By Korematsu Institute
This post is by Asian Law Caucus staff attorney Veena Dubal. It was originally posted on arcof72.com, the blog of the Asian Law Caucus.
"To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily . . .” –Korematsu v. United States (1944)
“The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim – Osama bin Laden – and composed in large part of his Arab Muslim disciples. I should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs nor Muslims.” –Ashcroft v. Iqbal, (2009)
In 1942, in the midst of World War, 120,000 Japanese Americans were sent by federal order to internment camps. Fred Korematsu resisted and was soon arrested and sent to Topaz, a camp in the Utah desert that was surrounded by barbed-wire fences and watchtowers armed with machine guns. After four years in the internment camps (often referred to as America’s concentration camps), the Japanese Americans were quietly released, and many survivors attempted to re-build their lives – finding new jobs and homes. For Fred Korematsu, rebuilding his life meant insisting that he and others of Japanese ancestry had been denied their civil rights and suffered a great injustice. He challenged the constitutionality of internment and took his case all the way up to the Supreme Court. Mr. Korematsu suffered many long years through the profoundly unglamorous and taxing legal process only to be rebuffed by the Highest Court of the Land.
In the now-criticized Korematsu decision of 1944, Justice Black on behalf of the majority upheld the Constitutionality of Japanese internment – calling it a necessity of war. As quoted above, J. Black wrote, “He was excluded because we were at war with the Japanese Empire,” not “because of hostility to him or his race.” Almost forty years later, new evidence uncovered previously classified information – the U.S. government had no intelligence or reason to believe individuals of Japanese ancestry were a threat to this country. The Korematsu decision was vacated, and in 1998, former President Bill Clinton honored Fred Korematsu with the Presidential Medal of Freedom, the highest civilian honor any American can hope to receive.
For many years prior to September 11th, students of World War II, American history, and civil rights have studied the 1944 Supreme Court decision and understood it as one of many moments in which racism was institutionally sanctioned. Constitutional law professors and experts have repeatedly declared the Korematsu Supreme Court decision one of the worst in the history of this country. Before 2001, for students and activists of my own generation, the displacement and virtual imprisonment of hundreds of thousands of Americans on the basis of their ancestry and race seemed unthinkable. And yet, as the U.S. was mourning the tragic loss of life in the World Trade Center and Pentagon attacks of 2001, the Japanese American community, almost instinctively, held out a collective hand to South Asians, Arabs, Muslims, and individuals of Middle-Eastern descent. From the historical experiences of their own families, Japanese-Americans knew these communities were to become the targets of a racist “nation at war,” because at its core “the nation,” they knew too well, wore a pale face – not a red one, not a yellow one, not a black one, and not a brown one.
The Japanese-American community and many civil rights advocates, it turned out, did not give the government enough credit. Officials in power after 9/11 had learned something from Japanese internment. Physically rounding up individuals according to their race by executive order is viewed badly by history and the global community (which the U.S. Empire tries to lead by example), so instead of literally rounding up folks from these communities – although the government tried during Special Registration – South Asians, Arabs, Muslims, and others became “virtually interned.” Instead of leaving their homes by federal order, many disappeared, were extradited to secret CIA prisons in Europe or to Guantanamo Bay, were put into deportation and/or criminal proceedings for fictitious violations of racist laws with “classified” evidence, or constantly interrogated and surveilled by the government. The internment of South Asians, Arabs, Muslims, and those of Middle-Eastern descent, if not physical, was at the very least psychological.
One of those who bore the brunt of physical internment, deportation, and rampant physical and emotional abuse in the years that followed 2001 was Javed Iqbal. Javed, a cable television installer of Pakistani origin was arrested in Long Island soon after the 9/11 attacks and taken to Brooklyn Metropolitan Detention Center and placed in a special unit as a person of “high interest” based on his Muslim religion and Pakistani nationality. There was no evidence of terrorism. At the Detention Center, Iqbal was severely abused – kicked, punched, dragged, and verbally berated.
After he was cleared of terrorism charges and deported, Javed Iqbal, like Fred Korematsu, felt that in order to rebuild his life, to go on living, he must expose the injustices and human rights abuses being carried out against entire communities by the United States government. He, on behalf of the men and women who have been “virtually interned” (and sometimes worse) since September 11th sued FBI Director Mueller and Attorney General Ashcroft – who, he argued, knew and condoned the practices of racist abuse.
In the 2009 opinion, Justice Kennedy, writing for the majority, frees these high level officials of liability and guilt, going so far as to discard the allegations with regard to Ashcroft and Mueller as “conclusory,” despite the fact that many allegations in the complaint directly link the two to the discriminatory practices of their subordinates. J. Kennedy was explicit in stepping beyond these analytical boundaries and explaining rhetorically that even if Mueller and Ashcroft did know of such discriminatory practice, that this practice was legitimate in having a disparate impact on Arab Muslims since the 9/11 hijackers were Arab Muslims. (It may be worth noting here that Iqbal was not Arab but South Asian).
Sixty-five years after one of the worst cases in the history of the United States was decided, 65 years after students of the law have had time to mull over the problematics of singling out racialized communities in time of war, and only 11 years after Fred Korematsu got the Presidential Medal of Freedom, Javed Iqbal and all the men and women that he was advocating on behalf of in his Supreme Court case were once again rebuffed in the name of national security. No high government official was held accountable for a pattern and practice of racist and discriminatory abuse.
Inherent in both the Korematsu and Iqbal opinions is a racist idea of national belonging and citizenship. The Court made it clear that Korematsu and other Japanese Americans were not excluded because of hostility towards his race, but rather because “we” were at war with the Japanese Empire. Those of Japanese ancestry were not included in the collective “we,” while individuals of German and Italian descent most certainly were. In the more recent Iqbal opinion, J. Kennedy wrote that those affected by government practice after 9/11 were not discriminated against because they were Arab Muslims, but rather incidentally, since the 9/11 attacks were carried out by Arab Muslims. The rhetoric of the two cases is strikingly similar as both draw distinct lines between real Americans and others — those whose lives are worth protecting, and those whose lives are not worth anything.
When the Japanese Americans were detained in the 1940s, many of them and their families had already been in the U.S. for generations – helping, through their sweat and tears, to build the very infrastructure upon which this nation stands. However, regardless of their place of birth, regardless of their loyalties, regardless of their humanity, these Japanese Americans were singled out and for nearly half a decade, forced to live in substandard conditions in the desert. Their skin color and their appearance marked them – and continue to mark them – as perpetual foreigners – not “Americans.”
The only institutional lesson that government officials in power after 9/11 had learned from this egregious moment of U.S. history was how to be racist and discriminatory in more clandestine and less obvious ways. Instead of forcing all individuals of Arab, Muslim, South Asian, or Middle-Eastern descent into detention camps, they virtually interned the communities – surveilling them at their mosques and community gathering, placing paid informants within the communities, harassing them at airports and the border, disproportionally detaining and deporting them, and extraditing them for torture-infused CIA sessions in secret prisons abroad.
In 2009, the message being sent by the Highest Court of our nation is once again clear – racism is an accepted practice in this country. Regardless of naturalization, regardless of oaths of allegiance, regardless of their place of birth, many of us will continue to be viewed as perpetual foreigners – subject to the civil and human rights violations that are not the exception in American history, but the rule.
I can’t help but wonder how many years it will take before Javed Iqbal is given the Presidential Medal of Honor.