01 12-7 and 9-11

What 12-7 has to Teach about 9-11
Jerry Kang, Professor of Law, UCLA
(c) 9/25/2001 version 1.1

The terrorist attacks on 9-11 have frequently been analogized to Pearl Harbor.  In many ways, the analogy is apt.  Just as that attack launched us into World War II, the attacks on the World Trade Center and the Pentagon have launched us into a new kind of war, against terrorism.  But waging this sort of borderless war poses great risks, not only to the soldiers commanded to fight but also to core American values. In this way, Pearl Harbor raises other disturbing memories, those of the internment. 

Like the recent explosions on the East Coast, the bombing of Pearl Harbor on 12-7, shattered our feeling of national security.  How could this have happened?  Ordinary individuals, prominent journalists, and government officials soon started pointing the finger at the Japanese in America. Viewing these “Orientals” as incurably foreign, speaking foreign languages, perpetuating foreign cultures, practicing foreign religions (Shinto, Buddhism), American society could not distinguish between the Empire of Japan and Americans of Japanese descent.  As General DeWitt, in charge of the Western Defense Command, put it, “A Jap’s a Jap.”  In testimony, he elaborated:  “[R]racial affinities 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.”  As government reports rushed to the conclusion that Japanese Americans aided and abetted the attack, the wheels of the internment machinery began turning. 

On February 19, 1942, President Franklin Roosevelt issued Executive Order 9066, which authorized military commanders in the Western U.S. to issue whatever orders were necessary for national security.  Although prompted by DeWitt’s ominously titled “Final Recommendation” for mass internment, the Order conveniently made no mention of race or ethnicity.  In March, Congress criminalized disobedience of military regulations issued pursuant to the executive order.  By December, an efficient, empowered military had concentrated nearly all Japanese on the West Coast into ten desolate camps, surrounded by barbed wire and armed sentries.  All this without the declaration of martial law. All this without any individualized determinations of guilt or disloyalty.  

The internment was challenged in courts of law, but the Supreme Court affirmed the constitutionality of the curfew and exclusion orders in the 1943 and 1944 cases of Hirabayashi, Yasui, and Korematsu.  While protesting loudly that racial prejudice should trigger the highest scrutiny, the Court nevertheless deferred to the government’s vague claims of military necessity.  Was the internment in fact justified as a matter of military necessity?  A Congressionally appointed blue ribbon commission concluded in 1982 that the “broad historical causes which shaped these decisions were race prejudice, war hysteria, and a failure of political leadership,” not any genuine military necessity.  In other words, it was a tragic wartime mistake.  For that, all branches of the U.S. government have apologized.   

What lessons then should we learn from this mistake?  One lesson could be that this was just an accident, in a time of war, and that the Supreme Court erred because it was not given complete, accurate information.  It turns out that the Executive Branch (Department of War and Department of Justice) suppressed key evidence from the Office of Naval Intelligence, Federal Bureau of Investigation, and Federal Communications Commission.  This exculpatory evidence, in the form of smoking gun documents (burned reports, edited footnotes, and the like), was uncovered in the early 1980s and helped eventually reverse the criminal convictions of the World War II litigants.  Applied to the present crisis, this lesson would counsel against law enforcement zeal that prevents a fair, balanced consideration of all the facts by our political leaders, the judiciary, and the American people.   

But learning only this lesson would be to commit another error.  We did not intern en masse German and Italian Americans, even though we were at war with those nations too.  We did not intern en masse the huge numbers of Japanese in Hawaii (where Pearl Harbor is), for doing so would have meant shutting down that economy.  We did not abstain from drafting Japanese Americans from the very internment camps that kept jailed their traumatized parents.  The Supreme Court knew and understood this.  Even without the suppressed evidence, Justice Murphy knew enough to dissent in Korematsu and lament that the majority had fallen into “the ugly abyss of racism.” The more important lesson, then, is not that wartime creates mistakes; instead, it is that wartime coupled with racism and intolerance create particular types of mistakes. Specifically, we overestimate the threat posed by racial “others” (in WW II, Japanese Americans; today, Arab Americans, Muslims, Middle Easterners, immigrants, and anyone who looks like “them”). Simultaneously, we underestimate how our response to those threats burden those “others” (in WW II, shattering lives through the internment; today, intimidation and violence by individuals, and racial profiling by the state).   

And what will happen if we make such mistakes today?  Consider another analogy with the internment.  In Hirabayashi, the Court noted that because American society had discriminated against the Japanese legally, politically, and economically, they had been kept from assimilating and integrating into mainstream society.  Exactly right.  But then, the Court went on the explain—in an entirely rational but still disturbing way—that therefore the Japanese posed a greater national security risk.  This presents a horrible Catch-22:  Because America has treated you badly, you have reason to be disloyal; therefore, America has reason to treat you still more badly, by restricting your civil rights.  In our public and private response to the horrors of 9-11, will we force another group of Americans into the same impossible situation?  I hope that by learning the lessons of 12-7 we will not.