IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"

Greg Robinson adds another word or two:

It has been a fascinating experience participating with Eric Muller in this blog critique of Michelle Malkin’s book. I am a bit dizzy from the effort of writing and distributing, and receiving the responses. I credit Eric and Michelle Malkin equally with impressive energy and rapidity of composition, neither of which I generally have. There is little that I need to say by way of rebuttal to the comments ion my critique posted by Malkin (although she refers to me as “Greg,” I do not feel I know her well enough to call her Michelle, never having met her). On most matters, either she tacitly agrees with what I wrote, restates her erroneous conclusions, or tries to elide my point. In regard to points that require further clearing up, I will make a brief rebuttal now and save more for Suanday.

Regarding Malkin’s defense of her use of MAGIC intercepts, the only thing that the few dozen intercepts prove, as I noted, is that Japan was anxious during 1941 to create a spy network , among Japanese Americans but principally among non-Japanese, and that agents of Japan furnished various data (in the few cases where the source of such data was identified, it was someone other than a Japanese American). The Redress Commission did consider the question of MAGIC, which it specifically found irrelevant to Japanese Americans. As an addendum to PERSONAL JUSTICE DENIED points out, the MAGIC cables instructed Japanese agents to emphasize recruitment of groups other than Issei and Nisei, particularly “Negro, labor union members, and anti-Semites”, since if there was any slip, the whole network might be exposed and Japanese Americans would be subjected to considerable persecution. (p.472).

Malkin does not respond to my criticism of her case for the military necessity of mass evacuation, which relies on the shelling of Goleta by a Japanese submarine on February 23, 1942. Since this was 12 days after mass evacuation was approved by President Roosevelt and four days after Executive Order 9066, it cannot have impacted the decision. Instead, Malkin repeats her claims on pp. 90-92 of her book, namely that “the Goleta shelling and the famous “Battle of Los Angeles” air raid scare a few days later precipitated the forced evacuation of Terminal Island in Los Angeles harbor, which, by the way, had been singled out in MAGIC messages as a hotbed of Japanese espionage activity.”

This would be irrelevant even if it were true, since Terminal Island was taken over by the Navy, which did not support mass evacuation, and did not affect the larger decision, but it is not. In fact, Terminal Island was ordered cleared of its alien population on February10, and the Navy took it over on February 14, giving all the area’s residents a month to move. On February 25 (right after the shelling incident and before any air raid scare) the Navy changed its mind and ordered all the residents out on 48 hours notice. So the least that the shelling could have done in any case was to change the timetable for evacuation of Terminal Island, not inspire it. Even that much is doubtful, since those who were removed from Terminal Island were allowed to settle elsewhere in Los Angeles. If there had been spies and saboteurs who represented a threat, one would have assumed that they would have been removed wholesale from the region.

This'll do it for me for today, and for the weekend.

Michelle can't understand why I question her assertion on page xxx that she's "not advocating rounding up all Arabs or Muslims and tossing them into camps."

"As I make plainly and thoroughly clear in both the lengthy introduction and conclusion," she says, "I am advocating narrowly-tailored and eminently reasonable profiling measures."

Here's the thing, though: Michelle could defend narrowly-tailored profiling measures without taking on the additional burden of defending the wholesale eviction and detention of an entire ethnic group from the West Coast during World War II.

Why, then does Michelle go to the trouble of defending and justifying that program?

If internment was, as she contends, the right thing to do in 1942, and given that yesterday (to take one very recent example) a naturalized American citizen of Arab ancestry and Muslim faith in Albany, New York, was arrested at a mosque for trying to buy a stinger missile, then why is internment not the right thing now?

Why is Michelle not advocating internment?

One of the two or three most significant historical claims that Michelle makes is that it was Assistant Secretary of War John J. McCloy who pressured others in the War Department for wholesale eviction of all people of Japanese ancestry because of his access to MAGIC.

In 1992, Kai Bird, a distinguished biographer, published The Chairman, a definitive 663-page biography of McCloy.

Here's what Bird has to say about McCloy and MAGIC:

"The signing of Executive Order 9066 later came to be regarded as one of the most controversial decisions associated with McCloy's career. . . . More than any other individual, McCloy was responsible for the decision, since the president had delegated the matter to him through [Secretary of War Henry] Stimson. . . . Why ... did McCloy become an advocate of mass evacuation? One answer is simple racism, particularly evident in Stimson's attitudes. Another is that McCloy and Stimson were 'led by the nose by second-rate people like Colonel Bendetsen.' And it was true . . . that at the time, McCloy was 'distracted and distraught with a large number of problems.' But he also possessed a unique combination of predilections that made him particularly vulnerable to Bendetsen's and [Provost Marshall General] Gullion's arguments [for mass evacuation]. [Gullion] had convinced him that the enemy would inevitably engage in sabotage. Ever since Amherst and his enthrallment with the military-preparedness movement, he had been instinctively swayed by national-security arguments. Theoretical objections to strong action on civil-libertarian grounds were indications of soft thinking.

. . .

"Another major factor was McCloy's exposure to intelligence sources. Some observers in recent years have cited evidence of Japanese American disloyalty in such special intelligence resources as the Magic intercepts. There is no doubt that McCloy was reading Magic intercepts of Japanese diplomatic traffic at the time of the evacuation decision. But, as in the question of how much warning the Magic cables should have given him regarding the attack on Pearl Harbor, it is difficult to determine whether this intelligence information was a factor in his thinking. McCloy himself, in testimony before a congressional commission forty years later, did not mention the intercepts.

"Only a handful of Magic cables, out of thousands intercepted, might have conveyed the impression that Tokyo had recruited both alien Japanese and Japanese American citizens for espionage work. . . .

"Prior to Pearl Harbor, there had been no systematic analysis of Magic intercepts. So any references McCloy saw in the Magic intercepts to Japanese American espionage were fleeting and impressionistic. A meticulous analysis of the intercepts, in fact, would have shown that the intelligence information cabled back to Tokyo came almost exclusively from 'legal' espionage conducted by Japanese diplomats out of their embassy and consulates. Even the covert, 'illegal' espionage coordinated out of these Japanese consulates was not very sophisticated or extensive. One Magic intercept, for instance, reveals that, as late as May 1941, the Japanese Embassy was reporting that 'only about $3,900 a year is available for actual development of intelligence . . .' The few agents hired were invariably Caucasian Americans or German nationals.

"Whereas such Magic evidence was highly ambiguous, McCloy also had access to intelligence that firmly dismissed the potential for sabotage. . . .

"It is hard not to conclude that McCloy allowed his fears of sabotage and his penchant for decisive action to sweep aside any other considerations." (from pages 154-56)

In earlier pages of the biography (145-51), Bird depicts McCloy as racked by indecision about what sort of action to take against ethnic Japanese--and favoring far more narrowly targeted action than that ultimately taken--until as late as February 6 to February 10, 1942. He says that it was unremitting pressure for mass eviction from Provost Marshall General Gullion that finally led McCloy to settle on that course of action.

Michelle dedicates her book to the memory of John McCloy (and David Lowman). But Kai Bird's biography of John McCloy does not appear in her bibliography.

In her response, Michelle wrote that "[i]t is clear that several actions taken by the Roosevelt administration were directly influenced by MAGIC, including the decision to initiate the evacuation in Bainbridge Island and Terminal Island, which MAGIC messages had identified as high-risk areas."

I'm going to give you an exercise, OK?

It is wartime. You are responsible for insuring the safety of your naval fleet. On the map below, circle the spot from which you would first remove enemy aliens. Please try not to notice the town named "Navy Yard City;" that's cheating.



Did you circle the island across from Bremerton and Navy Yard City with the red star on it? The one that all of the ships would have to pass by? Guess what? That's Bainbridge Island! Nice work!

Hey, wait a minute! If you got it right, why, then, ... you must have had access to the MAGIC decrypts, you sly devil, you. Why else would you have chosen it?

We could do the same exercise with Terminal Island in Los Angeles, the site of a U.S. naval base.

Similarly, Michelle says "there is no obvious explanation for the decision to evacuate southern Arizona other than the May 9, 1941 MAGIC message (sent by Japan's Los Angeles consulate) which showed that Japanese operatives intended to monitor cross-border traffic."

Same exercise. Your job is to protect the country's exposed western flank. Draw a line to identify a strip along which you might want to scrutinize enemy aliens more carefully.



Hey, what's with that totally arbitrary line you drew across southern Arizona? Oh, wait, you must have looked at that one MAGIC decrypt that brought to your attention the otherwise counterintuitive idea that Yuma, Arizona, was as vulnerable as San Diego, California.

It occurs to me now that, in her reply to me and Greg Robinson, Michelle actually conceded that the thesis of her book is unsupported and unsupportable. Here's how:

She notes that I had "point[ed] out that once the decision was made to evacuate ethnic Japanese from the West Coast, many ancillary decisions were made--and MAGIC doesn't explain all or even most of them. True, but beside the point."

Beside the point? Why? Well, because "my book focuses primarily on the policies formed in early spring 1942, when the decision was made to evacuate all ethnic Japanese from the West Coast."

Michelle is not just rewriting history; she's rewriting her book. (And before it has even been officially published!)

Michelle's book (and I quote her from the first page of her introduction, page xiii) "offers a defense of the most reviled wartime policies in American history: the evacuation, relocation, and internment of people of Japanese descent during World War II." Jeez louise, she titled the book "In Defense of Internment," not "In Defense of Evacuation." If the MAGIC decrypts do not explain anything that followed February 19, 1942--that is to say, if the MAGIC decrypts do not explain anything having to do with the detention of Japanese Americans, as opposed to their forced removal--then what does? What, for example, does explain the government's decision to ship 112,000 people off to camps in the interior after the American naval victory at Midway in early June, 1942? And if MAGIC doesn't explain it, then why is Michelle taking it upon herself to defend it?

Michelle concedes that she has no foundation--none--for most of the program she is defending.

Michelle Malkin has responded at length to the criticisms of her book that Greg Robinson and I posted over at Volokh on Wednesday and Thursday.

I have just a few things to add, and I'll do so as I can during the day today. This evening I'm off to pick up my older daughter from camp, and won't have computer access until Sunday evening.

In my initial comments, I doubted that Michelle had done the sort of intense archival spade work that is necessary to uncover and then write accurate and trustworthy history. Michelle says that I have "challenge[d] [her] book’s goal and research methods because [she] couldn't possibly have read everything that has ever been written about evacuation/relocation/internment."

Well, no, that's not what I said. It would be impossible for a person to read every primary source relevant to "evacuation/relocation/internment," even, probably, in the space of a lifetime. When I wrote my book on Japanese American internees who resisted the draft in WWII, I—like Michelle—relied on secondary sources for learning and then relating the background of my story. But for my story--that is, the unique contribution to the historical record that I intended for my book to make, which was the story of how the government decided to draft the Nisei, how the Nisei responded, and how the justice and penal systems treated those who resisted--I did read everything I could possibly locate. Myself. By traveling around the country to archives, consulting the (invariably skeletal) finding aids that were available, requesting box after box of original documents, and then going through the files in the boxes, one piece of paper at a time, to find every document that was relevant to any aspect of my story. This is the only way to do responsible historical research. You can't rely on somebody else's sense of what's important and relevant. Unless you're looking for a particular well-known item (like the Zapruder film, or something) the most an archivist will tell you is that there might be something relevant in a particular location, and then it's up to you to go through everything in that location yourself to find out whether the archivist's hunch was or was not right.

Here's what Michelle says she did:

As a matter of fact, I did in fact personally sift through thousands of pages of archival material—-from court documents obtained from NARA in Seattle, to War Relocation Authority records stored at the Bancroft Library at UC Berkeley, to stacks of primary documents from the National Archives in College Park, Md. Other scholars and researchers such as Robert Stinnett, Burl Burlingame, Arthur Jacobs, and Col. Lee Allen, were generous enough to share their FOIA treasure troves and personal archival materials with me. I especially recommend Col. Allen's invaluable website here, which contains some 400 documents related to the evacuation/location. Most are primary documents.

I'm curious to know how NARA-Seattle and Bancroft knew what to send. College Park must be just around the corner for Michelle, so I'm curious to know whether Michelle did her reviewing , Sandy-Berger-like (joke!), at the archives, or whether she instead asked that she be sent pre-identified documents and files. Which record groups did she consult, and how broadly did she read in them? How about the archives in the District of Columbia? That's where (among other things) all of the records of the War Relocation Authority are. Did Michelle spend time there with the WRA records?

This might seem like nit-picking, but it's not. It's the most important question a historian can ask: how exhaustive, comprehensive, and open-minded was the research? There's good reason to question that in this case: take a look at Colonel Lee's "invaluable" online "archive" that Michelle says was so helpful to her. Here's how it introduces itself on its welcoming page:

Conventional wisdom concerning this controversial event in American history is that individuals of Japanese ancestry were rounded up and put into American concentration camps in violation of their constitutional rights because the country was overcome with "racism, hysteria and a lack of political will" after the attack on Pearl Harbor.

The determined researcher will find that the truth is quite different. A careful review of the documentation in this archive reveals that many Japanese along the West Coast of the U.S. did, in fact, pose a grave security risk to the country.

Then the site notes that it's paid for by Athena Press, the publisher of David Lowman's book about the MAGIC decrypts (on which Michelle also heavily relies).

Folks, this ain't no "archive." The "over 400 documents" that the "archive" brags it has (Boy howdy! 400 documents!) are meticulously selected items from among many, many thousands of relevant archival documents on the subject. And they're meticulously selected, as the website itself claims, to support a particular conclusion about Japanese Americans. Lo and behold, that's exactly the conclusion that Michelle reaches. What a coincidence!

Well, that certainly was an intense couple of days over at Volokh.

If you'd like to read my eleven-part (it looks like 10, but I did 4 twice) review of Michelle Malkin's book "In Defense of Internment: The Case for 'Racial Profiling' in World War II and the War on Terror," here are the links:

Part 1
Part 2
Part 3
Part 4a
Part 4b (includes contribution by Greg Robinson)
Part 5
Part 6
Part 7 (includes contribution by Greg Robinson)
Part 8 (includes contribution by Greg Robinson)
Part 9 (includes contribution by Greg Robinson)
Part 10

Today and tomorrow I'm guest-blogging over at Volokh. I'll be posting my reactions to Michelle Malkin's new book on racial profiling and Japanese Americans. Come on over.

America Coming Together, which, notwithstanding its name, is apparently a political action group and not the advocacy arm of the group sex community has gotten Will Ferrell to do a bogus commercial for George W. Bush.

The potential here was huge: Ferrell does a pretty good W., and the ranch-like setting was promising.

Unfortunately, it's just not very funny.

Don't know how I missed it on the breakfast table this morning, but my wife just called to point out this very good article in today's NY Times on the struggles of Japanese Americans to maintain a cultural identity.

It has been brought to my attention that Michelle Malkin is coming out this month with a book called "In Defense of Internment: The Case for 'Racial Profiling' in World War II and the War on Terror."
The book's description makes it sound like a real doozie. Certainly its publisher, Regnery Publishing, and the book's cover, which compares a Japanese American man to Mohammed Atta, do not inspire confidence that Ms. Malkin is going to be giving us history that is Fair and Balanced.
Expect a review here soon ... hopefully late this week, if I can find a copy of the book in the next day or so.

UPDATE, August 3: I bought the book at my local Barnes & Noble and have begun reading it. I was concerned, at first, by the book's apparent length: the index ends on page 375! But it turns out that the text of the book runs only to page 165; the rest is appendices, photos, and endnotes.
I hope to get a review up, perhaps piecemeal, by the end of the week. I'm scheduled to guest-blog over at Volokh on Thursday and Friday, so maybe I'll do some of it over there where the readership's a good deal higher than it is here in the blogospheric boondocks.

Just dropped my ten-year-old daughter off in the North Carolina mountains for a week of sleep-away camp. It's her first time away.
Just got back home, and the house feels surreal. There is an enormous yawning absence moving along beside me, wherever I go.
Sigh.