2005 Watching the Watchers

Watching the Watchers

Watching the Watchers:  Enemy Combatants in the Internment’s Shadow, 68 J. L. & CONTEMP. PROBS. 255 (2005) (peer-reviewed).

Abstract

In Denying Prejudice: Internment, Redress, and Denial (2004), I tried to further a careful remembering of the internment as precedent and parable by holding the judiciary to account. The accounting was for what it did not only in the 1940s internment cases decided by the Supreme Court, but also the less well-known 1980s coram nobis cases decided in the Ninth Circuit. My objective was to unmask the sophistic ways that the judiciary avoided accountability for the racist civil rights disaster. Using techniques often praised as minimalist, the judiciary in the 1940s avoided accountability on the part of the President and the Congress. With a straight face, the Court held that the internment camps were never authorized by the political branches; rather, they were an ultra vires frolic committed by a civilian agency called the War Relocation Authority.

I also showed how, in the 1980s, again using minimalist tactics, the Ninth Circuit Court of Appeals quietly whitewashed history in the very act that granted relief to those who challenged internment. In granting the writ of error coram nobis and thereby overturning Gordon Hirabayashi’s criminal convictions, the Ninth Circuit simultaneously excused the wartime Supreme Court of any wrongdoing. The official explanation inscribed into the federal reports was that the Court was duped by a handful of unethical Executive Branch lawyers. Accepting this convenient falsehood as the truth allowed another denial of accountability, this time on the part of the judiciary itself.

This Article asks whether the judiciary is repeating this strategy of denial in the enemy combatant cases. In other words, is the judiciary exploiting similar interpretive and procedural tactics in order to satisfy the dogs of war while simultaneously creating plausible deniability for those who unleashed them? In addition, are we witnessing a rehabilitation of the internment cases? My net assessment is mixed, with good reasons for both optimism and alarm.

  • Keywords: internment, enemy combatants, korematsu, hirabayashi, yasui, endo, minimalism, passive virtues, judicial accountability, coram nobis, terror, torture
  • [download published version @ SSRN]