“It would be legal, and it would hold constitutional muster.”
Carl Higbie said that, and he was talking to a media mouthpiece about Kris Kobach’s ideas to resurrect the NSEERS program – that is, the program to force all visitors and immigrants from a list of 25 mostly Muslim-majority nations to register with the federal government.
“We did it during World War II with the Japanese,” said Higbie, the spokesman for the Great America PAC, which is one of a number of organizations currently licking Donald Trump’s shoes. Higbie went on to assure viewers that he wasn’t proposing internment camps, he was just sayin’ there’s a precedent for it.
He’s absolutely right – there is a precedent. Let’s look at it.
On 19 February 1942, President Franklin Roosevelt issued Executive Order 9066. EO9066 provided for the establishment of “prescribed” military areas from which “any or all persons may be excluded” based on the discretion of the Secretary of War or the “appropriate Military Commander.”
EO9066 was followed about three weeks later by Public Law 503, which received a total of 90 minutes of discussion across both chambers of Congress before it passed. PL503 provided for the “evacuation” of Japanese-Americans from “prescribed” military areas like, oh, all of California. (“Prescribed” in this case means “identified” or “set aside”.)
In the next few months, over 100,000 people – all of Japanese ancestry and over 70,000 of whom were American citizens – were rounded up, deprived of their private property such as homes and businesses by the US government without any sort of due process, and herded into concentration camps across the southwestern states and as far north as Colorado and Utah.
Because about half the population of Hawaii at that time was of Japanese ancestry, the government decided it would be too much of a hassle to round them up, so they only ever removed a few thousand folks from Hawaii. Logistics trump racism, I guess.
Despite concerns about sabotage and/or espionage performed by these folks, not one of these prisoners was ever convicted on any sabotage or espionage charges. None of them. NOT. ONE. Two separate government investigations into the possibility of sabotage and/or espionage on the part of the interned people showed no evidence of any such intent or effort.
In addition to the Japanese-Americans thrown into concentration camps by this action, about 10,000 German-Americans (including some Jews) and a few thousand Italian-Americans were also sent to camps. Most Americans of European ancestry didn’t stay in the camps long, but a few lingered into 1946, when the camps were finally shut down.
In December 1944, President Roosevelt rescinded EO9066 and ordered the prisoners released. Most of them ended up in resettlement camps until they could reestablish themselves. They lost their homes, businesses, other property and any money they’d had in banks – all of it gone.
That’s all background, because that’s what happened. That’s not where Higbie gets his precedent from.
A man called Fred Korematsu decided he wasn’t going to go quietly to a prison camp, so he evaded capture by hiding out with friends in Oakland, California. He was caught and arrested in late May 1942, and a lawyer called Wayne M. Collins took up his case. (Note: The ACLU stayed out of this so they wouldn’t look bad during wartime.) Korematsu posted bail, but was detained by military police anyway and held in a military jail in San Francisco until his court date in September. He was convicted of violating Public Law 503 and sentenced to probation; after that, of course, he was sent to one of the concentration camps.
(We didn’t call them that in 1942, of course – or even prison camps. We called them internment camps. Softer language because let’s not compare ourselves to the Nazis, after all. “But wait!” I hear you cry. “The US government didn’t know about those German concentration camps in 1942!” Yeah, you’re wrong about that. The US government did know about standard German concentration camps in 1942. It was much later in the war when information about the death camps started to trickle out of Poland. The typical prison-style concentration camps weren’t at all secret. The first one was built in early 1933 near Munich. Everybody knew about it, including the US government. It was because the US government knew about the concentration camps for so long that when word about the death camps started to come out, as horrifying as that was, the government believed those existed, too.)
Korematsu’s appeals eventually made their way to the US Supreme Court, where the justices voted 6-3 that, while “constitutionally suspect,” EO9066 and PL503 were justified “during circumstances of emergency and peril.” (Korematsu v. United States, 323 U.S. 214 (1944))
THAT, my friends, is the precedent. Roosevelt ordered it, Congress backed it, and the Supreme Court affirmed it. The Justice Department filed a notice in 2011 that the Solicitor General’s defense of the government’s position was in error, but the case has never been overturned.
(The Solicitor General at the time was Charles Fahy, and it was his job to take the government’s side in the case. It has long been suspected that Fahy unethically withheld the Office of Naval Intelligence report that concluded there was no evidence of sabotage or espionage on the part of Japanese-Americans.)
As much as I hate to admit it, Higbie is right. If NSEERS is brought back by the Trump administration, there is legal precedent that could allow it to pass muster with the US Supreme Court if it is ever challenged. We can only hope that the shitheads in the Senate have done their job by then and seated a new Supreme Court justice, and that those nine justices can see that the original SCOTUS decision in 1944 was mistaken and refuse to perpetuate the racist fearmongering that led to the whole situation in the first place.