Operation Protect and Defend 2017 Program. WWII: The Japanese-American Internment Cases

Transcription

1 A Commitment to Civic Education by Attorneys, Teachers and the Judiciary Operation Protect and Defend 2017 Program This year marks the 75th anniversary of Executive Order 9066 and the subsequent internment and incarceration of Japanese-Americans under that order Election Campaign. During the 2016 presidential election campaign, President Donald Trump said he would consider requiring all Muslims to register in a national database and even supported internment. He pointed to the internment of Japanese-Americans during World War II by President Roosevelt (Good Morning America Interview, December, 2015) and President George W. Bush s National Security Entry-Exit Registration System (NSEERS) program (ABC News, November, 2015) as precedent for the internment and registration of Muslims. During the campaign, Trump also called for rounding up and deporting 11 million undocumented immigrants and an additional 4.5 million American citizens born to immigrant parents. (60 Minutes, September, 2015) Parallels to these concepts have been drawn to the incarceration of Japanese-Americans during World War II and the lessons learned from that experience. WWII: The Japanese-American Internment Cases On December 7, 1941, the Empire of Japan destroyed much of the American Pacific fleet in a surprise attack on Pearl Harbor. The next day, the United States declared war upon Japan. On February 19, 1942, concerned about a potential Japanese invasion of the West Coast, President Franklin D. Roosevelt signed Executive Order , which authorized military commanders to define military areas and impose any restrictions or exclude anyone from those areas. 1 Internment is a legal term for wartime incarceration of enemy soldiers and selected enemy alien civilians under the Alien Enemies Act. During World War II, the government subjected Japanese-Americans to two main types of incarceration: the forced relocation to camps in the interior of the United States of about 120,000 persons of Japanesedescent, the majority of whom were American citizens, under Executive Order 9066; and the internment of several thousand Japanese immigrants under the Alien Enemies Act by the Justice Department. These two terms are often confused. 2 An executive order can be issued by the President to agents of the executive branch and has the full force of law. It can also be subject to review by the U.S. Supreme Court. Operation Protect & Defend 1 The Japanese Internment

2 Executive Order 9066 Executive Order 9066 authorized the Secretary of War to designate certain areas as military zones to provide every possible protection against espionage and against sabotage to the national defense. Although persons of Japanese descent were not mentioned in the order, it set the stage for their exclusion from these areas and their imprisonment and forced relocation from the West Coast which was designated, in large part, a military zone. The order read, in pertinent part: I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area herein above authorized to be designated including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies. I hereby further authorize and direct all Executive Department, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and service. In March of 1942, Congress passed a law making violation of any restriction imposed by military commanders a misdemeanor crime, subject to fine and/or imprisonment. General John L. DeWitt, the Military Commander for the Western Defense Command, defined the entire West Coast as a military area and imposed a curfew on all people of Japanese ancestry, and later ordered them removed from the area and incarcerated in camps away from the coast and Sacramento. Under Executive Order 9066, the West Coast community of over 120,000 persons of Japanese descent was incarcerated, over 70,000 of who were U.S. citizens. Under the Alien Enemies Act, the Justice Department separately interned several thousand selected Japanese immigrants. Outside of California, approximately 2,000 non-citizen Italian nationals were interned out of a population of 695,000 and approximately 11,000 non-citizen German nationals were interned out of a population of 1.2 million. At the time of the war, the population of Hawaii, over 423,000, was over 40% Japanese-American yet only a small percentage was interned. Operation Protect & Defend 2 The Japanese Internment

3 Civil Liberties: Vocabulary and Concept List Civil Disobedience: Concurring Opinion: Dissenting Opinion: Due Process: Equal Protection: Executive Order 9066: Habeas Corpus: Remand: Resident Alien: Vacate: War Powers: Operation Protect & Defend 3 The Japanese Internment

4 Vocabulary and Concept List: Teacher Reference Sheet Civil Liberties: certain rights guaranteed to United States citizens by the Constitution s Bill of Rights. These rights include the right to not have your home searched without a court order, to not be taken into police custody without probable cause, to not remain in police custody without a hearing, and in a very basic sense to live freely without undue government intrusion Civil Disobedience: non-violent acts that violate a law that the person considers unjust, in order to challenge its validity or otherwise gain public support for changing the law Concurring Opinion: the written opinion of a Supreme Court justice who agrees with the outcome of the Court s decision, but offers alternative reasoning for the outcome Dissenting Opinion: the written opinion of a Supreme Court justice who disagrees with the Court s majority opinion Due Process: the right of citizens to not have liberty or property taken away without a fair hearing or a compelling and explainable government reason, based on the Fifth Amendment Equal Protection: the right of each citizen of the United States to enjoy the same benefits, protections and responsibilities under the law, based on the Fifth and Fourteenth Amendments Executive Order 9066: order by President Roosevelt authorizing exclusion of anyone the military deemed a risk from military areas, which led to the Japanese-American mass incarceration Habeas Corpus: Latin, translates into bring forth the body. Habeas Corpus is the right of a person to a court appeal to test the legality of an imprisonment or detention. The Constitution prohibits suspension of this right, unless when in cases of rebellion or invasion the public safety may require it. Remand: the order of an appellate court that tells the lower court what to do after the appellate court has reviewed and overturned the lower court s action Resident Alien: a person who legally lives in the United States but is not a citizen Vacate: act of an appellate court when it overturns and invalidates a lower court decision War Powers: the power of the President to act as commander-in-chief of the military, including expanded authority to act with fewer checks and balances during war; and the power of Congress to declare war and otherwise enact laws to defend the nation Operation Protect & Defend 4 The Japanese Internment

5 Minoru Yasui In December of 1941, Minoru Yasui, the first Japanese-American to challenge the military actions, refused to comply with an evening curfew imposed on people of Japanese ancestry. Yasui violated the curfew order and requested that he be arrested so that he could test its constitutionality. The Constitution allows a curfew to be imposed on citizens in time of war. The trial court ruled that the curfew was unconstitutional as applied to United States citizens, but convicted Yasui because it determined that Yasui had renounced his citizenship by working for the Japanese consulate. The Supreme Court upheld the conviction but disagreed with the trial court, stating that the curfew was constitutionally appropriate for American citizens in times of war. Who Was Minoru Yasui? Minoru Yasui was one of four young Japanese-Americans who challenged parts of the U.S. Government s World War II incarceration under Executive Order 9066 and took their cases all the way to the Supreme Court. Yasui intentionally violated the Government s nighttime curfew on all people of Japanese ancestry regardless whether they were citizens or not. After police officers refused to arrest him on the street, he turned himself into a police station so he could challenge the Constitutionality of the Government s actions against Japanese people. His personal history may give you some hint of why he would ask to go to prison. American Citizen: Attorney: Army Officer: Christian: Born in October 1916 in Hood River, Oregon. (He was in his 20 s during WWII.) Earned his undergraduate (1937) and law degree (1939) at the University of Oregon and joined the Oregon Bar. However, no Portland law firm would hire him so he moved to Chicago to work for the Japanese Consulate. He quit that job one day after Japan attacked Pearl Harbor, to rejoin the U.S. Army. Volunteered for ROTC at University of Oregon in Received a commission in the Army Infantry Reserve as a second lieutenant in The day after Pearl Harbor was attacked, he tried to leave Chicago to return to his base, but the ticket agent refused to sell him a ticket because he was Oriental. Several days later, the Army sent him a telegram ordering him to report for duty at Fort Vancouver. Before his formal induction, however, the Army decided that he was unacceptable for service and ordered him off the base. He returned eight times to offer to serve, but was refused each time. Although Yasui grew up in the Methodist Church, the federal judge questioned him closely about the Shinto religion practiced in Japan, which worships the Emperor as a god. Yasui denied any Shinto beliefs. Operation Protect & Defend 5 The Japanese Internment

6 Patriotic: Father Interned: Challenged Government order to reclaim and defend his status as American citizen. In his view, sacrificing his fundamental rights of citizenship might contribute to the destruction of the very fundamental basis of this country. Tried to convince other young, jailed, Japanese-American draft resisters to join the American Army. Not long after the attack on Pearl Harbor, Yasui s father, who had immigrated from Japan to the U.S. 33 years earlier was arrested and interned under the Alien Enemies Act by the Justice Department for allegedly supporting Japan. Yasui tried to serve as his father s attorney, but the Government did not allow his father to have an attorney at the hearing where he was classified as disloyal on little more than the fact that Japan had given him an award for being a leader in his Oregon community. His father remained in detention until Operation Protect & Defend 6 The Japanese Internment

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8 A Sacramento connection: Mitsuye Endo Mitsuye Endo, an American citizen of Japanese ancestry living in Sacramento, California, could not speak or write Japanese. She worked at the Department of Motor Vehicles. Her brother served in the U.S. Army. In 1942, Endo voluntarily submitted to the military order that removed her from Sacramento and ultimately placed her in a War Relocation Authority camp in Utah. Endo s attorney filed a writ of habeas corpus arguing that she was a loyal and law abiding U.S. citizen who faced no charges and that she was unlawfully detained and held against her will. The War Relocation Authority conceded that she was a loyal and law-abiding citizen and offered to release her if she stayed out of California. Endo refused release so that the U.S. Supreme Court would take her case. Her case was decided the same day as Korematsu below. The Justices in Endo s case unanimously ruled that the U.S. government could not continue to detain a citizen who was concededly loyal to the United States. The Court held: Congress never authorized long-term detention of Japanese Americans, only exclusion. The Executive Orders never used the language of detention, but talked only of exclusion from military areas. Thus, we must assume that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used. Ms. Endo s continued detention was neither authorized nor justified by the urgency of war and she must be given her liberty. A citizen who is concededly loyal presents no problem of espionage or sabotage. The authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded. Constitution gives Congress and the President wide latitude to deal with the wartime issues. However, the Constitution is equally specific in providing procedural safeguards surrounding the arrest, detention and conviction of individuals, including that no person shall be deprived of liberty without due process of law. Endo must be freed. Operation Protect & Defend 8 The Japanese Internment

9 Background of the Case Korematsu v. United States (1944) 323 U.S. 214 Shortly after the attack on Pearl Harbor, President Roosevelt authored Executive Order No. 9066, granting the Commanding General the power to promulgate military orders to wage war. These orders required persons of Japanese descent: to be excluded from certain West Coast areas; to report at temporary detention centers and then to be imprisoned in War Relocation Authority camps. Most of the people who were imprisoned lived on the West Coast and two-thirds were American citizens. Over the course of about 14 weeks, the military transported more than 120,000 people to 26 sites in seven western states. Fred Korematsu, 23, was an American citizen of Japanese descent who did not comply with the order to leave. After his arrest, while waiting in jail, he decided to allow the American Civil Liberties Union to represent him and make his case a test case to challenge the constitutionality of the government s order. He was tried in federal court and convicted of remaining in a military area contrary to military orders issued pursuant to Executive Order He was given five years on probation and sent to an assembly center in San Bruno, California. Korematsu s attorneys appealed the trial court s decision to the U.S. Court of Appeals, which agreed with the trial court that he had violated military orders. Korematsu asked the Supreme Court of the United States to hear his case. On December 18, 1944, a divided Supreme Court ruled, in a 6-3 decision, that the detention was a military necessity not based on race. Court Ruling The Supreme Court upheld Mr. Korematsu s conviction finding that the Executive Order and subsequent act of Congress were aimed at the twin dangers of espionage and sabotage. The Court went out of its way to state that its ruling was not based on racial antagonism: Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. The Court stated [l]ike curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. The Court accepted the government s claim that it was impossible to bring about an immediate segregation of the disloyal from the loyal. Operation Protect & Defend 9 The Japanese Internment

10 The Court stated: Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Concurrence Justice Frankfurter concurred deferring to the President and Congress with regard to waging war. He quoted Chief Justice Hughes that the war power of the Government is the power to wage war successfully. Dissent Justices Roberts, Murphy and Jackson dissented. They felt that the military orders were confusing and contradictory. Justice Murphy also wrote separately. He felt that the exclusion goes over very brink of constitutional power and falls into the ugly abyss of racism. He stated 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. He pointed out that [n]o adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. He called the majority opinion the legalization of racism. Justice Jackson also wrote separately finding that there was no evidence at all that their orders were done out of military necessity. He seemed to foresee the future effect of the majority s holding: 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. Reopening the Case In 1983, a pro bono legal team with new evidence re-opened the 40-year-old case in a federal district court on the basis of government misconduct. They showed that the government s legal team had intentionally suppressed or destroyed evidence from government intelligence agencies reporting that Japanese Americans posed no military threat to the U.S. The official reports, including those from the FBI under J. Edgar Hoover, were not presented in court. On November 10, 1983, Judge Marilyn Hall Patel overturned Korematsu s conviction in the same San Francisco courthouse where he had been convicted as a young man. The district court ruling cleared Korematsu s name, but the Supreme Court decision still stands. Operation Protect & Defend 10 The Japanese Internment

11 Political Cartoon Analysis: 1. What prior knowledge do you need to have to understand the cartoon? 2. What is the topic of the cartoon? 3. What is the cartoonist s message about this topic? Operation Protect & Defend 11 The Japanese Internment

12 CONFISCATIONS FROM JAPANESE-AMERICANS DURING WORLD WAR II by Richard Lawrence Miller (c) 2001 Richard Miller Internment was publicized as a national security measure responding to a military threat. Contemporary observers, however, wondered if internment was actually directed against an economic threat that some Americans saw in fellow Americans of Japanese descent. One half of employed Japanese-Americans on the West Coast were in agriculture. They were the largest force in California's fruit and vegetable markets; agricultural experts expected thirty-five percent of California's 1942 truck crops to come from Japanese-Americans. Japanese-American farms in 1940 were worth $72 million plus $6 million in equipment. Per acre their farms were worth $279.96, in contrast to the average value of $37.94 for all California farms. "I find no popular demand for the efforts to drive the so-called alien enemies from California," said one indignant attorney. "The clamor seems to come from chambers of commerce, Associated Farmers, and the newspapers notorious as spokesmen for reactionary interests. In view of this fact, effort should be made to determine whether there is any connection between the clamor for the dispossession of the Japanese farmers and the desire of these clamoring interests to get possession of the Japanese farms and the elimination of the Japanese competition." The attorney's analysis was shared by others. "The great cry of 'Kick the Japanese out of the Yakima Valley' is not due to fear of sabotage, it is due to economic reasons. As one person naively explained to me, 'The white farmer would have more land and more water if he could get rid of the Japanese, and he could demand a higher price for his farm produce.'" An editorial in Christian Century warned against "action whose real end is the destruction of Japanese competitors of American firms." The Japanese-American Citizens League in Seattle reported "agitation being conducted by interests which would profit from removal of Japanese." The Grower-Shipper Vegetable Association was frank on this point: "If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either." Attorney General Francis Biddle told President Roosevelt, "Various special interests would welcome their [Japanese-American] removal from good farm land and the elimination of their competition." Said one Monterey County farmer about the exodus of Japanese-Americans, "We can go out to our American farmers and from a patriotic standpoint, if nothing else, get them to take up any part of the acreage that the canners deem sufficient or necessary to maintain California's position in the production of canned tomatoes." The California Evacuated Farms Association of the U.S. Farm Security Administration helped farmers acquire property of Japanese-American competitors. This help apparently included "special loans." A victim described how such loans could work. "Negotiations were made through the Farm Security Administration to then sell the crop and all farm equipment to a Caucasian. A loan was secured by this Caucasian to pay Manhichi for the agreed price. Before the loan arrived, Manhichi was sent to the Walerga Assembly Center [a minimum security prison]. The Caucasian... returned the loan to the Farm Security Administration, clearing himself of his debt.... To this day, my dad never received a penny from that particular sale." Operation Protect & Defend 12 The Japanese Internment

13 Japanese-American Internment Key Quotations General John L. DeWitt (Army Officer who ordered Japanese-American mass incarceration under Executive Order 9066) Final Report: Japanese Evacuation from the West Coast (War Department, 1942): Racial affiliations are not severed by migration. The Japanese race is an enemy race and while many second - and third-generation Japanese born on United States soil, possessed of United States citizenship, have become Americanized, the racial strains are undiluted. It then follows that along the vital Pacific Coast over 112,000 potential enemies, of Japanese extraction, are at large today. There are indications that these were organized and ready for concerted action at a favorable opportunity. The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken. California Governor Earl Warren, Los Angeles Times, June 22, 1943: Releasing the Japanese Americans back to the West Coast would result in widespread sabotage and a second Pearl Harbor in California. Supreme Court Justice Frank Murphy, Concurring Opinion, in Ex Parte Endo: [R]acial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people. President Franklin Delano Roosevelt, Statement, creating Japanese-American 442nd Regimental Combat Team, February 1, 1943: No loyal citizen of the United States should be denied the democratic right to exercise the responsibilities of his citizenship, regardless of his ancestry. The principle on which this country was founded and by which it has always been governed is that Americanism is a matter of the mind and heart; Americanism is not, and never was, a matter of race or ancestry. Marion Weddell, letter to President Roosevelt, Dec. 23, l942: We were told these relocation camps were not for internment but for refuge. Did the W.R.A. really have the power to intern American citizens? Is it reasonable for Japanese Americans to be interned and Germans and Italians, not? Is not the very essence of our democracy that we are made up of all races and colors? We are all tied together by the idea of democracy. That is what all our boys are fighting and suffering for. If we cannot all stand before the law in equal liberty and freedom to live our lives regardless of race, creed, or color then WHAT PRICE DEMOCRACY? Congressman John Coffee, December 8, 1941: It is my hope that residents of the U.S. of Japanese extraction will not be made victim of pogroms directed by self-proclaimed patriots and by hysterical self-anointed heroes... Let us not make a mockery of our Bill of Rights by mistreating these folks. Let us regard them with understanding, remembering they are victims of a Japanese war machine, with the making of international policies of which they had nothing to do. Operation Protect & Defend 13 The Japanese Internment

14 Day 2: Key Quotations: Japanese-American Internment Read the quotations from the 1940s regarding the incarceration of Japanese-American citizens. Consider all that you have learned from the Constitution about civil liberties, and respond to TWO of the quotations. On what grounds would you challenge the speaker and what did you find particularly compelling about each quote? Operation Protect & Defend 14 The Japanese Internment

15 Political Cartoon Analysis: 1. What prior knowledge do you have that helps you understand this cartoon? 2. What is the topic of the cartoon? 3. What is the message of the cartoonist about this topic? Operation Protect & Defend 15 The Japanese Internment

16 Proposal for Muslim Registry Key Quotations Presidential Candidate Donald Trump, December 8, 2015, to Time magazine on whether he would have supported or opposed the internment of Japanese Americans during World War II: I would have had to be there at the time to tell you, to give you a proper answer, he said during a recent interview in his office in New York City. Presidential Candidate Donald Trump, Interview with NBC News, November 20, 2015: I would certainly implement [Muslim databases]. Absolutely," Trump said in Newton, Iowa, in between campaign town halls. There should be a lot of systems, beyond databases. We should have a lot of systems. When asked whether Muslims would be legally obligated to sign into the database, Trump responded, "They have to be they have to be." Utah Attorney General Sean Reyes, November 21, 2016: When President Ronald Reagan signed the Civil Liberties Act in 1988, apologizing for the Japanese internment during World War II, it was a significant acknowledgment of the humiliation, degradation and pain suffered by thousands in the Japanese-American community, including some of my own friends and family. These were loyal American citizens stripped of their rights, freedom, and hardearned property based solely on heritage. Reference to the Japanese internment as a legal prerogative for any policy is offensive and counter to the highest ideals to which we aspire as a nation. I join in President Reagan s past recognition of the injustice of the Japanese internment, as well as in President-elect Donald Trump s rejection of the formulation of a registry or system that tracks individuals based on their religion. Like many Americans, I am gravely concerned about national security and the threat of radical groups that would do us harm. And, collectively, we will continue to grapple with difficult decisions balancing the safety of our country and the liberties to which we are all entitled. The justification for whatever policies we adopt cannot be rooted in the Japanese internment or any of the other darkest mistakes in our nation s history, from slavery and segregation to sterilization and extermination. These are not the ideals of a free people. Kansas Secretary of State Kris Kobach, Reuters interview, November 16, 2016: To implement Trump's call for "extreme vetting" of some Muslim immigrants, Kobach said the immigration policy group could recommend the reinstatement of a national registry of immigrants and visitors who enter the United States on visas from countries where extremist organizations are active. Kobach helped design the program, known as the National Security Entry-Exit Registration System, while serving in Republican President George W. Bush's Department of Justice after the Sept. 11, 2001, attacks on the United States by al Qaeda militants. Carl Higbie, Great America PAC spokesman appearing on Fox News, November 17, 2016: Discussing plans for a Muslim registry, "We've done it based on race, we've done it based on religion, we've done it based on region," he said. "We've done it with Iran back a while ago. We did it during World War II with [the] Japanese." Operation Protect & Defend 16 The Japanese Internment

17 Day 3 Key Quotations on Proposal for a Muslim Registry Read the quotations from the past 12 months. Consider what lessons may have been learned during World War II from the internment experience. Now select two quotes and respond to each speaker. On what Constitutional and historical grounds might you challenge the speaker and what did you find compelling about each of the quotes? Operation Protect & Defend 17 The Japanese Internment

18 Do The Internment Cases Still Matter Today? World War II may seem like a long time ago. It ended more than 70 years ago, an event remembered firsthand only by our grandparents or other distant ancestors. However, upon further reflection, there may be some obvious connections between then and now. When the United States Government incarcerated over 120,000 persons of Japanese ancestry both immigrants and American citizens born in this country the country feared imminent attack, after the Empire of Japan executed a sneak attack on our nation s navy at Pearl Harbor. The United States Army claimed at the time that Japanese people living here might be spying to aid Japan. As a result, they were interned without trials at camps across the country, to prevent them from helping Japan. Their detention was upheld by the Supreme Court of the United States in a series of decisions called the Internment Cases. After 9/11. Almost 60 years later, the government reacted differently after the terrorists attacked the United States on 9/11. The government asked the public not to attack or condemn all Arabs or Muslims simply because the terrorists who had launched the 9-11 attacks were Arab and Muslim. With substantial international and domestic support, the United States sent the military to attack the Taliban government in Afghanistan and Iraq which had supported the terrorists. Congress also passed the USA PATRIOT Act which gave federal law enforcement the tools it requested to prevent another terrorist attack. The Act s passage provoked criticism that it potentially violated Constitutional rights, such as the right to avoid unreasonable search and seizures. What are enemy combatants? The government started imprisoning alleged terrorists on its naval base at Guantanamo Bay, Cuba. Most were captured in Afghanistan during the war and flown to Guantanamo. The government claimed a right to incarcerate the prisoners without a trial because they were enemy combatants. However, one of these combatants was captured in this country, but placed in military custody. Through the efforts of lawyers fighting for these prisoners Constitutional rights, federal courts all the way up to the Supreme Court began hearing cases challenging their imprisonment. On June 28, 2004, the Supreme Court issued three decisions, including Hamdi v. Rumsfeld below, that upheld the prisoners right to a hearing, albeit in some cases more limited than a full-blown trial. Some parts of those decisions actually referenced the Internment Cases that were decided six decades earlier. These 2004 decisions show that the United States still has not resolved the tension between Constitutional rights and the government s war powers. A later 2006 decision, Daud v. Gonzales, seemed to foreshadow President-Elect Trump s proposed Muslim database. Operation Protect & Defend 18 The Japanese Internment

19 Hamdi v. Rumsfeld (2004) 542 U.S. 507 Background of the Case One week after 9/11, Congress passed a law allowing the President to use all necessary and appropriate force against nations, organizations, or persons associated with the attacks. Yaser Hamdi, an American citizen raised in Saudi Arabia, was captured in Afghanistan and detained at a naval brig in South Carolina. The Government classified him as an enemy combatant and had held him for over two years prior to the Supreme Court ruling. The Government claimed that it could hold him indefinitely--without formal charges, proceedings or right to counsel--unless and until it makes the determination that access to counsel or further process is warranted. Court Ruling The Supreme Court recognized the tension between the authority the Government needs to pursue a particular goal (e.g., military action) and the due process to which a citizen is entitled under the Constitution. The Court held that Mr. Hamdi was entitled to notice of the factual basis for his classification, and a fair opportunity to rebut the Government s factual assertions before a neutral decisionmaker. The Court was concerned about separation of powers: In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. The Court reiterated that detention may last no longer than active hostilities but recognized that the practical circumstances of a given conflict [may be] entirely unlike those of the conflicts that informed the development of the law of war Concurrence Justice Souter agreed with the Court s decision but wrote a separate opinion concurring in part and dissenting in part, noting that Congress had repealed the Government s authority to detain anyone reasonably thought to be a spy without a hearing because Congress wanted to avoid a repeat of the incarceration as described in Korematsu. Operation Protect & Defend 19 The Japanese Internment

20 Dissent Justice Scalia, joined by Justice Thomas and Justice Souter (in part) felt that the Government s only recourse was to either institute criminal proceedings for treason or for Congress to suspend the writ of habeas corpus (which it has very rarely done.) Justice Thomas believed that Hamdi s due process rights had to give way to the Government s overriding interest in protecting the Nation. Background of the Case Daud v. Gonzales (2006) 207 Fed. Appx. 194 Mohammad Daud had filed for asylum, claiming that he would be persecuted if he was sent back to Pakistan. He challenged the denial of his asylum petition, claiming that the program that had brought him to the government s attention, the National Security Entry Exit Registration System (NSEERS), was unconstitutional. NSEERS was a program implemented by the Bush administration after 9/11 requiring immigrants from certain predominantly Muslim countries to register with the government. Daud complied and claimed that the program violated his rights to equal protection under the Fifth Amendment s Due Process Clause. Court Ruling The court denied his request holding that it did not have jurisdiction to consider his claim because of deference to both the executive and legislative branches in immigration affairs. The court held that the classifications drawn by the NSEERS program cannot in any way be characterized as outrageous such that the program would be unconstitutional. The court held that NSEERS did not discriminate on the basis of religion but simply made distinctions based on nationality or place of origin. Operation Protect & Defend 20 The Japanese Internment

21 Obama administration ending program once used to track mostly Arab and Muslim men By Kevin Liptak and Shachar Peled, CNN Updated 2:23 PM ET, Thursday, December 22, 2016 Washington (CNN) The Obama administration said Thursday it was ending a dormant program that once was used to track mostly Arab and Muslim men. "The Department of Homeland Security is removing outdated regulations pertaining to the National Security Entry-Exit Registration Systems (NSEERS) program, with an immediate effective date," said Neema Hakim, a department spokesman. The program was suspended in Hakim said the "intervening years have shown that NSEERS is not only obsolete, but that its use would divert limited personnel and resources from more effective measures." President-elect Donald Trump has suggested instituting a program that would track Muslim immigrants to the United States. Trump adviser Kellyanne Conway said on CNN's "New Day" Thursday that Trump would not pursue a ban on Muslim immigration to the US based only on religion. "You're going back to over a year ago in what he said about the (Muslim) ban versus what he said later about it, when he made it much more specific and talked about countries where we know that they've got a higher propensity of training and exporting terrorists," she told CNN's Chris Cuomo after he prodded her to share more details of Trump's plan. New York State Attorney General Eric Schneiderman on Wednesday called on Obama to dismantle the NSEERS program. In a letter addressed to Obama, Schneiderman wrote that NSEERS, created after the September 11, 2001, terror attacks, did not reduce terrorist activity and instead "undermined trust" in law enforcement and instilled fear in some communities. "We can't risk giving President-elect Trump the tools to create an unconstitutional religious registry," Schneiderman said in a separate statement. Schneiderman praised Obama's decision Thursday. "This is a win for civil rights and for smart, effective law enforcement, as well as for the strong coalition of advocacy organizations and others who fought to dismantle this discriminatory tool," he said. "My office will continue do everything it can to protect the rights of all New Yorkers, and ensure equal justice under the law for all, regardless of religion or national origin." New York City Mayor Bill de Blasio also hailed the program's end. "The program was a failed counterterrorism tool, was highly discriminatory, and led to widespread fear and needless dislocation of families across the United States," he said in a statement. Operation Protect & Defend 21 The Japanese Internment

22 Last month, nearly 200 organizations, led by the American-Arab Anti-Discrimination Committee (ADC), asked Obama to abolish the program before he leaves office. NSEERS, sometimes called "Special Registration," was a program for registering and monitoring non-citizen visa holders -- such as students, workers and tourists -- that President George W. Bush's administration enacted a year after the 9/11 attacks. The program affected males 16 or older from 25 countries. With the exception of North Korea, all the countries on the list were Arab or had majority Muslim populations. Proponents of NSEERS said it was necessary to identify and capture terrorists who might enter the country on false pretenses or who were already living in the United States. Critics said it disproportionately targeted Arabs and Muslims, caused widespread fear within those communities and needlessly punished immigrants. The program targeted men "regardless of whether they were suspected or accused of any wrongdoing," Schneiderman's statement said. By 2011, nearly a decade after the program was enacted, NSEERS had not resulted in a single terrorism conviction. The Department of Homeland Security determined in 2011 that the program was "redundant and did not provide any increase in security," Hakim said. The Obama administration took all 25 countries off its list, but left its primary structure intact. The ADC on Thursday issued a statement applauding the Obama administration's decision to end the dormant program and vowing to counter any similar programs that Trump may impose. "The community cannot be at ease; the next administration has indicated that they will consider implementing similar programs," said Abed Ayoub, ADC legal and policy director. "We will work twice as hard to protect our community and ensure such programs do not come to fruition." Operation Protect & Defend 22 The Japanese Internment

23 George Takei Warns Against Trump Surrogate s Japanese-American Internment Comments By Hilary Weaver, November 18, 2016, 10:53 AM Japanese-American actor George Takei has spoken out against Donald Trump supporter Carl Higbie s controversial comments on The Kelly File earlier in the week. Higbie received criticism after he told host Megyn Kelly that World War II era Japanese-American internment camps serve as a precedent for establishing a national Muslim registry. We ve done it based on race, we ve done it based on religion, we ve done it based on region, Higbie said. We ve done it with Iran back back a while ago. We did it during World War II with Japanese. Takei, whose family was interned in 10 barbwire internment camps when he was a child, spoke to The Hollywood Reporter about Higbie s alarming argument that the proposed registry holds constitutional muster based on those two historical examples. The Japanese-American internment was an egregious violation of our national values and principles, a terrible event for which Congress apologized in 1988, Takei said. To invoke that dark chapter as a precedent for any action against any minorities today is a morally bankrupt and dangerous step, completely out-of-bounds with contemporary notions of civil and human rights. Takei stressed the importance of telling stories like his own, saying that the more people hear them, the more they will understand how vital it is that we remain vigilant and not let history repeat itself. Trump s rhetoric and plans to profile Muslims indicate that he has not learned the folly of the internment, nor the forces of fear and prejudice that propelled it, Takei said. Per T.H.R., the actor also invited elected officials to a screening of his Broadway show Allegiance, which details Takei s experiences with internment camps in the U.S. after Pearl Harbor. Operation Protect & Defend 23 The Japanese Internment

24 The Decision to Incarcerate Japanese-Americans: A look from both sides of the fence Answer the following questions based on the readings: 1. Summary of Internment Cases 2. Who Was Minoru Yasui? 3. Articles on Muslim registry and ban What was the reason given in Korematsu for the forced removal of Japanese-Americans? Does the same reasoning apply to German-Americans or Italian-Americans? Why do you think Japanese-Americans were treated differently? What steps did Minoru Yasui take to challenge Executive Order 9066? Explain the relationship of his loyalty to the American government and his civil disobedience. Did the Hamdi case expand or curtail the rights of enemy combatants? How difficult is it to determine when hostilities have ceased? What Constitutional powers does a President have regarding war? Did the Supreme Court expand the powers of the President with their decisions in any of these cases? What reasons have been given for creating a Muslim database? Are these the same reasons as for the incarceration of Japanese-Americans? What effect does the Daud case have on such a program? For each of the cases, answer the following: a) What argument was made in each case? b) Specifically, what due process violations occurred? (Cite the U.S. Constitution) c) What was the legal argument offered by the U.S. Supreme Court in their decision and how did they support that decision based on the law? Operation Protect & Defend 24 The Japanese Internment