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Are There Legal Precedents for Muslim-American Internment? A Brief Historical Survey, Pt.1. Roger Algase

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The following comment has been revised and expanded as of October 3 at 10:00 am:

In his September 29 Immigration Daily post: Will Muslim-Americans be put in internment camps if more 9/11 attacks occur? Nolan Rappaport suggests that at least a few American Muslims might be subjected to internment without charges if they are actually terrorists or terrorist supporters.

Of course, we have laws in America against terrorism and supporting terrorism, including but not limited to the PATRIOT Act, enacted in the wake of 9/11. Anyone charged with violating or attempting to violate such a law is of course subject to apprehension and incarceration, along with all attendant due process rights.

But Nolan Rappaport, if I understand his comment correctly, appears to be suggesting that something much broader could happen, - namely a kind of preventive detention for people not charged with any violation of law, based in large part on perceived or alleged danger to society because of their religious affiliation. Nolan writes:

"While the possibility of intenrment camps for Muslim-Americans may sound farfetched, it happened to Japanese-Americans in Wold War II. Understanding how it happened to the Japanese Americans might help prevent it from happening again."

I would agree with Nolan that the idea of preventively interning Muslim-Americans as a group, or even just a few members of this group, as an anti-terror or national security measure is indeed far fetched.

Nothing is more sacred or protected than the guarantee of free exercise of religion enshrined in the First Amendment to our Constitution, together with the rights to equal protection of the law and due process of law contained in the 14th Amendment.

Nolan's above post, understandably, does not refer to freedom of religion at all in connection with the Japanese-American internment, because religion was obviously not an issue in that episode. However, the 14th Amendment guarantees of equal protection and due process clearly were involved, and, in my view, they deserved fuller discussion in Nolan's post than they received. I will attempt to make up for that in this series of comments.

Nolan's post is also noteworthy because there have been some attempts to impose legal restrictions on Muslim-Americans or on the practice of their religion.

These include attempts in one or more states such as Oklahoma to ban "Sharia Law" though legislation introduced to that effect, and an alleged New York City Muslim surveillance program which was the subject of the 2015 Third Circuit Court of Appeals decision in Hassan v. The City of New York, 804 F.3rd 277.

This landmark case will be discussed in more detail later on in this series of comments. But I do not know of any proposal that has been suggested by anyone, even in the current heated presidential campaign, to incarcerate all or even selected Muslim-Americans, based on their religion or ethnicity, without actual charges of violating any law being made against them.

In even suggesting that such a thing could happen, Nolan appears to be entirely by himself, to the best of my knowledge. However, he is of course entirely correct in pointing out that this did in fact happen to Japanese-Americans some seventy-five years ago, and that it is important to see that it never happens again.

But could the internment of Japanese-Americans somehow provide a legal precedent for interning or otherwise restricting the legal rights of many, or even a few, Muslim US citizens as a group in the event of future terrorist attacks against the US?


While I will reserve a detailed discussion of the landmark Third Circuit Hassan v. The City of New York decision, cited above, for a forthcoming installment in this series, I will quote from this decision's comment about the reasons for the Japanese-American internment and its alleged "constitutionality" or value as a "precedent" for any legal action against Muslim Americans taken as a group or based on their religion: The Court stated:

"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 for 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 by unfounded fears." (804 F.3rd at 307)


Of course, one could argue that the above two WWII period cases upholding discrimination against Japanese-Americans based on race still have more precedential value than the recent Hassan decision because the first two mentioned cases were decided in the Supreme Court, not a (slightly) lower ranking court as with Hassan.

However, it is highly doubtful that anyone one could make such a contention seriously, especially since there is a strong argument that both of those wartime cases were in effect overruled by statute in 1988 when Congress passed, and President Reagan signed, a law apologizing to the Japanese-American community for the internment on behalf of all the American people.

Japanese-Americans, of course, are not the first minority group in world history to be subjected to incarceration or other legal restrictions based on religious or ethnic affiliation.

Therefore, in order to gain a better understanding of the reasons for the Japanese-American internment and to examine them in a larger historical context, it would be instructive to take a brief survey of two other well-known historical examples of incarceration or other severe legal restrictions against minority groups based on ethnicity, religion, or both.

In doing so, I will examine legal actions that have been taken in the past to restrict or abolish the rights of adherents of two great world religions that have had major influences on our history and civilization, especially but not exclusively in the West, and which are both widely considered as being related to Islam in terms of belief and doctrine, namely Christianity and Judaism.

First, I will discuss the legal edicts against Christians under the Roman Emperor Diocletian in the early 4th Century A.D. Then, I will look at the Nuremberg Laws against the Jews enacted in Germany under the National Socialist regime in the 1930's.

.The early Christian historian Eusebius, writing in his Ecclesiastical History (Historia Ecclesiastica, in Latin) around A.D. 335, only a few years after the fact, relates as follows:

"It was in the 19th year of the reign of Diocletian [A.D. 303], in the month Drystrus, called March by the Romans,, when the feast of the Saviour's passion was near at hand, that royal edicts were published everywhere, commanding that churches be leveled to the ground and and the Scriptures destroyed by fire, and ordering that those who held places of honor be degraded, and that the household servants, if they persisted in the profession of Christianity, be deprived of freedom. Such was the first edict issued against us. But not long after, other edicts were issued, commanding that all the rulers of the churches in every place be first thrown into prison, and afterwards by every artifice be compelled to sacrifices."

I have not been able to find actual texts of these decrees and do not know if they are still extant. But Eusebius' above summary makes their content clear enough.

What, if anything, had the early Christians in the Roman empire done to attract this degree of legal persecution? One could ask the same question about the Jews in Nazi Germany or the Japanese-Americans during WWII.

According to historians, there are a number of reasons why Christians in the ancient Roman empire may have been looked at with suspicion, or even fear, by the ruling authorities, leading to the promulgation of strict legal measures against members of this religious minority group.

I will discuss a few of these reasons in the next installment of this series.
_________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the worls and religious/ethnic backgrounds to obtain work visas and green cards. Roger's email address is
algaselex@gmail.com

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Updated 10-04-2016 at 05:19 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    I Know an American 'Internment' Camp When I See One

    "Last summer, the Obama administration announced its plans to open new immigrant family detention centers in response to the wave of women and children fleeing violence in Central and South America and seeking asylum in the United States. The ACLU and other advocacy groups quickly opposed the White House's policy because of the harm it would inflict on already traumatized women and children. This month, The New York Times editorial board described family detention simply as "immoral," and the U.N. Human Rights Council called upon the U.S. to "halt the detention of immigrant families and children." In the following piece, psychotherapist Satsuki Ina, who was born in a Japanese-American prison camp during World War II, recounts her visits to two so-called family detention facilities in Texas and the psychological toll detention takes on the women and children imprisoned there. — Matthew Harwood."
  2. ImmigrationLawBlogs's Avatar
    Roger starts out wrong. I didn't say that at least a few Muslim Americans would be subject to internment without charges. His next statement is accurate. I was talking about internment as preventive detention. But then his comments veer off from what I discussed in my article. He says, "Nothing is more sacred or protected than the guarantee of free exercise of religion enshrined in the First Amendment to our Constitution, together with the rights to equal protection of the law and due process of law contained in the 14th Amendment."

    The internment would have nothing to do with religion. It would be based on fear, not an aversion to someone's religious beliefs. The hypothetical situation I posed in my article was an ONGOING series of Arab terrorist attacks across the nation as bad or even worse that the 9/11 attacks. If that were to happen, the American public would be panic stricken and would demand action from their congressmen and the president. And their demand wouldn't be limited to Muslim Arabs, they would want action to be taken against all Arabs in the United States without regard to their religious beliefs.

    Due process and equal protection could be limitations, but only if the situation doesn't become so serious that the president has to declare martial law. This is the aspect that Roger doesn't understand. When the US is under attack, Congress and the White House will do what they have to do to protect us. And that was President Bush's reaction to 9/11. He said that the United States was at war. Who knows what he would have done if the attacks had continued.

    Nolan Rappaport
    Updated 10-03-2016 at 11:33 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Oh gosh! How dense can I get?

    Even though the title of Nolan Rappaport's previous blog begins with the words "Will Muslim-Americans be put in internment camps..", and he refers throughout that post to "Muslims", which as everyone knows, means members of one of the world's great religions, Nolan now tells us that he was really referring to locking people up by race not religion, in the event of his nightmare scenario, namely a series of terrorist attacks against the United States.

    Nolan writes above that in the event of such attacks, the American public might want "action to be taken against all Arabs in the United States regard to their religious beliefs."

    Am I quoting you correctly, Nolan? Are you now suggesting that in the event of attacks by ISIS or other Islamist Jihadist terrorist groups, who are known for killing Christians and other "infidels" on sight, America should think about locking up Christians, merely because they might happen to be Arabs as a matter of ethnicity?

    If so, why didn't you say so in your original comment?

    Why did you talk about locking up Muslims in your September 28 Immigration Daily blog?

    Could we have a little clarification, please?

    And if you are seriously thinking of locking people up by race or ethnicity, in response to your scenario of repeated attacks by Muslim terrorists in the name of religion, why stop at just locking up Arab Christians, in addition to Muslims?

    What about Sephardic Jews (a group I happen to belong to myself by ancestry)? Most, if not all, Sephardic Jews have ancestors who came from Arab countries (including Muslim Spain - "Sepharad" means "Spain" or "Spanish" in Hebrew), and many of them have Arabic names

    They were certainly part of Arab culture and many Sephardic Jews had high positions in the society or government of various Arab countries.

    Of course, I am being entirely facetious in my above comments about Sephardic Jews. No one would seriously think of locking up Jewish Americans in response to a terrorist attack by a group inhuman murderers to claim to be Muslims. But why lock up Christians either in response to or in fear of such an attack or series of attacks?

    Aside from targeting a particular racial group as a scapegoat, as was done during the Japanese-American internment period but which goes against everything America stands for, Nolan's suggestion that fears of repeated terrorist attacks might somehow "trump" the Constitutional right to due process of law (my pun, not Nolan's), and that maybe we should consider giving up some or all of our freedoms as a nation in the name of "security" raises profound questions about our liberties and what America really means.

    These questions were answered one way 72 years ago by the Supreme Court in Korematsu v. US, which upheld Japanese-American internment in a wartime atmosphere of racism and fear - and which Congress and the President later formally apologized for by statute in 1988,

    However, much more recently, as late as last year in the 3rd Circuit Court of Appeals in a case dealing with with alleged police surveillance against American Muslims, and as recently as yesterday, October 3, 2016, in the 7th Circuit Court of Appeals, in a case involving Syrian refugees, the courts have had a very different answer, one much more in keeping with America's ability to remain a democracy rather than turn into a fascist dictatorship which locks people up purely because of either their race or their religion.

    I will look at these two latest Circuit Court decisions in my upcoming Immigration Daily blog post.

    Roger Algase
    Attorney at Law
    Updated 10-04-2016 at 06:52 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    I used the word "Arab" in my comment in an attempt to focus Roger on what my article is really about, which is how America will react to the fear that would be generated by ongoing terrorist attacks on the level of 9/11. It didn't work.

    Nolan Rappaport
    Updated 10-05-2016 at 02:13 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar

    Oh, I get it - "Arab" sounds scarier than "Muslim" - is that the deal?

    Roger Algase
    Attorney at Law
  6. Ariel Kaplan-Stein's Avatar
    Just wondering what repercussions may have Stephanie Ross DeSimone v. Kingdom of Saudi Arabia (first lawsuit under JASTA), if during the discovery process is found that that State of Israel was also involved in the 9/11 attacks (perhaps Israel's Mossad assisting the alleged Saudi highjackers).

    Consequently, would it be fair for the Executive branch to put under strict surveillance synagogues all across the nation and/or start monitoring the activities of US citizens (and aliens) who happen to practice Judaism?

    In the hypothetical event that there is a new terrorist attack on US soil, should these people be also sent to internment camps as a precautionary measure (by suspending the Writ of Habeas Corpus)?
  7. ImmigrationLawBlogs's Avatar
    Mr. Kaplan has an excellent point. While it might seem theoretical under present conditions in America that Jewish citizens could be rounded up and put in concentration camps for any reason, it hardly needs repeating that within the lifetime of the millions of people still around who were born before 1945, it did happen to the Jews in Europe, six million of whom did not survive the Holocaust.

    Returning to the topic of relative "Muslim" vs. "Arab" fear mongering, while Nolan evidently feels (again, if I understand his previous point correctly) that using "Arab" may be more useful in "focusing" people on his nightmare scenario of multiple terrorist attacks against America, none of the most recent mass attacks that have been in the news have been by Arabs, as far as I know.

    The Boston Marathon attack was by people of Chechen, i.e. Central Asian, origin. The San Bernardino attack was by a husband and wife of Pakistani origin.

    The most recent two attacks - Orlando and NY/NJ, were by people of Afghan, not Arab, origin.

    The 9/11 attacks, to be sure, were by Arabs. Those were 15 years ago. Let us hope they will never be repeated.

    Even if every person of Arab ancestry in America were locked up, there is no guarantee that this would prevent future 9/11 attacks.

    It might even make them more likely.

    Nolan's apparent attempt to link the shameful period of Japanese-American internment during WWII, one which our government has long since officially apologized for by statute, to American security concerns now, is utterly irrelevant and misplaced, with all due respect to Nolan's well-deserved reputation as a distinguished legal scholar and expert on immigration matters.

    I am not aware of a single reputable historian who has ever asserted that the Japanese-American internment actually contributed to America's war effort against Japan in any way whatsoever..

    However the overwhelming weight of opinion, as expressed not only in America's bipartisan 1988 apology law signed by President Reagan, but as recently as last year in my above quoted extract from the 2015 Hassan v, The City of New York 3rd Circuit of Appeals decision, and by historians no doubt too numerous to mention, is that the Japanese internment was nothing more than an expression of racial bigotry, unrelated to any genuine security considerations.

    Is this something that America would really want to go through again, whether against Muslims, Arabs, or anyone else?

    Roger Algase
    Attorney at Law
    Updated 10-04-2016 at 09:53 PM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    I am still unclear as to why Nolan wrote his original post on Japanese-American internment. Surely, he cannot seriously claim that the internment in any way helped America's war effort, or shortened the war by one single day.

    Can Nolan cite a single reputable historian who has ever made such an absurd claim?

    On the other hand, if Nolan wrote his blog as a warning to America to avoid engaging in the same kind of bigotry, racism nd mass hysteria in the name of security against Muslims or Arabs (and there is a big difference, as Nolan surely knows - not all Arabs are Muslims, and there are hundreds of millions, if not over a billion, Muslims around the world who are not Arabs), that our country showed toward innocent Japanese-Americans 75 years ago, then his post serves a valuable purpose and would have my full support, as well as the support of all fair-minded Americans who believe in upholding our democracy and the liberties guaranteed by our Constitution.

    Roger Algase
    Attorney at Law
  9. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs

    Oh, I get it - "Arab" sounds scarier than "Muslim" - is that the deal?

    Roger Algase
    Attorney at Law
    You seem incapable of understanding other ways of looking at immigration issues. I have said several times that the subject of my article is how our government would react to the fear that an ongoing series of 9/11 terrorist attacks would cause, and you continue to ignore what I am saying. You will never be effective at advocating your views when you are unable to understand why people object to them.
  10. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I am still unclear as to why Nolan wrote his original post on Japanese-American internment. Surely, he cannot seriously claim that the internment in any way helped America's war effort, or shortened the war by one single day.

    Can Nolan cite a single reputable historian who has ever made such an absurd claim?

    On the other hand, if Nolan wrote his blog as a warning to America to avoid engaging in the same kind of bigotry, racism nd mass hysteria in the name of security against Muslims or Arabs (and there is a big difference, as Nolan surely knows - not all Arabs are Muslims, and there are hundreds of millions, if not over a billion, Muslims around the world who are not Arabs), that our country showed toward innocent Japanese-Americans 75 years ago, then his post serves a valuable purpose and would have my full support, as well as the support of all fair-minded Americans who believe in upholding our democracy and the liberties guaranteed by our Constitution.

    Roger Algase
    Attorney at Law
    I am not going to respond to any more of your comments on my article until you read it again and make an attempt to understand what I am saying. It's pointless to discuss something with you when you just listen for words you can use as a jumping off point to lecture on your views.

    Nolan Rappaport
  11. ImmigrationLawBlogs's Avatar
    I was trying to give Nolan the benefit of the doubt by assuming that the purpose of his blog comment about Japanese-American internment was to urge Americans not to abandon adherence to our Constitutional principles of process and equal protection of the law on the basis of fear and prejudice against a particular ethnic or religious group, whether Japanese-Americans three quarters of a century ago, or Muslim-Americans or Arab-Americans now.

    Nolan appears to be disputing my interpretation of his blog comment and to be arguing that the above was not in fact the point that he was trying to make.

    If that is the case, and if Nolan was really trying to make some other and different point, than I can only respectfully state that I would be quite disappointed.

    Roger Algase
    Attorney at Law
    Updated 10-06-2016 at 09:00 PM by ImmigrationLawBlogs
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