Los Angeles Daily Journal
December 18, 2001
Exposing Ashcroft’s Ethnic Dragnet: U.S. Treatment of Middle Eastern Residents Mirrors the Fate of Those with Japanese Heritage
By Jessie Allen
The Justice Department says there is legal precedent for the President George Bush s order of secret military tribunals for non-citizens suspected of terrorism. Indeed there is. But the most relevant case may be one the government is ashamed to mention.
The president s lawyers have cited Ex Parte Quirin, a Supreme Court case involving WW II military tribunals, but some conservative legal groups are pointing to another decision from that era that may be even more apropos. The case is Korematsu v. United States. It is no surprise that the Bush Administration hasn’t cited Korematsu, as it concerns one of the most horrifying mistakes our government every made. Korematsu is the decision upholding the internment of Japanese Americans during WW II because they were considered a security threat.
The case is now generally recognized as a dreadful judicial failure to defend civil liberties and principles of equal protection. While the court did acknowledge that evicting Japanese citizens from their homes was “inconsistent with our basic governmental institutions,” a majority nevertheless approved the racial internment: “when under conditions of modern warfare our shores are threatened by hostile forces.”
Congress has long since issued a formal apology and paid reparations to the Japanese families whose lives were blighted by the internment. Nevertheless, the high court’s approval of that shameful policy has never been formally overruled. Subsequent cases have simply never required it. There is no reason, legally, why the Bush Administration couldn’t take a cue from its outside supporters and defend its order with the court’s holding in Korematsu. The case still stands as good law. But of course doing so would expose the chilling similarities between this policy and the Japanese internment.
In conjunction with the Administration’s mass round-up and interrogations of Arab and Muslim men, the Bush order authorizing military tribunals for noncitizens does look more like the sickening racial policy upheld in Korematsu than the facts of Quirin, which involved an order by President Franklin Roosevelt authorizing trials by military tribunal after the capture of eight Nazi saboteurs. The Bush decree, in contrast, comes in the midst of an ethnic dragnet.
The Administration has already arrested more than a thousand mostly Middle Eastern men and is seeking to interview thousands of others. In most cases, the government is refusing even to publish their names, let alone the charges against them. Each now faces the threat of being sent to a foreign country or a ship somewhere in the middle of the ocean, tried in secret,20and, potentially, executed, if the Justice Department should accuse him or her of terrorism or, in the order’s vague terms, of harboring someone who conspires “to cause injury to or adverse effects on the United States.”
This is ethnic profiling with a nightmarish twist. Not only does nationality and religion subject people to criminal investigation, those accused are put beyond the pale of the constitution unless they happen to be U.S. citizens.
In Korematsu, the justices refusal to stop the racial relocations was based on their unwillingness to second-guess the military judgment that the Japanese minority constituted a threat to public safety. Like Japanese-Americans in WW II, Middle Eastern non-citizen residents of the United States now face indefinite detention far from their homes, imposed on the say-so of military officials. The parallel between the situation of Middle Eastern residents under Bush’s order and the fate of Japanese Americans in World War II should have made the president and his Justice Department shrink from such a policy. But apparently it only makes them hesitate to name the infamous case that supports it.
ABOUT THE AUTHOR
Jessie Allen is a staff attorney at the Brennan Center for Justice at New York University School of Law.