IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"

Michael Froomkin is asking good questions about the trials at Guantanamo.

In her book "In Defense of Internment," Michelle Malkin wants to rehabilitate the claim that the internment of Japanese Americans was based on real military necessity. She says she's out to debunk a contrary "myth" about the Japanese American internment spun by "professor[s] whose tenure relies on regurgitating academic orthodoxy" and "ethnic groups looking to justify their existence."

Michelle's myth-bashing work is repackages the ideas and research of the late David Lowman, whose book "MAGIC: The Untold Story of U.S. Intelligence and the Evacuation of Japanese Residents from the West Coast during WW II" in a sense "broke" the story of the MAGIC cables. She dedicates the book to Lowman's memory.

Here are excerpts from what a historian has recently said about the claim of military necessity that Michelle's book parrots:

Lowman fervently believes that the raw [MAGIC] intercepts speak for themselves and trump other sources of intelligence on the Japanese American community. However, the messages speak more of intentions than results.
. . .
The hints contained in MAGIC, if decisionmakers paid them any heed at all, were not by themselves sufficient to justify the mass evacuation and incarceration of over 100,000 civilians.
. . .
Lowman's book rehashes old arguments and gives a tortured reading of the available intelligence sources. He errs in giving absolute primacy to communications intelligence, no matter how ambiguous. His polemics should be viewed as symptomatic of the lingering bitterness stemming from Pearl Harbor and the emotions raised by apologies and compensation.

Surely another leftie academic or some ethnic with an axe to grind, right?

Wrong.

The author is James C. McNaughton, Command Historian of the U.S. Army, Pacific, in an article that appeared late last year in the journal "Army History: The Professional Bulletin of Army History." The journal is published by the U.S. Army Center of Military History, which is located at Fort Lesley J. McNair.

You can read the rest of McNaugtons's take-down of Lowman's work here.

When the Army's military historian rejects a claim of military necessity, I'd say that claim is in some pretty deep doo-doo.

But I'm just a professor who regurgitates academic orthodoxy. So what do I know?

Paul Mirengoff, a lawyer at Akin Gump's DC office, read Michelle Malkin's book "In Defense of Internment" while on vacation and had this to say:

The book . . . did not persuade me that the "internment" was justified based on the information available to the government at the time. From what I can tell, the government did not have evidence that disloyalty on the part of ethnic Japanese was widespread. Rather, the best information it had (which admittedly may have consisted of little more than educated guesses) was that such disloyalty was not widespread at all. Under these circumstances, it was improper in my view for the government to evacuate and relocate all ethnic Japanese living on the West Coast. Instead, the correct approach would have been some combination of the measures urged by high government officials who did not support internment -- such as excluding ethnic Japanese from sensitive jobs, evacuating them from highly sensitive areas, and/or interning those among them as to whom there was some reasonable suspicion of disloyalty, including perhaps those active in certain organizations where disloyalty was widespread.

Sounds like a pan, right? Well, no. Because Mirengoff also has this to say:

I strongly recommend this book. Among other things, Michelle demonstrates that, contrary to what millions of schoolchildren have been taught, (1) there was substantial evidence of ethnic Japanese disloyalty and espionage before, during, and after Pearl Harbor, (2) President Roosevelt was not hoodwinked by bigoted military leaders, and (3) there is no reason to conclude that the decision to evacuate and relocate ethnic Japanese living on the West Coast was motivated by racism or hysteria.

Hmmm; let's see. (And let's set aside all of the problems with his three-point list that Greg Robinson and I have noted, but that Mirengoff has either not read or not seen fit to address.) The book is called "In Defense of Internment." The goal the author sets for herself is to "offer a defense of the most reviled wartime policies in American history: the evacuation, relocation, and internment of people of Japanese descent during World War II." (p. xiii) Mirengoff reads the book and finds that the book did not persuade him that internment was justified; he believes, notwithstanding Malkin's book, that evacuation and relocation were "improper."^**

Yet he praises and "strongly recommends" it anyway.

Did it maybe not matter to Mirengoff whether Malkin actually persuaded him of anything?

And it just gets curiouser: Mirengoff's co-blogger John Hinderaker, of the Minneapolis firm of Faegre & Benson, reports (after interviewing Michelle Malkin on the radio) that "Michelle referred admiringly to [Mirengoff's] post. My sense is that she generally agrees with [Mirengoff's] conclusion, as do I."

Wait a sec. So even Michelle agrees that "it was improper . . . for the government to evacuate and relocate all ethnic Japanese living on the West Coast?" That, after all, was Mirengoff's conclusion.

So am I to understand that the author of "In Defense of Internment" confessed on the radio on Saturday that the central argument of her book is wrong?

**By the way, if Miregnoff was persuaded that "there is no reason to conclude" that the program was motivated by racism or hysteria, yet he also believes that internment was not "justified based on the information available to the government at the time," then I wonder just what Mirengoff thinks did produce the government's program. Sunspots?

Don't bother watching the Sunday morning news shows that are on right now, folks. Ed Cone has written the script.

A couple of intercepted diplomatic cables from Tokyo to consulates in the Americas in 1941 referred to an intent on the part of the Japanese to use people of Japanese ancestry as spies. A couple of others, while ambiguous, might be read to mean that the Japanese had succeeded in developing such a relationship with one or two people.

Here's how Michelle Malkin put it today on Rush Limbaugh's show:

RUSH: Give us some of the evidence.

MALKIN: Well, there was a lot of evidence from MAGIC messages, and these were cables that were high-level Top Secret diplomatic traffic from Tokyo to its consular offices in the west coast and it shows that there was this vast espionage network being organized using first generation and second generation ethnic Japanese.

"This vast espionage network."

Extreme exaggeration might be a legitimate tactic when you do political commentary. It's not when you do history.

Greg Robinson, author of "By Order of the President: FDR and the Internment of Japanese Americans," just sent me the following comments, not so much on Malkin's book itself (though there's some of that) as on what some are saying about Malkin's book and about the Japanese American internment.

Note especially the very interesting comparison Greg draws between what officials did or did not do with pre-internment intelligence and what officials did or did not do with pre-September 11 intelligence. This is not a point I've seen made before, and I think it's an excellent one.

Michelle Malkin’s book bases its entire argument in favor of racial profiling on the premise that it was justified in the case of the removal and incarceration of Japanese Americans. Having done my part as a historian to show the illogical and factually unsupported nature of the arguments Malkin deploys to support this position, I had intended to avoid further comment, not least to avoid giving free publicity to such a book. However, Malkin’s book has encouraged a group of insistent bloggers and blog commentators, particularly a man who calls himself “Bob”, to pepper all the sites that feature a discussion of Malkin’s work with a common set of arguments (often identically worded) in defense of her position.

To be sure, Malkin’s defenders do not all attempt, as she does, to justify the ultimate policy of removal and indefinite incarceration. Rather, the crux of their position is that Executive Order 9066 itself was based not on hysteria or racism but on the actual situation at the time, and that we cannot say now that the government leaders were wrong to react to the information they had. I do not feel it necessary to restate my objections to Malkin’s individual arguments. However, this new position needs to be carefully addressed, since it can otherwise muddy a great many waters and spread confusion.

Before addressing the specific factual basis of this argument, the first thing to say about it is that it seems curious, and rather suspicious, that those who use it support Malkin’s larger thesis about the wisdom of ethnic profiling, instead of citing it to refute her. Why? Because even if we accept for the sake of argument that it was taken in response to a plausible threat, the government’s action only proves the unreliability of race-based selection and the danger of relying solely on ethnic or racial factors in assessing risk. Mass removal was subsequently shown to be unnecessary—-Japanese Americans contributed widely to the war effort, the FCC discredited General DeWitt’s claims of shoreline signalling of Japanese ships, and American occupation authorities in Japan after the war studying Japanese documents found no evidence of giant spy rings. Moreover, the vast majority of those involved—-from Assistant Attorney General Tom Clark to Los Angeles mayor Fletcher Bowron to California Attorney General Earl Warren—-subsequently declared the policy to have been a mistake. As early as the Eisenhower Administration, long before there was an active redress movement, Attorney General William Rogers issued an official statement apologizing for the government’s error. Even Secretary of War Henry Stimson and Assistant Secretary of War John McCloy supported legislation during the postwar years granting reimbursement to Japanese Americans, aliens or citizens, for their property losses during evacuation. McCloy told Congress that such a law “is only an appropriate form of recognition for the loyalty which Japanese Americans as a whole evidenced to the country during the war.”

The second thing to say about arguments of those who defend Executive Order 9066 is that they have the burden of proof not only that evidence of an actual threat existed (as they claim the MAGIC cables do—-a claim I have previously called into serious question) but that it guided the conduct of those in government. This must be shown by direct evidence. It cannot simply be assumed, with the burden of proof on the other side. The 9/11 commission’s work demonstrates the fallacy of saying that since documentary evidence existed, and that government officials had access to it, they must have seen it and reacted accordingly—-the President and his advisors had access to evidence that Al-Qaida planned to attack but did not act on it.

Similarly, arguments claiming to be based solely on evidence available at the time must not beg the question of intent. To put it simply, people have a tendency to find what they look for--if Japan appeared to Americans to be a bigger threat than Germany, it was a natural result of the fact that government leaders had concentrated their prewar efforts on investigating Japan. One is reminded of the military chiefs at Pearl Harbor who were so fixed on combating the imagined threat of sabotage by local Japanese Americans that they clustered American aircraft on the ground, with the result that American aviation was wiped out by Japanese bombers in the first stages of the attack.

Finally, the existence of a plausible threat does not foreclose judgment of the government’s response based on the nature of the actions. That is, even assuming for the sake of argument that the Army acted in response to a genuine concern about disloyalty by Japanese Americans, we can say that racism or hysteria informed its response if its actions were disproportionate or arbitrary--for the historian, all is NOT fair in love and war. The Army chiefs assumed that people of Japanese ancestry posed an undifferentiated threat and made no serious effort to devise a more limited policy or to balance evacuation against other defense needs (such as farm produce). Indeed, since the West Coast military summarily moved out all people of Japanese ancestry, including babies and orphans who could not conceivably have been connected to Japan, the claims for military necessity must be questioned.

Furthermore, the government’s decision to remove the West Coast Japanese cannot be isolated simply to the time it was decreed, with no attempt to factor in either later information or later events. (Malkin herself accepted this, at least initially, and thus attempted to justify the indeterminate incarceration that followed, but she has since shifted her position at various times towards the fallback argument of stopping with Executive Order 9066.) If excluding Japanese Americans from the West Coast in Spring 1942, was simply a military decision, it would follow that it was a military necessity to keep them excluded in 1943 and 1944, even after the Army had established hearings to determine the loyalty of the Japanese Americans, and the threat of Japanese invasion was sufficiently distant that the West Coast ceased to be a defense area. I have grave doubts that Malkin’s defenders can explain away all the evidence of racial bias by the military.

(This said, we must be careful not to read backwards in our judgments. For example, the fact that some 15 percent of those in the camps, after being summarily confined for a year, refused for various reasons to swear unqualified loyalty to the government that confined them does not mean that 15 percent of Japanese Americans in the prewar era were actively, or even passively, disloyal. The importance of the inmates’ immediate circumstances in shaping their responses is starkly indicated by the enormous fluctuation in the percentages of people who refused to affirm their loyalty in the different camps.)

Even without these other considerations, the arguments that form the basis of the claim that Executive order was a rational response to a military threat do not withstand scrutiny. As the great journalist and critic H.L. Mencken famously said, there is a simple solution for every problem, neat, plausible, and wrong. This is such a case, as a serious examination of the Malkinites’ fallback position shows. This position, such as I understand it, can be fairly summarized briefly thus:

Premise A.
The government acted reasonably in its “ethnic profiling” and removal of Japanese Americans, irrespective of citizenship, because:
1. The United States had reason to fear Japan in early 1942, as Japan had control of the Pacific Ocean, and was sinking U.S. ships. Unlike Germany and Italy, it had the capacity to invade the United States.
2. There was evidence that Japan had created a spy network.
3. Since ethnic Japanese in the Philippines had supported the Japanese invader, it could be assumed that Japanese in the United States would do so too. American citizens of Japanese ancestry in Japan supported the Japanese cause, while Japanese aliens in the United States expressed support for Japan.

Premise B. The removal policy was not racist, because.
4. Japanese Americans were removed only from the West Coast, the sole zone which was threatened, and not from other areas of the country, and since other Asians were not removed.
5. There was no mass ethnic-based removal in Hawaii because martial law had been declared.
6. There was no mass ethnic-based removal of German or Italian aliens or because it was unfeasible.
7. The Supreme Court upheld mass removal in the Korematsu case, which means that the Justices accepted the government’s characterization of its reasons, and Korematsu remains good law.

Premise A relies on exaggeration and a failure to contextualize. The United States was indeed at war with Japan, and the Japanese had taken over the Western Pacific, but (as David Niewert points out) it is hardly accurate to say that Japan controlled the Pacific. In any case, by this logic Japan was a threat from the time of Pearl Harbor, so if the loyalties of Japanese Americans were suspect based on their prewar conduct, why did the Army wait two months to advocate their removal-—two months during which time, military officials conceded, there were NO reports of sabotage or espionage.

Most importantly, Japan did not pose a greater threat than Germany, whose subjects (let alone U.S.-born descendants) were not likewise targeted for wholesale removal. In fact, Japan was considered a lesser threat than Germany (hence the Allies’ Germany-first strategy). German U-Boats sank hundreds of allied ships, and the threat of air raids by German planes was taken seriously. Germany, too, had a spy network, and unlike Japan it could rely on its own subjects and their descendants.

I have not made a study of the conduct of ethnic Japanese in the Philippines, but I do know that their case was little discussed, if at all, in the debates leading up to Executive Order 9066. After all, these were people who were not United States citizens or people who had spent their entire lives in the United States, as the Nisei were. The actions of American-born Japanese who lived for many years in Japan and were subjected to various pressures from the Japanese government is likewise scarcely relevant to the ideals and loyalties, let alone actions, of those who chose America. Even if there were many Issei and some Nisei who favored Japan in the prewar years, the two countries were not then at war. The potential danger they posed was magnified because of their racial difference. To take an obvious contrary case, although Charles Lindbergh was widely perceived as pro-German because of his prewar isolationism, and FDR himself privately stated his certainty that Lindbergh was a Nazi, he was not interned once war was declared, and indeed he volunteered in support of the American war effort.

Premise B, despite its surface plausibility, relies too much on ignoring conflicting evidence to be sustainable. Mass evacuation was indeed limited to the West Coast. That is, however, where 90 percent of mainland Japanese Americans lived, where the historic prejudice against them was strongest, and where the mass campaign for their removal was centered. It is also where General DeWitt, with his racial bias, was in command. In any case, it is just as plausible to say that the evacuation’s being limited to the West Coast proves that hysteria and racism underlay it than the contrary position, for if Japanese Americans were potentially disloyal, why were those outside the West Coast not equally dangerous? It is likewise no argument to say that because other Asian groups were not subjected to arbitrary action, the government’s policy was not racially based. American mass media and military propaganda made a distinction along national lines between “good Asians” (like the Chinese) and “bad Asians” (like the Japanese).

I have already discussed the fact that martial law was declared in Hawaii on December 7, 1941, while President Roosevelt and Navy Secretary Knox pushed (unsuccessfully) for mass removal and/or incarceration in Hawaii at least through early 1943. Whatever the basis of their campaign, it at least proves that the existence of martial law did not persuade these leaders that mass removal was unnecessary, so it could not have been in itself the reason that no such removal occurred.

The question of why Japanese Americans and not German and Italian aliens (let alone Americans of German or Italian ancestry) were interned is too complex to be reduced to a question of feasibility, or simple numbers. While there were clearly too many German aliens nationwide to be easily rounded up, those on the West Coast could have been, and indeed General DeWitt was prepared to do so once the removal of Japanese Americans was completed, and was forbidden to do by the White House. In any case, the concept of “feasibility” is itself inextricably tied up with racism. That is, if the Japanese Americans, unlike Germans and Italians, could be moved without stirring up opposition and affecting morale, it was because popular prejudice against them was strong enough to make possible arbitrary action.

Finally, the nicest thing that can be said about the Korematsu decision is that it reflects the Court’s historic deference to the Army and Executive in times of war, and not a reasoned agreement with the government’s evidence. Indeed, during the 1980s federal judges overturned the convictions of Korematsu and the other Japanese American defendants because of a pattern of government misconduct and tampering with evidence during the trials. As was discovered in the early 1980s, when West Coast Defense Commander General DeWitt drafted his Final Report, he explained that his reasons for instituting mass removal was the alleged impossibility of telling a loyal Japanese American from a disloyal one. This draft, which set forth DeWitt’s authentic recital of the reasoning underlying his policy of mass removal, was suppressed by Assistant Secretary of War McCloy. McCloy ordered DeWitt to destroy all copies of his draft and to prepare a new one which would present the claim that evacuation was necessary only because there was otherwise insufficient time to determine the loyalty of individuals. Similarly, the FCC and other government bodies had informed the Justice Department that General DeWitt’s claims that Japanese Americans had engaged in shore-to-ship signalling, which lay at the center of his case for evacuation, were unfounded. Rather than report this to the Court, the Justice Department concealed this evidence from the Justices.

Oh, and one more thing about the notion, advanced by some who have commented on this blog, that Korematsu is still good law: Justice Antonin Scalia has said that Korematsu ranks alongside Dred Scott in the history of constitutional law.

Here is a link to a web page with all of the critiques that Greg Robinson and I have offered on Michelle Malkin's book "In Defense of Internment" in the last couple of weeks.

UPDATE: A reader pointed out that I'd inadvertently duplicated one piece of the analysis when I created the page. Thanks for the heads-up; I've now fixed it.

Atrios makes a good point today--namely, that American KIA's are no longer news.

These last few weeks I've frequently thought to myself, "gee, I never would have imagined it, but I guess the transfer of power really has brought a halt to American casualties."

Wrong.

And here's the thing: there have already been more American hostile-fire KIA's in August (as of today, August 19) than there were in the entire months of April 2003, May 2003, and just two fewer than in March 2003 when (on March 20, to be precise) the invasion began.

I'll be debating Michelle Malkin on the Philadelphia-area public radio program "Radio Times" a week from today -- Wednesday, August 25 -- from 10 to 11 in the morning.

My goodness.
Michelle's views on the Japanese American internment have already earned an entry at Wikipedia. In the entry on the internment, her book is the only one mentioned. (And hyperlinked.)

Sigh.

While I certainly understand why some might think it foolish to draw attention to Michelle Malkin's book rather than simply to ignore it, I appreciate Jason Lefkowitz's comments about my efforts to challenge her account of the history.

Sparkey from Sgt. Stryker chimes in today on Michelle Malkin's book "In Defense of Internment." Mostly he takes on Dave Neiwert. But he also says this:

Historically, the evidence is there: Imperial Japan weaponized its expatriate populations, and when the opportunity presented itself, large segments (i.e. the majority) of those populations assisted the Empire.

Here, it seems to me, we see the real danger of a book (and an approach to writing history) like Michelle's. She writes and talks on TV and radio--extremely loosely--about "vast networks" of Issei and Nisei spies, and in that climate an assertion that "the majority" of Japan's expatriate populations "assisted the Empire" starts to look unobjectionable.

"The majority?!?!?"

Even taking Michelle's thesis in its most favorable light, and giving her evidence every benefit of every possible doubt, there is nothing to support such a characterization of the activities of the Issei in the United States. Sparkey doesn't say whether by "expatriate populations" he also refers to the Issei's American-born children, the Nisei, especially those (that is, the vast majority) who were not educated in Japan, but there is even less in the record to support such a characterization of them. (Can there be less than "nothing?")

In Sparkey's defense, though, I'd note that he wrote the following sentence, and it made me grin: "Though he be a gentleman, remember, Eric Muller is also lawyer."

I think I may have to add that to my blog's header.

I recently purchased Season Two of the astonishingly funny HBO series "Curb Your Enthusiasm." The other night I watched a couple of episodes. In one of them, Larry David is in front of a movie theater whistling a melody by Wagner. A passerby asks David if he's Jewish, and then launches into a rant about how no Jew should whistle Wagner because Wagner was an anti-Semite and Hitler loved his music. The situation quickly escalates (as situations always do on "Curb Your Enthusiasm"), and the passerby eventually screams at David that he's a "self-hating Jew." David says, "Look, I hate myself, but it's not because I'm Jewish."

I mention this because Eugene Volokh wrote at some length today about his confusion over the term "self-hating [X]" (where X is Jew, or Asian, or whatever). Try as he might, Eugene can't quite make sense of the phrase.

Here's what I think a person means when they call someone a "self-hating X": they mean that because the person's X-ness is very important to him or her yet also at some subconscious level causes or has caused him or her a great deal of discomfort, he or she denies and even flees from his or her X-ness. Maybe even disapproves of or is somehow repulsed by visible X-ness in others. And because the person's X-ness is in fact a component of his or her self, this is in fact an expression of a kind of self-hatred.

This might be what Eugene calls "pop psychology" in his post; I'm not sure. But I've sure known people who fit this description, and I've sometimes used the (admittedly too broad) phrase "self-hating X" to describe them.

Here's the souvenir I brought back from my trip to Vienna this summer. My wife saw it tucked away on the wall of a little antique shop specializing in military antiques and thought I might want to have it. It's a very thin cloth, with fibers coming off the sides where it was cut. It never had occurred to me that these things probably came in sheets, and that people had to cut out individual stars (along the dotted lines) from the larger sheets before affixing them to their clothing.

The thing is so damn sad to look at that I haven't yet figured out what I'm going to do with it. I'll probably frame it and put it on my office wall, to inspire me when I get to researching and writing my book about my great-uncle Leopold. Which I hope to do in the not-too-distant future.

Tulry Fsacintinag.

In a piece supporting profiling in today's USA Today, Michelle Malkin says this:

Absolutists who oppose national-security profiling often invoke the World War II experience of Japanese-Americans. When asked whether the 12 Muslim chaplains serving in the armed forces should be vetted more carefully than military rabbis or priests, Sarah Eltantawi of the Muslim Public Affairs Council raised the specter of Japanese internment.

The analogy is ridiculous.

Agreed, the analogy is ridiculous.

The trouble is that Sarah Eltantawi didn't make it.

Here is the exchange on the O'Reilly Factor, September 30, 2003, on which Michelle bases her assertion. The subject was the arrest at Guantanamo of Muslim chaplain James Yee (against whom, incidentally, all charges have since been dismissed), and whether Muslim chaplains in the military should get greater scrutiny than priests and rabbis. O'Reilly's guests were Sarah Eltantawi (Communications Director for the Muslim Public Affairs Council) and Daniel Pipes (Director of the Middle East Forum). Pipes, you may recall, had earlier been the focus of controversy when, after being nominated by President Bush to serve on the Board of the United States Institute of Peace, he said that he didn't know enough about the Japanese American internment to condemn it.

O'REILLY: You didn't answer my question. Isn't it fair to vet the Muslim chaplains harder than the rabbis, being the climate that we're in. It's not fair?

ELTANTAWI: You need to think harder about that question. Daniel Pipes, what did he suggest? He suggests that all American Muslims be suspended from their positions until they can, quote, prove their loyalty. How is that going to happen?

O'REILLY: I don't know if that's what he suggests.

ELTANTAWI: It's a quote from his article, Bill. It is a quote from the article. This is the same person who won't condemn Japanese internment. So we need to look and see what are the agendas of the people who are calling for this extra vetting? Is it really national security?

Do you see Eltantawi here comparing the vetting of Muslim chaplains to the internment of Japanese Americans? I don't.

It is Michelle Malkin, not Sarah Eltantawi, who is raising the specter of the Japanese American internment in this particular debate about profiling.

Why?

Dabney thinks the worst pop song of the 70s was "Muskrat Love" (as performed by The Captain & Tenille).

"Hooked on a Feeling" (the Blue Suede version, with the ooh-ga-cha-kahs) really ought to be in the running. In my opinion.

It has been several days since I wondered about an accusation of impropriety. It has been a week since the last critique. Ten days since the rest of them.

Eleven posts today. No response.

Oh, so this they have room for?

Blogging destroys another perfectly good vacation.

If you go over to Dave Neiwert's place and listen very carefully, you'll hear a slight "hiss." That's the sound of the last of the air escaping from the hole in the life raft currently supporting Michelle Malkin's book "In Defense of Internment."

I've just one thing to add. It's a small addition to the section of Dave's piece that he captions "Trashing the Scholars."

One of the objects of Michelle's condemnation in her book is the group of lawyers who, in the early 1980s, successfully got the wartime convictions of Fred Korematsu, Min Yasui, and Gordon Hirabayashi overturned on something called a "writ of error coram nobis." (We lawyers do have fun with Latin, don't we?) What started that process was Aiko Herzig's discovery, in the National Archives, of a draft of General John DeWitt's "Final Report" on the plan to evict Japanese Americans from the West Coast. (It's the document I've cited earlier, in which DeWitt says that the Japanese race is an enemy race and that the "racial strains" are "undiluted" even in the "Americanized" (that is, American-born and American-raised) children of Japanese aliens.) Aiko Herzig brought the document to the attention of Peter Irons, a lawyer and political scientist, and this got the litigative ball rolling, as it were. (If you're interested in the story, read Irons's Justice at War)

Describing this incident in her book, Michelle Malkin says that Aiko Herzig "surreptitiously" shared "confidential" documents with Irons. Michelle doesn't explain the cloak-and-dagger insinuations, but I guess we're left to surmise that because Aiko Herzig was a researcher for the congressionally created Commission on Wartime Relocation and Internment of Civilians, she had an obligation not to speak to anyone about publicly available documents sitting in publicly available files at archives open to the public.

But that's what this draft of the Final Report was: a document sitting in a folder in a box in the National Archives.

There was no "surreptitious" passing of "confidential" documents here. To imply otherwise--that is, to imply misconduct--borders, to my eyes, on slander.

I wrote to Michelle several days ago to ask her whether, in speaking of Herzig's "surreptitious" passing of "confidential" documents, she was perhaps alluding to something other than her informing Peter Irons of the existence of this public document in the National Archives. Michelle has not responded to my email, so I'm still not sure whether there is in fact an as-yet-unstated foundation for what looks to be a smear on two good people's reputations. If I learn that there is one, I'll let you know.

UPDATE, 8/13, 10:05 p.m.: I just learned that Michelle did not receive the email I sent her about this matter a couple of days ago, so she's certainly not to be faulted for not responding to something she didn't receive.

A member of IsThatLegal's crack investigative reporting staff in New Jersey (my dad) just told me that there's a rumor that NJ Governor McGreevey is going to resign today because of a sex scandal. I see nothing about it yet on any news sites.

Lance is printing stamps. Get 'em while they're hot.