Repackaging Korematsu

[Cross-posted at Firedoglake.]
 
I noticed a couple of years ago that Republicans eager to defend the Bush administration’s grotesque power grab under the aegis of the "war on terror" — especially its claims regarding "enemy combatants" and military tribunals — have been trotting out the notion that the Supreme Court’s 1942 Korematsu v. United States ruling was, upon further consideration, a good and proper ruling.

This was the ruling, you’ll remember, in which the Supreme Court upheld the mass incarceration of Japanese Americans during World War II. It is now widely viewed as one of the high court’s three great historical mistakes, alongside Dred Scot and Plessy v. Ferguson.

Mind you, at the time, it was that "constitutional expert" Ann Coulter talking, which meant it was being floated out there on the pop-culture level. Now, it appears, a slightly modified version of this meme is making the rounds among supposedly respectable legal minds.

Coulter actually was correct on a certain level: as the Wikipedia entry notes, even after Fred Korematsu’s conviction was vacated, "The essential holding of the 1944 Korematsu decision — namely, that a race-based exclusion program founded on considerations of military judgment did not violate the Constitution — remained untouched."

Coulter, unsurprisingly, thought this was a good thing: anything to help the Bush administration further open wide the hole in the Constitution (one, in fact, largely created by the internment episode) by wildly expanding executive-branch powers during wartime. As I noted previously:

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.

[For those interested in more about Fred Korematsu and the circumstances surrounding his case, check out the excellent work by Eric Paul Fournier at POV.]

Now, Stephen Griffin at Balkinization noted recently that the Korematsu ruling is being given a second life of sorts by conservative legal eminences engaging in a grotesque kind of historical revisionism:

The basic flavor of the new conventional wisdom is that the internment was justified on the basis of the knowledge available to government officials acting in good faith in the confused months following the December 1941 attack on Pearl Harbor. Later, however, using the benefits of hindsight, “liberals” condemned the Korematsu case as racist and consigned it to the category of one of the worst decisions in the history of the American judiciary. I think exploring this new conventional wisdom yields some insights on the quality of constitutional analysis post-9/11.

Note, if you will, that this "conventional wisdom" bears more than a passing resemblance to Michelle Malkin’s misbegotten thesis of a few years back. Now we’re hearing the same thing from Judge Richard Posner:

One example is in a book written by Judge Posner on Bush v. Gore. Posner suggests that liberals “denounce [Korematsu] from the safe distance of half a century.” He comments that the threat posed by Japan was perceived to be great, “though in hindsight we know that the perception was exaggerated.” Apparently making a comment about liberals today, Posner states: “Liberals detest Korematsu, but not because it allowed pragmatism to trump principle; rather because of suspicion of the military and a sense of shame about the history of the nation’s mistreatment of East Asians.”

I was surprised to find another example of this sort of reasoning in a casebook on foreign relations law by Professors Bradley and Goldsmith. They refer to “intelligence information” about threats from Japanese civilians as if it was credible at the time. They note that Korematsu “is widely decried,” but apparently on the basis of an “ex post perspective” in “hindsight.” They ask students to reflect whether hindsight is “the proper perspective from which to determine the validity of military orders in response to perceived emergencies?”

The problem, of course, is not that "pragmatism trumped principle" in the Korematsu ruling — it’s that hysteria trumped both pragmatism and principle, a hysteria fueled by unchecked military officials seeking to accrue new powers outside the purview of the courts. Griffin goes on to explain just why the Korematsu ruling is considered such a travesty — namely, that the "military necessity" cited by the court in acceding to the evacuation and incarceration of 120,000 people was a demonstrable falsehood even at the time:

It’s not as if everyone figured out decades after WWII that the internment had been a terrible mistake, as Posner would have it. Most responsible lawyers with access to relevant information knew the internment was unjustified at the time. Others without access to FBI files were capable of exercising their common sense judgment to figure out that the evidence available could never justify the deportation of whole families into internal exile.

As I explained when discussing this earlier:

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.

Of course, as I also noted back when Coulter was floating this meme, there is a certain firewall in place within the court system entailing the consensus view of Korematsu as bad law: most of the current justices have indicated that this is their view of it, including John Roberts, for whom the case came up as a significant question during Senate confirmation hearings, at which he made clear that he saw it as "a mistake."

So it remains unlikely, at present at least, that any attempt by the Bush administration to use Korematsu as a precedent in its legal wranglings over the inmates at Guantanamo and other "enemy combatants," would survive at the Supreme Court level.

But now that supposed legal experts and judicial authorities have run this meme up the flagpole, it will be interesting to see who else salutes. If people like Posner are selling it, you never know who (cough*Scalia*cough*Thomas*cough*Alito) might be buying.