Doing the right thing

[From left: Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi in the 1970s]

-- by Dave

It is always a bitterly telling commentary on any government when the only people who seem capable of standing up and stopping them from doing something that nearly everyone with a sense of basic decency understands is wrong are just plain, ordinary citizens -- the kind willing to stand up in the face of immense social pressures, as well as the sheer inertia created by bad leadership, and say no.

But it says even more about those citizens, because standing up in this fashion requires a special kind of common-sensical courage, the kind we often take for granted. Over the history of the United States, individual citizens -- the people who made up the ranks of the abolitionists and the suffragettes and the civil rights movement, and all the Walt Woodwards and John Henry Faulks in between -- have done a duty the rest of us have shirked, and we all owe them an immense debt. Even when they did not succeed at the time, their legacy has shaped us and, in the end, played a critical role in preserving democracy in America.

The contemporary versions of these civic heroes can be found among the Japanese Americans who recently filed an amicus brief filed on behalf of Muslims detained by the federal government after the terrorist attacks of Sept. 11, 2001:

Holly Yasui was far away when a federal judge in Brooklyn ruled last June that the government had wide latitude to detain noncitizens indefinitely on the basis of race, religion or national origin. The ruling came in a class-action lawsuit by Muslim immigrants held after 9/11. But Ms. Yasui, an American citizen of Japanese ancestry, had reason to take it personally.

Her grandparents were among thousands of Japanese immigrants in the United States who were wrongfully detained as enemy aliens during World War II. And her father was one of three Japanese-Americans who challenged the government’s racial detention and curfew programs in litigation that reached the Supreme Court in the 1940s.

Now, Ms. Yasui, along with Jay Hirabayashi and Karen Korematsu-Haigh, a son and a daughter of the two other Japanese-American litigants, is urging an appeals court in Manhattan to overturn the sweeping language of the judge’s ruling last year.

The ruling "painfully resurrects the long-discredited legal theory" that was used to put their grandparents behind barbed wire, along with the rest of the West Coast's Japanese alien population, the three contend in an unusual friends-of-the-court brief filed today in the United States Court of Appeals for the Second Circuit.

As it happens, the attorney leading the charge in filing the brief is a familiar one -- our friend and colleague from Is That Legal?:

Prof. Eric L. Muller, a legal historian at the University of North Carolina School of Law, said he contacted Ms. Yasui and the others after reading about the decision by the federal judge, John Gleeson. Both sides in the case, known as Turkmen v. Ashcroft -- a lead plaintiff is Ibrahim Turkmen -- appealed parts of the decision by Judge Gleeson. He let the Muslims’ lawsuit continue, mainly on their claims of unlawful detention conditions, but dismissed key elements of their discrimination claims.

... Professor Muller said he drafted the brief on behalf of the three grandchildren to try to persuade the Second Circuit to reject what he considers the needless breadth of Judge Gleeson’s opinion. "Judge Gleeson's decision paints with such a broad brush, there isn't really any stopping point," he said.

The judge held that under immigration law, "the executive is free to single out 'nationals of a particular country.'" And because so little was known about the 9/11 hijackers, he ruled, singling out Arab Muslims for detention to investigate possible ties to terrorism, though "crude," was not "so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise."

The brief counters that the ruling "overlooks the nearly 20-year-old declaration by the United States Congress and the president of the United States that the racially selective detention of Japanese aliens during World War II was a 'fundamental injustice' warranting an apology and the payment of reparations."

And, it adds, the district court's deference to the government "ignores the tragic consequences of such deference" for 120,000 people of Japanese ancestry during World War II.

Muller himself posted a brief commentary on the filing, which is available in PDF here.

I observed in the epilogue to Strawberry Days that the attacks of September 11, 2001, elicited a singular response from the older Japanese American community, particularly those who experienced the so-called internment camps:

When United Airlines Flight 175, the second of four jetliners hijacked the morning of September 11, 2001, slammed into the World Trade Center, Tosh Ito was watching it on television, like many Americans. But what he thought about in those moments was very different than most -- except perhaps for his fellow Nisei. The images on the television made him think of internment camps.

"It didn't take very long," Ito said, for the memories of the evacuation to come flooding back. "It was almost instantaneous, I'd say. By the time the second plane hit, why, I was thinking about what happened."

Ito recognized the immediate similarities between September 11 and Pearl Harbor, raising the specter of a similar reaction against the domestic "enemy," a recognition he shared with most of his fellow evacuees: "It was kind of a surprise attack, and totally unexpected," he said. "I think for most of the Nisei that are still around, it didn't take us very long for it to bring back bad memories."

Rose Matsushita, watching on television at her home in Bellevue, had the same thoughts. "9/11, yeah, I thought: Uh-oh. We're at war," she recalled. "Some of them are here. And they were probably going to go through the same thing we did."

They were hardly alone in thinking this way. John Tateishi can tell you, for instance, about his dream callers.

The calls began a few days after the September 11 attacks. "I got a call one day --this was probably about four days after September 11 -- from a Nisei who just started talking, and basically just rambled and rambled," recalled Tateishi, the national director of the Japanese American Citizens League, at his Bay Area office. "And, you know, Japanese Americans, we're raised to be very respectful of our elders. So this man just kept going on and on, and I just sat there and listened to him, waiting to find out, you know, what he was calling about. And then he just said, 'Well, OK, I'll see you.' And he hung up.

"I didn't know this person. And I thought, 'Well, that's a strange call.' I mean, it was about two hours of phone call."

"And then a day or so later I got another call, and the same thing happened. And it was, I think, on the fourth call I got, when this gentleman was talking to me, and he says, 'You know, I can't sleep again. I'm having bad dreams.'

"I thought what he was referring to was the image of the World Trade Center being hit and collapsing. And as he kept talking I realized what he was talking were dreams about camp. Of the experience going back sixty years.

"And then after that call, it kept happening, and every time I got a call, I would ask, 'Are you having problems sleeping?' And invariably, the answer was, ‘I’m having nightmares again.' I would ask very specifically whether it was about the World Trade Center or about camp, and they would say, 'Oh no no no, the nightmares are about camp, that I had after we left.' "

The Nisei elders' nightmares -- replete with barbed wire and machine guns and guard towers -- are not mere ephemera. They are, after all, the only American citizens ever to have been herded en masse into concentration camps by their own government, not for having done anything, but because of who they were. For many of them, the scars of that experience were revived by the trauma following the terrorist attacks on New York and Washington: "This is something that has provoked a very deep psychological response among Nisei," said Tateishi.

Some of this probably was due to the similarities between Pearl Harbor and September 11, at least as traumas to the national psyche. Having lived through the aftermath of the former, when they were publicly attacked, by government officials and politicians as well as by the press, as potential "fifth column" traitors, it probably was only natural that the latter produced concerns that history might repeat itself. Yet the fears touched on something deeper as well.

"I didn't have any bad dreams, but it surely brought up bad memories," said Tosh Ito. The specific memories it engendered, he said, were not so much of the camps but of the outpouring of naked racial hatred that followed Pearl Harbor.

"There was a lot of mass hysteria, a lot of discrimination, and it was not subtle at all. It was right out there," Ito said. "Now, in later years, as things got better for minorities, there was still a lot of discrimination, but it was quite subtle. I think some of us thought maybe it was pretty much gone. But 9/11 brought all of it out again."

It's clear that Ms. Yasui and her cohorts share those feelings, no doubt informed their personal family legacies. Ms. Yasui's father, Minoru Yasui, was a particularly remarkable figure. The son of a successful orchardist who was the first Japanese American to graduate from the Oregon School of Law, he tackled the government's discrimination against the Nikkei head-on:

On March 28,1942, Min deliberately violated Public Proclamation No. 3. He left his law office at 8:00 p.m. that evening and walked the streets of Portland, Oregon, in clear violation of the curfew imposed by Public Proclamation No. 3. Min had instructed his secretary to call the Federal Bureau of Investigation and the Portland police to let them know that he would be out on the streets that evening. After wandering around for a couple of hours, he finally spotted a policeman and approached him. Min insisted that the patrolman arrest him for the curfew violation and showed him a copy of the Public Proclamation. The patrolman refused. Min finally went directly to the Portland police station, where he was arrested.

Even more remarkable was the case of his father, Masuo Yasui, and the Army camp detainees, which I described in Chapter 4 of Strawberry Days -- a case that still rings bells today:

Fort Missoula nearly became the focus of an international incident when word began emerging that internees were complaining of mistreatment at the hands of INS interrogators. Records later revealed that the sessions in question involved the INS’s efforts to determine when a number of the Issei entered the country; if they had arrived after 1924 -- when the Asian Exclusion Act was passed -- then they were in the country illegally and could be deported. The inspectors didn't believe many of the Issei accounts and, according to numerous witnesses both inside and outside the chambers, resorted to violence to wring "the truth" out of them. Several witnesses said the inspectors verbally and physically abused the internees, calling them "yellow-bellied cowards" and "liars," shoving them against the wall, yanking their hair, and punching them in the stomach. After the Justice Department investigated the charges, two Korean interpreters were fired, and the three inspectors responsible for most of the abuse were suspended for 90 days, and one was demoted.

Even men in positions somewhat similar to Tom Matsuoka's encountered difficulties with the hearing board. Possibly the most striking case involved Masuo Yasui, an Issei businessman from Hood River, Oregon, who had been prominent in town too—co-owner of a thousand acres of farm and orchard land, member of the Rotary Club and the Apple Growers Association, and a leader of the local Methodist Church. Yet when he went before the board, only his past associations with Japanese civic organizations, including the award he received from the emperor for promoting American-Japanese relations, were considered relevant.

"The proceedings were a complete farce," recalled his son, Minoru, himself a Nisei activist who had challenged the curfew laws in Portland and attended his father’s hearings. "The most incredible thing was when they produced childlike drawings of the Panama Canal showing ... drawings of how the locks worked. The hearing officer took these out and asked, 'Mr. Yasui, what are these?' Dad looked at the drawings and diagrams and said, 'They look like drawings of the Panama Canal.' They were so labeled, with names of the children. Then the officer asked my father to explain why they were in our home. 'If they were in my home,' my father replied, 'it seems to me that they were drawings done by my children for their schoolwork.'

"The officer then asked, 'Didn't you have these maps and diagrams so you could direct the blowing up of the canal locks?' My father said, 'Oh no! These are just the schoolwork of my children.' The officer said, 'No, we think you've cleverly disguised your nefarious intent and are using your children merely as a cover. We believe you had intent to damage the Panama Canal.' To which my father vehemently replied, 'No, no, no!' And then the officer said pointedly, 'Prove that you didn't intend to blow up the Panama Canal!'" Masuo Yasui was remanded to the custody of federal authorities and kept in army prison camps until the spring of 1946.

There also were recent revelations about the extent of government misbehavior in pursuing these inhuman policies -- namely, as the L.A. Times reported, the participation of the Census Bureau not merely in providing general information to the authorities overseeing the evacuation and incarceration episode, but also in providing specific information about individuals, including American citizens:

The Census Bureau turned over confidential information, including names and addresses, to help the U.S. government identify individual Japanese Americans during World War II, according to government documents released by two scholars Friday.

The documents validate long-held suspicions among Japanese Americans that information about them collected under confidentiality pledges was released to the government.

In 2000, the Census Bureau acknowledged and apologized for its role in sharing aggregate data with the U.S. military to help relocate Japanese Americans from the West Coast to inland camps after Japan's 1941 Pearl Harbor attack.

But Friday's disclosure represented the first confirmation that the bureau also shared information about individuals -- in this case, the names and addresses of Japanese Americans in the Washington, D.C., area. A list of 79 names was handed over to aid a Secret Service investigation into possible threats to the president.

The combination of secret lawbreaking, brutal mistreatment, and a Kafkaesque bureaucracy are the unmistakable hallmarks of a government careening out of control, consumed by the omnipresent temptations of authoritarianism. And the echoes of the wartime internment episode of 1942-45 not only can be heard today, they seem to be amplified -- not merely in the mass sweeps that followed the attacks of September 11, but continuing through the abuses of detainees at Guantanamo and Abu Ghraib, the bizarre treatment of Jose Padilla, the legalization of torture under the Bush administration.

The Congress and the press -- both ostensibly the bulwarks against a rampaging executive branch -- either actively enabled this behavior during its years of Republican dominance, or continued to sit on their collective hands in the months since. So it has befallen average citizens -- in this case, the descendants of the same people who stood up and fought the government when it followed a similar course during World War II -- to stand up and remind us all of what America, home of the brave and the free, is supposed to be all about.

In the end, it is always going to be incumbent upon ordinary citizens -- engaged, informed people who take their citizenship seriously -- to act as the stewards of good government and to rein in the powers of authorities, particularly when they become excessesive. And the more of them there are, the greater their chances of success.

We all had better hope that the efforts of Eric Muller and the descendants of the Japanese American internees, as well as the entire Turkmen legal team, succeeds -- because if they fail, we face the grim prospect of repeating one of the real tragedies of recent American history.