Thursday, August 05, 2004

Refighting the Past


It started when Michelle Malkin touted her new book, In Defense of Internment: The Case for "Racial Profiling" in World War II and the War on Terror. Eric Muller, a guest-blogger at The Volokh Conspiracy, has begun scrutinizing Michelle's book. I'd say that he's less than enthusiastic about her defense of the relocation of Japanese-Americans during World War II and its implications for the way we might behave toward Muslims in this country. To my mind, the issue was framed best by Justices Black and Frankfurter in Korematsu v. United States (1944). Here's Justice Black writing for the U.S. Supreme Court:
To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that at that time these actions were unjustified.
Justice Frankfurter's concurring opinion says, in part:
The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully."...Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.
That's good enough for me.

UPDATE 1 (10:54 PM, 08/04/04):
Eric Muller's latest post cites Greg Robinson, author of By Order of the President: FDR and the Internment of Japanese Americans, which Muller calls "the definitive scholarly account of the genesis of the Administration's decision to evict and detain all of the West Coast's Issei and Nisei." Robinson's work apparently undercuts Malkin's "argument...that intercepted and decrypted Japanese 'chatter' about recruit Japanese aliens ("Issei") and American citizens of Japanese ancestry ("Nisei") was 'the Roosevelt administration's solid rationale for evacuation.'" This is all peacetime hindsight of the sort rejected by Black and Frankfurter. You do what you have to do in wartime, based on the best information available at that time. Because erring on the side of caution -- or civil liberties -- can be fatal when thousands, tens of thousands, and millions of lives are at stake. Muller and company are refighting past wars. Malkin is trying to help us win the present one.

UPDATE 2 (10:35 AM, 08/05/04):
Now Eric Muller writes this:
[Malkin's] book quotes extensively from a handful of deciphered messages (the "MAGIC" cables) about Japanese efforts to develop some Issei and Nisei as spies for Japan. It really all turns on those MAGIC cables. The trouble is that the historical record tells us absolutely nothing more than that Roosevelt, the Secretary of War (Stimson), and his top assistant (McCloy) generally had access to the thousands of messages of which these concerning potential Issei and Nisei spies were a tiny few. The record tells us nothing about who actually reviewed which of the intercepts, or when, or what any reader understood them to mean. The record is just silent on these issues--reflecting, in a way, the silence of the actors themselves on MAGIC at the time. One might well say (and Michelle does), "but they couldn't talk or write about the MAGIC decrypts; they were ultra-secret and everybody was keen to keep them that way." That may well be so. But that doesn't mean we can fill in the silence in the record with our own suppositions about what they must have read and what they must have thought about what they read. In short, Michelle's book presents no evidence--because, apparently, there is none--to show that MAGIC actually led anybody to think or do anything....
But there are the MAGIC intercepts. The rest is, as Muller admits, supposition. Why is his supposition any better than Malkin's? Muller then changes the subject from why the Issei and Nisei were relocated to where they were relocated:
...The federal government, having evicted Japanese Americans from their homes and confined them in the late spring of '42 in racetrack and fairground "assembly centers," wanted to move Japanese Americans to wide-open, unguarded agricultural communities in the interior, modeled after Civilian Conservation Corps camps. But in early April of 1942, the governors of the Mountain States unequivocally rejected that idea, saying (I quote here the words of Governor Chase Clark of Idaho) that "any Japanese who might be sent into [the state] be placed under guard and confined in concentration camps for the safety of our people, our State, and the Japanese themselves." The federal government, needing the cooperation of the states, had no choice but to accede to the governors' demands.

So Japanese Americans ended up going into guarded camps (call them what you will) because Mountain State governors demanded it. Do you think that the governor of Idaho had access to the MAGIC decrypts, and that he formulated his demand for "concentration camps" on the basis of an evidence-based belief of military necessity? Or do you think maybe something else explained it?...
Yes, racism probably had a lot to do with how the Issei and Nisei were treated after the federal government had ordered them out of their homes. It might have had something to do with the decision to evict them. But this is all beside the real issue, which is the wholesale suspension of civil liberties in wartime -- as a matter of military necessity. Justices Black and Frankfurter, quoted above, settled that issue in 1944, to my satisfaction.

UPDATE 3 (9:15 PM, 08/05/04)
The penultimate word goes to Greg Robinson, quoted by Eric Muller:
Michelle Malkin engages in overkill. Her stated purpose is to prove that the removal and confinement of Japanese American aliens, and particularly of citizens, was based on justifiable fears of espionage and sabotage, rather than racism (and thus to make the case for racial profiling by the Bush Administration). If this were all she wished to argue, she could have stopped with the signing of Executive Order 9066 itself. She could then more easily have made the case that the Army and the Executive felt obliged to act as they did considering the circumstances, though it was a terrible injustice to loyal citizens. After all, how the government's policy played itself out afterwards is logically irrelevant to the initial cause.
That's precisely the point I've been trying to make by quoting Justices Black and Frankfurter.

The ultimate word goes to Instapundit, because he agrees with what I've said about the Muller-Malkin exchange, namely, "most of the discussion has to do with things that happened 60 years ago, as opposed to what we ought to do now."