Denunciation then and now: Korematsu and CIA Torture

Just over a week ago the Pew Research Center published the results of their poll on the American public’s reaction to the content of the Senate Intelligence Committee’s “CIA Torture Report”, the huge report released PewPoll_CIAtortureby outgoing Democrat Senator Diane Feinstein on the CIA’s “enhanced interrogation techniques” during the months immediately after the September 11, 2011 attack on the World Trade Center and the Pentagon.

A table showing the detailed results is at right, but it can be summed up by saying that the public seems to be much more understanding of the exigencies of the time than the left wing media would prefer them to be.  While I don’t think that sleep deprivation and waterboarding can be appropriately defined as torture, they certainly are practices better left to the regimes of South American dictators than to the repertoire of the United States government.  Still, the judgment cannot be intelligently made without an understanding and consideration of the circumstances.

In considering this national guilt spasm initiated by Senator Feinstein’s questionable release of the report, I am reminded of the condemnations that took place in the decades after World War II over the U.S. government’s internment of the Japanese in the months after the attacks on Pearl Harbor.  Indeed, the condemnations are even now not so far removed, as conservative author Michelle Malkin found when she wrote a heavily criticized book just ten years ago entitled “In Defense of Internment”.  In her book, Malkin argues that, in hindsight, the internment may have been unwarranted, but at the time the fear of sabotage by the Japanese living along the west coast was plausible and very real, and that fear cannot simply be dismissed from the arguments.

Today, in the minds of many, the issues surrounding the Japanese internment are encapsulated in Korematsu versus United States, a landmark case in which SCOTUS upheld President Franklin Roosevelt’s 1942 Executive Order #9066, which directed all Japanese Americans to report for internment in a series of camps established at various points around the lower 48 states.  Here’s an excerpt from the WikiPedia page on the case:

In a 6–3 decision, the Court sided with the government, ruling that the exclusion order was constitutional.  Six of eight Roosevelt appointees sided with Roosevelt.  The lone Republican appointee, Owen Roberts, dissented.  The opinion, written by Supreme Court justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu’s individual rights, and the rights of Americans of Japanese descent.  (The Court limited its decision to the validity of the exclusion orders, adding, “The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding.”)  During the case, Solicitor General Charles Fahy is alleged to have suppressed evidence by keeping from the Court a report from the Office of Naval Intelligence indicating that there was no evidence that Japanese Americans were acting as spies or sending signals to enemy submarines.

The decision in Korematsu v. United States has been very controversial.  Korematsu’s conviction for evading internment was overturned on November 10, 1983, after Korematsu challenged the earlier decision by filing for a writ of coram nobis.  In a ruling by Judge Marilyn Hall Patel, the United States District Court for the Northern District of California granted the writ (that is, it voided Korematsu’s original conviction) because in Korematsu’s original case, the government had knowingly submitted false information to the Supreme Court that had a material effect on the Supreme Court’s decision.

Even the Obama administration has gotten into the act.  Judge Patel’s ruling notwithstanding, SCOTUS has never explicitly overturned their decision in Korematsu v. United States.  However, in 2011 Eric Holder’s Department of Justice filed an official notice stipulating that the decision was in error, thus erasing the case’s value as precedent for interning citizens.

For more information on Fred Korematsu, who died in 1985, click his WikiPedia page, HERE.  Likewise, for more information on Korematsu versus United States, that WikiPedia page is HERE.