III. The Legal Legacy of Japanese American Internment: Invention of Enemy Non-Aliens and a Shift in the Discursive National Border
Liberal politicians designed Title II to provide legal protection of civil liberties when the government resorted to preventive detention of potential subversives during a national security emergency. While trying to look tough, liberals tried to minimize the encroachment of governmental powers into individual liberties. The drafters of Title II, therefore, looked into wartime incarceration of enemy aliens as they wrote the Emergency Detention Act, modeling the legislation after Japanese American internment.
In contrast to the wartime Congress in which there was virtually no opposition to internment, Congress in 1950 underwent heated discussions when Democratic senators introduced the emergency detention bill. As Senator Douglas introduced the emergency detention bill to Congress, he compared it with both the conservative-backed communist registration bill and security measures taken during World War II:
[T]he Kilgore [emergency detention] bill gives the President and Attorney General the positive assistance of statutory authority for our essential job with procedures clearly understood and to a lesser degree previously employed, in alien enemy internment and war relocation cases.
Senator Douglas criticized the communist registration bill saying that it resembled “the blunderbuss” while the Emergency Detention Act was “more like that of a rifle” that accurately hit those who really threatened national security. In Senator Douglas's view, the problem of the Japanese American internment lay precisely in the broad category of those who were detained:
[I]f it is asserted that the Executive may be empowered under the Constitution to institute a detention program anyway, I can only repeat that it is far better to give it explicit authority to act, so that we know what it can do-- and enact along with that authority the essential safeguards for individual freedom which are in the due-process provisions of this bill.
Senator Douglas's comments reflect how liberals in 1950 viewed Japanese American internment as a problematic constitutional precedent. Internment was conducted by the military, which was delegated the power by Executive Order 9066. Congress then granted the Executive “positive assistance of statutory authority” for the order after its issuance via Public Law 503. However, neither Executive Order 9066 nor Public Law 503 indicated specific procedures or limitations of military conduct. In fact, Executive Order 9066 authorized the Department of War to exclude people from designated military areas but did not mention detention. One constitutional question was whether the military exceeded its authority by detaining Japanese Americans.
The Supreme Court cases on internment had to judge whether the military had legal authority to impose a curfew on and exclude all persons of Japanese ancestry from the West Coast, let alone detain them. In Hirabayashi v. United States, Chief Justice Harlan F. Stone contended that the government's war power was “the power to wage war successfully,” which extended to “every matter and activity so related to war as substantially to affect its conduct and progress.” In Korematsu v. United States, Justice Hugo L. Black used the same principle to justify the exclusion of Japanese Americans from the West Coast area. In both cases the Court adopted a broad definition of the government's war power and upheld the convictions of Japanese American violators of curfew and exclusion orders. Seeing a problem in this precedent, supporters of the Emergency Detention Act emphasized the necessity of explicitly granting the statutory authority to the Executive to conduct preventive detention and clearly define its executive procedures. Even though the process would be different from normal due process in criminal cases, these procedures would have provided individuals with some safeguard from arbitrary detention.
Senator Douglas further compared the situation in internment with provisions of Title II. In response to his congressional opponent Homer Ferguson, a Republican Senator and one of the major sponsors of the communist registration bill, Senator Douglas opined:
What would the Senator [Ferguson] say of the detention of Japanese-Americans during the war, 70,000 of whom were American citizens? That detention was carried out merely on the basis of race and nationality, whereas the detention provided for in the Kilgore bill would be carried out, not on the basis of race or nationality but on the basis of demonstrated actions likely to lead to acts of espionage or sabotage.
As Senator Douglas pointed out, the most serious problem of World War II internment was that detention was based on racial lines. Nisei were excluded from military service, government jobs, and later expelled from their homes without charge. Furthermore, they were incarcerated in inland concentration camps, euphemistically called the War Relocation Centers, for a substantial duration of time. The incarceration of Nisei demonstrated that one's possession of legal citizenship/nationality did not guarantee the rights of citizenship. By excluding and interning Nisei American citizens along with Issei Japanese nationals, the government in effect created a new category of citizens, “enemy non-aliens,” who held American nationality but whose citizenship rights could be annihilated.
Legal scholar Linda Bosniak identifies four distinct discourses implicated in citizenship: citizenship as legal status, citizenship as rights, citizenship as political activities, and citizenship as identity/solidarity. Applying these distinctions, it can be said that the Nisei's citizenship as legal status (i.e. American nationality) entitled them neither to their citizenship as rights nor full membership in imagined American identity/solidarity. Not regarding Nisei as one of “us,” mainstream Americans during World War II adopted a looser standard of scrutiny for civil liberties restrictions applied to Nisei and did not assume that this would affect American citizenship in general. They were proved wrong in 1950, when Title II legalized detention of any persons, American citizens or aliens.
Senator Ferguson, on the other hand, initially opposed the emergency detention legislation. As one of the sponsors of the communist registration bill, Ferguson criticized liberals for drafting a concentration camp law, while liberals reiterated that it was better than enforcing thought control, which they thought communist registration would do. Ferguson's interpretation of internment, however, was an ambiguous one as well.
Does the Senator [Douglas] realize that one of the Japanese-Americans in the so-called relocation center who made application for a writ of habeas corpus had her writ granted, and the Supreme Court ruled she could not be kept in camp? In setting up the relocation centers an attempt was made to follow a legally fictitious procedure of barring people from certain areas but allowing them to go up into camps voluntarily.
The habeas corpus case Ex parte Endo, which Senator Ferguson mentioned, freed plaintiff Mitsuye Endo and consequently all Japanese Americans from internment camps. Ferguson's statement can be interpreted as a criticism of internment, as he acknowledged that the government not only excluded Japanese Americans from the West Coast but forced them into camps “voluntarily.” Neither Ferguson nor Douglas openly criticized internment as a mistake, let alone an injustice, but their ambiguity about the measures was apparent in the ways they described the incident. The ambiguity was not due to the Senators' ignorance about internment. It rather reflected the problematic administrative procedure through which internment was conducted and the perplexing rhetoric by which the Supreme Court justified the policy. Internment generated ambivalent historical memories, because it was a historical incident in which the rules for enemy aliens were applied to a class of American citizens. The loophole internment created in the constitutional protection of civil liberties opened an avenue for postwar Congress to pass a law that allowed detention of citizens by discretion of the government.
In response to Ferguson's reference to Ex parte Endo, Senator Douglas stated:
Is the Senator [Ferguson] aware of the fact that in the case to which he refers, involving a Japanese woman, she was freed because it was found that she was loyal? Because it was found that she was loyal a writ of habeas corpus was granted. If there had been a finding that she was not loyal, the writ would not have been granted. I believe such an inference may well be drawn from the opinion of Justice [William] Douglas in that case.
Senator Douglas's statement elucidates how the constitutional legacy of internment provided the lawmakers in 1950 with ideas concerning the category of citizens who could or should be detained. To justify the emergency detention bill, Douglas emphasized that loyalty, not race or nationality, should be the factor that determined whether or not a person could be detained. Loyalty, rather than individual actions, became the test to determine the extent of limitations on citizens' individual freedom. To see how this discursive shift happened, we need to further analyze the U.S. Supreme Court's justification for internment and examine the process by which Nisei were constructed as “enemy non-aliens”--citizens who were potential enemies of the state.
Unlike the military, the Court was constrained by the Fourteenth Amendment's guarantee of equal protection from branding Japanese Americans as enemy aliens on the basis of race. In Hirabayashi, the majority held that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Likewise, in Korematsu, Justice Black stated that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” A close reading of Hirabayashi and Korematsu reveals that, at first, the Court translated racial discourse into cultural discourse to avoid a finding that the policy was unconstitutional by virtue of its discrimination based on race. In Hirabayashi, the Supreme Court listed numerous cultural traits of Japanese Americans that marked their foreignness in the United States, such as the prevalence of Japanese language schools, a common custom of sending children to Japan for education, and their retention of close-knit communities supported by religious and social activities. Applying Bosniak's distinct discourses of citizenship, legal scholar Leti Volpp argues that Japanese Americans were extraterritorialized in citizenship of identity regardless of their legal citizenship status. The classification of Japanese Americans as a “transnational extension of Japan into the United States” discursively established the Nisei's foreignness.
Citizens' foreignness in cultural identity, however, could not justify their involuntary exclusion and relocation from their legally owned habitats. Thus, to simultaneously deny the racist nature of internment and justify disparate treatment of Japanese Americans, the Court translated a cultural discourse into a discourse of loyalty. In Hirabayashi, Chief Justice Stone held that “we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained.” In Korematsu, Justice Black reiterated Hirabayashi and added as evidence of disloyalty that “[a]pproximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.” The internment cases established a constitutional precedent justifying curfew and exclusion over a broad group when the government found it impossible to segregate the disloyal from the loyal within the group. In short, the Supreme Court constructed Japanese Americans as the cultural “other” and translated this “otherness” into “danger,” thereby legitimating their exclusion. This is an example of what David Campbell would describe as a historically common pattern of performative identity constitution.
In Endo, the Court again invoked the discourse of loyalty. By contending that Executive Order 9066 and Public Law 503 only allowed the military to make orders to protect the West Coast from espionage and sabotage, the Court was able to hold that the War Relocation Authority was not allowed to detain persons whose loyalty had been cleared, because “a citizen. . . concededly loyal presents no problem of espionage or sabotage.” The Court unanimously ordered that Mitsuye Endo be freed because she had proven to be a loyal citizen. By shifting the discourse from race to loyalty, the Supreme Court avoided rendering an opinion on the constitutionality of internment. This move, however, opened up a different avenue for restricting freedom of citizens. By discussing loyalty in assessing the constitutionality of citizens' detention, the Court brought the matter of loyalty into the analysis of the reasonableness of restrictions on civil liberties.
Although Senator Ferguson agreed that Endo's loyalty was the basis upon which the Court ordered her freedom, he refuted Senator Douglas's claim that the court sanctioned detention of disloyal citizens. Ferguson correctly pointed out that the Supreme Court decisions on the Japanese American cases were limited to narrow grounds. The Court only upheld Korematsu's conviction for his violation of the exclusion order but refused to discuss constitutionality of the detention order. In Endo, the Court ordered Endo to be freed, but did not address the cases of disloyal citizens or aliens. As Ferguson argued, the Supreme Court did not sanction imprisonment or detention of aliens or citizens on the basis of disloyalty, let alone suspected disloyalty. However, the fact that the Supreme Court neither addressed nor resolved the tension between civil liberties and internal security left room for the future legalization of preventive detention based on disloyalty.
Japanese American internment played a dual role in creating Title II: highlighting constitutional concerns of internment and providing a precedent and a method to circumvent those constitutional limitations. Internment involved constitutional problems because Japanese aliens were detained merely on the basis of nationality and Japanese American citizens merely on the basis of race. The identification of these problems led the drafters of Title II to design the law in a way that prevented mass exclusion and internment based on race or nationality. At the same time, congressional liberals' logic clearly indicated that internment was a precedent that justified a formal detention law. In fact, it was the liberals' very effort to avoid detention based on race or nationality that gave birth to a formal preventive detention law. The eventual passage of Title II meant that the American legal system sanctioned the detention of citizens on the basis of suspected disloyalty. Citizenship rights were no longer based on people's nationality. Loyalty, rather than nationality, became the basis for civil liberties.
In addition to the problem of determining who should be detained, another problem concerning the internment came up in the Title II debate: under what security conditions should the law grant the government emergency powers? Senator Ferguson, in his criticism of the Emergency Detention Act, emphasized that internment was a special wartime measure and was not equivalent to the peacetime detention of enemy aliens.
Does [Senator Douglas] appreciate that what was done there was an entirely different matter? We had a territory which was declared to be a military area. Those Japanese-Americans were excluded from that military zone and relocated in special centers.
In the above statement, Ferguson is criticizing the emergency detention legislation on the grounds that the bill applied to the entire United States rather than confined to a designated military area. On this point, Ferguson was only half-right. While the Western Defense Command did designate specific military areas encompassing coastal regions up to 100 miles from the Pacific Coast (plus in a later period the entire state of California), Executive Order 9066 also authorized the Secretary of War to designate military zones and exclude citizens anywhere within the United States and its territories. Thus in principle, Executive Order 9066 was not as limited as Ferguson implied in his statement.
Douglas's counterargument was that the security emergency in the struggle with communism made virtually the entire territory of the United States a military area and he insisted that the nation might be “faced with a period of seriously threatened espionage and sabotage prior to a formal declaration of war.” Given that an actual (though undeclared) war was going on in Korea, Senator Douglas even went as far as to suggest the declaration of the internal security emergency as soon as Congress passed Title II. This particular exchange of opinions reveals the differences between the situation concerning national security during World War II and the Cold War. Even though World War II was a total war, for Americans there remained a distinction between the battlefield and the home front. There was also a distinction between wartime and peacetime, the former starting with a declaration of war and the latter with the signing of a declaration of surrender. The Cold War erased those distinctions. By applying the precedent of Japanese American internment to the Cold War, wartime preventive detention of “potentially disloyal” people legitimized the detention at any time of “potentially disloyal” citizens and aliens on the home front.
The Douglas-Ferguson debate on Title II indicates that two interpretations of internment--incarceration of citizens based on race/nationality and wartime exclusion of enemy aliens for national security--coexisted, demonstrating the murky legal boundary between citizens and aliens. Liberals contended that internment virtually authorized the government to detain citizens if they posed a threat to national security. They insisted that, rather than leaving the power to an executive order or to the military, Congress should legalize the procedure for preventive detention and provide avenues for appealing detention, thus preventing arbitrary detention of innocent citizens. Conservatives regarded the internment as a wartime exclusion of enemy aliens. In their criticism of the Emergency Detention Act, they insisted that emergency detention was much broader compared to internment, because it would detain American citizens in concentration camps intended for the enemies.
To see the influence of Title II on postwar civil liberties, it is important to note that domestic enemies in the Cold War could not be identified as easily as before. Although there was an identifiable primary enemy state in the U.S.S.R, the Cold War was in fact an ideological conflict between communism and capitalism, rather than a military conflict between two nation-states. Unlike the First and Second World Wars, enemies of the state could not be linked to a particular ethnicity. Hunting for ideological traitors was a far more complicated task than singling out a visible ethnic group. During World War II, the government failed to distinguish between the loyal and the disloyal among the Japanese American population. Clearly, distinguishing between the loyal and the disloyal among the general population would be a far more difficult task. By applying preventive detention on the basis of individual action rather than racial or ideological affiliation, Title II was designed to provide a safeguard for individual freedom while still granting the government strong power to minimize threats to national and internal security. Ironically, making disloyalty the standard for protection or deprivation of civil liberties in the Cold War context made all Americans vulnerable to various sorts of political and ideological repression.
In the end, both Title I and Title II were passed as parts of the Internal Security Act of 1950. On September 12, Senate Majority Leader Scott Lucas proposed to add the emergency detention provision to the communist registration bill, an amendment that shocked fellow liberals and received enthusiastic support from conservatives such as McCarran and Ferguson. After reviewing the bill in the Senate Internal Security Subcommittee (SISS) and a joint conference with the representatives from the House, McCarran, who chaired the SISS, introduced the final version of the Internal Security Act. It was passed in the Senate 51 to 7, and the House 313 to 20, on September 20. President Truman sent a veto message two days later, only to be overridden. The House voted immediately after the veto message was read, and the Senate voted the next day. On September 23, the Internal Security Act became a law with overwhelming support in Congress. In the end, liberals lost the battle. They not only failed to stop the communist registration bill from passing, but they could not claim to be tough against communism, because they were forced to vote against their own bill when it was added to the communist registration bill.
The Conference Report that submitted the final version of the Internal Security Act explained the process by which the Senate and House managers agreed upon the validity of Title II.
The managers on the part of the House were fully cognizant of the need for provisions of this character, but gave serious consideration to the constitutional questions involved in any such legislation. They concluded that the precedents afforded by court decisions sustaining the validity of the Japanese relocation program in effect during World War II provide ample authority for the enactment of legislation to attain this objective. After the adoption of perfecting amendments designed more fully to protect the interests of the individuals who would be affected thereby and to insure the observance of procedural due process of law in the administration of such program, agreement was reached on this title.
At the final stage of the legislative process, the legal legacy of Japanese American internment gave official sanction to the concentration camp law.
