A Hero Passes

You know the story.

1942.  We were at war with Japan.  We were at war with Germany, too, but that was different because we hated Germans but they kind of looked like us and it was hard to be sure.  The Japanese, though, they even looked different.  And had different sorts of names.  And there'd been Genghis Khan and Fu Manchu.  And they were treacherous.  They attacked Pearl Harbor without first sending a post card announcing when they'd do it so we could be prepared to fight back.  And there was this long history of racism against Asians (who weren't, after all, white).

So we were at war and were scared and we hated them anyway, so we did what red-blooded Americans always do at times like that: We imposed a curfew on Japanese-Americans near the west coast.  Then we herded them into concentration camps.  More than 100,000 of them.

• Until it was over.
• Without trials.
• Without redress.
• Citzens and resident aliens.
• Who'd done nothing wrong.
• Except have that funny-colored skin.

Minoru Yasui, Fred Korematsu, and Gordon Hirabayashi refused.  They went to court where they would be protected, vindicated.

They believed in that silly thing called the Constitution.  Limited Government.  Equal Justice under law.  Even in times of war.  Even when we're scared.  Even if they were "yellow."

The courts, they knew, would enforce the Rule of Law against the Law of Rule.

They were wrong.  In a string of cases, the Supreme Court ruled against them.

• Korematsu v. United States
  
• Hirabayashi v. United States
• Yasui v. United States

Korematsu, decided in 1944, was a 6-3 decision, Justices Roberts, Murphy, and Jackson dissenting.

Hirabayashi and its companion case Yasui were decided in 1943 and were unanimous.

The Japanese interment and the Supreme Court's decisions are a national embarrassment and a stain on the judiciary. Of a piece with  Dred Scott, and Plessy v. Fergusen.

But Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui are heroes.  They stood up for what they knew (and we know) was right.  Despite the odds.  They fought.  And then they lost.  Still, they didn't give up.

Their convictions were reversed in the 1980s.  The government, it turns out, had already determined that the Japanese-Americans were no threat to national security.  It just wanted them put away. 

In 1988, the government apologized for its conduct and payed reparations to those it locked away for no reason but the color of their skin. Too little and too late, but something.

Minoru Yasui died in 1986.

Fred Korematsu died in 2005.

On December 31, Obama signed the National Defense Authorization Act which provides for indefinite detention without trial of anyone, citizen or not, found in this country or not, who's suspected of being somehow someway you know maybe could be connected to Al Qaeda or someone who might be somehow.

Two days later, on January 2, Gordon Hirabayashi died.  He was 93.  He was living in Canada.  May he rest in peace.

h/t Jonathan Katz

What's in a name?

I recently finished reading Neil deGrasse Tyson's The Pluto Files: The Rise and Fall of America's Favorite Planet which explores the background to and public controversy over the decision to remove Pluto from the collection of things astronomer's call "planets" and confer upon it the lesser status, "dwarf planet." (Publisher's blurb here.) Then Dick Cheney, in his speech the other day explaining that Obama's embrace of American values would lead to the deaths of thousands, maybe hundreds of thousands, said, "You don't want to call them enemy combatants? Fine. Call them what you want - just don't bring them into the United States. Tired of calling it a war? Use any term you prefer." (Text of speech here.)

Whatever Pluto was, it didn't become something different when the International Astronomical Union changed its status. And Cheney is right that keeping prisoners locked up at Guantanamo without meaningful legal protections is the same whether you call those prisoners "enemy combatants" or, say, "forensic accountants" (or "detainees," by the way, which is a word I'm not using) and that war by any other name kills just as many people. Things are what they are, no matter what you call them.

As Juliet said,

What's in a name? That which we call a rose
By any other name would smell as sweet.

On the other hand, words do matter and what we call things makes a difference. If Juliet was right, so was Hamlet. So when Polonious asked what he was reading, Hamlet's snarky response was "Words, Words, Words." Well, sure. But the (non) answer, while perhaps true, also obscured and obfuscated. That's what Orwell was talking about in "Politics and the English Language." (Here.) And it's what he let us see in action through the "Doublespeak" of 1984.

"Enhanced interrogations" may have the same referent as "torture" in the context of waterboarding, but the insistence of various folks on the term of their choice makes exactly the point that the two aren't the same. Michael Ratner, president of the Center for Constitutional Rights, referring to Obama's plan to establish a system of "prolonged detention" in the U.S. for the prisoners at Guantanamo, said, "Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name.” (Quoted in NYTimes here.) So maybe it does matter what we call things.

But it also matters what we actually do.

And whatever we call holding people in prison forever without trial (or after acquittal, if that should happen), it's not something we ought to feel good about. Obama's insistence that he can do it consistently with "our values" is true or false, I suppose, based on what those values are.

Here's one that's been with us a long time: You're innocent until found guilty by proof beyond a reasonable doubt. It's enshrined in the Constitution. See In re Winship, 397 U.S. 358 (1970). It's tied to the presumption of innocence, a value with roots that apparently go back at least to Deuteronomy. (See discussion here.)

Here's another: If you're innocent, the government has no business holding you in prison forever.

So what's the real problem? What truth do we fear? That we can't actually prove these guys are as bad as we're quite sure they are? That our "proof" is based on evidence so shoddy that nobody would believe it? That our proof came only from torture which gives unreliable results so even we don't really know if it's right? Then maybe, just maybe, we ought to reconsider that "prolonged detention." Maybe we ought to acknowledge that what we're really dealing with, no matter how we try to pretty it up, is a star chamber and that we're just planning to keep a bunch of innocent people locked up forever 'cause, well, 'cause we can.

But consistent, of course, with our values.