Bosen: Korematsu Is Happening Again Right In Our Back Yard

By Theodore Bosen, InDepth NH

Back in college days, I had the rare privilege of getting to meet one of my all time heroes – Supreme Court Justice William O. Douglas.

For those who do not keep up with the third branch of the U.S. government, he was the longest serving, most liberal civil rights advocate to serve on the court appointed by FDR in 1936 and retiring in 1975. His opinion in Griswold v. Connecticut, holding that a “right to privacy” is found in the “penumbra” of fundamental rights elucidated in the U.S. Constitution, became the basis for several other holdings, including the right to love who you want, the right to use contraception, and the right of women to control their own reproductive decisions.

Douglas, the eternal nemesis of the right wing, came to my college when nearing retirement to speak, then invited those of us who wanted further discussion to join him afterwards for a bull session. A few of us did. I had one problem with his record – he had voted with the majority in the Korematsu case to allow the military to round up those of Japanese ethnic heritage and intern them in concentration camps during World War II.

Hoping he had regretted that one, I asked him what SCOTUS decision he would change if he had to do it over again. Without hesitation, and with tears welling up in his eyes, he said “Korematsu.” He said he was initially on the dissenters side, but switched out of fear that the government might be right arguing that it was necessary to round Japanese Americans up for national security at the time.

He said there was much fear in the air, and fear led him to back down from upholding the Constitution. As a result, Americans who had done no wrong were taken out of their West Coast homes and locked up in camps in the interior, just because their skin was yellow and their eyes were slanted. He said he feared it being used as a precedent for similar behavior down the road and stated that the answer to such problems should never be to become the fascists we were fighting. I loved him all the more for being willing to acknowledge his mistake. Now we know what he was worried about.

The fear Douglas talked about that leads to a fascist reaction is the same kind of misunderstanding that now pervades the world of the MAGA-susceptible. Trump and his followers peddle the propaganda that those being rounded up now are all “illegals, criminals, and the worst of the worst,” but those of us who are capable of doing real fact checking, mostly by just being literate enough to read real newspapers, understand the truth:

The overwhelming majority being detained and deported are here legally, having been allowed to apply for asylum or having been given temporary protective status of some kind because of the horrific state of their home countries, like Haiti, Venezuela, and Afghanistan. Trump, himself, in his first term, issued an EO granting such status to all Venzuealans.

In Trump 2.0, he fired scores of immigration judges to impede the hearing process and blanket-decreed all TPS immigrants “illegal.” The fact is, according to DHS records, 70 % of those detained have no criminal record. The average undocumented person, according to the Congressional Budget Office, was employed with a work permit and paying $7,000 in annual taxes without being eligible for the benefits they fund, thus contributing to the stability of the Social Security fund, which is now slated to expire five years earlier because of the roundup.

Most were snatched up by masked ICE thugs – from courts and programs where they went to seek legal status “the right way,” like the MAGAs whine about. But clearly no right way is possible now. My friend who had been resettling Afghans who had helped our troops survive the Taliban now helps them escape ICE instead. Such a betrayal is unforgivable.

Many undocumented detainees have families, especially kids, with American citizenship. Virtually all had jobs in essential services that kept this country going during COVID, as well as during the bounceback from the ensuing economic recession – in construction, agriculture, meatpacking, food service, etc. They have been dragged out of cars after being run off the road, dragged out of homes without warrants, kidnapped by masked men with no badges on the road side, some while putting their kids on school buses, and are now even being taken out of churches.

I have met some of them here in Berlin where they are being held in the Federal prison. Those of us who volunteer with legal services groups, the ACLU, and sanctuary organizations do what we can, but our efforts will be a drop in the bucket as ICE is getting an infusion this fall of 5,000 more poorly trained troops and 1000 more offices, nationally. Moreover, Trump just fired every immigration judge in the nearest Immigration Court in Massachusetts who ever granted a bond to any of them.

In our state, the bar is largely AWOL. As a member of the legal profession, I am ashamed that no more than four or five New Hampshire lawyers, a couple of them retired from other states, are lining up to defend their Constitutional rights, as these detainees have not been afforded due process in most cases. Unknown to most laymen, the fifth amendment requires notice and an opportunity to be heard before depriving anyone in America of his liberty.

We almost had a mega detention center in New Hampshire, like those in the south where many detainees are sick and brutalized, and some even dying – over 50 since the beginning of the year, but Ayotte stopped it, realizing her polls were dropping in an election year because no one bought her feigned ignorance over the fact that her administration was working with DHS to plan it. I have no doubt it will be back after the election.

Like Rene Good’s brother asked this past week when her family filed a federal case to force an investigation of her murder, “What happened to America?” The answer was foreseen by Justice Douglas as the inevitable result of even a momentary lapse in the vigilance required to protect the Constitution every day. —

Theodore Bosen is a lawyer, innkeeper, and Democratic activist in Berlin, New Hampshire. Email: tlbosen@gmail.com

This story was originally published by InDepth NH.