by Robert A. Levy

Every American knows that Dec. 7, 1941 -- the date that Japanese planes attacked the U.S. naval base at Pearl Harbor -- is "a date which will live in infamy." But few Americans remember a second infamous anniversary: May 30.

Three months after the attack on Pearl Harbor, President Franklin D. Roosevelt issued an executive order that gave specified military commanders nearly total discretion to remove people of their choosing from areas deemed to have military significance. Toyosaburo ("Fred") Korematsu, an American citizen of Japanese descent, violated the exclusion order and was arrested on May 30, 1942. Thus began one of the darkest episodes in American constitutional history.

Initially held in a San Francisco jail, Korematsu was later sent to an assembly center, and then to a relocation center described by Supreme Court Justice Owen Roberts as a concentration camp. No question was ever raised regarding Korematsu's loyalty to the United States. He had never been to Japan, did not claim Japanese citizenship, did not read Japanese and spoke the language poorly.

Over the next two years, 120,000 Japanese-Americans, including 70,000 U.S. citizens, were subject first to curfews, then exclusion from their homes and finally relocation to internment camps. None of the 120,000 victims was convicted of espionage or sabotage, or even accused of disloyalty. By war's end, Japanese-American troops had received 18,000 decorations for valor. Remarkably, many of the troops had volunteered for service from within the internment camps. Not until mid-1946 did the last residents of the camps return to their homes.

Korematsu's challenge to his incarceration fell on deaf ears. The Supreme Court, in a 1944 decision written by Justice Hugo Black, invoked national security to absolve the Roosevelt administration of an unconscionable violation of civil liberties. Dissenting Justice Robert H. Jackson cautioned that "guilt is personal and not inheritable." By condoning Korematsu's mistreatment, he wrote, "the court for all time has validated the principle of racial discrimination. ... The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

Not until 1983 did the Commission on Wartime Relocation and Internment of Civilians finally acknowledge that the internment program was a "grave injustice" that was "conceived in haste and executed in an atmosphere of fear and anger at Japan." The commission found, unanimously, that Roosevelt's executive order "was not justified by military necessity" but was the product of "race, prejudice, war hysteria and a failure of political leadership."

In 1988, President Ronald Reagan authorized reparations of $20,000 each to thousands of internees, including Korematsu. Then, in 1999, President Bill Clinton awarded Korematsu a presidential Medal of Freedom, the nation's highest civilian honor. Fred Korematsu died at age 86 on March 30, 2005.

Few Americans would argue that the United States, under attack by Japan, should be forbidden from considering Japanese ancestry combined with evidence of misbehavior to identify potential targets for further investigation. But the Roosevelt administration did not combine nationality with evidence of misbehavior. Japanese ancestry was the sole criterion, and incarceration, not investigation, was the resulting government act. When undefined ethnic profiling, with no basis for assuming that a single suspect had been disloyal, is used to deny liberty to 120,000 innocent persons, we should be outraged.

Regrettably, the Supreme Court was not outraged. By authorizing the president to incarcerate innocent Americans based solely on their lineage, the court set the stage for later presidential power grabs, culminating in President George W. Bush's unprecedented claims of executive authority in the war on terror.

Bush has been more than willing to wield the "loaded weapon" of wartime power based on "urgent need." He has claimed authority to engage in electronic surveillance without a warrant, to convene military tribunals without congressional approval, to establish secret CIA prisons, to declare that all battlefield detainees are enemy combatants, to imprison U.S. citizens without filing charges and to employ interrogation techniques that may have violated our treaty commitments banning torture.

The problem is not that courts today are invoking the Korematsu case to justify executive power. The holding in that case is an anachronism, "overruled in the court of history," even if not officially repudiated by the Supreme Court. But Fred Korematsu's challenge, if it had been upheld, would have stood as a formidable barrier to excessive concentrations of power in the executive branch. Instead, the court condoned Roosevelt's unconstitutional internment policy and passed up its chance to establish legal precedent that might have dissuaded future executive misbehavior.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute and coauthor of "The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom."
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