by Christopher Gerteis

Recent clashes between antiwar demonstrators and police put into sharp relief how quickly an act of civil disobedience might be re-defined as an act of sabotage or terror. Majority opinion seems to be that dissenters are unpatriotic for their failure to support the war.

Already some protestors are frustrated enough to provoke police by engaging in petty violence, while for his part, President Bush practices a rhetoric of tolerance that appears to bode well for dissent.

But history tells us appearances can be deceiving. If the war drags on and domestic tension heightens, might the Bush Administration direct the Department of Homeland Security to assist in the policing of antiwar demonstrations? Such a move would not be without precedent.

In June 1970, amidst escalating unrest over U.S. involvement in Vietnam, President Richard Nixon approved a set of recommendations that called for the CIA, FBI, and military intelligence agencies to coordinate a wide-range of domestic intelligence-gathering activities. While the Huston Plan was revoked less than a week after its approval, Nixon nevertheless directed the FBI to broaden investigations of antiwar dissidents and prepare for the mass-detention of antiwar activists.

Nixon's plan for mass-detention borrowed heavily from a legal precedent set by an executive order by President Franklin D. Roosevelt in 1942 which sent more than 100,000 Japanese-Americans to detention camps on suspicion that they might commit acts of sabotage against coastal military installations. However, the government never provided more than circumstantial evidence that any of the 110,000 citizens and legal residents imprisoned by the order posed a substantive threat to national security.

Indeed, faced with overwhelming civic pressure in 1988, Congress resolved that internment was an unnecessary, and unjust, violation of the civil rights of a minority ethnic group. Using a broader definition of civil rights than the Supreme Court, Congress apologized to citizens and non-citizens alike, and even paid nominal redress to surviving detainees.

However, the legality of Mr. Roosevelt's executive order still stands. When the Supreme Court upheld it by a 6-3 decision in 1944, the majority opinion held that although the government had not made a credible case against the Japanese-American community, the basis of the order was the legal exercise of executive prerogative. The high court's ruling in Korematsu vs. the United States has never been reversed. In time of war, the executive office still has the power to contravene the constitutional rights of any group of citizens.

Nixon defended having planned for the mass-detention of U.S. citizens when he asserted in a 1977 interview that he had based his decision on historical and legal precedent since "a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution." The claim offended many Japanese-Americans, and caused Wayne Horiuchi of the Japanese-American Citizens League to accuse Nixon of having distorted the history of internment. "To say that because other presidents have committed such illegal acts implies that those acts were necessary and tolerable. The internment of the Japanese-American was neither necessary nor tolerable, but rather reprehensible."

The problem is that internment set more than a legal precedent. A few apologists for internment still claim that in the wake of the attack on Pearl Harbor, passions made it too difficult for most Americans to distinguish between "good" and "bad" Japanese. Internment, argue some, was a reasonable mistake made in the interest of national security. A disturbing number also claim internment actually protected Japanese-Americans who, in the post-Pearl Harbor environment, would have been subject to widespread vigilantism.

Is today's situation so different? The mass-detention of more than 1,000 Arabic men, some of whom may be U.S. citizens, is one manifestation. Another is the potential that a protracted struggle in Iraq could again make it a reasonable proposition to preemptively detain members of an ethnic or religious minority. No less important is the extent to which public opinion on the war in Iraq may threaten the right of Americans who oppose the war to demonstrate their political dissent.

The petty violence that has accompanied some antiwar demonstrations does not threaten the national security, but I am worried that public opinion may encourage the Executive Office to turn a powerful security apparatus toward the policing of protestors. While such a possibility might appear unlikely to some in a climate of "official" tolerance, I fear the lesson of internment may not yet be well enough learned.

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Christopher Gerteis is a visiting assistant professor of East Asian history at the University of Puget Sound in Tacoma, Washington.