Korematsu Lives

I remember going to a Blockbuster Video sometime in 1999 and renting a movie starring Denzel Washington, Annette Bening, and Bruce Willis that, while a decent enough move, would have a profound effect on me in ways I wouldn't appreciate until two years later.

In the aftermath of the 1993 terrorist attack against the World Trade Center, The Siege revolved around a series of terrorist attacks in New York City that led to the imposition of martial law and the invasion of the U.S. Army into New York. It also imagined a scenario where there is a large scale rounding up of young Arab and Muslim men into detention camps, in an effort to snuff out potential terrorists. I thought this made for an interesting story, but balked at the idea that it ever could happen. Not in my America. Not in the "Land of the Free and the Home of the Brave." Two years later, I wasn't so sure.

After the attacks of September 11, 2001, a rash of xenophobia and fear gripped our country. I know it because I experienced it. You could not be a late teens/early twenties brown kid with a weird name and not feel it chill you to your bones. It was ugly. It was terrifying. And it was pervasive: the comments; the looks; the palpable fear. In my head I saw the image of those detention camps from that movie I saw two years earlier, and I was terrified we were headed down that path.

But it never happened.

Cooler heads prevailed. Maybe it was because with the USA PATRIOT Act the government felt they had all the surveillance tools they needed and we didn't need to resort to such draconian methods. It would be much easier to violate civil rights in secret than by herding up humans as cattle and sending them to Montana to live in an internment camp. Or maybe the powers that be decided that it belied our American Values to do such a thing. Or maybe there were still enough men and women alive who remembered that shameful chapter in our history and refused to abdicate our legal and moral standing.

It has now been fourteen years. Fourteen years in which the violence of the world has continued to be instantaneously broadcast into our homes on television screens and smartphones. Fourteen years in which our nationalism has swelled and our commitment to compassion and due process has dwindled. Fourteen years in which those who remembered our shame have slowly and quietly been leaving us behind in society and in government.

In 1969, Senator Daniel Inouye (D-HI) campaigned to repeal Title II of the 1950 Internal Security Act which explicitly gave the U.S. Government the authority to institute internment camps. He called explicit authorization to recreate the act of interning over 100,000 Japanese Americans in 1942 without any due process: "A blotch on our democracy that has no place in our books." In 1971, Congress passed the Non-Detention Act to prevent the resurgence of internment against any American citizen without an Act of Congress. But, what about non-citizens? If Medal of Honor recipient and former President pro tempore of the Senate Daniel Inouye was still alive, I would love to hear his voice in this debate about denying Syrian refugees sanctuary because of a fear of terrorists.

Congress has taken numerous stabs at retreating from the premise that the internment of Japanese Americans during World War II was constitutional. However, the Supreme Court case that justified it, Korematsu v. United States, has never been overruled. Many legal scholars, dare I say a vast majority of them (based upon nothing more than the fact that I looked to research scholars who believe it was correctly decided, and they are very few when compared to the scholarship to the contrary), including members of the U.S. Supreme Court have vehemently spoken out against it. Yet, it lives. And in an era where the Republican frontrunner for the Presidential nomination has doubled down on the idea of creating a database of Muslims and denying entry to the most vetted group of refugees in history -we should be concerned.

Donald Trump, when asked in Iowa about his plans to create a database to track Muslims (including citizens), said, "I would certainly implement that. Absolutely." This man is running to be President of the United States and the latest Bloomberg Poll out November 19 has him leading Ben Carson (yes, the same Ben Carson who compared some Syrian refugees to rabid dogs) for the Republican Presidential Nomination. And the Supreme Court isn't getting any younger. A one term president can expect at least one Supreme Court vacancy during his or her tenure. Don't think that a president couldn't stack the deck.

Unfortunately the spirit of Korematsu seems to endure in some of our political circles and rhetoric inside and outside of Congress. Unimaginably, one member of that group is now leading the Republican field to become President of the United States. Sixteen years after watching that movie, I still see the images of the detention camps. Seventy years after World War II, we must not forget our American Sin of internment. Yet, even if we study the past, we may be doomed to repeat it if we allow terror to win.

As our faith in our values dies, Korematsu lives.