A Commitment to Civic Education by
Attorneys, Teachers and the Judiciary
Operation Protect and Defend – 2017 Program
This year marks the 75th anniversary of Executive Order 9066 and the subsequent internment and
incarceration of Japanese-Americans under that order.1
2016 Election Campaign. During the 2016 presidential election campaign, President Donald
Trump said he would consider requiring all Muslims to register in a national database and even
supported internment. He pointed to the internment of Japanese-Americans during World War II
by President Roosevelt (Good Morning America Interview, December, 2015) and President
George W. Bush’s National Security Entry-Exit Registration System (NSEERS) program (ABC
News, November, 2015) as precedent for the internment and registration of Muslims.
During the campaign, Trump also called for rounding up and deporting 11 million undocumented
immigrants and an additional 4.5 million American citizens born to immigrant parents. (60
Minutes, September, 2015)
Parallels to these concepts have been drawn to the incarceration of Japanese-Americans during
World War II and the lessons learned from that experience.
WWII: The Japanese-American Internment Cases
On December 7, 1941, the Empire of Japan destroyed much of the American Pacific fleet in a
surprise attack on Pearl Harbor. The next day, the United States declared war upon Japan. On
February 19, 1942, concerned about a potential Japanese invasion of the West Coast, President
Franklin D. Roosevelt signed Executive Order 90662, which authorized military commanders to
define “military areas” and impose any restrictions or exclude anyone from those areas.
1
Internment is a legal term for wartime incarceration of enemy soldiers and selected enemy alien civilians under the
Alien Enemies Act. During World War II, the government subjected Japanese-Americans to two main types of
incarceration: the forced relocation to camps in the interior of the United States of about 120,000 persons of Japanesedescent, the majority of whom were American citizens, under Executive Order 9066; and the internment of several
thousand Japanese immigrants under the Alien Enemies Act by the Justice Department. These two terms are often
confused.
2
An executive order can be issued by the President to agents of the executive branch and has the full force of law. It
can also be subject to review by the U.S. Supreme Court.
Operation Protect & Defend
846688.1
1
The Japanese Internment
Executive Order 9066
Executive Order 9066 authorized the Secretary of War to designate certain areas as military zones
to provide “every possible protection against espionage and against sabotage” to the national
defense. Although persons of Japanese descent were not mentioned in the order, it set the stage for
their exclusion from these areas and their imprisonment and forced relocation from the West Coast
which was designated, in large part, a military zone. The order read, in pertinent part:
I hereby further authorize and direct the Secretary of War and the said Military Commanders to
take such other steps as he or the appropriate Military Commander may deem advisable to
enforce compliance with the restrictions applicable to each Military area herein above authorized
to be designated including the use of Federal troops and other Federal Agencies, with authority to
accept assistance of state and local agencies.
I hereby further authorize and direct all Executive Department, independent establishments and
other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying
out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing,
transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and service.
In March of 1942, Congress passed a law making violation of any restriction imposed by military
commanders a misdemeanor crime, subject to fine and/or imprisonment. General John L. DeWitt,
the Military Commander for the Western Defense Command, defined the entire West Coast as a
military area and imposed a curfew on all people of Japanese ancestry, and later ordered them
removed from the area and incarcerated in camps away from the coast and Sacramento.
Under Executive Order 9066, the West Coast community of over 120,000 persons of Japanese descent was
incarcerated, over 70,000 of who were U.S. citizens. Under the Alien Enemies Act, the Justice Department
separately interned several thousand selected Japanese immigrants. Outside of California, approximately
2,000 non-citizen Italian nationals were interned out of a population of 695,000 and approximately 11,000
non-citizen German nationals were interned out of a population of 1.2 million. At the time of the war, the
population of Hawaii, over 423,000, was over 40% Japanese-American yet only a small percentage was
interned.
Operation Protect & Defend
846688.1
2
The Japanese Internment
Vocabulary and Concept List
Civil Liberties:
Civil Disobedience:
Concurring Opinion:
Dissenting Opinion:
Due Process:
Equal Protection:
Executive Order 9066:
Habeas Corpus:
Remand:
Resident Alien:
Vacate:
War Powers:
Operation Protect & Defend
846688.1
3
The Japanese Internment
Vocabulary and Concept List: Teacher Reference Sheet
Civil Liberties: certain rights guaranteed to United States citizens by the Constitution’s
Bill of Rights. These rights include the right to not have your home searched without a court
order, to not be taken into police custody without probable cause, to not remain in police custody
without a hearing, and in a very basic sense to live freely without undue government intrusion
Civil Disobedience: non-violent acts that violate a law that the person considers unjust, in
order to challenge its validity or otherwise gain public support for changing the law
Concurring Opinion: the written opinion of a Supreme Court justice who agrees with the
outcome of the Court’s decision, but offers alternative reasoning for the outcome
Dissenting Opinion: the written opinion of a Supreme Court justice who disagrees with the
Court’s majority opinion
Due Process: the right of citizens to not have liberty or property taken away without a fair
hearing or a compelling and explainable government reason, based on the Fifth
Amendment
Equal Protection: the right of each citizen of the United States to enjoy the same benefits,
protections and responsibilities under the law, based on the Fifth and Fourteenth Amendments
Executive Order 9066: order by President Roosevelt authorizing exclusion of anyone the
military deemed a risk from military areas, which led to the Japanese-American mass
incarceration
Habeas Corpus: Latin, translates into “bring forth the body.” Habeas Corpus is the right of
a person to a court appeal to test the legality of an imprisonment or detention. The Constitution
prohibits suspension of this right, “unless when in cases of rebellion or invasion the public safety
may require it.”
Remand: the order of an appellate court that tells the lower court what to do after the
appellate court has reviewed and overturned the lower court’s action
Resident Alien: a person who legally lives in the United States but is not a citizen
Vacate: act of an appellate court when it overturns and invalidates a lower court decision
War Powers: the power of the President to act as commander-in-chief of the military, including
expanded authority to act with fewer checks and balances during war; and the power of Congress
to declare war and otherwise enact laws to defend the nation
Operation Protect & Defend
846688.1
4
The Japanese Internment
Minoru Yasui
In December of 1941, Minoru Yasui, the first Japanese-American to challenge the military
actions, refused to comply with an evening curfew imposed on people of Japanese ancestry.
Yasui violated the curfew order and requested that he be arrested so that he could test its
constitutionality.
The Constitution allows a curfew to be imposed on citizens in time of war. The trial court
ruled that the curfew was unconstitutional as applied to United States citizens, but convicted
Yasui because it determined that Yasui had renounced his citizenship by working for the
Japanese consulate. The Supreme Court upheld the conviction but disagreed with the trial court,
stating that the curfew was constitutionally appropriate for American citizens in times of war.
Who Was Minoru Yasui?
Minoru Yasui was one of four young Japanese-Americans who challenged parts of the U.S.
Government’s World War II incarceration under Executive Order 9066 and took their cases all the
way to the Supreme Court. Yasui intentionally violated the Government’s nighttime curfew on all
people of Japanese ancestry – regardless whether they were citizens or not. After police officers
refused to arrest him on the street, he turned himself into a police station so he could challenge the
Constitutionality of the Government’s actions against Japanese people. His personal history may
give you some hint of why he would ask to go to prison.
American
Citizen:
Born in October 1916 in Hood River, Oregon.
(He was in his 20’s during WWII.)
Attorney:
Earned his undergraduate (1937) and law degree (1939) at the University of
Oregon and joined the Oregon Bar. However, no Portland law firm would hire
him so he moved to Chicago to work for the Japanese Consulate. He quit that
job one day after Japan attacked Pearl Harbor, to rejoin the U.S. Army.
Army
Officer:
Volunteered for ROTC at University of Oregon in 1935. Received a commission
in the Army Infantry Reserve as a second lieutenant in 1937. The day after Pearl
Harbor was attacked, he tried to leave Chicago to return to his base, but the ticket
agent refused to sell him a ticket because he was “Oriental.” Several days later, the
Army sent him a telegram ordering him to report for duty at Fort Vancouver.
Before his formal induction, however, the Army decided that he was unacceptable
for service and ordered him off the base. He returned eight times to offer to serve,
but was refused each time.
Christian:
Although Yasui grew up in the Methodist Church, the federal judge questioned
him closely about the Shinto religion practiced in Japan, which worships the
Emperor as a god. Yasui denied any Shinto beliefs.
Operation Protect & Defend
846688.1
5
The Japanese Internment
Patriotic:
Challenged Government order to reclaim and defend his status as American
citizen. In his view, sacrificing his “fundamental rights of citizenship” might
contribute to the “destruction of the very fundamental basis of this country.”
Tried to convince other young, jailed, Japanese-American draft resisters to join the
American Army.
Father
Interned:
Not long after the attack on Pearl Harbor, Yasui’s father, who had immigrated
from Japan to the U.S. 33 years earlier was arrested and interned under the Alien
Enemies Act by the Justice Department for allegedly supporting Japan. Yasui
tried to serve as his father’s attorney, but the Government did not allow his father
to have an attorney at the hearing where he was classified as disloyal on little
more than the fact that Japan had given him an award for being a leader in his
Oregon community. His father remained in detention until 1954.
Operation Protect & Defend
846688.1
6
The Japanese Internment
Operation Protect & Defend
846688.1
7
The Japanese Internment
A Sacramento connection:
Mitsuye Endo
Mitsuye Endo, an American citizen of Japanese ancestry living in Sacramento, California, could not speak
or write Japanese. She worked at the Department of Motor Vehicles. Her brother served in the U.S.
Army. In 1942, Endo voluntarily submitted to the military order that removed her from Sacramento and
ultimately placed her in a War Relocation Authority camp in Utah. Endo’s attorney filed a writ of habeas
corpus arguing that she was a loyal and law abiding U.S. citizen who faced no charges and that she was
unlawfully detained and held against her will. The War Relocation Authority conceded that she was a
“loyal and law-abiding citizen” and offered to release her if she stayed out of California. Endo refused
release so that the U.S. Supreme Court would take her case. Her case was decided the same day as
Korematsu below. The Justices in Endo’s case unanimously ruled that the U.S. government could not
continue to detain a citizen who was “concededly loyal” to the United States. The Court held:

Congress never authorized long-term detention of Japanese Americans, only exclusion. The
Executive Orders never “used the language of detention,” but talked only of exclusion from military
areas. Thus, we must assume “that the law makers intended to place no greater restraint on the citizen
than was clearly and unmistakably indicated by the language they used.” Ms. Endo’s continued
detention was neither authorized nor justified by the urgency of war and she must be given her liberty.

“A citizen who is concededly loyal presents no problem of espionage or sabotage. The authority
to detain a citizen or to grant him a conditional release as protection against espionage or sabotage
is exhausted at least when his loyalty is conceded.”

Constitution gives Congress and the President wide latitude to deal with the wartime issues.
However, the Constitution is equally specific in providing procedural safeguards surrounding the arrest,
detention and conviction of individuals, including that no person shall be deprived of liberty without
due process of law. Endo must be freed.
Operation Protect & Defend
846688.1
8
The Japanese Internment
Korematsu v. United States (1944) 323 U.S. 214
Background of the Case
Shortly after the attack on Pearl Harbor, President Roosevelt authored Executive Order No. 9066,
granting the Commanding General the power to promulgate military orders to wage war. These
orders required persons of Japanese descent: to be excluded from certain West Coast areas; to
report at temporary detention centers and then to be imprisoned in War Relocation Authority
camps. Most of the people who were imprisoned lived on the West Coast and two-thirds were
American citizens. Over the course of about 14 weeks, the military transported more than 120,000
people to 26 sites in seven western states.
Fred Korematsu, 23, was an American citizen of Japanese descent who did not comply with the
order to leave. After his arrest, while waiting in jail, he decided to allow the American Civil
Liberties Union to represent him and make his case a test case to challenge the constitutionality of
the government’s order.
He was tried in federal court and convicted of remaining in a military area contrary to military
orders issued pursuant to Executive Order 9066. He was given five years on probation and sent to
an assembly center in San Bruno, California.
Korematsu’s attorneys appealed the trial court’s decision to the U.S. Court of Appeals, which
agreed with the trial court that he had violated military orders. Korematsu asked the Supreme
Court of the United States to hear his case. On December 18, 1944, a divided Supreme Court ruled,
in a 6-3 decision, that the detention was a “military necessity” not based on race.
Court Ruling
The Supreme Court upheld Mr. Korematsu’s conviction finding that the Executive Order and
subsequent act of Congress were aimed at “the twin dangers of espionage and sabotage”. The
Court went out of its way to state that its ruling was not based on racial antagonism:
Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a
concentration camp because of racial prejudice. Regardless of the true nature of the assembly and
relocation centers -- and we deem it unjustifiable to call them concentration camps with all the ugly
connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast
this case into outlines of racial prejudice, without reference to the real military dangers which were
presented, merely confuses the issue.
The Court stated “[l]ike curfew, exclusion of those of Japanese origin was deemed necessary
because of the presence of an unascertained number of disloyal members of the group, most of
whom we have no doubt were loyal to this country.” The Court accepted the government’s claim
“that it was impossible to bring about an immediate segregation of the disloyal from the loyal.”
Operation Protect & Defend
846688.1
9
The Japanese Internment
The Court stated: “Citizenship has its responsibilities as well as its privileges, and in time of war
the burden is always heavier.”
Concurrence
Justice Frankfurter concurred deferring to the President and Congress with regard to waging war.
He quoted Chief Justice Hughes that “the war power of the Government is ‘the power to wage war
successfully.’”
Dissent
Justices Roberts, Murphy and Jackson dissented. They felt that the military orders were confusing
and contradictory. Justice Murphy also wrote separately. He felt that the “exclusion goes over
‘very brink of constitutional power’ and falls into the ugly abyss of racism.” He stated “no
reasonable relation to an ‘immediate, imminent and impending’ public danger is evident to support
this racial restriction which is one of the most sweeping and complete deprivations of
constitutional rights in the history of this nation in the absence of martial law.” He pointed out that
“[n]o adequate reason is given for the failure to treat these Japanese Americans on an individual
basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in
the case of persons of German and Italian ancestry. He called the majority opinion “the
legalization of racism.”
Justice Jackson also wrote separately finding that there was no evidence at all that their orders
were done out of military necessity. He seemed to foresee the future effect of the majority’s
holding:
But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather
rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time
has validated the principle of racial discrimination in criminal procedure and of transplanting American
citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can
bring forward a plausible claim of an urgent need.
Reopening the Case
In 1983, a pro bono legal team with new evidence re-opened the 40-year-old case in a federal
district court on the basis of government misconduct. They showed that the government’s legal
team had intentionally suppressed or destroyed evidence from government intelligence agencies
reporting that Japanese Americans posed no military threat to the U.S. The official reports,
including those from the FBI under J. Edgar Hoover, were not presented in court. On November
10, 1983, Judge Marilyn Hall Patel overturned Korematsu’s conviction in the same San Francisco
courthouse where he had been convicted as a young man.
The district court ruling cleared Korematsu’s name, but the Supreme Court decision still stands.
Operation Protect & Defend
846688.1
10
The Japanese Internment
Political Cartoon Analysis:
1.
What prior knowledge do you need to have to understand the cartoon?
2. What is the topic of the cartoon?
3. What is the cartoonist’s message about this topic?
Operation Protect & Defend
846688.1
11
The Japanese Internment
CONFISCATIONS FROM JAPANESE-AMERICANS DURING WORLD WAR II
by Richard Lawrence Miller (c) 2001 Richard Miller
Internment was publicized as a national security measure responding to a military threat.
Contemporary observers, however, wondered if internment was actually directed against an
economic threat that some Americans saw in fellow Americans of Japanese descent. One half of
employed Japanese-Americans on the West Coast were in agriculture. They were the largest force
in California's fruit and vegetable markets; agricultural experts expected thirty-five percent of
California's 1942 truck crops to come from Japanese-Americans. Japanese-American farms in
1940 were worth $72 million plus $6 million in equipment. Per acre their farms were worth
$279.96, in contrast to the average value of $37.94 for all California farms. "I find no popular
demand for the efforts to drive the so-called alien enemies from California," said one indignant
attorney. "The clamor seems to come from chambers of commerce, Associated Farmers, and the
newspapers notorious as spokesmen for reactionary interests. In view of this fact, effort should be
made to determine whether there is any connection between the clamor for the dispossession of the
Japanese farmers and the desire of these clamoring interests to get possession of the Japanese
farms and the elimination of the Japanese competition." The attorney's analysis was shared by
others. "The great cry of 'Kick the Japanese out of the Yakima Valley' is not due to fear of
sabotage, it is due to economic reasons. As one person naively explained to me, 'The white farmer
would have more land and more water if he could get rid of the Japanese, and he could demand a
higher price for his farm produce.'"
An editorial in Christian Century warned against "action whose real end is the destruction of
Japanese competitors of American firms." The Japanese-American Citizens League in Seattle
reported "agitation being conducted by interests which would profit from removal of Japanese."
The Grower-Shipper Vegetable Association was frank on this point: "If all the Japs were removed
tomorrow, we'd never miss them in two weeks, because the white farmers can take over and
produce everything the Jap grows. And we don't want them back when the war ends, either."
Attorney General Francis Biddle told President Roosevelt, "Various special interests would
welcome their [Japanese-American] removal from good farm land and the elimination of their
competition." Said one Monterey County farmer about the exodus of Japanese-Americans, "We
can go out to our American farmers and from a patriotic standpoint, if nothing else, get them to
take up any part of the acreage that the canners deem sufficient or necessary to maintain
California's position in the production of canned tomatoes." The California Evacuated Farms
Association of the U.S. Farm Security Administration helped farmers acquire property of
Japanese-American competitors. This help apparently included "special loans." A victim described
how such loans could work. "Negotiations were made through the Farm Security Administration to
then sell the crop and all farm equipment to a Caucasian. A loan was secured by this Caucasian to
pay Manhichi for the agreed price. Before the loan arrived, Manhichi was sent to the Walerga
Assembly Center [a minimum security prison]. The Caucasian . . . returned the loan to the Farm
Security Administration, clearing himself of his debt. . . . To this day, my dad never received a
penny from that particular sale."
Operation Protect & Defend
846688.1
12
The Japanese Internment
Japanese-American Internment Key Quotations
General John L. DeWitt (Army Officer who ordered Japanese-American mass
incarceration under Executive Order 9066) Final Report: Japanese Evacuation from the West
Coast (War Department, 1942): Racial affiliations are not severed by migration. The Japanese
race is an enemy race and while many second - and third-generation Japanese born on United
States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains
are undiluted. It then follows that along the vital Pacific Coast over 112,000 potential enemies, of
Japanese extraction, are at large today. There are indications that these were organized and ready
for concerted action at a favorable opportunity. The very fact that no sabotage has taken place to
date is a disturbing and confirming indication that such action will be taken.
California Governor Earl Warren, Los Angeles Times, June 22, 1943:
Releasing the Japanese Americans back to the West Coast would result in widespread
sabotage and “a second Pearl Harbor in California.”
Supreme Court Justice Frank Murphy, Concurring Opinion, in Ex Parte Endo:
[R]acial discrimination of this nature bears no reasonable relation to military necessity and is
utterly foreign to the ideals and traditions of the American people.
President Franklin Delano Roosevelt, Statement, creating Japanese-American 442nd
Regimental Combat Team, February 1, 1943:
No loyal citizen of the United States should be denied the democratic right to exercise the
responsibilities of his citizenship, regardless of his ancestry. The principle on which this
country was founded and by which it has always been governed is that Americanism is a matter
of the mind and heart; Americanism is not, and never was, a matter of race or ancestry.
Marion Weddell, letter to President Roosevelt, Dec. 23, l942:
We were told these relocation camps were not for internment but for refuge.
Did the W.R.A. really have the power to intern American citizens? Is it reasonable for Japanese
Americans to be interned and Germans and Italians, not? Is not the very essence of our democracy
that we are made up of all races and colors? We are all tied together by the idea of democracy.
That is what all our boys are fighting and suffering for. If we cannot all stand before the law in
equal liberty and freedom to live our lives regardless of race, creed, or color — then WHAT
PRICE DEMOCRACY?
Congressman John Coffee, December 8, 1941:
It is my hope that residents of the U.S. of Japanese extraction will not be made victim of
pogroms directed by self-proclaimed patriots and by hysterical self-anointed heroes. . . Let us
not make a mockery of our Bill of Rights by mistreating these folks. Let us regard them with
understanding, remembering they are victims of a Japanese war machine, with the making of
international policies of which they had nothing to do.
Operation Protect & Defend
846688.1
13
The Japanese Internment
Day 2:
Key Quotations: Japanese-American Internment
Read the quotations from the 1940s regarding the incarceration of Japanese-American citizens.
Consider all that you have learned from the Constitution about civil liberties, and respond to TWO
of the quotations. On what grounds would you challenge the speaker and what did you find
particularly compelling about each quote?
1.
2.
Operation Protect & Defend
846688.1
14
The Japanese Internment
Political Cartoon Analysis:
1. What prior knowledge do you have that helps you understand this cartoon?
2.
What is the topic of the cartoon?
3.
What is the message of the cartoonist about this topic?
Operation Protect & Defend
846688.1
15
The Japanese Internment
Proposal for Muslim Registry Key Quotations
Presidential Candidate Donald Trump, December 8, 2015, to Time magazine on whether he would
have supported or opposed the internment of Japanese Americans during World War II: “I would have
had to be there at the time to tell you, to give you a proper answer,” he said during a recent interview in
his office in New York City.
Presidential Candidate Donald Trump, Interview with NBC News, November 20, 2015:
“I would certainly implement [Muslim databases]. Absolutely," Trump said in Newton, Iowa, in
between campaign town halls. “There should be a lot of systems, beyond databases. We should have a
lot of systems.” When asked whether Muslims would be legally obligated to sign into the database,
Trump responded, "They have to be — they have to be."
Utah Attorney General Sean Reyes, November 21, 2016:
“When President Ronald Reagan signed the Civil Liberties Act in 1988, apologizing for the Japanese
internment during World War II, it was a significant acknowledgment of the humiliation, degradation
and pain suffered by thousands in the Japanese-American community, including some of my own
friends and family. These were loyal American citizens stripped of their rights, freedom, and hardearned property based solely on heritage.
Reference to the Japanese internment as a legal prerogative for any policy is offensive and counter to
the highest ideals to which we aspire as a nation. I join in President Reagan’s past recognition of the
injustice of the Japanese internment, as well as in President-elect Donald Trump’s rejection of the
formulation of a registry or system that tracks individuals based on their religion.
Like many Americans, I am gravely concerned about national security and the threat of radical groups
that would do us harm. And, collectively, we will continue to grapple with difficult decisions balancing
the safety of our country and the liberties to which we are all entitled. The justification for whatever
policies we adopt cannot be rooted in the Japanese internment or any of the other darkest mistakes in
our nation’s history, from slavery and segregation to sterilization and extermination. These are not the
ideals of a free people.”
Kansas Secretary of State Kris Kobach, Reuters interview, November 16, 2016:
To implement Trump's call for "extreme vetting" of some Muslim immigrants, Kobach said the
immigration policy group could recommend the reinstatement of a national registry of immigrants and
visitors who enter the United States on visas from countries where extremist organizations are active.
Kobach helped design the program, known as the National Security Entry-Exit Registration System,
while serving in Republican President George W. Bush's Department of Justice after the Sept. 11,
2001, attacks on the United States by al Qaeda militants.
Carl Higbie, Great America PAC spokesman appearing on Fox News, November 17, 2016:
Discussing plans for a Muslim registry, "We've done it based on race, we've done it based on religion,
we've done it based on region," he said. "We've done it with Iran back — a while ago. We did it during
World War II with [the] Japanese."
Operation Protect & Defend
846688.1
16
The Japanese Internment
Day 3
Key Quotations on Proposal for a Muslim Registry
Read the quotations from the past 12 months. Consider what lessons may have been learned
during World War II from the internment experience. Now select two quotes and respond to each
speaker. On what Constitutional and historical grounds might you challenge the speaker and what
did you find compelling about each of the quotes?
1.
2.
Operation Protect & Defend
846688.1
17
The Japanese Internment
Do The Internment Cases Still Matter Today?
World War II may seem like a long time ago. It ended more than 70 years ago, an event
remembered firsthand only by our grandparents or other distant ancestors. However, upon
further reflection, there may be some obvious connections between then and now.
When the United States Government incarcerated over 120,000 persons of Japanese
ancestry –– both immigrants and American citizens born in this country –– the country feared
imminent attack, after the Empire of Japan executed a sneak attack on our nation’s navy at
Pearl Harbor. The United States Army claimed at the time that Japanese people living here
might be spying to aid Japan. As a result, they were interned –– without trials –– at camps
across the country, to prevent them from helping Japan. Their detention was upheld by the
Supreme Court of the United States in a series of decisions called the Internment Cases.
After 9/11. Almost 60 years later, the government reacted differently after the terrorists
attacked the United States on 9/11. The government asked the public not to attack or condemn
all Arabs or Muslims simply because the terrorists who had launched the 9-11 attacks were
Arab and Muslim. With substantial international and domestic support, the United States sent
the military to attack the Taliban government in Afghanistan and Iraq which had supported the
terrorists. Congress also passed the USA PATRIOT Act which gave federal law enforcement
the tools it requested to prevent another terrorist attack. The Act’s passage provoked criticism
that it potentially violated Constitutional rights, such as the right to avoid unreasonable search
and seizures.
What are “enemy combatants?” The government started imprisoning alleged terrorists
on its naval base at Guantanamo Bay, Cuba. Most were captured in Afghanistan during the war
and flown to Guantanamo. The government claimed a right to incarcerate the prisoners without a
trial because they were “enemy combatants.” However, one of these “combatants” was captured
in this country, but placed in military custody. Through the efforts of lawyers fighting for these
prisoners’ Constitutional rights, federal courts all the way up to the Supreme Court began
hearing cases challenging their imprisonment.
On June 28, 2004, the Supreme Court issued three decisions, including Hamdi v.
Rumsfeld below, that upheld the prisoners’ right to a hearing, albeit in some cases more limited
than a full-blown trial. Some parts of those decisions actually referenced the Internment Cases
that were decided six decades earlier. These 2004 decisions show that the United States still
has not resolved the tension between Constitutional rights and the government’s war powers.
A later 2006 decision, Daud v. Gonzales, seemed to foreshadow President-Elect Trump’s
proposed Muslim database.
Operation Protect & Defend
846688.1
18
The Japanese Internment
Hamdi v. Rumsfeld (2004) 542 U.S. 507
Background of the Case
One week after 9/11, Congress passed a law allowing the President to use “all necessary and
appropriate force” against “nations, organizations, or persons” associated with the attacks. Yaser
Hamdi, an American citizen raised in Saudi Arabia, was captured in Afghanistan and detained at a
naval brig in South Carolina. The Government classified him as an “enemy combatant” and had
held him for over two years prior to the Supreme Court ruling. The Government claimed that it
could hold him “indefinitely--without formal charges, proceedings or right to counsel--unless and
until it makes the determination that access to counsel or further process is warranted.”
Court Ruling
The Supreme Court recognized the tension between the authority the Government needs to pursue
a particular goal (e.g., military action) and the due process to which a citizen is entitled under the
Constitution. The Court held that Mr. Hamdi was entitled to “notice of the factual basis for his
classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral
decisionmaker.”
The Court was concerned about separation of powers:
In so holding, we necessarily reject the Government's assertion that separation of powers
principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the
position that the courts must forgo any examination of the individual case and focus exclusively
on the legality of the broader detention scheme cannot be mandated by any reasonable view of
separation of powers, as this approach serves only to condense power into a single branch of
government. We have long since made clear that a state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens.
The Court reiterated that “detention may last no longer than active hostilities” but recognized that
“the practical circumstances of a given conflict [may be] entirely unlike those of the conflicts that
informed the development of the law of war
Concurrence
Justice Souter agreed with the Court’s decision but wrote a separate opinion concurring in part
and dissenting in part, noting that Congress had repealed the Government’s authority to detain
anyone reasonably thought to be a spy without a hearing because Congress wanted to avoid a
repeat of the incarceration as described in Korematsu.
Operation Protect & Defend
846688.1
19
The Japanese Internment
Dissent
Justice Scalia, joined by Justice Thomas and Justice Souter (in part) felt that the Government’s
only recourse was to either institute criminal proceedings for treason or for Congress to suspend
the writ of habeas corpus (which it has very rarely done.)
Justice Thomas believed that Hamdi’s due process rights had to give way to the “Government’s
overriding interest in protecting the Nation.”
Daud v. Gonzales (2006) 207 Fed. Appx. 194
Background of the Case
Mohammad Daud had filed for asylum, claiming that he would be persecuted if he was sent back
to Pakistan. He challenged the denial of his asylum petition, claiming that the program that had
brought him to the government’s attention, the National Security Entry Exit Registration System
(NSEERS), was unconstitutional. NSEERS was a program implemented by the Bush
administration after 9/11 requiring immigrants from certain predominantly Muslim countries to
register with the government. Daud complied and claimed that the program violated his rights to
equal protection under the Fifth Amendment’s Due Process Clause.
Court Ruling
The court denied his request holding that it did not have jurisdiction to consider his claim because
of deference to both the executive and legislative branches in immigration affairs. The court held
that “the classifications drawn by the NSEERS program cannot in any way be characterized as
‘outrageous’” such that the program would be unconstitutional. The court held that NSEERS did
not discriminate on the basis of religion but simply made distinctions based on nationality or place
of origin.
Operation Protect & Defend
846688.1
20
The Japanese Internment
Obama administration ending program once used to track mostly
Arab and Muslim men
By Kevin Liptak and Shachar Peled, CNN
Updated 2:23 PM ET, Thursday, December 22, 2016
Washington (CNN) The Obama administration said Thursday it was ending a dormant program
that once was used to track mostly Arab and Muslim men.
"The Department of Homeland Security is removing outdated regulations pertaining to the
National Security Entry-Exit Registration Systems (NSEERS) program, with an immediate
effective date," said Neema Hakim, a department spokesman.
The program was suspended in 2011. Hakim said the "intervening years have shown that NSEERS
is not only obsolete, but that its use would divert limited personnel and resources from more
effective measures."
President-elect Donald Trump has suggested instituting a program that would track Muslim
immigrants to the United States. Trump adviser Kellyanne Conway said on CNN's "New Day"
Thursday that Trump would not pursue a ban on Muslim immigration to the US based only on
religion.
"You're going back to over a year ago in what he said about the (Muslim) ban versus what he said
later about it, when he made it much more specific and talked about countries where we know that
they've got a higher propensity of training and exporting terrorists," she told CNN's Chris Cuomo
after he prodded her to share more details of Trump's plan.
New York State Attorney General Eric Schneiderman on Wednesday called on Obama to
dismantle the NSEERS program. In a letter addressed to Obama, Schneiderman wrote that
NSEERS, created after the September 11, 2001, terror attacks, did not reduce terrorist activity and
instead "undermined trust" in law enforcement and instilled fear in some communities.
"We can't risk giving President-elect Trump the tools to create an unconstitutional religious
registry," Schneiderman said in a separate statement. Schneiderman praised Obama's decision
Thursday.
"This is a win for civil rights and for smart, effective law enforcement, as well as for the strong
coalition of advocacy organizations and others who fought to dismantle this discriminatory tool,"
he said. "My office will continue do everything it can to protect the rights of all New Yorkers, and
ensure equal justice under the law for all, regardless of religion or national origin."
New York City Mayor Bill de Blasio also hailed the program's end. "The program was a failed
counterterrorism tool, was highly discriminatory, and led to widespread fear and needless
dislocation of families across the United States," he said in a statement.
Operation Protect & Defend
846688.1
21
The Japanese Internment
Last month, nearly 200 organizations, led by the American-Arab Anti-Discrimination Committee
(ADC), asked Obama to abolish the program before he leaves office.
NSEERS, sometimes called "Special Registration," was a program for registering and monitoring
non-citizen visa holders -- such as students, workers and tourists -- that President George W.
Bush's administration enacted a year after the 9/11 attacks.
The program affected males 16 or older from 25 countries. With the exception of North Korea, all
the countries on the list were Arab or had majority Muslim populations. Proponents of NSEERS
said it was necessary to identify and capture terrorists who might enter the country on false
pretenses or who were already living in the United States.
Critics said it disproportionately targeted Arabs and Muslims, caused widespread fear within those
communities and needlessly punished immigrants. The program targeted men "regardless of
whether they were suspected or accused of any wrongdoing," Schneiderman's statement said.
By 2011, nearly a decade after the program was enacted, NSEERS had not resulted in a single
terrorism conviction. The Department of Homeland Security determined in 2011 that the program
was "redundant and did not provide any increase in security," Hakim said.
The Obama administration took all 25 countries off its list, but left its primary structure intact. The
ADC on Thursday issued a statement applauding the Obama administration's decision to end the
dormant program and vowing to counter any similar programs that Trump may impose.
"The community cannot be at ease; the next administration has indicated that they will consider
implementing similar programs," said Abed Ayoub, ADC legal and policy director. "We will work
twice as hard to protect our community and ensure such programs do not come to fruition."
Operation Protect & Defend
846688.1
22
The Japanese Internment
George Takei Warns Against Trump Surrogate’s Japanese-American
Internment Comments
By Hilary Weaver, November 18, 2016, 10:53 AM
Japanese-American actor George Takei has spoken out against Donald Trump supporter Carl
Higbie’s controversial comments on The Kelly File earlier in the week. Higbie received criticism
after he told host Megyn Kelly that World War II–era Japanese-American internment camps serve
as a “precedent” for establishing a national Muslim registry.
“We’ve done it based on race, we’ve done it based on religion, we’ve done it based on region,”
Higbie said. “We’ve done it with Iran back—back a while ago. We did it during World War II
with Japanese.”
Takei, whose family was interned in “10 barbwire internment camps” when he was a child, spoke
to The Hollywood Reporter about Higbie’s alarming argument that the proposed registry holds
”constitutional muster” based on those two historical examples.
“The Japanese-American internment was an egregious violation of our national values and
principles, a terrible event for which Congress apologized in 1988,” Takei said. “To invoke that
dark chapter as a precedent for any action against any minorities today is a morally bankrupt and
dangerous step, completely out-of-bounds with contemporary notions of civil and human rights.”
Takei stressed the importance of telling stories like his own, saying that the more people hear
them, the more they will understand how vital it is that we “remain vigilant” and not let history
repeat itself.
“Trump’s rhetoric and plans to profile Muslims indicate that he has not learned the folly of the
internment, nor the forces of fear and prejudice that propelled it,” Takei said.
Per T.H.R., the actor also invited elected officials to a screening of his Broadway show Allegiance,
which details “Takei’s experiences with internment camps in the U.S. after Pearl Harbor.”
Operation Protect & Defend
846688.1
23
The Japanese Internment
The Decision to Incarcerate Japanese-Americans:
A look from both sides of the fence
Answer the following questions based on the readings:
1. Summary of Internment Cases
2. Who Was Minoru Yasui?
3. Articles on Muslim registry and ban
What was the reason given in Korematsu for the forced removal of Japanese-Americans? Does
the same reasoning apply to German-Americans or Italian-Americans? Why do you think
Japanese-Americans were treated differently?
What steps did Minoru Yasui take to challenge Executive Order 9066?
Explain the relationship of his loyalty to the American government and his civil
disobedience.
Did the Hamdi case expand or curtail the rights of enemy combatants? How difficult is it to
determine when hostilities have ceased?
What Constitutional powers does a President have regarding war? Did the Supreme Court expand
the powers of the President with their decisions in any of these cases?
What reasons have been given for creating a Muslim database? Are these the same reasons as for
the incarceration of Japanese-Americans? What effect does the Daud case have on such a
program?
For each of the cases, answer the following:
a) What argument was made in each case?
b) Specifically, what “due process” violations occurred? (Cite the U.S. Constitution)
c) What was the legal argument offered by the U.S. Supreme Court in their
decision and how did they support that decision based on the law?
Operation Protect & Defend
846688.1
24
The Japanese Internment