Overrule Hirabayashi! (Updated)

In today's Los Angeles Times, I argue that the time has come to pay attention to the awful Supreme Court decision that has hidden in the shadow of the awful Korematsu case:  Hirabayashi v. United States. 

It's just as flawed, and arguably more dangerous in today's world.

UPDATE:

Like clockwork, when I publish a piece in the lay press about the lawfulness of the treatment of Japanese Americans in WWII, I receive angry emails from people of German and Italian ancestry who insist that I am mistaken in asserting that government orders targeted American citizens of Japanese, but not German or Italian, ancestry.  They always want me to know that Germans and Italians were also interned during the war.  What they say is true, but it is always non-responsive to my arguments about the treatment of American citizens of Japanese ancestry.

I usually reply at least once to these folks with a calm and civil explanation of the differences in treatment of American citizens of Japanese, as opposed to German and Italian, ancestry.  They usually then get angrier and tell me that NO IN FACT I AM WRONG AND I NEED TO READ THIS WEBSITE THAT LAYS IT ALL OUT SO THAT I CAN UNDERSTAND THAT GERMAN AMERICANS AND ITALIAN AMERICANS WERE JUST AS MISTREATED AS JAPANESE AMERICANS!!!!!

S0metimes I don't respond further; sometimes I take one more stab.

Tonight I took one more stab. 

I am posting here what I wrote tonight in my second response to a correspondent.  I'm posting it here mostly so that in the future I can just link to this blog post rather than writing it all out over and over again.  I'll put it in comic sans so that it looks lighter and more fun.

I do appreciate your interest in this terrible period of history (for people of many ancestries).  Your objection is one I see very commonly when I write about American citizens of Japanese ancestry:  people of German and Italian ancestry often write to me to tell me that I am mistaken because I am ignoring the stories of Germans and Italians.

It’s absolutely true that curfews were imposed on some Italians and Germans, and also that some Italians and Germans were imprisoned, in the months after the USA entered the war.

There are a number of legal distinctions, however, between the treatment of people of Japanese, German, and Italian ancestry.

There was no government order that imposed burdens on people of German and Italian ancestry without regard to US citizenship (meaning on aliens and citizens alike). 

Actions were taken against identified German and Italian aliens.  Curfew orders were imposed, but not against American citizens of German or Italian ancestry.  In the citizen category (as distinguished from the category of aliens), the only Americans affected were those of Japanese ancestry.  Here's the relevant language:

All alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1 . . . shall be within their place of residence between the hours of 8:00 P.M. and 6:00 A.M., which period is hereinafter referred to as the hours of curfew.

There were also detentions of certain Germans, Italians, and Japanese after Pearl Harbor, but these were pursuant to Presidential Proclamations 2525, 2526, and 2527, not Executive Order 9066.  The authority for those proclamations was the Alien Enemy Act of 1798, which gives the president pretty much complete authority over nationals of countries with whom the United States is in a declared war.  By definition the authority under those proclamations extended only to foreign nationals.  So there were curfews and arrests imposed, but they did not directly apply to US citizens of German and Italian ancestry.  In some situations the minor US citizen children of German and Italian aliens went into imprisonment with their alien parent or parents, but that was because they had nowhere else to go – not because they themselves were directly subject to the government orders.

It's also worth noting that the programs adopted under those Presidential Proclamations were based on some sort of individualized suspicion, and those subject to them were entitled to hearings.  To be sure, the suspicions were often groundless, and the hearings usually shoddy at best.  But they happened.

A couple of thousand Japanese aliens were swept up under those proclamations as well, alongside the Germans and Italians.  But again, those Japanese aliens were identified individually rather than en masse.

The rest of the roughly 120,000 people of Japanese ancestry had a curfew imposed on them, were excluded from the West Coast, and were detained in camps pursuant to Executive Order 9066.  That was not grounded on the Alien Enemies Act – and it couldn’t have been, because the curfew and exclusion orders imposed under 9066 by their terms applied to American citizens of Japanese ancestry in addition to their immigrant non-citizen parents.

So, to summarize:  yes, around ten to twelve thousand German aliens and some hundreds of Italian aliens were affected by restrictions after the USA entered the war.  In some situations their minor US citizen children ended up being affected by what the government was doing to their parents.  I’m also aware of a small number of cases in which the government took actions against recently naturalized US citizens who’d come from Germany and/or Italy.

But that was a different program from the one that the government applied to Japanese aliens and US citizens of Japanese ancestry.  The program for people of Japanese ancestry effaced the distinction between citizens and aliens, was not grounded on individualized suspicion, and afforded no hearings.

 

Comments

[Scott Pruitt Edndowed Chair in Enviconmental Justice]

How does a prosecutor using rules of evidence go about proving Japanese, German, or whatever ancestry beyond a reasonable doubt? It's like proving what is a Jew? Christian? Would this evidence be admissible today? Look at his face, eyes---Ladies and Gentlemen of the Jury....he must be Japanese. I just can't see some judge going for this crock of shit in her courtroom.

[Steven Lubet]

Good post, Eric. You might have pointed out that internment of “enemy aliens” is virtually universal in war time, and hardly unique to the United States. In Britain, even German Jews were temporarily interned during WWII, alongside Nazi sympathizers, although most were released after hearings. Michael Frayn’s novel Spies has a subplot about in interned Jew whose family has to lie about his whereabouts.

[Bill Turnier]

Eric, you may want to consider posting a piece about something we have discussed that shows the duplicitous nature of the treatment of Japanese Americans during WWII, the completely different treatment of Japanese in Hawaii. There because they made up about 2/3 of the population, the economy of the islands would have collapsed with a complete round up as was done on the West Coast. I believe that unlike the West Coast there were episodes of disloyalty and only very selective internment. Moreover, Hawaii was much closer to the war theatre than the West Coast. It was actually in the war theatre. Yet, more humane rules prevailed there. As is often said, it is always about the money.