Japanese Internment: The Constitution Will Not Protect Americans From Their Government

Japanese Internment

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The term “concentration camp” is generally associated with Nazi Germany, but it was actually popularized during the Second Boer War at the turn of the 20th century. While this was not the first time civilians were interned during war (for instance, the United States had an extensive system of concentration camps during the war with the Philippines), it was the first time that the entirety of a nation was systematically targeted and depopulated.

A concentration camp is a compound for noncombatants in a war zone. Auschwitz and the other infamous sites under Nazi control would more accurately be called death camps.

Whatever the term, rounding up innocent civilians and forcing them from their homes is clearly a heinous crime. It is the kind of thing that tyrants do. It is certainly not the kind of thing that happens in America, land of the free and home of the brave.

Of course, this isn’t true. By Executive Order 9066 on February 19th, 1942 (just 74 days after the attack on Pearl Harbor), more than 110,000 Japanese-Americans, primarily US citizens, were sent to concentration camps, where they were forced to live for an average of 3 years. And yes, concentration camp is the correct term here; even FDR and other government officials called them concentration camps.

It is of the utmost importance that we remember what happened to the Japanese living in America during World War 2, because many naïve Americans either forget that it happened or refuse to believe that something similar could happen again. People place entirely too much faith in their government, and the constitution that is supposed to constrain it.

In this post, I will discuss some of the history of Japanese internment, the constitutional issues and failures surrounding it, and how these issues have only grown stronger in the post-9/11 world.

 

Japanese Internment

The vast majority of the 130,000 Japanese in the US during the early 1940s were living on the west coast in California, Oregon, and Washington. Nearly all of them were incarcerated. The majority of those incarcerated were US citizens who had committed no crime whatsoever. According to history professor Roger Daniels,

More than two-thirds of them were native-born American citizens. Their parents, most of whom had immigrated to the United States between 1890 and 1924 (when Congress barred further immigration of Japanese), were “aliens ineligible to citizenship” because of their race. Like all persons of color in the United States, both generations of Japanese Americans experienced systematic discrimination. The immigrant Issei generation, in addition to being barred from citizenship, were legally forbidden to enter a number of professions and trades and, even more importantly for a farming people, were forbidden to own agricultural land in the states where most of them lived. The second or Nisei generation, although legally citizens, were not accorded equal rights. In California, for example, they were segregated in theaters, barred from swimming pools, and limited in employment.”

Immediately after Pearl Harbor, a smaller subset of the Japanese were rounded up based on prior suspicion. Reasonable people could debate whether or not this was justified, but at least it was legal (though regular readers of this blog should understand that “legal” does not equal “moral”).

“The outbreak of war put the Issei generation at peril—they were “alien enemies” and, as such, some eight thousand, mostly men, were interned beginning on the night of 7-8 December 1941…While it is clear that some of those interned did not receive “justice,” their confinement did conform to the law of the land, which had provided for wartime internment since the War of 1812.What happened to the rest of the West Coast Japanese Americans was without precedent in American law…”

We will go over the legal aspects of setting up concentration camps for US citizens later. For now, I’d like to point out a truism about government action and its perceived authority: it’s quite common for people to accept highly questionable directives without resistance. Large segments of the population will even support such measures, be it out of fear or ignorance. There’s no reason to think that, if America begins going down the road towards concentration camps again, it won’t be a popular decision and that there won’t be similar collaborators. Even the victims themselves are likely to go along with it.

“The reaction of the Japanese American people to all of this was remarkable. The vast majority accepted the various government decisions with what appeared to be patient resignation. The leading national organization of the citizen generation, the Japanese American Citizens League (JACL), advocated a policy of acquiescence and even collaboration with the government’s plans hoping by such behavior to “earn” a better place for Japanese Americans in the postwar world. This kind of accommodation is not unknown among other American minority groups.”

A little known fact is that the American government also kidnapped and interned Japanese in Latin America. As described by Natsu Taylor Saito,

“The plaintiffs lost homes and possessions; some were forced to clear jungle in the Canal Zone; and men, women and children were transported under armed guard to prison camps in the Texas desert where they were incarcerated indefinitely without charge or hearing. Families were torn apart and scattered across the globe. Held as hostages, some Japanese Latin Americans were exchanged for U.S. citizens, and others were imprisoned past the end of the war, when the U.S. Immigration and Naturalization Service (“INS”) declared them to be “illegal aliens” and deported them, against their will, to Japan.”

While some of the Japanese were deported at the end of the war, others refused to leave the camps.

“Ironically, in 1945, as the war was ending, the WRA [War Relocation Authority] had great difficulty in getting some Japanese Americans—mostly older members of the Issei generation—to leave the camps. Many had lost their means of livelihood and even though they had once been willing to take the great risk of emigration to a strange land, they were now afraid to return to the places where they had lived for decades.”

This is despite the deplorable living conditions in the camps. Summarized by Brian Masaru Hayashi,

“…they endured four years of cramped living quarters, inadequate facilities, low wages, and a general lack of freedom and privacy. The majority–approximately five out of every six–pledged their allegiance to the United States or promised obedience to its laws over Japan’s when confronted with questions regarding which country the aliens would support and concerning the U.S. citizens’ willingness to serve in the American armed forces during the infamous Loyalty Registration of 1943.

What is this about a “loyalty registration”? The WRA attempted to divide the prisoners into “loyal” and “disloyal” groups and separate them, based on a simple questionnaire. How American! Again, remember that these are US citizens who were not charged with any crimes.

While being rounded up, the Japanese exiles weren’t told where they were going or how long they’d be gone for. They were given a very short period of time to sell their possessions before being interned, so property was usually sold for significantly below market value. In addition, having been forced out of the labor market for several years, Japanese had significantly reduced earnings upon leaving the camps, according to research by Aimee Chin.

“Using individual-level data from the 1970 Census, I find that the labor market withdrawal induced by the internment reduced the annual earnings of males by as much as nine to thirteen percent twenty-five years afterwards. Additionally, internment increased the probability of self-employment, and reduced the probability of holding high-status professional and technical occupations. These findings are consistent with the predictions of an economic model that equates the labor market withdrawal induced by the internment with a loss of civilian labor market experience or a loss of advantageous job matches.”

This study used the youngest birth cohort whose labor would have been affected by internment.

“Older cohorts were probably even more adversely impacted, since they were more likely to be foreign-born, to have held an agricultural occupation prior to internment, and to have owned a farm or small business prior to internment (and therefore possessing more firm-specific human capital).”

All in all, the internment resulted in considerable losses in both property and income for Japanese-Americans.

The experience of life in the camps didn’t help. Families were often split up, and then people were forced to live communally with strangers, including communal latrines without partitions, and communal showers in open areas. There were partitions dividing the rooms most of the time, but they did not extend from the floor to the ceiling. You can easily imagine the privacy issues this would create. Some were housed in animal stables with the stench of manure, and many had no roof. Attempted escape or disobeying orders were punishable by death – and Roger Daniels claims that in at least three separate camps, armed soldiers shot and killed unarmed, incarcerated American citizens.

In the rush to incarcerate such a large number of people, the camps were hastily and shoddily built. Most camps were located in areas with wild temperature changes from day to night and winter to summer. They were located in barren, desolate locations, hardly suitable for the people who were forced to inhabit them.

“In May officials tried to put the best face on the construction of housing and other buildings at the camps. One description called the initial housing “basic”: “That is, the structures are soundly constructed and provide minimum essentials for decent living. As evacuees move in, they will have an opportunity to improve their quarters by their own work.” But feeling pressure from the WRA, civilian construction contractors built the centers very quickly during the spring and summer of 1942. Camp designs were based on military barracks, making them ill suited for family living. And along with the speed came shoddy construction and other deficiencies. A 1943 WRA report described “tar paper-covered barracks of simple frame construction without plumbing or cooking facilities of any kind.” While the spartan buildings may have satisfied international laws, they left much to be desired.

The less than ideal design and construction quality of the housing was magnified by the desert location of the camps. The heat was blistering in the summer and generally came with dust. One internee recalled: “Inside of our houses, in the laundry, in the latrines, in the mess halls, dust and more dust, dust everywhere.” Winters could be equally difficult. For example, at Heart Mountain in northern Wyoming, internees endured temperatures of 30 degrees below zero in the winter. Residents there resorted to banking the earth against their barracks to block the icy winds. The situation was made worse by the hasty evacuation process to the assembly center. Evacuees leaving the milder coastal climate had not been told of their ultimate destinations, and as a result, many failed to pack clothing that would have been appropriate for the bitter desert winters.”

An independent report by someone working in the camps presents a gloomy picture of camp conditions.

“Ralph Smeltzer, a member of the Brethren Church, worked within the camps and produced his own reports documenting the condition of the internees.  His reports present a group of people confined to almost unbearable situations.  Within the April 21, 1942 report, Smeltzer describes how “bathing facilities were quite inadequate, running water was late in being made available and two weeks elapsed before hot water was available.”  In the second report, dated May 5, 1942, a lack of plumbing supplies creates a “serious lack of sanitary facilities” leading to widespread dysentery.  In a third report, dated June 8, 1942, Smeltzer describes a story wherein “some Caucasians set up tables outside the barb-wire fences and handed their Japanese friends additional food over and through the fence.”  None of these conditions are to be found in any War Relocation Authority reports.

In his sixth report, dated November 6, 1942, a full seven and a half months after the camps had opened, Smeltzer describes what continues to provide the internees with low morale and high discontent.  He details how “The rooms are too small.  Two or more families live in many rooms.  An average room is 20 feet by 24 feet” allowing each person in the room a personal space of “4 feet by 20 feet;” the living facilities have “poorly fitting windows and gaping barn-like doors;” “the poorest lumbar is used throughout,” and the “rooms are nearly always cold.”  In essence, living conditions are abhorrent.”

Naturally, this was all done for the sake of “national security.” America was at war, and Japan was the enemy. Of course the Japanese-Americans would be spies, attempting to subvert the war effort! But according to Roger Daniels,

There was not one case of espionage or sabotage by a Japanese person in the United States during the entire war. One West Coast law enforcement officer, California Attorney General Earl Warren, admitted to a congressional committee on 21 February 1942 that there had been no such acts in California, but found that fact “most ominous.” It convinced him that “we are just being lulled into a false sense of security and that the only reason we haven’t had a disaster in California is because it is timed for a different date.” “Our day of reckoning is bound to come,” he testified in arguing for incarceration. Of course, if there had been sabotage by Japanese Americans in California, Warren would have used that to argue for the same thing. As far as Japanese Americans were concerned, it was a no-win situation.”

 

Was It Constitutional?

Those Americans who have a special faith in government because the precious constitution will keep the government honest should study the Japanese internment. It should be obvious to even the most dimwitted American boob that the constitution provided no protection to a huge group of individuals who needed it the most.

Eugene Rostow, an influential legal scholar and former Dean of Yale Law School, wrote a scathing critique of the Supreme Court cases relevant to the Japanese internment. I will draw on his argument heavily here, and I would encourage you to read it yourself if you are into that kind of thing. The emphasis in any quotations included here is mine.

Of fundamental importance to the legal structure of a supposedly democratic society is the relationship between civil and military authority.

“What the Supreme Court has done in these cases, and especially in Korematsu v. United States, is to increase the strength of the military in relation to civil government. It has upheld an act of military power without a factual record in which the justification for the act was analyzed. Thus it has created doubt as to the standards of responsibility to which the military power will be held. For the first time in American legal history, the Court has seriously weakened the protection of our basic civil right, the writ of habeas corpus. It has established a precedent which may well be used to encourage attacks on the civil rights of citizens and aliens, and may make it possible for some of those attacks to succeed. It will give aid to reactionary political programs which use social division and racial prejudice as tools for conquering power.”

As mentioned previously, the internment of the Japanese was justified as a matter of military necessity. Allegedly, spies and saboteurs would be common among the Japanese population. But there was no evidence of Japanese sabotage, and certainly not enough to justify the suspension of habeas corpus, the right to challenge unlawful imprisonment before a court.

“Apart from the members of the group known to be under suspicion, there was no evidence beyond the vaguest fear to connect the Japanese on the West Coast with the unfavorable military events of 1941 and 1942. Both at Pearl Harbor and in sporadic attacks on the West Coast the enemy had shown that he had knowledge of our dispositions. There was some signaling to enemy ships at sea, both by radio and by lights, along the West Coast. It was said to be difficult to trace such signals because of limitations on the power of search without warrant. There had been several episodes of shelling the coast by submarine, although two of the three such episodes mentioned by General DeWitt as tending to create suspicion of the Japanese Americans had taken place after their removal from the Coast. These were the only such items in the Final Report which were not identified by date.” And it was positively known that no suspicions attached to the Japanese residents for sabotage at Pearl Harbor before, during or after the raid. Those subsequently arrested as Japanese agents were all white men. “To focus attention on local residents of Japanese descent, actually diverted attention from those who were busily engaged in espionage activity.””

Even in Hawaii, a far more militarily significant location than the west coast of the mainland US, and even under the martial law that was imposed there, those Japanese who were arrested or interned were done so on an individual basis rather than as a part of a group defined by race. The same was true in France and Great Britain (with respect to their German populations), despite being much closer to the action than America was.

“During the period of three and a half years after Pearl Harbor, military power was installed in Hawaii, constitutionally or not, and the normal controls against arrest on suspicion were not available. The population of Hawaii is 500,000, of whom some 160,000, or 32%, were of Japanese descent. Despite the confusions of the moment in Hawaii, only 700 to 800 Japanese aliens were arrested and sent to the mainland for internment. In addition, fewer than 1,100 persons of Japanese ancestry were transferred to the mainland to relocation centers. These Japanese were arrested on the basis of individual suspicion, resting on previous examination or observed behavior, or they were families of interned aliens, transferred voluntarily. Of those transferred from Hawaii to the mainland, 912 were citizens, the rest aliens. Even under a regime of martial law, men were arrested as individuals, and safety was assured without mass arrests.

In the period immediately after Pearl Harbor there was no special security program on the West Coast for persons of Japanese extraction, and no general conviction that a special program was needed. Known enemy sympathizers among the Japanese, like white traitors and enemy agents, were arrested. There was no sabotage on the part of persons of Japanese ancestry, either in Hawaii or on the West Coast. There was no reason to suppose that the 112,000 persons of Japanese descent on the West Coast, 1.2% of the population, constituted a greater menace to safety than such persons in Hawaii, 32% of the Territory’s population. Their access to military installations was not substantially different in the two areas; their status in society was quite similar; their proved record of loyalty in the war has been the same. Although many white persons were arrested, and convicted, as Japanese agents, no resident Japanese American has so far been convicted of sabotage or espionage as an agent of Japan.

But the courts alleged that it was impossible to investigate individual loyalty in the case of the Japanese – a claim that is clearly wrong. In fact, a major reason the Japanese were targeted was because they were a small enough group to target, unlike the Germans or Italians. You know, the other major Axis powers.

“The second part of the Court’s basic premise of fact was that it was impossible to investigate the question of loyalty individually. As to the validity of this proposition there was neither evidence in the record nor even discussion by the Court to indicate a basis for the conclusion which might appeal to a reasonable man, or even to a choleric and harassed general, faced with the danger of invasion and the specter of his own court martial. The issue was dismissed in a sentence. “We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.” In view of the history of security measures during the war, it would not have been easy to establish strong grounds for such a belief. There were about 110,000 persons subject to the exclusion orders, 43% of them being over 50 or under 15. At the time of the exclusion orders, they had lived in California without committing sabotage for five months after Pearl Harbor. The number of persons to be examined was not beyond the capacities of individual examination processes, in the light of experience with such security measures, both in the United States and abroad…Actually, the exclusion program was undertaken not because the Japanese were too numerous to be examined individually, but because they were a small enough group to be punished by confinement. It would have- been physically impossible to confine the Japanese and Japanese Americans in Hawaii, and it would have been both physically and politically impossible to undertake comparable measures against the 690,000 Italians or the 314,000 Germans living in the United States. The Japanese were being attacked because for some they provided the only possible outlet and expression for sentiments of group hostility.

By the time any cases actually made it to the Supreme Court, the tide of battle had changed and the Allies were winning against the Japanese. The military reality did not justify paranoia against the Japanese. The Supreme Court was tasked not just with seeing whether the concentration camps were allowed when they were made, but also whether they continued to be justified. This makes the failure to strike indefinite detention as unconstitutional all the more bewildering and, dare I say, evil. Instead, the courts basically just abdicated their authority to rule on these kinds of issues.

“In a bewildering and unimpressive series of opinions, relieved only by the dissents of Mr. Justice Roberts and of Mr. Justice ‘Murphy in Korematsu v. United States,”‘ the Court chose to assume that the main issue of the cases – the scope and method of judicial review of military decisions – did not exist. In the political process of American life, these decisions were a negative and reactionary act. The Court avoided the risks of overruling the Government on an issue of war policy. But it weakened society’s control over military authority-one of the polarizing forces on which the organization of our society depends. And it solemnly accepted and gave the prestige of its support to dangerous racial myths about a minority group, in arguments which can be applied easily to any other minority in our society.”

It should be clear that Justice Murphy’s dissent makes far more sense than this. Here it is, so you can judge for yourself:

Being an obvious racial discrimination, the order deprives all those within its scope of’ the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating, them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an ‘immediate, imminent, and impending’ public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.”

Instead, it was held that people with the same race as the enemy constituted a more significant threat than other people (although as discussed before, this was applied inconsistently).

“The “facts” which were thus held to “afford a rational basis for decision” were that in time of war “residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of different ancestry,” and that in time of war such persons could not readily be isolated and dealt with individually…Imagine applying an ethnic presumption of disloyalty in the circumstances of the Revolution or the Civil War! In the World War and in the present war, soldiers who had ethnic affiliations with the enemy-German, Austrian, Hungarian, Finnish, Romanian, Bulgarian, Japanese and Italian-fought uniformly as Americans in our armed forces, without any suggestion of group disloyalty.”

The justification for Japanese internment is all the more awkward considering the precedent set in the Ex parte Milligan case, which determined that the military did not have the constitutional authority to arrest or try civilians when civil courts were available – as they most certainly were in 1942.

“In Ex parte Milligan the Court said that the military could not constitutionally arrest, nor could a military tribunal constitutionally try, civilians charged with treason and conspiracy to destroy the state by force, at a time when the civil courts were open and functioning. Under the plan considered in the Japanese American cases, people not charged with crime are imprisoned for several years without even a military trial, on the ground that they have the taint of Japanese blood. Why doesn’t the Milligan case apply a fortiori? If it is illegal to arrest and confine people after an unwarranted military trial, it is surely even more illegal to arrest and confine them without any trial at all. The Supreme Court says that the issues of the Milligan case are not involved because the evacuees were committed to camps by military orders, not by military tribunals, and because their jailers did not wear uniforms. It is hard to see any sequence in the sentences. The Japanese Americans were ordered detained by a general, purporting to act on military grounds. The military order was enforceable, on pain of imprisonment. While a United States marshal, rather than a military policeman, assured obedience to the order, the ultimate sanction behind the marshal’s writ is the same as that of the military police: the bayonets of United States troops. It is hardly a ground for distinction that the general’s command was backed by the penalty of civil imprisonment, or that he obtained civilian aid in running the relocation camps.

There are then two basic constitutional problems concealed in the Court’s easy dismissal of Ex parte Milligan: the arrest, removal and confinement of persons without trial, pending examination of their loyalty; and the indefinite confinement of persons found to be disloyal. On both counts, at least as to citizens, the moral of Ex parte Milligan is plain. The Milligan case says little about the propriety of a curfew, or perhaps even of the exclusion orders as such. The military necessity of such steps are to be tested independently in the light of all the relevant circumstances. The Milligan case does say, however, that arrest and confinement are forms of action which cannot be taken as military necessities while courts are open. For such punitive measures it proposes a clear and forceful rule of thumb: the protection of the individual by normal trial does not under such circumstances interfere with the conduct of war.

The various Supreme Court cases (Hirabayashi, Korematsu, and Endo, if you’d like to look up these cases on your own) consider military officials as immune from the normal rules of public responsibility. If a General says something was militarily necessary, even though there is no obvious justification – that’s totally cool! The Justices will simply take their word for it, rather than burdening themselves with such silly things as the factual record.

Rostow summarizes fantastically what the Supreme Court decided in these cases. Take a moment to think about the precedent that was set, and how safe it makes you feel.

“The Japanese exclusion program thus rests on five propositions of the utmost potential menace: (1) protective custody, extending over three or four years, is a permitted form of imprisonment in the United States; (2) political opinions, not criminal acts, may contain enough clear and present danger to justify such imprisonment; (3) men, women and children of a given ethnic group, both Americans and resident aliens, can be presumed to possess the kind of dangerous ideas which require their imprisonment; (4) in time of war or emergency the military, perhaps without even the concurrence of the legislature, can decide what political opinions require imprisonment, and which ethnic groups are infected with them; and (5) the decision of the military can be carried out without indictment, trial, examination, jury, the confrontation of witnesses, counsel for the defense, the privilege against self-incrimination, or any of the other safeguards of the Bill of Rights.

We believe that the German people bear a common political responsibility for outrages secretly committed by the Gestapo and the SS. What are we to think of our own part in a program which violates every democratic social value, yet has been approved by the Congress, the President and the Supreme Court?”

The constitution means nothing.

 

Legal Changes Since 9/11

After September 11th, the US government gained broad new powers, such as mass surveillance of American citizens, in order to wage the so-called Global War on Terror. There is some irony to this, of course, with America being the world’s largest state sponsor of terrorism. But what about the power to detain American citizens?

There have been a handful of Supreme Court cases regarding this issue. In a lengthy but fascinating paper from 2006, Aya Gruber provided some analysis into these cases and how they are tied to those made during the Japanese internment (again, the emphasis in quotations is mine).

First of all, there is the issue of race. It is quite clear that Arabs have been singled out in post-9/11 America. And there has been popular support for race-based measures, even by other minorities.

“After 9/11, the government embraced an overt and extensive policy of racial decision making. The government began to use its broad immigration powers to selectively detain immigrants of Arab nationality and ethnicity. In addition, ethnic Arabs were systematically singled out for police investigation and detention…after 9/11, the public generally accepted the propriety of race-based measures in the name of terrorism prevention. Even African Americans and Latinas tended to favor ethnic and racial profiling so long as directed against “terrorists.”

I mention this not to say it is unjustified (one could make an argument that profiling works, but I am not attempting to investigate the accuracy or moral significance of that claim), but to point out that, yet again, the American public is not particularly concerned about peoples’ legal (and moral) rights when they are scared – and fear is a pretty easy emotion to cultivate. It is quite convenient to blame “outsiders” for problems; this has been the case time and again throughout history.

In any case, since 9/11, Arabs have been subject to incarceration without due process and without any compelling reasons to deny them due process.

“Scholars draw upon similar arguments to criticize the detentions of citizen Yaser Hamdi, citizen Jose Padilla, and the Guantanamo prisoners. Experts maintain that, like the Japanese, these individuals have been subject to incarceration with little or no process, without compelling reasons for denying process. Critics reject the government’s contentions that civilian criminal courts are ill equipped to handle terrorism cases and that detainees are not entitled to the protections of the Geneva Convention. Furthermore, scholars are highly critical of the process afforded to individuals who wish to challenge the detention. Although the Supreme Court ruled that Yaser Hamdi was entitled to a low-level evidentiary hearing to contest his status as an unlawful combatant, that process falls far short of even a pretrial detention hearing in criminal court. In addition, while Supreme Court has stated that U.S. courts have jurisdiction over Guantanamo detainees’ habeas corpus claims, the government continues to urge district courts to abstain from hearing such petitions. Moreover, the D.C. Circuit recently ruled that President Bush’s treatment of the Guantanamo detainees was perfectly legal. Internment invocations are accordingly used to emphasize grave harm of process-less incarceration in the name of national security. Critics warn that “some in government are seeking to resurrect . . . Korematsu to justify the Bush Administration’s present day national security curtailment of civil liberties.””

In the case of the Japanese during WW2, military necessity at least seems like a far more reasonable excuse for the curtailment of civil liberties than modern terrorism, though as discussed earlier, it still was not justified then. But at the very least, it is clear that WW2 was a significantly more dire situation, militarily speaking, than we currently face from terrorism.

“Even assuming that current deprivations are not as bad as in World War II, which is not necessarily true, the current security situation is also not as dire as in World War II, which involved an imminent invasion during a world war. The Roosevelt Administration thus set racist and extremely harmful policy in the face of a massive threat. The Bush Administration set racist and harmful, albeit less sweeping, policy in the face of a much less severe threat. In the wake of 9/11, a single attack carried out by a terrorist group, not a nation, the Bush Administration has initiated two wars and detained thousands of individuals.

With that context, let’s turn our attention to what the more recent Supreme Court rulings mean for civil liberties and detention in America. Hamdi vs. Rumsfeld gives the military the latitude to do anything in the name of terrorism that they could if there were a congressionally declared war. And given the extreme ambiguities in the word terrorism, this basically gives the military war authority from here on out. The Authorization for Use of Military Force (AUMF) issued the week after 9/11 basically counts as a general declaration of war until “the terrorists” are defeated.

“…even interpreting the case in the most restrictive manner as requiring both the AUMF (or a legislative equivalent) and factual war-like conditions to trigger war powers, those requirements still fall well short of a formal declaration of war, as contemplated in Hirabayashi, Korematsu, and Quirin. A formal declaration of war requires specificity on the part of Congress, such that congressional intent to engage in combat with a particular country is easily established. The AUMF, by contrast, generally authorizes “necessary” action against those parties responsible for the 9/11 attacks. Construing the AUMF as the functional equivalent of a declaration of war allows the President to exercise war power pursuant to a vague approval of military force against parties yet unknown. Under this approach, any military action in the name of terrorism prevention triggers the same powers as a declared war.

Moreover, a declaration of war contemplates a finite length of conflict, such that when a peace treaty is executed with the particular enemy country, the war power authority generally ends. In contrast, the AUMF is incredibly broad, allowing for the existence of war powers in perpetuity so long as the executive engages in military actions directed against Al Qaeda or related terrorist groups. As a result, the executive can assert, as the Fourth Circuit did, that any military detention in the name of terrorism prevention is an exercise of a war power…The problem is that in the absence of a formal declaration of war, the issue of the conditions triggering war power becomes more open to interpretation and expansion. Hamdi leaves open the possibility that the AUMF allows for military detention power, even when there is little indication of war-like conditions, for example, during continued military occupation, engagement in isolated skirmishes, ongoing police actions, or deployment as peacekeepers…In the end, the Hamdi case leaves open the possibility that war powers can be invoked absent a declaration of war, or even any congressional approval of military action, and/or in the absence of paradigmatic war-like conditions. This is a far more broad construction of “wartime” than in Hirabayashi, Korematsu, and Quirin…By elevating the current terrorism risk to the level of exigency facing the nation during The Prize Cases, the court endorsed the notion that the government may freely ignore the Constitution in any prosecution of alleged terrorists.

The Hamdi case also allows for the detention of US citizens by the military, even if there are civilian courts that are functioning.

“Unlike the internment cases, Hamdi answered the question of whether war power includes the power to detain U.S. citizens militarily in the affirmative, announcing concretely that the government can detain citizens as enemy combatants. The Court unequivocally stated, “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” The Court reasoned that a U.S. citizen, just like a foreign soldier, could be detained during hostilities because “such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.” This reasoning, however, completely ignores the contention, accepted in Milligan, that alternate detention procedures exist for citizens who consort with the enemy. The situation of a U.S. citizen combatant is extremely different from that of a foreign combatant who has not otherwise violated U.S. law and cannot be held except militarily… Consequently, the Supreme Court implicitly sanctioned the view that war powers include the ability to detain citizens for aiding the enemy domestically or abroad. This is a far more direct empowerment of the government, and hence a greater restriction of civil liberties, than the position represented in the internment cases.

So long as the vaguely defined “war on terror” continues, the US military has the authority to detain citizens as enemy combatants so long as they accuse that citizen of being a terrorist. It is very easy to be considered a terrorist in America – disliking the government can be enough. I’ll get into this more later.

The Supreme Court’s decision that the AUMF was sufficient congressional authority for the President to act and for war powers to be invoked is absurd.

“Turning to the language of the AUMF, the legislation is silent on military detention. The legislative history also fails to indicate that by passing the AUMF, Congress intended to authorize any military detention, much less the detention of U.S. civilians. In fact, some legislative history suggests that Congress was keenly aware of the differences between the AUMF and a declaration of war, which triggers presidential war powers. House Representative Conyers, for example, stated, “By not declaring war, the resolution preserves our precious civil liberties. This is important because declarations of war trigger broad statutes that not only criminalize interference with troops and recruitment but also authorize the President to apprehend ‘alien enemies.’”…As a result, the Supreme Court was forced to engage in an incredible feat of interpretive grasping to find that the AUMF authorized Hamdi’s detention. Bypassing both plain language and history, the Court asserted that given the background of the law of war, any authorization of military force must necessarily include endorsement of military detention, even citizen detention.

Thus, like the internment cases, Hamdi did not grant unilateral authority to the President to detain citizens militarily. Unlike the internment cases, however, it expanded the President’s ability to act without specific congressional approval. In the internment cases, the Court was careful to make sure that Congress did actually consent, not just to the war in general, but to the specific policies at issue in the cases. The Court in Hamdi did nearly the opposite. Rather than trying to ascertain the true intent of Congress, the Court was determined to find congressional assent by hook or crook so as to avoid addressing the problematic issue of executive unilateralism. In attempting to avoid the issue, however, the Court generously bolstered the executive’s power. The Court set up a precedent whereby the President may unilaterally initiate a program of citizen detention, which is constitutional so long as there has at some point been congressional authorization of military force against those with whom the citizen is alleged to be a sympathizer.

On the bright side, the process by which detained citizens can challenge their status has arguably improved, at least on the basis of race. But practically speaking, it is still nearly impossible to challenge the status of “enemy combatant.”

“If the government were to use the enemy combatant category to sweep thousands of Arab Americans into military detention asserting that they aided Al Qaeda, Hezbollah, the Taliban, insurgents in Iraq, or other disfavored groups, at least those detainees would have some ability to challenge their statuses as enemy combatants. Remember, however, that internment policies technically allowed the Japanese to demonstrate their loyalty and apply for release. For the Japanese, this was an option, but largely an unexercisable option. Likewise, for potential terrorism detainees, it is a near impossible hurdle for a military detainee (especially if there are thousands) to overcome a presumption of enemy status and disprove conclusory hearsay statements, particularly if such statements involve purportedly sensitive terrorism intelligence.

And, notably, the conditions of detainees in the War on Terror are vastly worse than those of the Japanese who were interned, as deplorable as those conditions may have been. For instance, rectal feeding, waterboarding, sleep deprivation, and other torture tactics you’d expect to see in North Korean prisons. Of course, the extent of the torture wasn’t known when this legal argument was written, but the detention conditions were still clearly terrible.

“Hamdi and Padilla, perhaps as a product of the nonparadigmatic nature of their capture, were separated from members of the forces with whom they were alleged to have associated, stripped of their customs, and held in jail. While such incarceration might be justified if Hamdi and Padilla were dangerous criminal defendants who posed a risk of flight, the government has insisted that the nature of the detentions is not criminal, and the Court expressly ruled that Hamdi’s detention was justified solely by military necessity. The Court, however, did not state that Hamdi’s military detention must accord with the dictates of the Geneva Convention. Obviously, the Court was not unaware that Hamdi had been detained in a jail, in lockdown condition, without any access to family. By endorsing such detention, without qualification, the Court implicitly adopted the more conservative view that military detention could be as, or more, severe than criminal incarceration.

Not only that, but the terrorism cases also allow for much lengthier duration of detention. At least during the Japanese internment, the war was clearly defined and the internment could not continue after the cessation of hostilities.

“Consequently, to avoid sanctioning indefinite detention, it was imperative for the Court to set up a viable proxy for a peace treaty that would signify the termination of war for the purpose of ending the war power. A logical route might have been to deem the regime change as the triggering factor, given that the enemy fighter could not rejoin an army that no longer existed. The Court, however, instead used the presence of troops engaged in fighting to deny that hostilities had ended sufficiently to release military prisoners. Although the Court formally justified Hamdi’s detention by the need to prevent him from rejoining the enemy army, by the time the Court reviewed Hamdi’s case the enemy army had already fallen to U.S. forces. Thus, upon closer examination, the logic of detaining Hamdi was not the stated reason of preventing him from rejoining an enemy army, but rather preventing him from acting on any decision he might make in the future to participate in insurgent activity…The concept that wartime detentions may continue after the fall of the enemy government and installation of a U.S.-friendly government goes beyond the scope of even the Ludecke opinion and certainly beyond the time frame contemplated in the internment cases. The Ludecke opinion approved of limited exercise of war-related police powers in the months following termination of the shooting war. The Hamdi case greatly expands this principle to full detention years after the enemy government has fallen. This broad definition of the length of military detention has precedent neither in domestic law nor customary international law….Had the Court adopted a similar approach after World War II, the United States could have detained “security threats”—for example, unhappy Japanese internees—for many years after the shooting war, so long as the United States continued to maintain troops in Japan. As a result, the Hamdi decision greatly extended the duration of wartime and allowed for the possibility of prolonged, if not indefinite, detention, even if the military to which the detainee belonged had been dismantled.”

To summarize,

“The Court made it much easier for the political branches to exercise war power and detain individuals outside normal criminal processes. It definitively approved of military detention of U.S. citizens, resolving the conflict between Quirin and Milligan in the least progressive way, and cementing the precedential value of the oft-criticized Quirin opinion. While not going so far as granting the executive unilateral authority to exercise wartime detention powers, the Court greatly reduced the role of Congress in authorizing detentions. Relying on the sparse AUMF and the “clear” law of war, the Court required neither explicit nor implicit congressional approval for citizen detention. The Court moreover approved of military detention that was carried out, not according to the dictates of the Geneva Convention, but rather in jails, solitary confinement, and criminal conditions. Finally, the Court’s “troops on the ground” analysis allowed military detention to be prolonged beyond what was contemplated in the World War II cases and possibly indefinitely.”

 

The Constitution: Basically Worthless

People might look back at the internment of the Japanese in concentration camps and write it off as a piece of history that could never be repeated in a Free CountryTM such as America, certainly not in days like these, where the public is more progressive and enlightened. But the legal situation today is actually far worse than it was during WW2, and it would be trivially easy for a return of concentration camps – or worse, under the right conditions.

Now, I’m not the kind of person who is going to claim that there will be FEMA death camps in America in the next few years or anything like that. But those who do believe this are hardly the crackpot conspiracy theorists that your average American makes them out to be. The fact is, mass indefinite detention of American citizens without charge by the military is something that would be completely legal for the US government to do. The National Defense Authorization Act has made it clear that the US government has the “right” to indefinitely detain American citizens without charge.

Woodrow Wilson imprisoned Socialist Party leader Eugene V. Debs simply because Debs had been making speeches against the war. Abraham Lincoln imprisoned Confederate sympathizers without trial. Those Presidents who have done this are some of the most celebrated ones in US history! Former Chief Justice William Rehnquist, in his 1998 book, stated that “There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.” And current Supreme Court Justice Antonin Scalia remarked that you are “kidding yourself” if you don’t believe that internment camps will one day return to America.

This shouldn’t be all that surprising to anyone at this point. Obama, a scholar on constitutional law from Harvard University, has ordered the murder of multiple American citizens without trial. And other than a handful of anti-drone activists, Americans have accepted this uncritically and even supported it. And why wouldn’t they? Anything to stop The Terrorists!

Of course, it’s pretty easy to be considered suspicious of being a terrorist these days. I’ll quote myself here:

“…it is very easy to be considered an “extremist” or a “suspicious” person by the US government. For instance, the FBI considers people who care about online privacy to be potentially suspicious of terrorist activity, and even likened pro-privacy supporters of Edward Snowden to a “digital al-Qaeda.” And here is a list of 72 ways the government can consider you an “extremist” in America, including talking about individual liberties, wanting to make the world a better place, being a returning veteran, and believing in a right to bear arms.”

Remember the precedent that the internment cases set: political opinions, not just overt criminal acts, are enough to justify a citizen being detained during wartime – which, nowadays, is all the time. Given the powers of mass surveillance that the government has now that were completely unavailable in the 1940s, this should be a terrifying prospect for every American. And consider this: the Department of Defense Law of War manual states that journalists can be considered “unprivileged belligerents,” giving them even fewer protections than enemy combatants!

In 2012, there was a leaked military document called “Army Field Manual 3-39.40: Internment and Resettlement Operations” which provides specific guidance for interning Americans on US soil – including how to silence political activists.

Clearly, the constitution of the United States does not offer the protection that so many people assume. No constitution can. For a constitution to work, there would need to be an adequate mechanism in place to ensure compliance with it, but this is not and cannot be the case. No other organization has the power to coerce the government itself, so the government is responsible for enforcing its own compliance with the words on a piece of paper. The Supreme Court cases regarding Japanese internment and detaining “terrorists” have clearly demonstrated that this simply isn’t going to happen.

Democracy in general is a utopian myth, but that is particularly evident in the United States.

Comments

  1. Thomas Simmons says:

    I agree with what you have written. Now Trump’s people are talking about doing this with Muslims (American or otherwise). I feel like I’m living with Alice in Wonderland.

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