Is That Legal?

May 18, 2009

My Grandparents Were Incarcerated at Manzanar ...

nd all I got was this lousy t-shirt!

(Though I must admit, their book selection ain't too shabby!)

Posted by Eric at 10:55 PM

August 18, 2008

The Biggest Lie of the Greatest Generation

haven't been blogging, but I've been writing.

To wit: a new article I'm posting to SSRN today entitled "Hirabayashi: The Biggest Lie of the Greatest Generation." The article presents important new archival findings about Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. The Court concluded that because of the enormous security threat facing the United States -- a threatened invasion of the West Coast by Japan in the months after the Pearl Harbor attack -- the ordinary constitutional prohibition on "discrimination based on race alone" was not controlling.

The Court emphasized the threat of an invasion because that is what the government's lawyers told the Court the West Coast was facing. "Invasion" was the constant drumbeat not only of the government's brief but also the Solicitor General's oral presentation to the Court.

It turns out that all this talk of invasion was a lie. At the time that military officials planned and implemented the racial curfew, there was no danger of a Japanese invasion of the West Coast. The army and navy viewed any sort of Japanese invasion of California, Oregon, or Washington as impracticable. They were neither anticipating nor preparing for any such event. Indeed, during the key time period of early 1942, the Army was more concerned with scaling back the defense of the West Coast from land attack than with bolstering it.

What's more, the lawyers who signed the government's brief in Hirabayashi knew this. By the time they filed the brief in May of 1943, they had known for months that the military foresaw no Japanese invasion of the coast in the months after Pearl Harbor, and that the curfew was not part of a plan to resist an invasion. Yet this knowledge did not stop them from representing to the Court in Hirabayashi that the "principal danger" that military officials had "apprehended" was "a Japanese invasion" which "might have threatened the very integrity of our nation."

My article documents all of this from primary archival sources, and then goes on to speculate about what might have led Justice Department lawyers to such a large and consequential deception. Perhaps I'll blog more about that soon. In the meantime, though, you can download the article here.

Posted by Eric at 8:30 AM

July 29, 2008

"A Life Without the Distraction of Television ..."

Posted by Eric at 5:58 PM

April 16, 2008

John Yoo, Karl Bendetsen, Firing, and Hiring

ome are mooting the idea of stripping John C. Yoo of his tenure at Boalt Hall, but I recoil in horror from the notion. I say this not out of any admiration for the legal advice he rendered while in the Office of Legal Counsel, nor because of any personal connection to him. (I met him only once, before his OLC days, when he was on the Federalist Society's law school speaker's circuit.)

I say it because firing academics to punish them for their views is abhorrent. I suppose I might think about it differently if Yoo were someday convicted of some sort of criminal offense for his OLC activities (which strikes me as very unlikely). But if Boalt Hall were now to fire Yoo, it would, I think, go down as one of the more serious blows to academic freedom in our nation's history.

I guess this aligns me more with Sandy Levinson in the disagreement he is having at Balkinization with Stephen Griffin, who, as I read him, is arguing for Yoo's dismissal.

Griffin's analogy of Yoo to Karl Bendetsen subtly shifts the inquiry, however. He asks how we would respond if Bendetsen applied to teach a course on military law at our law school, and suggests that Boalt Hall will continue to have a Yoo problem so long as there are lots of people who would not hire Karl Bendetsen.

I would not hire Karl Bendetsen into a tenured or tenure-track position at my law school if he were circulating his CV after his stint in the Western Defense Command helping to engineer the incarceration of Japanese Americans.

But if he took a leave of absence from my law school to work in the Western Defense Command, and there ended up helping engineer that program, I would not fire him when he got back after the war.

(It's worth noting, in this connection, that the Leflar Law Center, the home of the University of Arkansas School of Law, is named for Robert A. Leflar, a former dean who, as a government lawyer, helped to run the Jerome and Rohwer War Relocation Centers in Arkansas.)

It strikes me as pretty easy to make the case for not hiring John C. Yoo -- and, it goes without saying, for not conferring on him the honor of a distinguished lectureship, as Canisius College very recently did.

Crossing the line to firing him would be a fateful step.

Posted by Eric at 11:12 AM

April 14, 2008

Glimpses.

omebody just pointed me to these excellent high-resolution photographs of scenes from the incarceration of Japanese Americans in World War II.

I especially like the photos of the wall postings.

Posted by Eric at 2:23 PM

April 13, 2008

Some Thoughts About The Phrase "Concentration Camp"

ennifer at Mixed Race America relates another episode in the seemingly endless debate over the use of the term "concentration camps" to describe what the U.S. government termed Japanese American "Relocation Centers" in World War II.

This is not a new debate. Indeed, it began while the camps were still open. Remember that in Korematsu v. United States, decided in 1944, Justice Roberts called them "concentration camps," a phrase for which Justice Black took him to task.

At the level of ordinary usage, Justice Roberts had the better of the argument; it was Justice Black who was getting an early start on revisionism. In ordinary conversation, everyone from FDR down to the detainees in the camps called them "concentration camps" back then. Here, for example is an excerpt from an article from the NY Times in January 1943 about plans to recruit soldiers out of the camps:

But it's not enough for us today simply to point out that people in 1942 or 1943 called them "concentration camps"; we are using the words in 2008, and the phrase took on a different meaning when the horrors of the Nazi genocide became linked it. To the average American today, "concentration camp" principally means "confinement site for genocide." The camps for Japanese Americans were not confinement sites for genocide.

I guess I can see why, in the eyes of a person like "Older American Historian" (referred to in the post at Mixed Race America), the term "concentration camp" might seem like a suspect effort to depict the camps as places even worse than they were.

But that's not why scholars use the term "concentration camp." We use it chiefly for a different, and far better grounded, rhetorical reason: to defeat euphemism. The government clothed each step of the process of evicting and detaining Japanese Americans in sweet-sounding words of assistance: exile was "evacuation"; detention and scattering were "relocation." The camps were "relocation centers" in government parlance. These were all Orwell-speak. And everyone knew it; hence the ubiquitous "concentration camp" in day-to-day conversation.

We have another purpose in using the term "concentration camp" -- to remind readers and listeners (or to bring to their attention, if they'd never thought about it before) of what the American and the Nazi camps actually had in common: the forced warehousing of a racially defined enemy of the state. Justice Frank Murphy saw this common thread in 1943, when he wrote (in Hirabayashi v. United States) of the "melancholy resemblance" that the U.S. program against Japanese Americans bore to the treatment of Jews in Europe.

So there are definitely rhetorical reasons for using the term "concentration camp," but "Older American Historian" apparently mistook them for an effort to capture genocidal meaning from the Nazi Holocaust. The points are principally to deny a legacy of American euphemism, and secondarily to emphasize the racial scapegoating that characterized the confinement.

None of this means that "concentration camp" is a term to be thrown about loosely. In my view, the term has become so laden with the connotation of genocide that scholars should not use it in speaking of or writing about the Japanese American experience without briefly explaining that the term is historically accurate, necessary to defeat euphemism, and not a claim of identity with the Nazis' camps in Europe. But properly explained, "concentration camp" strikes me as an accurate -- indeed, a necessary -- term for the Japanese American "relocation centers" of World War II.

Posted by Eric at 3:38 PM

February 20, 2008

Barack Obama Remembers

t's a small thing, but a nice thing: Barack Obama's statement of yesterday noting the Day of Remembrance.

Posted by Eric at 12:32 PM

February 18, 2008

Day of Remembrance, 2008

he 19th of February is the Day of Remembrance -- a day to recall the forced exclusion and incarceration of Japanese aliens and American citizens of Japanese ancestry in World War II, and to think about the lessons of that episode for today and the future. In recent years, the Japanese American community has also encouraged people to remember those of German and Italian ancestry -- principally, though not exclusively, aliens -- who were also swept up in the wartime hysteria.

I'll mark this year's Day of Remembrance with a few moving pieces by internee artist Estelle Ishigo.

Posted by Eric at 9:29 PM

January 14, 2008

A Troubling Partial Rehabilitation of Korematsu v. United States

s I noted yesterday, Stephen Griffin complained at Balkinization about what he labeled the "alternate reality conventional wisdom" on the wartime incarceration of Japanese Americans that Jack Goldsmith and Curt Bradley present in their new casebook on foreign affairs law. As Griffin says,

The basic flavor of the new conventional wisdom is that the internment was justified on the basis of the knowledge available to government officials acting in good faith in the confused months following the December 1941 attack on Pearl Harbor. Later, however, using the benefits of hindsight, “liberals” condemned the Korematsu case as racist and consigned it to the category of one of the worst decisions in the history of the American judiciary.

I've now read the relevant passage, and I think Griffin is right. I am confident neither of the book's authors intended to endorse a false, revisionist, and partisan history of the Japanese American internment, but that's what this passage does.

Here's the passage:

"At the time of the Japanese exclusion order at issue in Korematsu, the Japanese Navy was regularly sinking ships off the west coast and firing upon land facilities in California and Oregon, and there was intelligence information suggesting that a Japanese invasion of the west coast was imminent, and was being facilitated by Japanese-Americans in the United States. See United States Department of War, Final Report: Japanese Evacuation from the West Coast 1942 (1978). Nonetheless, the decision in Korematsu is widely decried. In part this is because the exclusion order overtly discriminated on the basis of race, and also because it focused only on individuals of Japanese ancestry and not on individuals of German or Italian ancestry, even though the United States was was also at war with Germany and Italy. Another reason is that many analysts now believe that the order was a disproportionate response to the threat of sabotage, invasion, and espionage by Japanese agents. See, for example, Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (2001). Is this ex post perspective -- which Justice Black's majority opinion in Korematsu refers to as the "calm perspective of hindsight" -- the proper perspective from which to determine the validity of military orders in response to perceived emergencies? Can judges second-guess military claims of emergency in the midst of a war in which the nation's security is threatened? In answering this question, is it relevant that most claims of emergency or necessity turn out, after the fact, to have been exaggerated? What do you make of Justice Jackson's proposed solution to the conundrum, and Justice Frankfurter's implicit response?"

To begin with, it's tough to get over the shock of seeing general John DeWitt's long-discredited "Final Report" cited as a factual source for anything. This was the report whose premise was that "the Japanese race [was] an enemy race" with "racial strains" tainting even those born in the United States to Japanese parents. It's the report that found assurance of future acts of Japanese-American subversion from the "disturbing and confirming" fact that none had yet been taken. And even more to the point, it's the report that Justice Department lawyers sought to disavow in their filings in the Korematsu case itself because of its "willful historical inaccuracies and intentional falsehoods" (their words, not mine) as well as its race-baiting. It was the falsehoods in this report, and the Justice Department's lack of candor in relying on them, that led a federal district court to grant Fred Korematsu a writ of error coram nobis in 1984. The Final Report is as discredited as a government document can be; it deserves citation as nothing other than an instance of the military's racist and delusional self-justification.

Beyond that, the three specific factual assertions for which the Final Report provides support are false.

(1) At the time of the exclusion order, the Japanese Navy was not "regularly sinking ships off the west coast and firing upon land facilities in California and Oregon." In fact, not only wasn't the Japanese Navy doing this "regularly," it wasn't really doing it at all. A Japanese sub sank a tanker, the Montebello, off Cambria, California on December 23, 1941. That was it for the sinking of ships along the coast in that time period.

(2) The same is true for the supposedly "regular" firing upon land installations. This happened precisely once. It took place at a refinery near Santa Barbara on February 23, 1942.

(3) There was no intelligence information suggesting an imminent Japanese invasion of the West Coast. Instead, military intelligence well understood that the Japanese were in no position to invade the West Coast. The military's worst-case scenario did not extend beyond the distant possibility of small commando landings (not unlike those that the Nazis actually did pull off on the East Coast) -- and anybody who has ever seen images of the Allied invasion of Normandy in 1944 from bases in England, across twenty miles of water, will immediately and intuitively understand what American military intelligence also understood at the time: the sheer logistical impossibility of Japan's landing an invasion-size force on the West Coast from an island nation 5,500 miles away. When General John DeWitt asked for some extra troops for coastal defense at the beginning of 1942, he was refused: the top brass agreed that DeWitt needed no more troops to "defend against practically nothing."

(4) There was no intelligence evidence of Japanese Americans "facilitating" this (non-existent) imminent invasion. Internment revisionists like Michelle Malkin and David Lowman have flogged the so-called "MAGIC" cables -- pre-war Japanese diplomatic transmissions that the U.S. intercepted and decrypted -- as proof of the existence of networks of Nisei spies, but their claims have been repeatedly and persuasively debunked.

So the factual premise of this excerpt from the Goldsmith and Bradley book is wrong. Its purpose was to set up a puzzle for readers: why, given the serious threat to the West Coast, was Korematsu wrong? But it's a false puzzle. There was no such serious threat, and there was no evidence of networks of Japanese American subversives and no evidence of subversive activity by Japanese Americans. Those who ordered the exclusion of Japanese Americans knew these things.

In order for the passage to cohere, it has to start from a premise that the exclusion of Japanese Americans had a reasonable military foundation. This is because the point it wants readers to ponder is the one that appears toward the end: is an ex post perspective appropriate for determining the validity of military orders in wartime? This is where the passage links up with the idea that so bothered Steve Griffin at Balkinization -- the claim that the Japanese American internment was seen as justified in its moment, but has only come to be seen as mistaken from our vantage point today. It is a claim that today's internment revisionists have pressed hard on the public consciousness.

It is, however, vastly overstated: even in its historical moment, the program of excluding and incarcerating Japanese Americans drew strong dissent both inside and outside the government. This is a point that I document at some length in my article "Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory," 47 Boston College Law Review 659, 696-701 (2006). The Attorney General and the FBI Director opposed the program at its inception. They lacked "the calm perspective of hindsight" but saw that the program was excessive and unjustified, especially in its treatment of U.S. citizens. So did an array of American leaders in education, business, religion, and the arts, who published an open letter to FDR in April of 1942 decrying the then-incipient program. Signatories included Frank Porter Graham, Reinhold Neibuhr, James Wood Johnson, and Mary E. Woolley, among many other notables.

Frank Murphy, a former Attorney General, stated in his 1943 concurrence in Hirabayashi that just the curfew against Japanese Americans (a lesser step than exclusion and incarceration) reached "the brink" of legality. In 1944, two other Justices (including another former Attorney General) joined Murphy in dissent in the Korematsu case.

And as early as June of 1942, articles and editorials critical of the Japanese American program began appearing in newspapers and journals as diverse (and mainstream) as the Washington Post, The Nation, Reader's Digest, Business Week, Collier's, Newsweek, and The Saturday Evening Post. These continued to appear throughout the war.

So there are two important mistakes in the Goldsmith/Bradley discussion of the incarceration of Japanese Americans. The first is to credit the Western Defense Command's long-discredited assertions about the military situation along the coast; the second is to propagate the mistaken notion that the Japanese American program only seems wrong in retrospect.

This post may seem like a lot of words to spill over a single paragraph in a foreign relations law casebook that will be read mostly by law students. I spill the words, though, because this single paragraph is the work not of some hack internment revisionist, but two of the nation's most highly (and justifiably highly) regarded experts on national security and foreign affairs law. I expect efforts at rehabilitating Korematsu from partisan revisionists. But when their theories start to seep upwards from the Michelle Malkins and David Lowmans of the world to the Curt Bradleys and the Jack Goldsmiths, it's a worrisome moment, and should be corrected.

To be sure, Bradley and Goldsmith do not purport to rehabilitate Korematsu; they seek simply to contextualize it. But because the context is so wrong, what results is at least a partial rehabilitation of that reviled decision, which is a dangerous thing in these dangerous times.

UPDATE: At Balkinization, Curt Bradley has responded to the criticism of this passage. He says this:

I can’t speak to Judge Posner’s views, but certainly Jack Goldsmith and I were not trying to make any revisionist argument about Korematsu or the internment policy in the casebook note referred to above. Indeed, we try not to be argumentative at all in the casebook. Our goal there was merely to give students a sense of the mindset of some people at the time (e.g., in the discredited DeWitt report) and then ask questions about how we should think about that mindset. It looks like the first sentence of that note in particular is responsible for the misimpression, so we will be sure to tone it down in the next edition of the casebook, and also probably cite to some better materials. Thanks to Stephen Griffin for pointing this out.

Posted by Eric at 3:13 PM

January 13, 2008

Malkin Seeps Upward?

his looks worrisome.

If Stephen Griffin's characterization of a passage from Jack Goldsmith's and Curt Bradley's foreign-relations-law casebook is correct, these two top scholars have fallen into the Michelle Malkin trap of crediting supposed "intelligence" supporting the Japanese American incarceration in World War II and of depicting the incarceration program as wrong only in hindsight.

If this is so (I'm on the road right now and don't have access to the casebook to check), it would be a distressing upward seepage of these discredited ideas into the work of serious and influential scholars.

I'm on the road, and won't have a chance to look at the casebook until tomorrow. I'll have more then.

Posted by Eric at 4:47 PM

November 26, 2007

"Keep on Talkin', Michelle Malkin"

rtist Roger Shimomura takes on Michelle Malkin.

Advantage: Shimomura.

The entire exhibit is stunning. My favorite is, I think, this one. No, wait. Maybe this one.

Posted by Eric at 2:56 PM

November 14, 2007

"Law Enforcement Is Looking Ahead to the Next Terror Attack with a Menu and a Map."

have an op-ed in today's Sacramento Bee about how a couple of recent domestic counter-terrorism programs are reminiscent of mistaken programs against Japanese Americans in World War II.

UPDATE: Grr. It looks like the Bee might put its content behind a registration wall. Here's the text of the op-ed:

Law enforcement is looking ahead to the next domestic terrorist attack with a menu and a map.

This month, reports have surfaced about two controversial counterterrorism initiatives in California. In one, Congressional Quarterly's national security editor reported that the FBI had mined data from San Francisco grocery stores to look for spikes in sales of Middle Eastern food that, together with other data, might imply the presence of extremists. In the other, the Los Angeles Police Department is using census and other demographic data to map Muslim communities in order to pinpoint the neighborhoods of potential extremists.

These might look like two new methods for identifying the enemy within, but they are nothing new, and they are not likely to do much but inflame the communities they affect.

The first of them – I suppose we could call it "tahini tracking" – is just a disturbing replay of a 60-year-old mistake.

As I explain in my new book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II," the federal government created a secret system of tribunals in 1943 to decide which of the tens of thousands of Japanese Americans behind barbed wire were "loyal" and which were "disloyal."

Things never got much more sophisticated for these tribunals than the food Japanese Americans ate. Religious and cultural affiliations with Japan scored negative loyalty points; "American" affiliations produced positive ones. Little League baseball coaches got positive points; judo teachers got negative points. Members of Japanese-named organizations got negative points; members of the Rotary Club got positive points. If you were a Buddhist, you got negative points; if you were a Christian, positive.

The system did not deduct points for sushi consumption, but it came awfully close. It equated the most basic components of Japanese religious and cultural identity with danger to national security. Applying this system, bureaucrats condemned more than one out of every four American citizens of Japanese ancestry as disloyal and potentially dangerous. The consequences were prolonged detention behind barbed wire, ineligibility for jobs in war production and, even as the war reached its end, continued exclusion from the West Coast.

The second method, neighborhood mapping, also bears a resemblance to some of the flawed methods of 60 years ago. In the months before Pearl Harbor, the FBI compiled its so-called "ABC lists" of thousands of Japanese aliens identified for arrest in the event of outbreak of war. Many of the men populating those lists were the business, religious and cultural leaders of the Japanese neighborhoods and communities of the West Coast's cities.

To be sure, the Los Angeles Police Department maintains that it is mapping Muslim neighborhoods to help their residents, not arrest them. The idea is to identify hot spots of discontent where extremism might grow, and then to increase social services to those neighborhoods in order to combat radicalization.

In principle, this strategy is sensible. But the residents of these neighborhoods have already seen six years of suspicion and scrutiny, and they are not likely to appreciate the principle. They're likely to see the mapping project as a prelude not to assistance but to repression.

And if some Americans are having a hard time telling bombs from baba ghanouj, who can blame them?

Posted by Eric at 7:54 AM

November 8, 2007

"American Inquisition" Reviewed

y new book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II" has picked up its first few reviews. They are here, here, and here.

Posted by Eric at 10:43 PM

October 18, 2007

"American Inquisition": A Portrait of a "Disloyal" American

n yesterday's post on my new book "American Inquisition:  The Hunt for Japanese American Disloyalty in World War II," I described the mechanics of the Japanese American Joint Board's "deliberations" (and I use that word loosely) on the loyalty of American citizens of Japanese ancestry.  The system was designed to convert the most outward and stereotyped markers of "American" and "Japanese" cultural, religious, linguistic, and business identity into a loyalty finding.

Before talking a bit about what happened after the Joint Board fell apart, which I'll do later today, I thought it might be useful to make this abstract system a bit more real by illustrating its impact on a real person's life. 

Consider the case of Harry Iba. 

He was born to Japanese immigrant parents in Los Angeles in 1915.  His family was Buddhist.  He did not hold dual citizenship -- just American -- and he never traveled to Japan as a child.  His one trip to Japan was at age 22 in 1937, when he went on a sightseeing trip there with a number of boys in a judo club.

Unlike many Japanese Americans, Harry Iba never attended a Japanese language after-school program, and described his spoken Japanese as only "fair."  He graduated from high school in Los Angeles in 1934 and went to work in the family nursery business.  By 1943, he was incarcerated at the Amache Relocation Center in eastern Colorado with his parents.  One older brother was in the U.S. Army and another was in medical school in Boston.

Harry Iba subscribed to the Los Angeles Times, the Examiner, Reader's Digest, Time, Life, Sunset, and Popular Mechanics.  He liked to play football, ping-pong, and outdoor sports.  He collected camellia plants.

On the loyalty questionnaire he filled out at Amache, he answered "yes" to the two key questions:  he was willing to "forswear allegiance to the Emperor of Japan" and to "serve in the U.S. armed forces on combat duty wherever ordered."

A number of white Americans, including his lawyer and a former landlord, wrote glowing letters of reference about his loyalty.

He reported on his loyalty questionnaire that he had no accounts in foreign banks, but a search of bank records revealed that his parents had set up three accounts -- one in his name, one jointly in his and his mother's names, and one as a trust account with his mother as trustee -- in amounts totaling about $3500.

At its meeting on August 19, 1943, over the dissent of the representative from the civilian War Relocation Authority, the Japanese American Joint Board made an adverse finding on Harry Iba's loyalty and recommended his indefinite detention.

Posted by Eric at 9:15 AM

October 17, 2007

"American Inquisition": Buddhists Lose One Point; Christians Gain Two

've been blogging this week about the findings and claims in my new book "American Inquisition:  The Hunt for Japanese American Disloyalty in World War II."  In my most recent post, I sketched a picture of how the government went about gathering data on the loyalties of the incarcerated Japanese Americans.

With data in hand, the government next confronted the problem of processing it.  This task initially fell to a loyalty tribunal that the War Department created specifically for this purpose:  the Japanese American Joint Board ("JAJB"). 

The JAJB was a tribunal with voting representatives from one civilian agency (the War Relocation Authority, which ran the "relocation centers" where Japanese Americans were detained) and a number of military units, including the Provost Marshal General's Office ("PMGO") (which was responsible for industrial security).  The FBI was to have been a voting member as well, but J. Edgar Hoover pulled his representative out after just a few weeks.

If you have ever been on, say, an admissions committee or a hiring committee, you will quickly recognize the problem that the JAJB faced.  It had tens of thousands of loyalty files to review, but it lacked the time and manpower carefully to review each file.  So it did what admissions and hiring committees do in these situations:  it tried to come up with a template that would allow it to process the files without having to review each one.

The first idea was a point system.  Bureaucrats in the PMGO would go through individual files – especially the loyalty questionnaires that the internees had filled out – and assign positive and negative point values to the answers, producing a net loyalty score for each file.

So, for example, a Japanese American who was a Christian got a plus-2; a Japanese American who was a Buddhist got a minus-1.  If he was "an instructor in Japanese hobbies or sports" such as judo, he got a minus-2; if he was "an instructor in [an] American sport or hobby," he got a plus-2.  For each Japanese-American periodical he received, he got a minus-1.  If he'd never traveled to Japan, he got a plus-1.  One trip to Japan earned him a minus-1.  Two trips to Japan got him a minus-3. More than three years in a Japanese-language after-school program in the United States got him a minus-3. And so on.

You get the idea.

For reasons that the archival record does not disclose, the JAJB ditched the point system after a while and shifted instead to a system that looked for particular patterns of factors and then broke the files into three large groups – a "white" group that merited an automatic stamp of loyalty, a "black" group that merited an automatic stamp of disloyalty, and a "brown" or "tan" group that required case-by-case scrutiny of files. (Yes, that's right: the color between "black" and "white" was not "gray" but "brown.")

Using this system, the JAJB processed files for well over a year.

It ended up condemning more than one in every four American citizens of Japanese ancestry as disloyal.

This was not, however, the final word on Japanese Americans' loyalties in World War II. The JAJB was so wracked by conflict between its civilian member, the War Relocation Authority, and its military members, that its authority quickly slipped away. By the end of 1943, as a practical matter, the constituent agencies on the JAJB were quietly making their own loyalty judgments and disregarding the conclusions of the JAJB.

More on that later, or tomorrow.

Posted by Eric at 3:18 PM

October 14, 2007

"American Inquisition": A New Study of the Inner Workings of the Japanese American Internment

'm happy to announce that Monday, October 15 is the official publication date of my new book "American Inquisition:  The Hunt for Japanese American Disloyalty in World War II."  It's an account of the secret inner mechanisms of racism within the episode we call the Japanese American internment of World War II.

I ground the book in extensive new archival research in the records of the civilian and military agencies that passed judgment on the loyalties of American citizens of Japanese ancestry.  As historian Roger Daniels says, the book presents a new story of "bad news from the good war."

I'll be blogging about the book's claims here over the next several days.  Today, I'll start things off by offering a very brief account of how the federal government ended up in the business of passing judgment on the loyalty of more than 40,000 U.S. citizens of Japanese ancestry between 1943 and 1945.

If you've read Snow Falling on Cedars or seen The War, or have read or taught Korematsu v. United States, you know that a presumption of disloyalty forced the entire Japanese population of the West Coast – citizens and aliens alike – out of their homes and behind barbed wire in the late winter of 1942. The presumption was racial. "The Japanese race is an enemy race," said General John DeWitt of the Western Defense Command in explaining his decision to evict just the population of Japanese ancestry. "It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the 'sheep from the goats' was unfeasible."

Within a year, a set of pressures from both inside and outside the camps forced the government to reverse its position and try to separate the "sheep from the goats."

The pressures were complex. On the one hand, there were strong pressures to free some of the internees. Western farmers needed internees released to work their fields. The War Relocation Authority ("WRA"), which ran the camps, wanted to begin "relocating" internees into jobs in towns and cities across the central and eastern United States. And the military wanted to trawl the camps for volunteers into the segregated unit that would become the fabled 442nd Regimental Combat Team.

On the other hand, there were strong pressures to push some of the internees deeper into incarceration. The War Relocation Authority was running ten small cities and needed a mechanism for forcing those it viewed as "troublemakers" into segregation. The WRA was also setting up a courtroom defense to the pending habeas corpus case of Ex parte Endo, which challenged the detention of Japanese Americans, and needed evidence of disloyalty to bolster its legal theory supporting the detention program. In addition, occasional news articles in the national press alleging that the WRA was "coddling" the internees led to public demands for a crackdown. Finally, those within the military who had insisted at the outset that there was no way to tell a loyal from a disloyal Japanese American lobbied hard against release of internees and for the segregation of many internees into something approaching lockdown.

These pressures may have come from different places and pushed in different directions, but they shared one thing: a focus on "loyalty" and "disloyalty" as the deciding factor. All of the decisions about freedom and confinement would turn on an evaluation of the "loyalty" or "disloyalty" of the interned American citizens.

Later, or perhaps tomorrow, I'll continue this sorry tale with a quick look at how the government went about gathering the information on which it would rely for its loyalty inquests.

Questions? Comments? Please drop me a line.

Posted by Eric at 9:02 PM

September 12, 2007

American Inquistion: Questions and Answers, Part 3

n about a month, the University of North Carolina Press will publish my new book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II." It tells the story of the enormous system of bureaucratic tribunals that the government created between 1943 and 1945 to decide which Japanese Americans were "loyal" and which were "disloyal."

The Press has released a Q-and-A about the book. I'm periodically publishing excerpts from the Q-and-A here at IsThatLegal. The first excerpt was here and the second here. Now comes the third:

Q: What were the "point systems" used in the [loyalty] questionnaire?

A: The "point systems" reflected the attempts of bureaucrats to take the internees' answers to the loyalty questionnaire and convert them to number values, so that each internee would have an ultimate loyalty "score." The point systems were absurdly oversimplified and dependent on cultural assumptions: practicing judo earned a negative score, while little-league baseball earned a positive; Buddhism was a negative and Christianity a positive.

Q: What penalties were invoked when a man or woman was considered to be disloyal?

A: A charge of disloyalty could force an internee's transfer to a special segregation camp where conditions were harsher and the atmosphere more turbulent. It could bar an internee from securing permission to leave a camp for a job in the country's interior. It could block an internee from obtaining a job that the government deemed too sensitive for the war effort in any way. And, as the war wound down and the mass exclusion of Japanese Americans from the West Coast ended, a finding of disloyalty meant that a Japanese American could not return home to the West Coast.

Posted by Eric at 9:04 AM

September 10, 2007

American Inquistion: Questions and Answers, Part 2

n about a month, the University of North Carolina Press will publish my new book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II." It tells the story of the enormous system of bureaucratic tribunals that was created between 1943 and 1945 to decide which Japanese Americans were "loyal" and which were "disloyal."

The Press has released a Q-and-A about the book. Over the next couple of weeks I'll be publishing excerpts from the Q-and-A here at IsThatLegal. The first was here -- and here is the second:

Q: The Japanese loyalty questionnaire is central to your book. Can you explain what the form was and the significance it had for Japanese internees?

A: The loyalty questionnaire was a twenty-eight-question form that the government forced all Japanese American internees to fill out while behind barbed wire in spring of 1943. It tried to probe each internee's work and education background, reading habits, and familiarity with Japanese and American cultural, religious, political, and linguistic traditions. It also asked each internee whether he was willing to serve in the U.S. military and to forswear allegiance to the Emperor of Japan. These forms became a centerpiece of the government's administrative efforts to adjudicate the loyalty or disloyalty of American citizens of Japanese ancestry.

For the internees, the loyalty questionnaires provoked intense anxiety and controversy. Already a year into captivity, many internees saw the questions as a series of vague traps that could only force them deeper into incarceration. Especially provocative was the question asking them to renounce loyalty to the Emperor—a loyalty that none of the American citizens in the camps had ever sworn or announced in the first place. The questionnaires were greeted with wariness, confusion, and even open hostility and resistance in the camps.

Posted by Eric at 10:37 AM

September 6, 2007

American Inquistion: Questions and Answers, Part 1

n about a month, the University of North Carolina Press will publish my new book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II." It tells the story of the enormous system of bureaucratic tribunals that was created between 1943 and 1945 to decide which Japanese Americans were "loyal" and which were "disloyal."

The Press has released a Q-and-A about the book. Over the next couple of weeks I'll be publishing excerpts from the Q-and-A here at IsThatLegal. Here is the first:

Q: How does AMERICAN INQUISITION differ from other studies on Japanese internment during World War II?

A: AMERICAN INQUISITION focuses on what you might call the "inner workings" of the Japanese American internment—the tribunals in the bowels of the wartime bureaucracy that tried to decide which Japanese Americans were loyal to the United States and which were disloyal. Even though these loyalty programs were an important engine of the internment program—the mechanism that continued to repress Japanese Americans long after the government made its initial decision to force Japanese Americans into camps—the literature on the Japanese American internment has paid scant attention to these tribunals.

Q: How did you become interested in writing about the Japanese American internment and about the government's loyalty tests for its supposed internal enemies?

A: The themes of racial incarceration and the persecution of internal enemies run strongly through my own family history. I am the son of a Jewish refugee from Nazi Germany. My grandfather was incarcerated at the Buchenwald concentration camp after the Kristallnacht pogrom of November 1938; this incarceration came after years in which my grandparents and all other German Jews were increasingly depicted as dangerous internal enemies to the German nation. For these personal reasons, I grew interested in how the United States racially identified and then incarcerated a supposed internal enemy during the same time period. Obviously, the Holocaust and the Japanese American internment were different sorts of programs in crucial ways. Yet they shared a similar engine—the engine of racial scapegoating.

Posted by Eric at 2:48 PM

August 30, 2007

You've Got Questions? I've Got Answers.

ere is a Q-and-A about my forthcoming book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II."

Posted by Eric at 12:43 PM

July 11, 2007

The Bad Idea In Katyal's and Goldsmith's Otherwise Intriguing Proposal

ack Goldsmith and Neal Katyal are both super-smart guys, and their proposal for a "Terrorists' Court" in today's New York Times has a lot going for it. But here's the one thing I don't understand. If they're prepared to permit U.S. citizens to be preventively detained under "a conspiracy theory that comes close to criminalizing group membership," then why should it give anyone comfort that a life-tenured federal judge will be presiding rather than a military officer?

Preventive detention of U.S. citizens on the basis of nothing more than membership in a group is a really, really bad idea. It was a bad idea when the group was a Shinto sect, and it was a bad idea when the group was the Communist Party. It's a bad idea now.

I'm surprised to see lawyers and scholars of their abilities promoting it.

Posted by Eric at 9:06 PM

Nothing New Under The Sun

rom today's Washington Post article "FBI Plans Initiative To Profile Terrorists":

"The System to Assess Risk, or STAR, assigns risk scores to possible suspects based on a variety of information, similar to the way a credit bureau assigns a rating based on a consumer's spending behavior and debt. The program focuses on foreign suspects but also includes data about some U.S. residents. A prototype is expected to be tested this year."

From chapter 9 of my forthcoming book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II":

"Yet at the same time as the Western Defense Command ("WDC") was scaling back its proposed criteria for gauging Japanese American disloyalty, it was also ramping up a new plan to compile and process vast amounts of intelligence data about the entire Japanese American population in the United States. Under the plan, WDC technicians would key every known piece of biographical information onto IBM punch cards for every Japanese American in the United States – age, sex, citizenship, last known address, residency in a relocation center, and so on. This biographical information would take up half the card; the other half would be reserved for codes reflecting every piece of derogatory intelligence information about the person that was to be found in the files of every military and civilian investigative agency in the country. A processing machine would then allow the Western Defense Command to sort Japanese Americans' punch cards for any type of biographical data and any type of derogatory intelligence information. This punch-card system was to be the "total information awareness" program of its day – a massive, mechanized system for keeping tabs on an entire American ethnic group. If, for example, the WDC wanted a list of all Buddhist Nisei from Los Angeles who belonged to the Japanese American Citizens League and competed in judo, the system was designed to produce that list."

Posted by Eric at 8:52 PM

July 7, 2007

"Memories My Parents Never Had"

n interesting photographic project on the Japanese American internment.

Posted by Eric at 6:11 AM

July 1, 2007

Rail to the Chief

ou go, Mari Oye!

We need more of this sort of breaking of the presidential bubble.

Posted by Eric at 6:36 AM

June 23, 2007

Heart Mountain Wyoming Foundation Unveils Two Important Plaques

t 10:30 a.m. today (Mountain Time), the Heart Mountain, Wyoming Foundation unveils two plaques. One reflects Heart Mountain's designation as a National Historic Landmark -- an important step along the way to our creation of an Interpretive Learning Center at the site of the WWII camp.

The other plaque commemorates former U.S. Congressman and Transportation Secretary Norman Mineta's incarceration at Heart Mountain from 1942 to 1943 as well as his extraordinary record of public service.

I'll be at the ceremony. Maybe I'll post some photos later.

UPDATE:

The ceremony was a smash -- moving in its memory of the past, and inspiring in its commitment to the future. Here are a few photos. Better ones, taken by the Heart Mountain, Wyoming Foundation's expert photographer (and former internee) Bacon Sakatani, will be available soon.

Here are our three featured speakers: Wyoming Governor Dave Freudenthal (left), former Transportation Secretary (and Heart Mountain internee) Norman Mineta (middle), and former Wyoming Senator Alan Simpson.

Governor Dave Freudenthal emphasized that the internment of Japanese Americans at Heart Mountain involved injustice not just by the federal government, but also by the State of Wyoming.

Former Congressman and Transportation Secretary Norman Mineta spoke movingly about some of the people in his life who had inspired him to leadership even in times of adversity.

Mike Snyder, the Director of the National Park Service's Intermountain Region, unveiled a plaque designating the site of the Heart Mountain Relocation Center as a National Historic Landmark. He spoke very movingly about his own family background and the importance of preserving sites like Heart Mountain that reflect the triumph of the human spirit over adversity, and that serve as reminders of the importance of civil liberties during times of peril.

Former Senator Alan Simpson succeeded in getting the big crowd laughing -- and thinking about how his lifelong friendship with Norman Mineta, formed behind barbed wire at the Heart Mountain Relocation Center, should inspire us to prevent future injustices.

Two old Boy Scouts embrace in the shadow of Heart Mountain.

Posted by Eric at 10:52 AM

June 22, 2007

Heart Mountain Sunrise

am in Cody, Wyoming, for a meeting of the Board of Directors of the Heart Mountain, Wyoming Foundation.

I got up early this morning to shoot some photos at sunrise at the site of the Heart Mountain Relocation Center. A few turned out nicely enough to share with you here.

This is the boiler room of the old camp hospital complex silhouetted against the rising sun.

Same building but from the opposite direction, with Heart Mountain in the background. The sun is now up; the light is an incredible salmon color.

Barbed wire at the site, with Heart Mountain behind. This is undoubtedly not original camp fencing; it appears to be from more recent fencing that either the Bureau of Reclamation or local landowners put up.

Posted by Eric at 10:07 AM | Comments (2)

June 19, 2007

New Heart Mountain Website!

'm very pleased to announce www.heartmountain.net, a newly redesigned website of the Heart Mountain, Wyoming Foundation, on whose Board of Directors I serve. It's my first foray into web design! I think I'll be keeping my day job ... but it's definitely serviceable.

This is an exciting time for the Heart Mountain Wyoming Foundation, whose mission is to educate the public about the story of the Heart Mountain Relocation Center for Japanese Americans in World War II. With the successful installation of a comprehensive Walking Tour of the site, we are now launching our campaign to build a state-of-the-art Interpretive Learning Center on our land at the site.

Did you know that former U.S. Secretary of Transportation (and U.S. Congressman) Norman Mineta and former U.S. Senator Alan Simpson (WY) met and became friends as twelve-year-old Boy Scouts at a Jamboree behind the barbed wire of the Heart Mountain Relocation Center, where Mineta's family was incarcerated? Click here to read a letter from Mineta and Simpson about their support for our planned Interpretive Learning Center.

Posted by Eric at 12:29 PM | Comments (1)

June 4, 2007

Tanforan, 65 Years Later

heck out these photographs of this past Saturday's reenactment of the so-called "evacuation" of Japanese Americans to the Tanforan Race Track south of San Francisco in the spring of 1942.

It looks to have been a very moving event.

Posted by Eric at 12:43 PM | Comments (2)

April 3, 2007

Today I Am Filing An Amicus Curiae Brief Challenging Post-9/11 Racial Detention

oday I am filing an amicus curiae brief in the United States Court of Appeals for the Second Circuit on behalf of Karen Korematsu-Haigh, Jay Hirabayashi, and Holly Yasui in support of the plaintfiffs in the case of Turkmen v. Ashcroft.

The Turkmen case is a lawsuit for damages brought by Arab and Muslim alien men who allege they were swept up and abusively detained on alleged immigration violations in the wake of the attacks of September 11. Back in June of 2006, a federal district judge in New York dismissed the plaintiffs' allegation that the government had illegally singled out Arab and Muslim aliens for prolonged detention before ultimately deporting them. Accepting the allegation that the government had singled out Arabs and Muslims for detention that was longer than necessary, the district judge held that such prolonged detention does not violate equal protection; "the executive," said the trial court, "is free to single out nationals of a particular country" for prolonged detention.

The amici I represent are children of the three Japanese Americans who unsuccessfully challenged racial curfew and detention before the Supreme Court in World War II. Karen Korematsu-Haigh is the daughter of Fred Korematsu (Korematsu v. United States, 323 U.S. 214 (1944)). Jay Hirabayashi is the son of Gordon Hirabayashi (Hirabayashi v. United States, 320 U.S. 81 (1943)). Holly Yasui is the daughter of Minoru Yasui (Yasui v. United States, 320 U.S. 115 (1943)).

Their interest in the Turkmen appeal is in avoiding the repetition of a tragic episode in American history that is also, for them, painful family history. That history is not the ordeal suffered by their famous fathers and other American citizens of Japanese ancestry, but rather that suffered by their grandparents Japanese aliens in the United States at the outbreak of war in December 1941.

Their claim is that the district court's broad endorsement of an executive power to single out aliens for prolonged detention on the basis of race, religion, and national origin is a revival of the long-discredited legal theory that supported the mass and prolonged detention of Japanese aliens during World War II.

The brief is available in .pdf format here.

WIth me on the brief were Steve Pesner, Bob Pees, and David Altschuler of the New York office of Akin Gump Strauss Hauer & Feld.

UPDATE: The amicus brief is the subject of an article by Nina Bernstein in today's New York Times.

Posted by Eric at 12:05 AM | Comments (5) | TrackBack

April 1, 2007

Census Data Misused in World War II

significant discovery for those interested in the history of data privacy in the United States: The Census Bureau shared confidential information about Japanese Americans with the Justice Department,the Secret Service, and other federal agencies in World War II to help them identify or locate Japanese Americans. This had long been suspected, but Margo Anderson and William Seltzer have now documented it through discoveries in the archival records of the Department of Commerce. (Their paper, "Census Confidentiality under the Second War Powers Act (1942-1947)" is available here as a Word document.)

(I got an email on this from my friend the historian Greg Robinson, who noted that the headline on this USA Today story about Anderson and Seltzer's discovery ("Papers Show Census Role in WWII Camps") is inaccurate: the discovered documents do not show the Census Bureau cooperating in anything that had to do with the internment camps; it reveals the Bureau helping law enforcement track down Japanese Americans in the vicinity of Washington, DC.)

Posted by Eric at 3:04 PM | Comments (2)

February 19, 2007

Day of Remembrance 2007

oday, February 19, is the Day of Remembrance -- the day that commemorates President Franklin Roosevelt's signature of Executive Order 9066 on February 19, 1942. Executive Order 9066 was the order that gave the military carte blanche to uproot the Japanese American communities of the West Coast and send them behind barbed wire.

This year I'll note the day on this blog by linking to some images of the Heart Mountain Relocation Center by my friend Yosh Kuromiya, a former internee.

(Images are from the website of the Heart Mountain Wyoming Foundation.)

Posted by Eric at 7:52 AM | Comments (4)

January 16, 2007

Why Cully Stimson Is Wrong: A World War II Precedent

suspect that the blogosphere has already chewed up and spat out Cully Stimson's discouragement of attorneys' pro bono work for detainees.

Still, I thought a bit of historical perspective might be useful.

In World War II, the federal government and the American Bar Association explicitly called on American attorneys to undertake the legal representation of internees of Japanese ancestry -- citizens and aliens alike.

Here are excerpts from an editorial from the May-June 1943 issue of the Journal of the State Bar of California.

The California State Bar came down in favor of providing representation. Its answers to the first and sixth questions are, I think, especially interesting. Here's the answer to question 1:

So much for Cully Stimson's musings.

(To be sure, the position of incarcerated Japanese enemy aliens in World War II was somewhat distinct from the position of detainees at Guantanamo today. But that is, as we lawyers like to say, "a distinction without a difference." On the question of the proper and honorable role of attorneys in their dealings on behalf of those identified as the nation's enemies, the World War II precedent is deeply inconsistent with Cully Stimson's position.)

Of course, the World War II precedent is not all roses. Consider the State Bar's answer to Question 6 ("Does the project [of attorney referrals] contribute to the winning of the war?")

Answer (a) is noble enough, but answer (b) is a doozy. California attorneys should represent Japanese and Japanese American internees so that property of the people behind barbed wire can more quickly be fleeced.

UPDATE: Cully Stimson apologizes.

Posted by Eric at 4:34 PM | Comments (6)

December 23, 2006

Densho.

ere's an article about Tom Ikeda's remarkable Densho Project, an online, digital museum of the Japanese American experience.

Densho deserves our support. You can show yours here.

Posted by Eric at 8:44 AM

December 14, 2006

Interned. Drafted. Prosecuted.

he current issue of Diverse Issues in Higher Education features an article about the several hundred Japanese American internees who resisted the draft in World War II.

Posted by Eric at 7:13 AM

December 7, 2006

Pearl Harbor's Collateral Victims

n this 65th anniversary of the Pearl Harbor attack, we should first and foremost remember the sacrifice of the American servicemen who (perhaps preventably) lost their lives.

But it's not inappropriate also to think a bit about some of the attack's collateral victims -- Japanese Americans who ended up the victims of hysterical overreaction and nativist opportunism on the West Coast.

This article in today's Oakland Tribune tells the story of one such family -- the Ochikubo family from Oakland, California. In some respects the family's story is quite typical: the dentist and his family were uprooted and sent to the Tanforan racetrack, where they lived in filthy horse stalls. They were then sent for indefinite detention behind barbed wire at the Topaz Relocation Center in the Utah desert.

In one respect, though, the Ochikubo story is different. George Ochikubo decided to fight his exclusion from the West Coast. He filed a lawsuit in the summer of 1944 seeking an injunction against his continued exclusion from the Coast. After the November 1944 election, when FDR rescinded the mass exclusion of all Japanese Americans, the military issued an individual exclusion order against the dentist (and around 10,000 others), and the lawsuit became a test of this individual (rather than mass) exclusion order. (The photo, from the Los Angeles Daily News collection at the UCLA Library, is of George Ochikubo (in the middle), with his attorney A.L. Wirin to one side and Saburo Kido, president of the Japanese American Citizens League, to the other.)

Ochikubo's lawsuit is one of the subjects of my forthcoming book from the University of North Carolina Press.

Posted by Eric at 10:27 AM

Pearl Harbor, 65 Years Later

he Japanese attack on Pearl Harbor, in which well more than two thousand Americans tragically lost their lives, took place sixty-five years ago today.

It is increasingly common, I find, for people to believe that Japanese military action -- the "sneak attack" -- caught the United States entirely unsuspecting and unprepared.

Consider this teletype that went out to all US military forces on November 27, 1941:

Unprepared? Yes. Unsuspecting? Certainly not.

UPDATE: See more here.

Posted by Eric at 9:47 AM | Comments (5)

December 6, 2006

Congress Acts To Preserve History

ongress yesterday voted to set aside funds for the preservation of the ten Japanese American "relocation centers" from World War II, along with a number of other wartime confinement sites.

This is a photo I took of one of the remaining structures on the site of the Heart Mountain Relocation Center outside Cody and Powell, Wyoming. The legislation will help organizations like the Heart Mountain Wyoming Foundation preserve the site and create an interpretive learning center.

President Bush still has to sign the bill, and Congress will have to appropriate money in future years to fund the program.

UPDATE: Mary Dudziak tracks this news, and writes about a visit to Manzanar, here.

Posted by Eric at 7:16 PM | Comments (5)

November 29, 2006

My New Book!

piece of good news today: my new book, tentatively titled "Presumed Traitors: The Hunt for Japanese American Disloyalty in World War II," was accepted for publication by the Board of Governors of the University of North Carolina Press.

The book tells the story of the various government bureaucracies that judged (and misjudged) the loyalty of 40,000 American citizens of Japanese ancestry between 1943 and 1945. It's a sad tale of civilian and military officials searching for an enemy within and mostly finding their own fears and prejudices.

It'll be out in about a year.

Posted by Eric at 8:32 PM | Comments (8)

November 3, 2006

Now It All Makes Sense.

ndy Kaufman.

Posted by Eric at 9:09 AM

October 17, 2006

The Ehren Watada Case

ere is an interesting article about First Lieutenant Ehren Watada, who is facing court-martial for refusing deployment to Iraq because of his political opposition to the war.

The article focuses not so much on the merits and demerits of Watada's position as on the impacts that the case is having on the Japanese American community. (Lieutenant Watada is Japanese American.)

In particular, Watada's stand is reawakening the 60-year-old memory of the several hundred Japanese Americans who resisted the draft during World War II. Their story is the subject of my book "Free to Die for their Country: The Story of the Japanese American Draft Resisters in World War II."

At a certain level of abstraction, there is a parallel between Lt. Watada and the WWII resisters; both cases involve contests between obligation to country and obligation to strongly held principle. There are, however, very important differences: the overwhelming majority of the WWII resisters were not opposed to the war in Europe or in the Pacific on principle; they were opposed to being conscripted into service after being stripped of all of the benefits of their U.S. citizenship and placed behind barbed wire.

Posted by Eric at 12:11 PM

October 7, 2006

Baseball Behind Barbed Wire

ere's an interesting article on how baseball helped keep teenagers out of trouble in Japanese American "relocation centers" during World War II.

A lovely children's book that explores a similar theme is Ken Mochizuki and Dom Lee's "Baseball Saved Us." (Regrettably, the internment revisionists have trashed the comment section of the amazon page.)

Posted by Eric at 9:09 AM

September 27, 2006

Iva Toguri D'Aquino, 1916-2006

va Toguri d'Aquino, better (though mistakenly) known as "Tokyo Rose," has passed away.

Here is what I wrote about her World War II treason case in a recent article, "The Japanese American Cases: A Bigger Disaster Than We Realized," 49 Howard Law Journal 417 (2006):

The third and last treason prosecution brought against a Japanese American for conduct during World War II was the notorious case of United States v. Iva Toguri d'Aquino. It was known as the "Tokyo Rose" case, because it arose from the nightly Radio Tokyo propaganda show that American servicemen in the Pacific liked to say was anchored by a disc jockey named "Tokyo Rose." In fact, though, Radio Tokyo had no disc jockey by that name. Quite a few women did English-language broadcasts for Radio Tokyo during the war, and "Tokyo Rose" was a made-up name that soldiers used for all of these female voices.

There is no question that one of those voices was Iva Toguri d'Aquino's. d'Aquino, a Nisei, was born in Los Angeles in 1916, and attended public schools in a variety of southern California communities. She graduated from U.C.L.A. with a degree in zoology in 1940, and then began working toward a graduate degree. In July of 1941, however, her family got word that her mother's only sister, who lived in Japan, was seriously ill, and that she wanted d'Aquino's mother to visit her. Her father decided that d'Aquino would go as the family's representative, because d'Aquino's mother was herself ill. They were unable to obtain a passport for her quickly enough, but at that time a passport was necessary only during war or national emergency, so they instead prepared a simple photo identification card and had it notarized. With that in hand, d'Aquino left for Japan on July 5, 1941, for what was to be a six-month stay. She arrived in Japan on July 24, 1941, and took up what she thought would be temporary residence with her aunt and uncle. The state of war that arose with the Japanese attack on Pearl Harbor changed her plans drastically, because with no passport, and no means of obtaining one, d'Aquino was stranded in Japan for the duration of the war.

d'Aquino eventually landed a position as a typist at Radio Tokyo in August of 1943. Her job at first was to type material for Radio Tokyo's English-language broadcast. Late in the fall of 1943, however, she was approached by two Allied war prisoners--an American and an Australian who had radio experience and were producing "Zero Hour," an evening program of music, recorded messages from prisoners of war, and news items. They liked her "Yankee personality" and asked her to join the program as an announcer. Certainly everyone involved understood that these broadcasts were Japanese propaganda, but d'Aquino believed that the Allied war prisoners creating the show were working as hard as they could to make the program "as entertaining as possible rather than propaganda," and that the scriptwriters were inserting passages with "'a double meaning' in their scripts." In any event, d'Aquino understood these "requests" that she take up the announcer's position as "tantamount to [Japanese] army orders which one did not disobey."

She began broadcasting in mid-November of 1943. One of the Allied war prisoners wrote her scripts until mid-1944, when he got sick; she took over the writing duties at that point, using the earlier scripts as a guide. She was always introduced on the show as "Orphan Ann," "Orphan Annie," "your favorite enemy, Ann," or "your favorite playmate and enemy, Ann." Mostly she announced and played music, while others read news, commentary and announcements.

After Japan's surrender, d'Aquino was questioned and then arrested by military police. She was held in military custody and repeatedly interrogated for nearly a year. Throughout this time she told the same story, which was that she had gotten stranded in Japan, had landed a job at Radio Tokyo, had been more or less conscripted into doing announcements for "Zero Hour," and that through it all she had remained critical of Japan's aggression and a loyal American, albeit in difficult and coercive circumstances. The army ultimately declined to prosecute her, and she was released from detention in Tokyo in May of 1946.

d'Aquino applied for a U.S. passport in the fall of 1947 so that she could return home. The Justice Department at first voiced no objection to her obtaining a passport; her case had been investigated and closed more than a year earlier. However, word somehow leaked to the press that "Tokyo Rose" had applied for a passport, triggering a firestorm among veterans' groups and West Coast nativist organizations, and they demanded a treason prosecution. Bowing to this strong public pressure, the Justice Department opened a new investigation. It lasted until October of 1948, when Justice Department lawyers, having overcome hesitations about the innocuous nature of the broadcasts, concluded that the facts presented a colorable--if not overwhelming--case of treason, and obtained an indictment. d'Aquino, who had again been arrested in Japan, was brought back to San Francisco by ship to stand trial.

The indictment identified eight overt acts of treason, all of them related to broadcasts that d'Aquino had allegedly made between November of 1943 and August of 1945, but during the course of three months of trial, the government's case came to focus primarily on a single comment in a single broadcast that d'Aquino allegedly made in October of 1944. Two witnesses testified that they saw her read the following words into Radio Tokyo's microphone shortly after a typhoon caused the loss of a number of American ships: "'Now you fellows have lost all your ships. You really are orphans of the Pacific. Now how do you think you will ever get home?"' When d'Aquino testified in her own defense, she denied uttering these words.

As in the Kawakita case, the jury's deliberations were long and difficult. The jurors debated the case for almost four days, once reporting hopeless deadlock along the way. Nine out of ten reporters covering the case expected d'Aquino to be completely exonerated, and she nearly was. The jury convicted d'Aquino of treason, but only on the strength of one of the eight overt acts charged in the indictment, the one concerning the loss of ships. The trial judge sentenced her to ten years imprisonment and a $10,000 fine; she served the sentence at the federal prison for women in Alderson, West Virginia, and was released in January of 1956.

Thus, the government eked out a victory in the d'Aquino case, but it was a thin one, obtained from a reluctant jury on the strength of hotly contested testimony. In the view of one of the case's closest observers, Iva Toguri d'Aquino "was a pathetic, isolated, relatively insignificant individual" whose "acknowledged acts of broadcasting for the enemy took on a legendary mystique that heightened her importance far beyond the innocuous substance of her activities." This sense lingered in the Japanese American community long after her release from prison. Three times her supporters applied for a presidential pardon, in the administrations of Dwight Eisenhower, Lyndon Johnson, and Richard Nixon, and were refused. Finally, on his last day in office in January of 1977, President Gerald R. Ford issued a full pardon to Iva Toguri d'Aquino, bringing to a forgiving close her rather muddled prosecution for treason.

Note: I have omitted the footnotes from this excerpt, in keeping with the blog format. My principle sources were Stanley I. Kutler, Forging a Legend: The Treason of "Tokyo Rose," 1980 Wisc. L. Rev. 1341, and Frank F. Chuman, The Bamboo People: The Law and Japanese-Americans (Del Mar Publishers, Inc., 1976).

Posted by Eric at 8:46 PM | Comments (4)

July 26, 2006

Remembering Complexity

he Tule Lake Segregation Center in California was the Japanese American camp of World War II with the most complex and controversial story.

It is therefore the one that most deserves preservation and accurate interpretation.

Posted by Eric at 8:43 AM | TrackBack

July 18, 2006

Born Free and Equal: Ansel Adams Photographs the Japanese American Internment

n 1944, Ansel Adams went to an American site of great beauty and great injustice.

His book of photographs of the experience was called "Born Free and Equal."

It can now be viewed online.

Posted by Eric at 2:26 PM | TrackBack

July 12, 2006

Okay, Not Black, Then

n an earlier posting and comments I suggested that I doubted Black and Rutledge were personally all that enthusiastic about the exclusion and relocation program, part of which was upheld in Korematsu. Eric helpfully points out that Justice William Douglas in an interview reported that Black was among the strongest votes to uphold the program. Indeed, Black said that if he were the commander of the Pacific Defense Area, he would ignore an adverse Court decision. That’s useful information about Black, and I'm grateful for it. It’s also useful information about the climate in which the Court was operating. President Roosevelt had, through his attorney general, made just such a promise about the execution of Nazi saboteurs, which the Court (coincidentally?) did not attempt to stop. As I’ve suggested, I think that the Court’s internment decisions, particularly its technique of dividing of the issues in the various cases, display a deep discomfort with the relocation program (less so, of course, with the curfew and exclusion orders) clashing with a concern about interfering with the war effort and also the possible institutional costs of issuing a decision that might be disregarded.

So I don’t really see the Court as gung-ho. Another thing Douglas says is that he initially voted against the government in Korematsu but later changed his mind and withdrew his dissent. And while I may have been wrong about Black, Douglas does say that Rutledge “was less clear, but went along” and that Korematsu was “a bothersome case, troublesome case … very much discussed, very much considered, very much debated up and down the halls of, the corridors of the Court.” In that environment, I do think that more candor by the Solicitor General’s office could have made a difference. Douglas and Rutledge’s votes were in play.

On the two specific points I mention—the fact that DeWitt’s assertion that sifting the loyal from the disloyal was based on racism and not time considerations, and the fact that DeWitt’s report contained known falsehoods, I continue to think there’s some significance here. First, there’s a world of difference between a fact such as DeWitt’s racism 1) being common knowledge (as it may have been), and 2) being asserted by one party to the case (as it was), and 3) being conceded by the opposing party (as it was not). There’s a difference in that it’s easier for a judge who wants to ignore it to say “Oh, that’s just a newspaper report not subject to adversarial testing,” or “Oh, that’s just one litigant’s position.” I’m not saying the Justices in the majority didn’t want to ignore it—it was an uncomfortable fact. I’m just saying that denial is easier under some circumstances than others, and the Solicitor General made it easier than it needed to be. There's also, of course, an important difference between a decision that is made by a racist and a decision that is based on racism. That the assertions about the impossibility of sorting were the latter and not the former is what the Solicitor General could have disclosed but didn't.

Second, Eric (in a post) and Jerry (in a comment) argue that the allegations about ship-to-shore transmissions can’t be that significant because the Court unanimously upheld the curfew orders in Hirabayashi, when those allegations weren’t present. But I think it’s pretty obvious that the Justices felt a lesser showing was needed to support the curfew because it imposed a lesser burden on those affected—that, presumably, is why there were dissents in Korematsu but not Hirabayashi. So again, it seems to me that Rutledge and Douglas might have been swayed had the Solicitor General distanced himself from the allegations in the brief in a more candid way. But I freely admit this is all counterfactual speculation, which is why I'm a little puzzled at the assertions that there are definitive answers.

Eric also notes that I haven’t responded to his second comment, which asks why I view Korematsu through the legitimizing lens of judicial deference to military judgments rather than the de-legitimizing lens of the domestic imposition of burdens on American citizens solely because of their ancestry. Let me try.

When I say that a decision is legitimate, I mean that it represents a reasonable choice (between deference, non-deference, and “anti-deference”) in light of the factors present that suggest one or another stance is appropriate. From this perspective, I said, most decisions are legitimate. (David (in a comment) suggests that this fact shows only that my concept of legitimacy is too weak to be useful. I don’t think it should be the last step in analysis (which is why I distinguish it from correctness), but I think it is useful in distinguishing, say, Roe (legitimate) from Morrison, Garrett, or Adarand (illegitimate). (I do argue for this, rather than simply asserting it, in the book.) Korematsu, I said, is probably legitimate because a claim of military necessity is something that courts aren’t very good at evaluating, and therefore it’s a factor militating in favor of deference.

That’s not to say that there aren’t factors pointing in the other direction. The fact that a racial group has been singled out is certainly a factor suggesting that courts should not defer. My point is that when you have factors pointing in different directions, different resolutions of the conflict are probably all legitimate (although it proves interesting to compare the hierarchies that Justices construct in different cases). So it would of course also have been legitimate for the Court to say that it couldn’t take the claims of necessity at face value. Again, though, this would have been a good deal easier if the Court had been given evidence that the actual decision was made on the basis of racism, rather than merely that it was made by racists.

This is the end of my week of guest blogging, which has been both fun and educational. If Eric doesn’t mind, I’ll make one more post tomorrow on Korematsu and Guantanamo, which I hope will show that I am not, in fact, a fan of executive detention. In case anyone was wondering.

Posted by at 6:34 PM | Comments (2) | TrackBack

Okay, Not Black, Then

n an earlier posting and comments I suggested that I doubted Black and Rutledge were personally all that enthusiastic about the exclusion and relocation program, part of which was upheld in Korematsu. Eric helpfully points out that Justice William Douglas in an interview reported that Black was among the strongest votes to uphold the program. Indeed, Black said that if he were the commander of the Pacific Defense Area, he would ignore an adverse Court decision. That’s useful information about Black, and I'm grateful for it. It’s also useful information about the climate in which the Court was operating. President Roosevelt had, through his attorney general, made just such a promise about the execution of Nazi saboteurs, which the Court (coincidentally?) did not attempt to stop. As I’ve suggested, I think that the Court’s internment decisions, particularly its technique of dividing of the issues in the various cases, display a deep discomfort with the relocation program (less so, of course, with the curfew and exclusion orders) clashing with a concern about interfering with the war effort and also the possible institutional costs of issuing a decision that might be disregarded.

So I don’t really see the Court as gung-ho. Another thing Douglas says is that he initially voted against the government in Korematsu but later changed his mind and withdrew his dissent. And while I may have been wrong about Black, Douglas does say that Rutledge “was less clear, but went along” and that Korematsu was “a bothersome case, troublesome case … very much discussed, very much considered, very much debated up and down the halls of, the corridors of the Court.” In that environment, I do think that more candor by the Solicitor General’s office could have made a difference. Douglas and Rutledge’s votes were in play.

On the two specific points I mention—the fact that DeWitt’s assertion that sifting the loyal from the disloyal was based on racism and not time considerations, and the fact that DeWitt’s report contained known falsehoods, I continue to think there’s some significance here. First, there’s a world of difference between a fact such as DeWitt’s racism 1) being common knowledge (as it may have been), and 2) being asserted by one party to the case (as it was), and 3) being conceded by the opposing party (as it was not). There’s a difference in that it’s easier for a judge who wants to ignore it to say “Oh, that’s just a newspaper report not subject to adversarial testing,” or “Oh, that’s just one litigant’s position.” I’m not saying the Justices in the majority didn’t want to ignore it—it was an uncomfortable fact. I’m just saying that denial is easier under some circumstances than others, and the Solicitor General made it easier than it needed to be. There's also, of course, an important difference between a decision that is made by a racist and a decision that is based on racism. That the assertions about the impossibility of sorting were the latter and not the former is what the Solicitor General could have disclosed but didn't.

Second, Eric (in a post) and Jerry (in a comment) argue that the allegations about ship-to-shore transmissions can’t be that significant because the Court unanimously upheld the curfew orders in Hirabayashi, when those allegations weren’t present. But I think it’s pretty obvious that the Justices felt a lesser showing was needed to support the curfew because it imposed a lesser burden on those affected—that, presumably, is why there were dissents in Korematsu but not Hirabayashi. So again, it seems to me that Rutledge and Douglas might have been swayed had the Solicitor General distanced himself from the allegations in the brief in a more candid way. But I freely admit this is all counterfactual speculation, which is why I'm a little puzzled at the assertions that there are definitive answers.

Eric also notes that I haven’t responded to his second comment, which asks why I view Korematsu through the legitimizing lens of judicial deference to military judgments rather than the de-legitimizing lens of the domestic imposition of burdens on American citizens solely because of their ancestry. Let me try.

When I say that a decision is legitimate, I mean that it represents a reasonable choice (between deference, non-deference, and “anti-deference”) in light of the factors present that suggest one or another stance is appropriate. From this perspective, I said, most decisions are legitimate. (David (in a comment) suggests that this fact shows only that my concept of legitimacy is too weak to be useful. I don’t think it should be the last step in analysis (which is why I distinguish it from correctness), but I think it is useful in distinguishing, say, Roe (legitimate) from Morrison, Garrett, or Adarand (illegitimate). (I do argue for this, rather than simply asserting it, in the book.) Korematsu, I said, is probably legitimate because a claim of military necessity is something that courts aren’t very good at evaluating, and therefore it’s a factor militating in favor of deference.

That’s not to say that there aren’t factors pointing in the other direction. The fact that a racial group has been singled out is certainly a factor suggesting that courts should not defer. My point is that when you have factors pointing in different directions, different resolutions of the conflict are probably all legitimate (although it proves interesting to compare the hierarchies that Justices construct in different cases). So it would of course also have been legitimate for the Court to say that it couldn’t take the claims of necessity at face value. Again, though, this would have been a good deal easier if the Court had been given evidence that the actual decision was made on the basis of racism, rather than merely that it was made by racists.

This is the end of my week of guest blogging, which has been both fun and educational. If Eric doesn’t mind, I’ll make one more post tomorrow on Korematsu and Guantanamo, which I hope will show that I am not, in fact, a fan of executive detention. In case anyone was wondering.

Posted by at 6:34 PM | Comments (2) | TrackBack

William O. Douglas Reflects on Hirabayashi, Korematsu, and Endo

ere is a very interesting interview of Justice William O. Douglas on his recollections (in May of 1962) of the Supreme Court's internal politics in the Hirabayashi, Korematsu, and Endo cases.

One tidbit is of relevance to the discussion that Kim Roosevelt has been leading here: Douglas's recollection is the Hugo Black was the most gung-ho on the Court for upholding the military orders in both Hirabayashi and Korematsu. Kim has speculated that Black ought to have been on the fence, and might have been led to vote against the government by some slight alterations in the government's factual presentation. Douglas's account tends to suggest otherwise. (Indeed, Black even voted to deny cert in Korematsu entirely, according to Douglas.)

Posted by Eric at 8:32 AM | TrackBack

July 11, 2006

A Further Reply to Kim Roosevelt

im has responded to one of my earlier comments – the one expressing doubt that government misrepresentations were what led the Korematsu Court to uphold mass exclusion – but not to the other comment, which asked why he is comfortable positing judicial deference to military decision-making as a relevant (let alone a legitimizing) principle in a case involving the racial deportation of U.S. citizens on U.S. soil. Few people would contend, of course, that a court should enjoin an allegedly illegal bombing run in a theater of operations overseas. (Or lots of other kinds of military operations.) But the claim that the military deserves anything like that degree of judicial deference in orders directed against U.S. citizens on American soil strikes me as pretty deeply controversial – something controversial enough to need defending. Surely it is too controversial a proposition to wield the legitimizing force that Kim gives it in his analysis of Korematsu.

As for Kim's response to my other comment, I think we all have to confess that we are engaging in classic counterfactual speculation. Kim believes that the Supreme Court would have struck down rather than upheld the exclusion of Japanese Americans if two things had been different from how they actually were: (1) if the government had not included an inaccurate reference to alleged shore-to-ship signaling by Japanese Americans in its Korematsu brief, and (2) if the government had accurately reported that General DeWitt's reason for not sifting the loyal from the disloyal before evacuation was that he thought such a sifting was impossible.

Jerry Kang deals ably with the first of these; I refer readers to his work for a full account of why this government misrepresentation probably did not lead the Justices in the majority to defer to the military. One point, though, is worth special mention: the same justices unanimously upheld the racially selective curfew against Japanese Americans in the Hirabayashi case in 1943, long before the government filed its misleading Korematsu brief. Plainly the Court did not need the misrepresentations about shore-to-ship signaling in order to uphold the racially selective curfew. So why assume that this was the "fact" that led the majority vote to sustain mass exclusion a year later?

And what of the second counterfactual? Would the Supreme Court have struck down rather than upheld the government's program if the government had honestly reported that General DeWitt thought a sifting of the loyal from the disloyal was impossible because there was no way of distinguishing a loyal from a disloyal Japanese American? Kim says yes, because this admission would have revealed to the Court that DeWitt's basis for evacuation was racism ("you can't tell 'em apart") rather than military necessity ("there's no time to tell 'em apart").

This strains belief, I fear, to the breaking point. The majority was well aware – Justice Murphy made great hay of it in his dissent – that General DeWitt had opined in his official justification for his decisions that "the Japanese race was an enemy race" and that even in the second-generation Japanese born in the United States, these "racial strains" were "undiluted." The majority knew full well that General DeWitt had stated – in an official publication – that the way he knew that Japanese Americans were planning sabotage and espionage was that they hadn't yet committed any.

Justices Rutledge and Black knew these things. And yet Kim maintains that if they'd known that he thought racial loyalties made a sifting impossible, they would have voted to strike down rather than uphold Fred Korematsu's conviction for violating the evacuation order, because then they would have understood that General DeWitt's decision was infected by racism.

Deeply implausible. I'm not buying it.

Posted by Eric at 10:58 PM | TrackBack

Some Thoughts on Korematsu's "Legitimacy"

im argues below that Korematsu was a wrong yet legitimate Supreme Court decision because it sprang from judicial deference to military decisionmaking, and "deference to military decisionmaking really makes a lot of sense." That is, the Court's deferential posture was appropriate; it produced an erroneous decision because the government misled the Court about the degree of military risk that Japanese Americans posed. (It was on the basis of this misrepresentation that a federal court in 1983 vacated Korematsu's 40-year-old conviction for violating the evacuation order.)

Naturally this is something about which I'll have a word or two to say. Two quick points, to start:

(1) While I don't dispute that there are penty of circumstances in which "judicial deference to military decisionmaking really makes a lot of sense," I'm not at all persuaded that this is a legitimizing principle for cases in which the military is making decisions about the freedom of movement, and indeed the incarceration, of U.S. citizens on U.S. territory. So I'd like to hear a bit more from Kim on that point: why is "judicial deference to military decisionmaking" the central and legitimizing principle in Korematsu? Given that the case was about the domestic imposition of special burdens on American citizens chosen solely on the basis of ancestry, why shouldn't the general (and presumptively delegitimizing) principle be the very disapproval of race-based government action that the Korematsu opinion itself mentions?

(2) Essential to Kim's description of Korematsu as "legitimate" is the idea that if the Western Defense Command (with the Justice Department's connivance) had not falsely represented to the Court that Japanese Americans were involved in shore-to-ship communications with Japanese ships and subs, and had not falsely represented to the Court that it had undertaken no individual loyalty assessments because it didn't have the time, the Court would have gone the other way in Korematsu and condemned the mass exclusion of Japanese Americans from the West Coast as unconstitutional. Stated more simply, Kim's argument depends on a very strong claim of causation: it was the government's misrepresentations to the Court in Korematsu that led it to reach the result it reached.

This is a claim that Jerry Kang has pretty much demolished. The best evidence is that the Supreme Court structured its adjudications of the Japanese American cases to avoid condemning the mass exclusion as unconstitutional; there's really no evidence at all that the government's misrepresentations to the Court were what led a majority of the Justices to approve of mass exclusion as constitutional.

In the debate over Korematsu's "legitimacy" (as distinguished from its "wrongness"), this strikes me as a huge strike against it.

Posted by Eric at 8:36 AM | Comments (1) | TrackBack

July 8, 2006

The Next Novel

airly soon after In the Shadow of the Law was published, my editor started talking to me about the next novel. One of the things he was very interested in was a novel set in the Supreme Court. I felt uncomfortable with that idea because I didn't really see how I could write that kind of a book without people thinking that it was a roman a clef, and I wanted to avoid giving that impression out of respect for Justice Souter's privacy. (The Supreme Court clerkship aspects of In the Shadow of the Law are meant to be realistic in a generic sense, but whenever I had the opportunity to put in a detail about the Justice I tried to make it something that couldn't be construed as applying to Souter.) My editor's solution to this problem was to set the novel in the future, when everyone had retired. That struck me as an interesting idea, but a difficult one because then in addition to inventing nine new Justices, I would have to invent a new jurisprudence, because otherwise people might take the positions of my fictional Justices on contemporary issues and use them to map the fictional Court onto the real Court.

But then the obvious solution came to me--set the book in the past. This would avoid any confidentiality problems, and also give me the opportunity to pick an interesting case as a backdrop. After thinking about juicy Supreme Court cases for a while, I decided to use the Japanese Internment cases--Hirabayashi, Yasui, Korematsu, and Endo. I liked these for a couple of reasons. First, I thought they'd give an interesting opportunity to reflect on themes of contemporary relevance. And second, I thought they'd give a good context in which to explore how well-meaning people do regrettable things. One of the most interesting and enjoyable aspects of writing In the Shadow of the Law was trying to figure out how things looked from the bad guys' perspective--what their internal logic was like. The Japanese Internment cases, I figured, would give me a great set of characters to do that with, because many of the important figures--Hugo Black, Felix Frankfurter, Herbert Wechsler, Francis Biddle--are generally considered good guys in the larger narrative of American history. So exploring how they came to do the things they did is something I'm very much looking forward to. And the fact that this is my next fictional project is one of the reasons I'm so glad to be guest-blogging here on isthatlegal. I'm still in the early stages of my research, so any advice would be most welcome.

Posted by at 5:01 PM | Comments (3) | TrackBack

Tragical History Tour

n a few minutes I'll be heading out to the site of the Mindoka Relocation Center for Japanese Americans in WWII, near Twin Falls, Idaho, with a busload of surviving former internees. We'll be touring the site with National Park Service guides, and later we'll visit a reconstructed barrack.

Reading Korematsu and the literature on the Japanese American internment is very important. But there's no better way really to understand the camps than to visit them, especially (if possible) with people who were warehoused there on account of nothing more than their ancestry.

There are camp sites in southern California (Manzanar) and northern California (Tule Lake), northwestern Wyoming near Yellowstone (Heart Mountain), eastern Colorado (Amache), central Utah (Topaz), southern Arizona (Poston and Gila River), southern Idaho (Minidoka), and southern Arkansas (Rohwer and Jerome). If your travels ever take you through any of those regions, stop by. It'll be worth it.

Posted by Eric at 9:44 AM | TrackBack

July 7, 2006

In Defense of Emergency

ooks like Charles Krauthammer has joined the ranks of those who believe that Korematsu was rightly decided.

Or is he just saying that the Court has wrongly cheated President Bush out of his entitelement to suspend civil liberties?

Posted by Eric at 12:16 AM | Comments (1) | TrackBack

July 1, 2006

Hamdan, Endo, Disarray, and Arrogance

n this NYTimes article on hesitations about legislation to establish military tribunals, this passage stood out:

Until now, the White House and particularly Vice President Dick Cheney had been dead set against working with Congress on issues involving the detainees, against the advice of some Republicans and some administration lawyers. By waiting until the court forced the issue, the White House may have made its task more difficult, leaving Mr. Bush with less support in Congress than he had after the attacks of Sept. 11.

I am reminded of the discussions within the Roosevelt Administration (the War Department, the Justice Department, the Department of the Interior, and to a lesser extent the President himself) during the summer and fall of 1944 as they awaited the Supreme Court's decision in Ex parte Endo.

The Endo decision came on December 18, 1944; it declared illegal the continued detention of loyal Japanese Americans in the eight "relocation centers" that the War Relocation Authority was operating at that time.

What's interesting to me is that the Administration spent the summer and fall of '44 preparing for the possibility of an adverse outcome in Endo. Felix Frankfurter tipped the Administration off that the decision was coming on the 18th; this enabled the Administration to preempt the Supreme Court's decision by announcing on the 17th of December that it would be bringing the detention and exclusion of Japanese Americans from the West Coast to an end. It had a plan in place to end the mass exclusion of Japanese Americans and to replace it with a system of targeted individual exclusions of those it deemed especially dangerous.

Compare this to the disarray in Washington over the last couple of days.

It's quite obvious to me that this Administration just could not bring itself to believe and plan effectively for the possibility that it might lose the Hamdan case, and lose it big.

Why am I not surprised?

Posted by Eric at 10:45 AM | Comments (2) | TrackBack

June 16, 2006

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

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 8:50 AM | Comments (2) | TrackBack

June 15, 2006

Japanese Internment Gets A New Breath of Life in the Eastern District of New York

ederal district judge John Gleeson (E.D.N.Y.) yesterday filed an opinion of potentially enormous significance (.pdf file) in Turkmen v. Ashcroft, a class action challenging the government's prolonged confinement of Arab and Muslim aliens on immigration charges in the wake of the September 11 attacks. In a nutshell, Judge Gleeson dismissed all claims asserting that the government violated the law in singling the detainees out for arrest and prolonged detention on the basis of their race, religion, and ancestry. He declined to dismiss the plaintiffs' claims challenging the conditions of their confinement.

It is the dismissed claims that interest me, especially the claim that simply because of their nationality and their religion, the government detained these post-9/11 detainees for far longer than necessary after they had received final orders of removal or grants of voluntary departure, without affording them a hearing to determine whether the continued detention was warranted. Naturally, the plaintiffs presented this claim under the equal protection component of the Fifth Amendment's due process clause.

Judge Gleeson made quick and dismissive work of this claim: these plaintiffs were aliens, not U.S. citizens, and for that reason the government was free to single them out for special enforcement on account of the unadorned fact of their national origin without violating norms of equal protection.

The precedent on which Gleeson relied was the Supreme Court's decision in Reno v. American-Arab Antidiscrimination Committee. There the Court held that federal statutes did not confer jurisdiction to entertain a selective-prosecution challenge to a deportation proceeding. (The plaintiffs in that case were members of an alleged terrorist group, the Popular Front for the Liberation of Palestine; they alleged that the government violated their constitutional rights by singling them out for deportation in violation of their First Amendment rights to expression and association.)

For Judge Gleeson, this was an easy issue:

In the investigation into the September 11 attacks, the government learned that the attacks had been carried out at the direction of Osama bin Laden, leader of al Queda, a fundamentalist Islamist group; some of the hijackers were in violation of the terms of their visas at the time of the attacks. In the immediate aftermath of these events, when the government had only the barest of information about the hijackers to aid its efforts to prevent further terrorist attacks, it determined to subject to greater scrutiny aliens who shared characteristics with the hijackers, such as violating their visas and national origin and/or religion. Investigating these aliens’ backgrounds prolonged their detention, delaying the date when they would be removed.

As a tool fashioned by the executive branch to ferret out information to prevent additional terrorist attacks, this approach may have been crude, but it was not so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise. … I note, however, that the extraordinary circumstances of September 11 are by no means a prerequisite to the deference owed the political branches in this area. … Such national emergencies are not cause to relax the rights guaranteed in our Constitution. Yet regarding immigration matters such as this, the Constitution assigns to the political branches all but the most minimal authority in making the delicate balancing judgments that attend all difficult constitutional questions; “nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require [courts] to equate [their] political judgment with that of” the executive or the Congress.

But this issue should not have been so easy.

There is a historical precedent for the prolonged wartime detention of an alien group on the simple basis of their ancestry, and – perhaps not surprisingly, given the direction he was heading – Judge Gleeson did not mention it. That precedent is the multi-year incarceration of aliens of Japanese ancestry in World War II, without any sort of hearing to ratify their continuing and prolonged detention. (The government also incarcerated U.S. citizens of Japanese ancestry, but it is the detention of Japanese aliens, the so-called "Issei," that I speak of here.)

To be sure, the lengthy incarceration of the Issei without hearings was never the subject of a lawsuit, as was the incarceration of their citizen children (see Ex parte Endo, the subject of a recent mini-symposium at my blog IsThatLegal).

But it would be wrong to say that this prolonged detention was legal, or that the illegality of the detention has gone unredressed. Quite the opposite is true. The Civil Liberties Act of 1988 said the following:

“The Congress recognizes that … a grave injustice was done to both citizens and permanent residents of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II. … For these fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry, the Congress apologizes on behalf of the Nation.”

The legislation went on to authorize an apology and reparations payments for the illegal prolonged detention – not just to U.S. citizens, but to resident aliens of Japanese ancestry.

Judge Gleeson is undoubtedly right that the executive has broad discretion to prioritize its immigration enforcement, and that in that enforcement, it can single out people of certain nationalities for deportation before others. But that is not the nub of the Turkmen plaintiffs' now-dismissed claim. The nub of their claim is that the government held them in prolonged and unjustified detention, beyond any period necessary for the enforcement of the deportation laws, and without any sort of hearing to approve their prolonged detention, simply on account of their national origin. Focusing on prolonged detention rather than the simple decision to deport, their claim is therefore much more like the one legislatively vindicated in the Civil Liberties Act of 1988, and less like the deportation challenge that the Court rejected in Reno v. American-Arab Antidiscrimination Committee.

As I said, Judge Gleeson did not note the precedent of the illegal prolonged incarceration of the Issei in World War II. Who, in this day and age, would wish to rely on such an ugly episode for support?

But that ugly episode is fairly direct historical precedent for the prolonged detentions alleged in the Turkmen complaint. Candor would require Judge Gleeson to admit that he has given the government carte blanche not just to deport aliens of particular races, nationalities, or religions, but to confine them at length in this country, on the basis of nothing but race, religion, or nationality, without any sort of hearing before a neutral arbiter.

"National emergencies are not cause to relax the guarantees in our Constitution," said Judge Gleeson.

Yet that is just what his opinion does.

(Cross-posted from Concurring Opinions)

Posted by Eric at 3:28 PM | Comments (5) | TrackBack

June 7, 2006

Jerry Kang: Dodging Endo

n the legal literature, there are two fundamentally different ways to remember Endo. On the one hand, Professor Pat Gudridge remembers Endo as a positive foil to the negative Korematsu decision. In Korematsu, the Supreme Court affirmed the constitutionality of forcible evacuation; however, on the very same day, in Endo, the Court held indefinite detention to be illegal. As Gudridge thoughtfully argues ("Remember Endo?" 116 Harvard Law Review 1933 (2003)), both good and bad -- in their irreconcilable complexity -- must be remembered together.

On the other hand, I recall Endo not as nemesis to Korematsu, but as accomplice. Indeed, Endo was the final maneuver in a complex strategy that the Supreme Court deployed in order to stay out of the military's way; but never to officially approve of the internment; and finally, to provide "plausible deniability" to the political branches. The core point is that Endo "won" in a way that absolved the political branches of any responsibility for the civil rights disaster. Instead of ruling on constitutional grounds, the Court ingeniously decided the case on administrative law. The Supreme Court held -- with a straight face -- that the War Relocation Authority (WRA), which operated the camps with millions of dollars of federal funds, was never actually "authorized" by President Roosevelt or Congress. In other words, the WRA was a rogue agency, acting ultra vires. This was why Endo had to be freed. Neither President nor Congress was at fault.

Why does this interpretive dispute matter? First, in the law reviews, Endo is being remembered more triumphantly than Gudridge intended, as an example of the Supreme Court checking Executive Branch excesses, even during times of war. Nothing could be further from the truth. The Supreme Court should be blamed for its machinations, not praised for its backbone.

Second, in judicial opinions, Endo is being remembered without irony. Endo is now being cited for the "clear statement rule"--that in order to detain American citizens, the political branches must authorize such detention unambiguously. The argument goes like this: Just as the internment was not authorized back during World War II, see Endo, detention has not been authorized in the global war on terror. But this reinscribes a falsehood. FDR and Congress did authorize the internment camps. It's just that the Court declined to see to this inconvenient fact.

As a matter of history, Endo should be understood as dodging accountability. As a matter of doctrine, Endo should be treated in the same way that we treat Korematsu. Even nonlawyers know that the Korematsu case created the foundations of "strict scrutiny," which remains a critical component of our equal protection jurisprudence. In other words, as an abstract legal rule, Korematsu remains good law. However, how this rule was applied to the facts is universally disdained. Endo's abstract legal rule, demanding a clear statement, can also be preserved as good law. However Endo's application to the facts in World War II should be sharply rejected as deceitful.

If we don't, what will prevent the use of Endo to dodge accountability again? After horrific tortures in some detention camp are brought to light, low-level soldiers will be prosecuted but high-level officials will be absolved. After all, there was never any "clear statement" authorizing quite this sort of barbarism. See Endo.

For the full argument, see my "Denying Prejudice" (UCLA L. Rev. 2004) and "Watching the Watchers" (Law and Contemp. Probs. 2005), both available at: http://jerrykang.net/Scholarship/scholarship.htm.

* * *This is the last essay in this mini-symposium commemorating the life of Mitsuye Endo Tsutsumi (1920-2006), who died in April. Greg Robinson and Patrick Gudridge also submitted essays, and I started things off with a bit of background on Mrs. Tsutsumi and her case.

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June 6, 2006

Patrick Gudridge: Honoring Mitsuye Endo, Remembering Her Case

t is not an easy thing to step forward and challenge government action, however manifestly wrong. Most of us choose to lie low, to find a way to rationalize accommodation. Mitsuye Endo agreed to stand tall, to stand out – to be publicly identified, volunteering not only her name but her life story, confirming concretely the legal critique of Japanese American internment in World War II. We – many of us, anyway – readily honor Gordon Hirabayashi and Fred Korematsu, along with others who opposed internment. We ought to recognize Mitsuye Endo as well.

The Supreme Court decision that bears her name is invoked more often now than in the past. This is partly a matter of circumstances. The events we associate with September 11, 2001, and succeeding years – like those of December 7, 1941, and afterwards – raise questions about government security measures, about their necessity and decency (a diplomatic term). The 1944 Endo decision declared internment to be groundless – unjustifiable treatment of Mitsuye Endo and therefore thousands and thousands of other persons. We read Endo, not surprisingly, to find out what we can learn.

In the process, Endo becomes controversial. Justice Douglas, it appears, took no forthright stand in writing for the Court, evoked no clear constitutional commands, seemingly assigned responsibility for his conclusion to Congress and President Roosevelt. Irony has its place. It is certainly possible to argue, however, that the Endo opinion, even as it declares internment void, was written in a way that absolves the principal branches of government of responsibility, treating the whole system of camps and their turbulent administration as simply a bureaucratic misunderstanding. On this reading, the Court also absolved itself. Endo does not call into question the defenses of government action Chief Justice Stone and Justice Black had constructed in Hirabayashi and Korematsu. Jerry Kang presses arguments like these especially incisively and emphatically. As one result, he has substantially increased the likelihood that readers of Hirabayashi and Korematsu, passing judgment on the work of the Supreme Court in those cases, will remember Endo as well, and the costs of the minimalist tack that the Court apparently chose to take.

The Endo opinion, it should also be said, is notably complex. If Justice Douglas does not invoke constitutional commands, he does plainly summarize constitutional premises, and he treats these premises as mandatory, as inescapably organizing judicial interpretation of the statutes pertinent to the case. It is within the bounds of this constitutionally framed reading, he asserts, that the conclusion that internment is unlawful becomes evident. This approach, we know, does not turn out to be unique to Endo. Justice Harlan would proceed quite similarly in his important “Red Monday” opinion in Yates v. United States, reading the Smith Act as encoding constitutional free speech concerns, and as thus inconsistent with jury instructions in Communist Party prosecutions. Justice Douglas himself later invoked constitutional premises as just as much part of the Constitution as particular provisions of the Bill of Rights in Griswold v. Connecticut. (Chief Justice Rehnquist and his colleagues would effectively echo Douglas in elaborating their distinctive conception of constitutional federalism.) If Endo is modest – and therefore subject to criticism – it is modest at only one level. Endo also illustrates an approach to putting to use and interpreting the Constitution that attributes dramatic depth to constitutional language.

We may also remember Endo as one of several efforts by Supreme Court Justices to respond to a distinctive predicament. The collapse of earlier judicial conceptions of constitutional law that became especially evident in 1937 and in immediately following years marked many doctrinal formulas prominent in pre-war opinions as dubious resources, as arguably suspect starting points. In Hirabayashi, in the long, no longer much read latter part of his opinion, Chief Justice Stone relied heavily on the older cases to sidestep the question of whether the curfew at issue there was fatally racially discriminatory. It is perhaps one measure of how unpersuasive that effort was, even at the time, that Justice Black’s opinion in Korematsu works so hard not only to minimize its own significance, but at its outset attempts to reformulate the catch phrases summarizing the Supreme Court’s treatment of racially discriminatory government action. This reformulation, as Greg Robinson has noted, would later prove to be important – although it is also evident that the Court either did not yet fully appreciate, or was not yet willing to appreciate the implications of its new gloss in the Korematsu case itself. Justice Douglas’s opinion in Endo, in this instance much like Justice Jackson’s spectacular effort in West Virginia Board of Education v. Barnette, shifts attention away from doctrinal formulas to constitutional premises, dodges the sinkholes of not yet fully reconstructed, not yet entirely judicially manageable constitutional law.

This jurisprudential context (as it were) excuses neither Hirabayashi nor Korematsu – nor Endo’s minimalist surface. But it should suggest to us, sixty or so years later, that we ought to take stock of our own resources. Before the 1950s were over, the Supreme Court was able – largely through the efforts of Chief Justice Warren and Justices Harlan and Brennan – to develop a rich repertoire of devices for restricting (if never entirely eliminating) the “collateral damage” of Cold War national security worries. Are we now sufficiently similarly situated? If we are not sure, we may want to recall Endo once more, this time set against both Korematsu and Hirabayashi, as part of a process of charting the map of our own reconstruction.

For whatever reason we remember Endo the case, we will have occasion to remember Mitsuye Endo, and the thousands and thousands of other people who were forced to carry on their lives in the camps. We benefit, therefore, without doubt.

-- Patrick Gudridge

* * *

This is the second in a series of essays I am posting this week to commemorate the passing of Mitsuye Endo. The first, Greg Robinson's, appeared yesterday. Jerry Kang's will appear tomorrow.

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June 5, 2006

Greg Robinson: Mitusye Endo, Great In Her Obscurity

itsuye Endo (Tsutsumi), who died two weeks ago, represents an unusual case of heroism—a hero both self-effacing and effaced by others. It was in the case of Ex parte Endo that the Supreme Court finally ruled that the government could not confine citizens whom it conceded to be loyal (although the Court dodged addressing the essential question of the government’s power to issue military orders against citizens). This case was fundamental in the trajectory of Japanese Americans, as it led to the opening of the camps and the return of the inmates to the West Coast.

On the one hand, Endo was largely disconnected from the actions connected with her name. Indeed, the fact that her case was brought at all, let alone went before the Supreme Court, was in some sense a matter of chance. Her original intent was not to challenge confinement as such, but to regain the civil service job in California from which she had been arbitrarily dismissed. Recruited as a test case by lawyer Jim Purcell, Endo either never met her lawyer or did so only on one occasion. It was Purcell who decided that the most promising way to proceed was to contest Endo’s confinement in the WRA camps; Endo was willing to serve as a plaintiff. Once her case was decided, she shied away from public scrutiny. She did not participate in the annual protests and commemorations that the Japanese American redress movement began in the 1970s (although she did produce a short oral history for John Tateishi’s 1983 anthology "And Justice for All"). Furthermore, because she won her case, she was not connected with the coram nobis petitions through which her fellow wartime litigants Gordon Hirbayashi, Minoru Yasui, and Fred Korematsu challenged their convictions, and were vindicated. Partly because she remained so private, and also no doubt partly because she was a woman and not a convenient symbol of manly self-assertion, she remained largely excluded from the pantheon of internment resister glory, or the honor roll of those who had “stood up.”

Yet, for all that her presence in the case was largely accidental, and her involvement in its preparation incidental, Endo showed at least as much courage and dedication to principle as any of the more prominent male Nisei plaintiffs. First, she came into contact with the lawyers because she was prepared to challenge her arbitrary dismissal from a California civil service job. The possession of such a job was an unusual achievement for a Nisei woman in the prewar days, when discrimination was the rule. Thus, in addition to her desire to hang on to such a prized position for herself, she was surely actuated by the sentiment that she needed to defend her rights on behalf of the larger group. After she brought her petition, Endo was removed from the Tule Lake camp to the camp at Topaz to remove her from the jurisdiction of the California court—a bit of government scullduggery that is not without some current echoes in the Padilla case. The War Relocation Authority’s chief attorney then travelled to see her and tried to persuade her not to continue, offering her an immediate “leave permit” if she would abandon the case, but Endo stuck to her principles. Endo remained in confinement for over 18 months so that the case could be brought and argued before the High Court. Even after her victory, she did not return to the West Coast and the job she had left, but instead settled permanently in Chicago (and lived and worked alongside African American colleagues, as an assistant to the city’s Human Rights Commission).

Not long ago I was discussing the wartime Supreme Court Japanese American cases with a distinguished historian, who posed a somewhat tendentious question that nevertheless zeroed in on the legacy of those cases: “Why is it that men like Gordon Hirabayashi and Minoru Yasui, who challenged Executive Order 9066 and arbitrary government power entirely on principle, have their contributions ignored, while Fred Korematsu, who challenged Executive Order 9066 in order to stay with his non-Japanese girlfriend, became renowned and was awarded the Presidential Medal of Freedom?” I answered as best I could that these things were in part a matter of luck—Korematsu’s case turned out to be the decisive case in its long-term impact—but also of Korematsu’s willingness to stand up when the decisive time came. Fred Korematsu, once he decided to appear publicly and talk about his case after many years of silence, was mobilized over the years to speak about his experiences and to raise his voice against the treatment of Japanese Americans. An ordinary man, rather than an intellectual, he served as an eloquent symbol. It is interesting that the historian did not mention Mitsuye Endo at all in his litany. She, after all, was a classic case of an ordinary person who stuck up for principle. Was this another case of the unfortunate obscuring of Endo and her case? Or was Endo herself perhaps (to paraphrase the title of the aria from Gounod’s "La Reine de Saba") “more great in her obscurity”?

--Greg Robinson, Université du Québec à Montéal

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This Week At IsThatLegal: An Online Mini-Symposium Commemorating the Life of Mitsuye Endo, A Quiet Civil Rights Hero

uring World War II, four American citizens of Japanese ancestry took their resistance to the government's program of racial curfew, exclusion, and incarceration all the way to the United States Supreme Court.

Minoru Yasui, an articulate attorney, resisted the dusk-to-dawn curfew that the military imposed on American citizens of Japanese (but not German or Italian). Gordon Hirabayashi, a religious pacifist, resisted both the curfew and the military's order that he report for exclusion from the West Coast. Fred Korematsu, a scrappy fighter who wanted just to go on living his life, refused to report for exclusion.

The litigant who really scared the military and the Justice Department, though, was a young Japanese American woman named Mitsuye Endo. At the time of the exclusion and incarceration of Japanese Americans, Endo was a twenty-two-year-old clerical worker in California's Department of Motor Vehicles in Sacramento. She had never been to Japan, spoke no Japanese, had been born and raised a Methodist, had a brother in the U.S. Army, and was of unquestioned loyalty to the United States. On July 12, 1942, while she sat behind the barbed wire of the "assembly center" at the Tanforan Racetrack south of San Francisco, an attorney filed a petition for a writ of habeas corpus in federal district court on her behalf.

Archival records from that time show quite plainly that government lawyers dreaded the Endo habeas corpus case. Most lawyers in the military, the Justice Department, and the War Relocation Authority (which ran the camps) were pretty sure they'd win the Yasui, Hirabayashi, and Korematsu cases – and they were right.

But most also feared they would lose Endo -- and they were right.

Indeed, it was their fear of a catastrophic loss in Endo (and not, for many of them, any strong sense of justice) that led them to press FDR to end the mass exclusion of Japanese Americans from the West Coast. Fearing he would lose California's electoral votes, FDR would not announce the end of the exclusion before the 1944 election. But he did permit the military to make that announcement in December 1944, just before the Court ruled in Endo that the War Relocation Authority lacked the legal authority to continue to detain loyal Japanese Americans. By announcing the end of exclusion moments before the Court's decision, the government hoped to drain Endo of its significance.

Here the government was successful. Endo has been forgotten, eclipsed by the more famous Hirabayashi and Korematsu cases.

Forgotten, too, has been Mitsuye Endo, and this seems to be how she wanted it. Unlike the litigants in the three well-known cases, Endo avoided the limelight. She moved to the Chicago area after the war, married (taking the last name Tsutsumi), had children, worked, and lived a quiet life.

.

* * *

Today, tomorrow, and Wednesday, I will post commemorations of Mitsuye Endo and her quiet legal heroism written by three leading experts on her case and its history and significance.

The first to appear – later today – will be by Greg Robinson, a professor of history at the University of Quebec at Montreal and author of, among many other things, By Order of the President: FDR and the Internment of Japanese Americans (Harvard University Press 2001).

Tomorrow I will post the commemorative thoughts of Patrick Gudridge, Professor of Law at the University of Miami School of Law and the author of, among many other things, the important article "Remember Endo?", which appeared in the Harvard Law Review in 2003.

On Wednesday, I will post the thoughts of Professor Jerry Kang of the UCLA School of Law, whose work includes some of the most careful and probing analysis of Endo, Korematsu, and Hirabayashi -- one example of which can be found online here.

I hope you enjoy the reflections of these three scholars on the life and legacy of a remarkable, if little-known, civil rights hero.

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May 23, 2006

The "Hindsight" Theory of the Japanese American Internment Takes (Yet) Another Hit.

pend some time talking with folks -- especially, though not exclusively, older folks -- about the Japanese American internment, and you're bound to hear the claim that it looks wrong to us only because we have the benefit of hindsight. "Everyone was terrified of an invasion," you're told; "everybody thought it was necessary at the time."

Doing some research yesterday in the papers of the Commission on Wartime Relocation and Internment of Civilians, I came across a letter that confounds that claim pretty nicely. Note that it's dated April 30, 1942.

That's just the opening couple of paragraphs. It goes on to ask that Japanese aliens and American citizens of Japanese ancestry be accorded hearings before being removed from their homes -- something the government declined to do. "To grant to Italian and German aliens a right denied to American citizens of Japanese origin is a type of race discrimination for which there is no ethical justification."

The letter concluded, and was signed, as follows:

As a Tar Heel, I was especially pleased to see the name of Frank Porter Graham on the list.

Posted by Eric at 12:44 PM | Comments (2)

April 27, 2006

Symposium on Japanese American Redress

f you're in or near Seattle tomorrow, you might consider dropping in on this symposium reflecting on the movement for Japanese American redress. It will explore questions such as these: "How did a grassroots movement of everyday working people lead to a formal apology and monetary reparations from the U.S. federal government for the incarceration of Japanese Americans during World War II? What are the movement’s historical lessons and lasting legacies on the ongoing struggle for social justice?"

Timely issues, important history, great speakers.

Posted by Eric at 8:56 AM | Comments (1)

March 22, 2006

A Talk This Afternoon On Loyalty During Wartime

his afternoon at 4:15 in the rotunda of the UNC law school, I'll be giving a talk about the World War II-era American bureaucracy that passed judgment on the loyalty and disloyalty of 40,000 Japanese Americans.

If you're on campus, and are interested in issues relating to civil liberties and national loyalty during wartime, stop on by.

Posted by Eric at 9:15 AM | Comments (1)

February 23, 2006

"The Idea of Doing Nothing"

iving in a small German town in the early 1950s, American professor Milton Mayer pressed former members of the Nazi Party on whether they and other ordinary Germans had "known" about the regime's treatment of the Jews. He relates the following:

The ... bill-collector, Herr Simon, was greatly interested in the mass deportation of Americans of Japanese ancestry from our West Coast in 1942. He had not heard of it before, and, when I told him of the West Coast Army Commander's statement that "a Jap is a Jap," he hit the table with his fist and said, "Right you are. A Jap is a Jap, a Jew is a Jew." "A German is a German," I said. "Of course," said the German proudly. "It's a matter of blood."

He asked me whether I had known anybody connected with the West Coast deportation. When I said "no," he asked me what I had done about it. When I said "Nothing," he said, triumphantly, "There. You learned about all these things openly, through your government and your press. We did not learn through ours. As in your case, nothing was required of us--in our case, not even knowledge. You knew about things you thought were wrong -- you did think it was wrong, didn't you, Herr Professor?" "Yes." "So. You did nothing. So it is everywhere." When I protested that the Japanese-descended Americans had not been treated like the Jews, he said, "And if they had been -- what then? Do you not se that the idea of doing something or doing nothing is in either case the same?"

Something to think about.

(From "They Thought They Were Free: The Germans, 1933-45 (Univ. of Chicago Press 1955).)

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February 18, 2006

Executive Order 9066, 64 Years Later.

oday I delivered the keynote address at the Northern California Time of Remembrance gathering in Sacramento. The event commemorates FDR's signing of Executive Order 9066 on February 19, 1942, which launched the episode we now call the Japanese American internment.

I spoke about the importance of remembering not just the legal cases from that era that the government won, most notably the Korematsu case, but also the much larger number of cases that the government lost. Here's a little piece of it:

Milan Kundera, the Czech novelist who in his own life experienced the excesses of both Nazism and Stalinism, put it this way: "The struggle of man against power is the struggle of memory against forgetting." Notice the word "struggle." Memory is a struggle, and it's a struggle because powerful forces want us to forget. The power of government thrives in a culture of forgetting.

And what a moment this is for government power. We are living in a time when the executive branch of our government is claiming truly unlimited and unreviewable power. Unlimited and unreviewable power to run secret prisons in Eastern Europe. Unlimited and unreviewable power to incarcerate people indefinitely at Guantanamo. Unlimited and unreviewable power to use torture in interrogations. Unlimited and unreviewable power to eavesdrop on American citizens.

So on this Day of Remembrance, I want to challenge you to think about the words of Milan Kundera. If the struggle of man against power is the struggle of memory against forgetting, what does power want us to forget?

Being a legal historian, I want to challenge you to think about this question in a specific way: What part of the legal history of the internment does power want us to forget? What part of the legal history of the internment might stand in the way of these new claims of unlimited and unreviewable executive power?

If you're interested, you can download the whole talk by clicking here. (It's a pdf file.)

My talk was followed by a fascinating panel discussion (in which I did not participate) that explored some of the parallels between the government's wartime treatment of Japanese Americans and the experiences of Arabs and Muslims in the United States since September 11, 2001. Especially harrowing were stories about the FBI's incredibly heavy-handed investigation into allegations of terrorists in the Muslim community of Lodi, California.

Posted by Eric at 10:47 PM | Comments (2)

February 10, 2006

Northern California Time of Remembrance -- February 18, 2006

n Saturday, February 18, I'll be giving a speech in Sacramento, California, as part of the Northern California Time of Remembrance program.

The Time of Remembrance program is a community-wide commemoration of FDR's Executive Order 9066, which gave the military the authority to evict more than 110,000 American citizens of Japanese ancestry and Japanese aliens from their homes in World War II and force them behind barbed wire.

The event, sponsored by the Japanese American Citizens League chapters of Florin, Lodi, Marysville, Placer County, Sacramento, and Stockton, will take place at 12:30 p.m. at the California Museum for History, Women and the Arts, which is located at 1020 ”O” Street, at the corner of 10th and “O” Streets, in downtown Sacramento.

Posted by Eric at 1:13 PM | Comments (1)

February 3, 2006

The Japanese American Cases -- A Bigger Disaster Than We Realized

new paper of mine is now available on the Social Science Research Network. It's called "The Japanese American Cases -- A Bigger Disaster Than We Realized." It'll be published later this year in the Howard Law Review as part of a mini-symposium on loyalty and the criminal law.

You can download and read it by clicking here.

This is the abstract:

"Sixty-one years ago, Eugene V. Rostow published the first major academic article on the Japanese American internment of World War II. The article's title left little doubt about Rostow's view of the Supreme Court's decisions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944): "The Japanese American Cases – A Disaster." Rostow's claim was that these two cases were a substantive disaster of constitutional doctrine—a fundamentally mistaken endorsement of a repressive military program.

Rostow's conceptualization of the "disaster" of the "Japanese American cases" continues to define—and, in a sense, to confine—our view of the legal history of this wartime period. There are, in fact, many more wartime "Japanese American cases" to remember than Korematsu and Hirabayashi. These two cases were really just one small part of a much broader program of litigation in which the government sought both to capitalize on and to reinforce the image of Japanese Americans as disloyal subversives.

This Article broadens Rostow's assessment of the "Japanese American cases" as a "disaster" by recasting both of those terms. It widens the focus of the term "Japanese American cases" to include stories of the many wartime Japanese American cases that the literature has slighted or forgotten. This broader view reveals that the Japanese American cases of World War II were a disaster of a different sort: a litigative debacle, in which an astonishing number of cases ended in acquittals, dismissals, stern judicial rebukes, and other repudiations of the government's legal and factual positions. The Article concludes that the overall litigative project was a misadventure in using the law—especially the criminal law—to tar a racial group with the badges of disloyalty during wartime."

Posted by Eric at 2:36 PM | Comments (3)

January 26, 2006

"Suffering Under A Great Injustice"

f you have a few spare minutes today, spend them exploring Ansel Adams' extraordinary photographs of the Manzanar Relocation Center for Japanese Americans in World War II.

Mess Line, noon, Manzanar Relocation Center, California

Posted by Eric at 7:44 AM

December 20, 2005

"Known Links to Al Qaeda": An Historical Perspective

frequent claim in the current debate about the scope of executive power is that the courts (and the people) ought to defer to the superior knowledge of the security experts in the executive branch, who know stuff that we don't.

Think especially of the President's assurance yesterday that the people he's surveilling in the United States outside of legal authority are all people "with known links to al Qaeda."

For what it's worth — you decide — I share with you substantial excerpts from a classified memorandum prepared in the Provost Marshal General's Office (in the War Department) in 1943. This was the secret point system by which the office determined which American citizens of Japanese ancestry were loyal and which disloyal. Using this and other similar systems, it ultimately found more than one in four American citizens of Japanese ancestry to be disloyal.

The "questions" to which the table refers ("Ques. 7," "Ques. 8," and so on) were questions on a questionnaire that Japanese Americans were made to fill out behind barbed wire in the late winter of 1943.

Ques. 7.
a. If registered in Communist Party......2-Minus
b. If registered voter.....1-Plus

Ques. 8.
a. If spouse is citizen of Japan.....1-Minus
b. If spouse is a Nisei.....1-Plus

Ques. 11.
a. If one or more relatives in U.S. Military Service voluntarily.....1-Plus
b. If father is interned.....3-Minus

Ques. 12.
a. If subject has one or more of the following in Japan: wife, children, parents, brothers, or sisters.....3-Minus

Ques. 13
b. If subject attended school in Japanese territory six months or more, for each 2 years or part thereof......1-Minus
d. If subject attended Japanese Language School more than 3 years in this country......2-Minus
f. If subject received entire education from schools in U.S......3-Plus

Ques. 14.
a. If subject has travelled to Japan 3 or more times.....Reject
d. If subject has travelled to Japan once......1-Minus
e. If subject has travelled to Japan twice.....3-Minus
f. If subject has never travelled to Japan.....1-Plus

Ques. 15.
d. If subject was employed as Japanese Language school instructor.....3-Minus
f. If subject was fisherman, licensed or amateur radio operator, hotel owner or operator, steamship line, Merchant-Marine.....2-Minus
g. If subject was employed by reputable American business doing business only in U.S......2-Plus

Ques. 16.
a. If subject is Shintoist.....Reject
b. If subject is Buddhist.....1-Minus
c. If subject is Christian.....2-Plus

Ques. 17.
a. If subject is member of Kyudo, Jyudo, Kendo or other Japanese National Club or other Japanese named organization.....Refer
c. If subject is member of Japanese-American Citizens League.....1-Plus
d. If member of Boy Scouts of America, Y.M.C.A., Y.W.C.A. or other recognized American Clubs.....2-Plus
e. If member of K of C, Masons, Rotarian or other American fraternal society.....2-Plus

Ques. 18.
a. If subject reads, writes and speaks Japanese good [sic].....2-Minus
b. If subject reads and/or writes Japanese fair, or good [sic].....1-Minus

Ques. 19.
a. If subject is an instructor in Japanese hobbies or sports. (Jyudo, Kyudo, and Kendo).....2-Minus
b. If subject is an instructor in American sport or hobby.....2-Plus
c. If licensed or amateur radio operator.....2-Minus

Ques. 23.
a. If subject has made substantial contribution to organizations connected with Japanese Army, Navy or kindred agencies.....Reject
b. If a contribution were made to any organization containing a Japanese name.....Refer
c. If contributions were made to American organizations prior to Pearl Harbor.....2-Plus

Ques. 24
a. For each Japanese or Japanese-American periodical, trade journal or magazine.....1-Minus

Ques. 25
a. If subject's birth was or is recorded with Japanese Consulate and cancellation has been made or is pending.....3-Plus

Ques. 26
a. If subject himself has ever applied for repatriation......Reject

Glossary
Question 8: A "Nisei" is an American citizen of Japanese ancestry.
Question 17: "K of C" presumably means "Knights of Columbus."
Questions 17 and 23: "Refer" meant that the person's file would be submitted to a superior officer for subjective review regardless of his point totals.

This system of "intelligence" processing produced findings of disloyalty in more than twenty-five percent of its cases. Forty thousand U.S. citizens; more than 12,000 deemed disloyal.

Can the executive branch be trusted with the sort of unreviewable power it is currently arrogating to itself to determine who should be surveilled, and how, and for how long? Perhaps the government's approach to assessing security risk has matured in the last sixty years. But to the extent that this wartime history is any guide, the answer is, quite clearly, "no."

(Document source: Japanese-American Schedule for Rating, Referral, or Rejection, P.S.D. March 24, 1943, National Archives, Record Group 389, Entry 480, Box 1732.)

Posted by Eric at 9:31 AM | Comments (13)

December 8, 2005

Good Morning, and Good Luck.

en Masugi thinks it's again time to search for disloyal Americans.

Because, you know, we've had such excellent success with these sorts of efforts in the past.

Posted by Eric at 8:40 AM | Comments (7)

December 7, 2005

"You Learn Something New" Department, #2

learned something else new this morning at the National Archives.

In 1942, the War Department prepared legislation suspending the writ of habeas corpus specifically for Japanese Americans removed from the West Coast and detained in the so-called "relocation centers."

I did not know that.

I suppose it should not have suprised me, but it did. A little.

I was unable to determine why the Administration never presented the proposal to Congress. Perhaps they didn't need to because they were winning the Japanese American habeas cases that were then pending in the district courts.

You learn something new.

Posted by Eric at 2:10 PM | Comments (4)

Genetic Disloyalty

fter a full day of poring over archival records of the military's apparatus for identifying disloyal American citizens of Japanese ancestry in World War II, I figured there'd be nothing like going to a movie to get my mind off of things. So last night I went to the movies. I saw "Good Night and Good Luck." Great movie. Very bad choice for getting my mind off of things. My outrage level was even higher after my night out than it was before.

"Outrage?" you ask. "What's to be outraged about?" Well, consider this lovely document I turned up yesterday. It's from a training session for officers who would be deciding which individual Japanese Americans were too disloyal to be allowed back to the West Coast in 1945, after the blanket order excluding Japanese Americans as a group had been lifted. It's a training lecture by a Colonel Hazzard entitled "Background of Japanese Social, Family, and National Customs and Some Criteria for Exclusion."

A famous Scotch surgeon once told me that he could tell the year that a Japanese surgeon graduated from medical school ... from the way he did certain operations--it might be an appendectomy, a tonsilectomy, or operation on the brain or any other portion of the body. I said, 'Why does he differ from a Westerner?" He said, "Because there is a group of brain cells which, when highly developed or among civilized people, they can visualize an incident from a word picture." The Japanese have not yet developed that particular group of brain cells--probably a few thousand that would represent a small section of one percent of the people, who by association of several generations with Western people and by being educated in Western universities, have developed their brain cells.

Colonel Hazzard also covered the subject of the importance in Japanese culture of the idea of "saving face":

We run up against a lot of things which are difficult to understand in conducting these hearings and trying to evaluate their answers. ... Face-saving is just the result of a training that they have had since childhood -- a very primitive training which is more or less mechanical and which does not develop individually because with the exception of those two or three thousand Japanese leaders you will find very little individuality among the Japanese people.

With this expert training under their belts, the officers went out and continued the exclusion of more than 10,000 U.S. citizens from the West Coast as security risks.

"Good night and good luck" indeed.

Posted by Eric at 6:43 AM | Comments (2)

November 26, 2005

The Persistence of Caricature: Stoic, Forgetting Japanese Americans and Voluble, Obsessive Jews in the L.A. Times

wish I could recommend to you this lengthy article from the LA Times magazine in which a Jewish journalist author muses about the differences between his Japanese American wife's family's (and, by extension, all Japanese American families') effacing of their history and his own Jewish family's (and, by extension, all American Jewish families') obsessing over their history, but I can't. For both categories of families--Japanese American and Jewish--the author makes the classic mistakes of generalizing from too small a data pool, and of embracing rather than challenging cultural stereotypes.

There are plenty of Japanese Americans with crystalline memories of their wartime experiences, and plenty of Jews who recite and remember almost nothing. There were and are (contrary to the author's assertions in the piece) great Japanese American novelists (and other artists) who have chronicled and interpreted the internment experience, and there are a number of organizations "reminding us of internment."

Most disturbingly of all, the author writes:

As I thought about that conversation in the days that followed, I decided that I might have been looking at George and Nancy in the wrong way all along. Perhaps it wasn't that their long, self-imposed silence had somehow obscured their sacrifice; perhaps their truest sacrifice was the silence itself. After all, there had been those in the camps who rose up in revolt, just as there had been Japanese American draftees who refused to fight and litigants who challenged the internment. But George and Nancy had never condoned the airing of such grievances; if anything, they resented it. In the end, they wanted the same things for their children that all Americans want—a sense of belonging. Could they really have provided that and demanded justice at the same time? Perhaps it wasn't shame that swallowed their narrative. Perhaps they bore their burdens silently so their children wouldn't have to.

Set to one side the fact that this silence-as-sacrifice trope is a sixty-year-old resurrection of the same racial views that led so many in the government confidently to heap suffering on Japanese Americans, expecting that they would absorb it in the name of proving their Americanism. What exactly does this passage say about those (and there were many) who did resist internment in one way or another, and their relationships with their children? Did the author talk to any of them--my friend Karen Korematsu-Haigh, to take just one example--and ask them whether their "sense of belonging" in America was compromised by the example of protest their parents set? I suspect not.

I say something rather different about the supposedly silent suffering of Japanese Americans in the Afterword of my book Free to Die for their Country, which, like this recent article, is about the hundreds of young Japanese American men who resisted the draft in World War II. I comment on the message of silent endurance that is embodied in the Japanese American internment monument that stand a few blocks from the Capitol Building in Washington, DC:

"There is much here to celebrate. But there is also something sad, even tragic. What, ultimately, does this monument say to its visitors, the countless American tourists who wander through it? It teaches the lessons of the tanka poet: Bear the sting of injustice for future generations. Endure the unendurable, and you will be rewarded. Assimilate through silent suffering. Gaman suru. Perhaps this is part of what has led white America to look upon Japanese Americans as a 'model minority': when the nation punished them with its racism, they endured it.

"The Nisei draft resisters did not simply endure it, and in large and small ways, they have paid the price of their heresy ever since. There will never be a monument to the Japanese American draft resisters of World War II in our nation's capital, or for that matter, anywhere else. Yet these young men were patriots; in their willingness to risk the condemnation of their community, they showed courage. They were the nails that stuck up. True to the prediction of their Japanese forebears, they got hammered. Perhaps now, fifty-five years later, we can begin to hear in that hammering the construction of a truly American identity."

Posted by Eric at 8:06 AM | Comments (5)

November 23, 2005

"Judgments Judged and Wrongs Remembered"

'm thrilled to announce the online publication of "Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on Their Sixtieth Anniversary," a symposium issue of the interdisciplinary journal Law & Contemporary Problems. My Foreword, which briefly introduces each of the twelve articles, is here. And the dedication of the issue to the memory of Fred Korematsu is here.

Each of the articles is available online in full-text, and also in pdf format. You'll find lots of provocative reading if you're interested in the Japanese American internment of World War II and its relevance to current debates on antiterrorism policyand racial profiling.

Posted by Eric at 9:09 PM | Comments (2)

November 21, 2005

How About "Loyalty Oafs: Bumbling Bureaucrats and Japanese American Loyalty, 1942-1945?" ... Nah.

've spent much of the last year researching and writing a new book, and am very nearly finished. I am now at the stage I detest: thinking of a title.

My first book, which was about Japanese American internees who resisted the military draft, was called "Free to Die for their Country"--a title I really love. Naturally, I had nothing to do with it. Somebody at the University of Chicago Press came up with it.

Back in high school and college, I always avoided the dilemma of serious and appropriate titles for my English papers by coming up with dumb puns. (I recall, for example, a paper I wrote in sophomore year of college about somebody-or-other's rather scathing critique of "Jude the Obscure;" I called the paper "No Laurels for Hardy.")

Somehow that sort of thing just won't do at this stage in life, however.

The book is about the government bureaucracies in World War II that ruled on the loyalty or disloyalty of 40,000 individual U.S. citizens of Japanese ancestry.

Suggestions are most welcome.

Posted by Eric at 7:06 PM | Comments (10)

November 10, 2005

They Were "Out."

don't know a ton about the history of baseball, but this story about baseball at a Japanese American relocation center during WWII struck me as interesting.

Posted by Eric at 10:18 PM | Comments (1)

October 23, 2005

Strawberry Days

ere's a newspaper story about David Neiwert's (relatively) new book "Strawberry Days."

Posted by Eric at 3:06 PM | Comments (1)

October 16, 2005

Time for a Retraction, Ken Masugi

evisionist historians of the Japanese American internment have trouble with the truth. First Michelle Malkin published falsehoods about Peter Irons and Aiko Herzig-Yoshinaga in her book "In Defense of Internment" and on her blog, and was forced to retract them and apologize.

Now it's Ken Masugi's turn. Masugi, whose parents were interned on account of their ancestry at the Tule Lake and Minidoka Relocation Centers during WWII, reviewed Malkin's book manuscript before publication, and since then has done what he can to undermine the general understanding that the primary explanations for the government's decision to jail his parents (and 120,000 others) from 1942 to 1945 were racism and wartime hysteria.

Some time ago, Masugi published an unfavorable review of my book "Free to Die for their Country," which tells the story of several hundred Japanese American internees who resisted the military draft in 1944 in order to try to create a test case of their internment.

Yesterday, Masugi wrote this on his weblog:

"Muller regards the Japanese who resisted the draft as the true heroes of the relocation centers, not those who entered the army to fight fascists."

This is false.

First, the internees who resisted the draft were Americans, not Japanese. It is surprising--and quite revealing--that Mr. Masugi, an American of Japanese ancestry, would refer to American citizens as "Japanese," just as white Americans did 60 years ago.

Second, here are the things I wrote about the Nisei soldiers of WWII in "Free to Die for their Country":

p. 179: "After the victories in Europe and the Pacific, the highly decorated Nisei troops of the 100th Infantry Battalion and the 442nd Regimental Combat Team came home to a well-deserved hero's welcome from the Japanese American community. Their matchless and well-publicized bravery in combat had been the public relations bonanza for the Nisei cause that the JACL, Assistant Secretary of War John McCloy, and WRA Director Dillon Myer had hoped it would be."

p. 197: "Who could deny that those who fought, and those who died or wounded, were both courageous and patriotic?"

p. 4: "Many [internees] served bravely in Europe with the 442nd Regimental Combat Team, the racially segregated battalion for Japanese Americans that the Army created for them. Some lost their limbs, others their lives."

p. 60: "With the fiasco of registration behind it, the military turned to the task of outfitting and training the newly formed Nisei combat team. Settling in at Fort Shelby in Mississippi in May of 1943, the Nisei volunteers trained with gusto and quickly began impressing the caucasian officers who had been assigned to lead them. A month into their training they were joined by an outfit of volunteers from Hawaii, the 100th Infantry Battalion. The 100th, a segregated Nisei unit formed in mid-1942 from the ranks of the Hawaiian Territorial Guard and the National Guard of Hawaii, had been in training for a year and was nearly ready for combat. In August of 1943, the 110th Infantry Battalion was sent to North Africa for combat and saw its first action late in September in Italy. By all accounts, the men of the 110th fought admirably in those early months of combat, accomplishing the objectives assigned them and suffering many casualties.

"Against this developing backdrop of impressive service by the Nisei volunteers, Assistant Secretary of War McCloy took up the question of the draft with others."

Mr. Masugi, I demand that you publicly retract your false statement that I have maintained that the Nisei soldiers of WWII were not true heroes.

I suggest that you make clear that the men about whom you have written were Americans, not Japanese.

And I also suggest, Mr. Masugi, that if you came away from reading my book with the impression that I had depicted the Nisei soldiers as something other than true heroes, then perhaps you didn't really read my book. Your "review" of it notwithstanding.

Posted by Eric at 12:19 PM | Comments (18)

October 14, 2005

In (Hypothetical) Defense of Kristallnacht

onsider the following passage:

"If Herschel Grynszpan, a presumptively loyal, apolitical German Jew, would assassinate a German government official in Paris, what might we expect from other Jews in Germany? Anti-semitism doubtless exaggerated passions, and "political considerations" played their role in the drastic state-sponsored pogrom that followed on November 10-11, 1938. Yet a reasonable argument could be made, taking seriously the appeals of the German Communist Party and of the Soviet Union, that Jews in Germany (of whom many were Communists), who suffered discriminatory treatment, might not all be loyal, when subject to the test that Herschel Grynszpan took and failed. What written exam, what interview, could possibly screen those who posed a threat to the German state from those who did not? Should this have been left to community self-policing? These were the questions facing those responsible for German internal security in November of 1938. Kristallnacht—which my father and grandparents endured—might well have ended sooner and might have been carried out differently, but it remains defensible as a reasonable response to the vom Rath assassination."

Do you buy it?

Now consider this passage from Ken Masugi of the Claremont Institute, referring to the assistance a Japanese American couple in Hawaii offered to a downed Japanese pilot in December 1941:

"If a presumptively loyal, apolitical Japanese-American would come to aid of an invader, what might we expect from other Japanese on the mainland? Racism doubtless exaggerated wartime passions, and “political considerations” … played their role in the drastic relocation policy. Yet a reasonable argument could be made, taking seriously imperial Japan’s own nationalistic appeals…, that ethnic Japanese on the west coast, who suffered discriminatory treatment, might not all be loyal, when subject to the test the young couple [in Hawaii] took and failed. What written exam, what interview, could possibly screen the loyal from the disloyal? Should this have been left to community self-policing? These were the questions facing those responsible for American national security at the beginning of WW II. The relocation—which my parents endured—might well have ended sooner and might have been carried out differently, but it remains defensible as a reasonable post-Pearl Harbor response."

I do not know Ken Masugi personally, and I know nothing about his family history, so I cannot even begin to guess at what leads the son of Japanese American internees to align himself with those who incarcerated his family for years on account of their race. It is an extraordinary—perhaps unique—position. Clarence Thomas may espouse some unlikely views, but I've never heard him defend Jim Crow. ("There were, after all, criminals and illiterates among the freed slaves and their progeny. What written exam, what interview, could possibly screen them from the rest of the country's African-Americans? These were the questions facing those responsible for elections in the South in the early twentieth century. Jim Crow might have ended sooner and might have been carried out differently, but it remains defensible as a reasonable response to black lawlessness and illiteracy.")

Masugi's position is also Michelle Malkin's—he reviewed the manuscript of her book "In Defense of Internment" before it was published—and it is growing tiresome. It is one thing to note that several Japanese Americans acted disloyally before or just after Pearl Harbor. It is another thing entirely to argue that this explained, let alone justified, the policies that the government put in place from February 1942 through war's end: the wholesale eviction and multi-year detention of 70,000 U.S. citizens on account of nothing more than their ancestry.

The fact that a fear- and hate-motivated program of widespread oppression may have had a germ of fact somewhere in its foundation does not make a fear- and hate-motivated program of widespread oppression "defensible" or "reasonable."

(A word about Godwin's Law: Not germane here. As I've shown, Masugi's analytical approach to defending the Japanese American internment is identical to the analytical approach of my hypothetical defense of Kristallnacht.)

UPDATE: In the comments, Ken Masugi responds as follows:

Taking tyrannical action against a group for the failings of a lunatic is a common tactic. Perhaps the lunatic acted at the instigation of the tyrant(s). The question then would be whether the lunatic's behavior was so out of line with what might be concluded of others that the common good required a radical deprivation of rights.

I'm sorry to say I don't understand what Masugi is saying, so I can't reply.

Posted by Eric at 9:54 AM | Comments (27) | TrackBack

September 26, 2005

Malkin at Manzanar, and the Irrelevant First Amendment

or reasons that are unclear to me--I thought the controversy was long since passed--the Boston Globe has an article in today's paper about the decision of the Manzanar National Historic Site to stock Michelle Malkin's "In Defense of Internment" in its bookstore.

Two quick comments about the piece, which is generally quite good and accurate.

First: Speaking of the correspondence that Manzanar has received about the controversy, the article reports this:

[T]he vast majority of the correspondence, to the surprise of park officials, has been in support of the government's decision to carry the book, a former bestseller.

Duh. Gee, I wonder how that happened? Could it be because Malkin asked the very large readership of her blog to email Manzanar in support of their decision to stock the book?

It surprises me that an official at Manzanar still confesses suprise at this. When I met Frank Hays, Manzanar's superintendent, at an internment-related event in San Francisco a few months ago, I pointed out to him that Malkin had called on her blog readership to write in, and he told me he was aware of that. So what's this lingering "surprise" about?

Second: Behind Malkin's book, the Boston Globe article tells us, the Manzanar National Historic Site has placed a letter explaining that in the view of the Historic Site, not carrying the book "could ironically be viewed as denying the First Amendment rights to free speech."

People (especially historians) often complain about what happens when lawyers profess expertise about history, but here's an example of the danger of historians professing expertise about law. There is no way that a decision by the Manzanar National Historic Site not to stock Malkin's pro-internment book could "deny the First Amendment right to free speech." If the First Amendment confers on authors a right to have their books stocked in government-run bookstores, why, I have got causes of action in spades, as does every other author in the country who has published a history book that every relevant government-run bookstore does not stock.

Michelle Malkin has no right at all for any bookstore anywhere--public or private--to carry her book.

The folks at Manzanar might believe it wise, helpful, provocative, or even profitable to carry Malkin's book. For those reasons, they can choose, in their discretion, to stock her book if they wish (as they have done). But if they think stocking the book is a good idea, then they should own up to their choice, rather than hiding behind the First Amendment, which has nothing to do with the situation.

(Note: Whether Manzanar, having initially decided to stock the book, may remove it from its shelves presents a slightly different question. In such a situation, I can envision a colorable argument that the First Amendment might stand in the way of such a decision if the basis of the removal decision were disagreement with the book's content. I'm not sure that this would be a correct argument, but it's certainly a closer question than the question of whether the First Amendment requires the book to be stocked in the first place.

Of course, once Manzanar sells out the copies it has got on its shelves, I would imagine that, as with the original stocking decision, the bookstore would be under no First Amendment obligation to restock the book in perpetuity.)

Posted by Eric at 9:37 AM | Comments (5)

September 22, 2005

The Artwork of Roger Shimomura

am off to Clemson University this morning to give a lecture at the Lee Art Gallery in connection with their exhibit entitled "Minidoka Revisited: Artwork of Roger Shimomura."

My talk is called "Thinking About Internment With Left and Right Brain." (Feel free to leave snarky comments about the title in the comments!) It's free and open to the public, and there's a reception afterwards. Best of all, the artist will be there. The event starts at 6:30 at the gallery. If you're at Clemson, stop on by. If you know someone at Clemson, let them know about the event!

UPDATE: I do not know what they are slipping into the drinking water at Clemson, but the event last night was the best-attended talk I've ever given on any campus anywhere about the Japanese American internment--including on campuses in California. Two hundred fifty people--most of them undergrads--filled every seat in the hall and people were standing in the back. It helped, I think, that Roger Shimomura (the artist whose work is being exhibited) had visited a number of classes on campus earlier in the day, and that Clemson freshmen had been given writing assignments based on his paintings. Still, I was just overwhelmed by the attendance.

I was also overwhelmed by Shimomura's artwork. I will link to a few images below, but seeing them "in person" on the wall of a gallery is a totally different experience from seeing them in miniature on a computer screen.

"Housing Discrimination" (2003)

"The History of Art, Version 2" (2003)

"Memories of Childhood" (1999)

"Memories of Childhood" (1999)

Posted by Eric at 8:10 AM | Comments (2)

September 20, 2005

"Tracking" Ethnicity and Loyalty?

en Masugi tells us that "recent history" forces the raising of the "charged question" of whether one can "track ethnicity and loyalty to the U.S."

It's hard to know how to evaluate what Masugi is talking about, because he does not tell us what he has in mind by "tracking ethnicity and loyalty to the U.S."

Ken: what are you talking about?

UPDATE: Ken Masugi clarifies:

By "tracking" ethnicity and loyalty, I was merely referring to the dual loyalties felt by many Americans for the land of their ancestors and the U.S. In the case of ethnic Japanese (many of whom held dual citizenship), that loyalty was severely tested in WW II. Some went over to Japan, others staunchly held to America. Others wavered. Sorry for the sloppy use of "tracking"-- "correlate" sounds overly precise.

In the case of Middle Eastern immigrants and citizens and Muslims today, the same issue arises.

Posted by Eric at 1:02 PM | Comments (29)

September 19, 2005

Michelle Malkin's Ever-Shrinking Defense of Racial Internment

oing research on World War II in the papers of Undersecretary of War Robert Patterson, historian Greg Robinson discovered a document from July of 1942 in which Assistant Secretary or War John J. McCloy asserted that Japanese Americans were removed from the coast largely because the government could not control the white population of California. Bruce Ramsey of the Seattle Times wrote about the document in a column, arguing that the document further corroborates the case that the internment was an outgrowth of group feeling, hysteria, and fear.

This document (further) devastates the revisionist claims of Michelle Malkin in her book "In Defense of Internment." (You can read the rest of the devastation here.) Malkin argues that McCloy was the chief architect of the Japanese American internment, and that he settled on the policy of evacuation and internment because of top-secret decrypted evidence of Japanese American spying (the so-called "MAGIC" diplomatic cables) to which he, and a very few others, were privy.

That Robinson's document helps kill Malkin's thesis is obvious: Five months after the launch of the policy of evacuation and internment, McCloy tells a superior at the War Department that the main reason for the policy was an out-of-control white population in California.

Malkin has finally posted a response to Robinson's document and Ramsey's column. There are lots of words, but in the end she says two main things. First, she tries to create doubt about the authenticity of the handwritten note by emphasizing that the copy of the McCloy memo that Robinson found in the Patterson papers was an office copy in which the handwritten note had been typed in after the fact. Second, she diminishes the significance of McCloy's admission because it came as a postscript to a memo about whether the government was adequately feeding the internees rather than as the focus of a memo about security.

On the first point—the authenticity of the handwritten note—we expect a Dan-Ratheresque disquisition about kerning and typeface, but Malkin gives up the game before really even starting it. When all is said and done, she says this:

"I would venture a guess that McCloy probably wrote the note. But unless someone locates the original, we cannot be certain. In failing to acknowledge this uncertainty, Ramsey and Robinson are either being sloppy or dishonest."

Ramsey and Robinson are being sloppy or dishonest?

Let's do a reality check: Malkin builds her defense of the racial detention 110,000 people on three key propositions:

1. Assistant Secretary of War John J. McCloy actually saw and read perhaps half a dozen out of the thousands upon thousands of intercepted and decoded MAGIC messages.
2. McCloy understood them to indicate that American citizens of Japanese ancestry were participating in spy rings.
3. McCloy understood the mass removal and detention of 110,000 people as an appropriate and proportionate response to the threat stated or implied in the MAGIC decrypts.

What contemporaneous evidence does Malkin adduce for any of these essential propositions?

None.

Not a shred, on any of the three points. We do not know for sure that McCloy actually saw any of the specific MAGIC messages Malkin highlights. If he saw them, we have no evidence of what he understood them to mean. And if he understood them to mean that some American citizens of Japanese ancestry were spying for Japan, we have no evidence this led him to conclude that every man, woman, and child of Japanese ancestry on the West Coast—the elderly, the senile, the gravely ill, the orphans—needed to be forced from their homes and their hospital beds and their orphanages and shut behind barbed wire.

And yet according to Malkin, it is Ramsey and Robinson who are being "sloppy or dishonest."

On the second point—the significance of the admission—she says this:

"A handwritten note scrawled on the bottom of a memo about food is not the venue for discussing state secrets such as the MAGIC messages which revealed extensive Japanese espionage activity on the West Coast."

This is priceless, because the point Malkin makes in her book is that there was no venue at all, anywhere, ever, for discussing state secrets such as the MAGIC messages. They were too top-secret, she maintains, and thus nobody with access to them could write anything down about them or talk about them to anybody who did not have clearance.

So her claim is really this: Out of many thousands of decoded Japanese diplomatic cables, there were several that mentioned the idea of Japanese American espionage. We have no idea whether they were true, or whether anyone actually saw them, or what meaning anyone ascribed to them at the time, or what action anyone thought they required. We can't have any idea about those things, because the cables were too top-secret for anyone to mention in any document or conversation that appears in the historical record. But surely those messages, and not the hysteria, racism, and economic opportunism that scholars have documented, just must have been the justification for the evacuation and internment!

Maybe this sort of reasoning suffices for an appearance on Hannity & Colmes or a column at VDare. But for a work of history, which "In Defense of Internment" purports to be, it doesn't even pass the giggle test.

Malkin also says this on the subject of the significance of the memo:

"Ramsey and Robinson believe the note on the bottom of an obscure food memo by an unknown author trumps everything else that McCloy said or wrote during the 1940s and the 1980s."

No. Ramsey and Robinson believe that the note on the bottom of an obscure food memo by an author even Malkin concedes "probably" to be the Assistant Secretary of War further corroborates the already overwhelming case that the evacuation and internment of Japanese Americans was not a decision grounded primarily in actual military necessity. Nobody needs to "trump" the vague and self-protective ramblings of an 87-year-old John McCloy. In the scholarly study of the Japanese American internment, McCloy's memories do not dictate a truth that scholars need to overturn. Quite the opposite is true. McCloy's memories are so out of step with the overwhelming body of evidence about the internment that it is McCloy's memories about the impact of MAGIC that need to be corroborated. Malkin has never even tried to do that.

Finally, it's interesting that Malkin nowhere even mentions the other direct evidence about what prompted the internment that Robinson cites—the February 1943 admission by McCloy's top assistant to an officer in the Provost Marshal General's Office that a key basis for the evacuation had been economic:

"That [sic] West Coast saw a way to get rid of the Japs, they got rid of them, now they don't want them out there, they want to take the property over."

We continue to wait for Malkin's explanation of that one.

Posted by Eric at 8:57 AM | Comments (12)

September 9, 2005

Padilla

he Fourth Circuit Court of Appeals has held that Jose Padilla, an American citizen seized in the United States, may be indefinitely held as an enemy combatant.

The decision rests, in part, on a reading of Ex parte Endo (1944) that wouldn't get a "C" on a law school exam. (Endo was the case in which the Supreme Court held that the federal War Relocation Authority had no power to detain Japanese Americans who had been certified as loyal.)

I'll write more about this over the weekend when I have the time.

Posted by Eric at 4:30 PM | Comments (5)

September 8, 2005

Michelle? (Jesse?) Hello?

esterday, a Seattle Times column and major articles in the blogosphere tore even wider the already gaping hole at the center of Michelle Malkin's book "In Defense of Internment."

Malkin's response: silence.

Posted by Eric at 9:13 AM | Comments (1)

September 7, 2005

Important Internment-Related Document Discovered in Library of Congress

ruce Ramsey of the Seattle Times reports today on a newly discovered and very important archival document that further dooms the revisionist claim that Japanese Americans in WWII were interned out of "military necessity."

The revisionist claim has been around for years, but it was vaulted to celebrity last year when Michelle Malkin made it the centerpiece of her book "In Defense of Internment." The claim is that a select few at the very top of the federal government--primarily President Roosevelt, Secretary of War Henry Stimson, Ass't Secretary of War John J. McCloy, and a few other high-level advisors--had access to top-secret decrypted Japanese diplomatic messages (the "MAGIC" cables) that referred to Japanese American spies. These decrypts, the argument goes--and not hysteria, racism, and economic jealousies along the West Coast--were what led the War Department to propose, and the President to approve, mass internment.

Here is a document that Greg Robinson, author of "By Order of the President," found in file 137 of the papers of Robert Patterson, the Undersecretary of War, in the Library of Congress:

The key part is the handwritten note (typed on this office copy) at the bottom:

So here the Assistant Secretary of War--who had access to the "MAGIC cables" and was instrumental in the design and implementation of the internment policy--tells the Undersecretary of War--who was superior to McCloy in the War Department hierarchy, and presumably also had MAGIC access--that the main reason for removing all people of Japanese ancestry from the West Coast was an inability "to control our own white citizens in California."

And why could public opinion in California not be "controlled?"

Consider this excerpt from a telephone conversation on February 4, 1943, between the top executive to Assistant War Secretary John J. McCloy and a top assistant to the Army's Provost Marshall General. (National Archives, Record Group 389, Entry 480, Box 1757) They are talking about the huge wave of hostile telegrams pouring in to the War Department after the government announced a program of screening the loyalty of Japanese American internees so that they could leave the internment camps for the military or for jobs:

Col. Scobey: You know what's back of that. The protest will come from the West Coast, of course.

Col. Miller: Yes, that's right.

Col. Scobey: And there's a lot back of that and part of it is economic. The West Coast saw a way to get rid of the Japs, they got rid of them, now they don't want them out there, they want to take the property over. It isn't all patriotic, by any means.

Col. Miller: That's right.

Col. Scobey: Of course, they couch their protests under the guise of security and patriotism.

Sobering evidence of what can pass for "security measures" in a time of crisis.

UPDATE: Greg Robinson blogs about his find here and here.

FURTHER UPDATE: David Neiwert blogs about the significance of this document here.

Posted by Eric at 7:39 AM | Comments (14)

September 2, 2005

Richly Deserved.

red Korematsu, who took his resistance to eviction and internment in World War II all the way to the U.S. Supreme Court, may have a school named for him in Davis, California.

Korematsu passed away earlier this year.

Posted by Eric at 10:32 PM

August 30, 2005

Yes, Virginia, There Really Were Guard Towers

press release from the Manzanar National Historic Site:

In summer 1942, shortly after ten thousand Japanese Americans arrived at Manzanar War Relocation Center, the U.S. Army constructed eight 37-foot-high guard towers around the perimeter of the mile-square camp. Each tower was equipped with a search light and machine gun and staffed by Military Police. Today, National Park Service employees are reconstructing one of the towers in its historic location on the east boundary of the site.

On Saturday, September 17, 2005, the National Park Service and friends of Manzanar will host a dedication event at 11:00 a.m, near the guard tower. Following the ceremony, Manzanar History Association (MHA) will provide light refreshments and members of the Grateful Crane Ensemble will perform 1940s songs from their recent Camp Dance CD.

At 1:30 p.m. and 3:30 p.m., MHA will host a talk, reading and booksigning by critically acclaimed poet Lawson Fusao Inada. A third-generation (Sansei) Japanese American who was interned with his family during World War II, Inada is currently a professor of English at Southern Oregon University. Considered by some to be the father of Asian-American literature, Inada's recent works include Legends From Camp, Drawing The Line, and Only What We Could Carry: The Japanese American Internment Experience. Mr. Inada will be available to sign books between his readings.

From 1:00 p.m. to 3:00 p.m., Jennifer Anderson, a studio artist employed by Hiromi Paper International in Santa Monica, will demonstrate traditional Japanese bookbinding techniques. The bindings known as yotsume toji and daifuku cho use only four and two holes respectively, are simple and elegant and have been used for a variety of purposes from novels to ledgers. These books can be made from a variety of papers with simple tools. Ms. Anderson has a Masters of Fine Arts in printmaking and bookarts from the University of Georgia and has taught art at Indiana State University and Clemson University.

Funding to reconstruct the guard tower was provided by the National Park Service, with a generous grant from Friends of Manzanar, a non-profit organization established in 2004 to support projects at Manzanar through financial and in-kind donations. In addition to assisting with the guard tower reconstruction, Friends of Manzanar is raising funds to rehabilitate a World War II era mess hall at Manzanar and to preserve and restore other site features.

The events are free and open to the public. Manzanar National Historic Site is located along U.S. Highway 395, six miles south of Independence, California and nine miles north of Lone Pine. For more information on the guard tower reconstruction and programs and projects at Manzanar, please visit our website at www.nps.gov/manz or call (760) 878-2194 or (760) 878-2932.

Posted by Eric at 11:16 AM

August 28, 2005

"The Arab Element"

ne wonders: Is Mr. Jandrew of Clarkridge, Arkansas (the author of the below letter to the editor) off his rocker? Or is he expressing a view that many harbor but do not speak?

After the bombing of Pearl Harbor, when it was obvious Japan had declared war on the United States, the government rounded up anyone that was even of Japanese descent and put them in "internment camps" to lessen the chance the enemy would act from within the country. This occurred without any sign that this was the case.

Now, we are at war with Al Qaeda, and CNN states there are suspected terrorist cells in the country, but there has been no effort to contain the Arab element in the United States. It seems to me that in order to protect the American people, an act similar to that which was previously used for the Japanese should be in order.

I recently watched a recap of the 9/11 events and realized as long as there are persons of Arab descent unaccounted for in our country, we will be under the gun.

Posted by Eric at 5:44 PM | Comments (4)

August 22, 2005

Barbed Wire: The Final Frontier

eorge Takei -- Mr. Sulu, that is -- speaks about his early childhood at the Tule Lake Relocation and Segregation Center for Japanese Americans in World War II.

(Thanks to reader Steve J. for the link.)

Posted by Eric at 8:43 PM

Pomp and Circumstance ... 60 Years Later

apanese Americans who would have graduated from their West Coast high schools 60 years ago if they had not been carted off into detention are now getting their high school diplomas.

Some of them in tears. Some of them on walkers. Some of them posthumously.

Very moving.

Posted by Eric at 10:17 AM

August 18, 2005

"Bob" Is John Alpaugh -- Bainbridge Islanders Take Note.

t took quite some effort--including a little undercover work--but I've finally determined for certain that "Bob," the internment revisionist who buzzes around the web (including, at one time, this site, but also at Dave Neiwert's site and elsewhere) harassing people with a device that perpetually masks his IP address is one John Alpaugh, a resident of Bainbridge Island, Washington.

Mr. Alpaugh is the sort of cowardly man who will publicly attack and denigrate others only from behind what he imagines to be an impenetrable cloak of anonymity. (It turns out that he was wrong about the "impenetrable" part.)

But it's actually even uglier than that. Mr. Alpaugh is the sort of man who will publicly smear one of the pallbearers at his own father's funeral in order to "prove" that the Japanese American internment camps of World War II were big happy playgrounds. Read this lovely little comment of Mr. Alpaugh's from Dave Neiwert's site, where Mr. Alpaugh--posing, as usual, as "Bob"--maintains that an elderly internee who was one of his father's best friends spent his time at the Manzanar Relocation Center in 1943 "playing golf." ("Bob," incidentally, was Mr. Alpaugh's late father's first name, which makes Alpaugh's rantings sadder, and more vile.)

Dave Neiwert tells us a good deal more about "Bob"/John Alpaugh here, and includes the vicious "review" of Dave's wonderful book "Strawberry Days" that Alpaugh--posing, of course, as the anonymous "Bob"--left on Amazon. Dave's in good company, of course: Alpaugh/"Bob" also anonymously attacked me and my book on amazon, in a review of my book that he entitled "Julius Streicher and Joseph Goebbels would be proud!"

This is the true face of the efforts, on Bainbridge Island and elsewhere, to achieve what Michelle Malkin and her ilk call "truth" and "balance" in the story of the eviction and incarceration of Japanese Americans in World War II. (As one would expect, Michelle Malkin describes Alpaugh as "active in the fight for a fair and accurate assessment of WWII relocation and evacuation policies"--though I have no reason to suspect that she knows of Alpaugh's various "clandestine" activities around the internet.)

I've never been to Bainbridge Island, but I understand it is a small community. I know a good deal more about Mr. Alpaugh than I have chosen to disclose here, but I think that what I've written should suffice to let Islanders know what sort of a neighbor they're dealing with.

Posted by Eric at 7:01 AM | Comments (12)

August 16, 2005

The Damage A Book Can Do.

trios points out this takedown of Michelle Malkin, which relies heavily on the work Greg Robinson and I did a year ago to discredit her book "In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror."

(Incidentally, I don't at all see the point of the ugly invective that Arthur Silber hurled at her yesterday. Yesterday's post did not reflect well on him. Today's does, except insofar as he stands by the personal invective of yesterday.)

Posted by Eric at 3:05 PM | Comments (7)

August 12, 2005

An Inside Joke for Japanese American Internment Junkies

heck out the euphemism: "relocated" indeed!

They meant "interned."

Posted by Eric at 3:31 PM | Comments (1)

August 11, 2005

Sgt. Kuroki's Tough Missions

gt. Ben Kuroki, a Japanese American farmboy who overcame intense anti-Japanese sentiment and became a gunner on 58 missions in Europe and Japan during World War II, is receiving the Army's Distinguished Service Medal. A richly deserved honor.

Kuroki's toughest mission, incidentally, may have been the tour of duty that the Army sent him on in the spring of 1944, touring the Japanese American internment camps and making the case to the young internees that they should leave their families behind barbed wire to go fight for someone else's freedom.

Posted by Eric at 11:34 PM | Comments (4)

August 4, 2005

"President Hirohito?"

n amusing little window onto the process of assimilation:

"[A Japanese newspaper in America] carried an interesting article in September 1908. The article was devoted to the ignorance of Japan exhibited by [American-born] children [of Japanese parents]. When asked about what they would like to become, some children replied that they aspired to become the Emperor of Japan."

This, of course, troubled the parents--because it revealed the impact on their children of the American folk belief that anyone can grow up to be President.

(Quote and story from Yuji Ichioka, The Issei: The World of the First Generation Japanese Immigrants, 1885-1924 (New York: The Free Press, 1988), at 197.)

Posted by Eric at 2:31 PM

July 9, 2005

"Bob": Norman Mineta's Underling? (See Update)

egular readers of this site, especially those who were around last year for MalkinFest, will remember the endearing character "Bob." "Bob" used to be a regular commenter on this site, slinging mud and invective at everyone else while hiding behind an anonymous name and a device that allowed him to switch IP addresses (and taunt me and everyone else) every time I tried to remove one of his comments or take away his commenting privileges. ("Bob" doesn't live here anymore because when I switched to Movable Type, I gained the ability to screen him out.)

It looks as though "Bob" is actually retired Coast Guard Captain James Olsen of Bainbridge Island, Washington, who (along with his wife Mary Dombrowski) has been leading the charge against Bainbridge Island's school curriculum on the Japanese American internment. (Olsen's upset that the internment is being presented as "a mistake." This position, he reasons, will only lead kids to "hate America." Not too long ago the superintendent of Olsen's local school district barred him from entering an elementary school because his "conduct, behavior, and rhetoric" created a "real likelihood" of "disruption.") Michelle Malkin is--natch--a big fan of the efforts of Olsen and his wife.

Why, one wonders, would "Bob" have gone to such lengths to conceal his identity here? Could it have anything to do with the fact that until quite recently, Coast Guard Captain Olsen's boss was U.S. Transportation Secretary (and former internee) Norman Mineta (pictured at right, receiving the U.S. Merchant Marine Academy's "Light of Leadership Award")?

UPDATE: "Bob," it turns out, corresponds with (and, apparently, identifies himself to) Commander William Hopwood, another frequent commenter on this site. Through Hopwood, "Bob" insists that he is not Captain James Olsen of Bainbridge Island, but is instead a Bainbridge Island resident who is a friend of Captain James Olsen's. Naturally I have no way to confirm that this is true, and given "Bob's" pathological deceptiveness, I wouldn't believe him if he told me himself. On the other hand, while I disagree with Hopwood about most everything, I don't think him a liar. So I think it best to take back what I wrote earlier today: for now, it looks as though "Bob" is not actually retired Coast Guard captain James Olsen of Bainbridge Island, but is instead a fellow Bainbridge Islander and friend of Olsen's.

Posted by Eric at 11:00 AM | Comments (6) | TrackBack

July 3, 2005

"What A Devastated Place..."

oday's Casper (Wyo.) Star-Tribune has a good story about efforts to create an interpretive center at the site of the WWII-era Heart Mountain Relocation Center, where Japanese Americans were housed.

Posted by Eric at 12:39 PM | TrackBack

June 26, 2005

Two Scouts

ixty-two years ago, as twelve-year-olds, these two men attended a Boy Scout Jamboree in Park County, Wyoming. They had a lot in common, but one big thing separated them: at the end of the day, the scout on the right was free to leave. The scout on the left was not. The Jamboree took place behind the barbed wire of the Heart Mountain Relocation Center north of Cody, Wyoming.

The scout on the right, Alan Simpson, went on to become a U.S. Senator from Wyoming. The scout on the left, Norman Mineta, went on to become the mayor of San Jose, California, a member of the House of Representatives, and then a Cabinet secretary in two presidential administrations. He currently serves as Secretary of Transportation.

Both men spoke today at the dedication of the new interpretive walking trail at the site of the Heart Mountain Relocation Center. The walking trail was created by the Heart Mountain Wyoming Foundation, on whose board of directors I sit.

Simpson introduced his old friend Mineta as "a public servant to trust."

I have no photo of Secretary Mineta speaking, because the heavens opened as he began speaking and I was busy holding an umbrella over his head.

Mineta spoke not only of the injustice of the wartime incarceration of Japanese Americans, but also of the many good residents of northwestern Wyoming whom he met while in camp and of the importance of working to ensure that a tragedy like the internment never happens again.

UPDATE: The always entertaining Commander W.J. Hopwood, a frequent commenter on this site and revisionist extraordinaire, chimes in with an explanation of why the young Norman Mineta was really interned at Heart Mountain:

Obviously small children were not considered security threats and Mineta, like other such children, was allowed to accompany his parents to Heart Mountain because of the wartime government's humanitarian policy of keeping evacuated and interned families together.

Ah, I see. Mineta was simply "allowed to accompany" his parents.

Perhaps Commander Hopwood can explain, then, why orphans as young as six months old were excluded from the West Coast and placed into an orphanage at Manzanar.

Posted by Eric at 12:20 AM | Comments (14) | TrackBack

June 24, 2005

Heart Mountain.

am in Cody, Wyoming, for the dedication of the Heart Mountain Wyoming Foundation's new interpretive trail at the site of the WWII-era Heart Mountain Relocation Center.

I took the photograph you see above this afternoon while out at the site setting up for tomorrow's ceremony. That's the old boiler building in the camp's administrative area, with Heart Mountain in the background.

Posted by Eric at 8:47 PM | Comments (1) | TrackBack

June 23, 2005

Remembering Heart Mountain

'm off to Wyoming today for a board meeting of the Heart Mountain Wyoming Foundation and, on Saturday, the dedication of our new Walking Tour at the site of the Heart Mountain Relocation Center.

Transportation Secretary (and former Heart Mountain internee) Norman Mineta and former Wyoming Senator Alan Simpson are scheduled to speak at Saturday's dedication. I'll blog about it on Saturday, probably with some photos.

Posted by Eric at 9:02 AM | Comments (3) | TrackBack

June 14, 2005

Looking Tough

n March of 1944, when Japanese Americans had already been behind barbed wire for two years, Justice Department official (and later Supreme Court Associate Justice) Abe Fortas talked with a top assistant to Assistant War Secretary John J. McCloy about possible changes in the government's restrictions on Japanese Americans. In a memorandum about the conversation, McCloy's assistant recorded the following little gem:

"Fortas is agreeable to a further reduction in, but not an elimination of, military police providing external security at relocation centers. [H]is approach is not so much that the military police are necessary for security but conducive to better public relations." (National Archives, Record Group 107, Entry 183, Box 33)

One wonders: which of today's supposedly security-protective measures are being maintained primarily because they're "conducive to better public relations?"

UPDATE: An astute reader catches my error: Fortas was at Interior at the time in question, not at Justice.

Posted by Eric at 2:05 PM | Comments (11) | TrackBack

June 6, 2005

A Moving Conference

'm just back from an incredible few days in San Francisco at a conference on the Japanese American internment sponsored by the California Civil Liberties Public Education Program. Among the many highlights for me was the chance to meet the superintendent of the Manzanar Historic Site, Frank Hays. Hays gave a great presentation about the marvelous preservation and interpretation work they're doing at the site of the Manzanar Relocation Center.

He also ended up spending much of the weekend getting his ear bent by people (including especially former internees) troubled by his decision to stock Michelle Malkin's bogus book "In Defense of Internment" in the site's bookshop. It was especially moving to hear the daughter of the late attorney Kenji Ito, whom Malkin goes out of her way to defame in the book, speak about the devastating impact on her and her aging internee mother of Malkin's assassination of his character.

Posted by Eric at 9:14 AM | Comments (9) | TrackBack

May 22, 2005

Contemporaneous Hindsight?

ore fun from the archives!

Revisionists of the Japanese American internment like to argue that "back then" people generally understood the military necessity of the internment, and that the claim that the internment was racist is the creation of today's leftists who look at the episode with the benefit of hindsight.

Consider this entry from the minutes of a meeting of the War Department's Japanese American Joint Board, September 2, 1943 (National Archives Record Group 380, Entry 480, Box 1725). The subject under discussion was the question of whether Japanese Americans should be allowed to return to the areas from which they had been evicted along the West Coast:

The attention of the Board was called to the last edition of the [newspaper] PACIFIC CITIZEN which is fully in accord with the subject of removing the restrictions from the evacuated areas on the West Coast. It was reported that General DeWitt said we have [the Japanese] on the run; there are no Japanese in the Aleutians and now is the time for the War Department to show those people that the original evacuation wasn't based on bias and prejudice.

Plenty of people saw the internment for what it was even at the time.

Incidentally, the policy of excluding Japanese Americans from the West Coast continued for well over a year after this comment by General DeWitt.

Posted by Eric at 12:50 PM | Comments (12) | TrackBack

May 19, 2005

"Citizenship . . . Bears No Relationship To . . . Loyalty."

od, I love archival research. You could never make up the stuff you actually find.

Here is the concluding statement from the training session for U.S. military personnel who were about to be sent out to investigate the loyalty of interned Japanese Americans in 1943:

This concludes your indoctrination in the Japanese-American branch of your work. As you have seen, this segment of our population is so completely disassociated from the way of life which is normally considered American that it can be profitably aproached by the investigator only after considerable preparation and study of its peculiar culture and philosophy. . . .

You have been admonished that, in this class of cases, [U.S.] citizenship bears no relationship to the Subject's loyalty. . . .

In conducting investigations of Japanese, you may rest assured that you are dealing with one member of a race which has on many occasions demonstrated its capacity for deceit. You can also be assured that far too great a number of the members of that race present in this country are admittedly, and in many cases, actively disloyal. You are justified therefore, in being suspicious, and your investigations must be scrupulously detailed and painstakingly thorough."

Nationatl Archives, Record Group 389, Records of the Office of the Provost Marshall General, Entry 480, Box 1725.

Posted by Eric at 10:26 AM | Comments (13) | TrackBack

May 18, 2005

It's Not Just Newsweek

. . .

And this.

You get the picture.

Posted by Eric at 2:00 PM | Comments (3) | TrackBack

Nine Months Later, Michelle Malkin Retracts and Apologizes

ine months ago I pointed out to Michelle Malkin that she had defamed political scientist Peter Irons and researcher and former internee Aiko Herzig-Yoshinaga by accusing them of "surreptitiously" passing between themselves "confidential" records about the wartime internment of Japanese Americans.

Malkin told me to go scratch, and broadened her smear of Irons.

Several months ago, Peter Irons emailed Malkin and asked for a retraction and apology.

Malkin ignored him.

A few days ago, Irons renewed his demand and threatened legal action.

Today, finally, after a couple more days of foot-dragging, Malkin retracts and apologizes to Irons and Herzig-Yoshinaga.

Note also that she is explictly retracting her supposed "refutation" of my original charge.

I said this the other day, but it bears repeating: the method of Malkin's reckless and baseless charges against Irons and Herzig-Yoshinaga is the method of her entire book about the Japanese American internment.

What she did to Irons and Herzig-Yoshinaga is, for example, precisely what she did in her book to Seattle attorney Kenji Ito and to Richard Kotoshirodo. Malkin made both men out to be monsters--Ito a Japanese spy and Kotoshirodo the Mohammad Atta of his day--when just down the street from her home, hundreds of pages of documents in the National Archives proved these allegations and characterizations false. Malkin never took the fifteen-minute drive over to the Archives to look for any documents about Ito or Kotoshirodo before smearing them.

Make no mistake: today's retraction and apology is a confession of the bankruptcy of Malkin's entire project.

UPDATE: Dave Neiwert is, as you would expect, quite good on all this.

Posted by Eric at 7:11 AM | Comments (38) | TrackBack

May 17, 2005

"All Japanese Are Not Bad"

rom the official report on the wartime program concerning Japanese Americans, prepared in September 1945 by the Office of the Provost Marshall General in the War Department:

"One of the greatest barriers to a smooth operating [national] security program was the fact that our own Constitution extended certain protection to American-born citizens [of Japanese ancestry] who are not morally entitled to that benefit."

"On the other hand there emerged from the Japanese population several thousand loyal American-born citizens who lost blood, limb, and life on European battle fields and were in imminent danger of death by torture while serving as intelligence agents on Pacific battle fronts. These persons are proof, both in life and death, that all Japanese are not bad."

Racism underlying the Japanese American internment? Nah. Don't think so.

Posted by Eric at 2:22 PM | Comments (2) | TrackBack

Able To Leap Barbed Wire Fences In A Single Bound!

s I go through the documents I copied during my research trip to the National Archives a couple of weeks ago, I thought I'd share another amusing little find.

One of the most offensive distortions of Japanese American internment revisionism is the claim that the government's "relocation centers" for Japanese Americans were not places of confinement. (It's a claim that, for example, Michelle Malkin makes: "In truth," says Malkin on pages 97-98 of "In Defense of Internment," "the evacuees who populated the relocation centers . . . were . . . free to leave . . .")

Alas! Somebody should have told Superman! In these comic strips from late June and early July 1943, the Man of Steel is under the tragic misimpression that those in the relocation centers were confined.

Posted by Eric at 11:20 AM | Comments (10) | TrackBack

May 16, 2005

Defamation: The How-To Guide

ometime later today, I'm quite sure that Michelle Malkin will post an item in which she defends her smearing of political scientist Peter Irons and researcher (and former internee) Aiko Herzig. She will trumpet her source for her bogus "facts": an article by Cal State Fullerton Professor Thomas Fujita-Rony that appeared in the April 30, 2003, issue of the academic journal "Frontiers: A Journal Of Women Studies."

I hope that folks will notice two things:

First, Fujita-Rony's article does not support Malkin's cloak-and-dagger charges.

Second, Malkin did not do what any beat reporter would do before printing damning allegations about two well-respected people: investigate. She did not contact Irons, a prominent and easily located academic. She did not contact Herzig, who lives in the DC area where Malkin herself lives, and whom she could have found by looking in the white pages.

The research "strategy" here, if it can be called that, is by now familiar. It is the precise method that she used for her entire book about Japanese Americans and the internment.

What she has done to Peter Irons and Aiko Herzig is, for example, precisely what she does in the book to Seattle attorney Kenji Ito and to Richard Kotoshirodo. She makes both out to be monsters--Ito a Japanese spy and Kotoshirodo the Mohammad Atta of his day--when just down the street from her home, hundreds of pages of documents in the National Archives refute her characterizations. With Ito and Kotoshirodo, as with Irons and Herzig, Malkin could not be bothered to take the most basic of investigative steps to research her scandalous allegations before trumpeting them to a national audience.

Posted by Eric at 8:26 AM | TrackBack

May 15, 2005

Malkin Concedes Error ... Though You Have To Hunt To Find It.

n August 13, 2004, I argued that Michelle Malkin's book "In Defense of Internment" states falsehoods about scholar Peter Irons and former internee and researcher Aiko Herzig. (Malkin claimed in her book that Herzig had "surreptitiously" passed Irons "confidential" archival documents about the internment of Japanese Americans while working for as a researcher for a government-appointed investigative commission.)

Malkin's response was to dig in her heels and repeat the false allegation, upping the ante by labelling Irons's acts "shenanigans" and further impugning Irons's reputation in connection with other research and publication activities of his.

Several months ago, Irons emailed Malkin and asked her to retract these falsehoods. She did not reply.

Last week, Irons emailed her again with the same request, this time noting that he (correctly) viewed her comments as defamatory and potentially actionable.

Sometime in the last few days, with nary an apology (nor even a mention) on her blog, Malkin tucked the following item away on the book's "errata" page:

page 123: I wrote that Aiko Herzig-Yoshinaga "surreptitiously shared confidential documents with" attorney Peter Irons. The word "surreptitiously" was erroneous and will be excised in future editions.

This isn't over, though: she has not yet corrected the false claim that these public records were "confidential." Nor has she retracted or apologized for accusing Irons of "shenanigans" in this and other contexts.

I expect that in the next day or two she will post something pointing the finger at some third party for the information "substantiating" her allegations, but what she won't mention is that the one thing she did not do before publicly smearing the reputations of Irons and Herzig was contact them and ask them about the episode in question.

More, and broader, thoughts on all this to follow, probably tomorrow.

UPDATE: This morning (5/16) Malkin cryptically announces on her blog that "the errata page to her book has been updated." She doesn't actually say what the update is, though. Classy.

Posted by Eric at 8:55 PM | Comments (7) | TrackBack

May 4, 2005

Or Maybe It Was Those Vicious Kamikaze Attacks on Mystic Seaport.

n late May and early June of 1942, the federal Office of Facts and Figures (under its director, Archibald Macleish) surveyed five hundred U.S. citizens on the East Coast (between Philadelphia and Boston), asking them this question:

"Which of these alien groups do you think is most dangerous -- Japanese, Germans, or Italians?"

Remember, this is the East Coast we're talking about here.

The answer: The Japanese! Forty-five percent identified Japanese aliens as the most dangerous, compared to forty percent who singled out the Germans.

I guess folks from Philly through Boston were worried about the Japanese navy crossing the South Pacific, rounding the Tierra del Fuego, sneaking up the eastern coast of South America past the Caribbean, and landing an invasion force on Martha's Vineyard--and then getting support from the tiny handful of Japanese aliens who lived along the East Coast.

Yup, those dastardly East-Coast Japanese. Much, much scarier to East Coasters than these folks, or these, who lived in their midst.

UPDATE: The trap was opened, and Terry was the first commenter to tumble into it. (And smugly, no less.) He said:

"Gee, I wonder if the attack on Pearl Harbor had anything to do with the numbers, or was it just RACISM?"

Funny you should ask, Terry.

In the survey of 500 East Coast citizens that the same government office did a few months earlier, in February of 1942, the respondents said that Germans were the more threatening aliens, by a wide margin!

So much for the Pearl Harbor effect.

The Office of Facts and Figures, which did the surveys and prepared the reports, noted this shift in East Coast opinion between February and June of 1942, and guess what they thought was the primary reason for it? They thought they primary reason was that between February and June of 1942, the government had very publicly rounded up all Japanese Americans and locked them up in "assembly centers." It was, in other words, the government's action against Japanese Americans that persuaded people on the East Coast (who had little contact or experience with Japanese Americans) that they were dangerous. ("They must be dangerous, right? Why else would they be behind barbed wire?")

Posted by Eric at 4:44 PM | Comments (14) | TrackBack

May 3, 2005

"A Bad Effect on Morale..."

have another little goodie from the National Archives for ya. Found it today in the files of John McCloy, Assistant Secretary of War.

It is often maintained by those who defend the Japanese American internment that the decision to take mass action against Japanese Americans regardless of their citizenship, while taking no such mass action against Italian and German Americans, was grounded in military necessity.

Check out this nifty little note that FDR himself dashed off to Secretary of War Henry Stimson on May 5, 1942, shortly after the commanding General of the Eastern Defense Command designated a strip along the East Coast of the United States as a "military area":

I have been hearing some complaints from [Capitol] Hill and from New York about General Drum's statement creating a "military area" along the East Coast. From what I hear, the German and Italian people up there are in a state of confusion and believe this means another evacuation like that on the West Coast. American citizens with German and Italian names are also worried. I am inclined to think this may have a bad effect on morale.

As I remember the discussion in the Cabinet, the Order was intended primarily to give General Drum authority over the dimming of lights along the Eastern seaboard and not over alien enemies. The control of alien enemies seems to me to be primarily a civilian matter except of course in the case of the Japanese mass evacuation on the Pacific Coast.

Will you make sure that no action is taken by General Drum under this Executive Order in relation to alien enemies without talking to me first?

I hear the evacuation program on the West Coast is working well.

F.D.R.

Indeed it was. And having a good effect on morale, too--except among Japanese Americans.

Posted by Eric at 5:20 PM | Comments (25) | TrackBack

May 2, 2005

"The Guise of Security"

evisionist historians of the Japanese American internment tell us that there's really no persuasive evidence that economic and racial resentments were at the heart of the multi-year program of eviction and detention. It was military necessity that placed 110,000 people into camps and then kept them out of the West Coast for years.

Well, I'm at the National Archives in College Park, Maryland, for some quick research today. And I happened across this lovely little excerpt from a telephone conversation on February 4, 1943, between the top executive to Assistant War Secretary John J. McCloy and a top assistant to the Provost Marshall General. They are talking about the huge wave of hostile telegrams pouring in to the War Department after the government announced a program of screening the loyalty of Japanese American internees so that they could leave camp for the military or for jobs:

Col. Scobey: You know what's back of that. The protest will come from the West Coast, of course.

Col. Miller: Yes, that's right.

Col. Scobey: And there's a lot back of that and part of it is economic. The West Coast saw a way to get rid of the Japs, they got rid of them, now they don't want them out there, they want to take the property over. It isn't all patriotic, by any means.

Col. Miller: That's right.

Col. Scobey: Of course, they couch their protests under the guise of security and patriotism.

Contemporaneous evidence, refreshingly blunt.

Posted by Eric at 4:44 PM | Comments (9) | TrackBack

April 29, 2005

"Notice to All": A Conference on the Japanese American Internment

he California Civil Liberties Public Education Program is holding a major conference in San Francisco on June 2, 3, and 4, on the wartime internment of Japanese Americans.

My partner-in-crime Greg Robinson and I will share the podium with reknowned civil rights attorney Dale Minami in an address on Saturday, June 4.

If you're in California and interested in this chapter in American history, come on by. It should be fascinating.

Posted by Eric at 8:11 AM | Comments (6) | TrackBack

April 27, 2005

Tee Hee

ichelle Malkin is making sense. (Hat tip to Brad.)

Posted by Eric at 5:13 PM | TrackBack

April 26, 2005

A Collector's Item.

hh, the sweetness of success. Somebody is selling my book--autographed, no less--on ebay.

Notice, by the way, how incredibly valuable my signature was to the person who gave the book to Delbert Farquart!

What the seller does not mention, by the way, is that the book's inscription reads, "To my friend Michelle ... maybe someday you too will write a book about the internment!"

Posted by Eric at 7:50 PM | Comments (1) | TrackBack

April 11, 2005

Is There A David Irving Section at the Holocaust Museum Giftshop?

hy on earth is the National Park Service stocking Michelle Malkin's book "In Defense of Internment" in the bookshop at Manzanar?

One wonders: do they carry this item in the gift shop at this museum?

This is a disgrace. Drop the Park Service a line and let them know you think so.

UPDATE: Michelle Malkin has sent her goon squad over here, and they are bombarding me with comments telling me I'm an idiot in all sorts of charming ways. My favorite one so far is this one from one "reelcobra":

Is that legal? is the anthisis of robust debate and free speech.

Is it really? In that case, I would encourage you to go over to Ms. Malkin's site and leave the same comment there. Oh, wait. Ms. Malkin doesn't allow comments. Nevermind.

FURTHER UPDATE: Members of the Malkin goon squad, please do me the favor of reflecting on this before yapping about "book banning": how would you feel about the sale of a book justifying the 9/11 attacks at Ground Zero? A book justifying 1930s Japanese militarism and expansionism at Pearl Harbor? A book preaching the necessity or utility of displacing American Indians from ancestral lands at Wounded Knee? Do you really believe that Manzanar is the right place for Ms. Malkin's book to be available? Do you not understand that there might be a difference between a memorial site and a museum?

Posted by Eric at 10:58 PM | Comments (59) | TrackBack

April 2, 2005

Maklin on Korematsu

parody, plainly.

But like all good parody, plausible.

Posted by Eric at 12:07 AM | Comments (1) | TrackBack

March 31, 2005

In Memoriam: Fred Korematsu

red Korematsu died yesterday of a respiratory illness at the age of 86.

He was a civil rights icon of the 20th century, and deservedly so.

My wife and I had dinner with him last November, just after what now turns out to be his last public address. His speech that day was witty, moving, humble, noble--just as he himself was.

It was a privilege to know Fred Korematsu. Any life that brings to the world even a fraction of the inspiration that Fred Korematsu's life brought to us all is a life well lived.

Posted by Eric at 2:22 AM | Comments (3) | TrackBack

March 6, 2005

Judging Our Ancestors

've just finished an essay called "Judging Our Ancestors: Lessons from the Criminal Law" (.pdf file). I submitted it to a number of law reviews electronically yesterday, and I'll send it out to a bunch more by snail mail tomorrow.

I am really proud of this one. Some of the stuff I've written in my career leaves me kind of cold; this essay I really like.

The piece explores a simple question: how should we assess the wrongdoing of prior generations--slavery, the Japanese American internment, and the like?

If you believe George Santayana's famous warning that those who forget history are condemned to relive it, the question is quite important. We can condemn slavery and the internment under the standards of our own day. (Well, most of us can.) But can we say that they were wrong in their own time? So often we hear the claim that it is unfair for us to judge our ancestors--that judging them is disrespectful of the time in which they lived, a display of the false wisdom of hindsight. Is that really so?

The essay explores this question through the lens of the criminal law, which has become rather adept at dealing with claims that people from other cultures ought to be judged by their own cultural standards rather than ours. (Think of the Hmong immigrant from Laos who is prosecuted for kidnapping and rape after engaging in the Hmong practice of "marriage by capture.") As you might imagine, the criminal law is not quick to indulge these sorts of claims (though they sometimes succeed in certain narrow contexts).

Perhaps you can see where I'm going: In much the same way that we might consider excusing a person because of where he is from, we might also consider excusing a person because of when he is from. That analogy between the criminal law's cultural defense and what we might call a historical figure's "temporal" defense is the heart of the essay.

Do you find this analogy between a person from another place and a person from another time provocative? Well read the essay, then, and leave a comment.

Posted by Eric at 4:25 PM | Comments (13)