Amicus Brief Compares Bush Detention of Arab and Muslim Aliens in US to Japanese Internment

My friend Eric Muller has filed an amicus curiae brief on behalf of Karen Korematsu-Haigh, Jay Hirabayashi, and Holly Yasui in the pending 2nd Circuit case of Turkmen v. Ashcroft.

Eric's blog entry is Today I Am Filing An Amicus Curiae Brief Challenging Post-9/11 Racial Detention. The brief is available for download, and there's also an article in today's New York Times, Relatives of Interned Japanese-Americans Side With Muslims. As the article notes,

In recent years, many scholars have drawn parallels and contrasts between the internment of Japanese-Americans after the attack on Pearl Harbor, and the treatment of hundreds of Muslim noncitizens who were swept up in the weeks after the 2001 terror attacks, then held for months before they were cleared of links to terrorism and deported.

But the brief being filed today is a rare case of members of a third generation stepping up to defend legal protections that were lost to their grandparents, and that their parents devoted their lives to reclaiming.

“I feel that racial profiling is absolutely wrong and unjustifiable,” Ms. Yasui, 53, wrote in an e-mail message from San Miguel de Allende, Mexico, where she works as a writer and graphic designer. “That my grandmother was treated by the U.S. government as a ‘dangerous enemy alien’ was a travesty. And it killed my grandfather.”

Professor Muller said he drafted the brief on behalf of the three grandchildren to try to persuade the Second Circuit to reject what he considers the needless breadth of Judge Gleeson’s opinion. “Judge Gleeson’s decision paints with such a broad brush, there isn’t really any stopping point,” he said.

The judge held that under immigration law, “the executive is free to single out ‘nationals of a particular country.’ ” And because so little was known about the 9/11 hijackers, he ruled, singling out Arab Muslims for detention to investigate possible ties to terrorism, though “crude,” was not “so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise.”

The brief counters that the ruling “overlooks the nearly 20-year-old declaration by the United States Congress and the president of the United States that the racially selective detention of Japanese aliens during World War II was a ‘fundamental injustice’ warranting an apology and the payment of reparations.”

And, it adds, the district court’s deference to the government “ignores the tragic consequences of such deference” for 120,000 people of Japanese ancestry during World War II.

Bravo Eric (& his team)!

This entry was posted in Law: Constitutional Law. Bookmark the permalink.

5 Responses to Amicus Brief Compares Bush Detention of Arab and Muslim Aliens in US to Japanese Internment

  1. Anonymous 1L says:

    Maybe it’s just me, but I see a significant difference between the actions of FDR and Bush: the Japanese-Americans were (mostly) American citizens, while the Muslims were (mostly) not citizens. Eric even acknowledges this difference: “the internment of Japanese-Americans . . . and the treatment of hundreds of Muslim noncitizens who were swept up . . . then held for months before they were cleared of links to terrorism and deported.”

    Please don’t misunderstand me – I think what happened in 1945 was and is indefensible. I say this because those who were rounded up were American citizens. Conversely, as I understand the matter,* those rounded up in 2001 were (1) not American citizens, and (2) already had some kind of immigration violation, such as an expired visa. In such circumstances, I think it is perfectly reasonable for the government to find, arrest, try, and (if necessary), deport those people. However, whether those rounded up in 2001 had their due process rights violated by sitting in prison for an extended time without charges being filed against them, etc., is a completely different issue.

    *If anybody has any information to the contrary, I’d be genuinely interested in seeing it. If any American citizens were illegally rounded up and deported in 2001, I think it might make the best case yet for impeachment proceedings (but that’s a topic for another day, and I don’t want to spark off a political flamewar)…

  2. Anonymous 1L says:

    Whoops…should have taken out the second “(mostly)” in the first paragraph. I really shouldn’t post and study at the same time.

  3. kumar bajaj says:

    I seem to recall that at the time of the congressional and presidential declaration

    of the injustice of interning japanese american citizens, George H W Bush announced

    publically that he “would never apologise for his country. the restitution, if memory

    serves, consisted of $20000 for each survivor, not for the surviving families of the

    internees. can anybody confirm this please? the apple it seems never falls very far from

    the wretched “parent Bush”

  4. Joe says:

    Anonymous 1L:
    As I recall, WWII ended in 1945 (May in Europe, September in the Far East). Japanese-Americans were incarcerated in 1942.

  5. Anonymous 1L says:

    Joe: you’re right…my mistake. Thanks for pointing it out.

Comments are closed.