Why Internment of Japanese Americans is an outrageous Model for registering Muslim-Americans

By Juan Cole | (Informed Comment) | – –

Trump adviser Carl Higbie told Megyn Kelly on Fox “News” that the new administration wanted to create a registration list of US Muslims, and he compared this step to the interment of the Japanese Americans during WW II:

“It is legal. They say it’ll hold constitutional muster. I know the ACLU is going to challenge it, but I think it’ll pass,” Higbie said. “… We did it during World War II with Japanese, which, you know, call it what you will, maybe —”

What is truly weird is that Higbie volunteered to compare such a registration list to the internment of Japanese Americans. It raises questions of just how far zealots such as he are willing to take this hatred of Americans of Muslim faith.

The internment of Japanese-Americans was not a policy precedent but a massive crime against innocents who had not been proven to have done anything wrong. Many Japanese-Americans fought bravely in the US military even while their families had lost their homes.

This is sort of like saying, of course the Federal government can commit genocide. Why, we did it to the Native Americans.

Just on moral grounds, Higbie’s proposal is creepy, and it immediately harmed the morale of Muslim-Americans and harmed the image of the US in the Middle East.

Here are the reasons Higbie is wrong and likely such a registry would be struck down by the courts:

1. Islam is a religion. No one reasonable person denies this simple fact. The first Amendment of the constitution forbids the Federal government to prohibit the free exercise of religion or to favor one religion (Establishment) over another. So you can’t register one religious community without the others. That would be a de facto Establishment of e.g. Christianity. Moreover, making members of only one religion register would interfere with their free exercise of their religion. The only way the government got away with the internment of Japanese Americans was by a specious argument from national origins, suggesting that Japanese-Americans could not remain loyal when their two countries were at war. If the Roosevelt administration had tried to round up all Buddhists in the country, that measure would have been struck down.

2. The Right wing talking point that non-citizens in the US are not protected by constitutional rights is a falsehood, as demonstrated by a series of Supreme court rulings.

3. The Supreme Court case Ex Parte Endo found that the US government had acted improperly and that individuals could not be removed from their homes unless there was proof that they as individuals had acted disloyally. In other words you can’t punish a whole community out of mere suspicion.

4. A raft of lawsuits by Japanese-American victims in the 1970s and 1980s, although they narrowly failed in the courts, put pressure on Congress, which awarded the equivalent of $40,000 per person in reparations in 1988. This law was an admission of guilt and can now by cited in court by Muslim Americans.

Actually, if the Trump administration does anything about a registry, it will likely just reinstate the Bush administration program of requiring registration of certain categories of non-citizen immigrants from select countries. Of Bush’s 25 countries, 24 were Muslim-majority. Since everyone from the designated countries had to register, it was not discriminatory and affected some Christians. Only about 80,000 people were registered in this way. The program probably harmed US security since the government sometimes used the registration to deport people who, e.g., slightly over-stayed their visas. The knowledge of these practices appears to have made Muslim-Americans afraid to talk to the authorities for fear they would make themselves a target. So the community as a source for crucial intel was taken off the table.

This latter step could be taken, but registering Muslims in general, and especially citizens, almost certainly would not be allowed by the courts. Even the registration of immigrant non-citizens from select countries will have adverse effects on our security. The policy could also harm Americans traveling abroad for e.g. business, since often such policies are reciprocal and there could be a tit for tat.

But actually, Higbie’s suggestion is just completely morally wrong. Very few long-term Muslim residents or citizens of the US have been involved in terrorism, and their numbers are dwarfed by the violence of far right wing white people, whom Higbie is not proposing to register.

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Related video:

Mediaite: “On Fox, Trump Supporter Carl Higbie Cites Japanese Internment Camps As Precedent For Muslim Regist”

25 Responses

  1. Muslims are just the latest in the series of indispensable enemies the USA seems to need in order to blame someone else. The wrongdoing of the US leaders and authorities could never be the cause of tragedies or chaos.

  2. I don’t really see how one can say who is a Muslim as being a Muslim is a state of religious belief and not a specifically defined race. I know plenty of Muslims over here in the UK who are completely white and as English as the next man. There are millions of dark skinned people in America who have no religion or are rabid followers of other faiths. Perhaps you can tell me prof, if Americans have to have any form of identity papers on which they have to state their religion? Over here in the UK we don’t have any form of identity papers and so don’t have to produce them or carry them. We have passports (only if we want them) and driving licences but religious affiliation doesn’t appear on them. I thought the persecution of people for their religious belief in the ‘Western’ world had died out hundreds of years ago.

    • “Perhaps you can tell me prof, if Americans have to have any form of identity papers on which they have to state their religion?”

      The answer is no, Americans do not have to state their religion on any form of identification, e.g., driver’s license, passport, etc.

  3. We could all do what they did in “spartacus” (I am spartacus; no , I am Spartacus). We could all wear a little square yellow patch which, translated, means “peace be upon him”. or if arabic is too scary, PBUH. We could then rush down to the nearest registry and overwhelm them with our enthusiasm to get registered.

  4. Unfortunately, your arguments would be parried using various legal maneuvers. The problem is that this is an unpopular minority and demagogues can use that fact to do what they want. Laws will be written to justify the crime.

    The origin of the problem lies elsewhere. It is the wars! Many horrible things; torture, assassination, spying on citizens, and internment, are all justified with the statement “but we are at war.”

    War is corrosive to society. Strong societies can withstand a period of war for a limited time but the damage becomes cumulative. Even the 4 years of WWII (a real war) resulted in the internment of the Japanese and spying on innocent Americans. Look at the damage that 15 years of war (an adventure really) has done to the US.

    Until we end these wars we will be continually discussing which vital liberty we must give up because of “The War”.

  5. ¿Is not immigrant entry an ipso facto registry?
    Oligarchy includes paranoia; don’t feed oligarchy.

  6. How can you say registering immigrants from Muslim-majority countries was not discriminatory? The number of Christians it impacted was minimal. Registering is akin to an ankle bracelet – some had to have monthly check-ins – without any proof of wrongdoing, someone would have to register just because he or she happens to have been born in a Muslim country? And that’s okay because it only affected non-citizens? It takes a very long time to become a citizen…

  7. And today we learn that Trump’s nominee for Attorney General Is Senator Jeff Sessions. Sessions probably holds the same views as Higbie since he is a fervent anti-immigrationist and has a racist past. So, it looks likely that something similar to a national registry will be attempted. Regarding your Point #2, I think this is something important that not many people are aware of. The Constitution uses the term person or people in most instances when talking about rights and limits on government. About the only time it uses the term citizen is when referring to qualifications for holding Federal public office. This was not a coincidence. The rights and privileges of the Constitution extend to all people in the US, whether they are citizens or not. Visitors upon entering lose some 4th Amendment rights and there are other exceptions like that, but even a visitor accused of a crime is still afforded the rights of the Constitution like the 5th, 6th and 8th Amendments. And any legal resident (i.e., green card holder) has all the rights and protections of all citizens. Finally, for those who said Clinton was no better than Trump, please hang your head in shame and do some penance (a contribution to the ACLU would be good).

  8. This is how “effed up” things have become: The Trumpistas are so unhinged from sanity that even Megyn Kelly is calling them out. Kudos to Kelly for trying to force Higbie to offer a coherent explanation of his supremely idiotic idea about internment. Unfortunately, if Jeff Sessions does get confirmed as the next AG, Higbie may very well get his way.

    People, I do hope one takeaway from this unfolding nightmare is that VOTING MATTERS! About half the country’s eligible voters sat this one out because they were too busy doing – who knows? And of the minority that did actually vote, too many were purists or Bernie folks sore about what happened to their guy. OK, fine. So Hillary wasn’t a political virgin and we would have had to push her hard on some agenda items. But rest assured, we would not be flipping out over the nomination of an outright racist retrograde from the “good ol’ days” or worrying that some nitwit in the administration would suggest we apply the mass incarceration of the Japanese to the current day.

    It just gets worse & worse & worse.

    • “About half the country’s eligible voters sat this one out because they were too busy doing – who knows?”

      A couple of days after the election, ABC Evening News covered one of the anti-Trump demonstrations. One young adult in the demonstration was asked if he had voted, and he replied he had not. The interviewer then said, “So you are protesting an election in which you did not participate.” The protester sheepishly agreed.

      It reminded me of the Occupy Wall Street movement of a couple of years ago. In Washington, DC there was an encampment of OWS protestors in one of the public squares. One protester being interviewed said he had quit his job in Florida to come to DC and protest unemployment!!!

  9. The Civil Rights Act of 1964 forbids discrimination based upon religion – and was not in effect when the Japanese-Americans were assigned to relocation centers during WWII.

    Title VI of that U.S. act forbids federal funding of any governmental agency that engages in such offensive discrimination. All federal agencies must adhere to the officially-enacted legislative policy of the U.S. Congress that prohibits that invidious discrimination.

    It would take an Act of Congress to make an exception for proposed “Muslim registration” – which will never happen. If Mr. Trump attempted such action by executive order, it would expose those officials responsible for its implementation subject to federal civil rights suits.

    The ACLU would have a proverbial field day with such proposed registration – including 14th Amendment Due Process Clause challenges on a “void for vagueness” theory as to the issue as what constitutes a “Muslim” and “shocking the conscience” standard substantive Due Process Clause arguments.

    I do not believe any Trump administration lawyer could – with a straight face – argue the legality of such a registration requirement.

    • “The ACLU? What was that? Wasn’t that one of those pinko organizations like Planned Parenthood and ACORN that got run out of business by a right-wing smear campaign overseen by Steve Bannon, like around 2017 or 2018?”

      You know, the Federal civil rights suits would be presided over by the very judges Trump will be appointing and the Republican Congress will be rubber-stamping. America has a proud history of ignoring chunks of its Constitution based on ethnicity.

      • “…..the Federal civil rights suits would be presided over by the very judges Trump will be appointing and the Republican Congress will be rubber-stamping…..”

        Federal judges are appointed for life and in Detroit, for example, we have U.S. District Judges that were appointed by Carter or Reagan still in office hearing cases; even though Barack Obama has completed almost two presidential terms – only a small percentage of the local federal judiciary in Detroit are Obama appointees – only 7 of the 29 active members of the bench.

        If right-wing extremist judges are nominated, the minority Democrats in Congress can delay the process almost indefinitely. Further, Democrats could conceivably control the U.S. House following the 2018 elections.

    • If you think those laws you cite will mean anything to Jeff Sessions’ Justice Department, Paul Ryan’s House of Representatives, or Mitch McConnell’s Senate, you have more faith in them than I do. You probably believe in the tooth fairy, too. Lawyers are not going to be the answer.

    • The Bush Administration got away with torture, a war crime and a crime prohibited by US law because of toady attorneys in the White House and Attorney General’s office. After Trump got elected, we can’t take anything for granted. Scalia, for example, argued with a straight face that waterboarding was not a violation of the 8th Amendment’s prohibition of cruel and unusual punishment because it wasn’t punishment.

      • In reality, the federal courts struck down much of the Bush administration’s conduct – especially regarding Guantanamo Bay.

        The federal courts upheld the prisoners’ rights to habeas corpus review and reversed many convictions while also declaring the Act of Congress that created the military tribunals for Guantanamo Bay to be unconstitutional.

        Although many of the atrocities of Guantanamo Bay have not been remedied, the defense attorneys appointed to represent the inmates and the federal courts have issued many setbacks to the U.S. Department of Justice.

  10. Not all bad news today:

    “As Jews, we know what it means to be registered and tagged, held out as different from our fellow citizens,” Jonathan Greenblatt, Anti Defemation League (ADL) CEO, said on Thursday at the group’s Never Is Now conference on anti-Semitism in New York.

    “As Jews, we know the righteous and just response. All of us have heard the story of the Danish king who said if his country’s Jews had to wear a gold star…all of Denmark would too.

    “So I pledge to you right here and now, because I care about the fight against anti-Semitism, that if one day in these United States, if one day Muslim-Americans will be forced to register their identities, then that is the day that this proud Jew will register as a Muslim.”

  11. So George Carlin was right after all. You Americans have no rights, only priviliges which van be taken away from you at will.

  12. Higbie is a Trump supporter not a Trump policy maker. Much of this anti-Arab rhetoric was likely electioneering. Trump didn’t create it, it was already there, he just seized on it and exploited it for all it was worth. He may have coaxed some of it out of the closet but he didn’t put it in there. That anyone is able to do that is a comment on the US political system which although it defines itself as democratic, simply isn’t. Having ‘free and fair elections’ is not democracy, democracy is the debate that precedes a vote, the vote itself is the signing off of the process. A vote without a full and all embracing debate is like employing a table napkin without having eaten. On another tack, US racism largely focuses on Arabs right now because the US is at war with so much of the Arab world, and in order to go out and kill people you have to work up a high degree of negativity about them. This always happens; I am old enough to remember it levelled at Germans in WWII, and there are plenty of cartoon caricatures of the French still around from the Napoleonic wars. So it’s nothing new. There is also a direct relation between economic hardship and racism.

    In his acceptance speech Trump expressed two policy purposes which are maybe relevant. The first was to attend to restoring the US infrastructure. Considering the state of much of it, that is a mammoth undertaking which would provide much employment and pour countless billions into the US economy. The other was his expressed intention to ..get along with all other nations willing to get along with us. We will have great relationships. …We will deal fairly with everyone. All people and all other nations. We will seek common ground not hostility, partnership not conflict. which could mend a lot of the other kind of bridges. Is it not reasonable to give as much credence to such rational intentions as to his electioneering braggadocio?

    • Is it not reasonable to look at Trump’s history as a serial fraudster (who just settled his Trump University fraud lawsuit for $25,000,000, a true first for an American president) with four bankruptcies and endless failed hotels as a model for what his “infrastructure” project will be?

      He’s also going to be the first president to maintain his giant corporation from the White House, by letting his children run both. You don’t have to be Naomi Klein to understand what happens when a “giant infrastructure program” is run by the same nepotist spawn who also run a giant construction racket. Tell me what happened to all that public infrastructure in Latin America and Russia, how that was going to be revitalized by corporate involvement?

      Name a single elected leader of a 1st-world nation who has ever spewed the paranoia, racist myths and conspiracy theories seen from this demagogue. You’d have to go pretty far back into the West’s racist past. Which is exactly the point in assuming that’s the plan now.

      • Name a single elected leader……who has ever spewed the paranoia, racist myths, and conspiracy theories seen from (Trump).

        ANSWER: Israel’s recent Likud Party prime ministers have been elected and survived by creating a “siege mentality” to unify their electorate against Palestinian Arabs whom they demonize and see as bent on destroying them and the State of Israel.

        Marine Le Pen in France may be elected president there and has welcomed Trump’s election as U.S. president. She is supportive of “Frexit” and instituting tough anti-immigration measures. She has joined Israel in her concerns over the need to implement successful counter-measures to radical Islam, which she perceives as a serious terror threat.

        PM Netanyahu and Ms. Le Pen could, in the future, join Trump in creating a tripartite political axis in promoting an international ultrarightist agenda using an anti-terror, anti immigrant, and trade protectionist mantra.

    • I find your naivete to be rather incredible. Trump changes his positions as often as person with a cold changes Kleenex. He just settled the Tump U fraud case after insisting for over a year he would never do that. Only a fool would believe this guy.

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