Korematsu and the 2012 National Defense Authorization Act

I’ve gotten a couple of questions recently about what’s going on with the 2012 National Defense Authorization Act, the failed Udall Amendment, and the history of the Korematsu case and Japanese-American internment so I’m going to try to sort that out a little, starting with Mr. Korematsu.

Fred Korematsu was a US citizen born in California. He tried to enlist in the military when the US entered World War II. He was turned down because he was Japanese-American. So he worked as a welder in the shipyard in the docks in Oakland, up until they decided they didn’t like his Japanese ancestry and fired him. Then in February 1941 President Franklin Roosevelt signed Executive Order 9066, which authorized the US military to remove over 120,000 people of Japanese descent from their homes and put them in camps. The majority of those interned were American citizens.

Fred Korematsu obviously didn’t want to go to the internment camp, so he did not report as directed. He was arrested and convicted of violating the order and interned first in California and then in Utah. He brought suit saying that Executive Order 9066 violated the 14th Amendment.

In December 1944, Japanese-American internment officially ended. In the same month, the Supreme Court ruled against Mr. Korematsu with a majority opinion by Justice Black, saying that Executive Order 9066 was justified due to the need to protect against espionage and did not violate the 14th Amendment because it served a compelling government interest and was narrowly tailored to meet that interest. The issue in Korematsu v. United states came down to balancing the difficulties of separating the loyal from the disloyal against the issues around interning all Japanese-Americans.

The president can issue executive orders to detain people indefinitely in the same way that he can issue executive orders about anything else. The question is whether a particular order is lawful, not whether they are allowed in general.

However, no president has issued an executive order of this type since Roosevelt’s order to intern Japanese-Americans.

The decision in Fred Korematsu’s case was 6-3, allowing Japanese-American internment.

The dissenting opinion by Justice Murphy illuminates the anti-Japanese bias of the decision. He criticized the evidence, saying it was “misinformation, half-truths, and insinuation.” He said the order was racist and violated the rights of Japanese-Americans, and noted that no one was trying to intern Americans of German or Italian descent.

It is worth noting that Mr. Korematsu’s loyalty to the United States was never raised as an issue.

Justice Jackson’s dissent illuminates the issue going forward:

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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

This brings us to the National Defense Authorization Act of 2012. Every year we have a National Defense Authorization Act which specifies the budget and expenditures of the Department of Defense. The one for 2012 is like 900+ pages, so I haven’t read the whole thing or even most of it, but I’ve probably read at least as much as most of your reps did. Most of this is probably standard boring paperwork, but this year there’s a provision that would allow for the indefinite detention of American citizens without charge or conviction if they are suspected of involvement with terrorism as well as a bunch of other ugly stuff about treatment of detainees in Guantanamo, by which I mean people the United States government is holding without charge or trial, which mostly says that they’re not going anywhere. And this is enough of a reason to be furious, because our government has circumvented justice in the name of the war on terror and this detention violates our most basic Constitutional principles. Anyway, back to the part where this actually hits American citizens.

Section 1031 explicitly grants authority to detain people. It doesn’t say anything about citizenship.

Section 1032 states that citizens are exempt from mandatory military detention.

It’s nice to be a citizen, right? Here’s the catch. 1031 puts detention on the table for citizens, and makes it optional. It’s mandatory for lawful permanent residents and anyone captured abroad, but it’s optional for US citizens.

You’re not going to be the one who gets to opt.

This brings back the possibility of internment (you know, like in Guantanamo), not directed at Japanese-Americans this time but for anyone who is “suspected of terrorism”. This is being played like it’s a necessary part of the War on Terror and will only be directed against people suspected of involvement in the 9/11 attacks, but… well, here’s the text:

(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

My concerns are “associated forces” “hostilities against the United States” and “belligerent acts”. That’s very vague and could easily be abused, like there’s not enough abuse of power right now already. Associated forces? Hostilities? Belligerent acts? That’s broad. Definitely broad enough to be worried about chilling free speech and freedom of association.

The next section after these two goes on to enshrine in the law that people detained at Guantanamo have no rights, will never have any rights, and are not entitled to even very basic protections like habeas corpus. It’s very sad to me that people are totally flipping out about the first two that might expand detention, but not about how people already in detention are being treated.

Along the same lines, this pushes a future where the military become the police force and court system. I hope I do not need to remind anyone that the purpose of the military is to deal with enemies of the state, so when the military become the police then the citizens become the enemy of the state.

I also tend to think that there’s something deeply wrong with the United States government creating little zones of exemption to the Constitution, where they have power but not responsibility and people under their jurisdiction have no protections. I think that this undermines the entire point of the Constitution: if you can carve out exceptions, then you can just carve out the whole thing and it might as well not exist.

Obama has indicated that he will veto the National Defense Authorization Act over these provisions, 1031 and 1032, but it might be good to nudge him about it because he says lots of things.

It also wouldn’t hurt to let your representatives know how you feel about their votes.

Here’s some links to contact your representatives, which will take you less time than you just blew reading my stupid blog post.

Here is a link to your senators’ contact information.

Here is a link to your house reps’ contact information.

Here is a link to contact President Obama and Vice-President Biden.

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