Endo v. Bush

Over at his blog, Eric Muller has been hosting a mini-symposium on Mitsuye Endo and her Supreme Court case that ended the nightmare of the Japanese American internment. The whole series was excellent, with Greg Robinson's thoughtful disquisition a real highlight.

But I was particularly struck by something Jerry Kang wrote in his excellent contribution:

Why does this interpretive dispute matter? First, in the law reviews, Endo is being remembered more triumphantly than Gudridge intended, as an example of the Supreme Court checking Executive Branch excesses, even during times of war. Nothing could be further from the truth. The Supreme Court should be blamed for its machinations, not praised for its backbone.

Second, in judicial opinions, Endo is being remembered without irony. Endo is now being cited for the "clear statement rule"--that in order to detain American citizens, the political branches must authorize such detention unambiguously. The argument goes like this: Just as the internment was not authorized back during World War II, see Endo, detention has not been authorized in the global war on terror. But this reinscribes a falsehood. FDR and Congress did authorize the internment camps. It's just that the Court declined to see to this inconvenient fact.

As a matter of history, Endo should be understood as dodging accountability. [emphasis mine] As a matter of doctrine, Endo should be treated in the same way that we treat Korematsu. Even nonlawyers know that the Korematsu case created the foundations of "strict scrutiny," which remains a critical component of our equal protection jurisprudence. In other words, as an abstract legal rule, Korematsu remains good law. However, how this rule was applied to the facts is universally disdained. Endo's abstract legal rule, demanding a clear statement, can also be preserved as good law. However Endo's application to the facts in World War II should be sharply rejected as deceitful.

If we don't, what will prevent the use of Endo to dodge accountability again? After horrific tortures in some detention camp are brought to light, low-level soldiers will be prosecuted but high-level officials will be absolved. After all, there was never any "clear statement" authorizing quite this sort of barbarism. See Endo.

This brings us to something I discussed regarding the Korematsu case, which, as Kang argues, must be seen in a similar light:

Put simply, the deference of the Court to the executive branch in wartime that Korematsu exhibited [particularly in its failure to hold the Roosevelt administration accountable for its actions] 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.

Probably the definitive word on this was Justice Robert Jackson's dissent in Korematsu:

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.

A lack of accountability is the key, as with FDR, to the Bush administration's mad power grab in the wake of the Sept. 11 tragedy. At every step, the administration has short-circuited any serious scrutiny of its actions through a series of steps: badgering the Republican Congress into submission, threatening its critics and accusing them of treason and anti-Americanism, and, as Glenn Greenwald has exquisitely illuminated, avoiding any kinds of court challenges to its sweeping assertion of executive powers.

I'm especially enamored of Greenwald's new book, How Would a Patriot Act? Defending American Values from a President Run Amok, which traces the origins of the NSA surveillance matter back to the Bush's decision to expand executive powers from his first days in office, but taking off with a vengeance under the banner of 9/11.

Most of all, Greenwald's book is a call to action in defense of bedrock American values -- values that are, in fact, endangered by the Bush administration's vision of a corporate America run by an all-powerful executive. It is a vision that is fueled and enabled by the environment of fearfulness, particularly a fear of amorphous terrorism, that Bush, with the full complicity of the media, has proven extraordinarily adept at fostering.

The folks at Firedoglake hosted two excellent discussions of the book, both of which are well worth reading for the many additional insights. And it was encouraging to read how many other people are becoming aware of the dangers posed by Bush's power grab.

In the comments, I noted one caveat with Greenwald's thesis:

I was very interested in Glenn's description of how he came to be concerned about the Bush administration's post-9/11 behavior, especially since he says he "was among those who strongly approved of his performance" after the attacks.

I have to admit I was far more skeptical initially. After all, it was my belief from having tracked Bush's record on antiterrorism work before 9/11 that his atrocious handling of the issue was not likely to change afterward. I too supported the decision to invade Afghanistan, but felt that even that was badly mishandled, and when the focus shifted to Iraq, I knew we were in trouble in terms of making serious headway against terrorism.

Still, I think my red flags went up at the same time as Glenn's (pp.2-3):

What first began to shake my faith in the administration was its conduct in the case of Jose Padilla, a U.S. citizen arrested in May 2002 on U.S. soil and then publicly labeled "the dirty bomber." The administration claimed it could hold him indefinitely without charging him with any crime and while denying him access to counsel.

I never imagined that such a thing could happen in modern America -- that a president would claim the right to order American citizens imprisoned with no charges and without the right to a trial. In China, the former Soviet Union, Iran, and countless other countries, the government can literally abduct its citizens and imprison them without a trial. But that cannot happen in the United States -- at least it never could before. If it means anything to be an American citizen, it means that we cannot be locked away by our government unless we are charged with a crime, given due process by the court, and then convicted by a jury of our peers.

I was alarmed by the Padilla case as well, and for the same reasons -- but from a somewhat different perspective.

I had spent much of the previous ten years researching the incarceration of Japanese Americans during World War II, the results of which I published in my book Strawberry Days: How Internment Destroyed a Japanese American Community. And what I knew, all too well, was that American citizens have been imprisoned with no charges and without the right to a trial; I knew that the United States government had in fact abducted its citizens and incarcerated them without a trial, it had locked them away without being charged with a crime.

And it was all done, in fact, under the same circumstances the Bush administration was now claiming gave it free rein, namely, its powers as a wartime executive.

Before Strawberry Days was published, I explored this in some detail at American Street, using some of the material that later was published in the book:

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.

Up to the edge of that hole in the Constitution, the Bush administration has driven a large bus called "enemy combatant status" and parked it. It now sits, idling.

As reporter Charles Lane explained in the Washington Post, the Bush administration's creation of this status actually created a parallel legal system with secret courts that ultimately are only accountable to the president himself: "For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen's home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it."

Ultimately, the president himself would be the person making the call on just who qualifies as an "enemy combatant." And what would be the Bush administration's criteria for making these decisions?

"There won't be 10 rules that trigger this or 10 rules that end this," explained Solicitor General Theodore Olson in the Post. "There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances."

As Olson went on to explain in the Post piece, the only thing to restrain the president is the prospect of losing re-election:

Administration officials, however, imply that the main check on the president's performance in wartime is political -- that if the public perceives his approach to terrorism is excessive or ineffective, it will vote him out of office.

"At the end of the day in our constitutional system, someone will have to decide whether that [decision to designate someone an enemy combatant] is a right or just decision," Olson said. "Who will finally decide that? Will it be a judge, or will it be the president of the United States, elected by the people, specifically to perform that function, with the capacity to have the information at his disposal with the assistance of those who work for him?"

I explored this a little bit further in the American Street series:

The Padilla case remains in limbo -- though the public was recently given some insights into the government's reasoning in the case, thanks to a Wall Street Journal piece by Bradford A. Berenson, who served as associated White House Counsel under Bush. The key to the reasoning lies in this paragraph, and directly reflects Solicitor General Ted Olson's contention that the "enemy combatant" designation could be made at the whim of the president:

The president's power as commander in chief to do what is necessary to protect the nation in time of war is, as it must be, exceptionally flexible and robust. He can engage and subdue the enemy in any way he sees fit. There is no judicial check on his authority in this vital and sensitive area because there cannot be: As the Framers expressly recognized in the Federalist Papers, the 'decision, activity, secrecy, and dispatch' that are the hallmarks of unitary executive power are ‘essential to the protection of the community against foreign attacks.'

As Arthur Silber observed in response:

[I]f this idea were to be established and accepted, it would provide the framework -- in principle -- for an absolute dictatorship. No, that dictatorship would not arrive overnight, but history demonstrates that dictatorships can arrive slowly, by degrees and by increasingly authoritarian steps. It need not happen all at once. But under this "reasoning" and in principle, every United States citizen could be imprisoned for a lifetime. End of story.

I think this is the summation of the Bush Theory of the Executive: as a wartime president, he gets to call the shots, at his whim.

It's all about the Imperial Presidency. The principle -- just as it was for Nixon -- is the power of the president and his advisers to lie, fumble, and even break the law without consequence. Just because he's president.

In this case, we're not simply repeating history; Bush's initiatives exceed any historical precedent. But by remembering where the nation went wrong, once before, in granting the president extraordinary wartime powers, we can find ways to prevent it from happening again. It took real bravery to oppose it then; it may take equal doses of courage today.