On October 12

On this day in ...
... 1942 (70 years ago today), the 450th anniversary of the day that Christopher Columbus set foot on land in North America, in a speech entitled "Americans of Italian Origin," delivered at a Carnegie Hall Columbus Day celebration, and broadcast live, Francis Biddle, then the Attorney General of the United States, announced that "Italian aliens will no longer be classed as alien enemies." (credit for 1945 photo of Biddle) He said that 600,000 such persons were in U.S. factories, helping the Allies in World War II efforts, including "the revolt against Italian fascism" led by Mussolini. As for Japanese and others still subject to regulation for having been broadly brushed "alien enemies," Biddle added:

'I wish to emphasize that in thus removing the label of alien enemy from Italians, we do not forget 'that there are other loyal persons now classed as alien enemies. Their situation is now being carefully and sympathetically studied by the Department of' Justice.'

(Prior October 12 posts are here, here, here, here, and here.)

SG confesses 1 detention error

The United States' top advocate before the Supreme Court has, as he put it, made a "Confession of Error" respecting his office's long-ago support of a detention policy.
In a Friday post on the blog of the Department of Justice, Neal Katyal, Acting Solicitor General since May 17 of last year, praised the roles that his predecessors played "in advancing civil rights." Katyal then continued:

But it is also important to remember the mistakes.

The mistake he had in mind:

the Solicitor General’s defense of the forced relocation and internment of Japanese-American during World War II.

Writing 68 years and 10 days after Solicitor General Charles H. Fahy presented oral argument in the 1st internment case to reach the Supreme Court, Hirabayashi v. United States, Katyal recalled that

the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court 'might approximate the suppression of evidence.' Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by 'racial solidarity.'

Acting Solicitor General Katyal noted that "it took nearly a half century for courts to overturn" the mid-1940s upholding of convictions against two U.S. born young men, Gordon Hirabayashi and the litigant in a subsequent case, Fred Korematsu (prior posts). Katyal stressed one such court's laying of blame on the office that Katyal now holds:

One court decision in the 1980s that did so highlighted the role played by the Solicitor General, The court thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

Though the convictions have been set aside, the balancing of individual security and national security that the Court established in the 2 cases has not been overruled. Katyal, who'd represented Salim Ahmed Hamdan in challenging trial at Guantánamo, said of the lingering precedents in Hirabayashi and Korematsu:

[T]hose decisions still stand today as a reminder of the mistakes of that era.

Katyal concluded that

our Office takes this history as an important reminder that the 'special credence' the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court.

From the standpoint of transitional justice, Katyal's statement constitutes an admission of wrongdoing by one of many responsible governmental entities. It joins:
►Proclamation 4417, Confirming the Termination of the Executive Order Authorizing Japanese-American Internment During World War II (1976), in which President Gerald R. Ford declared

not only was that evacuation wrong, but Japanese-Americans were and are loyal Americans.

► The Civil Liberties Act passed by Congress and signed by President Ronald Reagan in 1988. The statute, which accorded each internee about $20,000 in reparations, began with these words:

The Congress recognizes that, as described in the Commission on Wartime Relocation and Internment of Civilians, a grave injustice was done to both citizens and permanent residents of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II.

From the standpoint of contemporary justice, Katyal's statement begs comparison with ongoing detention controversies.
Yesterday, "[m]aking it eight in a row, the Court turn[ed] down the last of the Guantanamo Bay appeals it had considered this Term," as SCOTUSblog's Lyle Denniston wrote. The Office of the Solicitor General (with Katyal recusing himself) argued against the cert. petition filed by former child soldier Omar Khadr. The Office -- which is likely soon to be headed by nominee Donald Verilli -- had done the same in the 7 cases that preceded Khadr v. Obama.

(credit top right image of DOJ seal; credit for May 1942 photo above left, made by Dorothea Lange for the War Relocation Authority of the U.S.Department of the Interior, of Mochida family members as they awaited government-ordered transfer from their home in California; credit for bottom right photo of Camp Delta detention center at Guantánamo; hat tip to Kevin R. Johnson, whose ImmigrationProf blog post on this issue is here)

Law, not fear, should guide detention

(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)

Hearings have begun on proposed House and Senate legislation designed to create a comprehensive framework for the detention of individuals captured in the course of U.S. counterterrorism operations against al Qaeda and other terrorist groups. Those who have decried the lack of a statutory framework for what appears to be the inevitable long-term detention of suspected terrorists will likely welcome the proposed legislation as the long-awaited antidote to the ad hoc process that has developed over the past nine-and-a-half years.
As I argue in a recent op-ed in the Atlanta Journal Constitution, entitled "Build Detainee Policy on Sound Law," however, mere legislation itself is not the answer.
Legislation based on the fundamental moral and legal principles that guide our country would be a giant step forward – for fair and effective counterterrorism that balances national security and individual rights. But neither the Detainee Security Act (House, proposed by Representative McKeon) nor the Military Detainee Procedures Improvement Act (Senate, proposed by Senators McCain, Graham, Lieberman and others) fits the bill.
These proposed bills are based primarily on fear. On the fear that civilian courts cannot handle terrorism cases and on the fear that courts will not defer completely to the Executive’s claims of national security when faced with grave violations of individual rights.
The first fear is unfounded.
Since September 11th, over two hundred suspected terrorists have been prosecuted in federal courts with a conviction rate over 91%. We have hundreds of convicted foreign terrorists in prison in the U.S. right now. In contrast, fewer than five have been tried before the military commissions and most of those have already been released. The military commissions have seen significant improvement from their first iteration, but still remain barely tested both in substance and numbers of prosecutions.
These numbers demonstrate that completely foreclosing all trials in civilian courts and all transfers of detainees to the United States is not grounded in careful policy analysis. It seems to be based instead on the fear of those who are suspected – not proven – of trying to kill Americans, and a reactive desire to therefore deny them rights. The worst serial murders in U.S. history got full and fair trials. What is it about the word “terrorist” that makes us forget where we come from?
But it is the second fear that should catch the breath of every American.
The proposed bills simply legislate the courts out of the picture altogether. The annual periodic review process created to assess the continued detainability of detainees at Guantánamo (or future detainees) has no appeal process. This is important enough to repeat – no appeal process. There is no doubt that an annual review is better than long-term detention with no review process at all. This incremental improvement is insignificant, however, when the review board is not accountable in any way to a court or any other method of independent judicial review.
The Senate bill actually goes one step further still. In a total bow to Executive authority, the legislation states that the review panel’s finding regarding a detainee’s continued detention is simply a recommendation and does not bind the President. This is the ultimate dagger in the heart of separation of powers and checks and balances – a Congressional license of complete Executive authority and no courts to say otherwise.
The Geneva Conventions do not, to be sure, mandate judicial review of all detention determinations, either for prisoners of war under Article 5 of the Third Geneva Convention or under Article 43 of the Fourth Geneva Convention. Both require necessary guarantees of independence and impartiality, not a particular type of forum, judicial or administrative or other. Beyond the fact that the proposed legislation raises serious questions about whether the review panels can meet this test, the lack of judicial involvement in the long-term detention review process poses a much greater problem. As I discussed in my recent article, on which I previously posted, to call the indefinite detention at Guantánamo – both ongoing and future – detention “under the laws of war”” is a significant stretch of the traditional concept of law of war detention. When we do not know how long this conflict will last or the parameters of the battlefield, when detention effectively serves a punitive purpose rather than a protective purpose, judicial engagement in the process is critical to ensuring protection of individual rights.
The only reason to keep the courts out, as the proposed legislation seeks to do, is the fear that the courts will not approve of the process, either in individual cases or overall. The fear that courts might actually inject individual rights into the equation, upsetting the current complete dominance of national security interests over any other interest, no matter how fundamental.
We have learned the lesson of an unchecked executive before – with the suspension of habeas corpus during the Civil War and the internment of Japanese-Americans during World War II – and in both cases it was the courts that set us back on course and restored the balance between national security and individual rights.
As detailed in IntLawGrrls' many posts on Guantánamo, when detention there threatened to become truly a legal black hole in the first years after September 11th, the Supreme Court repeatedly held that detainees at Guantánamo have a right to legal representation and to habeas corpus – in essence, a right to exist in a legal framework. Let’s give our courts a direct role in that legal framework – detention without trial raises extraordinary challenges to American values; independent and robust judicial review throughout the process can help to mitigate those challenges and the risk to fundamental principles.
Supporters of indefinite detention – and likely of the proposed bills in the House and Senate – staunchly defend it as “detention under the laws of war.” If the detention is founded on fundamental legal principles signed and ratified by every nation around the world, then why keep the courts out of the business of reviewing and assessing the lawfulness of such detention?
Legislating based on panic is neither moral nor effective. America needs a counterterrorism strategy – including detention of suspected terrorists where appropriate – that is based on sound legal principles and paradigms, not just on the fear of a future attack.

On March 19

On this day in ...
... 1891 (120 years ago today), a son was born in Los Angeles, California, to an immigrant couple -- a mother born in Sweden and a Norway-born father who worked as a railroad car repairer and inspector. They would move to the Central Valley town of Bakersfield, where the father "slipped into the way of an eccentric who did not live with his family," and the son worked odd jobs while attending public schools. The son, Earl Warren (left), earned law degrees from the University of California, Berkeley, served in World War I, and then began a career in law and Republican politics that culminated in his 1953 appointment to be the 14th Chief Justice of the United States. Though he'd served as a prosecutor and also supported the World War II internment of Californians of Japanese ancestry, the Supreme Court over which Warren presided is known to this day for its pathbreaking recognitions of the rights of the accused and its condemnations of racial segregation. (image credit) Most noted among the latter is Brown v. Board of Education (1954), an opinion that Warren wrote after securing a unanimous holding that the segregation of schools by race is, in his words, "inherently unequal." Warren died at age 83 in 1974, 5 years after his retirement from the bench.


(Prior March 19 posts are here, here, here, and here.)

On January 30

On this day in ...
... 2011 (today), Californians will mark the 1st annual Fred Korematsu Day of Civil Liberties and the Constitution. Korematsu was born in Oakland on this day in 1919. Though an American citizen, he, like hundreds of thousands of other persons of Japanese heritage, was interned by the United States during World War II. As we've posted, his conviction for refusal of U.S. orders was sustained by the U.S. Supreme Court in 1944. It was set aside by write of coram nobis in 1984, and 4 years later Korematsu received the Presidential Medal of Freedom (left). (photo credit) The day in honor of Korematsu, who died in 2005, was established last fall following unanimous votes in both house of California's legislature.

(Prior January 30 posts are here, here, and here.)

On September 1

On this day in ...
... 1942, what The New York Times called "the first specific ruling on the constitutionality of actions" taken by the U.S. government in order to effect the "evacuation of Japanese on the Pacific Coast," a federal trial judge sustained the Army's efforts to hold "all American-born Japanese as well as Japanese nationals" in what was called "protective custody." Judge Martin I. Welsh issued the oral ruling in his court in Sacramento, in a challenge brought by a man whom the Times identified as "Fred T. Morematsu." The actual surname of the young U.S.-born man at left was, of course, Korematsu (photo credit) -- and his case would go on to set an oft-criticized 1944 Supreme Court precedent.


(Prior September 1 posts are here, here, and here.)

On August 10

On this day in ...

... 1988 (10 years ago today), President Ronald Reagan signed into law the Civil Liberties Act of 1988, which, as Reagan explained in his signing statement announcing restitution for what he himself called "'a mistake,'" a payment of $20,000 "to each of the 60,000 surviving Japanese-Americans of the 120,000 who were relocated or detained" by the United States during World War II. (photo credit)

... 1809, in South America, "[a] group of the leading citizens" of Quito seized power of the region, which had been controlled by a French-born ruler placed by his brother, Emperor Napoleon Bonaparte, on the Spanish throne. Known as criollos, these rebels of Spanish descent did not have popular support to sustain their uprising, and within a year a military junta took control. Today Quito is the capital of Ecuador.

On December 18, ...

... 1892 (115 years ago today), at the Maryinsky Theater in St. Petersburg, Russia, a ballet written by Igor Tchaikovsky and choreographed by Marius Petipa and Lev Ivanov, had its world premiere (above). Initial reviews panned the spectacle, yet "The Nutcracker" went on to "become the most attended holiday ballet ever produced."
... 1944, the U.S. Supreme Court issued 2 decisions respecting the country's internment of more than 100,000 U.S. citizens and residents of Japanese ancestry during World War II. In Ex parte Endo, the Court unanimously granted the habeas petition of Mitsuye Endo (right), who had been a typist for the Department of Motor Vehicles in Sacramento and was interned notwithstanding her undisputed loyalty to the United States. In Korematsu v. United States, the Court affirmed, by a vote of 7 to 2, the conviction of Fred Korematsu (above left), a 22-year-old Bay Area welder, for having violated the exclusion order that preceded detention. "[P]ressing public necessity" justified the deprivation of liberty, Justice Hugo Black wrote for the Court. The conviction would be voided in 1984 via the order by which U.S. District Judge Marilyn Hall Patel (left) granted Korematsu's petition for a writ of coram nobis.

On October 6, ...

... 1942 (65 years ago today), the last internees left a temporary camp that the Canadian government had built in Vancouver's Hastings Park. Women were crammed into the dormitory at right, formerly a livestock barn; men were in a mass dormitory in an auditorium. The internment "of 23,000 Japanese Canadians during the war was the largest mass exodus in Canadian history." It did not end in full until 1949. (photo courtesy of JapaneseCanadianHistory.net)
... 1917 (80 years ago today), in Montgomery Country, Mississippi, Fannie Lou Hamer was born. Her parents were sharecroppers; her grandparents had been slaves. As a website on the Student Nonviolent Coordinating Committee explains:

In 1962, when Hamer was 44 years old, SNCC volunteers came to town and held a voter registration meeting. She was surprised to learn that African-Americans actually had a constitutional right to vote. When the SNCC members asked for volunteers to go to the courthouse to register to vote, Hamer was the first to raise her hand.

Despite enduring a "brutal beating," Hamer cofounded the Mississippi Freedom Democratic Party, which endorsed her 1964 run for Congress against a white supremacist man. Though she lost, the party 2 seats after posing a challenge to the all-white delegation of the state's regular party; she became "'the first African American to take her rightful seat as an official delegate at a national-party convention since the Reconstruction period after the Civil War, and the first woman ever from Mississippi.'" Though she died 30 years ago, Hamer's rallying cry is immortal:

All my life I've been sick and tired. Now I'm sick and tired of being sick and tired.

(Associated Press photo of Hamer at Democratic Convention courtesy of American Radio Works)

On September 25, ...

... 1926, under the auspices of the League of Nations, well over 2 dozen countries concluded the Convention to Suppress the Slave Trade and Slavery. The convention entered into force on Mar. 9, 1927, and survived the demise of the League. Today the convention has 95 states parties.
... 1944, during World War II, U.S. Rep. Doris O. Matsui (D-Cal.) was born in an internment camp run by the United States in Poston, Arizona.

On February 24, ...

... 1983, the congressional Commission on Wartime Relocation and Internment of Civilians released the final installment of Personal Justice Denied, a report that condemned the detention of Japanese-Americans during World War II.

On February 19, ...

... 1861, Russia abolished serfdom.
... 1942, President Franklin D. Roosevelt signed the order for relocation of persons of Japanese heritage to internment camps.
... 1986, the U.S. Senate approved the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.