Friday, September 24, 2004

The Internment Debate

Recently a semi-famous conservative pundit, Michelle Malkin, penned a book wherein she attempted to justify FDR’s internment of 112,000 Japanese-Americans. She claimed in her book that there was a demonstrable threat of spot raids, espionage, sabotage, and invasion that would be facilitated by approximately 120,000 people of Japanese ancestry living near west coast military installations, ship yards, and aircraft manufacturers. In her book she sites memos, anecdotal evidence, and interviews with several so-called military experts to bolster her cause. Her support of Japanese internment is ominous in that it flies in the face of fundamental constitutional protections and is based on the false premise that internment was a military necessity.

As we all know, on December 7, 1941, the Japanese bombed Pearl Harbor. This galvanized American support for a declaration of war on the Axis powers of Germany, Italy, & Japan. The outrage ran deep, the tension was palpable, and FDR capitalized on growing feelings of apprehension and fear. FDR would later deem that this date would, “Live in infamy.” Stirring words from a great orator. His words were prophetic but his policies would gain infamy as well.

In examining the policy of internment past and present we must answer a few questions: Was/is internment militarily justifiable? Is internment constitutional? Will there be a clarion call for future internment of Muslims, suspected terrorists, and those of Middle-Eastern descent?

Was internment justified? According to production figures barely one quarter of our industrial capacity was located within shouting distance of Japanese population concentrations on the west coast. For a country that produced hundreds of war ships and troop transports along with thousands of plains, tanks, artillery pieces, and millions of tons of munitions the loss of one quarter of our manufacturing infrastructure would have barely slowed let alone crippling the war effort. The Japanese didn’t even produce a tenth of what the US did during WWII. Also, keep in mind more than a third of our naval capacity sat idle along the west coast between 1942 and 1945. Not to mention the roughly quarter of a million troops stationed along the coast that could have responded to any threat fairly quickly. In order to carry out an invasion the Japanese would have had to cross nearly 6,000 miles of open Pacific waters. The Japanese Imperial Navy had capacity to transport only 42,000 troops. Such a force would have barely made it through our surveillance grid and would have been slaughtered almost instantly. Had they been able to land they wouldn’t have made past Encino. Even if all 120,000 of the Japanese-Americans would have banded together in organized insurgency the damage they could have done to the overall war effort was minimal. At the time our military command structure knew ALL of this. This is not hindsight. The best the Japanese could muster was to send dozens of weather balloons with incendiary devices attached that burned down a few houses and killed a few people.

Is internment constitutional? In 1942 and 1943 the Supreme Court tackled this question and without delving too far into the decisions the crux of their judicial edict was an unequivocal yes. Here are a couple of quotes: "There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population." Hirabayashi v US, 320 U.S. 81 (1943). "We cannot say that the war- making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it." Id.
This case augments the power bestowed upon FDR by the Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (50 U.S.C.A. 104) which gave FDR the authority to enact Executive Order 9066. 7 Federal Register 1407. The order stated, "The successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities."
In order to find that internment was justifiable the policy must meet a strict standard of review. Strict scrutiny requires a compelling governmental interest and that said policy was an absolutely necessary means to achieve the desired end. The compelling interest is obvious and irrefutable…national security during time of war. Duh. Where Executive order 9066 and subsequent case law run afoul of the Constitution is that there were other options at FDR’s disposal to ensure the safety of the west coast. He could have increased troop concentrations on the coast and around endangered facilities. There were other ways to provide security. 112,000 people were rounded up and put in pens because of race baiting and that it was the path of least resistance. I usually defer to the Court but they screwed the pooch on this issue.

Will there be an outcry for interning Arabs and Muslims? So far no but storm clouds are forming in the distance; Malkin’s book makes passing inferences towards a justification of detaining potentially millions of ethnic Arabs and Muslims. Some conservatives are defending WWII internment policies and Malkin’s book. With the current administration anything is possible. If Ashcroft is willing to suspend attorney/client privilege in the case of suspected terrorists, thus compromising their right to a fair trial, then he’d definitely set the ball rolling for internment.

I find it scary that ANYONE would make a case for internment in WWII and somehow use such an abhorrent policy to draw even a passing inference that modern-day internment would be justified in the global war against terrorism. Ms. Malkin seems to be, as some have pointed out, laying the ground work for a justification to detain suspected terrorists, Muslims, or those of Middle-Eastern ethnicity. Such a policy should be resisted with every ounce of breath in our bodies.