Dec. 7, 1941 v. Sept. 11, 2001 What is the Correct Government Response? By Paul E. Kerson

Dec. 7, 1941 was the Day “that shall live in infamy” in the words of President Franklin D. Roosevelt. The Government of Japan’s Air Force had attacked the U.S. Naval Base at Pearl Harbor adjacent to Honolulu, Hawaii.

Congress declared war on Japan the next day. See 55 Stat. 795 (1942).
On Feb. 19, 1942, President Roosevelt issued Executive Order # 9066, which permitted U.S. Military Commanders to exclude from “military areas” such persons as may commit espionage or sabotage against the United States.

On Feb. 20, 1942, the Secretary of War designated “the entire Pacific coast” as the Western Defense Command and assigned General J.L. Dewitt as Military Commander.  On March 24, 1942, General Dewitt issued Public Proclamation #3, limiting the movements of “all alien Japanese, all alien Germans, all alien Italians and all person of Japanese ancestry” from most of the Western Defense Command.

On May 3, 1942, Public Proclamation #4 was issued directing the evacuation of all persons of Japanese ancestry (whether U.S. Citizens or not, and not persons of German or Italian ancestry) from their homes to “relocation centers” much further inland.

In 1942, 112,000 persons of Japanese descent resided in California, Washington State and Oregon. 62% were American citizens. They were compelled by the Federal Government to sell their homes and businesses at a loss and were forcibly removed to Government “relocation centers” (read prison camps) in Wyoming, Utah, Idaho and Colorado, where they were not permitted to leave until World War II was over in 1945.  See, page 1 of 26.

These folks received a three year prison sentence, without trial, for doing absolutely nothing.

The U.S. Supreme Court thought this was a perfectly fine idea.

In Korematsu v. U.S., 323 U.S. 214, 65 S.Ct. 193 (1944),  the Court held:

“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can…

We uphold the exclusion order as of the time it was made and when petitioner violated it…In so doing we are not unmindful of the hardships imposed by it upon a large group of American citizens…

But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.

Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.” See 323 U.S. at 216, 219-220.

In Hirabayashi v. U.S., 320 U.S. 81, 63 S.Ct. 1375 (1943), another
case involving imprisonment of Americans of Japanese ancestry, the U.S. Supreme Court described the imminent danger threatening the United States in 1942:

“The actions taken must be appraised in light of the conditions with which the President and Congress were confronted in the early months of 1942…On Dec. 7, 1941, the Japanese air forces had attacked the United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department ostensibly for the peaceful settlement of differences between the two countries.

Simultaneously, or nearly so, the Japanese attacked Malaysia, Hong Kong,  the Phillipines and Wake and Midway Islands. On the following day, their army invaded Thailand. Shortly afterwards they sank two British battleships. On Dec. 13th, Guam was taken. On Dec. 24th and 25th they captured Wake Island and occupied Hong Kong. On Jan. 2, 1942, Manila fell, and on Feb. 10th, Singapore, Britain’s great naval base in the East, was taken.

On Feb. 27th the battle of the Java Sea resulted in an disastrous defeat for the United Nations. By the 9th of March Japanese forces had established control over the Netherlands East Indies; Rangoon and Burma were occupied; Bataan and Corregidor were under attack.”
See 323 U.S. at 93-94.

Did this military assault by Japan against the world justify the three year imprisonment, without trial, of 110,000 Japanese-Americans?

In 1980, 38 years late, the U.S. Congress established a Commission to study this question. In 1988, the Congress concluded that this wrongful imprisonment was not justified. The Civil Liberties Act of 1988 was passed, providing for a $20,000 payment to each surviving Japanese-American detainee, a total of $1.2 billion.

In 1992, Congress passed the Civil Liberties Act Amendments of 1992, providing for an additional $400 million to complete these payments to the 82,210 Japanese-Americans and their heirs. On the 50th Anniversary of the Pearl Harbor attack, Dec. 7, 1991, President George H.W. Bush said:

“In remembering, it is important to come to grips with the past. No nation can fully understand itself or find its place in the world if it does not look with clear eyes at all the glories and disgraces of its past. We in the United States acknowledge such an injustice in our history. The internment of Americans of Japanese ancestry was a great injustice, and it will never be repeated.” See Wikipedia entry cited above at page 16. (emphasis added).

Nearly 60 years later, we were attacked again, on Sept. 11, 2001. This
time, it was not an attack by a nation-state. Instead, a non-governmental organization (NGO) attacked us using our own civilian airliners. The World Trade Center in New York and the Pentagon in Virginia were hit, costing thousands of lives. The World Trade Center fell, and an additional airplane crashed in Pennsylvania.


Of course, now that we are in the 21st century, we did not make the same mistake in the same way. We wisely did not imprison Arab-Americans only. No, this time, we imprisoned the most personal information about each and every one of ourselves.

Apparently, when we weren’t paying close attention, the U.S. Government hired 854,000 people and gave them Top Secret Security Clearances. Every e-mail and telephone call metadata (numbers and time of call) is grist for their mill. Gigantic secure buildings have been constructed in Maryland and Virginia to house this operation. (This number of “top secret” employees is 1.5 times the population of Washington, DC Itself.)

Every day, 1.7 BILLION e-mails, telephone calls and other communications are intercepted. Our current national intelligence operation was described by one official as “…a zombie, it keeps on living.” See Top Secret America – A Washington Post Investigation, July 19, 20, and 21, 2010, Dec. 4, 2010…page 5 of 7 of July 19, 2010.

The benefit from all this imprisonment of our most personal information is approximately the same benefit we got from imprisoning our fellow American citizens of Japanese descent, that is, zero:

“Beyond redundancy, secrecy within the intelligence world hampers effectiveness in other ways, say defense and intelligence officers. For the Defense Department, the root of this problem goes back to an ultra-secret group of programs for which access is extremely limited and monitored by specially trained security officers…

These are Special Access Programs – or SAPs – and the Pentagon’s list of code names for them runs 300 pages…’There’s only one entity in the entire universe that has visibility on all SAPs – that’s G-d,’ said James R. Clapper, Undersecretary of Defense for Intelligence…
See Wikipedia entry above, page 6 of 7 of July 19, 2010.

It is probably much too late and too difficult to un-build an 854,000
Person Top Secret Federal Government bureaucracy. And who knows, maybe they might uncover a “terrorist” plot this way. (I rather suspect that undercover government agents who speak Arabic based in Arabic countries would do a much better job than an “analyst” reading e-mail in a “secure” office building in Baltimore, but then again, I am not running things, am I).

There appears to be no record of any Japanese spies arrested in the internment camps of 1942. I suspect our 854,000 tax supported e-mail readers of 2013 will yield the same result, zero.

(If a potential terrorist knows we are reading all e-mail and monitoring all telephone calls, he just might decide to communicate with his fellow terrorists in a different way. Or did they not think of this in Washington? Just asking. Does anyone ask questions in Washington?)

But in the meantime, until this foolishness is dismantled (which may be never), we must protect ourselves from ourselves, and $20,000 apiece won’t do it. We need Amendment 4.5.

The existing 4th Amendment to the U.S. Constitution prohibits warrantless searches of “persons, houses, papers and effects.” This is no longer sufficient to carry out the Founders’ Intention to Create a Free Society.

We must enact Amendment 4.5 to protect ourselves from our 854,000 fellow Citizens who spend their workdays reading our e-mails and telephone call metadata:

“No publicly or privately stored electronic information of any kind may be used in any local, state or federal criminal prosecution without a court-ordered subpoena or warrant signed by hand in ink by a local, state or federal judge of competent jurisdiction after careful consideration.”

In 1988 and 1991, our Leadership publicly apologized for imprisoning our Japanese-American neighbors. Today, in 2013, our Leadership must publicly apologize to all of us for wrongfully imprisoning our most personal information for no legitimate public purpose.

They must pass Amendment 4.5 to protect all of us, and themselves, from the very same over-reaction in 2001 that we suffered from in 1942. “Those who do not learn from the past are doomed to repeat it.” To date, that is us.