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Will Muslim Americans be put in internment camps if more 9/11 attacks occur? by Nolan Rappaport

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Those who cannot remember the past are condemned to repeat it. While the possibility of internment camps for Muslim Americans may sound farfetched, it happened to Japanese Americans in World War II. Understanding how it happened to the Japanese Americans might help us to prevent it from happening again.


A series of attacks by radical jihadist terrorists like the ones in Europe probably would not result in the internment of Muslim Americans, but an ongoing series of attacks as horrific as 9/11 would be a different matter. The fear and anger that would produce would be hard to control.


The events leading to the internment of Japanese Americans began at 7:55 a.m. on December 7, 1941, when hundreds of Japanese fighter planes attacked the American naval base at Pearl Harbor near Honolulu, Hawaii. The Japanese fighter planes destroyed almost 20 American naval vessels, including eight large battleships, and more than 300 airplanes. They also killed more than 2,000 Americans soldiers and sailors, and wounded another 1,000. Later that day, President Franklin D. Roosevelt issued a proclamation authorizing the removal of Japanese enemy aliens from the United States. The next day, he declared war on Japan. And four months later, he sent 16 B25 bombers on a secret mission to show that we could strike the interior of Japan. They bombed factory areas, oil storage facilities, and military installations in Tokyo.


The Japanese American interments were not directed at the entire Japanese American population. Approximately 275,000 Japanese immigrants settled in Hawaii and on the mainland of the United States between 1861 and 1940, but the Japanese in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast. Although the Japanese farmers worked less than 4% of California’s farmland in 1940, they produced more than 10% of the total value of the state’s farm resources, which I think explains why civilian lobbyists from California joined the American military leaders in pressuring Congress and President Roosevelt to remove the Japanese Americans from the West Coast. The military leaders expected a Japanese invasion on the West Coast and were afraid that the Japanese Americans would provide behind the lines assistance to the invading army. Their views prevailed. On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which forced all Japanese Americans, regardless of loyalty or citizenship, to leave the West Coast. Congress implemented the order on March 21, 1942, by passing Public Law 503.


The government relocated more than 120,000 people to internment camps located across the country. Approximately 70,000 of them were American citizens. The government made no charges against them, and they could not appeal their incarcerations. All of them lost their personal liberties; most also lost homes and property. The internments included more than 300 Italian Americans and more than 5,000 German residents.


The internments were challenged in court and the case ultimately was heard by the U.S. Supreme Court. In Korematsu v. United States, 323 U.S. 214 (1944), Fred Korematsu, a United States citizen, argued that he had been imprisoned in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty or disposition towards the United States. The Court found that to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the West Coast because of hostility towards him or his race. He was excluded because we were at war with the Japanese Empire, and American military authorities feared an invasion of our West Coast. They decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be removed from the West Coast temporarily, and Congress, reposing its confidence in this time of war in our military leaders, determined that they should have the power to do it.


It is conceivable that a similar argument could be made to put Muslim Americans in internment camps in the midst of an ongoing series of horrific terrorist attacks, but it seems extremely unlikely that the internments would be directed at the entire Muslim population.


The Japanese American interments were not directed at the entire Japanese population. The Japanese Americans in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base at Pearl Harbor near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast, which is where the perceived invasion threat existed.


In contrast, putting the entire population of Muslim Americans in internment camps on the basis of a threat from a few terrorist organizations probably would be viewed by the courts as racism. It would be farfetched to claim that most or even many Muslim Americans would actively support terrorist attacks on America.


The interments almost certainly would have to be limited to Muslim Americans who might actually be terrorists or terrorist supporters. This would be similar to the way our Justice Department limited the National Security Entry-Exit Registration System (NSEERS) program, which was established after 9/11 to identify terrorists as quickly as possible. NSEERS only applied to males 16 years of age or older who were nationals or citizens of specified countries. Nevertheless, even the interment of a relatively small number of Muslim Americans without evidence of terrorist involvement would run counter to American values. Moreover, it could alienate the Muslim community, and their help would be needed to identify and locate the terrorists.

Published originally in Huffington Post
http://www.huffingtonpost.com/entry/57ec0d3be4b0972364deaa05?timestamp=1475119421314

___________________________________________________________________________________

About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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Comments

  1. ImmigrationLawBlogs's Avatar
    This comment is updated as of October 8. Does anyone see a direct line between the hatred and scapegoating of Japanese-Americans 75 years ago leading to the internment that Nolan describes above, and which our Congress and President Reagan formally apologized for by Statute in 1988, and the vicious, degrading and utterly inexcusable comments that Donald Trump made about women in 2005 which are only now just coming to light, and the equally vicious, false and malevolent hate that Trump has been promoting against Latino and Muslim immigrants, and Muslim US citizens as part of his presidential campaign that may now very well be on life support?

    See:

    http://www.thehill.com/blogs/ballot-...ls-from-vulgar

    For anyone who cannot see this straight line, my suggestion is simple:

    Connect the dots.


    The followng is my original comment in response to Nolans' above post. For an authoritative, in depth discussion of the profound Constitutional and civil liberties issues involved in the tragic stain on American history known as the Japanese internment during WWII. see the 3rd Circuit's majority opinion in Hassan v. City of New York, 804 F.3rd 277 (2015).

    Reading that opinion will make clear why that horrendous exercise in racial bigotry and persecution, which the US Congress and President Reagan apologized for to the people affected by statute in 1988, must MEVER AGAIN be allowed to happen in America to any group of people - based on ethnicity or religion, whether Muslims or anyone else, no matter what the pretext may be.

    I repeat, and I trust that that the author of the above article would agree - NEVER AGAIN!

    I will have more to say about the Hassan decision in my own forthcoming ilw.com blog comment.

    This decision is so important and comprehensive in discussing the history of the Japanese-American wartime persecution and the reasons why the civil rights of Muslim and all other US citizens must be upheld today, that I am somewhat surprised that anyone would write an article on this subject without mentioning that decision.

    Roger Algase
    Attorney at Law
    Updated 10-08-2016 at 04:46 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Roger, I didn't write a law review article. But why are you referring me to a Circuit Court decision when I discussed a Supreme Court decision on the same issue? Has the Circuit Court moved above the Supreme Court since I retired? As for racist, if it had been racist, the Japanese Americans in Hawaii would have been interred too. I am not saying that there was no racist hatred against Japanese Americans, just that the President and Congress were not being racist when they interred the West Coast Japanese Americans. But you see racism everywhere.

    I do agree that internment should be avoided unless it is really necessary, and with the benefit of 20-20 hind sight, I can see that the Japanese American internments weren't necessary.
    Updated 09-29-2016 at 06:37 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Note that I also pointed out the financial reason for the civilian lobbying in support of the Military leadership recommendation. The Japanese Americans were too good at farming. If they hadn't been, the California farmers wouldn't have been lobbying for their internment, and the military leaders might not have been able to persuade the president and congress to go ahead with the internment.
  4. ImmigrationLawBlogs's Avatar
    Mr Rappaport's article deals with, and attempts to draw comparisons between two very different periods in American history, separated by almost three quarters of a century.

    He cites a famous (or infamous) 72-year old US Supreme Court decision in support of his argument, Korematsu, which has long since been discredited by nearly all historians as belonging to a period of racial bigotry that most Americans would rather forget and which the US Congress and President Reagan formally apologized for in a statute enacted almost 30 years ago.

    Korematsu has about as much precedent value, and commands about as much respect today as the 1857 Supreme Court case of Dred Scott v. Sandford.

    Just in case there is anyone in America sho doesn't know, Dred Scott held that African-Americans could not be US citizens because of their race and for no other reason.

    In the same way, Korematsu held that Japanese-American citizens and legal resident aliens in a large and important part of our country, namely the entire West Coast, (not all of America, but what difference did that make?) could be locked up purely because of their race, without any charges, trial or even suspicion of wrongdoing.

    In 2015, 71 years after Korematsu was decided, a three judge panel of one of America's highest courts, the 3rd Circuit Court of Appeals looked at the same issue that Mr. Rappaport is discussing in his above post, namely whether the Japanese internment, which was upheld by Korematsu, is a valid precedent for restricting the civil rights of Muslim US citizens (or some of them), today. in the case of Hassan v. The City of New York.

    Mr. Rappaport, in effect, argues that the Hassan case, which discusses the Japanese internment in detail and exposes the racism of that period in unanswerable terms, is less important than Korematsu, or perhaps not even worth reading at all, because it is in a court one rung below the Supreme Court, even though Hassan, unlike Korematsu, deals with the exact issue that Mr. Rappaport is writing about - i.e. parallels, if any, between Japanese-Americans then and Muslim Americans now.

    Instead of trying to belittle or ignore this important, and very recent decision, just because that decision may focus on the racism of that period more than he might agree with, Mr. Rappaport might do better to read and discuss this important decision instead.

    Mr. Rappaport says, with regard to my comment on the Japanese internment, that I "see racism everywhere." With all due respect to Nolan Rappaport, who is a distinguished legal scholar and immigration advocate, and a highly respected authority on immigration law, that statement, in the context of a discussion about Japanese-American internment, is simply mind-boggling.


    In view of subsequent historical analysis, as discussed in Hassan, and the 1988 Congressional apology which expressly states that the Japanese internment was due in large part to racist feeling, anyone who is not able to see a very large and powerful element of racism in the Japanese internment must have very narrow vision indeed.

    Will the American people, acting through our Congress and President, one day have to apologize to Muslim-Americans for unjust internment, discrimination or curtailment of their civil rights just as America, as a nation, had to apologize to Japanese Americans by statute in 1988? Let us hope not.

    Let us hope that we have learned the real lesson of Korematsu and the Japanese-American internment, just as we learned the real lesson of Dred Scott and slavery.

    Roger Algase
    Attorney at Law

    Updated 09-30-2016 at 09:36 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Mr Rappaport's article deals with, and attempts to draw comparisons between two very different periods in American history, separated by almost three quarters of a century.

    He cites a famous (or infamous) 72-year old US Supreme Court decision in support of his argument, Korematsu, which has long since been discredited by nearly all historians as belonging to a period of racial bigotry that most Americans would rather forget and which the US Congress and President Reagan formally apologized for in a statute enacted almost 30 years ago.
    In the same way, Korematsu held that Japanese-American citizens and legal resident aliens in a large and important part of our country, namely the entire West Coast, (not all of America, but what difference did that make?) could be locked up purely because of their race, without any charges, trial or even suspicion of wrongdoing.

    In 2015, 71 years after Korematsu was decided, a three judge panel of one of America's highest courts, the 3rd Circuit Court of Appeals looked at the same issue that Mr. Rappaport is discussing in his above post, namely whether the Japanese internment, which was upheld by Korematsu, is a valid precedent for restricting the civil rights of Muslim US citizens (or some of them), today. in the case of Hassan v. The City of New York.

    Mr. Rappaport, in effect, argues that the Hassan case, which discusses the Japanese internment in detail and exposes the racism of that period in unanswerable terms, is less important than Korematsu, or perhaps not even worth reading at all, because it is in a court one rung below the Supreme Court, even though Hassan, unlike Korematsu, deals with the exact issue that Mr. Rappaport is writing about - i.e. parallels, if any, between Japanese-Americans then and Muslim Americans now.


    In view of subsequent historical analysis, as discussed in Hassan, and the 1988 Congressional apology which expressly states that the Japanese internment was due in large part to racist feeling, anyone who is not able to see a very large and powerful element of racism in the Japanese internment must have very narrow vision indeed.
    Roger Algase
    Attorney at Law
    I never said that Japanese Americans were not the victims of racial bigotry. I know that they were. For instance, they weren't even permitted to own land in California. The subject of my article is an internment ordered by the President of the United States and implemented by the U.S. Congress.

    Has Roger read Korematsu? It does not hold that Japanese-American citizens and legal resident aliens can be locked up purely
    because of their race. It approves a decision that the President and Congress made to move Japanese Americans out of the West Coast and put them in internment camps shortly after Pearl Harbor when our military leaders were predicting that Japan was going to invade the West Coast. They also put Americans from other countries we were at war with then in internment camps.

    And it was not the same issue in the third circuit case.
    The plaintiffs in that case were the targets of a wide-ranging surveillance program that the New York City Police Department (the “NYPD”) began in the wake of the September 11, 2001 terrorist attacks (the “Program”). They alleged that the Program was based on the false and stigmatizing premise that Muslim religious identity “is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.”

    I am not claiming that subsequent decisions have not discredited Korematsu. I wasn't writing a law review article on Korematsu. My point was that the Supreme Court upheld a political decision to put nationals from a country we were at war with that had just attacked an American naval base in Hawaii in internment camps when our military advisors said that we were faced with an imminent invasion by that country on our West Coast. That indicates to me that a similar ruling might be made if our President and Congress are faced with ongoing, terrorist attacks on the level of 9/11. The attacks, incidentally, could be much worse that 9/11. I said MIGHT, Roger.

    Hassan does not do an historical analysis of the basis for the Korematsu decision. It refers to and agrees with previous court decisions that presumable make that analysis. Roger has not told us what they say. This is a quote from the passage in the third circuit case that I am referring to:

    Today it is acknowledged, for instance, that the F.D.R. Administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps. Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the Government’s representations that the use of such classifications was necessary to the national interest. Hirabayashi, 320 U.S. 81; Korematsu, 323 U.S. 214. In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears. See United States v. Hohri, 482 U.S. 64, 66 (1987); see also Act to Implement Recommendations on the Commission of Wartime Relocation and Internment of Civilians, Pub. L. 100-383, 2(a), 102 Stat. 903-04 (1988). Given that “unconditional deference to [the] government[’s] . . . invocation of ‘emergency’ . . . has a lamentable place in our history,” Patrolmen’s Benevolent ***’n, 310 F.3d at 53–54 (citing Korematsu, 323 U.S. at 223), the past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.



    Finally, Roger relies on the apology for the internment from President Reagan and the Congress. Why is that more significant than the fact that the internment was ordered by a President and Congress? In any case, as I have pointed out in a previous comment, I am not impressed by the sincerity of an apology that the Japanese American community had to lobby ten years to get.
    Updated 09-30-2016 at 11:09 AM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    Nolan has begun a welcome and helpful discussion of the 3rd Circuit's 2015 Hassan decision, whcih i will look forward to continuing in a forthcoming blog comment in my own Immigration Daily post.

    Roger Algase
    Atorney at Law
    Updated 09-30-2016 at 12:18 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    And I will look forward to reading your blog, which I presume, will include the reasons why subsequent courts discredited Korematsu.

    For the record, I have not expressed an opinion on Korematsu. My point is that when the country is at war and expecting an invasion, extreme measures are possible and at least in the Japanese internment case, the Supreme Court was willing to defer to what the President and Congress thought was necessary to protect our country. The situation the President and Congress were in when we were at war and expecting an invasion reminds me of something that was being said when I was a martial arts student, "When you have to decide how to respond if attacked, consider whether you would rather be judged by 12 or carried by 6?"

    This is the message of my article: If the United States finds itself in the midst of ongoing horrific terrorist attacks, we could see internments again. If that situation should occur, I would hope that the Muslim community would take steps to assist our government in a highly visible way or do something else to reduce that possibility.
    Updated 09-30-2016 at 12:18 PM by ImmigrationLawBlogs
  8. Germanio's Avatar
    Quote Originally Posted by ImmigrationLawBlogs

    This is the message of my article: If the United States finds itself in the midst of ongoing horrific terrorist attacks, we could see internments again. If that situation should occur, I would hope that the Muslim community would take steps to assist our government in a highly visible way or do something else to reduce that possibility.
    From a practical standpoint it will be virtually impossible to enforce compulsory interment of Muslim-Americans, either social unrest in this country evolves in combination with drastic economic/diplomatic sanctions exerted by Arab States on the US Government will make any presidential decree futile.

    Wake up to reality, this is the 21st Century and US laws cannot preempt International law.
  9. ImmigrationLawBlogs's Avatar
    I never said that it would happen, just that it would be a possibility. And I qualified that by pointing out that it would have to be limited to focus on the Muslim group that could be said was posing a threat (real or imagined). As I pointed out also, the Japanese internment ignored the Japanese Americans in Hawaii. It just applied to the Japanese Americans on the West Coast, which is where the predicted invasion by the Japanese army was supposed to take place.

    Yes, this is the 21st century. Does that mean that people no longer react irrationally when they are put in fear for their lives? I posed a hypothetical situation as the context for my comments, an ongoing series of 9/11 level terrorist attacks. How rational would you be if a dirty bomb was exploded in a city in the vicinity of where you live and tens of thousands of people died horrible death?
  10. ImmigrationLawBlogs's Avatar
    I republished this article to add a reference to a secret mission to bomb Tokyo. This was doen partly for revenge but also to show Japan that we could strike their major cities with our bombs. The attack is described in a CNN article entitled, "Last living Doolittle Raider recalls America's revenge attack" (September 30, 2016),
    http://www.cnn.com/2016/09/30/us/doo...ole/index.html
  11. ImmigrationLawBlogs's Avatar
    It is still not clear what Nolan's point was in writing this post. If his intention was to show that there was any rational purpose in locking up more than 100,000 innocent Japanese-Americans and suspending their constitutional rights to due process and equal protection of the law, he has failed to show how the internment contributed in any way to America's war effort.

    To the best of my knowledge, there has never been a shred of evidence, or any claim by reputable historians that the internment shortened the war by one single day.

    However if Nolan's purpose in writing this post was to warn America against engaging in mass hysteria, bigotry and racism against a targeted group of people, in this case, Muslims or Arabs (and there is a difference), in the name of fear-mongering and a false sense of security, then I fully support and commend his comments.

    Nothing like the Japanese-American internment must ever be allowed to happen in America again - not to Muslims because of religion, not to Arabs because of ethnicity, or to any other group of innocent people who have not broken any of this country's laws. If that is Nolan's point, then every American who cares about our Constitution and our democracy will owe Nolan a debt of thanks for publishing this blog.

    Roger Algase
    Attorney at Law
    Updated 10-05-2016 at 04:50 AM by ImmigrationLawBlogs
  12. ImmigrationLawBlogs's Avatar
    For my updated (October 8) comment on the connection between the outbreak of hatred and prejudice that America engaged in against Japanese-American citizens 75 years ago, Donald Trump's own horrific and sickening remarks about women in 2005 which are only now coming to light, and his vicious campaign of hatred and disinformation against Latino, Muslim, and other minority immigrants and US citizens during the past year and more as part of his now very possibly moribund presidential campaign, see above.

    Roger Algase
    Attorney at Law
    Updated 10-08-2016 at 04:55 AM by ImmigrationLawBlogs
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