Eric Muller: A Troubling Partial Rehabilitation of Korematsu v. United States
The basic flavor of the new conventional wisdom is that the internment was justified on the basis of the knowledge available to government officials acting in good faith in the confused months following the December 1941 attack on Pearl Harbor. Later, however, using the benefits of hindsight, “liberals” condemned the Korematsu case as racist and consigned it to the category of one of the worst decisions in the history of the American judiciary.I've now read the relevant passage, and I think Griffin is right. I am confident neither of the book's authors intended to endorse a false, revisionist, and partisan history of the Japanese American internment, but that's what this passage does.
Here's the passage:
"At the time of the Japanese exclusion order at issue in Korematsu, the Japanese Navy was regularly sinking ships off the west coast and firing upon land facilities in California and Oregon, and there was intelligence information suggesting that a Japanese invasion of the west coast was imminent, and was being facilitated by Japanese-Americans in the United States. See United States Department of War, Final Report: Japanese Evacuation from the West Coast 1942 (1978). Nonetheless, the decision in Korematsu is widely decried. In part this is because the exclusion order overtly discriminated on the basis of race, and also because it focused only on individuals of Japanese ancestry and not on individuals of German or Italian ancestry, even though the United States was was also at war with Germany and Italy. Another reason is that many analysts now believe that the order was a disproportionate response to the threat of sabotage, invasion, and espionage by Japanese agents. See, for example, Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (2001). Is this ex post perspective -- which Justice Black's majority opinion in Korematsu refers to as the" calm perspective of hindsight" -- the proper perspective from which to determine the validity of military orders in response to perceived emergencies? Can judges second-guess military claims of emergency in the midst of a war in which the nation's security is threatened? In answering this question, is it relevant that most claims of emergency or necessity turn out, after the fact, to have been exaggerated? What do you make of Justice Jackson's proposed solution to the conundrum, and Justice Frankfurter's implicit response?"To begin with, it's tough to get over the shock of seeing general John DeWitt's long-discredited"Final Report" cited as a factual source for anything. This was the report whose premise was that"the Japanese race [was] an enemy race" with"racial strains" tainting even those born in the United States to Japanese parents. It's the report that found assurance of future acts of Japanese-American subversion from the"disturbing and confirming" fact that none had yet been taken. And even more to the point, it's the report that Justice Department lawyers sought to disavow in their filings in the Korematsu case itself because of its"willful historical inaccuracies and intentional falsehoods" (their words, not mine) as well as its race-baiting. It was the falsehoods in this report, and the Justice Department's lack of candor in relying on them, that led a federal district court to grant Fred Korematsu a writ of error coram nobis in 1984. The Final Report is as discredited as a government document can be; it deserves citation as nothing other than an instance of the military's racist and delusional self-justification.
Beyond that, the three specific factual assertions for which the Final Report provides support are false.
(1) At the time of the exclusion order, the Japanese Navy was not"regularly sinking ships off the west coast and firing upon land facilities in California and Oregon." In fact, not only wasn't the Japanese Navy doing this"regularly," it wasn't really doing it at all. A Japanese sub sank a tanker, the Montebello, off Cambria, California on December 23, 1941. That was it for the sinking of ships along the coast in that time period.
(2) The same is true for the supposedly"regular" firing upon land installations. This happened precisely once. It took place at a refinery near Santa Barbara on February 23, 1942.
(3) There was no intelligence information suggesting an imminent Japanese invasion of the West Coast. Instead, military intelligence well understood that the Japanese were in no position to invade the West Coast. The military's worst-case scenario did not extend beyond the distant possibility of small commando landings (not unlike those that the Nazis actually did pull off on the East Coast) -- and anybody who has ever seen images of the Allied invasion of Normandy in 1944 from bases in England, across twenty miles of water, will immediately and intuitively understand what American military intelligence also understood at the time: the sheer logistical impossibility of Japan's landing an invasion-size force on the West Coast from an island nation 5,500 miles away. When General John DeWitt asked for some extra troops for coastal defense at the beginning of 1942, he was refused: the top brass agreed that DeWitt needed no more troops to"defend against practically nothing."
(4) There was no intelligence evidence of Japanese Americans"facilitating" this (non-existent) imminent invasion. Internment revisionists like Michelle Malkin and David Lowman have flogged the so-called"MAGIC" cables -- pre-war Japanese diplomatic transmissions that the U.S. intercepted and decrypted -- as proof of the existence of networks of Nisei spies, but their claims have been repeatedly and persuasively debunked.
So the factual premise of this excerpt from the Goldsmith and Bradley book is wrong. Its purpose was to set up a puzzle for readers: why, given the serious threat to the West Coast, was Korematsu wrong? But it's a false puzzle. There was no such serious threat, and there was no evidence of networks of Japanese American subversives and no evidence of subversive activity by Japanese Americans. Those who ordered the exclusion of Japanese Americans knew these things.
In order for the passage to cohere, it has to start from a premise that the exclusion of Japanese Americans had a reasonable military foundation. This is because the point it wants readers to ponder is the one that appears toward the end: is an ex post perspective appropriate for determining the validity of military orders in wartime? This is where the passage links up with the idea that so bothered Steve Griffin at Balkinization -- the claim that the Japanese American internment was seen as justified in its moment, but has only come to be seen as mistaken from our vantage point today. It is a claim that today's internment revisionists have pressed hard on the public consciousness.
It is, however, vastly overstated: even in its historical moment, the program of excluding and incarcerating Japanese Americans drew strong dissent both inside and outside the government. This is a point that I document at some length in my article "Fixing a Hole: How the Criminal Law Can Bolster Reparations Theory," 47 Boston College Law Review 659, 696-701 (2006). The Attorney General and the FBI Director opposed the program at its inception. They lacked"the calm perspective of hindsight" but saw that the program was excessive and unjustified, especially in its treatment of U.S. citizens. So did an array of American leaders in education, business, religion, and the arts, who published an open letter to FDR in April of 1942 decrying the then-incipient program. Signatories included Frank Porter Graham, Reinhold Neibuhr, James Wood Johnson, and Mary E. Woolley, among many other notables.
Frank Murphy, a former Attorney General, stated in his 1943 concurrence in Hirabayashi that just the curfew against Japanese Americans (a lesser step than exclusion and incarceration) reached"the brink" of legality. In 1944, two other Justices (including another former Attorney General) joined Murphy in dissent in the Korematsu case.
And as early as June of 1942, articles and editorials critical of the Japanese American program began appearing in newspapers and journals as diverse (and mainstream) as the Washington Post, The Nation, Reader's Digest, Business Week, Collier's, Newsweek, and The Saturday Evening Post. These continued to appear throughout the war.
So there are two important mistakes in the Goldsmith/Bradley discussion of the incarceration of Japanese Americans. The first is to credit the Western Defense Command's long-discredited assertions about the military situation along the coast; the second is to propagate the mistaken notion that the Japanese American program only seems wrong in retrospect.
This post may seem like a lot of words to spill over a single paragraph in a foreign relations law casebook that will be read mostly by law students. I spill the words, though, because this single paragraph is the work not of some hack internment revisionist, but two of the nation's most highly (and justifiably highly) regarded experts on national security and foreign affairs law. I expect efforts at rehabilitating Korematsu from partisan revisionists. But when their theories start to seep upwards from the Michelle Malkins and David Lowmans of the world to the Curt Bradleys and the Jack Goldsmiths, it's a worrisome moment, and should be corrected.
To be sure, Bradley and Goldsmith do not purport to rehabilitate Korematsu; they seek simply to contextualize it. But because the context is so wrong, what results is at least a partial rehabilitation of that reviled decision, which is a dangerous thing in these dangerous times.
UPDATE: At Balkinization, Curt Bradley has responded to the criticism of this passage. He says this:
I can’t speak to Judge Posner’s views, but certainly Jack Goldsmith and I were not trying to make any revisionist argument about Korematsu or the internment policy in the casebook note referred to above. Indeed, we try not to be argumentative at all in the casebook. Our goal there was merely to give students a sense of the mindset of some people at the time (e.g., in the discredited DeWitt report) and then ask questions about how we should think about that mindset. It looks like the first sentence of that note in particular is responsible for the misimpression, so we will be sure to tone it down in the next edition of the casebook, and also probably cite to some better materials. Thanks to Stephen Griffin for pointing this out.