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Law Students

: De Novo

What Al Qaeda Believes about American Muslims

By "PG"

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A passage in Curtis Bradley's and Jack Goldsmith's foreign relations casebook created a concern for Stephen Griffin and Eric Muller that the book unintentionally "endorse[s] a false, revisionist, and partisan history of the Japanese American internment," by suggesting that there was a fact-based fear of Japanese-Americans' becoming fifth columnists traitors who would assist Japan's invasion of the U.S. From what I understand, Michelle Malkin and others who have promoted this revisionism regarding Korematsu and whether the internment policy was sound rely almost entirely on decrypted transmissions from Japan's Foreign Office that describe the Office's attempt to influence U.S. opinion against entering WWII. This attempt included claims of "already established connections with very influential Negroes to keep us informed with regard to the Negro movement."

Like much of Japanese wartime thinking regarding its capabilities against the U.S. on its own territory, the Foreign Office's transmissions were wildly overoptimistic. The Malkin argument seems to be that because a delusional Japanese government was convinced that racial loyalty was a driving force in the breast of all Japanese people wherever they might be, it was perfectly rational for the U.S. government to believe the same thing without evidence that it was true. I find this as sensible as the U.S. government's taking the same estimate of American Muslims that Al Qaeda might: those Muslims who have not become degenerate Westerners are perforce on Al Qaeda's side. However, Sandy Levinson argues that it

doesn't strike me as "irrational" to fear that Japanese nationals would support the land of their birth against a country that had treated them so shabbily, and I'm not even sure that it's lunatic to believe that some 14th Amendment birthright citizens wouldn't be sufficiently angry at the treatment of their parents to turn against the US. Then one must take the step of arguing that it is also non-lunatic to engage in general sequestration given the exigencies of time with regard to conducting pre-detention hearings.
It is the combination of two ideas that may not in themselves be "lunatic" that produced a policy of ethnic internment that was not based in reason. The rationality Levinson claims for the fear that Japanese Americans, having been mistreated in the U.S. in a way that Italian- and German-Americans hadn't been, would turn on the U.S. is a rationality based to some extent in tribalism. It doesn't explain the non-tribal mindset; why would Japanese-Americans who left Japan and chose to remain in the U.S. despite the mistreatment become saboteurs for the homeland against their adopted country? It certainly wasn't based on evidence of widespread anti-Americanism among Japanese immigrants and their U.S.-born children.

So then we are left with the vague presumption that OK, maybe not all the Japanese-Americans felt the way Levinson describes, but surely some of them did? Even if there were some, it is instances of "some" that individual hearings are designed to cover. Internment even could have been used as a threat to coerce assistance from the Japanese American community: help us root out the traitors among you, the government could have said, or you're all being ripped from your homes and put behind barbed wire. Blunt tools often work better when they're being twirled menacingly than when they're actually applied. In short, only if one uses a very bare form of rational basis scrutiny, such as that usually applied to economic regulations under Williamson v. Lee Optical, does interning all Japanese-Americans on the West Coast survive the test. Levinson's idea of what were "not irrational" assumptions for the government to make about the psychologies of Japanese-Americans reminds me of good old "common sense," which need not be backed by any evidence whatsoever so long as it fits with existing prejudices -- ones here shared in common between the Japanese and U.S. governments.

Full post as published by De Novo on January 18, 2008 (boomark / email).

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