mass incarceration and national security reflection

Questions/Goals for this:

1. What were the legal and political challenges to Japanese American incarceration both during World War II and its aftermath?
2. How do the decisions around Japanese American incarceration relate to legal and political issues in the 21st century?

Required Reading:

• Kang, Jerry. this article is uploaded
• Savage, Charlie. “Korematsu, Notorious Supreme Court Ruling on Japanese Internment, is Finally Tossed Out.” (Links to an external site.)Links to an external site.
• Takano, Mark. “Trump’s Family Separation Policy Echoes My Family’s World War II Internment” (Links to an external site.)Links to an external site.

focuses on the issue of Japanese American incarceration during WWII. If anything, this as well as the Chinese Exclusion Act, seem to be the two most visible issues of Asian American history in the public imagination — although that isn’t necessarily saying much, since even those issues often seem to be seen as historical footnotes. However, the current presidential administration has invigorated a lot of reflection and reexamination of these darker moments in American history.

Jerry Kang’s piece is a long analysis of Japanese American incarceration, specifically the four major internment cases from this time period, named after the American citizens involved in those court decisions: Minoru Yasui, Gordon Hirabayashi, Fred Korematsu, and Mitsuye Endo. In three of those cases (Yasui, Hirabayashi, and Korematsu), the Supreme Court upheld the conviction of Americans who were seen as violating the laws setting up the conditions for incarceration. As a legal scholar, Kang examines some of the legal technicalities and procedural issues in these court cases, so I recommend specific areas of focus lest the reading prove to be overwhelming.

While you are highly encouraged to read the entire article, you should focus on these specific areas:

• Pages 934-965 detail the process of incarceration as well as legal challenges that the Supreme Court addressed.
• Pages 975-985 look at the movement for Japanese American redress and the coram nobis cases that resulted in overturning convictions for Yasui, Hirabayashi, and Korematsu. A writ of coram nobis allows a court to correct past judgments that are found to have been incorrectly decided.
• Pages 997-1005 offer insight into the concerns and consequences of these internment court case decisions going into the 21st century.

The other two readings are more accessible pieces that provide insight into how Korematsu v. United States and the experiences of Japanese American incarceration cast a long shadow over the policy priorities and governmental actions today. These are also readings to consider as a part of your discussion.

_________-

Kang’s analysis of the legal decisions behind Japanese American incarceration and the redress movement is fairly comprehensive. In review, it should be clear now that the four internment cases of Hirabayashi, Yasui, Korematsu, and Endo had different repercussions. Both Hirabayashi and Yasui failed to address the actual issue of Executive Order 9066. Korematsu did address EO 9066, but the Court ultimately upheld the constitutionality of exclusion. Mitsuye Endo’s case is interesting she had not violated any law — and the decision here should technically be seen as a victory: the Court determined that the federal government, through the War Relocation Authority, did not have the power to detain a loyal citizen. However, that decision itself was not a repudiaton of the original order to exclude.

Kang is also writing from the perspective of the post-9/11 era of national security in which fears of Islamic terrorism have become a major concern reflected in law and policy. However, if it wasn’t clear from the reading — Kang is also writing from a time before Korematsu itself was finally repudiated by the SCOTUS in June 2018. Still, some of his concecrns still stand. Kang specifically mentions the failure of the Court to address the bigger issues of prejudice in their decision. In a post-9/11 era:

“[The Ninth Circuit Court’s] denial of prejudice was a win-lose proposition, with the loss of truth risking substantial consequences in our current war, where sneak attacks, sleeper cells, and racial profiling will resurface with a bloody vengeance. There was a moment to write truth into law. There was a moment to acknowledge honestly a tragic mistake. There was a moment to show that such opinions can and should be written. That moment was lost.”

After reading the assigned articles, one of your primary considerations should be around the constitutionality of racial profiling, particular during times of national security. When making determinations around detainment, what kinds of safeguards need to be kept in place? Could the mass detention of people — whether immigrants or American citizens — ever be justifiable? (NOTE: While this is a relatively open-ended question, you need to incorporate your readings into your response. Consider how the Court’s have discussed this already. You can drawn on other areas of research as well.)

More importantly, there are also areas of immediate applicability. We’ve already referenced President Trump’s travel ban in past modules, particularly around immigration law. Now, it’s important to think about how there have been parallels drawn around decisions made by the Trump administration such as the idea of family separation earlier in 2018. How does your understanding of these issues also frame the discussion around contemporary policies and decisions today? Are they useful or not? Areas that have been overlooked?

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