IsThatLegal?

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

For a taste of the public attitudes that, uh, didn't lead to the eviction and incarceration of tens of thousands of innocent American citizens of Japanese ancestry from 1942 to 1945, check out Dave Neiwert's blog.

Now, admittedly, if you didn't know better, you might think that the racism and panic in these images might have led the government to do what it did. But remember: these cartoonists and journalists and advertising agencies didn't have access to the MAGIC cables.

Greg Robinson responds to Michelle Malkin:

I have twice started a point-by-point response to Michelle Malkin's latest comments, and twice stopped. Malkin has elided or failed to respond to the basic critiques Eric Muller and I have made, and I fear that the only result of my responding will just be to prolong a debate in which everything has been said.

Malkin's whole operation, and the logical gymnastics involved, reminds me of nothing so much as the attempts of scientists in past ages to defend the Aristotelian thesis that the Earth was at the center of the solar system and that planets moved in perfect circles. Scientists such as Ptolemy devised extremely complicated and ingenious sets of formulas to describe aberrations in planetary orbits such as retrograde motion (apparently backwards motion) among the outer planets, including describing orbital paths made up of circles within circles. When Kepler and his successors substituted the heliocentric model, in which the Earth and other planets orbited the Sun, and abandoned the search for perfect circles, they discovered that each planet's orbit could be described by a simple ellipse pattern. However, the geocentrists refused to accept this accurate and clear model, since it violated their religious faith, and they continued to devise overly complicated explanations for observable phenomena.

In the same way, Malkin and her defenders, to serve their tendentious
political argument, are forced to jump through logical hoops and exclude from consideration actual evidence that would, to the average observer (as well as to generations of researchers) most easily account for events.

Most notably, Malkin disregards the primary role in events of West Coast military figures, political leaders, commercial groups and opinion makers, since the evidence of anti-Japanese racism and hysteria in their actions and motivations is so overwhelming as to be irrefutable. As a result, they are forced to invent a vast conspiracy in order to explain events--the prewar MAGIC cables (which offer no direct evidence of espionage by Japanese American agents). They must then assert that these prewar cables--and not the views of those actually on the West Coast--were fundamental to the ultimate decision.

Without the MAGIC cables as ultimate motor, Malkin's entire thesis tumbles. Yet, the conspiracy she outlines does not fit the observable evidence--there is not a single mention of MAGIC among the various Top Secret papers discussing the case for mass removal of Japanese Americans, and no positive evidence from the period that they played any role whatever in the government's views of Japanese Americans. If it had, those who had access to the MAGIC cables--President Roosevelt, Secretary of War Stimson and Assistant Secretary McCloy--would have supported mass removal of all West Coast Japanese Americans immediately after Pearl Harbor. With such certain knowledge, they would not have needed to wait for two months, for most of which these they openly opposed mass removal (or, in the case of FDR, authorized efforts to defend loyal Japanese Americans).

I am unable to discern how Malkin's charges about MAGIC, and the evidence she adduces to support them, differ in substance from those formerly made by David Lowman, and I defy her to prove otherwise, as I defy her to show concrete evidence within the MAGIC intercepts that the "vast" network she claims of Japanese American agents ever existed. Where are the names, or at least descriptions, of the informants?

I've said on the radio in the last couple of days that Michelle Malkin's book "In Defense of Internment" is, at bottom, a smear on the historical reputation of an entire ethnic group--a tragic repetition of the very smear that landed the group behind barbed wire 60 years ago.

On the basis of the very small amount of research that I've managed to do since Wednesday, I can predict with confidence that Michelle's treatment of the case of Kenji Ito (who she trumpets as her leading Nisei spy) will turn out to be a microcosm of her larger technique of smear. It'll be a few days until I receive some of the materials I need to document this with clarity, but in the meantime, IsThatLegal reader David Weigel has been on the case. Weigel is headed in the right direction.

If nothing else, it might have benefitted Michelle to show the appendix smearing Kenji Ito to somebody with a law degree for (if nothing else) an explanation of what "hearsay" is.

More to come.

Shelley Powers also blogged yesterday's debate on WHYY radio in Philadelphia.

She notes that an issue was left hanging -- namely, whether the prosecution of a Japanese American lawyer named Kenji Ito failed in April 1942 because (as Michelle Malkin claims) the prosecution could not offer their winning evidence, the ultra-secret MAGIC cables. (Ito was acquitted of all charges by an all-white federal court jury in Seattle.)

Some commenters on this site have also wondered about that case, and what my response is to Michelle's invocation of it. Some have wondered politely (such as David Weigel); others (you know who you are) have just been a-holes.

I will post more about the Kenji Ito case when I've had the opportunity to do some research.

Lance McCord blogs the debate between me and Michelle Malkin on the radio here in North Carolina this morning.

UPDATE: Ed Cone blogs it too, and also posts his notes of the debate, taken in real time--the closest thing we'll have to a transcript.

Michelle Malkin says that I have "retreated" from my earlier accusation that she said something maliciously false about Aiko Herzig. No, I haven't. I stand by my claim entirely, and explain why here. (It's a Word document. I'm assuming that this issue is sufficiently narrow that most readers at this point won't give a flip; that's why I'm not putting it up on the blog directly.)

Here's Michelle Malkin, early yesterday morning: "I do not plan on making a lifetime hobby out of responding to every new blog post from Muller and Robinson about my book, but I will continue to reply when time permits."

I responded a few hours later by agreeing it was time to begin bringing our online debate to a close. A few hours after that I posted a moderately lengthy substantive and presumably final response to her, which included a number of criticisms and questions.

Michelle responds to none of what I wrote. Instead she gloats as follows: "Blogger Eric Muller believes it's time to start 'winding the back-and-forth down.' This desire is apparently shared by his co-critic, author Greg Robinson. I can see why."

It was Michelle who said she didn't want to turn this into a lifetime hobby. I thought that meant she wanted to wind things down. Silly me.

Before she's done, though, I wish she'd answer the question that she hasn't answered when I've asked it (twice) and that she didn't answer when the host of this morning's program on WHYY radio asked it: What are her readers to make of the opinion of retired Lt. Col. James McNaughton, now the Command Historian of the U.S. Army, Pacificon MAGIC and the supposed "military necessity" for the eviction and detention of Japanese Americans?

Sit back, relax, pour yourself a tall one, and listen to my debate with Michelle Malkin this morning on WHYY's "Radio Times."

Ed Cone and Red Ted and Michael Benson and Lance McCord blog my debate with Michelle Malkin on public radio in Philadelphia this morning.

Greg Robinson, author of By Order of the President, sends along this final word:

I have very little to add to Eric's comments on Michelle Malkin's "final rebuttal." He hits the nail on the head. Malkin sums up her whole presentation on the reasons for the wartime removal and incarceration of Japanese Americans by asking how it was, if these events were prompted primarily by racism and hysteria, that military authorities and intelligence sources were so worried about security.

Of course, American authorities were concerned by the threat from Japan, and rightly so. However, the primary concern of the knowledgeable authorities was sabotage by Japanese agents who were Caucasians, or Japanese infiltrated into the United States, NOT Japanese Americans. Rightly so, once again. Of the 19 people ultimately convicted of being Japanese agents, 18 were Caucasian. None was Japanese American .

Those who opposed mass evacuation of Japanese Americans were not uninformed about the situation on the West Coast or sentimental about Japan. On the contrary, it was precisely their profound understanding of the nature of the threat that enabled them to say with confidence that Japanese Americans were loyal, and that any necessary action could be handled by the relevant authorities, so mass military removal was NOT warranted. J. Edgar Hoover, in a report to the President in November 1941, warned of the espionage activities on the West Coast of Japanese agents disguised as "language officers." However, Hoover also reported that the Japanese were so suspicious of the Nisei that they would not only not use them, but ordered those who booked passage to Japan followed on the suspicion that they were American agents. It was Kenneth Ringle of the Office of Naval Intelligence, the outstanding defender of Japanese Americans, who led the raid on the Japanese Consulate in Los Angeles in March 1941 that enabled American authorities to learn of Japanese intelligence operations, presumably including the Tachibana ring.

Malkin asks, if the Japanese American were not a threat, how it was that two defense zones, Terminal Island and Bainbridge Island, were created on the West Coast. As I explain in BY ORDER OF THE PRESIDENT, it was Curtis B. Munson, Franklin Roosevelt's special agent--the same Curtis Munson who claimed that Japanese Americans were overwhelmingly loyal--who was indispensable in recommending that San Pedro be turned into a defense area to guard against potential sabotage. As a result, on November 27, 1941, ten days before the Pearl Harbor attack, the Los Angeles-Long Beach Harbor Naval Defense Sea Area was created.

Michelle Malkin yesterday asked "[w]hat in the world does my ethnic heritage (Filipino) have to do with the book’s thesis?"

David Neiwert offers one answer.

Judge Richard Posner is guest-blogging at Larry Lessig's place, which is cool indeed.

He's a brilliant man, but his approach to the judicial approval of the Japanese American internment is as tired as it is contestable:

[A] commenter [to an earlier post] takes issues with a statement that I once made to the effect that I thought the Supreme Court had made the correct decision in the Korematsu case, when it refused to invalidate an army order, approved by President Roosevelt (and by Earl Warren, who at the time was the governor of California), removing persons of Japanese extraction from the west coast in 1942, shortly after Pearl Harbor. In hindsight, it is apparent that the order was erroneous--that the Japanese-Americans did not pose a threat to the nation and that the order was influenced by racism. But the wisdom of hindsight is treacherous. In March of 1942 when the order was issued, just three months after Pearl Harbor, there was not only fear that Japan would attack the continental United States, but also a need to demonstrate resoluteness in a war for which the nation was not prepared.

Hindsight, as we know, is the perception of the nature of an event only after it has happened. Underlying the hindsight critique is an implicit assertion that the judgment we form today they could not have formed back then.

But this is so obviously wrong in the case of Korematsu that one wonders why Posner even bothers. At least two of the nine Justices on the Korematsu (Murphy and Roberts), and very arguably a third (Jackson), saw that the order removing Japanese Americans from the West Coast was racist in 1944. J. Edgar Hoover saw it as unnecessary and U.S. Attorney General Francis Biddle saw it as illegal (as applied to U.S. citizens) in January of 1941, when it was being considered. Prominent syndicated columnists, most notably the Washington Post's Merlo Pusey, publicly condemned the internment while it was ongoing.

To say that the racism in the exclusion program is visible only to us today is false. Plenty of people--including people very close to FDR himself, and a third of the Supreme Court--saw it back then. Hindsight may be 20/20, but some people had damn good vision back then too.

Judge Posner's is a classic mistake: some call it the mistake of the "inevitable present." Because things are as they are today, things must have needed to be as they were in order to get us here. But the highest goal of telling history well is to restore to earlier generations the contingency of the time they lived in--that is, to recreate the reality that earlier generations often had (just as our generation today has) choicesto make.

The program of exclusion and detention that the government adopted between 1942 and 1945 was a series of contestable (and contested) choices, and that is how even very prominent and mainstream national figures (such as Francis Biddle, Frank Murphy, Owen Roberts, and Robert H. Jackson) saw it at the time.

So why absolve those who made a contrary choice of responsibility for it?

Michelle Malkin:

"After some two dozen posts and nearly 18,000 words [Muller and Robinson] still have not explained why, if internment, evacuation, and relocation were driven primarily by racism and wartime hysteria, our intelligence agencies were so concerned about Japanese espionage on the West Coast."

The nub of our disagreement sits right there, in that one sentence.

Nobody doubts that Americans in general and military officials in particular were frightened of attacks on the US mainland and on US and allied shipping along both coasts. Nobody doubts that Japan and Germany wanted to set up espionage and sabotage relationships in the US with both their own nationals and others (including, but by no means limited to, children of their nationals.) And nobody doubts that in a few instances they were successful in doing this. The Tachibana Ring in Los Angeles is a well documented example. The "contacts" with "second-generations" implied in a couple of the MAGIC cables are a much, much vaguer and more questionable example (because we have no idea who they're referring to, or whether the authors of the cables were doing anything more than bragging to the home office, or whether McCloy, Stimson, and Roosevelt actually focused on those couple of cables).)

So of course they were "concerned." Why wouldn't they be?

But what did they do with those concerns? How did they understand them? How did that understanding differ from their understanding of similar concerns about other racial or ethnic groups? How can one account for the scope of what they recommended as a remedy for their concerns about people of Japanese ancestry? How can one account for the difference in scope and mechanism of what they recommended as a remedy for those concerns, as compared to what they similar concerns they had (or for which there was ample evidence) as to other ethnic groups? How can one ignore the impact of the overwhelming political pressure applied on the military by people and groups who had no access to intelligence of any sort? How can one account for the multitude of decisions about the conditions and duration of confinement and the continuation of exclusion from the Coast that were made by federal and state officials other than the trio of Roosevelt, Stimson, and McCloy for months and even years after Roosevelt signed off on Executive Order 9066?

When I was in college, late one evening a good friend of mine appeared at my door, pale, panicked, and out of breath. I asked her what was wrong, and she said she had run from her apartment, which was about 4 blocks away, because she had seen a mouse. She was terrified to be in the apartment and wanted me to go in and see if I could find it. We went in, and while we were looking around, a dust bunny blew out from under a couch. She shrieked, thinking it was a mouse.

See the parallel? No, folks, I'm not comparing the attack on Pearl Harbor to a mouse. I'm making a point about the impact that the irrational has on how we perceive dangers, and on how we decide what steps we need to take to respond to them. There really, truly was a mouse in her apartment, and she had really, truly seen it. Suddenly she found herself running alone down a city street at 11:30 at night for four blocks, because of some story that she had deep in her mind about the terrors of mice. Then she found herself screaming at a dust bunny.

Did a mouse cause her to be frightened? Initially, yes. Was it the mouse that caused her to tear out of her place and run to mine? Or was it instead thoughts and feelings she had about mice in general? Was it a mouse that caused her to shriek once we got back to the apartment? No, it wasn't; it was a dust bunny. Her thoughts and feelings about mice caused her to misperceive what she saw.

"Racism and wartime hysteria" cannot be stashed in some hermetically sealed container, apart from the supposedly cool calculus of rational military planners. So it's not that people in or out of the military saw nothing to induce fear of Japanese sabotage. It's that people perceived and reacted to what they saw through the lens of panic and racism. And it's the latter that explains what actually ended up happening, as opposed to what might have ended up happening.

Three other things:

1. Malkin asks at the end of her post whether I can be understood to be supporting the "locking up" of all Kibei (American citizens of Japanese ancestry who were sent to Japan for some or all of their education before the war). I didn't suggest that; what I told Cathy Young was that "there were valid reasons, both in intelligence information and from what was generally known, for the government to take some sort of protective action touching Japanese aliens and most probably at least some of the so-called 'Kibei.'"

Hmmm. I say "some sort of protective action" as against "at least some" Kibei. She hears "lock 'em up!" Itchy trigger finger, I'd say. The idea of "locking them up"—and of doing it to all of them—comes from Malkin, not me.

On the careful question that Michelle did not ask--whether, with Congressional authorization, and after hearings before a neutral arbiter, the military would have had the power to impose milder restrictions than incarceration (for example, exclusion from narrowly drawn military areas and prohibition on employment in defense industries) on an individual basis as to a subset of Kibei who had had spent most of their lives in Japan as well as the subset of German Americans (if there were any) who had spent most of their lives in Germany—I think the answer is probably "yes." I suspect that some scholars to my left might disagree with me on that. (I hasten to note, by the way, that some Kibei (even some with long experience in Japan) played crucial roles in the U.S. military during World War II, especially in intelligence.)

2. Malkin continues to insist that only the ultra-secret MAGIC decrypts (as opposed to basic map-reading skills) could possibly have explained the military's decision to choose as their first target the people of Japanese ancestry who lived on Terminal Island (in the LA area) and Bainbridge Island (in the Seattle area). "Even if one assumed for the sake of argument," says Malkin, "that Bainbridge Island was an obvious focal point within the Puget Sound, Muller’s thought experiment still does not explain why military authorities singled out Los Angeles and the Puget Sound rather than, say, Portland or San Francisco. Despite Muller’s effort to suggest otherwise, the MAGIC cables still remain the most plausible explanation." How about the fact that there were huge naval shipyards at Terminal Island and directly adjacent to Bainbridge Island, whereas Portland had no shipyard and the nearest one to San Francisco was thirty miles up the coast?

Similarly, Malkin maintains that the failure to make Eastern Washington State an exclusion zone shows that it was intelligence from MAGIC that caused General DeWitt to make southern Arizona an exclusion zone. What Malkin does not note is that to our north, along the border with Washington, the Canadians were doing exactly the same thing to their citizens of Japanese ancestry and Japanese aliens that we were doing to ours.

3. Malkin asks whether I've read the tens of thousands of messages in the multi-volume compendium of decrypted MAGIC cables. I have not. (Of course, I have also not written a book about how the decision to uproot Japanese Americans was made, as, for example, Greg Robinson has done; my book is about how the government decided to draft interned Japanese Americans from behind barbed wire in to the army.) I instead thought it safe to rely on her and on David Lowman to select the messages that implied the involvement of American citizens of Japanese ancestry. Assuming that the relevant ones were the ones that Malkin and Lowman reproduce in the appendices to their books, I read those. Is Malkin really suggesting that there are additional MAGIC cables that bolster her case for "vast networks" of Nisei spies, but that she chose not to mention or reproduce?

Michelle Malkin has today responded to many of Greg Robinson's and my criticims of her book. I'm running around today, and in any event think (as does Malkin) that it's time to begin winding the back-and-forth down. But I did have a few thoughts as I read what she wrote, and also want to respond to the couple of direct questions she asks me. More later.

... does Technorati totally suck?

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.