On Thursday, Judge Posner led a work-in-progress Workshop on his forthcoming book, Not a Suicide Pact, which examines the inevitable trade-offs between security and liberty in times of national emergency. As always, Judge Posner made many provocative points. One struck me in particular, however. Judge Posner commended the Court's 2004 decision in Hamdi, in which the Court held that the government could not indefinitely detain an American citizen captured in Afghanistan, without giving him some sort of hearing in which he could contest the claim that he was an "enemy combatant." The details of such a heard were unspecified, but Judge Posner agreed that the Court was correct to insist on a fair hearing as a condition of extended detention. After all, why should we detain someone who is not an enemy combatant?
On other occasions, however, Judge Posner has defended FDR's decision in February 1942 to detain more than 110,000 individuals of Japanese descent, two thirds-of whom were American citizens, and lock them away in concentration camps -- men, women, and children -- for the better part of three years. None of these individuals was given a hearing. I wondered whether Judge Posner could reconcile his approval of both Hamdi and Korematsu. Hamdi involved the detention of an American citizen caught in a war zone in Afhanistan, and the Court held he had a right to a hearing to determine whether he was in fact an enemy combatat. But 80,000 Japanese-Americans, living peacefully on the west coast, were locked away in concentrations camps with no showing whatever that any of them had ever done or planned to do anything wrong. I pointed out to Judge Posner that the only hearing the Japanese-American were entitled to was on the question whether they were Japanese-American. Shouldn't they have had at least the same right as Hamdi to a hearing before a neutral and detached decisionmaker to decide if they posed a threat to the nation? If Hamdi is right, as Judge Posner concedes, then how can any less than a Hamdi-like hearing be granted to the Japanese-Americans who were interned in World War II? On the other hand, if Korematsu was correct, then surely Hamdi was wrong. A Muslim-American citizen picked up on the battlefield in Ahghanistan could be assumed to be dangerous to the U.S. with the same certitude that a Japanese-American living in Spokane could be assumed to be dangerous to the nation.
Complicating the picture even further was the willingness of the U.S. authorities in World War II to give due process hearings to every German and Italian national seized by the government, the vast majority of whom were released after their hearing. How can it be that we gave such a hearing to Hamdi, and to every German and Italian national in 1941-1943, but not to a single person of Japanese descent -- including 80,000 Japanese-Americans. The only plausible answer, the only answer that makes any sense, is that the treatment of the Japanese-Americans was tainted by racism. And, not surprisingly, since World War II, the nation have repeated acknowledged this error. Even President Reagan signed the Civil Liberties Restoration Act, which expressly apologized for this racist decision. This is all seem self-evident -- except to Judge Posner, who continues to cling to the idea that the internment and the decision in Korematsu were right because of the nature of the threat then facing the nation. Come on, Dick, admit it: The Japanese internment was wrong, wrong, wrong, wrong.One of the Supreme Court's greatest failures was its spineless decision in Korematsu upholding the executive order on the ground that it wasn't racist! You got it right in Hamdi. Now recognize that the Court was simply wrong in Korematsu!