Criminal Justice Magazine; Summer 2002; Volume 17 Issue 2

Profiling in the Wake of September 11: The Precedent of the Japanese American Internment

By Frank H. Wu

The internment of Japanese Americans during World War II is the obvious precedent for the treatment of Arab Americans and Muslim Americans in the aftermath of the September 11, 2001, terrorist attacks. Whether the example should be followed or avoided and what it means generally, however, remains a subject of controversy. The ambivalence is not surprising, because judgments about the internment have vacillated between strong approval and equally strong disapproval. Advocates for the internment during World War II invoked national security and opponents of it in a more recent era appeal to civil rights, but the dialogue over it has rarely proceeded beyond the superficial level. The internment has been the most studied aspect of Asian American history, but it deserves greater consideration by all citizens who care about the proper course of conduct during the present crisis.

[As far as the material I have read on the post-Sept. 11, 2001 environment, I have found almost no references that tie in the internment during WWII. Or at least none I can give any credibility to. I have read and seen some things about the government supposedly secretly construction internment camps for the future for gays/criminals/political opponents/whoever, but none of those seem trustworthy.]

At the time, virtually everyone in public life supported the mass incarceration of approximately 120,000 men, women, elderly, and children, some two-thirds of them native-born U.S. citizens. There were no criminal charges brought against them, no trials before juries, and no findings of guilt before almost all persons of Japanese descent on the West Coast were ordered, in many cases on only a few days’ notice, into camps built in desolate swamp and desert areas. Allowed to take only what they could carry in what was euphemistically termed an "evacuation," they remained behind barbed wire, under the watch of armed soldiers in guard towers.

[The article fails to distinguish between viewpoints of people on the West Coast vs. those of people elsewhere in the U.S. The West Coast had been prejudice against Orientals for decades and many were virulently opposed to the presence of persons of Japanese ancestry in their states. Nothing I have read on this subjects supports the idea, though, that the rest of the people in the country felt the same way. The ones on the East Coast, for instance, were more concerned about Nazis landing which did, in fact, happen in a tiny number.]

President Franklin Delano Roosevelt signed the executive order authorizing the internment to proceed. (Exec. Order 9066, 7 Fed. Reg. 1407 (Feb. 17, 1942).) Congress subsequently passed a public law ratifying his action with no deliberation. (Pub. L. No. 77–503, 56 Stat. 173 (1942).) The Supreme Court took four cases in which it effectively allowed the internment without ever directly passing on the constitutionality of the indefinite detention of persons based on racial suspicion. Future Chief Justice Earl Warren, then a California politician, favored the plans. Erudite newspaper columnist Walter Lippmann did so as well.

[Walter Lippman was one of those who really hated the persons of Japanese ancestry.]

Others were even more vociferous. Journalist Westbrook Pegler proposed a "reprisal reserve" from which Japanese Americans might be taken out and shot in retaliation for Japanese war atrocities. (Roger Daniels, Concentration Camps, North America: Japanese in the United States and Canada During World War II, 33 (Krieger Publishing Co. 1993).)

Even the national ACLU refused to challenge the internment, because it backed President Roosevelt on other policies. Its California chapters broke away, taking on that responsibility. Chinese Americans and Korean Americans did their best to distinguish themselves from Japanese Americans. They posted signs and wore buttons that read, "Chinese, not Japanese" and "I hate the Japs more than you do." Only a few individuals and organizations, such as the pacifist Society of Friends (Quakers), sided with Japanese Americans.

The internment can be readily critiqued in retrospect because the racial prejudice was open. After all, this was still the "Jim Crow" era, as ushered in by the Supreme Court’s approval in Plessy v. Ferguson, 163 U.S. 537 (1896), of the doctrine of racially "separate but equal." Even the United States Army was explicitly segregated. The pro-internment sentiments fit into the same pattern. The commander of the Western Defense, Lieutenant General John L. De Witt, opined bluntly that "A Jap’s a Jap and that’s all there is to it." As the chief proponent of the internment, he made clear that he meant Japanese Americans, because "in the war in which we are now engaged racial affinities are not severed by migration" and "the Japanese race is the enemy race." Even with Americanization, "racial strains are undiluted." Japanese Americans would be a problem until all Japs were "wiped off the map."

[Some sections have been left out here and in other places.]

Meanwhile, according to its detractors, the Japanese American Citizens League (JACL) urged its members to obey the government. Trying to make the best of a bad situation and with limited options, according to JACL leaders, they repeated mainstream assertions that Japanese Americans ought to comply with military orders to display their allegiance. Causing much lingering bitterness that has persisted to the present day, their acquiescence was expressed in their creed of "better Americans in a greater America."

At heart, the internment was the association of Japanese Americans with the Japanese Empire. Although the shock, anger, and fear generated by the devastating strike on Pearl Harbor was perhaps natural, the displacement of those volatile emotions on Japanese Americans, who made up less than 1 percent of the population of California, the state in which they were concentrated, depended on assumptions about ancestry. What Japan had done was blamed on Japanese Americans. After the day of infamy, they became officially "enemy aliens" in the eyes of other Americans. Citizenship ceased to matter. The justification of the internment as employing ethnicity, rather than race, as the dispositive issue is unpersuasive. The category of "Japanese" was at the time less an ethnicity than a race. Ethnicity only became a common term as a euphemism for race; and in any event ethnicity is only slightly less crude but no less immutable than race, for both are rooted in the idea of "blood" determining identity.

There were spectacular allegations made at the time—all of them eventually proven to be unfounded—that Japanese Americans had planted their crops in Hawaii to point toward targets to be bombed; that Japanese Americans had used amateur radio signals to direct Japanese ships; and that pilots on the Zero fighter planes wore sweatshirts from United States high schools. Others said that Japanese Americans blocked the roads to prevent rescue vehicles from passing and that they were lacing their produce with poison before sending it to the markets. Japanese Americans were rumored to have formed a "fifth column" that would enable Japanese troops to invade triumphantly.

Strangely, the internment cases appear to have evaded the most basic question. That question is whether it is constitutional to order the mass incarceration of persons as to whom no individual showing of guilt has been made, ostensibly because of national security, though also with the use of racial classifications. The internment proceeded in stages, however, and not all at once. The Court was able to take up cases that addressed the preliminary phases, delaying addressing the camps themselves until the government had ordered their closure.

[Keep in mind that the people interned were not charged with any crime. No warrants were used to force them off their property and into the camps. Only a very tiny number tried any legal actions and for a good while those were failures.]

The time did not soon come to "decide the serious constitutional issues" and the Court could scarcely have concealed the fact that it would never come. The Korematsu case was handed down the same day as the Endo case. The timing of both decisions was delayed, perhaps through coordination with the political branches, until the camps were scheduled to cease their operations, a process that would take more than a year. ( Korematsu had already been remanded to the circuit court of appeals earlier for unrelated reasons, meaning that the tide of war had turned between the inception of the case and its reappearance on the Supreme Court’s docket.) In Endo, 323 U.S. 283 (1943), on a writ of habeas corpus, the Court held on statutory and not constitutional grounds that the petitioner was "entitled to an unconditional release" as someone whom the government conceded was loyal. By that reasoning, presumably Endo (and thousands of others) could have left of her own accord at any time. In other words, the internment had been unauthorized.

The inconsistencies of the internment become apparent if the territory of Hawaii is considered. If the internment was warranted, it should have been instituted in Hawaii with greatest priority because Pearl Harbor had occurred there and it sat within the theater of operations. Although such a possibility was briefly considered, it was quickly dismissed. Locking up Japanese Americans in Hawaii would have meant that a third of the population, and the bulk of the workforce on the plantations that were the mainstay of the islands’ economy, would be removed. The need for workers and the profits they produced trumped racial hatred. The military, as well, was not interested in the task of rounding up and shipping out thousands of civilians.

Nor is the internment excused because during war people suffer. Japanese Americans, like all Americans, endured the uncertainty of the conflict and the deprivations on the homefront. Japanese Americans bore an extra burden: They lost their jobs, their homes, their possessions, their pets, and their liberty—not because of the hostile actions of a foreign power, but due to the needless and racially selective policies of their own government.

All Americans had their rights curtailed to an extent, but Japanese Americans had their rights denied in a severe manner. Contrary to the impressions conveyed by the mass media, Japanese Americans did not sit out the war in the comfort of luxurious camps. They, too, gave their lives in a profound sacrifice to demonstrate that they were loyal; families and communities felt the same loss of war casualties. The racially segregated 442nd Regimental Combat Team and 100th Battalion became the most highly decorated units of their size and length of service in U.S. history. The 442nd rallying cry was "go for broke" and its troop insignia read, "Remember Pearl Harbor" as it campaigned in France, Italy, and Germany, taking on suicide missions. Other Japanese Americans served as interpreters, translators, cartographers, military intelligence analysts, and in various support roles, working throughout the Pacific region and behind the scenes in the United States.

Almost a half-century later, when compensation for the internees was being debated, a few members of Congress insisted that Japanese Americans should not be paid until Japan made amends to United States prisoners of war. They still equated Japanese Americans with Japan.

By and large, though, the contemporary conception of the internment has been negative. Our national memory until recently has been radically different from the outlook of the World War II era. After a lengthy period when most Americans forgot about the internment and even many Japanese Americans felt shame over their fate and strove to overcome its effects, a consensus gradually developed that it had been a mistake.

The events of September 11, 2001, have prompted further reconsideration. Politicians, pundits, and a majority of the population have embraced diversity at least on the surface. Other than a few ideologues, who foresee an ultimate "clash of civilizations," and a handful of extremists, nobody has described the war on terrorism as a war against all Arabs or all Muslims. Regardless of partisan affiliation, most leaders have taken pains to disavow such notions.

All the same, respected voices are being raised for racial profiling and the rhetoric of welcoming all races and religions may not match the reality of law enforcement. Syndicated columnist Stuart Taylor, Jr., among others, has argued that at airport checkpoints, individuals who are Arab- or Muslim-appearing should be subjected to more intensive searches.

[There is also the numerous charges of people being arrested for at least harassed for DWB which means Driving While Black, where blacks are often pulled over by police if they are diving a fancy car but white people, driving the same type of car, are not pulled over.]

It turns out, once again, to be easy enough to surrender the civil rights of somebody else. Oddly, few have bothered to explain how or why racial profiling would be effective. The tension between national security and civil liberties is taken for granted. Yet the national security side of the equation is speculative and rests on the familiar warning that if this war is lost there will be no rights or liberties for anybody at all. Even those who embraced color-blindness, primarily in attacks on racial remedies, have given up their beliefs. Whatever the pros and cons of racial profiling, color-blindness and racial profiling are inherently incompatible.

Some opinion polls even suggest that African Americans, long victims of racial profiling in domestic criminal prosecutions and despite their protests about the "driving while black" problem, are just as willing as everyone else to adopt racial profiling of Arab Americans and Muslim Americans as potential terrorists. Bush administration Transportation Secretary Norman Mineta has been assailed for his refusal to direct the racial profiling of Arab Americans and Muslim Americans at airport checkpoints. The Cabinet member has even been mocked for recalling his own experience as a Japanese American, interned as a child of eight.

The condemnation of the internment may lead to the condoning of milder measures in the classical fallacy of false alternatives. Anything short of an internment is compared to the internment, as if to say it could be worse and so there is no cause for complaint. To be fair, racial profiling can be carried out in a much milder form than internment camps. To be precise, the current secret detentions are best likened to the apprehension of hundreds of Japanese Americans, German Americans, and Italian Americans and the curfews and other measures that preceded the internment itself.

In that context, the conclusion that the internment was wrong is not enough. The reasons it was wrong must be articulated again. As lawyers well know, the rationale may be as important as the result by itself in comprehending the meaning of legal authority. What is constitutional is not necessarily advisable. Technically, for all the contempt directed at the Supreme Court’s internment cases, it is worth noting that the decisions have never been repudiated and actually have been followed consistently. Indeed, Chief Justice William H. Rehnquist penned a book a few years ago intimating that if a similar matter were to come before the Court again he would not expect it do otherwise. (William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (Knopf 1998).)

Imagining the counterfactual hypothetical of a Supreme Court that struck down the internment, then, also entails supplying an intellectual foundation. There are multiple possibilities. They lead to different outcomes in today’s circumstances. If the internment was wrong because racial classifications are to be regarded as immoral or unconstitutional as an absolute rule, then there is no distinction to be made between Japanese Americans on the one hand and Arab Americans or Muslim Americans on the other hand. The form of the argument does not vary by specific groups.

If the internment was wrong because the particular racial generalization was in the aggregate false, then it may well be possible and appropriate to distinguish between the Japanese Americans and Arab Americans or Muslim Americans. The premise is that the conduct of Japanese Americans on the whole does not predict the conduct of Arab Americans or Muslim Americans on the whole.

There are more possibilities. If the internment was wrong because of the lack of any semblance of due process, then even the German Americans and Italian Americans in isolated cases had their rights violated. Individual Arabs and Muslims who are aliens may be entitled to more due process than equal protection.

If the internment was wrong because it yields other social costs that were not properly weighted in a utilitarian calculus, then all such factors should be taken into account. The incentives created by racial profiling for its subjects may be considerable. Some Arab Americans and Muslim Americans, like anyone else, might be more eager to cooperate with patriotic efforts if they did not have the sense that war was being waged on a racial or religious ground. Even the suggestion that people should tolerate modest impositions is galling, because it is only some persons, already marginalized, who are imposed upon. What looks like a light touch to observers can feel like an awfully heavy hand to those who feel it.

With its strict scrutiny standard, developed in the internment cases, the Supreme Court in practice has compromised between form and fact. The application of strict scrutiny is demanding of the government. It places the burden on the state and requires both a legally sufficient "compelling interest" and a factually sufficient "narrow tailoring" (or "least restrictive means" fit) of the means to that end. But strict scrutiny is neither wholly abstract nor entirely empirical. It is not quite a per se rule prohibiting any and all racial classifications.

The trouble is not solely academic. Most Arab Americans are not Muslim; most Muslims in the United States are South Asian or African American; and the post-September 11 backlash of violence has revealed our collective carelessness in assaulting Indian Sikhs—neither Arab nor Muslim but persons who look like they might be Arab or Muslim because of skin color, accents, and dress.

It is true even if it became a cliché instantly, that our nation was changed profoundly on September 11, 2001, and will never be the same again. It also is true, even if less noticed, that our nation is as it was, a diverse democracy, and those twin values of diversity and democracy are enduring ideals that are worth fighting for. The bumper sticker slogan and sound bite "United We Stand" has become popular. If it is to be a reality, more than a bumper sticker slogan and sound bite, we all must stand up and speak out, and that each of us stand alongside, by, and for somebody else who does not look like us.

Frank H. Wu , a law professor at Howard University in Washington, D.C., is the author of Yellow: Race in America Beyond Black and White. Reference librarian Luis Acosta provided research support for this article.

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