The Incarceration of Japanese Americans in World War II Does Not Provide a Legal Cover for a Muslim Registry

My grandparents, Bette and Kuichi Takei, in August 1942.

This article was originally published by the Los Angeles Times.

Carl Higbie, a prominent supporter of Donald Trump, said recently that the mass internment of Japanese Americans during World War II was a “precedent” for the president-elect’s plans to create a registry for immigrants from Muslim countries. He said the plan would be legal, that it would “hold constitutional muster.”

That claim betrays a misreading of history. It rests on a wartime Supreme Court decision that was based on falsehoods and suppressed evidence, a decision that is regarded as a stain on American jurisprudence.

In February 1942, shortly after the Japanese attack on the United States at Pearl Harbor, President Franklin D. Roosevelt issued Executive Order 9066. About 120,000 Japanese Americans — two-thirds of them native-born U.S. citizens — had to register and report to assembly centers. They had just days to divest themselves of all they owned — their homes, farms and businesses. With just what they could carry, they were shipped off to federally run “internment camps,” imprisoned behind barbed wire and watched by armed guards.

My grandmother, Bette Takei, was one of them. She was incarcerated in Colorado, while her husband, my grandfather, Kuichi Takei, fought in an artillery unit of the United States Army in Europe. Bette was from a small town in the Sacramento River Delta; Kuichi was from Santa Cruz.

In the Bay Area, 23-year-old Fred T. Korematsu quietly defied the February 1942 order. He was picked up, arrested and convicted, and then he too was imprisoned. The ACLU of Northern California represented him before the U.S. Supreme Court, challenging the policy of roundups and incarceration. In 1944 — after D-day but before the war was over — Korematsu lost.

It was not a unanimous decision. In one dissent, Justice Frank Murphy wrote, “Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.” Justice Robert Jackson wrote that the court should not affirm the military order because “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.”

Decades later, Aiko Herzig-Yoshinaga, a researcher for a congressional commission appointed to consider legislative redress for victims of the wartime incarceration, who had herself been rounded up as a teenager, found a curious document in the National Archives.

In Korematsu’s Supreme Court case, government lawyers had submitted a report by Lt. Gen. General John L. DeWitt, and quoted from it in their oral arguments to justify the executive order. They won in large part because of this report, which claimed that the imprisonment of Japanese Americans was a military necessity because there was no time for government officials to determine who was loyal and who might be a security threat.

DeWitt’s racist views were widely known: “A Jap’s a Jap,” he said publicly. “It makes no difference whether he is an American citizen or not.” But his report offered a plausible justification for Roosevelt’s policy, and it carried the day.

What Herzig-Yoshinaga found was an earlier draft of DeWitt’s report, which said that anyone of Japanese ancestry in the U.S. had to be rounded up simply because Japanese racial characteristics made it impossible to distinguish “the sheep from the goats” — no matter how much time was available.

Had this original report been submitted to the court, it’s likely the justices would have realized that racism, not time pressure, was the true motivation for the indiscriminate roundup. Instead, almost all copies of the original were destroyed. It was purposefully kept out of the record, along with intelligence reports showing that Japanese Americans posed no credible threat to the U.S.

In the early 1980s, the judiciary, in effect, apologized. Korematsu and two other Japanese Americans who had lost wartime challenges against their incarceration, petitioned to overturn their decades-old criminal convictions. They succeeded using a legal procedure called coram nobis, the equivalent of the judiciary admitting a serious mistake.

The coram nobis cases never reached the Supreme Court because the plaintiffs won at lower levels. So far, the high court has not heard a case that called on it to overturn the original Korematsu decision. Nonetheless, the ruling is as close to completely repudiated as it could be without having been formally overruled.

Federal District Court Judge Marilyn Hall Patel wrote, presciently, in her 1984 opinion overturning Korematsu’s conviction: “In times of international hostility and antagonism, our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.”

The Civil Liberties Act of 1988, signed into law by President Reagan, provided reparations of $20,000 to each Japanese American camp survivor. The legislation admitted that Executive Order 9066 was based on “race prejudice, war hysteria and a failure of political leadership.” Reagan called the incarceration “a great injustice” and apologized on behalf of all Americans. More than $1.6 billion in reparations was disbursed.

Despite that apology, our leaders have become increasingly bold in unlearning this lesson. Korematsu himself returned to the Supreme Court in 2004 to file a brief challenging the indefinite detention of prisoners at Guantanamo Bay. Now, the racist underpinnings of the World War II incarceration are being used to push for a Muslim registry.

My family framed the apology letter my grandparents got from the government. It is signed by President George H.W. Bush and it hangs on the wall of the home I grew up in. “We can never fully right the wrongs of the past,” it says.

When my grandfather died in November 2014, he believed the extreme prejudice he and my grandmother faced had ended. We should remember the wrongs they suffered, not revive them.

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Anonymous

NONE OF THEM SPEAKS ON BEHALF OF THE FAMILY OR FRIENDS OF ERIC BENNETT, one of the people killed on September 11, who never would have created a registry or approved of it or anything else even dimly related to this RIDICULOUS idea.
IT'S A MOCKERY TO HIS MEMORY, TO WHO HE WAS WHEN HE LIVED AND AN ADDED INSULT TO THE 50 MILLION INJUSTICES THAT HAVE ACCUMULATED "IN HIS NAME" SINCE HE WAS UNCEREMONIOUSLY MURDERED AND HIS BODY TREATED AS IF HE NEVER EVEN PASSED THROUGH THIS WORLD.
He was a loving, giving person who liked to include people wherever and whenever possible, not separate them, and anyone thinking they're going to say (or even imply) they're "doing all this on behalf of the dead" are fucking seriously mistaken.
You "people" doing all this DON'T SPEAK FOR OUR LOVED ONE. Period. The end. Finito. Good night Irene.
From a person who has lived every day with the consequences of "bad Muslim" behavior. Who lives it in ways the Higbies and Trumps never will (because IMO they're incapable of caring about anyone other than themselves.)

In his memory, please be a voice for peace & love. If you cared anything at all about who he really was you'd want to do that, and doing it isn't the same as pretending there have never been any criminal Muslims.

Eric Bennett
10/17/71-9/11/01

Anonymous

Sorry for your loss anonymous. But condemnation and euthanasia of an entire race based on the actions and beliefs of a few isn't justified either. White's have been at the helm of a lot of prejudice, pain, enslavement and worse , even today. Look at our government, who's really running things? Ethnic folks have just recently been allowed in and they still have a limited voice. Oh Obama you say? Yeah what was he allowed to really do? Oh and he's more white than anything else anyway and the only reason he made it to president. It appeased many but those who are a wake know better. Think long and hard, research deeply into ethnic injustices. Look at who's really making decisions and don't be so quick to debunk certain theories that even have enough evidence for those who truly look. You'd be very surprised the hate you have for Muslims was manufactured and you unknowingly perpetuate it. Innocent ppl lost their live for their plan. Muslims asked the US dozens of time to take back the attack accusations or they would make good on the governments false accusations. They are merely fighting back after we bomb their children and towns over a lie. A lie our own government put in place. Why? The answers are clear but you must research and find them for yourself, see with your eyes is best. The ones truly responsible for the attack and implosions should be held responsible no matter what status they may hold. May your loved one see real justice one day. Btw I'm no Muslim I am a Buddhist, or nor do I condone what they are now doing but I do understand they were driven to it.

Anonymous

I think you misunderstood what 1st Anon wrote. He (or she) is coming from a place where he suffered great loss by Islam terrorism, yet said he couldn't have hatred for somebody based on their religion, or couldn't support racist policies such as those of the Trump administration. In the memory of a victim, who would never agree to it, even after being murdered by Islam terrorists.

Anonymous

There is a difference between racism and concern over a religious ideology that threatens all of civilization. Islam has the goal of enslaving the world. The proof is available everywhere Islam is found in large numbers. Look at the Middle East, Africa, Europe, even in the small enclaves where Islam has taken root in America. Everywhere you find concentrations of Islam's followers you find violence, hatred, and a push for sharia law. You also find a people unwilling to report the radicals and terrorist among them. Open your eyes Islam seeks to invade, overtake, and overthrow all of civilization.

Anonymous

Absolutely none of what you wrote about Islam is correct. Your mind has been poisoned by hatred.

Anonymous

Exactly the fear mongering and lies this article is trying to counter.

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