Kilroy Was Here
February 20, 2003
What If You Do Not Look American
This is a great column in the San Francisco Gate's website by Annie Nakao. I can't add to it, so here it is.
What if you don't 'look American'?
Annie Nakao
Thursday, February 20, 2003
URL: http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/02/20/DD221293.DTL
I used to keep a black-and-white photo of Fred Korematsu on a wall of my cubicle at the old Examiner. He was an old man by then but dapper in his herringbone suit. I kind of liked him watching over me.
Fred's now 84 years old. He won my high regard years back, in 1983, when he stood up in a San Francisco federal courtroom seeking to throw out his then 41- year-old conviction for defying World War II military orders removing Japanese Americans from the West Coast -- a conviction upheld by the U.S. Supreme Court in 1944. This is what he said:
"According to the Supreme Court decision regarding my race, being an American citizen was not enough. They say you have to look like one, otherwise they say you can't tell a difference between a loyal and a disloyal American. I thought that this decision was wrong, and I still feel that way. As long as my record stands in federal court, any American citizen can be held in prison or concentration camps without a trial or a hearing. That is if they look like the enemy of our country."
Judge Marilyn Hall Patel threw out the conviction on finding that the U.S. Justice Department suppressed evidence that there was no military necessity for the internment.
I reread Korematsu's statement in a slim softcover book I had sitting on my shelf for a few years. I had been thinking a lot about the profound impact Sept. 11, 2001, has had on the country and wondered if the book had any useful history. The 209-page volume, "Race, Rights and the Asian American Experience, " by civil rights attorney Angelo N. Ancheta, turned out to be both revelatory and disturbingly instructive in these times.
It's not a legal text but a historical overview of how immigration laws and the legal system played a central role in the racialization of Asian Americans as outsiders, foreigners and "unassimilable masses," and how high-court decisions, including the upholding of the Chinese Exclusion Act of 1882 and the internment of Japanese Americans in 1942, have never been overturned or modified. They are still on the books today as legal precedents.
"Foreigner racialization," wrote Ancheta, "is clearly most dangerous during times of war, when the 'national interest' can trump any interest in protecting civil rights. Arab Americans and others who may be racialized as 'terrorists' face the greatest threat from star-chamber procedures that seek to protect national security -- paralleling the experiences of Japanese Americans who were interned in the interest of wartime national security." He wrote this in 1998.
But here's the scarier part. Ancheta writes that the federal government's power is near absolute when it comes to immigration policy. That is because national sovereignty is regarded as an overriding governmental interest. Through its "plenary power" doctrine, the Supreme Court has deferred to the decision-making powers of Congress and the president in matters of immigration.
But the basis of that doctrine are high-court decisions that upheld racist exclusion laws that barred Asians from immigrating and becoming citizens.
Ireached Ancheta at Harvard University Law School's Civil Rights Project.
He fears that the current registration program "targets specific ethnic groups." Yet, such policies, he said, are "virtually immune to review by the courts. There are notions of the nation-state and the right to defend itself. But the basic question is power unchecked. It's like all power -- I don't think it should go completely unchecked."
In the end, we're left with Judge Patel's ruling.
"Korematsu remains on the pages of our legal and political history. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability."
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