Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race Before and After September 11
Thomas Wuil Joo
University of California - Davis Law School
Columbia Human Rights Law Review, Vol. 34, No. 1, Fall 2002
The article compares the legal response to the September 11 terrorist attacks to episodes in Asian American legal history, particularly the investigation of American nuclear scientist Wen Ho Lee and the World War II internment of Japanese Americans. In those cases, military and executive decisions raised questions about racial bias. The courts gave great deference to the executive's actions, however. The courts justified this deference by accepting racial stereotypes about Asian Americans' disloyalty as executive assessments about national security. Congress and the public concurred in the deference.
The courts, however, did not simply defer to institutional competence and the separation of powers. They also gave an official stamp of approval to the underlying racial assumptions and contributed to the general expansion of government power at the expense of civil rights and civil liberties. Since September 11, the process has been repeating itself in the "war on terrorism," with the stereotype of Arab Americans as terrorists standing in for the stereotype of Asian Americans as traitors.
While judicial and political deference in these cases begins with racial stereotyping, its significance does not end there. In the war on terrorism, for example, the executive has played upon fears of Arab terrorism to pursue larger goals of increasing police powers and silencing domestic dissent. In addition to infringing upon the rights of minorities, the executive, with judicial compliance, exploits racial fears as a justification to expand its power and reduce judicial oversight generally.
Keywords: race, discrimination, constitutional law, civil rights, civil liberties, immigration, Asian AmericansAccepted Paper Series
Date posted: February 28, 2003
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