Japanese Internment Gets A New Breath of Life in the Eastern District of New York

Federal district judge John Gleeson (E.D.N.Y.) yesterday filed an opinion of potentially enormous significance (.pdf file) in Turkmen v. Ashcroft, a class action challenging the government’s prolonged confinement of Arab and Muslim aliens on immigration charges in the wake of the September 11 attacks. In a nutshell, Judge Gleeson dismissed all claims asserting that the government violated the law in singling the detainees out for arrest and prolonged detention on the basis of their race, religion, and ancestry. He declined to dismiss the plaintiffs’ claims challenging the conditions of their confinement.

It is the dismissed claims that interest me, especially the claim that simply because of their nationality and their religion, the government detained these post-9/11 detainees for far longer than necessary after they had received final orders of removal or grants of voluntary departure, without affording them a hearing to determine whether the continued detention was warranted. Naturally, the plaintiffs presented this claim under the equal protection component of the Fifth Amendment’s due process clause.

Judge Gleeson made quick and dismissive work of this claim: these plaintiffs were aliens, not U.S. citizens, and for that reason the government was free to single them out for special enforcement on account of the unadorned fact of their national origin without violating norms of equal protection.


The precedent on which Gleeson relied was the Supreme Court’s decision in Reno v. American-Arab Antidiscrimination Committee. There the Court held that federal statutes did not confer jurisdiction to entertain a selective-prosecution challenge to a deportation proceeding. (The plaintiffs in that case were members of an alleged terrorist group, the Popular Front for the Liberation of Palestine; they alleged that the government violated their constitutional rights by singling them out for deportation in violation of their First Amendment rights to expression and association.)

For Judge Gleeson, this was an easy issue:

In the investigation into the September 11 attacks, the government learned that the attacks had been carried out at the direction of Osama bin Laden, leader of al Queda, a fundamentalist Islamist group; some of the hijackers were in violation of the terms of their visas at the time of the attacks. In the immediate aftermath of these events, when the government had only the barest of information about the hijackers to aid its efforts to prevent further terrorist attacks, it determined to subject to greater scrutiny aliens who shared characteristics with the hijackers, such as violating their visas and national origin and/or religion. Investigating these aliens’ backgrounds prolonged their detention, delaying the date when they would be removed.

As a tool fashioned by the executive branch to ferret out information to prevent additional terrorist attacks, this approach may have been crude, but it was not so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise. … I note, however, that the extraordinary circumstances of September 11 are by no means a prerequisite to the deference owed the political branches in this area. … Such national emergencies are not cause to relax the rights guaranteed in our Constitution. Yet regarding immigration matters such as this, the Constitution assigns to the political branches all but the most minimal authority in making the delicate balancing judgments that attend all difficult constitutional questions; “nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require [courts] to equate [their] political judgment with that of” the executive or the Congress.

But this issue should not have been so easy.

There is a historical precedent for the prolonged wartime detention of an alien group on the simple basis of their ancestry, and – perhaps not surprisingly, given the direction he was heading – Judge Gleeson did not mention it. That precedent is the multi-year incarceration of aliens of Japanese ancestry in World War II, without any sort of hearing to ratify their continuing and prolonged detention. (The government also incarcerated U.S. citizens of Japanese ancestry, but it is the detention of Japanese aliens, the so-called “Issei,” that I speak of here.)

To be sure, the lengthy incarceration of the Issei without hearings was never the subject of a lawsuit, as was the incarceration of their citizen children (see Ex parte Endo, the subject of a recent mini-symposium at my blog IsThatLegal).

But it would be wrong to say that this prolonged detention was legal, or that the illegality of the detention has gone unredressed. Quite the opposite is true. The Civil Liberties Act of 1988 said the following:

“The Congress recognizes that … a grave injustice was done to both citizens and permanent residents of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II. … For these fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry, the Congress apologizes on behalf of the Nation.”

The legislation went on to authorize an apology and reparations payments for the illegal prolonged detention – not just to U.S. citizens, but to resident aliens of Japanese ancestry.

Judge Gleeson is undoubtedly right that the executive has broad discretion to prioritize its immigration enforcement, and that in that enforcement, it can single out people of certain nationalities for deportation before others. But that is not the nub of the Turkmen plaintiffs’ now-dismissed claim. The nub of their claim is that the government held them in prolonged and unjustified detention, beyond any period necessary for the enforcement of the deportation laws, and without any sort of hearing to approve their prolonged detention, simply on account of their national origin. Focusing on prolonged detention rather than the simple decision to deport, their claim is therefore much more like the one legislatively vindicated in the Civil Liberties Act of 1988, and less like the deportation challenge that the Court rejected in Reno v. American-Arab Antidiscrimination Committee.

As I said, Judge Gleeson did not note the precedent of the illegal prolonged incarceration of the Issei in World War II. Who, in this day and age, would wish to rely on such an ugly episode for support?

But that ugly episode is fairly direct historical precedent for the prolonged detentions alleged in the Turkmen complaint. Candor would require Judge Gleeson to admit that he has given the government carte blanche not just to deport aliens of particular races, nationalities, or religions, but to confine them at length in this country, on the basis of nothing but race, religion, or nationality, without any sort of hearing before a neutral arbiter.

“National emergencies are not cause to relax the guarantees in our Constitution,” said Judge Gleeson.

Yet that is just what his opinion does.

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10 Responses

  1. Jay says:

    Professor Muller, though I find the Turkmen opinion troubling, I don’t read it as authorizing treatment equivalent to the World War II era treatment of the Issei. The Turkmen court held only that the Constitution does not limit pre-deportation detention of illegal aliens when that detention is based on religion, ethnicity, or national origin. It did not permit detention of permanent residents or other legal aliens on any of those grounds. Compare that holding to the text you quote from the 1988 Civil Liberties Act, which refers explicitly to “citizens and permanent residents of Japanese ancestry.” Am I missing something?

  2. Eric Muller says:

    I see nothing in the Turkmen opinion that suggests a greater judicial capacity to hear claims of selective enforcement brought by lawful than unlawful aliens. The line that Gleeson draws is a line between citizens and aliens. See pp. 78-79 of the opinion:

    There is thus nothing outrageous about the plaintiffs’ claim of national-origin discrimination in this context; the executive is free to single out “nationals of a particular country” and “focus[]” enforcement efforts on them. Id. This is, of course, an extraordinarily rough and overbroad sort of distinction of which, if applied to citizens, our courts would be highly suspicious. Yet the Supreme Court has repeatedly held that the political branches, “[i]n the exercise of [their] broad power over naturalization and immigration … regularly make[] rules that would be unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); compare, e.g,, Fiallo v. Bell, 430 U.S. 787 (1977) (upholding law denying illegitimate child fathered by American citizen the immigration privilege afforded to a legitimate child), with Moore v. City of East Cleveland, 431 U.S. 494 (1977) (striking down housing ordinance limiting occupancy of a dwelling to a single family and defining a single family to preclude grandmother from having grandson live with her). Indeed, “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952). “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 589.

  3. Jason Solomon says:

    Jay’s absolutely right, and this post is fairly outrageous. (Disclosure: I clerked for Judge Gleeson five years ago, but didn’t work on this case, and haven’t talked to him about it since.)

    If you want to argue with his equal protection analysis, go ahead. But the Japanese internment analogy fails. All the plaintiffs here are illegal aliens, and the detention is based on their undisputed illegal conduct. Were the people of Japanese ancestry detained for immigration violations? And if this is such a clear historical precedent, why didn’t the plaintiffs mention it in their brief?

    Unless you have an answer for this, I assume you’ll retract or tone down the post. It’s a careless and “dismissive” slur towards a thoughtful opinion and a judge who’s written a lot of pro-immigrant opinions over the years, including in this very set of cases.

    I know you’ve done a lot of terrific work on the Japanese internments, but the shoe just doesn’t fit here.

  4. Eric Muller says:

    Jason, how do you account for the aliens-vs-citzens language of the passage I just quoted in the prior comment? Judge Gleeson says that a national-origin distinction in law enforcement would be “unacceptable if applied to citizens,” but is acceptable as applied to aliens. He draws no distinction here between legal and illegal aliens.

    This is no “slur” on Judge Gleeson, incidentally. It is absolutely a criticism of his opinion. But there’s not a personal word about the judge himself in my post.

    In my view, it is Judge Gleeson who should retract or tone down that portion of his opinion–admittedly dictum–in which he suggests an essentially unreviewable power to detain non-citizens indefinitely. (And that is the distinction he emphasizes — the distinction between “citizens” and “aliens” — in his disquisition on government power and judicial review. Not a distinction between legal and illegal aliens.

    This is irresponsible language in an opinion on a matter of such importance. Judge Gleeson would have been well advised to write narrowly here, rather than writing in a way so broad that it endorses the wartime internment of Japanese aliens.

  5. Jason Solomon says:

    Eric, the passage you cite looks like a lot of quotes from Supreme Court opinions. Is any of it no longer good law?

    I’m glad you appear to be backing away from your core claim that the ruling is the equivalent of saying the internment of Japanese-Americans was OK, and I assume you’ll change the title and that line of criticism in a revised post.

    Now that you appear to have narrowed your criticism to dictum on p. 78 of a 99-page District Court opinion with a precedential value of zero, I’m going to bed.

  6. And what of the doctrine, as in US. v. Verdugo-Urquidez, stating that “the people” constitutes a class of individuals broader than that merely of the citizens of the US?

  7. hahahayousuckthissucksineverreadthisimtypintisforthehellofitsoha!

  8. john toilet says:

    this is gay. its boring and stupid i couldnt get thru the whole stupid thing this sucks

  9. john toilet says:

    this is gay. its boring and stupid i couldnt get thru the whole stupid thing this sucks

  10. john toilet says:

    this is gay. its boring and stupid i couldnt get thru the whole stupid thing this sucks