The Torture Report and Korematsu‘s Shadow

Seventy years ago today–on Monday, December 18, 1944–the Supreme Court handed down its now-infamous decision in Korematsu v. United States, upholding the conviction of a Japanese American who refused to comply with exclusion and evacuation orders promulgated by General John DeWitt under the authority of President Roosevelt’s Executive Order 9066. Over at his eponymous blog, John Barrett has a great post up about yesterday‘s seventieth anniversary, since it was the day before Korematsu, on Sunday, December 17, 1944, that the U.S. government announced that it would be closing the internment camps as of January 2, 1945. As John writes, that announcement shows that “It was possible, and thus it is possible, for officials to wake up, to rethink, to change course, to improve behavior, to turn pages.  Even when officials act late, and even when they act in response to forces and developments that largely have forced their moves, such actions are the promise of self-government.” Given the events of the past week, the timing of this anniversary certainly seems fortuitous.

But there’s an irony to this story, and one that my former colleague Patrick Gudridge recapped in an elegant (and eloquent) 2003 Harvard Law Review article: The only reason why the Roosevelt Administration announced that it was closing the camps on December 17 was because it had been tipped off (by Justice Frankfurter, the conventional wisdom suggests) about what was coming on December 18–not Korematsu, but its companion case, Ex parte Endo, in which the Supreme Court would hold that the government could not detain loyal Japanese Americans who, unlike Korematsu, had voluntarily complied with exclusion and evacuation orders. In other words, Endo would have held that the detention of an overwhelming majority of the Japanese Americans confined in internment camps was unlawful. Thus, as Pat wrote 11 years ago, “Endo closed the camps,” or, at least, it would have–had the government not beaten the Court to the punch.

Leaving aside the (fascinating) historiography of Korematsu and Endo, their 70th anniversary comes at a propitious time, since public discourse is atwitter with discussions about government excesses during wartime, and whether they can be justified based upon claims of moral necessity. There are lots of reasons to be critical of Justice Jackson’s dissenting opinion in Korematsu (which Eugene Rostow once called “a fascinating and fantastic essay in nihilism,” and which Peter Irons described as “a curious kind of judicial schizophrenia.” But the one thing I think Jackson got exactly right in his opinion was the vital significance of distinguishing between what’s legal and what’s necessary. In his words:

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. . . . [A] commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. . . .

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

Although, as I tried to explain in my post last week, we’ve come to learn many of the right lessons from the painful stain on our historical memory that was the Japanese American internment camps, the debate that last week’s disclosure of the Executive Summary of the SSCI torture report has engendered suggests to me that we’ve nevertheless failed to take Jackson‘s lessons seriously in two different, but equally important respects:

First, we’ve failed to recognize that moral necessity, insofar as it can even be properly assessed, has no bearing on legality. That is to say, whether or not torture ever “works” (as I’ll explain in a future post, the SSCI report makes abundantly clear that the CIA couldn’t even satisfy its own standard for “success”), it’s always illegal, period. And there’s a good reason for distinguishing between what might be “necessary” and what’s legal; as Jackson explained, “even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.”

Second, and as importantly, we haven’t done nearly enough to differentiate between the individual line officers who committed the despicable acts described in detail in the Executive Summary (whose patriotism is an increasingly distracting–and irrelevant–source of debate), and those senior government lawyers who found increasingly disingenuous ways to rationalize those acts to the law and to obfuscate the torture program from other accountability and oversight mechanisms. Individual acts of torture are criminal, but they’re far less dangerous to the rule of law than coordinated efforts to rationalize such criminal conduct to the laws and Constitution of the United States. As Jackson understood, the real sin of internment wasn’t the policy; it was Justice Black’s majority opinion in Korematsu that purported to explain why a conviction for violating a patently racist military order was constitutional.

So, if you do nothing else to commemorate Korematsu‘s 70th anniversary, re-read Jackson’s dissent. Its shadow looms increasingly large over the debates sparked by the torture report… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).