I’m in partial agreement with Eric Muller’s Japanese Internment Gets A New Breath of Life in the Eastern District of New York.
Turkmen v. Ashcroft (EDNY, per John Gleeson) is an ugly decision, ratifying ugly conduct (but not ratifying the claims as to cruel conditions of confinement nor as to violations of the right of free speech while confined). I do not think that the court is right that if the plaintiffs could prove that the government singled them out on grounds of religion, race or ancestry and chose to hold them longer than necessary before deporting them that this can never state a legal claim for relief. It will be appealed.
But here’s the caveat: It’s important to note that the decision applies only to admittedly illegal immigrants (“plaintiffs concede that they were lawfully arrested for violating the terms of their admission to the United States”). I think that significantly limits the ill of this ruling, although it doesn’t excuse it. It doesn’t actually justify anything close to the Japanese internment camps, which included many US citizens, legal residents, and others who were in the country legally.
But Eric knows much more about this than I do, so perhaps he’ll let me know what I’m missing…
Update: Eric explains.
Michael, while it is true that the plaintiffs in the EDNY case are all illegal aliens (or at least alleged to be such), Judge Gleeson cluttered his opinion with language cast far more broadly than those facts. It’s dictum, to be sure, but the only distinction Gleeson draws in the relevant part of his opinion is a distinction between citizens (as to whom a detention power is judicially constrainable) and aliens (as to whom it is unfettered). It is the breadth of the language to which I so strongly object, and which calls forth the analogy to the indefinite detention of Japanese aliens in WWII.
You’re right, too, that the Japanese American internment affected citizens as well as aliens, but that aspect of the Japanese American internment of WWII is not what Judge Gleeson’s dictum implicates.
(And in any case, I do not argue that the government’s treatment of the allegedly illegal aliens in this case is factually analogous to the multi-year incarceration of Japanese aliens; I argue instead that the legal theory that Judge Gleeson presents in dictum would support the incarceration of the Issei.)
(And in certain respects, by the way, the allegations in this case are *worse* than the internment of the Issei; these plaintiffs allege various kinds of physical and verbal abuse by government officials that are harsher than most of what the Issei endured. Those allegations, incidentally, remain alive in the lawsuit.)