Thursday, December 29, 2005

Korematsu, Coulter, and Bush

Back when Ann Coulter worked at MSNBC -- about the same time that I worked at capturing and producing the Web outtakes of her and other pundits' on-air pronouncements -- I remember that we often used to identify her in the ID line as a "Constitutional Law Expert" or "Constitutional Attorney."

I'm not sure why we did that: She has no known scholarly expertise in constitutional law, having never published anything in the way of a serious or academic exposition on the subject. She did once work as a litigator at the right-wing Center For Individual Rights in Washington, which has old connections to the white-supremacist Pioneer Fund, and whose racial goals raise disturbing questions about Coulter's background. But it remains an open question whether she ever dealt with constitutional-law issues in the courts. In any event, usually the "consitutional expert" description applies to folks like Richard Posner or Laurence Tribe, people who actually have the background and experience, and thus the expertise.

However, I've observed during Coulter's ascent that it doesn't really matter what label she uses, because her role in the conservative movement is pretty well-defined by now, even as it was back then: Chief Firebomb Thrower. She's at the cutting edge of the movement, and as such is an uncannily accurate predictor of the direction the entire American right is about to take.

Now, I first noticed this during the runup to the Clinton impeachment brouhaha: behind the reasonable moniker of "constitutional law expert," Coulter was twitching and foaming at the mouth about the president's supposed abrogations of the law. It wasn't the blow jobs, she insisted, it was the lawbreaking. Funny how that standard changes with the times, isn't it?

Anyway, her "constitutional attorney" pose was purely for the purpose of fomenting impeachment. Skip forward seven or eight years, and it's clear that she's still using the same schtick, but the apparent purpose is profoundly disturbing.

Check out this passage from her most recent column extolling the virtues of George W. Bush's domestic-spying program:
In previous wars, the country has done far worse than monitor telephone calls placed to jihad headquarters. FDR rounded up Japanese -- many of them loyal American citizens -- and threw them in internment camps. Most appallingly, at the same time, he let New York Times editors wander free.

Note the following about the Japanese internment:

1) The Supreme Court upheld the president's authority to intern the Japanese during wartime;

2) That case, Korematsu v. United States, is still good law;

3) There are no Japanese internment camps today. (Although the no-limit blackjack section at Caesar's Palace on a Saturday night comes pretty close.)

It's one or the other: Either we take the politically correct, scattershot approach and violate everyone's civil liberties, or we focus on the group threatening us and -- in the worst-case scenario -- run the risk of briefly violating the civil liberties of 1,000 people in a country of 300 million.

Other than the gratuitous and crude racial stereotype, and the eliminationist "humor" that is not merely a recurring feature but a defining obsession of Coulter's schtick, the most remarkable aspect of this analysis is her claim that Korematsu v. United States is "good law."

A lot depends, of course, on your definition of "good law." If it simply means that the ruling in question has never been overturned and is, in at least a technical sense, in force, then Coulter is right.

But if, by "good law," you mean rulings a court would uphold today as valid, then that's another matter altogether.

It is in fact something of an article of faith in legal circles that Korematsu is one of the Supreme Court's three great historical mistakes, ranking alongside Dred Scot and Plessy v. Ferguson in the annals of bad law.

In fact, every single member of the current Supreme Court has indicated that they consider Korematsu to have been improperly decided, including Antonin Scalia. Any attorney bringing a case before the current Supreme Court and arguing with Korematsu as their foundation would certainly lose.

Recall, if you will, the questioning about Korematsu that Supreme Court nominee John Roberts underwent during his confirmation hearings:
FEINGOLD: Do you believe that Korematsu was wrongly decided?

ROBERTS: It's one of those cases that I don't think it's technically been overruled yet. But I think it's widely recognized as not having precedential value. I do think the result in that case -- Korematsu was actually considered the exclusion, not the actual detention, but the exclusion of individuals based on their ethnic and racial background from vast areas.

And it's hard for me to comprehend the argument that that would be acceptable these days.

FEINGOLD: It's often included, if you list decisions that are sort of considered some of the worst decisions in the history of the Supreme Court with Plessy v. Ferguson and Dred Scott and others. Is that a fair characterization of your view of Korematsu?


Of course, Eric Muller has written often and lucidly on the Korematsu matter, including his commentary on the Roberts hearings. Greg Robinson, writing at Muller's blog, elucidated what I think is final word on Korematsu:
Finally, the nicest thing that can be said about the Korematsu decision is that it reflects the Court's historic deference to the Army and Executive in times of war, and not a reasoned agreement with the government’s evidence. Indeed, during the 1980s federal judges overturned the convictions of Korematsu and the other Japanese American defendants because of a pattern of government misconduct and tampering with evidence during the trials. As was discovered in the early 1980s, when West Coast Defense Commander General DeWitt drafted his Final Report, he explained that his reasons for instituting mass removal was the alleged impossibility of telling a loyal Japanese American from a disloyal one. This draft, which set forth DeWitt's authentic recital of the reasoning underlying his policy of mass removal, was suppressed by Assistant Secretary of War McCloy. McCloy ordered DeWitt to destroy all copies of his draft and to prepare a new one which would present the claim that evacuation was necessary only because there was otherwise insufficient time to determine the loyalty of individuals. Similarly, the FCC and other government bodies had informed the Justice Department that General DeWitt's claims that Japanese Americans had engaged in shore-to-ship signalling, which lay at the center of his case for evacuation, were unfounded. Rather than report this to the Court, the Justice Department concealed this evidence from the Justices.

Put simply, the deference of the Court to the executive branch in wartime that Korematsu exhibited was predicated on deceptiveness from the Justice and War departments that in turn sought to obscure the nakedly racist nature of the claim of "military necessity." That is to say, when the Courts so abjectly defer to such wartime powers, the executive can expand all its powers to unimaginable heights simply on its say-so, whether truthful or not.

And it's important to remember that there were those at the time who saw through this deception, as Muller explained awhile back [see the Aug. 24 entry, "Ditching the "Hindsight" Justification"]:
Hindsight, as we know, is the perception of the nature of an event only after it has happened. Underlying the hindsight critique is an implicit assertion that the judgment we form today they could not have formed back then.

But this is so obviously wrong in the case of Korematsu that one wonders why Posner even bothers. At least two of the nine Justices on the Korematsu (Murphy and Roberts), and very arguably a third (Jackson), saw that the order removing Japanese Americans from the West Coast was racist in 1944. J. Edgar Hoover saw it as unnecessary and U.S. Attorney General Francis Biddle saw it as illegal (as applied to U.S. citizens) in January of 1941, when it was being considered. Prominent syndicated columnists, most notably the Washington Post's Merlo Pusey, publicly condemned the internment while it was ongoing.

To say that the racism in the exclusion program is visible only to us today is false. Plenty of people -- including people very close to FDR himself, and a third of the Supreme Court -- saw it back then. Hindsight may be 20/20, but some people had damn good vision back then too.

Indeed, let's remember exactly what it was they saw, because those dissenting views actually reflect the bulk of the thinking of today's judiciary. First, there was Justice Murphy's dissent:
That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descent as "subversive," as belonging to "an enemy race" whose "racial strains are undiluted," and as constituting "over 112,000 potential enemies at large today" along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

Perhaps even more prescient was Justice Robert Jackson's dissent:
But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, 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 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.

For more on the background of the Korematsu case, see this brief history.

As I've previously explained, the World War II internment-camp rulings continue to play an important role in the actions of the Bush administration after 9/11:
What the Japanese-American internment revealed for the first time was a hole in the traditional checks and balances of constitutional powers. In wartime, the total deference to the executive branch would lend it nearly comprehensive powers. The post-Sept. 11 response has opened another dimension to this: If wartime -- as in the "War on Terror" -- becomes itself a never-ending enterprise, then the executive branch's power becomes potentially illimitable.

... Legal scholar Anita Ramasastry explored the dangers posed by the Bush policies last year in a FindLaw commentary that pointed out that while the White House so far has relied on another Supreme Court precedent, Ex parte Quirin -- which dealt with German military operatives arrested on American shores -- to justify its actions, these also closely resemble the Korematsu matter: "[In] both cases, the government arrogated itself the right to detain -- and detain indefinitely -- without court review of its decisions as to who should be detained."

It's understandable why the administration would avoid raising Korematsu in its defense. Its historical standing and the near-certainty of its being overturned should it come before the court again should be enough to steer most attorneys clear of leaning upon it for any kind of support.

On the other hand, as the Center for Constitutional Rights’ legal scholars have argued (in a report titled "American Justice on Trial: Who Loses in the Case of Military Tribunals?"), the Ex parte Quirin decision upon which the government is relying "simply cannot be credibly stretched to cover the present circumstances given current facts and the clear principles of the international law of war" -- and pointed out that it, like Korematsu, is now "widely recognized as an abysmal model of fairness and justice."

That hasn't stopped the right from citing Quirin in defense of the Bush administration's initiatives, as Cass Sunstein has done continuously. But as Armando points out, not even Quirin can be credibly stretched to cover the gross expansion of presidential powers represented by the NSA domestic spying that Coulter and the rest of the right is now leaping to defend. In fact, it specifically prohibits it.

No, as Coulter evidently recognizes, the only ruling that does that -- the one that accedes powers so sweeping that in fact it grants the executive branch the ability to ignore 14th-Amendment requirements for equal protection under the law -- is Korematsu.

Which, evidently, is the reason that Coulter hopes to resurrect its legacy today, much as she has attempted to resuscitate the reputation of Joe McCarthy. Just as defenders of the internment plans did in early 1942, before it became reality, Coulter suggests that any such program that so grossly violates the civil rights of citizens would only involve a mere handful, "1,000 people in a country of 300 million."

But then the reality was that the Korematsu ruling imposed no such limits, which is why it wound up involving 120,000 people in a population of 132 million.

ReddHedd at firedoglake sums up the situation neatly:
The President has made an extraordinary power grab with all of this, using war powers arguments as justification for stepping well outside the standards of legal precedent in national security matters built up over years and years. This Presidential Activism (hat tip to Jeralyn for the term)is something that must be either reconciled or condemned by members of Congress over the course of oversight hearings -- but members of Congress should know that we will be watching what they do, or don't do, as will the ghosts of the patriots who fought so hard to make this nation free in the first place.

Of course, with people like Coulter leading the charge from the right, those patriots will continue to be cast as "traitors" and "appeasers." That's part of the price.

But if the right's bottom line is making Korematsu "good law," then it should be clear that their aim is nothing short of a dictatorial presidency with the limitless powers granted him during "wartime."

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