In thinking about Attorney General Eric Holder’s deliberations on how and to what extent to investigate Bush-era torture policies, I think it pays to look back at what I consider the closest historical parallel: the Japanese internment camps. Both cases involved overreactions to unprovoked attacks on our homeland. In 1988, Congress determined that the decision to inter Japanese-Americans was based on “race prejudice, war hysteria, and a failure of political leadership” and authorized $1.6 million in reparations. Ronald Reagan signed the bill. I don’t think we want to wait forty-three years to recognize our post-9/11 errors.
One interesting parallel between the 1940’s and the Bush era is that offending policies were justified in part by difficulties in using sensitive electronic surveillance in court.
In Magic: The Untold Story of US Intelligence and the Evacuation of Japanese Residents From the West Coast During World War II (2001, Athena Press), David Lowman (1921-1999), a Former Special Assistant to the Director of the National Security Agency, argues that Roosevelt was persuaded to authorize the evacuation when told the US had only partly and with great difficulty broken the Japanese Naval codes. Successful prosecution of Japanese-Americans would force the government to release information revealing their knowledge of Japanese ciphers. If the Japanese Imperial Navy changed its codes, Roosevelt was told, it might be months or even years before they could be read again. Magic was the code-name for American code-breaking efforts.
In other words, Roosevelt was convinced to round-up all the Japanese-Americans on the West Coast because singling out the few we knew to be spies and prosecuting them in a court of law would require introducing evidence that could only be obtained by breaking the Japanese ciphers (thus, revealing that they had been broken). In a similar vein, Bush was convinced that our efforts to surveil al-Qaeda members would be compromised if we attempted to prosecute them in a court of law. Bush was also convinced that he needed to violate the Foreign Surveillance Act of 1978 and the National Security Act of 1947 in order to adequately protect the country with the necessary level of secrecy about sources and methods.
As in the case of the internment camps, I think it fair to say that historians will have a modicum of sympathy but will ultimately judge Bush’s actions quite harshly. One significant difference between the two cases is that the Supreme Court ruled in Roosevelt’s favor in 1944, while the Supreme Court ruled against Bush repeatedly, even while he was still in office.
Another difference is that the war with Japan ended suddenly and definitively, while the struggle to prevent massive acts of terrorism is going to be with us for the foreseeable future. Yet, the country didn’t seek to prosecute the people that ordered or carried out the internment of Japanese-Americans. In part, the reason why we didn’t do that is because it took decades for our attitudes about race to change sufficiently to gain a consensus that the internments had been wrong and unjustified. But another part of the reason is that the war was over and the internment camps were closed. There was no currency to the debate. We don’t have that luxury when it comes to protecting our privacy rights in a surveillance state, or in determining the right way to interrogate, detain, or prosecute terrorism suspects.
It may be unpleasant to investigate an administration of such recent vintage, but we must do it because we have to get these policies right going forward. In the end, the investigators will have to use prosecutorial discretion in determining who should or should not be charged with crimes. But our policy makers need a good understanding of what was done, what worked and didn’t work, and why, so that they can make wiser decisions for our future. Holder needs to authorize someone to get the facts. What to do about those facts can wait until after they are collected.
