NOTE: December 18, 1944, the Supreme Court ruled that Japanese concentration camps were “constitutional” in the Korematsu case.

Americans often downplay dangerous expansions of federal power, arguing that we should have faith our government officials to exercise that power in the best interest of the people.

In other words, they trust their “leaders” and those appointed to positions of authority.

I’ve heard this argument used to refute those warning about the dangers of detention provisions without due process written into the NDAA and targeted drone kill lists.

“These powers are meant to protect us from terrorists. We can trust the president and our military leaders to exercise their authority. We have nothing to worry about.”

Never mind the fact that this particular president won’t hold office forever; history teaches that we simply cannot trust those who hold power.

None of them.

The experience of some 120,000 Japanese-American locked up in camps behind barbed wire illustrates what can happen when you combine acts granting sweeping powers with people in authority lacking moral fiber.

Executive order 9066 authorized the Secretary of War and the U.S. Army to create military zones “from which any or all persons may be excluded.” The order left who might be excluded to the military’s discretion. When President Franklin D. Roosevelt inked his name to EO9066 on Feb. 19, 1942, it opened the door for the roundup of some 120,000 Japanese-Americans and Japanese citizens living along the west coast of the U.S. and their imprisonment in concentration camps.

A court convicted Gordon Hirabayash and Minoru Yasui on criminal charges for violating a curfew in the early days of the order, and Fred Korematsu was convicted for refusing to report to his detention center. The Supreme Court later upheld their convictions, arguing the orders were legitimate and necessary under wartime circumstances.

But as it turned out, much of the “evidence” used to justify “military necessity” and uphold the convictions was exaggerated, or downright fabricated, by a racist general. On top of that, government lawyers knew it and presented the evidence to the court anyway. The Court eventually overturned the convictions, but never wiped the ruling off the record.

Peter Irons wrote a fascinating paper calling on the Supreme Court to repudiate those convictions. He quotes a statement by Acting Solicitor General Neal K. Katyal, published on May 20, 2011, on the blogs of the Department of Justice and the White House entitled Confession of Error: The Solicitor General’s Mistakes During the Japanese American Internment Cases.

By the time the cases of Gordon Hirabayashi and Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court ‘might approximate the suppression of evidence.’Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC [Federal Communications Commission]. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.” The Supreme Court upheld Hirabayashi’s and Korematsu’s convictions. And it took nearly half a century for courts to overturn these decisions.

A report by Gen. John L. DeWitt was used to bolster the argument that all Japanese Americans needed to be locked up. Basically, his reasoning went like this: You can’t trust the Japanese, and you can’t figure out who might actually prove disloyal, so lock ’em all up.

Because of the ties of race, the intense feeling of filial piety and the strong bonds of common tradition, culture and customs, this population presented a tightly-knit racial group. While it was believed that some were loyal, it was known that many were not. It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats’ was unfeasible. (emphasis added)

But Assistant Secretary of War John J. McCloy had this race-based section removed from the original report and instead argued that there wasn’t sufficient time to make the determination of loyalty – directly contradicting the general.  Then, the War Department tried to destroy all of the original copies of the report. On top of that, official FBI and FCC reports that called the policy into question were suppressed. In fact, the FBI held that there were very few disloyal Japanese Americans and they knew who most of them were already.

In essence, the racist views of a general heavily influence a policy that locked up more than 100,000 innocent people, and evidence conflicting with the official position was conveniently ignored and suppressed.

A transcript of a conversation between DeWitt and General A.W. Gullion, the Army’s Provost Marshal General, on January 14, 1942, reveals the DeWitt’s racist views.

“I don’t see how they can determine the loyalty of a Jap [sic] by interrogation…or investigation. …There’s no such a thing as a loyal Japanese and it is just impossible to determine their loyalty by investigation — it just can’t be done…”

Ninth Circuit Court of Appeals Judge Mary Schroeder noted a significant fact in her 1987 opinion on Hirabayashi’s appeal.

“The government [in this appeal] agrees with petitioner and the district court that General DeWitt acted on the basis of his own racist views and not on the basis of any military judgment that time was of the essence.”

A Commission on Wartime Relocation and Internment of Civilians, established by Congress in 1980,  found that the internment was not militarily necessary. In her opinion vacating Fred Korematsu’s conviction for violation of the exclusion order, District Judge Marilyn Hall Patel relied in large part on the findings of the commission.

The Commission found that military necessity did not warrant the exclusion and detention of ethnic Japanese. It concluded that ‘broad historical causes which shaped these decisions [exclusion and detention] were race prejudice, war hysteria and a failure of political leadership.’ As a result, ‘a grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded,removed and detained by the United States during World War II.’

The decisions leading up to the internment of Japanese Americans show how quickly prejudice, personal agendas and group-think can send reasoning and good intentions right over the edge. It also demonstrates the lengths officials will go to in order to cover their own butts.

But consider this: without the executive order granting these people broad sweeping powers, none of this would have been possible.

Power corrupts.

More the 120,000 people paid the price.



Mike Maharrey

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