Raising the Red Flag: The Continued Relevance of the Japanese Internment in the Post-Hamdi World

Abstract

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense of national security policies and an implicit approval of the internment. The more pervasive response, however, is that "times have changed" such that another internment is impossible or at least highly unlikely, what I term, "distancing arguments." Distancing arguments assert that both the de facto psychology of the nation and the structure of the law now disfavor internment. The problem with such arguments is that they undercut the persuasive force interment reminders. Especially during times of emergency, the idiom of progress is engaged to silence comparisons to past atrocities and allay fears of tyranny. Those who set forth distancing arguments nonetheless feel vindicated by the Supreme Court's decision in Hamdi. This article critically analyzes the claim that the law has progressed since the time the internment by conducting a jurisprudential comparison of the internment cases and terrorism detention cases. Part I of the article discusses post-9/11 invocations of the internment to criticize the current use of state power and the distancing arguments forged in response. Part II reviews the relevant internment and terrorism cases as a preface to a methodological comparison of the laws. Part III deconstructs and analyzes law of war, as set forth by relevant cases, with a particular emphasis on certain jurisprudential choices made by the Court in the interment and terrorism detention cases - choices regarding the constitutionality of wartime citizen detentions, choices on executive unilateralism, choices over judicial review, and choices regarding conditions and length of military detention. By comparing these choices, the article concludes that although in Hamdi, the Supreme Court did close some of the avenues toward oppressive governmental activity forged in the internment cases, the Court nonetheless left several avenues open and even expanded them. Consequently, civil libertarian rejoicing over the "success" of Hamdi is premature, and efforts to banish invocations of the Japanese internment as mere reactionary scare-tactics are unfounded. In fact, given the current legal framework, reminders of the horrors of internment remain highly relevant, as the United States continues to engage regularly in armed conflict and detain thousands of people without regard to constitutional safeguards or criminal process.

Keywords: Detention, national security, Hamdi, Padilla, Korematsu, Hamdan, Guantanamo, war power, executive power

JEL Classification: K14, K42, N4, N40, N42