to bring a prisoner out of detention and
into the court to be heard.  In Ex parte Merryman, Justice Taney, still sitting as a federal circuit judge, issued an opinion that only Congress could suspend habeas corpus, but the
resident refused to release Merryman and the Union army continued to make arrests.  As the Civil War raged, in March 1863, the United States Congress passed the Habeas Corpus
Suspension Act.

In 1864 Lambdin P. Milligan and others were arrested, tried, and sentenced to hanging by a military commission in Indianapolis for inciting rebellion and aiding the Confederacy.  The
death warrants were commuted by President Andrew Johnson and lawyers filed for habeas corpus.  April 3, 1866, Chief Justice Salmon P. Chase handed down the Court's decision,
upholding the writ of habeas corpus and that the military commission did not have the jurisdiction to try and sentence Milligan; the Civil War had ended on May 9, 1965.  Milligan was
released and went home to practice law; he sued for damages asking for thousands of dollars and the jury awarded him five.

Interestingly, the Milligan Court described three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the
boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or
insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its
exercise.

The Guantanamo Habeas Corpus Cases

Now we are at a point in this article to finally discuss the Supreme Court cases dealing with the post 9/11 operation of the detention "camps" at Guantanamo Bay.   The leading cases are
(1)  Rasul v. Bush (2004) holding that the federal courts had jurisdiction over Guantanamo, and that detainees had a right to an impartial tribunal to challenge their detention under habeas
corpus; (2) Hamdi v. Rumsfeld (2004) holding that United States citizens detained as suspected enemy combatants had the right to habeas corpus, (3)  Hamdan v. Rumsfeld, (2006)
holding that the Bush Presidency did not have constitutional authority to create separate military commissions in Guantanamo outside from the existing federal and military justice systems,
and (4) Boumediene v. Bush (2008) holding that the Guantanamo detainees were entitled to the protection of the United States Constitution, a very signal and wide-ranging ruling.

Since the days of Ex Parte Merryman, and if one prefers even going back to the days of Marbury v. Madison, the federal judiciary is ultimately dependent on the good offices of the Executive
Branch to see to the execution of its orders, writs, and mandates.   The United States Marshal necessarily stands in awe and the shadow of the power of a General of the
United States Army - Justice Taney's did when he was refused admittance into the fort.   The situation facing the habeas corpus petitioners at Guantanamo is that the United States
Congress has added further complexity by passing the Detainee Treatment Act of 2005 and the Military Commission Act of 2006.   The Guantanamo camps remain in operation presently
although on  February 23,  2016, President Barack Obama sent a plan to Congress for the closure of the Guantanamo camps.

Is Strict Scrutiny Panacea?

It is noteworthy that the Guantanamo habeas corpus decisions are silent as to "strict scrutiny."   And the civil rights cases that utilize strict scrutiny are actions against the several states
under the Fourteenth Amendment.   In Korematsu, the action was directed at the United States and the application of strict scrutiny found in favor of Executive Order 9066.To complete our
discussion, I come back again to the late Justice Scalia.   His address in Hawaii in 2014 went on as follows:  “But you are kidding yourself if you think the same thing will not happen again.  
Inter arma enim silent leges … In times of war, the laws fall silent   That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot, that's what happens.
It was wrong, but I would not be surprised to see it happen again — in time of war. It’s no justification but it is the reality.”

Inter arma enim silent leges!  This is a Latin dictum that goes back to ancient Rome.  A corollary maxim is "salus populi suprema lex esto" which can be translated as "the safety of the people
is the supreme law."   We know from Korematsu, there is an actual limit to strict scrutiny - history has shown that with a threat to national security, or indeed national survival of the magnitude
of Pearl Harbor that limit is crossed.   In this century, after the 9/11/2001 attacks, that limit was fortunately never tested because no general internment of any suspect group was instituted
by the President except for the institution of the camps at Guantanamo Bay.   The group of habeas corpus decisions from Guantanamo (Rasul, Hamdi, Hamdan, and Boumediene) are rather
different from Hirayahashi, Korematsu, and Yasui (to be distinguished from In re Endo which was a habeas corpus case).

A Hypothetical Nightmare Scenario

However with the increased instability in the aftermath of the Arab Spring, fears of another terror style attack inside the United States more massive than 9/11 continue unabated.   In the
age after Hiroshima-Nagasaki, one nightmare scenario is the deployment of a dirty bomb in a big city and the resulting contamination of many square miles of urban space and many people
say in 2017.   A worse scenario is the actual detonation of a nuclear weapon.  Salus populi suprema lex esto!   A newly elected President fresh from defeating his female opponent imposes
nationwide Korematsu style measures in the name of national security.   How will strict scrutiny fare in the face of these hypothetical facts?  Will the judicial review rationale that is based on
habeas corpus rather than strict scrutiny that is written in Rasul prove prophetic or these words fail to afford constitutional relief for those who are innocent but happen to be members of the
suspect class?  Will the law stay silent?  But then, thanks to the Magna Carta of King John of England, we still have the Great Writ of Habeas Corpus!

An Op-Ed by Charleston C. K. Wang, March 1, 2016.

FN1 -  We see a doppleganger of this judicial power in King v. Burwell (2015) where our current Chief Justice John G. Roberts invoked Marby v. Madision to exercise the power to decide
jurisdction over a tax question, but having done so ruled against the petitioner and to the chagrin of the opponents of the Affordable Care Act.

THIS OP-ED IS ALSO POSTED ON THE WANGNEWS BLOG - YOU CAN POST YOUR THOUGHTS THERE -
With Fumiko Tanaka (left) and Dr. Santa Ono
President of the University of Cincinnati
May 16, 2013
With
Barry Rosenbush
Producer of
AMERICAN PASTIME
With Kerry Ko Nakagawa
Associate Producer
AMERICAN PASTIME
AMERICAN PASTIME
AT THE
NATIONAL UNDERGROUND
RAILROAD FREEDOM CENTER
May 4, 2016
HELP ERASE GUN VIOLENCE - A MESSAGE FROM CHRIST CHURCH
CATHEDRAL IN THE CITY OF CINCINNATI, June 4, 2016
Photo courtesy of Jay Davis
KALINKA
(& KATYUSHA TOO)
WITH BALALAIKA
A RUSSIAN SUMMER NIGHT AT PETERLOON ESTATE, INDIAN HILL, OHIO
A Celebration for St. George's Orthodox Church, Loveland, Ohio, June 19, 2016.
DR. VLADIMIR TSIBULSKI
CHRIST CHURCH CATHEDRAL PICKETED BY PROTESTERS
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A MESSAGE FROM
CHRIST CHURCH CATHEDRAL
IN THE CITY OF CINCINNATI, OHIO
CANDLELIGHT VIGIL FOR VICTIMS OF GUN VIOLENCE
OF ORLANDO, FLORIDA
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1965 MUSTANG MUSCLE CAR
BURUNDI SURVIVOR OF HUTU-TUTSI GENOCIDE WINS REMAND TO U.S.
IMMIGRATION COURT FOR NEW TRIAL.  MR. OMARI  TOYI TIMELY  FILED FOR
ASYLUM IN  2002.  AFTER LOSING A MERITS HEARING, MR. TOYI  APPEALED TO
THE BOARD OF IMMIGRATION APPEALS (BIA) IN 2014, THEN BEFORE THE U.S.
COURT OF APPEALS FOR THE 6TH CIRCUIT IN 2015, AND BACK TO THE BIA .IN
2016. ON 7/1/2016,THE BIA FINALLY ORDERED THE ASYLUM CLAIM REOPENED
FOR ETHNIC GENOCIDE BASED ON CHANGED COUNTRY CONDITIONS. IN ALL
PROCEEDINGS, MR. TOYI HAS BEEN AND IS REPRESENTED BY CHARLESTON
C. K. WANG,  ESQ.  TO READ MOST RECENT APPELLATE ORDER.
CLICK HERE.
SILVERTON ANTIQUE CAR SHOW July 17, 2016
1930 MODEL A FORD
FAREWELL DINNER PARTY FOR SANTA & WENDY YIP ONO,
PRESIDENT & FIRST LADY OF THE UNIVERSITY OF CINCINNATI,
July 17, 2016 at Fortune Noodles Restaurant, Clifton, Ohio
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INTRODUCING DR. NANCY ZIMPHER, PRESIDENT OF THE UNIVERSITY OF CINCINNATI
TO THE GREATER CINCINNATI CHINESE CHAMBER OF COMMERCE
February 7, 2006 University of Cincinnati, Ohio.
Not so long ago at the University of Cincinnati:
SURVIVOR OF HUTU-TUTSI GENOCIDE
IN BURUNDI WINS ASYLUM REMAND
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KIDS4PEACE IN CINCINNATI 2016
STOP THE GUN VIOLENCE
ART EXHIBITION AT
CHRIST CHURCH CATHEDRAL
IN THE CITY OF CINCINNATI
July 31, 2016
I
August 1 - 4, 2016
HAMILTON COUNTY SHERIFF                    
JIM NEIL AT SILVERTON NATIONAL NIGHT OUT, 8/2/2016
SILVERTON MAYOR
JOHN SMITH
Getting to Know Our Neighbors
ISLAMOPHOBIA - Not in Our Community
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