From the TriCityHerald.com
‘Due process’ s hallmark of American justice
By Ursula Potter, In Focus
A little over 70 years ago, on Dec. 9, 1941, my father was suddenly and without warning taken by FBI agents from our home farm south of Spokane and ultimately sent to four different internment camps.
A few months after his “arrest,” he was given a hearing, but was not allowed legal counsel, nor was he told the “evidence” against him.
In other words, there was no due process afforded him.
Most Americans know about the mass relocation of Japanese citizens during World War II. Few, however, know much about the selective internment of thousands of ethnic Japanese, Germans, Italians and other Europeans, as well as Latin Americans sent here from South American countries.
These people were, on the whole, innocent of any wrongdoing. Indeed, not a single one of them ever was formally charged or convicted of any crime against the U.S., and yet their lives were torn apart -- in some cases completely ruined -- by fear spawned by wartime hysteria.
Partly because of what happened to my family during World War II, I followed with much consternation the passage of The National Defense Authorization Act by Congress and hoped against hope the president would veto it.
The part of the bill that causes me so much distress is the provision that allows for the indefinite detention under military custody of U.S citizens and legal residents, as well as others arrested on American soil, who have been accused of terrorist activities.
These people would be denied the due process that is our birthright. The writ of habeas corpus -- up to now, a basic constitutional protection against an overreaching government -- would be suspended.
Just before the new year, President Obama signed this bill into law. However, I was very interested to read, in The Associated Press article covering this event, that as a condition of signing the bill, the Obama administration had convinced Congress to drop the military custody requirement for U.S. citizens or lawful U.S. residents.
But after various constitutional scholars weighed in, I now know that the wording of this provision is tricky, which is too often the case with such murky legislation.
Military custody is “not required,” the bill states. Many think this wording permits indefinite military custody at the discretion of a president, and even though Obama promised in a signing statement that his administration would not authorize such detention, it still leaves the door open for future presidents to do so, or even this president, if he changes his mind.
History has shown us that such laws often live on or morph into other forms. In 1798, the U.S. government passed the Alien Enemies and Sedition Acts. Part of these acts targeted foreign writers and speakers living in the U.S. who were sympathetic to the candidacy of Thomas Jefferson.
The Sedition Act eventually was overturned, but the Alien Enemies Act was re-codified in 1918, making it a part of the U.S. War and National Defense Statutes. The AEA allows the president to issue proclamations in which aliens of a “hostile nation,” living within the U.S., can be labeled as alien enemies and at the president’s discretion, be “apprehended, restrained, secured and removed.”
It was such a proclamation, issued by Franklin Roosevelt at the beginning of World War II that sent my father and thousands of ethnic Germans and Italians to internment camps and thousands of Japanese American citizens to relocation camps.
Now, it seems, rather than having learned from our mistakes during World War II , we are amplifying them. Instead of passing laws that would prevent such unconstitutional activity during present and future wars, we are adding to the horror by creating new and even more onerous laws.
At least World War II had some parameters -- a beginning and an end. The war on terror has no such defining timeline. Someone detained during the so-called war on terror could be locked away indefinitely with no hope of due process and no hope of being exonerated or even obtaining a definite sentence.
In August 2001, The Wartime Treatment Study Act was first introduced to Congress by Sens. Russ Feingold and Chuck Grassley. If passed, this bill would have created a commission to study the internment of Europeans by the U.S. during the WW II years. It also would have created a second commission to study why Jews seeking asylum here were turned away.
That bill was introduced four times and despite having been voted favorably out of the Senate Judiciary Committee each of those times, it finally died in the 111th Congress, never having been voted on by the House. Many former internees and their families and friends worked diligently on promoting this bill.
The Wartime Treatment Study Act never came to a final vote, but the questions it sought to answer are even more pressing today.
The National Defense Authorization Act, with its provision to effectively suspend the writ of habeas corpus for U.S. citizens and legal residents accused, perhaps, of the same “crimes” my innocent dad was accused of, has been quickly passed into law -- with very little attention from mainstream media.
I recently turned 71. From the time of my early adulthood to now, I've gone through a metamorphosis in my political and world views -- shaped, I think, by the event that happened in my early childhood.
For one thing, I have come to believe that before America truly can become an example to the world for human rights, we must collectively get over the notion that we need to vilify and target people of certain ethnicities living here in the U.S. to be patriotic and safe.
Remember FDR’s famous line: “We have nothing to fear, but fear itself!” I always have thought that this line was, in itself, a great irony. It was such fear that sent my dad and thousands like him to internment camps, and it is this kind of fear that motivated our current lawmakers to eliminate a basic constitutional right. I am horrified!
On Jan. 5, Sen. Diane Feinstein of California introduced legislation to undo these provisions of the NDAA, in the form of The Due Process Guarantee Act. I urge you all to contact your members of Congress to support this legislation!
For more information about the internment of ethnic Germans and other Europeans during the World War II years, go to www.gaic.info.
-- Ursula Potter is a retired educator who lives in Kennewick.
