A few thoughts about the national registry of Muslims that Trump’s surrogate, Carl Higbie, raised and its “precedent” in the internment of Japanese Americans during WWII, both of which the NYTimes editorial board wrote about:
1) It is chilling to speak of registries of Muslims and immigrants, and the internment should not be invoked as a precedent for them.
2) To note that the Korematsu decision has “technically” never been overturned, while true in a legal sense, misses a larger point about the case and the internment. Korematsu’s conviction was overturned in the coram nobis cases (which also challenged Min Yasui and Gordon Hirabayashi’s convictions) in the 1980s, which showed that War Department officials suppressed information that worked against the “military necessity” they argued to the Supreme Court. They subverted the judicial process to achieve the legal ruling they wanted. In overturning Korematsu’s conviction, Judge Patel wrote: “It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.” Peter Irons’ Justice At War and various entries on Densho’s website, densho.org, are sources for additional information. [update: Noah Feldman, who teaches at Harvard Law, has an op-ed in the NYTimes on Korematsu as precedent; Carl Takei, an attorney for the ACLU, has a piece on Korematsu and the coram nobis cases].
3) Standard narratives about the internment observe that two-thirds of Japanese Americans who were interned were native-born American citizens. It is significant, and outrageous, that the United States imprisoned its own citizens without actual charges or evidence of misconduct. But this observation misses a key point: the other one-third of Japanese Americans interned, almost all of whom were immigrants, were unable to become citizens because the Supreme Court had declared them racially ineligible for naturalization in 1922. Moreover, some of those non-citizens, including some who were native-born, had lost citizenship they previously had. These included Japanese Americans who had successfully naturalized before 1922; native-born Japanese American women who had married immigrant men; and Japanese Americans who had served in the military during WWI and had briefly received naturalized citizenship before having it cancelled in another Supreme Court decision in 1925.
4) The internment was the culmination of decades of racially exclusionary and discriminatory policies against Asians in the late 19th and 20th centuries. Chinese immigrants were required to register with the government, have certificates of residence, and file papers whenever they traveled overseas, to be allowed re-entry.
Enforcement of Chinese registry, of “illegal” and “undocumented” Chinese, cast suspicion on all Chinese, including those who were native-born and citizens. The same barrier to naturalization and expatriation because of marriage to an Asian immigrant that affected Japanese American internees applied also to Chinese and to Koreans, Indians, and other natives of an “Asiatic Barred Zone” (which also included a large portion of the islands in the western Pacific) that the United States observed for decades in the early 20th century. These “aliens ineligible for citizenship” were legally disadvantaged through “alien land laws” that barred them from owning property, operating businesses, forming corporations, and even becoming a private detective (in New Jersey).
5) These were the historical precedents for registries of Muslims. The suspicion they cast on entire groups of people, holding them collectively responsible in the national interest for individual behavior many did not engage in, are the worries we should have about today’s proposals. Allowing that suspicion to grow, to become acceptable, normal belief and behavior, over years and decades is what could and can lead to another internment.