The Crucifixion of the Executive
Subtitle: Time Is a Quagmire
This is post was initiated upon reading Donald Trump's interview in Time where he said he couldn't say for sure whether he would have done what President FDR did and interned American citizens of Japanese-decent during World War II.
The legal argument is easy: There is no Constitutional authority for the US government to imprison Americans when they have done nothing wrong.
But, of course, FDR didn't really give a hoot about the Constitution and that's how we got the New Deal. And if I read Mr Trump right, he's probably the same. He'll come up with argle-bargle to justify whatever he decides wants to or has to do. It is a contemporary political quirk that the interment of Japanese in WWII is a such a dangerous third rail, but President Obama does not suffer for assassinating/executing an American and his 16 year old son in Yemen because that American was speaking his mind in ways that was punching holes in the current administration's foreign and domestic security policy. So... so much for the the Constitution.
The easiest attack on any executive decision is to wait for something bad to happen that can be tied to that decision. The context of the decision will be mostly lost. The bad events will be viewed within the narrow perspective what what historically happened. Not with the uncertain future that was faced when the decision was made. The best defense in that case of any person given the responsibility of Decision-Making is the one that is so hard it is almost pointless: What would have happened if we had not done it? This is especially vexing for the executive when there was no vigorous resistance against the decision at the time (or even general, positive approval ala The Iraq War).
So, that's a question I want to ask here, What was the possible downside to not interning Japanese? What might have happened?
Nobody at the time knew of the event that probably had the greatest single impetus for the decision to intern all Japanese: The Battle of Ni'ihau. In summary, a Japanese pilot was shot down during the Pearl Harbor Attack. He landed on the tiny remote, rural Hawaiian island of Ni'ihau. The residents had no direct contact with the mainland and didn't know initially about the attack. On this island there were exactly three people of Japanese descent, the only people who could directly converse with the pilot and knew immediately about Pearl Harbor. Two Americans and one immigrant. All three quite quickly began to conspire for the pilot -- eventually, violently -- against their neighbors.
Why did the Federal government keep the details of the event secret until 1956? Likely, because revealing that 100% of Japanese on the island of Ni'iahu quickly turned against the US it would have led to a panic that would have then led to an effective genocide of all people of Japanese heritage in the US -- maybe of all Chinese and anyone who looked like they might have been Japanese.
What if the Defense Department had considered the Constitutional rights of Japanese Americans and opted to not treat Japanese Americans as an active security threat? And then suppose (as was almost inevitable) a Japanese American was caught conspiring with the enemy to do something that cost American lives? What would have been the public reaction then? Would you have wanted to be one of the tiny minority of Japanese-descended people in America in that case? This happened with German Americans in both WWI and WWII, but if you were an American of German descent, you could just change your last name and move. Japanese couldn't just Americanize their names and manners and move on. There were other reasons I think for why German Americans proved to be view as less of a risk than Japanese immigrants and citizens.
But the question remains, Did FDR's decision prevent an event that would have led to an irreparable stigma on all Japanese within the United States?
The problem is that the answer is unknowable. FDR's illegal act might have had a better practical result than following the Constitution. Or it might not. It is more that merely arguable that the Japanese on a remote island (technically American soil but it probably didn't feel that way) were not a good proxy population for the Japanese living in San Francisco. The reason we have a Constitution that is not supposed to be malleable to contemporary events is that it will constrain the government from acting (without the difficult process of obtaining an Amendment) when certain authoritarian courses of action seem like such a good idea.