“The law hath not been dead, though it hath slept.”
—Waldron v. British Petroleum
Co., 231 F. Supp. 72, 89 n.30 (S.D.N.Y. 1964) (quoting William Shakespeare, Measure for Measure, act 2, scene 2).
9/11, a rare military attack on the soil of the United States, dissipated America’s safety net. It created an unfamiliar feeling, one not felt since the attack on Pearl Harbor. As happened after Pearl Harbor, in one instant, all who “looked” like the enemy, whether they were or not, became the enemy. In a way analogous to the subsequent internment of Japanese Americans, actual and/or perceived Arab Americans were rounded up and accused of terrorism. Many, never charged, were sent to indefinite detention without due process. Almost 60 years after Pearl Harbor and Executive Order 9066, fear once again was stronger than justice.
Executive Order 9066 was issued in reaction to Pearl Harbor, authorizing the evacuation of over 120,000 Japanese Americans and residents from the West Coast to internment camps. Japanese Americans were subject to evacuation, military curfew, and exclusion orders solely because of their national origin. There were no charges brought against them, but they could not appeal their incarceration. On its face, Executive Order 9066 was discriminatory, and thus subject to strict scrutiny. Korematsu v. United States, 323 U.S. 214 (1944).
Under strict scrutiny, a racial classification is only allowed where the government meets the burden of demonstrating that discrimination is necessary to achieve a compelling state interest. Simply, the government must have an important interest that cannot be achieved through alternative means. The U.S. Supreme Court found that the government’s compelling interest was national security. The Court agreed and/or accepted the government’s argument that there was a threat that Japanese Americans on the West Coast may assist in a Japanese invasion and/or commit acts of espionage. The Court gave complete judicial deference to Congress and the military’s decision, without question.
However, the military judgment was based on racism and classified persons of Japanese descent as belonging to “an enemy race,” and the Court did not even blink twice. The military judgment was made, supported, and authorized by a military commander who condemned the whole Japanese race. Id. at 225 (Murphy, J., dissenting). There was no substantive support for military necessity. Id. There was no evidence of a specific threat or disloyalty. Id. There was no due process—no hearing, no right to confront the evidence or witnesses against you, no right to defense, no innocent till proven guilty. Furthermore, the determination by the Court that the alternative means of instituting a curfew was inadequate to protect the United States was flawed because the curfew itself was discriminatory.
Japanese Americans were isolated, confined, fenced in, and guarded like criminals. But why was this really okay? While the Court is bound by and tasked with solely interpreting and upholding the Constitution, the Court’s decisions have been reflective of the times of society and whether what it deemed society was ready for. Society’s fears underlying Korematsu and the inherent biases against the foreigner, the immigrant, and the “other” allowed this to be permissible. Both Japanese Americans and Japanese residing in the United States had endured harsh discrimination before Pearl Harbor. The Immigration Act of 1924 prohibited Japanese from immigrating to the United States and Japanese immigrants in the United States from becoming U.S. citizens. Property and homes were only rented out and/or sold to Japanese in specific areas. Japanese Americans’ economic success and tendency to, like most immigrant groups, establish their own ethnic neighborhoods and separate businesses and schools created prime breeding grounds for further igniting society’s distrust and bias. These fears were translated into themes of espionage and potential sabotage following Pearl Harbor. Pearl Harbor propaganda attacking the Japanese emerged. “But who are Japanese nevertheless. A viper is nonetheless a viper wherever the egg is hatched.” W.H. Anderson, The Question of Japanese-Americans, L.A. Times (Feb. 2, 1942). Lobbyists with competing economic interests of Japanese business owners pressured Congress and the Executive Office to evacuate the Japanese from the West Coast. In the wake of the evacuation, the majority of the Japanese Americans detained lost their homes, businesses, and property.
The fears that fueled the Korematsu decision are akin to those of our post-9/11 society. Fears of disloyalty, distrust, and the new “other,” Arabs and Muslims, reemerged. See Council on Am.-Islamic Relations, Leg islating Fear: Islamophobia & Its Impact in the United States (2013). Propaganda and the media continue to play a major role in shaping how society views Arab Americans and in igniting fear. Television shows such as Homeland and Tyrant and movies such as American Sniper employ negative stereotypes and engage in mischaracterization of Arabs to play off of 9/11 fears. Arabs are portrayed as sneaky, criminals, and un-American. Films and television programs also create a sense of righteousness or comfort in the targeting of a group because members of the group are the “enemy.”
Many of these fears were fueled and driven by pre-9/11 bias and envy in response to Arab Americans’ actual and/or perceived wealth and economic power, as well as fear of Arab cultural separateness and perceived lack of Americanization. Race and Arab Americans Before & After 9/11: From Invisible Citizens to Visible Subjects (Amaney Jamal & Nadine Naber eds., Syracuse Univ. Press 2008). Before 9/11, more hate crimes were committed annually against Arab Americans relative to two other minority groups: hate crimes against Arab Americans were 30 percent more common than those committed against Asian Americans and 80 percent more common than those committed against Latino Americans. William B. Rubenstein, The Real Story of U.S. Hate Crime Statistics: An Empirical Analysis, 78 Tul. L. Rev. 1213 (2004). Terrorism became the catalyst for America’s deep-seated biases. This is evident by the ease with which society has deemed all Arabs guilty by ethnic association, as is reflected in the labeling of New York and Michigan as top terrorism breeding grounds and the counter-extremism programs’ focus in Arab and Muslim communities.
Korematsu and the WWII internment camp cases laid the foundation for the devastating concept that it is permissible to discriminate—that is, to target and profile a group of people without due process, without evidence, and without probable cause. Yes, Korematsu is alive and kicking.
Korematsu is alive in Hassan v. City of New York, 2014 U.S. Dist. LEXIS 20887 (D. NJ 2014), where the District Court for the District of New Jersey stated, “. . . surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.” Id. (currently on appeal to the 3d Circuit, Hassan v. City of New York, No. 14-1688 (2014)). The New York City Police Department (NYPD) treated with suspicion any person who identified as Muslim, had Islamic beliefs, and/or engaged in Islamic practices— basically all Muslims. Since 2002, the NYPD has conducted pervasive surveillance on Muslim American communities in New York and New Jersey, monitoring and mapping communities, businesses, and institutions. There was no probable cause to warrant the NYPD’s conduct, nor was there suspicion of criminal activity or links to terrorism.
Korematsu is alive in the placement of persons on watchlists and in the FBI’s tracking of what it deems threat-based populations. Aud it Div., Off ice of the Inspec tor Gen., U.S. Dep ’t of Justice , Aud it of the Fede ral Bureau of Investigation’s Manage ment of Terrorist Watchlist Nominations (Mar. 2014). Persons placed on no-fly lists are disproportionately Arab or Muslim. The probable cause standard is not applied; merely “reasonable suspicion” and sometimes an even lower standard justifies watchlist placement. Over 40 percent of persons placed on the list have no ties to terrorism or criminal activity. See id.; Jeremy Scahill & Ryan Devereaux, Barack Obama’s Secret Terrorist- Tracking System, by the Numbers, The Intercep t (Aug. 5, 2014). Nevertheless, government agencies continue to place such subjects on the watchlist and keep persons on the watchlist even after their cases are closed.
Korematsu’s remnants are evident in the arbitrary secondary screenings of the Transportation Security Administration (TSA). Thousands of Arabs have been subjected to secondary screenings, which are not quite as random as portrayed but still base strong likelihood assessments on national origin. The “Selectee List,” provided to TSA officers, is a list of 12 countries that automatically trigger special screening at airports, 10 of which are Arab countries. Former O’Hare TSA Agent Spills Secrets, NB C Chicago (Feb. 3, 2014).
Korematsu is alive in the Foreign Intelligence Surveillance Court (FISC) and its use of secret evidence. FISC gives complete deference to the government’s request for warrants to conduct monitoring or surveillance largely on the basis of secret evidence, which FISC itself is not privy to and cannot, therefore, evaluate. In a court system that does not provide due process, an accused cannot challenge the warrant—the accused is not even present.
Korematsu’s remnants are evident in the denial of due process evident in the Department of Homeland Security’s Traveler Redress Inquiry Program (TRIP). Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014). TRIP allows persons denied boarding to submit a request to be allowed to fly and/or be removed from the no-fly list. However, no definitive reasons, opportunities to challenge, or substantive redress are provided for placement on the no-fly list.
Unfortunately, the United States has not lived up to President Gerald R. Ford’s 1976 proclamation, “An American Promise.” We have not learned from the tragedy of Korematsu to “treasure liberty and justice for each individual American.” As long as society accepts the current status and treatment of Arabs and Muslims in the United States, we are all in a dangerous position, including the institution of the Supreme Court.