Internments, Then and (One Hopes Not) Now

Yesterday, Friends University was visited by a traveling exhibit on German Americans (both residents and citizens) who were harassed, detained, and frequently interned in various camps and prisons by the U.S. government during World War II. Did you know that had happened? I didn't. And if it wasn't for the amazing dedication and hard work of Michael Luick-Thrams, the executive director of Traces, the organization he put together to gather and share the stories of those who suffered internment more than 60 years ago, I still wouldn't know about it.

Fortunately, not only did the arrival of Michael's labor of love (because he sure isn't making money off this tour) give me the chance to learn a few things, but it also allowed me--because I was asked to speak at a panel discussion the evening of the exhibit's visit--to put together some of my thoughts about the Military Commissions Act, which the president signed into law on Tuesday. I've actually spent a good part of the last three weeks reading up on and arguing about this bill; back when the bill passed, I posted a rant at my co-religionists in Congress who voted for the bill, accusing them of failing to remember our history as a minority faith that should know very well the consequences of facing a hostile government without legal recourse or defense. I was taken to task for that rant, and was subsequently drawn into some heated e-mail discussions about the bill. So, in a sense, last night I got to make my own position clear, to myself and whomever else cared to listen.

Are there parallels between what the Military Commissions Act allows, and what was allowed to happen to German-American citizens and German residents of America from 1941 until the end of the war (and, in a few cases, as late as 1948)? Yes--not many parallels, and not strong parallels, but there are some there nonetheless. It's important to understand--as I did not really understand until my crash course in this little-known part of our history began a couple of days ago--that the internment of Japanese-American citizens and legal Japanese residents during WWII is entirely the wrong model to look at when trying to think about the war on terror today. (Something that Michelle Malkin's atrocious book completely misunderstands, as many justifiably harsh reviews of her book have pointed out.) With the Japanese internment, you have a paper trail that extends all the way up to the president, with President Roosevelt signing Executive Order 9066 in February, 1942. You have whole regions of the U.S., particularly the west coast, designated "military areas" from which people with "foreign enemy ancestry" could be excluded. This was not a matter of criminal or conspiracy charges being leveled against particular persons; this was a collective, top-down, straightforward relocation program, that swept up somewhere between 110,000 and 120,000 citizens and residents of Japanese dissent. All the suspicions and motivations behind the relocation were on clear display, and many were specifically documented as soon after the order as 1944, when the Supreme Court issued a reluctant 6-3 decision in support of the government's actions in Korematsu v. U.S. (I say reluctant because the majority refused to call the president's actions correct; only constitutional, with a lot of handwringing over the inevitable injustices and confusions of war). That a relocation scheme of this size and scope was even possible testifies of the numerous racial and economic motivations behind it, as well as the demographic logic which made it possible: General DeWitt's famous "A Jap's a Jap" dismissal of claims that some of those being relocated were patriotic citizens; the white agricultural interests in central California that were anxious to pick up farms owned by Japanese-Americans at rock-bottom prices; the simple fact that Hawaii, while placed under martial law, never engaged in a program of Japanese relocation, because targeting an ethnic group which constituted over 30% of the state's total population (in contrast to the mainland, where Japanese communities were small and rarely integrated into surrounding society) would have resulted in the collapse of the state's economy. No, what happened to the Japanese residents of the western U.S. (and occasionally elsewhere as well) during WWII was an essentially unique situation; it can provide few warnings and even less guidance today.

What happened to German-Americans and legal German residents was different. By that time, Germans constituted the largest non-Anglo ethnic group in the U.S.; while there were still numerous predominantly German communities in the 1930s and 40s, particularly in the upper Midwest and Plains states, their distinctiveness was far less than it had been only a generation earlier, during the anti-German hysteria of World War I. As a result, the "relocation" of Germans was an entirely different ball game. For one thing, the number of people affected was far fewer; perhaps 10,000 to 11,000 ethnic Germans disappeared to camps and prisons scattered across the country. Moreover, there was apparently little rhyme or reason to who was targeted. Being a German-American citizen with an Anglicized name might make a difference in how various authorities (whether from the army's Military Intelligence Division, or the F.B.I., or the Office of Naval Intelligence, or special agencies of the Department of Justice, etc., all of whom had spent years compiling lists of possibly suspicious aliens and citizens) might react to a random order or accusation--then again, maybe it wouldn't. There was no executive order, no clear authorization, no public debate in Congress, for the internment of these people: just a desperate desire to act, a series of presidential proclamations immediately after Pearl Harbor which revived the Alien Enemy Act of 1798 (as codified in 1918) which required those identified as "enemy aliens" to register with the government, and then, here and there, for this reason or that, various local authorities who decided that occasional acts of secret internment, forced conscription, or even deportation, was needed for the war effort and to intimidate any possible German-American fifth columnists out there in the heartland.

And I do mean "heartland": one of the reasons Michael brought his display to Friends University is that one of the few accounts he has recorded from a living adult internment survivor, as opposed to someone who was a child at the time, comes from Mathias Borniger, a resident of Wichita and a former photographer at Friends:

Mathias Borniger, a photographer who made templates of plane parts for Boeing, was arrested in the middle of the night a day after Peal Harbor was bombed, December 7, 1941--about a week before he was scheduled to become an American citizen. "I had some friends in Wichita who were not my friends; they didn't like me too much. They reported me, and said I was a photographer and had a camera strapped to my leg and would go down to Boeing and take pictures of new planes and sent those pictures to Hitler, and a bunch of other nonsense. They said I knew a lot of things about chemicals as a photographer--that I might poison the water supply of Wichita. It was so grotesque and so ridiculous it's not even funny anymore." He was handcuffed in front of his pregnant wife, who divorced him while he was interned, saying she did not want to be married to a spy. [The actual story is even rougher than this: after giving birth to twin girls, Borniger's wife, Betty Jo Borniger, desperate to escape the taint of an "enemy alien" German husband who had disappeared from their neighborhood in the middle of the night, obtained her divorce and then abandoned her newborn children and disappeared herself; the twins both died.]...Borniger was sent from Camp McCoy to Stringtown, an internment camp in Oklahoma, never being allowed to contact anyone outside the camps. After a family lawyer was finally able to vouch for Mathias's loyalty [for which there was plenty of support; in fact, while Mathias was being interned, his brother--who had immigrated from Germany at the same time as him--served with distinction in the U.S. Army], he was released in the fall of 1943....Unsure of who had accused him, he cut off ties with nearly all his acquaintances. "A few came up to me and said, 'Hi, Matt; I'm so glad you're back.' And they wanted to shake my hands; I kept my hands in my pockets and said 'I don't even know you,' and just walked away."

Mathias's story hardly captures the worst of this haphazard program; our government also worked with--and sometimes pressured--Latin American governments to round up and ship to the U.S. over 4,000 ethnic Germans (some of whom were wealthy landowners, whose property thus fell into the hands of other, more America-friendly elites) as suspected Nazi sympathizers, and then occasionally made use of those individuals, along with a few of the 11,000 or so German-American civilian detainees, in making prisoner-of-war exchanges with Germany. (And almost unbelievably, some of those caught up in these "exchanges" were Jews.) Still, you might say, well, the fortunes of war and all that. The stripping of habeas corpus rights, the detention without trial of suspected populations, some of whom are surely innocent--that's the way it'll always be, right? Better safe than sorry, correct? Maybe so.

However, there is an important difference between the slow accumulations of decisions and fears and suspicions that made possible the German-American internment program, and the accumulation of decisions and fears and suspicions that is taking place today. That difference is, very simply, that our war with Germany was a war with a state, one that could be defeated, meaning the war could end. Whereas, under the terms of the Authorization to Use Military Force (AUMF) granted to President Bush--in which he is "authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons"--we have the makings of a war on terrorism that could go on for a very long time.

Why does that matter insofar as the Military Commissions Act is concerned? Because as time goes by decisions accumulate, compound one another, and sometimes end up pushing in directions no one originally anticipated. (Reading different accounts of German-American internment makes it clear, to me at least, that the actions of the government were often inconsistent, reacting to immediate bureaucratic pressures or personal agendas than any clear policy.) In my original rant against the Military Commissions Act, besides attacking it for the semantic distinctions it sets up over the interpretation of Geneva Convention prohibitions against torture, for its casual treatment (even apparent contempt for) of habeas rights, and so forth, I also alleged that all this would apply to citizens as well, even citizens who are only accused of having "materially supported" an "enemy combatant," even if having done so unknowingly. Under pressure from some lawyer friends of mine, I had to acknowledge that the "would" in that sentence is far too strong. Is substituting a "could" in its place a possibility? That's the question. A straightforward reading of the law says both "yes" and "no." It is clear that those whom the law allows the president to name "unlawful enemy combatants" can include citizens; there is no other definition of the term operative on the federal level which would exclude that possibility. At the same time, the MCA's procedures--which is where detainments come in--are defined in the relevant section of the law as limited to "alien unlawful enemy combatants." I certainly hope those who attacked my initial reading of the law are correct in insisting that this restriction would be pretty hard for any Solicitor General to argue around. And yet...in both Hamdi v. Rumsfeld and Padilla v. Hanft, the executive branch has been determined to have the authority to detain citizens pursuant to the AUMF as enemy combatants. It is therefore not wholly unreasonable, I think, to suspect that precedents exist for an aggressive--or genuinely concerned, or politically fearful, or all three--chief executive to, given time and cause, make the leap and argue that, a fortiori, the means exist under the expanded definition provided by the MCA to broadly enact the sort of policies which, 60 years ago, affected citizens and aliens alike. And even if that is not the case, and we can be certain that whatever the upshot of the MCA, it won't ever fully affect regular citizens like me and, perhaps, you...well, Mathias Borniger's experience makes it clear that, for some other people, that distinction could turn on the most arbitrary of conditions, such as a mere matter of days.

Nobody likes to think about this. And, having already done my bit as a scold and ranter, I'm not interested in putting forward an exceptionally hysterical case here. (Michael, unfortunately I think, puts statements like "Internment: it could happen to YOU!" on a lot of his material, which doesn't, I suspect, help his case.) But just in reviewing all this again, and in thinking about these stories that as of a couple of days ago I had no knowledge of, and putting it all together here and now, I get angry and worried and depressed once more. Ultimately, even if everything I (and more than a few legal scholars, I should add) fear about the MCA and so forth is proved groundless, there remains the bald political fact that, as Scott Horton writes, invoking Carl Schmitt, the "entire thrust [of this administration's war on terrorism has involved] a massive channeling of power from the legislature and the courts to the Executive." It is that kind of concentration of power, particularly a concentration which is opaque and not subject to public review, that makes all sorts of abuses, perhaps including especially those which are in the end just ill-thought-out, ugly and unjustified overreactions to real problems, possible. Certainly this was the case with the internments of WWII. Of course the prospect of putting Khalid Sheikh Mohammed on open trial is daunting, and of course I have respect for those JAG officers (one of whom is my cousin) who may end up being responsible for deciding who gets a military tribunal and who doesn't and under what conditions. There are a lot of hard decisions which terrorism confronts us with. But as important as hashing out those arguments is the need for--as Tim Burke put it while engaging in just such a hard and drawn-out argument--"drawing some lines in the sand." The law President Bush signed yesterday is an overreaction, and a dangerous one. Thanks to Michael's hard work through Traces in collecting and sharing these stories, perhaps many more will start asking questions that will lead them to conclude the same.