Wednesday, September 14, 2005

Soft-pedaling the internment

It's not surprising, really, that Michelle Malkin's fraudulent thesis defending the internment of Japanese Americans during World War II has found been circulating among the extremist right. After all, that's how right-wing transmitters work: she treads rather easily among the extremist ideologues of the far right despite maintaining a mainstream pose.

Likewise, it's not a big surprise to see her thesis spreading to more ostensibly "mainstream" right mouthpieces. The latest instance is Tony Blankley's excerpt from his new book, The West's Last Chance: Will We Win the Clash of Civilizations?, citing a pro-internment argument straight out of Malkin's text -- not to mention Lt. Gen DeWitt's:
A total of 25,655 noncitizens living in the United States were interned or deported during the war years because of their ethnicity or nationality, rather than their words or conduct. They included 11,229 Japanese, 10,905 Germans, 3,278 Italians, 52 Hungarians, 25 Romanians, five Bulgarians and 161 other foreign nationals.

The Supreme Court later held, in Johnson v. Eisentrager (1950), that "executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security." The high court added: "The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a 'declared war' exists." So the power to intern or deport comes into effect only when war has been declared.

Today, we are under attack not by a nation, but by groups of militant individuals who claim Islam as their faith. Yet for the first time in human history, the destructive power of terrorists can be as great as that of a traditional nation-state that has declared war. We need a mechanism to deal with this change.

During World War II, the country was faced with the prospect of large numbers of people -- again identifiable by ethnicity, not conduct -- who were real or potential enemies.

The logic of the Supreme Court's opinion is applicable to the situation we face today. The court held that people ethnically connected to the war-makers are more likely to support them than are others -- and our country at war has a right to protect itself from this presumed higher risk of danger.

Notice what's wrong with this discussion?

Blankley confuses -- quite on purpose, it seems -- the concept of incarercating an "enemy alien" and incarcerations based on "ethnicity."

You see, "enemy aliens" are by definition not citizens. A person's ethnicity, however, does not determine their status as citizens. One may be of Japanese descent, for instance, and still be a full citizen.

This was, of course, the core of the mistake made in the internment of Japanese Americans -- it included some 70,000 citizens among the 110,000 people of Japanese ethnicity who were "evacuated" from the West Coast.

Funny how Blankley makes no mention of that episode -- one in which the subjects' ethnicity was the reason for their incarceration.

But then, the Supreme Court also approved that particular action in two rulings that upheld the evacuation: Hirabayashi and Korematsu. The latter, as Eric Muller described in some detail, arose this week during the Senate confirmation hearings for John Roberts to the Supreme Court.

As Muller explains, Sen. Leahy's question to Roberts regarding Korematsu mischaracterized the ruling and was generally bungled. But Roberts' response, he notes, "gives me very little comfort," muted as it was.

Fortunately, Roberts did make himself clearer in later questioning by Russ Feingold:
FEINGOLD: That's absolutely right. And that's why I want to follow on what Senator Leahy asked about earlier, a different time, a different challenge.

As a nation, we can now look back at wartime Supreme Court decisions like Korematsu v. the United States with something like bewilderment. We talked about it earlier. To me, it seems inconceivable that the United States government would have decided to put huge numbers of citizens in detention centers based on their race and that the Supreme Court would have deferred to the president's decision to do so.

Do you believe that Korematsu was wrongly decided?

ROBERTS: It's one of those cases that I don't think it's technically been overruled yet. But I think it's widely recognized as not having precedential value. I do think the result in that case -- Korematsu was actually considered the exclusion, not the actual detention, but the exclusion of individuals based on their ethnic and racial background from vast areas.

And it's hard for me to comprehend the argument that that would be acceptable these days.

FEINGOLD: It's often included, if you list decisions that are sort of considered some of the worst decisions in the history of the Supreme Court with Plessy v. Ferguson and Dred Scott and others. Is that a fair characterization of your view of Korematsu?


That's fairly unequivocal, and a seemingly straightforward repudiation of Korematsu, although the "I can't imagine an argument" wording has a distinctly weaselish whiff to it.

Muller -- who has been on fire this week -- earlier posted on another ruling of more recent vintage that referred, once again, to the internment rulings. In this case, it was the recent Court of Appeals ruling that cited Ex parte Endo, the 1945 ruling that ended the internment of Japanese Americans.

As Muller explains, the court seemingly misread the clear language of Endo in order to bolster this ruling giving the executive branch virtual carte blanche powers in detaining citizens as "enemy combatants." Given John Roberts' previous inclinations in such rulings, it seems likely that a Roberts-led Supreme Court will be all but certain to validate this historic power grab.

That is, in short, forgetting the lessons of history provided by the internment. But again, we shouldn't be surprised. It's the kind of thing that happens when right-wing ideologues distort and falsify history, and peddle it for millions of gullible consumers.

The revised cover, Flight 93 edition

Liberal Avenger has the details.

Monday, September 12, 2005

Next up: Endangered species

Sure, it's bad enough that in the wake of Hurricane Katrina, Republicans in Congress have set their sights on a permanent repeal of the estate tax. Just what we need: a permanent loss of revenue after a Category 5 storm and a bumbling Bush League response left taxpayers saddled with a disaster bill of $100 billion and counting. That should work wonders on that federal deficit.

But that's just the start of the march of the completion of the corporate-right agenda under Bush. Next in their sights: the Endangered Species Act, probably the most generally successful piece of environmental legislation ever enacted:
As Congress returns from its August recess, environmentalists and property-rights activists are focused on Rep. Richard Pombo, a California rancher who is chairman of the House Resources Committee. Later this month, Pombo is expected to introduce legislation to overhaul the 32-year-old Endangered Species Act, with House passage expected by year's end.

A draft of the bill that leaked earlier this summer "was comprehensive in trying to undo what's been done over the last 30 years" to protect endangered species, said Patti Goldman, Seattle-based lawyer for the Earthjustice law firm.

Before Pombo was tapped by Republican leaders to head the Resources Committee, he was one of the most virulent attackers of the landmark law. For example, Pombo in 1995 accused the "arrogant" U.S. Fish and Wildlife Service of trying "to make California farmers vassals of the federal government" by enforcing the statute.

But now Pombo speaks of "updating" and "modernizing" the law.

"The act isn't working to recover species now," he said during a recent visit to Snohomish County. "At the same time, it's caused a lot of conflict with private property owners. We have to have an act that works and eliminates a lot of those conflicts we have."

Pombo and other detractors say the law is broken because only a handful of species have ever recovered to the point they no longer require protection. Conservationists, however, point out that it's done a very good job of keeping species from going extinct.

Pombo is right in at least one respect: The ESA has not been successful in getting species recovered to the point that they are off its list (though we've come close with both the bald eagle and the Montana grizzlies). The chief reasons for that, however, are associated with the kinds of compromises that have to be made to accommodate private property owners already. See, for instance, the (non-Yellowstone) wolves of western Montana, where predation on livestock brings swift and irrevocable retribution from the feds.

Indeed, the government has bent over backwards to accommodate private property owners, including farming and ranching interests, in enforcing the endangered species act. There's probably no more ludicrous example of this than the billions of dollars the government wastes every year barging salmon fry around the four dams on the lower Snake River that are wreaking so much damage on the native fish runs.

This plays into a subject near and dear to my heart, namely, the status of the Puget Sound orcas, who themselves have only recently won "threatened" status from the federal government, which tried for some time to proceed as though this resident population was indistinguishable from the generic killer whales found throughout the world:
A year ago, U.S. District Judge Robert Lasnik in Seattle ruled for the environmentalists, noting that the agency's science used was out of date and not the "best available." He ordered the fisheries service to plug the holes and reconsider its decision.

The judge's order led to the decision to propose the listing.

Bob Lohn, who heads the NMFS' Northwest office, said the resident orcas don't interbreed with other orca populations, have distinct markings and dorsal fins, eat different foods and inhabit different areas, and have a unique language of chirps and clicks.

There is a "significant biological difference," he said.

On the second try, federal scientists were "highly united" in their conclusion that the local killer whales were a subspecies that merit further protection, he said.

The resident killer whales are threatened by a diminished food supply, industrial pollutants and boat noise and traffic.

The "diminished food supply" means one thing: salmon. That's what the resident orcas eat, more than 90 percent of the time.

So protecting the orcas means, first and foremost, protecting the salmon.

And protecting the salmon means a lot of things -- building-code restrictions, limits on development and chemical and pesticide use, strict regulation of timber-cutting practices, among others -- that happen to fall well within the purview of business' bottom line.

It also means tearing down dams, from the Elwha to the Columbia.

And yes, those Columbia salmon do affect the Puget Sound orcas. The NMFS study found that the K and L pods, which reside offshore during the winter, subsist upon spring Chinook runs originating in the Columbia River system while they are en route back to the Puget Sound in late spring.

It's all closely interconnected. And pulling out the threads of protection woven in by the ESA could be disastrous.

The Endangered Species Act does need some reforming, especially in areas where common ground can conspire to create a desired end. But it does not need weakening.

And Pombo, as people in western Washington have learned in dealing with his heavy-handed tactics in keeping in limbo the Wild Sky proposal for creating a new wilderness near here, is simply not a straight shooter. He's a hardball-playing Republican who bends the rules at his pleasure, and aims only to crush his opponents -- namely environmentalists. He does not deal in good faith, so don't be naive about him.

Forget compromising on this. Pombo and the Republicans have to lose this fight -- or we're all in for it.