THE RULE OF FEAR

              Another Lesson From World War II
              Internments

              By DAVID J. GARROW

                In 1942, Gordon Hirabayashi was imprisoned for violating a military
                curfew that applied only to Japanese-Americans, a preliminary step in the
              government's forcible relocation of "all persons of Japanese ancestry" from
              the West Coast to remote detention camps. When that began, Fred
              Korematsu, another Japanese-American, evaded detention, for which he
              was also convicted.

              In the mid-1980's, amid a national wave of regret for the wartime
              discrimination, federal courts erased both men's convictions. Congress has
              apologized to Japanese-Americans, and reparations have been paid.

              The historical lesson of these two cases appears simple: government
              crackdowns based solely upon race or ethnicity are wrong. But while the
              Korematsu and Hirabayashi decisions are often cited as infamous examples
              of the legal vulnerability of ethnic groups, their broader lesson is the
              judiciary's frailty in the face of pressing concerns about national security. That
              frailty may well resurface as, in the wake of the events of Sept. 11, America
              debates whether to significantly loosen rules for electronic surveillance and
              dramatically truncate judicial protections for resident aliens.

              Some passages from the Supreme Court's two opinions read as if they could
              apply today. The Court unanimously affirmed Mr. Hirabayashi's conviction
              on the basis that "residents having ethnic affiliations with an invading enemy
              may be a greater source of danger than those of a different ancestry."

              Even the Court's more liberal members agreed. Justice William O. Douglas
              said that "the wisdom or expediency of the decision which was made is not
              for us to review." Justice Frank Murphy merely registered reluctance. "Few
              indeed have been the invasions upon essential liberties which have not been
              accompanied by pleas of urgent necessity advanced in good faith by
              reasonable men," he warned.

              The Supreme Court likewise affirmed the conviction of Mr. Korematsu, but
              in his case the justices fractured six to three. Justice Hugo Black, celebrated
              as a liberal by many scholars, declared on behalf of the majority that "when
              under conditions of modern warfare our shores are threatened by hostile
              forces, the power to protect must be commensurate with the threatened
              danger." Agreeing with Justice Black, Justice Felix Frankfurter emphasized
              that "action is not to be stigmatized as lawless because like action in times of
              peace would be lawless."

              However, one of the three dissenters, Justice Robert H. Jackson, perhaps
              the best prose stylist ever to sit on the high court, argued persuasively that
              the harm done by the majority would reach far beyond race. "A military
              order, however unconstitutional, is not apt to last longer than the military
              emergency," he wrote. "But once a judicial opinion rationalizes such an order
              to show that it conforms to the Constitution, or rather rationalizes the
              Constitution to show that the Constitution sanctions such an order, the Court
              for all time has validated" that rationalizing principle. And that "principle then
              lies about like a loaded weapon ready for the hand of any authority than can
              bring forward a plausible claim of an urgent need."

              And Hirabayashi and Korematsu both demonstrated, Jackson warned, that
              the federal judiciary is unlikely ever to constrain executive branch excess: "If
              the people ever let command of the war power fall into irresponsible and
              unscrupulous hands, the courts wield no power equal to its restraint. The
              chief restraint upon those who command the physical forces of the country,
              in the future as in the past, must be their responsibility to the political
              judgments of their contemporaries and to the moral judgments of history."

              Three decades later, Jackson's argument was validated by the posthumous
              confession of the man who, as governor of California, had been, in the words
              of one sympathetic biographer, "the most visible and effective" force behind
              the internment: the legendary Chief Justice Earl Warren.

              Celebrated like Douglas and Black as a liberal, Chief Justice Warren
              professed himself "conscience-stricken" over the role he had played in the
              1940's.

              "It was wrong to react so impulsively, without positive evidence of disloyalty,
              even though we felt we had a good motive in the security of our state," he
              wrote in his memoirs. "It demonstrates the cruelty of war when fear,
              get-tough military psychology, propaganda, and racial antagonism combine
              with one's responsibility for public security to produce such acts."

              BUT the decisions are far from universally regretted. Earl Warren's guilt was
              not shared by Hugo Black, who even in the late 1960's embraced his opinion
              in the Korematsu case, declaring "I would do precisely the same thing
              today." And even in the year 2001 as prominent a judicial voice as Richard
              A. Posner, the circuit court judge, confesses that "I actually think Korematsu
              was correctly decided."

              Chief Justice William H. Rehnquist, writing three years ago in his book "All
              the Laws but One: Civil Liberties in Wartime," said that "in time of war the
              government's authority to restrict civil liberty is greater than in peacetime,"
              and that "distinctions that might not be permissible between classes of citizens
              must be viewed otherwise when drawn between classes of aliens."

              Indeed, Chief Justice Rehnquist volunteered that for cases like Korematsu
              "There is no reason to think . . . that future Justices of the Supreme Court will
              decide questions differently from their predecessors."

              However, writing in 1984 in the reopened case that erased Mr. Korematsu's
              conviction, District Judge Marilyn Hall Patel agreed with Justice Jackson and
              Chief Justice Warren that the legal legacy of the Japanese internment reached
              beyond racism and illuminated a greater danger:

              "It stands as a caution that in times of distress the shield of military necessity
              and national security must not be used to protect governmental actions from
              close scrutiny and accountability. It stands as a caution that in times of
              international hostility and antagonisms our institutions, legislative, executive
              and judicial, must be prepared to exercise their authority to protect all
              citizens from the petty fears and prejudices that are so easily aroused."

              David J. Garrow is Presidential Distinguished Professor at Emory
              University School of Law.

                      Copyright 2001 The New York Times Company