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On February 19, 1942, President Roosevelt signed Executive Order
9066, which led to the internment of 120,000 Japanese civilians, 2/3
of whom were US citizens, in military camps across the western half
of the country. Effectively stripping Japanese Americans of
virtually all constitutional protections (including rights to
property, trial by jury and habeas corpus), 9066 is now widely
decried as one of the darkest moments in US history. In 1988,
Congress passed Public Law 100-383, which apologized to Japanese
internees, provided reparations and created a public education fund
to "inform the public about the internment of such individuals so as
to prevent the recurrence of any similar event."
Congress should have enrolled in its own re-education program.
By passing the Military Commissions Act (a.k.a. the torture bill),
Congress has granted the Bush administration extraordinary powers to
detain, interrogate and prosecute alleged terrorists and their
supporters. Anyone anywhere in the world at any time may be
summarily classified an "unlawful enemy combatant" by the executive
branch, seized and detained indefinitely in military prisons. As
Bruce Ackerman points out in the LA Times, the definition of
"unlawful enemy combatant" includes those who "purposefully and
materially supported hostilities against the United States" (by say,
writing a check to a Middle East charity) and may extend to US
citizens. Thanks to the Supreme Court's decision in Hamdi v.
Rumsfeld, US citizens at least appear to retain habeas corpus
rights, a foundation of Western jurisprudence. Foreign nationals do
not; the Act explicitly denies them the writ of habeas corpus (the
right to be charged and tried and the right to appeal any
convictions in a court of law).
These wartime powers rival and exceed those assumed by Roosevelt
during WWII. Even worse, unlike the case of Executive Order 9066,
Congress has given President Bush the stamp of legislative
authority. In this context, perhaps the most craven vote cast for
the torture bill came from Senator Arlen Specter. Though he
believes the bill to be "patently unconstitutional on its face," he
voted for it anyway because he hopes "the court will clean it up."
But there's no reason to believe the courts will act in such a
As Ackerman points out, the Korematsu case, which validated Japanese
internment, still stands as precedent. Since September 11, federal
courts and the Bush administration hav used Korematsu-like language
to define a state of emergency and justify racial profiling. (And
wing-nuts like Michelle Malkin have argued that racial profiling and
detention of Japanese during WWII was justified, as is profiling and
detention of Arabs in the war on terror). As Ackerman argues
"congressional support of presidential power will make it much
easier to extend the Korematsu decision to further mass seizures."
Moreover, Hamdan v. Rumsfeld, the Supreme Court case that
temporarily jeopordized Bush's extra-judicial detentions,
specifically cited lack of Congressional approval. Now Congress has
given him this approval.
For those who believe that mass internment can never happen again,
the US now holds 14,000 detainees in prisons in Iraq, Guantanamo,
Afghanistan and other undisclosed locations. 14,000 people who can
be held indefinitely, without a fair trial, by secret evidence to
which they have no access or that may be obtained by what most
consider torture. 14,000 and counting. Never again is now.
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