What lessons of relevance to the current war on terrorism should we learn from our treatment of Japanese-Americans during World War II? The orthodox civil libertarian position regards the internment of Japanese-Americans as wrong, identifies “ethnic profiling” as its essential feature, and condemns all further attempts at profiling, including that focused on Muslim-Americans today. Michelle Malkin’s In Defense of Internment : The Case for Racial Profiling in World War II and the War on Terror (Regnery, 2004) challenges the civil libertarian orthodoxy by means of a revisionist thesis about Japanese internment. According to Malkin, internment was right, ethnic profiling was its essential feature, and so, ethnic profiling ought to play a central role in the war on terrorism.
Daniel Pipes’s “Japanese Internment: Why It Was a Good Idea--And the Lessons It Offers Today” (along with a companion piece on Pipes’s blog) falls into the latter revisionist category. Although Pipes does not propose the internment of Muslim-Americans, he does suggest (drawing on Malkin’s book) that we revise our condemnation of Japanese internment, stop worrying so much about Muslim civil liberties, and engage without apology in ethnic profiling of Muslim-Americans.
In my view, both of the preceding positions are plausible but also seriously mistaken. The orthodox libertarians are right about internment but wrong about profiling; the revisionists are right about profiling but wrong about internment. A sensible alternative would combine the orthodox position about internment with the revisionist position on profiling. Here’s why.
Against Orthodox Civil Libertarianism
Suppose you believe, as I do, that the internment of Japanese-Americans during World War II was wrong. You might, contrary to orthodox civil libertarians, still contest the idea that profiling was its essential attribute—i.e., that profiling was what made it wrong.
“Profiling” is simply the use of identifying traits as a guide to the conduct of a criminal or similar investigation. “Ethnic profiling” (or religious profiling) is the inclusion of ethnic (or religious) traits among the traits to be profiled. Understood in this way, profiling is standard police procedure, the abolition of which would substantially hinder law enforcement’s capacity to engage in criminal investigation. It’s just an undeniable fact that a criminal investigation has to focus its suspicions on those elements of the population that have a higher probability of committing a given type of crime than those less likely to do so. While ethnicity/religion never constitutes a cause of suspicion by itself, it can certainly lend additional credence to suspicions independently confirmed. And so, the use of it is perfectly justifiable. In fact, the desire to abolish ethno-religious profiling really amounts to a sort of prior restraint on inquiry—a dogmatic, a priori conviction that ethnicity/religion cannot play a role in an investigation, whether or not the evidence supports that claim.
On the other hand, civil libertarians are right to insist that compliance with the Fourth Amendment is also standard police procedure. Whatever the basis of suspicion in an initial inquiry, the fact remains that arrests, searches, seizures, and detentions must be made on the basis of ordinary probable cause subject to the presumption of innocence. It is one thing to treat ethnicity/religion as one factor among others in the course of an investigation, and quite another to treat it as though it constituted the functional equivalent of probable cause all by itself. The first attitude is consistent with the Fourth Amendment; the second is not.
So profiling can be legitimate when kept in its place. What was wrong with Japanese internment was not its reliance on profiling, but its violation of the Fourth Amendment. It probably made sense to profile Japanese-Americans during World War II, since some of them may well have had the desire to subvert American war aims vis-à-vis Japan. But it neither made sense, nor was it right, to herd them en masse into internment camps, to expropriate them, and the like.
The same principles apply to Muslim-Americans today. It’s an undeniable fact that while most Muslims are not terrorists or even sympathetic to terrorism, the largest part of the terrorist threat we face comes from Muslims. It’s also an undeniable fact that some Muslim-Americans are complicit in or sympathetic to terrorism. In this context, to condemn profiling is not to respect our constitutional rights but to jeopardize them. The Constitution says nothing one way or another about profiling, but it explicitly provides for our “common defense.” That provision, in turn, gives the government an affirmative duty to protect us against Muslim terrorists and their allies. But it can hardly discharge that duty if it isn’t on the lookout for Muslim terrorists—and it can scarcely be on the lookout for them if it deliberately blinds itself to the connection between Muslims and terrorism. Yet that is precisely what opponents of profiling seem to be demanding in the name of “civil liberties”: namely, self-induced blindness to patently-obvious facts.
It’s now clear that worries about profiling partly explained the failure to apprehend the 9/11 hijackers in the months before the attack, a fact made transparent by chapters 3-8 of the 9/11 Commission report. As someone who’s been on the receiving end of profiling (twice questioned in the last three years by the police about crimes I didn’t commit, both times on essentially ethnic grounds), I can’t say that I enjoy being profiled. But then, I don’t particularly relish the thought the some terrorist is exploiting civil libertarian squeamishness about racial profiling to get me blown up, either. Most of the Muslims that I know are willing to put up with being profiled if they know that it has a legitimate purpose, and will be done in a respectful way. To this degree, I agree with the Pipes-Malkin criticisms of the civil libertarian establishment (as well as those of Heather Mac Donald, Michael Ignatieff and others), and agree that it’s time for civil libertarians to ditch the dogmatism and get with the program.
Against Pipes-Malkin Revisionism
If that was all that Pipes was saying, I’d agree with him. But it’s not all he’s saying, and the rest of his argument strikes me as wrongheaded and dangerous.
The fundamental problem with Pipes’s position is the supposedly “unarguable premise” he borrows from Malkin. Quoting her, he writes: “in time of war, ‘the survival of the nation comes first.’ From there, [Malkin] draws the corollary that ‘Civil liberties are not sacrosanct.’” Malkin is right that the survival of the nation is an imperative, but since “the nation” is defined by the Constitution, “its” survival is meaningless apart from that fact. A constitution is to a nation what a brain is to a person: take the brain out, and you kill the person; take large enough chunks of the brain out, and it may as well not be there. The Fourth Amendment, if you’ll pardon the metaphor, is too large a chunk of the national brain to be thrown out on a whim. In that sense, it is “sacrosanct.”
A related problem is Pipes’s cavalier adoption of Malkin’s thesis about Japanese internment. There is first his rather condescending minimization of the effects of internment, as in his reference to its “supposed horrors.” Well, the issue isn’t “horror” (a term few writers besides Pipes have used) but injustice, and the injustice wasn’t “supposed,” but perfectly real. I suppose there are worse things in the world than expropriation, forced re-location, imprisonment, and forced labor (with conscription added for good measure), but these things strike me as bad enough to arouse a modicum of indignation.
There is also his suggestion that opposition to internment is nothing more than a hobbyhorse of “the victimization lobby,” a term that not only suggests that Japanese Americans weren’t victimized, but suggests that those opposing internment have nothing worthwhile to say in criticism of it. Both claims are pretty obviously false.
Then there is the implausible suggestion that Malkin’s book has, by itself, settled the issue once and for all, academic scholarship representing little more than a “shabby, stultifying” and ultimately irrelevant “consensus.” Shabby consensus or not, the fact remains that none of the six bullets in Pipes’s article (intended to showcase the highlights of Malkin’s thesis) even approximates the beginnings of a case for internment. Meanwhile, critics have cast doubt on Malkin’s argument that is hard to square with Pipes’s confidence in it.
A third problem is an inconsistency in Pipes’s rejection of internment for Muslim Americans in the here-and-now. In criticizing Pipes on this point, I want to distance myself from the many critics who have ascribed to him an explicit proposal to put Muslims in “concentration camps.” That isn’t what he said, and it’s stupid and irresponsible to claim that he did.
The problem is not a matter of Pipes’s explicit statements but of the logic of his argument. Having defended Japanese-American internment, having described Muslim-Americans as a threat on par with Japanese-Americans during World War II, and having denied that the civil liberties of either group were or are “sacrosanct,” Pipes is no longer logically in a position to reject internment, whether he wants to or not. So even as he disavows any proposal to put Muslims in camps (and I regard his disavowals as sincere), he cuts the ground out from underneath that disavowal, and thereby raises questions about his commitment to civil liberties. Given his current dialectical predicament, those questions are unanswerable.
Meanwhile, it is clear that other Americans are boldly willing to go where Pipes refuses to tread. Pipes quotes with approval Cornell University’s Media & Society Research Group report entitled “Restrictions on Civil Liberties, Views of Islam and Muslim Americans” (December 2004): “Specifically,” Pipes writes with approval, “44 percent of Americans believe that government authorities should direct special attention toward Muslims living in America, either by registering their whereabouts, profiling them, monitoring their mosques, or infiltrating their organizations.”
In the companion piece on his blog, Pipes explains that he himself doesn’t support registries for Muslim-Americans; he simply takes the report as a whole to indicate an encouraging “realism” in American attitudes toward Muslims. But even with that qualification, I find myself frankly mystified at how Pipes can regard the report’s findings as good news. Yes, the report indicates support for profiling. But it indicates a lot more than that.
According to the report, 63 percent of Americans “agree that the government should be able to detain indefinitely suspected terrorists.” Meanwhile, 42 percent of "highly religious respondents [and 27 percent of all respondents] believe that Muslim Americans should register their whereabouts with the government.” Forty-three percent of respondents believe that the government should “outlaw some un-American actions,” and a substantial number seem to be in favor of banning “un-American” protests or criticisms (this last claim involves a modest inference from the findings of Table 3 of the report). Pathetically, 26 percent of respondents were unfamiliar with the terms “Allah” and “the Koran.”
If the findings of the report are to be believed, substantial numbers of Americans have come to regard Muslims as second-class citizens whose rights can be violated more or less with impunity. These same Americans regard the Fourth Amendment as a dispensable luxury, and many of them feel free to condemn Islam while being blankly ignorant of what it actually says.
All of this suggests that a substantial number of Americans have come to regard Muslims as dhimmi, i.e., as having something like the status assigned to non-Muslims under Islamic rule. It also gives some credence to Edward Said’s famous thesis that American discourse about Islam is governed less by knowledge than by recourse to free-floating Orientalist stereotypes (a fact I admit without being a big fan of Said’s scholarship). Unlike Pipes, I don’t regard this as “realism” or “encouragement.” It seems more like an example of what Richard Hofstadter once described as the “paranoid style” in American politics.
There is, in my view, a sensible alternative to both the civil libertarians’ dogmatism and Pipes’s revisionism. The alternative is a better understanding of, and more assiduous commitment to, the Fourth Amendment than that possessed either by orthodox civil libertarians or revisionists a la Pipes and Malkin.
As far as I can see, profiling and monitoring are perfectly consistent with the Fourth Amendment in both the Japanese-American and Muslim-American cases. Neither involves a crossing of the sort of boundaries that the Fourth Amendment protects. Properly circumscribed, infiltration can be consistent, but constitutes a difficult issue that deserves a separate discussion.
By contrast, even apart from the logistical difficulties they pose, registries and internment are clearly incompatible with the Fourth Amendment (and/or the Fifth), whether with respect to the Japanese or Muslim cases. Where there is no probable cause of a crime, it’s just wrong to treat people as though they were guilty of one. In this light, the internment of Japanese-Americans in World War II matters because it is a paradigm case of how not to think about or deal with contemporary Islamic terrorism or the Muslim-American population. It’s a paradigm case of going off the deep end.
In the 1993 Supreme Court decision Minnesota vs. Dickerson, Justice Antonin Scalia wrote, apropos of “weapons pat-downs” by the police: “I frankly doubt…whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity” as a demand to stop and be frisked by the police without probable cause of a crime.
Scalia may be going a bit overboard in this particular case, but the attitude he expresses is the right one. It’s bad enough to be suspected of terrorist activity simply because you are a Muslim (or look like you might be). But it’s unconscionable to be treated as a criminal when there’s no probable cause indicating that you might be one. That’s something that no one in a free country ought to accept, war on terrorism or not.
Having spent some dismal time in the Islamic Republic of Pakistan under martial law, and in the Kingdom of Saudi Arabia under the ever-watchful eye of the Committee for the Promotion of Virtue and Prevention of Vice, I admit that I may be biased toward the idea of a Bill of Rights and protection against unreasonable search and seizure. But a piece of advice may be in order for those too willing to use the “we’re at war” slogan to weaken our commitment to the rights: once you violate them, what you get is not more security, but progressively less.
War, as Clausewitz famously put it, is politics continued by other means. That ill-understood maxim implies that victory in war is victory on terms chosen by the victor. Constitutional liberties are among the terms that define what counts as victory for us in the current war. Once we surrender them, we’ve lost what we’re fighting for, and with it, the war itself. That should be enough to rebut the old cliché that we can’t “afford” civil liberties during wartime. In fact, what we can’t afford is to give them up.