[Part 1: Reliving History]

[Part 2: The Historical Precedent]

[Part 3: The Legal Battles]

Part 4: The Cloud Over the Law
The lingering shadow that was cast on American law by the Japanese-American internment camps was foreseen in Justice Jackson’s Korematsu dissent, in passages that would have an especially prescient ring after Sept. 11:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

What the Japanese-American internment revealed for the first time was a hole in the traditional checks and balances of constitutional powers. In wartime, the total deference to the executive branch would lend it nearly comprehensive powers. The post-Sept. 11 response has opened another dimension to this: If wartime — as in the “War on Terror” — becomes itself a never-ending enterprise, then the executive branch’s power becomes potentially illimitable.

Up to the edge of that hole in the Constitution, the Bush administration has driven a large bus called “enemy combatant status” and parked it. It now sits, idling.

As reporter Charles Lane recently explained in the Washington Post, the Bush administration’s creation of this status actually creates a parallel legal system with secret courts that ultimately are only accountable to the president himself: “For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen’s home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it.”

Ultimately, the president himself would be the person making the call on just who qualifies as an “enemy combatant.” And what would be the Bush administration’s criteria for making these decisions?

“There won’t be 10 rules that trigger this or 10 rules that end this,” explained Solicitor General Theodore Olson in the Post. “There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances.”

The administration already has come under fire from numerous quarters over its assertion of these powers, which came this time in the form of a Nov. 13, 2001, Military Order creating the “Military Commissions” that could arrest “enemy combatants,” including American citizens. Besides the JACL and various Islamic-American groups, some of the most vigorous dissent has come from the American Bar Association, which has pointedly questioned how citizens can be held without the right to an attorney, or for that matter without any kind of judicial review.

Legal scholar Anita Ramasastry explored the dangers posed by the Bush policies last year in a FindLaw commentary that pointed out that while the White House so far has relied on another Supreme Court precedent, Ex parte Quirin — which dealt with Americans arrested on the battlefield — to justify its actions, these also closely resemble the Korematsu matter: “[In] both cases, the government arrogated itself the right to detain — and detain indefinitely — without court review of its decisions as to who should be detained.”

It’s understandable why the administration would avoid raising Korematsu in its defense, of course. The ruling is widely considered — alongside Dred Scot and Plessy v. Ferguson — one of the three great blots on the history of the Supreme Court, tragic mistakes that were undone by later generations.

Moreover, it is nearly certain that even the current Supreme Court would reject any case that relied on Korematsu as a precedent; eight of the sitting justices have at various junctures written on the inappropriateness of the ruling, and the ninth — David Souter — simply hasn’t had an opportunity to weigh in. Korematsu may still stand as a precedent, but it would almost certainly be finally, and officially, overruled by the Supreme Court were it ever to be brought before the body again.

On the other hand, as the Center for Constitutional Rights’ legal scholars have argued (in a report titled “American Justice on Trial: Who Loses in the Case of Military Tribunals?”), the Ex parte Quirin decision upon which the government is relying “simply cannot be credibly stretched to cover the present circumstances given current facts and the clear principles of the international law of war” — and pointed out that it, like Korematsu, is now “widely recognized as an abysmal model of fairness and justice.”

Among the organizations that have challenged the administration’s actions in court has been the D.C.-based Center for National Security Studies. Its president, Kate Martin, has testified repeatedly on the hill, pointing out that there hasn’t been any actual justification for undercutting basic rights: “While some have cast the terrible situation we find ourselves in today as one in which we must decide what liberties we are willing to sacrifice for an increased measure of safety, I do not believe that is an accurate or helpful analysis,” Martin told the Senate. “Before asking what trade-offs are constitutional, we must ask what gain in security is accomplished by restrictions on civil liberties.”

In this regard, the Japanese-American internment may offer an instructive example. Was it worth it? The answer: A clear no.

The FBI and other authorities, for instance, seized a total of 2,592 guns, 199,000 rounds of ammunition, 1,652 sticks of dynamite, 1,458 radio receivers, 2,914 cameras, and 37 movie cameras from the Issei whose homes and businesses they raided in the early hours after Pearl Harbor. But there was nothing indicating that any of these items were for anything other than personal use. As the Justice Department explained in its report: “We have not, however, uncovered through these searches any dangerous persons that we could not otherwise know about. We have not found among all the sticks of dynamite and fun powder any evidence that any of it was to be used in bombs … We have not found a camera which we have reason to believe was for use in espionage.” After the war, an Army historian declared: “In fact, no proved instances of sabotage or of espionage after Pearl Harbor among the west coast Japanese population were ever uncovered.”

Indeed, federal authorities already had made the assessment that the Japanese posed no threat to the security of the nation. Some months before the war arrived, President Roosevelt had secured the services of Chicago businessman Curtis Munson in coordinating an intelligence report on Japanese in the United States. Munson’s report, delivered on Nov. 7, 1941, couldn’t have been more clear: “There will be no armed uprising of Japanese [in the United States] … For the most part the Japanese are loyal to the United States or, at worst, hope that by remaining quiet they can avoid concentration camps or irresponsible mobs. We do not believe that they would be at least any more disloyal than any other racial group in the United States with whom we went to war.”

Moreover, military strategists at the War Department were well aware that the Pacific Coast was under no serious threat of being invaded or under any kind of sustained attack. General Mark Clark, then the deputy chief of staff of Army Ground Forces, and Admiral Harold Stark, chief of naval operations, both ridiculed the notion of any kind of serious Japanese attack on the Pacific Coast when they testified that spring before a Senate committee, though Clark (who had spent several years as an officer at Fort Lewis, Washington) did admit that the possibility of an occasional air raid or a sustained attack on the Aleutian Islands “was not a fantastic idea.” Secondarily, DeWitt’s clamorous appeals for devoting badly needed troops for the defense of the West Coast were dismissed by War Department officials who knew better; to the planners there, preparing an offensive army for operations in Europe and the Pacific, such requests were self-indulgent wastes of their time.

The overwhelming weight of the postwar evidence is that the internment prevented very little, if any, sabotage or espionage. Moreover, even beyond its transparent unjustness, the damage to the integrity of the Constitution, and the dangerous precedents it set, the internment of the Japanese-Americans was an unfathomable waste. It demonstrably undermined the war effort, and proved not to be worth a penny of the billions of taxpayer dollars it wasted.

In addition to the hundreds of millions of dollars the actual enterprise itself cost — rounding up 120,000 people by rail car and shipping them first to “assembly centers”; building ten “relocation centers” in remote locales, and then shipping the evacuees into them; maintaining and administering the centers for another three years, which included overseeing programs to help internees find work outside the camps; feeding the entire population of internees during this time; and then helping them to relocate near their former homes once the camps closed — there were $37 million more in initial reparations costs in 1948, and then $1.2 billion more in the later reparations approved by Congress in 1988.

At the same time, the Japanese on the Pacific Coast, who occupied some 7,000 farms in the “Military Exclusion Zone,” actually were responsible for the production of nearly half of all the fresh produce that was grown for consumption on the Coast (the Japanese also shipped out a great deal of produce to the Midwest and East). Indeed, Nikkei farms held virtual monopolies in a number of crops, including peppers, snap beans, celery and strawberries, and a large portion of the lettuce market.

When these farmers were rounded up and interned, a handful of enterprising whites decided to try running their farms with the hope of making a killing from the crops. But labor was so short that not one of these enterprises lasted beyond about five weeks, and none of them had a successful harvest. Nearly all of these farms lay fallow for the next four years. This major loss of production of fresh vegetables clearly harmed the war effort on the home front, and played a significant role in triggering the rationing that came during the war years.

The situation of the Nikkei community in 1942, of course, is only roughly analogous at best to that of Muslim Americans in 2003. The relative economic positions of the two communities are different, as are their numbers and distribution. Where the Nikkei population was primarily concentrated along the Pacific Coast in 1942, Muslims are in virtually in every community in America. Moreover, while connections between some of these American Muslims and Al Qaeda are nearly certain, the likelihood that any of them are actually terrorist operatives is a matter of guesswork at best.

There are other important differences as well: Because the Nikkei community was compromised of Issei immigrants who by law could not become citizens and their mostly underage Nisei children, Japanese-Americans had virtually no political franchise to speak of in 1942. Arab- and Muslim-Americans, on the other hand, comprise substantial voting blocs in the current political environment. Moreover, there are Arab-Americans who hold high positions in the Bush administration, including Energy Secretary Spencer Abraham, which should help militate against any kind of roundup of Arabs (though it should be noted that Muslims, in contrast, are notably absent from any positions of power anywhere within the GOP).

There are, in any case, no guarantees of success with such vast social enterprises as interning entire racial or religious populations, and their costs are extraordinarily high — particularly the damage to the integrity of the Constitution. There is a high likelihood that a Muslim-American internment would be every bit as wasteful, and probably as fruitless, as its 1942-45 counterpart.

So far, the Bush administration has wisely refrained from even suggesting such a course (though Ashcroft did call for smallish internment camps for “enemy combatants”). At the same time, it has followed the same path as FDR by placing in the hands of the military the legal and bureaucratic wherewithal to intern large numbers of civilians, perhaps even entire ethnic or religious populations — depending, as it happens, on the whim of the president. And it is clear the court precedents would support such an action.

“They can basically do it unchecked,” says John Tateishi. “Look, I’m a Democrat. I would feel just as alarmed and concerned if this were President Clinton, asking for such extreme powers and authority. And Janet Reno and the Department of Justice having the authority to identify individuals and solely on the word of the attorney general this person is suddenly categorized as an enemy combatant, who then could ultimately end up executed. There’s no way to stop the process.

“It’s a really disturbing time in terms of the political power that’s being given to the administration — and not just because it’s this particular president or this particular attorney general, although quite frankly, that has a lot to do with my thinking. But I don’t think any president or attorney general ought to have that kind of unprecedented power.”

Next: Dangling on the Brink

(More from David Neiwert can be found at his personal site, Orcinus.)