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July 13, 2006
Korematsu and Guantanamo
I've said here, notoriously, that Korematsu actually looks legitimate from the perspective I develop in my book. Hamdi, though, I say in the book is more than legitimate--it's more or less required, so that a decision going the other way would probably be illegitimate. This might seem odd, especially if you think that the internment was worse than the Guantanamo detentions, which I believe many people do. So how can the legal comparison come out the other way?
Part of the answer is that the Korematsu Court ducked the hard question of the constitutionality of the relocation orders. (You can fault the Court for that, certainly, but it means that the opinion it did write is easier to justify.) I have a hard time imagining an opinion upholding the relocation orders, or upholding continued detention, that I would call legitimate, because I can’t see a basis for continued detention (without some sort of individualized opportunity to demonstrate loyalty) that falls within military expertise. That is, I see the Korematsu opinion as confronting basically two questions. First, is there a pressing danger that exclusion will reduce or eliminate? Second, is there any less restrictive way to handle the problem? The government’s assertions here were that there was such a threat and that less intrusive individualized hearings couldn’t be conducted fast enough to meet the threat. Both of those assertions are about facts within military expertise, and I don’t think it’s unreasonable for judges to defer.
(If you’re interested in how this translates into doctrine, by “defer,” I don’t mean adopt rational basis review generally—I mean defer on these particular factual questions within the context of strict scrutiny, i.e., the Court would properly demand that the exclusion be necessary to serve a compelling interest. But then it would, practically speaking, defer on the necessity issue because it lacked the ability to make that judgment itself. (Which is also not to say that the Korematsu Court was using this modern test, because it wasn’t—it was doing something more like a straightforward assessment of invidiousness.) The interaction of factual deference and heightened scrutiny is an interesting and complex topic in its own right, and one that’s in the foreground in the federal partial birth abortion ban case, but I don’t want to digress too much.)
If the government had had to defend detention without an opportunity to demonstrate loyalty, I think the situation would have been different. What justification can there be for holding a group, many of whom are concededly loyal, without giving them a chance to demonstrate their loyalty? Perhaps that you just can’t tell with these people—but that’s really not a military judgment; it’s a racial generalization and I don’t think there’s as good an argument that the Court should defer to it. (Doctrinally, what I mean here is that I think a procedural due process argument against detention is much stronger than a procedural or substantive due process argument against exclusion.)
Hamdi was much more like this hypothetical situation. I wouldn’t expect the Court to enjoin or interfere with Executive arrests of terrorism suspects. (Though I do think the Non-Detention Act probably limits its ability to arrest U.S. citizens without charges. And relatedly, the fact that the exclusion and relocation orders had been ratified by Congress, while Guantanamo is Executive unilateralism, is a significant distinction.) But once you’ve arrested suspects, what’s the justification for holding them without some opportunity to demonstrate innocence? There is one, it turns out, but just like “You can’t tell with these people” it’s a justification that weakens the Executive position. The justification, the Executive said to a lower court in Padilla, is that effective interrogation requires a relationship of trust and dependence between the detainee and the interrogators. Allowing a detainee access to a lawyer or judicial process interferes with this relationship, the Executive said. It interferes because it gives detainees hope.
That’s a proposition whose truth executive officials are probably much better at assessing than judges—sadly, they have substantial experience with it—but I don’t think the denial of hope is an important enough state interest to justify the withholding of process. So the idea that courts should defer to the Executive about the need to deny detainees access to court is not one I find reasonable.
Of course, this doesn’t yet say anything about Guantanamo, because Hamdi wasn’t being held there. (He was at first, but once the government realized he was a U.S. citizen, they transferred him into the U.S.) And he was an American citizen (he isn’t any longer, because the government required him to renounce his citizenship as a condition of release, perhaps in the hopes that the next time they ran across him they could just keep him in Guantanamo). So what about the alien detainees held outside the U.S.?
Citizenship and geography are frequently considered important, but I have a hard time seeing why they should make a difference here. First, for all practical purposes, Guantanamo is part of the U.S. U.S. law, and no other, governs there. But second, the talismanic significance of national borders comes from an era in which state power was thought to be metaphysically territorially bounded. (My other subject, apart from constitutional law, is conflict of laws.) That time is over, in conflicts and in constitutional law, where the Supreme Court has been clear that U.S. citizens enjoy constitutional protections outside the U.S. Citizenship is certainly relevant sometimes—the Constitution says so in various places, explicitly restricting its protection to citizens. But the Due Process Clause speaks of persons, not citizens. So I have no problem concluding that aliens abroad have due process rights against the U.S. government. (For a more extended version of this argument, which also talks about the relevance of the purpose of various constitutional provisions, see my Guantanamo and the Conflict of Laws: Rasul and Beyond, 153 U. PA. L. REV. 2017 (2005).)
This is not to say that they must therefore always be treated the same way as citizens within the U.S. Due process analysis is context-sensitive, and if there were some good reason that detainees couldn’t be given access to courts, or if there was no dispute about their status (if they were obviously prisoners of war, for instance, or perhaps even just enemy aliens), then we would have a different situation. But the petitioners in Rasul are citizens of allied nations who allege that they have nothing to do with terrorism. (And, not that it should matter, it’s turned out that many of them don’t.) I don’t accept a constitutional analysis that says that the Executive can do whatever it wants with them as long as it holds them outside the technical borders of the U.S. (As with Padilla, it’s interesting to look at the sorts of things that Executive lawyers have said in lower courts. In the Ninth Circuit, they’re on record as saying that the Constitution allows the Executive to torture or arbitrarily execute aliens outside the U.S.)
Posted by at July 13, 2006 1:35 PM
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Comments
1) I am not sure that I understand how Dewitt's positions are not both "having been made by a racist" AND "based on racism". If there is a logical exclusion here, it needs demonstration.
2)Suppose I grant you your distinction; how can it be meaningful and significant within the contexts you are discussing? In terms of the members of the court itself, it seems like both parts apply, and when you return to the SGs role and positions, it seems like both parts apply, too.
3) why should anyone view your distinction as anything but a ploy that allows the maker to close his eyes to many kinds of racism in our history? and in our present time, too?
4) Do you think your ruminations would take the same paths if you were Japanese American? and as an extension, do you think the territory you have entered can illuminate the decisions made by someone like John Yoo? Or someone who seems to want to evade our racial history altogether, even though he has nothing to gain from doing so? Justice is not blind, has never been so in this country, and certainly is not now...which makes due process all the more important...
Posted by: paul yamada at July 14, 2006 1:36 PM
The recent Supreme Court decision, Hamden vs. Rumsfeld was a victory for the rule of law. Unfortunately, my fear is that it is a short lived victory since the Bush administration has already initiated the push to get congress to write and ratify a law that will make what the high court has ruled illegal legal.
Fear and terrorist hysteria has allowed the Bush administration to dismiss civil liberties and due process under the umbrella of national security by claiming unitary executive privileges. As a daughter of WWII internee, I am very concerned that current government behavior is destined to repeat the same WWII discriminatory internment policies. After reading your blog, particularly your responses to Michelle Malkin, I have been annoyed with your selective analysis of WWII internment. Although I agree with the majority of your conclusions, I have issues with your total disregard for the internment of Italians and Germans who suffered similar abuses not unlike the Japanese.
Although not a lawyer, I have become fascinated by both the WWII internment story and the maneuvering of the Bush administration in the Guantanamo situation. It is gratifying to see the legal community challenging and pushing back on government actions in Guantanamo, but I have never understood their total and complete dismissal of European internment during WWII. It seems because the Germans and Italians were not incarcerated “en masse” but through a selective internment program the US legal community is totally willing to dismiss these historic abuses. By ignoring and not investigating and addressing this history we leave the door wide open for the government to retain the right to conduct a “selective” internment program based on profiling by race, religion, ethnicity or country of origin rather than empirical evidence based on actions and activities.
Through very hard work the Japanese community succeeded in getting the government to admit wrong doing in the “en masse” incarceration of Japanese Americans during WWII. Gaining recognition for this injustice was a monumental struggle by the Japanese and the nation owes a debt of gratitude to their efforts and determination to right this wrong. However, as appalling as the “en masse” internment was, it did give the redress movement the needed numbers to organize and provide overwhelming political pressure on legislators. Don’t you see the irony? The Japanese were the minority of registered aliens so they were incarcerated “en masse” - European Americans were the minority of aliens interned so they can not gain redress. Where is the protection for minority rights in either situation? Isn’t that the power of our constitution and the bill of rights to protect the minority? The other fundamental question is why the cold shoulder from the Japanese community regarding others who suffered similar abuses during internment. The Japanese publicly profess they have the “burden of history” to expose the story of internment. Yet, it almost seems as if they actively work to conceal the European internment story. Why? Their actions seem to suggest a desire to protect their own self interests rather than sincerely helping other victims similarly affected. Perhaps, there is some other explanation as to why they have not come forward to demonstrate their compassion for fellow victims.
As one can see, the tragedy of the “en masse” incarceration of the Japanese seems to over shadow the equally appalling treatment of 15,000 European Americans who were caught in the jaws of excessive government power during time of war. But unlike the Japanese, these victims still are not able to extract themselves from the gripping jaws of government abuse. There is no doubt that more Japanese were incarcerated as a percentage of registered aliens during WWII. In fact an inverse relationship existed. The larger the number of registered aliens the smaller percentage interned of the three major groups, Germans, Italians, and Japanese. I have read many articles suggesting that the reason all Germans and Italians were not incarcerated was because there were too many and the economic impact to the country would be too great.(which is demonstrated in Hawaii when the Japanese were not relocated and incarcerated en masse but by selective internment). Unfortunately, economic impact has more sway than justice or civil liberties both in times of peace and war. To suggest that economic reasons justified government action is not my premise. My father, a seaman, who was interned for almost three years, was a victim of “oil” economics during WWII.
In August 1939, my father a German national was removed as a seaman from an oil tanker registered to the Panama Transit Company, a wholly owned subsidiary of the Standard Oil Company. After the men were removed from their ships they were allowed to live freely in New York City until they could be returned to their countries of origin. They could not accept gainful employment because they had no work papers. In 1940 the government began deportation proceedings against the seaman. Many of the men, including my father, were opposed to deportation because it would jeopardize their livelihood as seaman. Once deported, they would be restricted from shipping into any American harbor. My father successfully petitioned for “voluntary departure” status similar to the men in the Turkmen vs. Ashcroft case. Although, he was awarded voluntary departure status he was unable to comply with the terms of the departure order because the Department of Justice had ordered the Standard Oil Company to retain the passports of the seaman. Based on the government order, the company refused to release his passport restricting his ability to leave the country on his own accord.
In May of 1941, seven months before Pearl Harbor and subsequent declaration of war by Germany, he was arrested and incarcerated for the duration. After almost three years of incarceration in a high security Department of Justice internment camp in North Dakota (Ft. Lincoln), the government pressured the enemy aliens to enlist in the military or be deported. Ironically, once enlisted he was recruited by the military to train at Camp Ritchie in military intelligence. The military assisted my father in gaining citizenship to enter intelligence training in September of 1944. Finally, in December of 1946, months after the cessation of the war and his release from the military my father’s deportation order was finally removed.
Contemplate, just for a moment, the injustice of incarcerating a lowly seaman, like my father, because he was danger to national security but allowing the Standard Oil Company to continue to ship tankers of oil to the Third Reich. Think how many thousands of lives could have been saved by not shipping oil to Hitler’s Germany? The war could have literally ended months and maybe years before the actual cessation. Does this not reinforce the power of economic impact on government policy?
For the 15,000 plus European Americans who suffered the same loss, fear and embarrassment of internment, it was an excruciating defeat to virtually be excluded from the CWRIC. Just imagine, for one moment, the deep scars and emotional suffering experienced by former German and Italian internees when their government apologized and acknowledged wrongdoing for the internment of Japanese but totally dismissed any of their claims. Where is the support of the press, the legal community, the Japanese community, or legislators to push for the Wartime Treatment Study Act (S. 1354/ HB. 1492) a bill deadlocked by a secret hold in the Senate by a Republican Senator for the third time? This bill calls for the establishment of a commission to study and investigate the circumstances surrounding 15,000 European/American civilians who suffered years of internment.
Returning to my premise and the reason for writing, I contend that by not exposing the selective internment program during WWII the government has maintained their right to selectively profile and incarcerate any civilian during time of war as long as it is not done “en masse.” Since 9-11, Arab and Muslims have been profiled because of their religion, nationality, or country of origin and indiscriminately arrested and incarcerated. Many arrests have not been due to any empirical evidence of terrorist activities or connections, but rather because of a selective detainment program similar to the incarceration of Germans and Italians during WWII.
The courts continue to “duck” all legal challenges dealing with the internment of civilians during war time. In Turkmen vs. Ashcroft the court held that foreign aliens can be detained indefinitely based on religion, race or national origin. The simple fact that after sixty years no American citizens who were interned have prevailed in court of law is significant. The Japanese success occurred through a legislative process rather than the courts. Since it was a congressional bill that gained redress, it prevented any court precedence. This leaves the internment option on race, religion or national origin a viable alternative for the future. Since “en masse” incarceration is now condemned (thanks to the Japanese) no future detainees or internees would have the numbers to influence the political process like the Japanese did. Selective internment in my view has aspects that make it actually more damaging than "en masse" internment. All who are arrested and interned are stigmatized but when you are selected individually the stigma is greater and it is more difficult to correct. It is almost impossible to persevere in any sort of appeal because you are powerless with no group clout. If arrested "en masse" all in your group are arrested and it is not nearly as personal. As in my father’s situation all seamen were arrested not just six tenths of one percent. Consequently, he was less likely to take it personally and was not as stigmatized amongst his peer group or even the public at large. Good luck to any future alien if they are innocent and caught in the claws of the US government as they could find themselves incarcerated for life. (A number of German American internees found themselves incarcerated at Ellis Island for almost three years after the cessation of the war. So a life sentence or a decade or two of incarceration are not beyond comprehension)
The New York case, Turkmen vs. Ashcroft, was disturbing because of the parallels to my father’s plight during WWII. It would be nice to know that we have become a better country with a better understanding of war hysteria and historic injustices during time of war. As David Cole recently wrote, the Turkmen decision has taken the loaded weapon out of the closet dusted it off and handed it to federal authorities, giving them explicit permission to let prejudice and fear run roughshod over the most basic of human rights - the rights to equal treatment and liberty.
Unfortunately, what most people don’t realize is how little power an individual has particularly an alien in time of war. When the full force of the US government is brought to bear on an innocent civilian like some of the Guantanamo detainees - they are almost powerless. Every citizen must fight for the fundamental principles of liberty and justice. Please continue to fight against books like Michelle Malkin’s but please work to expose the entire historical record of internment. Stop your silence on this chapter of internment. Join in the support the Wartime Treatment Study Act, a bill to investigate European internment during WWII. (S1354 / HB 1492). Let’s end selective detention during time of war based on race, religion, or country of origin.
S.A. Weiss
Posted by: S A Weiss at July 15, 2006 7:54 PM
Agreement? Apathy? Or just plain silence? Why no response to my post regarding the history of selective internment affecting European Americans during WWII? As the determined remaining internees and their families continue to struggle for recognition, we could use a knight in shining armor to help revive or save our legislative efforts. We thought Senator Wyden (D-OR) was that knight when he championed legislation to end the process of secret holds. (the Wartime Treatment Study Act has stalled three times due to secret holds)
“What is unjust about the process of secret holds is that it prevents a Senator from being held accountable when it comes to conducting the people’s business,” said Wyden. “It’s time to force these objections out of the shadows and into the sunshine.
After nearly a decade-long effort, the amendment passed 84-13 to end the process of secret holds. The amendment is attached to the Lobbying Reform Bill (S.2349) which is currently in conference committee embroiled in partisan politics. Last week another WWII German internee died at 102. As our numbers thin, it is increasingly more difficult to put up the “good fight”. Unfortunately, in just a few years no internees will be alive to give first party testimony regarding internment -time is not on our side.
Illuminating the spotlight on European internment is more important now than ever.
Posted by: S. A. Weiss at July 25, 2006 11:53 PM