The Japanese Internment, the Constitution, and Our Present Predicament

While it was largely forgotten in the immediate aftermath of the Second World War, in recent decades the internment of Japanese-Americans during that war has become one of the most regularly discussed (or, at least, one of the most regularly taught to students) issues related to the war. It is often used by individuals of a certain temperament and character to prick the balloon of “good war” mythology which has sprung up around World War Two.

Some have gone to somewhat insane lengths to make this point, for reasons that are there own. One suggested “lesson plan” for High School teachers suggests that they have their students, “create a chart comparing Japanese-American internment and Nazi concentration camps. ” While it is certainly possible that such an exercise could be extremely useful in contrasting relatively benign American actions with horrific Nazi ones, knowing what I do about the state of present-day public schools, I very much doubt if that is the intent.

It is my belief that the internment of Japanese-Americans during the War was Constitutional in principle, but that it was often conducted in an extra-legal and extra-constitutional fashion, the excesses of which are only partially mitigated by the war situation as it existed at the time. This was also, as it happens, roughly what the Supreme Court ultimately decided.

Ruling in Ex Parte Mitsuye Endo 323 U.S. 283 (1944) the Supreme Court declared that:

A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.

I’ve cited these words before, in discussing the corrective power of American democracy noting that, “once the emergency had passed, (the system) corrected its abuses .” This, however, makes a second point, one which is of even greater importance: the court explicitly did not rule that such detentions were, in principle, unconstitutional but rather that these specific detentions had been carried out in such a manner which exceeded the powers of the War Relocation Authority. In fact, in ruling upon the case, the court explicitly declined to take up the Constitutional issues which had been raised by counsel for Mitsuye Endo, noting that, “in reaching that conclusion we do not come to the underlying constitutional issues which have been argued. ”

Naturally, some will find it to be particularly alarming that I, the descendent of people who were actually interned during the war (though, admittedly, in Canada and not the United States) would defend these actions in any way. In modern textbooks the Japanese internment is often used to indict American “racism” and to condemn the United States (or Canada) in general.

We too often look upon the past from the security of history. The Allies, after all, ultimately won the war so we are now free to regard any decision they made which, with the benefit of hindsight, as unnecessary to that victory as a horrible and condemnable excess. I, for one, am not prepared to offer that judgement from on high.

There was, in 1942, at least some reason to consider suspect the loyalty of some Japanese-Americans. This was a serious enough concern to warrant action by the Federal Government. While I disagree with the nature of that action, it would not be desirable to deny them the right to take some action in such a circumstance.

“War Measures”:
It is generally accepted that, under the Constitution, the Federal Government (especially the Executive) are endowed with certain unenumerated powers which they can use in times of war or national emergency. For example, the Constitution makes the President the Commander-in-Chief of the Armed Forces. What this means, in effect, is that the President possesses authority to do anything which is not explicitly forbidden by the Constitution. Read from a sufficiently loose point of view (or an excessively legalistic one) this logic could even be extended to conclude that the Armed Forces have no obligation to, for example, respect the First Amendment since the First Amendment merely enjoins Congress against establishing a state religion or abridging the freedom of the press. Were it necessary for the military to do so, as a war measure, it would be perfectly legal or at least acceptable.

This was the principle used by President Lincoln in formulating the Emancipation Proclamation. It would have been, in my opinion, plainly unconstitutional for the President to simply order individuals recognized as American citizens stripped of their property (whatever that property might be) during peacetime. However, in war, the President has special authority to authorize actions which might be necessary to further the war effort.

The War Powers of the Government are necessarily broad. In Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1943) the Supreme Court cited former Chief Justice Charles Evans Hughes, in writing that:

The war power of the national government is 'the power to wage war successfully'... It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.

Thinking along similar lines, Alexander Hamilton argued in The Federalist No. 23 that:

(U)nless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES

There is, in other words, a fairly broad and long-standing consensus that the Federal Government possesses powers beyond those enumerated in the Constitution during wartime. The question then, of course, becomes one of words. What measures are “necessary”? What limits, if any, exist upon the powers of the government in an emergency?

The Necessity of Relocations:
Given this, the question then becomes: are relocations of this sort ever, “essential”? I contend that, at times, they are. The reason why I am so reluctant to declare internments of any sort unconstitutional, even recognizing that a great injustice was done to my own family by them, is the simple fact that I recognize that it is entirely possible that such steps will need to be take again in the future. We should not shrink from taking necessary measures simply as a result of some half-remembered “lesson” from history.

In 1941 there were good reasons to question the loyalty of Japanese-Americans. Many had maintained constant connections to their homeland, belonged to groups which supported the Emperor of Japan, and had other links which would draw their reliability as citizens into questions. Others were not even citizens of the United States, but resident aliens: it was entirely possible that spies or saboteurs dispatched by the Government of Japan where sheltered among those numbers. It would have been foolish and risky for the Federal Government to take no action.

Secondarily, there was also some degree of necessity in removing Japanese-Americans from the Pacific Coast as a measure to protect their own safety. As absurd as it sounds in retrospect, many believed in 1941-1942 that some sort of Japanese attack against the Pacific States was a very real possibility. In such a situation, it seems to me to be a virtual certainly that violence against Japanese-Americans would have occurred. This was a very real fear among the internees themselves, as may be demonstrated by their reaction to the news, delivered in 1944, that the Federal Government was now planning on sending them home.

Suppose that there were to be, tomorrow, a nuclear attack launched against the United States by al-Qaeda. Is it not inevitable that, in the aftermath of such a situation, some sort of internment of Muslims within the United States would occur? Not that I am even necessarily advocating such a step, mind you: I’m merely saying that it likely. I can think of no other way to roll up al-Qaeda cells which would be as satisfactorily fast and effective.

I realize that this is an unpleasant discussion: but it is also a necessary one. Too often today we, as Herman Kahn once put it, need to, “think the unthinkable.” What if there was a nuclear attack which destroyed New York City and killed five million Americans? How would people react? How could the network of Islamists within the United States be instantly removed? In such a situation, I am quite certain; the evacuation of Muslims from certain areas would be demanded and granted. By facing this reality, by understanding it, and planning for it we can avoid the excesses which marked the Japanese internment.

Principles for Future Evacuations:
What rules might allow a smooth forced evacuation of a group of people to take place in the future? Allow me to suggest five:

1) An evacuation will only take place when the threat posed by members of the group is imminent and constitutes a significant danger to the public safety.
2) One will occur only in the absence of an effective alternative method of rapidly separating the loyal and disloyal members of the group is available.
3) All individuals evacuated will be rapidly personally assessed and those determined to be loyal will be immediately freed: with fair compensation.
4) All property of member of the evacuated group will be protected by the Federal Government and those determined to be loyal will be fully compensated for any damages or other financial losses that they sustain.
5) Such an evacuation, undertaken as a war measure, will be conducted by military authorities and will only last so long and be undertaken in those areas where military necessary or the public safety warrants it.

Conclusion:
The Japanese internment, as it was conducted, was wrong. The most notable wrongs were the lengthy blanket detentions of individuals who had done nothing wrong and the confiscation of the property of those individuals. These are wrongs that are properly condemned.

However, we have to be careful not to confuse “immoral” with “unconstitutional.” These are entirely separate concepts. Moreover, we must accept that moral wrongs are often, to some degree, necessary in the service of a higher cause.

Yes, John/Billybob, I agree with what you are saying.

For example, some people mention that not too many Japanese Americans enlisted during World War II.

However on page 115 of the book A Fence Away From Freedom it states that after the Pearl Harbor attack Japanese Americans were classified by the Selective Service as 4-C -- enemy aliens -- and therefore were RESTRICTED from serving OR enlisting in the U.S. Armed Forces.

But you can read a book like Honor By Fire that shows at least 33,000 Japanese Americans served in Western Europe, Italy, Southeast Asia, and in the Pacific.

This book also shows on pages 31-33 that in September, 1942, U.S. General Douglas MacArthur actually had started to recruit Japanese Americans from DETENTION CAMPS and Hawaii to serve in the Allied Translator and Interpreter Section (ATIS) to perform various intelligence duties!

The reason I brought that up as that I heard that German Americans were allowed to serve with U.S. Armed forces to fight against the Germans even though there was evidence that Germans Americans were involved with espionage.

I mean you can even go to FBI’s own website at www.fbi.gov and it states the case of the Duquesne Spy Ring. On January 2, 1942, 33 members of a Nazi spy ring headed by Frederick Duquesne in New York were sentenced to serve a total of over 300 years in prison.

Here are SOME of the names of the spies and also the espionage activities they were convicted for:

-Paul Bante, German American, was preparing a fuse bomb for sabotage.
-Franz Stigler, German American, sought to recruit amateur radio operators in the U.S. as channels of communication to German radio stations.
-Felix Jahnke, German American, had a radio set built so he could use it to transmit radio messages to Germany.
-Hartwig Kleiss, German American, obtained details on the construction and performance of new speedboats being developed by the United States Navy.
-Carl Reuper, German American, obtained photographs for Germany relating to U.S. national defense materials and construction that he obtained from his employment.

And then there was the German-American League, Deutschamerikanische Volksbund, that was headed by Fritz Kuhn, and it had roughly 20,000 members. It was engaged in pro-Nazi demonstrations AGAINST the President Roosevelt Administration.

So why did the U.S. Government think that German Americans were a lot more "loyal" than the Japanese Americans?

I am well aware of the gross disparity between the US treatment of Japanese-Americans and German-Americans during World War II. The difference between the two is, regretably, due to the fact that German-Americans were a huge voting block that could not be offended.

Remember that the greatly respected Charles Lindburgh was the leader of America First, which urged the US to stay out of the war, and was inflitrated by, and partly financed by, the Nazis. There is no logical excuse for the difference. But there is a political reason for it.

Congressman Billybob

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