My Ethics class is reading Korematsu v US (the SC case allowing Japanese internment camps)

[Larry]

Just thought I'd mention. This week's chapter in Intro to Ethics covers torture and war. And one of the readings is the court decision which affirmed the Constitutionality of the US Government locking up every person on the west coast, citizen or otherwise, based on his ancestry and nothing else.

Don't know why this bothers me as much as it does. It's ancient history. Before I was born. I have an alibi.

(Although I wonder if part of my problem is reflecting back on all of the posts I saw, back when Gitmo became news, from people pointing to this event as justification for Gitmo.)

Our reading includes the majority opinion, and two dissents. (I don't know if there are more.) One of the things I'm reading in one of the dissents is the Justice almost pleading that if the SC affirms this action, then they're not only permitting something that had already happened, but that they're creating precident.

Much has been said of the danger to liberty from the Army program. . . But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty. . . A military order' date=' however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show tha the Constitution sanctions such an order, the court for all time has validated the principal of racial discrimination in criminal procedure and of trans-planting American citizens. The principal 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. [/quote']

And no, I really don't have a point. Just felt like sharing.

[Hubbs]

Is this a law class?

[Larry]

Intro to Ethics.

[Prosperity]

what's the name of the case? (too lazy for google)

As an aside last week was Korematsu day here (California) All I could think of was Koo Koo For Korematsu (like a song stuck in my head). Like Coo Coo for CoCo puffs

thought I'd share

[btfoom]

Larry,

I don't think the comparison between the internment of legal, Japanese citizens during WW2 and Gitmo is valid.

I have a couple of friends who's parents/grandparents were brought into the camps. I've spoken to a couple of them and heard their stories. It was certainly a sad day for the US, even though the folks doing it had 'good intentions' at the time (and we all know where the good intentions end up).

At Gitmo, these people were captured fighting against the US. Instead of killing them, they were brought to a prison instead. Not really the same.

[jpyaks3]

Larry,

I don't think the comparison between the internment of legal, Japanese citizens during WW2 and Gitmo is valid.

I have a couple of friends who's parents/grandparents were brought into the camps. I've spoken to a couple of them and heard their stories. It was certainly a sad day for the US, even though the folks doing it had 'good intentions' at the time (and we all know where the good intentions end up).

At Gitmo, these people were captured fighting against the US. Instead of killing them, they were brought to a prison instead. Not really the same.

What about all those people that weren't fighting the United States, hundreds have been released.

[Popeman38]

What about all those people that weren't fighting the United States, hundreds have been released.

Out of all the people encountered on the Iraq and Afghanistan "battlefield", hundreds of people caught at the wrong place at the wrong time isn't really that bad. Additionally, the US Constitution without a doubt applies to citizens and legal residents. There is some debate if it applies to foreigners captured in a foreign land.

[Darth Tater]

The ethic here is "if I'm saving my ass, any bad I do is ethical".

[SnyderShrugged]

The ethic here is "if I'm saving my ass, any bad I do is ethical".

LOL!! Thats the same initial thought I had!

Larry, This seems like a really cool class that you are in. Keep sharing!

[Larry]

Some of the background which Jackson mentioned in his dissent:

The actual sequence of events was that Congress passed a law, giving the military to designate military zones from which civilians could be excluded. The military then declared the entire west coast of the US as a military zone, and announced a curfew. All persons of Japanese descent were required to be in their homes from 8PM till 6 the next morning. In Hirabayashi v US, the SC upheald the conviction of a University of Washington student, for violating the curfew.

(From what I can tell (haven't seen that decision, but parts of this decision reference that one), the court decided that they were really reluctant to try to claim that the SC had jurisdiction over military commanders, in a time of war, operating under an act of Congress explicitly granting them power. And they ruled that a nighttime curfew wasn't that big a deal.)

However, the Jackson dissent that I quoted above has even more to say about his "slippery slope" argument, and the way powers tend to grow. Immediately following the part I quoted above, he says:

But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution' date=' 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. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. [b']Nothing better illustrates this danger than does the Court's opinion in this case.[/b] [my emphasis]

It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Hirabayashi v. United States, 320 U. S. 81, when we sustained these orders insofar as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

In that case, we were urged to consider only the curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said:

"Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew."

320 U.S. at 320 U. S. 101.

"We decide only the issue as we have defined it -- we decide only that the curfew order, as applied, and at the time it was applied, was within the boundaries of the war power."

320 U.S. at 320 U. S. 102. And again: "It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order." 320 U.S. at 320 U. S. 105. (Italics supplied.) However, in spite of our limiting words, we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that, in Hirabayashi, we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely, and if that, we are told they may also be taken into custody for deportation, and, if that, it is argued, they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

Link to the actual decision. (It's really long. My class is reading an excerpt that's about 6 pages long.)

[Fergasun]

I believe the closest analogue in the current war is Hamdi vs. Rumsfeld, 542 US 507, 2004.

O'Connor (opinion), Rehnquist, Kennedy and Breyer all ruled that citizens must have "due process" prior to being detained, but the detention could occur under the AUMF.

Souter (opinion) and Bader-Ginsburg agreed with that opinion, but dissented as to the effect of the AUMF (that Congress had not approved detention of enemy combatants).

Scalia (opinion) and Stevens dissented from the others. The believed that Congress did not suspend the the right to habeas corpus, thus the detention was unlawful. The government had to charge him with criminal treason or release him.

Thomas (opinion) went the other way ruling that President's broad war-making power allowed the detention, he sided with the Executive Branch completely.

Although when I reflect on it, these cases aren't really all that similar... because the government now didn't just round up anyone from the Middle East and put them in camps.

[btfoom]

Larry,

Are you discussing the overall 'ethics' of interning a large group of people, thereby possibly preventing some type of 'inside' attack and saving lives, vs letting the Japanese people remain free, but possibly having some type of inside attack and having other, innocent lives taken.

I really like ethical type questions like this where there is no cut and dry answer. My son is taking an ethics class right now and comes home with some pretty good dilemmas. Thanks for the post and please keep updating it as the class goes on.

[JimboDaMan]

Larry,

Are you discussing the overall 'ethics' of interning a large group of people, thereby possibly preventing some type of 'inside' attack and saving lives, vs letting the Japanese people remain free, but possibly having some type of inside attack and having other, innocent lives taken.

I really like ethical type questions like this where there is no cut and dry answer. My son is taking an ethics class right now and comes home with some pretty good dilemmas. Thanks for the post and please keep updating it as the class goes on.

I don't see that as an ethical quandry at all. Perhaps on a really small scale I can see it, but not with large groups. Hey, I can make murders in the US drop by almost 90%, make casual violence pretty much disappear from society. It's extremely simple. Lock up all the men.

[JMS]

Just thought I'd mention. This week's chapter in Intro to Ethics covers torture and war. And one of the readings is the court decision which affirmed the Constitutionality of the US Government locking up every person on the west coast, citizen or otherwise, based on his ancestry and nothing else.

To be fair we didn't lock up everybody based on their ancestory. Germans and Italians didn't get locked up. We just locked up the Japanese. The countries who's national religion believed their ruler was a God to be worshiped.

I don't think a court order or an act of congress enabled such a law. I believe it was a presidential order from FDR, one recommended by the secretary of war; oddly however one which the director of the FBI Hoover objected too.

Don't know why this bothers me as much as it does. It's ancient history. Before I was born. I have an alibi.

(Although I wonder if part of my problem is reflecting back on all of the posts I saw, back when Gitmo became news, from people pointing to this event as justification for Gitmo.)

Desparate times... I will note though that Japanse interns have gotten an official appology from Bill Clinton, and a cash settlement to boot.

Our reading includes the majority opinion, and two dissents. (I don't know if there are more.) One of the things I'm reading in one of the dissents is the Justice almost pleading that if the SC affirms this action, then they're not only permitting something that had already happened, but that they're creating precident.

And no, I really don't have a point. Just felt like sharing.

It was a dark scary time to be an American in 1942. In such times some people draw within themselves, still others strike out to fix the problem. As a nation we did the latter and did it pretty well. The internments are entirely unjustified and unfathonable in our day. They weren't in 1942. In 1942 they were still wrong policy, but they were the wrong steps taken by a people looking to take the right steps...

If you've ever seen Empire of the Sun, or Paridise Road these pictures deal with how the japanese treated western internees during WWII.

---------- Post added February-9th-2011 at 12:09 PM ----------

Although when I reflect on it, these cases aren't really all that similar... because the government now didn't just round up anyone from the Middle East and put them in camps.

No that's really exactly what we did. We put a bounty on any foreigner in Afghanistan and offfered as a reward several years wages of the average Afghani. The resulting net captured aid workers, guys visiting their future inlaws, and guys studying islam, We got Brits, Canadians, and Austrailians; and we kept them for years even though they had no ties to Al quada... Ultimately these folks got released only because of pleas from their governments. If you were from Indonedia, India, or some other place without such good ties to the US you are no doubltedly still in prison...

Still the difference is those folks were rounded up in Afghanistan, a "war zone"? The Japanese detainee's in 1942 were rounded up from within the United States. specifically from a coast which was under imminent threat of invasion by an extremist radical and proven hostile government in Japan.

[Mad Mike]

What about all those people that weren't fighting the United States, hundreds have been released.

Just because they were released, doesn't mean they were not involved in fighting us. It simply means that they were deemed to be less dangerous and more capable of rehabilitation by their country of origin. In many cases this in itself has proven false. Many of them have gone back to fighting. Of the hundreds held and released, I'm guessing probably a few dozen were really innocent.

[Darth Tater]

I don't see that as an ethical quandry at all. Perhaps on a really small scale I can see it, but not with large groups. Hey, I can make murders in the US drop by almost 90%, make casual violence pretty much disappear from society. It's extremely simple. Lock up all the men.

That DEFINES an ethical quandary. An ethical quandary is when my initial action IS unethical but to choose not act is also unethical. In your example, the action to lock up all men for life IS unethical but to not act in a way that will drastically curtail murder is also unethical. Of course, your example doesn't even have to rise to the level of an ethical quandary.

[Bliz]

Just because they were released, doesn't mean they were not involved in fighting us. It simply means that they were deemed to be less dangerous and more capable of rehabilitation by their country of origin. In many cases this in itself has proven false. Many of them have gone back to fighting. Of the hundreds held and released, I'm guessing probably a few dozen were really innocent.

I am quite certain we have picked up a lot of people who were not on the battlefield. We get a tip (which we pay for), we pick up the person and interrogate/detain for as long as we want. The American people will never really know the full extent to which this has gone on, but I believe it's happened a lot more than we would care to admit.

Which gets to the ethical quandary: when dealing with a dangerous bunch like AQ, say you know for a fact that 10 people are innocent, but you don't know which 10, and you know the rest are AQ. How many AQ do you have to have to justify continued imprisonment of the 10, vs release of everybody? And I'm not talking about one of them being a top dog like Zawahiri or anything. Foot soldiers.