April 16, 2008
John Yoo, Karl Bendetsen, Firing, and Hiring
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.
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"
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
Posted by Eric at 12:32 PM
February 18, 2008
Day of Remembrance, 2008
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
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?
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"
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."
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
Posted by Eric at 10:43 PM
October 18, 2007
"American Inquisition": A Portrait of a "Disloyal" American
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
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
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
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
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
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.
Posted by Eric at 12:43 PM
July 11, 2007
The Bad Idea In Katyal's and Goldsmith's Otherwise Intriguing Proposal
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
"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"
Posted by Eric at 6:11 AM
July 1, 2007
Rail to the Chief
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
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
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!
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
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
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
(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
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
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.
Densho deserves our support. You can show yours here.
Posted by Eric at 8:44 AM
December 14, 2006
Interned. Drafted. Prosecuted.
Posted by Eric at 7:13 AM
December 7, 2006
Pearl Harbor's Collateral Victims
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
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
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!
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.
Posted by Eric at 9:09 AM
October 17, 2006
The Ehren Watada Case
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
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
(180).jpg)
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.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).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.
Posted by Eric at 8:46 PM | Comments (4)
July 26, 2006
Remembering Complexity
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
His book of photographs of the experience was called "Born Free and Equal."
Posted by Eric at 2:26 PM | TrackBack
July 12, 2006
Okay, Not Black, Then
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
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
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
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"
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.