The Japanese prime minster, Shinzo Abe, is set to visit Pearl Harbour just after the 75th anniversary of the surprise attack that brought the US into the World War II. Abe is only the second Japanese premier to visit Pearl Harbour, and will be the first to visit the USS Arizona Memorial.
But while everyone is familiar with the most obvious consequence of the Pearl Harbour attack, the assault kicked off a number of events in the US itself that still resonate today – none more so than the policy of internment, which involved the incarceration of 120,000 Japanese Americans.
As soon as the US declared war on Japan (and thereafter Germany and Italy), citizens of Axis nations living in America became enemy aliens. Germans, Austrians, Italians and Japanese were all subject to harassment and abuse – not all that unlike the sort of hatred many Americans have encountered since the election of Donald Trump.
This recent abuse has in many ways been encouraged by the campaign. President-elect Donald Trump and his supporters have been vocal in their support for policies such as building a wall along the US-Mexico border, their feelings towards minorities, and the idea of creating a Muslim registry. The message both then and now is clear – those who look or sound different to mainstream America are easy targets for hate.
Since Trump won the election, some of these ideas have been discussed more than others. But in November 2016, a prominent Trump supporter, former Navy SEAL Carl Higbie, said on FOX news that he believed the mass internment of people of Japanese ancestry was a valid precedent for a registry of immigrants from Muslim countries.
The Japanese American community – and scholars of Japanese American internment – have been quick to point out that trying that trying to claim internment as precedent for registering Muslims is bad legal history. More than that, it represents a fundamental misinterpretation of history that puts everyone’s constitutional rights at risk.
The idea that a government can or should register members of a group believed to be a threat to national security is hardly new. During times of war, it’s often expected that enemy aliens will be monitored by the authorities, subject to curfews and other restrictions, and in some cases be interned.
During the World War II, for example, German, Austrian, and Italian citizens who lived in the US went before tribunals that would decide whether or not they constituted a threat to national security – those judged to be dangerous were interned. In the case of those of Japanese ancestry, however, they were rounded up en masse as a racial group – and a significant proportion of those interned were children. To highlight the similarities between then and now, a film has been produced in which contemporary Muslim children read letters written by Japanese American children who were interned. Even after 75 years, their hopes and fears are depressingly familiar.
More recently, after the 9/11 terrorist attacks, the US implemented a highly controversial immigration programme called the National Security Entry-Exit System (NSEER), which targeted men travelling to the US from predominantly Muslim countries. A huge number of people were targeted because of their background or religion, rather than specific ties to criminal or terrorist activity. While the policy was not considered unconstitutional, it was still highly controversial and in 2011 it was discontinued – its impact and usefulness are still hotly debated today.
Calls for a Muslim registry, then, are simply the latest manifestation of a mindset that has guided policy for decades and longer. When asked whether there were differences between Muslims being forced to register in the US and how Jews were forcibly identified in the 1930s, Trump responded: “You tell me”.
Essentially, this would both revive and extend of the NSEER approach, which after all was legally found to be constitutional. But that doesn’t explain why Trump supporters are so eager to cite Japanese American internment as a constitutionally and morally valid precedent. This is a particularly disturbing misrepresentation of both history and legal thinking: the 1944 Supreme Court case on which Higbie and his supporters rest their defence of internment, Korematsu v. US, is a reminder of how dangerous these policies can be.
The judgment remains on the statute books, but when it was reassessed by the Supreme Court in 1984, the judge ruled that:
As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. 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. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.
So, really, Korematsu proves precisely why a Muslim registry is a flawed premise, and demonstrates how carefully history should be read if we want to avoid repeating the mistakes of the past.