The following comment has been revised and expanded as of October 3 at 10:00 am:

In his September 29 Immigration Daily post: Will Muslim-Americans be put in internment camps if more 9/11 attacks occur? Nolan Rappaport suggests that at least a few American Muslims might be subjected to internment without charges if they are actually terrorists or terrorist supporters.

Of course, we have laws in America against terrorism and supporting terrorism, including but not limited to the PATRIOT Act, enacted in the wake of 9/11. Anyone charged with violating or attempting to violate such a law is of course subject to apprehension and incarceration, along with all attendant due process rights.

But Nolan Rappaport, if I understand his comment correctly, appears to be suggesting that something much broader could happen, - namely a kind of preventive detention for people not charged with any violation of law, based in large part on perceived or alleged danger to society because of their religious affiliation. Nolan writes:

"While the possibility of intenrment camps for Muslim-Americans may sound farfetched, it happened to Japanese-Americans in Wold War II. Understanding how it happened to the Japanese Americans might help prevent it from happening again."

I would agree with Nolan that the idea of preventively interning Muslim-Americans as a group, or even just a few members of this group, as an anti-terror or national security measure is indeed far fetched.

Nothing is more sacred or protected than the guarantee of free exercise of religion enshrined in the First Amendment to our Constitution, together with the rights to equal protection of the law and due process of law contained in the 14th Amendment.

Nolan's above post, understandably, does not refer to freedom of religion at all in connection with the Japanese-American internment, because religion was obviously not an issue in that episode. However, the 14th Amendment guarantees of equal protection and due process clearly were involved, and, in my view, they deserved fuller discussion in Nolan's post than they received. I will attempt to make up for that in this series of comments.

Nolan's post is also noteworthy because there have been some attempts to impose legal restrictions on Muslim-Americans or on the practice of their religion.

These include attempts in one or more states such as Oklahoma to ban "Sharia Law" though legislation introduced to that effect, and an alleged New York City Muslim surveillance program which was the subject of the 2015 Third Circuit Court of Appeals decision in Hassan v. The City of New York, 804 F.3rd 277.

This landmark case will be discussed in more detail later on in this series of comments. But I do not know of any proposal that has been suggested by anyone, even in the current heated presidential campaign, to incarcerate all or even selected Muslim-Americans, based on their religion or ethnicity, without actual charges of violating any law being made against them.

In even suggesting that such a thing could happen, Nolan appears to be entirely by himself, to the best of my knowledge. However, he is of course entirely correct in pointing out that this did in fact happen to Japanese-Americans some seventy-five years ago, and that it is important to see that it never happens again.

But could the internment of Japanese-Americans somehow provide a legal precedent for interning or otherwise restricting the legal rights of many, or even a few, Muslim US citizens as a group in the event of future terrorist attacks against the US?


While I will reserve a detailed discussion of the landmark Third Circuit Hassan v. The City of New York decision, cited above, for a forthcoming installment in this series, I will quote from this decision's comment about the reasons for the Japanese-American internment and its alleged "constitutionality" or value as a "precedent" for any legal action against Muslim Americans taken as a group or based on their religion: The Court stated:

"Today it is acknowledged, for instance, that the F.D.R. administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps. Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the Government's representations that the use of such classifications was necessary for the national interest.
Hirabayashi, 320 U.S. 81; Korematsu, 323 U.S. 214. In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but by unfounded fears." (804 F.3rd at 307)


Of course, one could argue that the above two WWII period cases upholding discrimination against Japanese-Americans based on race still have more precedential value than the recent Hassan decision because the first two mentioned cases were decided in the Supreme Court, not a (slightly) lower ranking court as with Hassan.

However, it is highly doubtful that anyone one could make such a contention seriously, especially since there is a strong argument that both of those wartime cases were in effect overruled by statute in 1988 when Congress passed, and President Reagan signed, a law apologizing to the Japanese-American community for the internment on behalf of all the American people.

Japanese-Americans, of course, are not the first minority group in world history to be subjected to incarceration or other legal restrictions based on religious or ethnic affiliation.

Therefore, in order to gain a better understanding of the reasons for the Japanese-American internment and to examine them in a larger historical context, it would be instructive to take a brief survey of two other well-known historical examples of incarceration or other severe legal restrictions against minority groups based on ethnicity, religion, or both.

In doing so, I will examine legal actions that have been taken in the past to restrict or abolish the rights of adherents of two great world religions that have had major influences on our history and civilization, especially but not exclusively in the West, and which are both widely considered as being related to Islam in terms of belief and doctrine, namely Christianity and Judaism.

First, I will discuss the legal edicts against Christians under the Roman Emperor Diocletian in the early 4th Century A.D. Then, I will look at the Nuremberg Laws against the Jews enacted in Germany under the National Socialist regime in the 1930's.

.The early Christian historian Eusebius, writing in his Ecclesiastical History (Historia Ecclesiastica, in Latin) around A.D. 335, only a few years after the fact, relates as follows:

"It was in the 19th year of the reign of Diocletian [A.D. 303], in the month Drystrus, called March by the Romans,, when the feast of the Saviour's passion was near at hand, that royal edicts were published everywhere, commanding that churches be leveled to the ground and and the Scriptures destroyed by fire, and ordering that those who held places of honor be degraded, and that the household servants, if they persisted in the profession of Christianity, be deprived of freedom. Such was the first edict issued against us. But not long after, other edicts were issued, commanding that all the rulers of the churches in every place be first thrown into prison, and afterwards by every artifice be compelled to sacrifices."

I have not been able to find actual texts of these decrees and do not know if they are still extant. But Eusebius' above summary makes their content clear enough.

What, if anything, had the early Christians in the Roman empire done to attract this degree of legal persecution? One could ask the same question about the Jews in Nazi Germany or the Japanese-Americans during WWII.

According to historians, there are a number of reasons why Christians in the ancient Roman empire may have been looked at with suspicion, or even fear, by the ruling authorities, leading to the promulgation of strict legal measures against members of this religious minority group.

I will discuss a few of these reasons in the next installment of this series.
_________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the worls and religious/ethnic backgrounds to obtain work visas and green cards. Roger's email address is
algaselex@gmail.com