Trump Administration Uses Japanese Internment Example to Deny Rights to Detainees

Activists dressed as detainees from the Guantanamo Bay detention camp protest in front of the White House January 11, 2018, the sixteenth anniversary of the opening of the detention facility. Win McNamee/Getty Images

Attorneys for President Donald Trump's Department of Defense have cited a Japanese internment case in order deny rights to detainees at Guantanamo Bay.

The Trump administration submitted a brief to a military commission this week to prevent Ammar al Baluchi, who is accused of aiding in the 9/11 terrorist attacks, from publicly sharing his artwork. To support its argument, the briefing cites Hirabayashi v. United States, a Supreme Court case that allows the United States military to enforce a curfew on members of a minority group while at war with that group's country of origin.

"The power to wage war is the power to wage war successfully. See Hirabayashi v. United States, 320 U.S. 81, 93 (1943)," the citation reads. "The Department of Defense has decided part of the way to win this war is to cut off a vital recruiting tool al Qaeda uses; the words and statements of their fighters who have successfully attacked America."

Steve Vladeck, a University of Texas law professor and CNN contributor, wrote that it wasn't a "good look" for the Department of Defense to invoke the 1943 ruling.

Dear Department of Defense:

The broader legal arguments aside, can we agree that it's not a good look to invoke #SCOTUS's 1943 ruling in Hirabayashi (one of the Japanese American internment cases) in support of your effort to prevent #GTMO detainees from sharing their artwork??

— Steve Vladeck (@steve_vladeck) June 14, 2018

The briefing discussed the Hirabayashi case at length, arguing that "[This power to successfully wage war] …extends to every matter and activity so related to war as substantially to affect its conduct and progress." The power is not just limited to winning field victories, the briefing argued. 'It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war."

In 2011, the Department of Justice filed an official notice saying that Japanese internment camp policies had been made in error. It is extremely rare for the department to affirmatively cite a case defending such practices.

Gordon Hirabayashi, who was arrested for violating his curfew in order to attend a study group, was eventually sentenced to two years in prison. In 1986, his charges were overturned after the examples of Japanese-American sabatoge that the Solicitor General's office had cited were found to be false.

In May of 2012, President Barack Obama presented Hirabayashi with the Presidential Medal of Freedom.

About 40 detainees remain in Guantanamo Bay, awaiting trial. Art from Guantanamo Bay is an organization that exhibits artworks made by those detained at the facility.