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June 16, 2006

Issei Internment and the Turkmen Opinion: The Shoe Does Fit.

I
blogged yesterday about Judge Gleeson's decision in Turkmen v. Ashcroft, permitting the Executive to single out certain illegal aliens for prolonged and unreviewed detention on the basis of race or national origin. I suggested that Judge Gleeson framed his opinion in a way that would support the multi-year incarceration of the Issei in World War II -- a racial internment for which the Congress apologized and offered reparations in the Civil Liberties Act of 1988.

My comparison to the internment of the Issei has led some to cry foul. The claim is that because the Turkmen ruling applies only to illegal aliens, and the Issei were legal resident aliens, the analogy to the Issei internment is inapt, even scandalous.

Not so. The Issei were legal resident aliens until December 7, 1941 -- but after that date they were also enemy aliens, over whom the President, by statute, had as complete a power as is imaginable. The Alien Enemy Act (50 U.S.C. sec. 21) gave FDR the power to arrest, detain, and deport aliens of countries with which the U.S. was at war, under rules of his own making, without (or virtually without) judicial review.

Attorney General Francis Biddle decided to offer hearings to individuals arrested as enemy aliens after Pearl Harbor, even though the Alien Enemy Act did not formally require this. But in administering the system of hearings, the government engaged in stark racial discrimination. The government selectively arrested certain German and Italian aliens, and gave them hearings. (These hearings were not models of fairness, it must be noted. But they were hearings of a sort.) The government detained the Issei en masse, and offered hearings to almost none of them -- just a very small subset of a couple of thousand who were arrested immediately after Pearl Harbor.

It was this racial selectivity in enforcement -- even as to enemy aliens -- that led the Congress to apologize and pay reparations in 1988.

And it is just this sort of racial selectivity in enforcement that Judge Gleeson's opinion in Turkmen permits.

UPDATE: David Cole, one of the Turkmen plaintiffs' attorneys, draws the parallel with the Issei internment in this piece, "Manzanar Redux," in today's Los Angeles Times.

Posted by Eric at June 16, 2006 8:50 AM

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Comments

One difference is that the Issei were prohibited by law from becoming citizens. So even if they entered and resided in the country legally more than a decade before (almost assured since immigration from Japan was almost completely stopped in 1924), their status as "enemy aliens" was assured.

Posted by: modus potus at June 17, 2006 2:40 AM

Unfortunately, because the "plenary power doctrine" was established more than a century ago to permit discrimination against Chinese immigrants, there has been no effective challenge to it.

Posted by: Konrad at June 22, 2006 8:35 PM