Eric K. Yamamoto and Susan Kiyomi Serrano

Excerpted from, Eric K. Yamamoto and Susan Kiyomi Serrano, The Loaded Weapon Amerasia Journal 27:3 (2001)/28:1(2002): 51-62, 51-53

[T]he Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Justice Jackson, dissenting Korematsu v. U.S., 323 U.S. 214 (1944)

What do you make of Nasser Ahmed's secret incarceration? An imagined Kafkaesque trial of the absurd? Could it be real, here in the United States?

Nasser Ahmed spends over three years in prison as a national security threat. "Secret evidence" in a "secret" government proceeding marks him a bona fide threat to the nation's security. An Egyptian father of four U.S. citizen children, Ahmed is never charged with a crime. Even so, the Immigration and Naturalization Service imprisons and then seeks to deport him based on evidence hidden from Ahmed and his attorney. For an entire year, the government refuses to even furnish Ahmed's lawyer with a summary of the evidence. Finally, the government provides a one-line summary, asserting only that it has evidence "concerning respondent's association with a known terrorist organization." The government refuses to identify the Organization. Unable to defend himself against nonexistent charges on the basis of undisclosed evidence in a secret proceeding, Ahmed languishes in solitary confinement. After years of incarceration the actual "secret"" evidence is revealed, and it shows that Ahmed has not engaged in any kind of terrorist activity. Nor has he supported any terrorist organizations. The government imprisoned and sought to deport Ahmed on national security grounds because of his "associations." And what were the government's allegations of those associations? Ahmed once was appointed by a U.S. court to serve as a paralegal and translator for the defense team of Sheik Abdel Rahman, who was being tried in a U.S. court for seditious conspiracy. Three years of secret incarceration for doing what the court asked and indeed authorized him to do.

Ahmed's civil liberties nightmare sounds like tortured Kafkaesque imaginings. It is, however, reality. United States reality. One such story among many. And it happened during time of comparative peace, well before the public outcry for revenge abroad and heightened national security protections at home following the September 11 attacks on the World Trade Center and Pentagon. A board of immigration appeals court eventually reviewing Ahmed's case said that Ahmed's blind imprisonment for groundless national security reasons was an injustice. But that was before. Before the "War on Terrorism."

Today, in response to the horrific killing of thousands of Americans and people from countries around the world, the President, Congress and federal agencies, like the Immigration and Naturalization Service, are creating a new regime of national security measures. Some of these measures are needed and only reasonably burdensome - like added checks at airports and increased security at nuclear power plants and government buildings. But others, like secret detentions, are immensely troubling. When the government abuses its national security powers, particularly by targeting members of vulnerable groups, and is challenged, how are the U.S. courts likely to rule?

This is the key question for all concerned about both the nation’s security and civil liberties, for all concerned about justice here as well as abroad. Will the judiciary, as popularly believed, stand strong under the Constitution as the bulwark against ill-conceived, harshly discriminatory government action during times of national stress? Will it assure due process and equal protection for those denigrated in the public mind, the very democratic values that make the nation’s security worth protecting? Or, taking an implicit cue from the U.S. Supreme Court, might frontline and appeals courts react with more fear than balance and replay in post- modern form the injustice of the Japanese American World War II internment? Recall the potentially prescient dissent of Supreme Court Justice Jackson in the 1944 Korematsu case, which upheld the legality of the internment: "The Court has for all time validated the principle of racial discrimination in criminal procedure and of transplanting citizens. The principle stands as a loaded weapon ready for the hand of any authority that can bring for- ward a plausible claim of urgent need."

ERIC K. YAMAMOTO is professor of law, William S. Richardson School of Law, University of Hawaii at Manoa.

SUSAN KIYOMI SERRANO is project director, Equal Justice Society; William S. Richardson School of Law, Univel5ity of Hawaii at Manoa.