December 8 2011
Judicial Review in the Context of National Security
Nicole Kurokawa Neily
Yesterday was the 70th anniversary of Pearl Harbor – an egregious attack on our nation that led to our involvement in WWII. As we remember the many lives that were lost that day (and in the successive years of the war), let’s also take a minute to reflect on one of the policies that the U.S. implemented shortly after the attack.
In February 1942, President Roosevelt (that great progressive hero) signed Executive Order 9066, which declared areas of the country from which persons may be removed – which was later used to intern Japanese-Americans for a number of years in camps along the west coast. Forced to sell their belongings and property on short notice, many families lost everything they had for pennies on the dollar.
Why did it happen? Obviously, there were national security concerns. But another element that’s forgotten is that this was an early example of an interest group lobbying to eliminate competition through the assistance of government.
White farmers – represented by groups like the California Grower-Shipper Vegetable Association – actually encouraged internment, making assertions like “If all of the Japs were removed tomorrow, we’d never miss them… because the white farmers can take over and produce everything the Jap grows. And we don’t want them back when the war ends, either.”
As far as the national security argument is concerned, that, too, was specious at best. Had the courts had requested evidence that sequestering a large group of foreign nationalities would, in fact, enhance the nation’s security, they would have found that no such evidence existed. Just recently, acting Solicitor General Neal Katyal acknowledged that his predecessors in the Department of Justice deliberately hid a military report that stated Japanese-Americans did NOT pose a threat.
Alas, our judiciary questioned neither the national security argument nor the underlying motivation for internment, instead rubber-stamping the government’s policy in Korematsu v. United States.
James Madison noted in Federalist 51, “If men were angels, no government would be necessary.” Obviously, that’s not the case. So as our “war on terror,” “war on drugs,” and all the other name-your-military-analogy campaigns drag on, I implore policymakers to resist the urge to force ridiculous policies on us “to keep us safe.” And of course, I encourage our judicial branch to always – ALWAYS – question the rationale behind laws and regulations designed to “protect” us.