The loyalty test
In one fell swoop, the FDR administration classified a group of citizens as dangerous solely based on their national origin.

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Article Highlights

  • The wartime decision to intern Japanese-Americans in far-off camps was a grave injustice.

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  • In fact, the 9/11 response may have included an overreaction to the World War II internments.

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  • Despite the controversies over Bush administration policies, civil liberties have survived in far better shape than in any previous American war.

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What do West Coast Japanese and New England Chechens have in common? Everything, in the eyes of critics of the nation’s wars. In the aftermath of April’s Boston Marathon bombing, police forces killed Tamerlan Tsarnaev and arrested his younger brother, Dzhokhar, a U.S. citizen. Both hail from Chechnya, where Russia fought a brutal civil war against Muslim rebels in the 1990s. Initially, the FBI interrogated the younger Mr. Tsarnaev alone. He apparently claimed that he and his brother were on their way to bomb New York’s Times Square. But then the Obama administration decided to file charges against Dzhokhar and read him his warnings, whereupon the suspect clammed up.

The mishandling of Mr. Tsarnaev’s interrogation is clear. If the Obama administration had held Mr. Tsarnaev as an enemy combatant, it could have continued its questioning so long as it kept the answers out of any future trial. But trapped by an ideology that sees terrorism as a law-enforcement problem, the administration limited questioning only to imminent dangers and crimes but not the suspect’s broader network and training.

The legal efforts to tie down America’s war-making powers find their inspiration and moral authority in the examples of Gordon Hirabayashi and Fred Korematsu. These aren’t household names to most Americans, but they are well-known to historians and lawyers. Both men challenged the decision of President Franklin Roosevelt to place Japanese-Americans in military detention after the Dec. 7, 1941, Pearl Harbor attack. Unanimously in (1943), but by a divided majority in (1944), the Supreme Court upheld the use of national origin as a proxy for loyalty on the ground of “military necessity.”

Ever since, lawyers have agreed that the Supreme Court erred, a conclusion reinforced by historical evidence that government lawyers concealed reports showing little security threat from Japanese-Americans. As then-Chief Justice William Rehnquist observed in his 1998 book, “All the Laws But One”: “There was no reason to think that Gordon Hirabayashi and Fred Korematsu were any less loyal to the United States than was Mitsuye Endo,” a Japanese-American woman who had also challenged her internment in court and who was released from an internment camp.

Hirabayashi was born on April 23, 1918, in Seattle to parents who had emigrated from Japan. His father grew vegetables and sold them from a truck. Hirabayashi was in his senior year at the University of Washington when Japan launched its devastating surprise attack on Pearl Harbor. When FDR issued his order in 1942, followed by a military curfew, Hirabayashi immediately resolved to defy it, for which he was tried and sentenced to 90 days in prison. After the war, Hirabayashi became a professor of sociology and worked to overturn his wartime convictions. They were finally overturned in 1987. The following year, Congress enacted a reparations bill for Japanese-Americans interned during the war. Hirabayashi died in January 2012.

Now the University of Washington has published his diaries to further bring the World War II internments to bear on the war on terror. Lane Ryo Hirabayashi and the late James Hirabayashi, the editors of “A Principled Stand” and the nephew and brother of Gordon, respectively, are worried about “domestic use of a wholesale curfew against an identifiable segment of the U.S. population—such as Middle Eastern or Muslim Americans” after a “a large-scale, violent attack.” Yet the book mostly retells the daily life of a young man with powerful Christian convictions.

Growing up, Hirabayashi faced instances of outright racism. He recalls that his Boy Scout troop scoutmaster had to reverse his decision to appoint a Japanese-American youth as the lead scout. As he writes: “I think the parents protested, ‘Why is this Jap becoming the senior leader?’ “

But the book is also full of kindness from fellow Americans who rejected the prejudices of their day. Hirabayashi devoted his time to the YMCA, which allowed him to live for free in exchange for chores. His white roommate and best friend, Howard Scott, confided in him: “You know, you’re the closest person I have.” Local Quakers organized Hirbayashi’s defense committee and represented him all the way to the Supreme Court. (The American Civil Liberties Union refused to challenge the internments.)

The wartime decision to intern Japanese-Americans in far-off camps was a grave injustice. In one fell swoop, the Roosevelt administration classified a group of citizens as national-security risks solely based on their ancestry. The government forced all Japanese-Americans to evacuate the West Coast, leave behind their property and possessions, and live in flimsy barracks surrounded by barbed-wire fences and armed guards.

Hirabayashi’s reminisces also reveal the differences between World War II and the war on terror. FDR made a terrible constitutional error. Rather than wholesale targeting of a nationality, his administration should have made case-by-case judgments. Today the U.S. hasn’t acted against civil liberties in favor of security. Rather than create some vast new surveillance state, the Patriot Act only adapted existing powers for the age of the Internet and al Qaeda. Yet the combination of tough interrogations, electronic intercepts, special forces and drone strikes have destroyed al Qaeda’s original leadership and central nervous system.

In fact, the 9/11 response may have included an overreaction to the World War II internments. As a Justice Department official on that terrible day, I endeavored to ensure the government didn’t target specific races or religions. Despite the controversies over Bush administration policies, most of which have continued apace under President Obama, civil liberties have survived in far better shape than in any previous American war. Rather than a cautionary tale, Hirabayashi shows how far our nation has come in its attitudes on race. It also shows that wartime panics can just as easily harm security as work in its favor.

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