Thank you for sharing!

Your article was successfully shared with the contacts you provided.
It’s time again to tell the story of Pearl Harbor — until Sept. 11, the site of the most devastating attack on American soil in living memory. But, more importantly these days, it’s also time to remember what came about after Dec. 7, 1941 — the incarceration of 120,000 Americans of Japanese descent and the devolution of American law into a rationalization for racism. “How could such a tragedy have occurred in a democratic society that prides itself on individual rights and freedoms? … I have brooded about this whole episode on and off for the past three decades,” Milton Eisenhower wrote of the Japanese American internment, a project that he had coordinated at Franklin Roosevelt’s request. Yet Eisenhower’s heirs need puzzle no longer. In George W. Bush’s ceaselessly expanding, everything’s-justified war on terrorism, we can watch the descent from integrity to intolerance step by step. Mankind has always been predisposed to define danger according to perceived difference — whether in race or dress or spiritual practice. That’s the point made when Kubrick’s Neanderthal male repels Cro-Magnon Man, turning a bone into a weapon in the opening scenes of “2001: A Space Odyssey.” But American law aims to move us forward from the caves through reason. “The judicial test of whether the government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger,” Justice Frank Murphy urged, dissenting from U.S. v. Korematsu (1944). Yet in finding it reasonable to presume that individuals are dangerous solely because of their race, Korematsu — which gave the U.S. Supreme Court’s imprimatur to the internment — sacrificed constitutionalism to stereotype. Then, just as Justice Robert Jackson — another dissenter — predicted it would, Korematsu‘s sophistry “[lay] about like a loaded weapon ready for the hand of any authority that [could] bring forward a plausible claim of an urgent need.” This fall, the Bush Administration picked it up and pointed at persons of Middle Eastern descent. The problem with asking whether it’s reasonable to believe that an ethnically defined group will behave in an anticipated way is that our “knowledge” of racial attributes is a cultural construct. And cultural categorizations of difference are always ideologically driven — articulating who we are or, more disturbingly, justifying how we treat those we have defined as different. Indeed, theorists like Edward Said posit that the interdependence between political strategy and racial stereotype — agenda (opening trade routes) that provokes myth (allure of the Orient) that supports agenda (social decadence justifying military intervention) — offers an uninterrupted cycle of expedient caricature. Incognito detentions aren’t the internment, of course. But the inferences that lead to this century’s most appalling constitutional error and the judgments we’re hearing from the Justice Department have more in common than most Americans realize. In commemorations of the Dec. 7 attack, we’ll remember the generalities of Pearl Harbor — the surprise, the staggering loss, the struggle back — but we’ll have forgotten the specifics. The Bush Administration is counting on that. The conclusions that underwrote the internment sound less like anachronism — the politically incorrect excesses of Lt. General John DeWitt, who bore the responsibility for domestic security on the West Coast after Dec. 7 — than like John Ashcroft. Having no evidence that any potential internee had ever engaged in acts of terrorism, DeWitt targeted all ethnic Japanese residents on the basis of the general conduct that appeared to distinguish them from the mainstream: They maintained tightly knit, geographically consolidated communities. They practiced the religion of their ancestors — and used places of worship to orchestrate criminal activities, DeWitt argued. They were outspoken about the ongoing war in Asia and had occasionally disputed the correctness of U.S. foreign policy there. By 1943, when the Supreme Court was asked to determine the reasonableness of DeWitt’s apprehensions of “the Japanese race,” Americans had received a barrage of politically inscribed cultural images, all evolving with our political expectations: of exotic companions, as we hoped to open international markets; of happy servants, as we sought to expand immigrant labor; to loathsome satyrs, as we sought to eliminate competition from non-white farmers and fishermen. In Cecil B. DeMille’s “The Cheat” (1915), a Japanese immigrant (hastily reidentified as Burmese after Japanese Americans threatened national boycotts)displays both the ruthlessness and the contempt for American values — literally branding the film’s leading lady with his mark of ownership — that DeWitt claimed to see in potential internees. Asked to determine what acts of espionage it was reasonable to foresee, nervous judges relied on what they had seen — seen literally, through the products of a film industry that had eagerly accepted the administration’s invitation to turn its labors to the war effort. In the end, judges saw ethnic Japanese doing the very things DeWitt had predicted they would: evoking constitutional rights to foil anti-espionage searches (“Little Tokyo, USA,” 1942); using residential status to facilitate the attack on Pearl Harbor (Air Force, 1943); funneling information to enemies abroad (“Secret Agent of Japan,” 1942); displaying a fanaticism incomprehensible to Americans (“Flying Tigers,” 1942). The outcomes were inevitable. Nor was there any doubt that cultural depictions had become constitutional law. The reasons, Justice Murphy urged, were “largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices. …” If the rest is history, then it’s a history that has suddenly repeated itself. Today, there’s no question that the detention of 1,500 immigrants from the Middle East, the 5,000 requests that young men drop by police stations to talk, and the demands to monitor the activities conducted inside mosques are based exclusively on racial difference. Government agencies have arrested Middle Eastern scofflaws and ignored offenders from other areas. Government spokespersons have discussed the torture of Middle Eastern suspects when that concept would be unthinkable as to uncooperative inmates from different regions. Government attorneys have welcomed permission to prosecute Middle Easterners in military tribunals while proceeding in conventional trials against others who have committed mass crimes against the U.S. — including self-described combatant Timothy McVeigh. Inevitably, our courts will decide whether the Bush administration’s actions against targeted residents have been reasonable. The underpinning of that decision will be what culture has told us about the people of the Middle East. Familiarly, depictions that once emphasized the exotic (“The Sheik”), have more recently reported decadence and degeneracy — fanaticism (“Executive Decision”), and misogyny (“Not Without My Daughter”), and an endless campaign of violence against the West (“True Lies”). If in an earlier age, the images advanced intrigue, their more recent purpose has been to justify the military interventions that will reopen the oilfields. In our worst days, racial stereotypes look reasonable: Japanese imperialists did bomb Pearl Harbor, after all, and Islamic fanatics destroyed the WTC. But the problem with cultural caricature is that it justifies our worst prejudices using the conduct of extremists. What the stereotypes exclude are the stories of family men and school teachers and young people who have never known life anywhere but the United States. “I was 10 years old and wearing my Cub Scout uniform when we were packed onto a train in San Jose,” U.S. Transportation Secretary Norman Mineta recalls of internment. Amid popular representations that describe the people of the Middle East uniformly as abusers and fanatics and haunted animals, mainstream culture offers no single individual with whom we can identify: No Arab figure sells life insurance or drives kids to music lessons or reads news. It’s a cultural void that the administration ensures by denying its targets names and faces, tellers and tales. This week, as we witness the most serious threat to civil liberties since V-J Day, we are invited to remember Pearl Harbor. And we must. But we must remember it all. Contributing writer Terry Diggs teaches courses on law and film at Hastings and Golden Gate University law schools. Her e-mail address is [email protected]

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.