February 5, 2014

"Justice Antonin Scalia says World War II-style internment camps could happen again."

A headline that might seem shocking but doesn't surprise me at all. What Scalia said is an entirely ordinary observation within the field of constitutional law (from my perspective, anyway, as someone who's taught conlaw for 30 years):
Scalia was responding to a question about the court's 1944 decision in Kore­ma­tsu v. United States, which upheld the convictions of Gordon Hira­ba­ya­shi and Fred Kore­ma­tsu for violating an order to report to an internment camp.

"Well, of course, Kore­ma­tsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again," Scalia told students and faculty during a lunchtime question-and-answer session.

Scalia cited a Latin expression meaning "In times of war, the laws fall silent."

"That's what was going on — the panic about the war and the invasion of the Pacific and whatnot. That's what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It's no justification but it is the reality," he said.
What's more notable than that it could happen again is to have such a clear statement that "of course, Kore­ma­tsu was wrong." The law school dean, Avi Soifer, made that observation at the time.

Soifer then pushed toward a recognition that the courts should maintain their supervision of the political processes even in wartime. Scalia's remarks, as reported, don't go so far as to say that he as a judge would be able or willing to do anything about the rights violation that is, now, after the war, so clear. In fact, Scalia seems to be conceding that if it we ever were, once again, in a situation where the President did see fit to do something that drastic, the courts would not help.

43 comments:

Meade said...

Beware shanghaiing politicians.

Matthew Sablan said...

It couldn't happen here in Oz.

chrisnavin.com said...

Clearly, some people will take this as a challenge.

Bob Boyd said...


Why inter people?
So you know where they are, what they are doing and who they are doing it with at all times.
But why inter people if you have the technology to monitor their activities and interactions at home, at work, in their cars, on their phones, etc?

Oso Negro said...

I am on the very last chapter of "Bloodlands" by Timothy Snyder. I recommend the read to anyone, but offer the caution that it contains the most dreadful paragraphs that I have ever read. For the record, it even beats my wife's copy of "Practical Homicide Investigation," which is a real doozy.

Ann Althouse said...

"Why inter people?"

If they are dead, they should be interred.

As to when they should be interned...

Bob Boyd said...

Got it.

Rusty said...

Liberals love putting people in camps.


Brando said...

Scalia's right--it's depressing, but he's absolutely right. The scary thing is that we did that to our citizens at a time when we really had no realistic threat of invasion, and we never came close to losing the war. Then imagine what we might have done if we actually did come close to losing.

Tank said...

Of course it could happen again. We've already given up 100% of our privacy to the Gov't without a whimper. And that's good. Who needs any area of privacy. The
gov't should know all, does know all. Except the privacy that is "the killing of unborn babies." That privacy is too important to lose.

So, yes it, and worse could happen. Probably will.

Punish our enemies.

Jason said...

It would have been different if a Japanese American hadn't committed treason right out of the gate, December 7-9, 1941, during the little known Ni'ihau Incident.

jacksonjay said...

Japanese internment is not so bad in the long sordid history of civil rights injustices! FDR did what he thought was right! SCOTUS backed him up!


Gitmo internment makes GWB the Fuhrer! SCOTUS slapped him down!

One hundred thousand U.S. citizens (many of them multi-generational citizens) versus a few hundred blood thirsty jihadis from Crazytown! Hmmmmmmm???

Paul said...

Sure there can be internment camps.

Obama is counting on that.

Patrick O said...

Otherwise, so many of the Japanese in California were working hard as farmers and such. We know those aren't jobs Americans will do, so it stands to reason there was good justification for the internment camps. And farmers we know, often have to deal with manure. Talk about shit jobs!

They had consistent health care in the internment camps, so it was a good thing!

traditionalguy said...

The Common Core Curriculum is the internment camps at work.

Internees can't expect much. Just keeping them alive is hard and expensive...until a final solution is readied.

Scalia is right. That's why Obama's gang wants eternal war.

War on air.
War on white men v. women.
War on Christians.
War on Israelis.

But never a war on Muslims who have declared war on us.





Patrick O said...

Side note, both my great grandfathers were also farmers. When their Japanese neighbors were interned in WW2, they both tended their own fields and their Japanese neighbors, no charge beyond upkeep. Saved their livelihood.

Family narrative does not mention their health care situation after the war though, so maybe my g-grandfathers did a bad thing.

sykes.1 said...

Actually, right now the US government claims the right to kill American citizens that it deems (somehow) to be terrorists without any trial or judicial proceeding, e.g. Anwar al-Awlaki, an natural born American who converted to Islam. His son, who was not labelled a terrorist, was killed with him.

This is far more disturbing than concentration camps, and the camps that housed the Japanese were not deplorable. However, the fact that the Japanese in them were systematically looted of their property and businesses, and that was deplorable.

The fact that all those lawyers and judges aren't exercised by extra-judicial killings and large scale property theft is really disturbing. It supports my contention that the federal government is illegitimate, lawless, violent and corrupt. And that includes all branches and all their members (including Scalia and Obama and Boehner teal), the civil service and the military.

Robert Cook said...

"One hundred thousand U.S. citizens (many of them multi-generational citizens) versus a few hundred blood thirsty jihadis from Crazytown! Hmmmmmmm???"

Most of those imprisoned at Gitmo were never jihadis.

That said, who says the imprisonment of the Japanese was okay?

Robert Cook said...

We are at war, as those promoting it keep reminding. Several wars. What they don't remind us of is that we started the wars.

The laws have already fallen or are falling and it is only the absence (so far) of concentration camps full of Americans that leads us to believe we are still a free nation.

Eric the Fruit Bat said...

The decision would have been more difficult had there been a bunch of Japanese-American nuclear physicists.

Simon said...

traditionalguy said...
"The Common Core Curriculum is the internment camps at work."

Are you really comparing the common core—problematic though it is—to an internment camp?

jacksonjay said...

Dear Mr. Robert Cook,

Do you work for Eric Holder's former law firm?

Ask any school kid if they have ever heard of Fred Korematsu. Next question, have you heard of Rosa Parks?

"U.S. officials suspect that a former Guantanamo Bay detainee played a role in the attack on the American diplomatic compound in Benghazi, Libya..." Washington Post

Alot of NotJihadis Gitmo alums have been killed on the Not-a-Jihad battlefields, and whatnot!

cubanbob said...

J Edgar Hoover advised FDR that internment wasn't needed or desirable but Roosevelt did it anyway. Unfortunately Scalia is probably right that given a comparable situation the courts would roll over and play dead.

YoungHegelian said...
This comment has been removed by the author.
YoungHegelian said...

Didn't another Supreme Court Justice weigh in on this question in a big way?

jacksonjay said...

It seems to me that the SCOTUS was very actively involved in the Gitmo detention affair. Maybe I am wrong, but don't the Hamdi, Hamdan and Boumediene rulings involve the rights of detainees. These rulings went against the government, right?

Robert Cook said...

"Alot of NotJihadis Gitmo alums have been killed on the Not-a-Jihad battlefields...."

Uh, no, they haven't. A few may have, but "a lot?" Not that evidence so far has shown.

And, besides...one may not have taken up arms against the United States prior to being kidnapped by the US, but, having been imprisoned unjustly for years in a US concentration camp, one might very well decide after release to take up arms to wreak revenge against us for having been the agent of one's kidnapping and imprisonment.

Robert Cook said...

"'U.S. officials suspect that a former Guantanamo Bay detainee played a role in the attack on the American diplomatic compound in Benghazi, Libya...' Washington Post"

A decisive finding of guilt! And an irrefutably comprehensive listing of said suspected party's actual crime(s)!

Not.

And note the definite article: "a" does not come within a parsec of "a lot."

William said...

It's worth noting that Sen. Robert Taft spoke out against the internments. Taft was a conservative so don't expect any biopic dramatizing his heroic stand against injustice. According to cubanbob above, Hoover was also against it. I don't think that fact gets much publicity. It wasn't mentioned in Eastwood's recent biopic of Hoover........Can anyone name a Hollywood liberal who spoke out against the program?......Walter Lippmann was the first to call for the internment. He said that just as American citizens had no right to live on an aircraft carrier, Japanese Americans had no right to live in California. WTF.......I read Earl Warren's defense of the program. He said that Japanese American fishermen sent their children to schools in Japan and this demonstrated their divided loyalties. I suppose a fair argument could be made for restrictions on Japanese fishermen, but Warren's program wasn't restricted to Japanese fishermen.

jacksonjay said...

Dear Mr. Cook,

1. We will never know anything more than we already know about Benghazi, for obvious reasons! You are certainly one who must see with your own eyes before you believe!

2. Maybe you should take a look at this Wikipedia entry on NotJihadis Gitmo Alums who have returned to the fight! I think alot is fair!

http://en.wikipedia.org/wiki/Lists_of_former_Guantanamo_Bay_detainees_alleged_to_have_returned_to_terrorism

Robert Cook said...

JacksonJay,

Right there in the title of your link stands the word "alleged."

Well, allegations are easy to make, a bit harder to prove.

Even assuming a few dozen former Gitmo inmates--some of those listed on your linked wiki page--have subsequently been alleged to have become associated with extremist groups or acts, this is still a minority of the hundreds of those who have been (or are still) imprisoned at Gitmo over all, and again, it does not identify those who may have turned to extremism after having been released from imprisonment and who may have been linked to no such groups or behavior beforehand.

Again: isn't it possible being kidnapped and imprisoned in a concentration camp for years could turn you against those who perpetrated such actions against you?

jacksonjay said...

Mr. Cook,

It is alleged that the White House threw a big birthday party for Michelle a few weeks ago! Lots of guest, dancing, hob-nobbing! BYOB! But, no media was allowed! Cell phones were confiscated! So, said party is alleged and we can't say for certain that it happened! You can't prove it!

I would argue that killing NotJihadis by drone is more likely to "radicalize" these "freedom fighters"! Of course droning their noble asses often includes the so-called collateral damage. BHO, has it both ways. He keeps them locked up in Gitmo AND eliminates new innocent NotJihadis by drone!

traditionalguy said...

@ Simon...The day home schooling has been effectively outlawed, then yes Common Core Curriculum is an internment camp. The principle of rigid party line discipline is the same as barb wire fences.

Revenant said...

Robert,

Could you clarify why you think we started the war with Al Qaeda?

I don't care to get into a discussion over whether or not we should be fighting it or if we've paid too high a cost for fighting it. I'm just curious as to why you think we initiated it.

Revenant said...

The day home schooling has been effectively outlawed, then yes Common Core Curriculum is an internment camp. The principle of rigid party line discipline is the same as barb wire fences.

I think we have a new record for "dumbest thing t-guy has ever said".

Kirk Parker said...

"What they don't remind us of is that we started the wars."

Cookie: exhibit 1 of the way leftists demean The Other.

Robert Cook said...

"Could you clarify why you think we started the war with Al Qaeda?"

We didn't start a war with Al Qaeda. We started a war with Afghanistan and then Iraq. Afghanistan had nothing to do with 9/11,(no matter what you may think, Afghanistan is not equivalent to Al Qaeda). In more recent years we have expanded our killing into other countries in the region, even into countries who are our purported allies, such as Pakistan.

At this point, we seem to have a far-ranging war going on all over the fucking place and there is no coherent basis for it or identifiable goals or objectives to achieve that will allow us to say "we won, the war's over," (or, "we lost, the war's over").

Rusty said...

Blogger Revenant said...
The day home schooling has been effectively outlawed, then yes Common Core Curriculum is an internment camp. The principle of rigid party line discipline is the same as barb wire fences.

I think we have a new record for "dumbest thing t-guy has ever said".


You've said much dumber.

Cedarford said...

sykes.1 said...
Actually, right now the US government claims the right to kill American citizens that it deems (somehow) to be terrorists without any trial or judicial proceeding, e.g. Anwar al-Awlaki, an natural born American who converted to Islam. His son, who was not labelled a terrorist, was killed with him.

This is far more disturbing than concentration camps
======================
Not really, see US history and what Washington ordered in the Shays Rebellion and what Lincoln did to "US citizens" in the Civil War. You kill enemy and any noncombatant dumb or unfortunate enough to be in proximity to a legitimate military target.

You also intern "US citizens" who are not combatants, but in the enemy camp and considered a threat. This is normal practice in wartime, going back to people interned in the Revolutionary War and War of 1812..
The Civil War...WWI and WWII. And would have happened in the Korean War and Vietnam war if we had a large population of communist Koreans here or communist Vietnamese with "precious US citizenship". In WWII, we killed droves of US citizens that moved back to their parent(s) Reich during the Depression. Same with Italian-Americans. Same with the Japanese. And we and the Filipinos hunted down and killed both turncoat Filipinos and Japanese born in the Philippines who rushed to embrace the Japanese invaders...

Where I think most people have a problem with internment is when they interned people they swiftly determined were not threats aligned with the enemy. Like some Italian-Americans bagged simply because they were union officials, naturalized citizen German-Americans who were loyal but were tossed in camps in WWI "just to be safe" - because they worked in wireless communications or explosives factories. And of course the apolitical Japanese-American farmer who hoped the war would be over soon, but really didn't care who won it. Who did not owe loyalty to the Emperor.

But there were fascist fanatics, that deserved to stay interned for the duration as a threat, along with their US citizen wives and kids. There were many German-Americans rooting for Germany and Austro-Hungary to win WWI right up to and sometimes after US entry into the "Great War".

And of course the

gregq said...

http://www.ask.com/wiki/Niihau_Incident

Japanese pilot crash lands on remote Hawaiian island after attacking America at Pearl Harbor. There were three people of Japanese extraction on the island. All three decided to help the enemy airman against other US Citizens, up to and including attacking, kidnapping, and threatening to kill those other people.

Possible repercussions

Historian Gordon Prange notes that it was "the rapidity with which the three resident Japanese went over to the pilot's cause" which troubled the Hawaiians. "The more pessimistic among them cited the Niʻihau incident as proof that no one could trust any Japanese, even if an American citizen, not to go over to Japan if it appeared expedient."[10]

Novelist William Hallstead argues that the Niʻihau incident had an influence on decisions leading to the Japanese American internment. According to Hallstead, the behavior of Shintani and the Haradas were included in a Navy report. In the official report, authored by Navy Lieutenant C. B. Baldwin and dated January 26, 1942, Baldwin wrote, "The fact that the two Niʻihau Japanese who had previously shown no anti-American tendencies went to the aid of the pilot when Japanese domination of the island seemed possible, indicate likelihood that Japanese residents previously believed loyal to the United States may aid Japan if further Japanese attacks appear successful."[11]

Revenant said...

We didn't start a war with Al Qaeda. We started a war with Afghanistan and then Iraq.

Technically we had been at war with Iraq since 1991, when we joined Kuwait in repelling the invasion. But I'll grant you that as a practical matter we started that war.

You are, however, wrong to claim that Afghanistan had nothing to do with 9/11. They provided a base to the attackers and sheltered their leadership. That made them complicit in Al Qaeda's attack on us.

I agree that we have no coherent reason for remaining there, though. We should have gone in, smashed the Taliban and Al Qaeda, and left.

Revenant said...

You've said much dumber.

"I know you are but what am I" is not the world's most stunning comeback, dude.

Revenant said...

A few Japanese people in Hawaii engaged in treason, so naturally the US Government had no choice but to intern an unrelated mass of Japanese-Americans thousands of miles away while allowing 99% of the Japanese-Americans *in* Hawaii to remain free.

That's a capsule summary of the argument that the Ni'ihau incident justified the internment.