In 2018 the international community rebuked both China and the United States (U.S.) for controversial policies affecting Muslim populations. This summer it was reported that China has detained more than a million of its own citizens — Uyghurs in the Xinjiang Autonomous Region suspected of dissident sentiments — in re-education camps. Meanwhile, the U.S. instituted a travel restriction on citizens from eight Muslim majority countries in what was widely viewed as an attempt to prevent Muslims from entering the country. Despite the many differences in these two policies, China and the U.S. offer strikingly similar justifications for their actions. Both countries point to overriding national security concerns and insist that these extreme practices are permissible by law. Although extremist violence is portrayed as a new threat that requires new responses, the legal battle over the U.S. travel ban and the outcry over detention of Muslims in China resurface discussion of a similar policy from a bygone era: the internment of Japanese citizens in the U.S. during World War II.
This summer the U.S. Supreme Court ruled that the Trump administration’s travel ban is constitutional. In the same decision, the court finally overturned its ruling in United States v. Korematsu, a 1944 case holding it permissible for the military to detain Japanese Americans in internment camps as a preventative safety measure. Although the internment camps were widely condemned in the decades since that decision, the practice officially remained “good law” until this year. The fact that such a flagrant human rights abuse could be found legally permissible—and remain so for so long—offers an important lesson: Although a policy that directly or indirectly targets an ethnic group may be judged lawful in a contemporary court, it may still be overruled in the court of history.
The Internment of Japanese Americans and the Korematsu Decision
More than a half-century ago the U.S. and China united in war against a common enemy: Japan. After years of imperial expansion in Asia, Japan’s incursion into Manchuria led to the formal declaration of war with China in 1937. In 1941 Japan attacked Pearl Harbor, prompting the U.S. to enter the conflict as well. The next year President Roosevelt signed Executive Order 9066, which authorized the military to exclude people from geographic areas in the U.S. at their discretion.
Following the executive order, more than 112,000 people in the U.S., primarily people of Japanese ancestry living on the west coast, were relocated from their homes and interned in concentration camps. At least 70,000 of these people were American citizens. Despite a lack of empirical evidence that Japanese-Americans posed a threat to national security, citizens were held against their will for years because of their ethnic background.
Fred Korematsu, an American of Japanese descent who was born in Oakland, California, refused to obey the exclusion order. He was arrested, convicted of violating the order, and sent to a camp in Utah. Korematsu appealed the conviction, arguing that the exclusion order was discriminatory and violated his constitutional rights.
In 1944 the U.S. Supreme Court considered Korematsu’s case. A divided court ultimately upheld the exclusion order and Korematsu’s conviction. Justice Hugo Black, writing for the majority, argued that while restrictions on the civil rights of a racial group are legally suspect, Roosevelt was justified in his order for reasons of national security. Black opined that “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group.”
Even at the time of the ruling, some members of the Court condemned the exclusion. In a published dissent, Justice Frank Murphy called the order a “legalization of racism.” In the decades following the end of World War II, the U.S. reached a similar national consensus that the internment was a mistake and an injustice. In 1976 President Gerald Ford issued a formal apology, stating that "[w]e now know what we should have known then—not only was that evacuation wrong but Japanese-Americans were and are loyal Americans.” President Jimmy Carter established a commission that debunked the argument that the internment was necessary for national security. Following the recommendations of the commission, the U.S. government subsequently made reparation payments to people who had been interned.
But, despite the widespread recognition by both the public and the U.S. government that the internment was unjust, the Supreme Court’s 1944 Korematsu decision remained the unchallenged law of the land for more than 70 years.
Supreme Court Decision Invokes America’s Past Missteps in Travel Ban Decision
The Supreme Court reconsidered Korematsu this year in light of a contemporary presidential directive. Immediately after assuming office in 2017 President Donald Trump issued an executive order temporarily restricting entry to the U.S. for citizens from seven Muslim-majority countries. Although the Trump administration insisted that the restrictions were intended to prevent terrorist attacks, critics of the proposal pointed to numerous campaign statements by the president that seemed to indicate the order was intended to bar Muslims from entering the country.
The travel restriction order immediately came under judicial scrutiny. Following a series of legal actions and modifications to the order, in April 2018 the U.S. Supreme Court heard opinions in the question of whether the ban violated the establishment clause of the First Amendment, which forms the basis of the constitutional right to freedom of religion. In June the court issued its decision. Justice John Roberts, writing for a narrow majority, upheld the constitutionality of the Trump order, finding that the president has broad authority over issues of national security.
In two dissents, four of the Supreme Court’s nine justices disagreed with the majority opinion upholding the travel ban. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote that the majority “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”
The ghost of the court’s previous decision in Korematsu haunts both the majority decision and the dissent response to the travel restrictions. In the majority opinion Justice Roberts seemed to finally overturn the 1944 decision, stating that the contemporary debate “affords this Court the opportunity to express what is already obvious: Korematsu was gravely wrong on the day it was decided, has been overruled in the court of history, and—to be clear— ‘has no place in law under the constitution’.” Meanwhile, Justice Sotomayor wrote that while “[i]n the intervening since Korematsu, our Nation has done much to leave its sordid legacy behind,” in upholding the executive order and sanctioning a discriminatory policy in the name of national security, “the court replaces one ‘gravely wrong decision’ with another.”
The debate over Korematsu shows that even in a country such as the U.S. with a hearty tradition of strong and independent courts, when it comes to questions of national security and minority groups, what is lawful is not always what is right.
Korematsu and Lessons for China
China ought to take note of the legacy of the Korematsu decision. International news outlets reported this year that China has detained as many as a million Chinese Muslims—particularly ethnic minority Uyghurs and Kazakhs in the western autonomous region of Xinjiang—out of national security concerns. In August the United Nations Committee on the Elimination of Racial Discrimination issued a report expressing concern that these Muslims were being “held incommunicado and often for long periods, without being charged or tried, under the pretext of countering terrorism and religious extremism” and are “forced to spend varying periods in political ‘re-education camps’ for even nonthreatening expressions of Muslim ethno-religious culture like daily greetings.” In November numerous nations raised concerns about China’s treatment of Muslims at the Universal Periodic Review of China’s human rights record at the United Nations. Dui Hua’s submission to the Review highlights the Foundation’s research uncovering discrimination against Muslims in Xinjiang.
China disputes reports on its policies towards Muslims in Xinjiang. At the same time, the government passed a series of laws and regulations purportedly providing a legal basis for targeting Muslims in response to national security concerns. These new legal measures include a 2015 Counterterrorism Law that criminalized a broad range of conduct and expression, including clothes and symbols. And Xinjiang introduced regulations authorizing re-education facilities to combat “religious extremism.” Dui Hua found the first judgment involving the use of “educational placement,” a new coercive measure imposed on prisoners who are considered a danger to society even after completing their sentences for terrorism or extremism offenses. The Foundation also discovered judgments involving violators of the Islamic clothing ban in force throughout Xinjiang. Individuals can be sentenced for “illegal business activity” for selling clothing with the Islamic star and crescent symbol. In one case, a Muslim man, Gong Xiaojun, was sentenced to two years' imprisonment for “disrupting official business” after arguing with cadres over his “abnormal” beard and a black robe his wife was wearing at home. The case indicates that Xinjiang authorities have extended the reach of the ban to peoples’ homes. Across the board, China appears to be using the veil of national security law to justify openly discriminatory practice.
The Korematsu decision reminds us that while a discriminatory policy may enjoy a veneer of legality, that legality is ultimately no match for the judgment of history. The internment of Japanese Americans was wrong during WWII, despite Supreme Court reasoning to the contrary. China’s efforts to criminalize Muslim expressions of faith today are no less abhorrent, whether or not they find basis in statute. As Justice Murphy wrote in his dissent in Korematsu in 1944, “[s]uch exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.”