Racial and Ethnic Roundups are Legal, As Long As “Race” Is Not the Only Reason

“When the feds invoke ‘national security’ all bets are off on how far they will go in suppressing the ‘threat,’ including mass roundups.”

Chief Justice John Roberts, speaking for the U.S. Supreme Court’s far-right majority, this week repudiated a previous high court decision upholding President Roosevelt’s mass detention of ethnic Japanese residents and U.S. citizens during World War Two. Roberts said the 1942 Korematsu ruling “was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.'” Korematsu was near-universally condemned over the decades, yet remained legally intact for 76 years because no case involving related legal issues had come before the high court. Chief Justice Roberts seemed to use Korematsu as a prop to justify his court’s decision to uphold President Trump’s ban on travel  into the United States by citizens of several predominantly Muslim countries. Korematsu does not pass Constitutional muster because it detained 120,000 people “solely and explicitly on the basis of race,” while the Trump ban is “facially neutral ,” in Roberts’ view, since it “says nothing about religion,” but is instead based on “the Government’s claim of a legitimate national security interest.”

The Trump ban is ‘facially neutral,’ in Roberts’ view, since it ‘says nothing about religion.’”

In a dissent  to the majority opinion, Justice Sonia Sotomayor argued that Trump’s ban is, indeed, ethnically based, although thinly cloaked by “an ill-defined national security threat to justify an exclusionary policy of sweeping proportion.” Trump had repeatedly called for a blanket exclusion of Muslims from the country, and during his presidential campaign cited Roosevelt’s internment of Japanese. “Take a look at what F.D.R. did many years ago,” said Trump . “He did the same thing.”

“National security” is the magic term that legally sanctions concentration camps — as long as the authorities are careful not to spell out the race or religion of the intended inmates.

Such camps already exist in the U.S. — and always have. American chattel slavery and its attendant legal structures treated all African descended people as inmates or probationers. For the slave, the whole nation was a prison and every white person a guard who was obligated to enforce the terms of confinement. Such is the logic of the Fugitive Slave laws and Chief Justice Taney’s Dred Scott decision  that Blacks “had no rights which the white man was bound to respect.”

For the slave, the whole nation was a prison and every white person a guard who was obligated to enforce the terms of confinement.”

The Jim Crow regime that followed the Civil War was replaced by a Mass Black Incarceration State almost immediately upon the enactment of national anti-Jim Crow legislation, in the 1960s. The U.S. constructed a vast prison gulag that confines a quarter of the world’s prisoners — 2.3 million people , two-fifths of them Black and 60 percent non-white, with nearly five million more on probation or parole. The “white man’s country” that the Founders created — as Judge Taney affirmed and the evolving criminal justice system enforced — remains in effect. The GOP, the White Man’s Party, garners white majorities in every national election. There was nothing essentially different about 2016 except that Donald Trump’s appeals were more overtly racial than some of his predecessors, but the white response was essentially the same: they affirmed that the United States should continue to be a white man’s country.

As a matter of “national security,” such a country requires racially restrictive and repressive immigration and travel policies, a massive internal gulag, and a pervasive police and intelligence presence in non-white — especially Black — communities.

Such countries must also be prepared to respond to civil disturbances among non-white populations (and their perceived allies) with mass detention centers to accommodate ethnic-based roundups — as a matter of national security.

“The ‘white man’s country’ that the Founders created — as Judge Taney affirmed and the evolving criminal justice system enforced — remains in effect.”

U.S. governments have routinely invoked “national security” to justify racially repressive policies that would otherwise be deemed unconstitutional. “National security” justified the FBI’s COINTEL program’s lethal assault on Black militants and other activists in the late Sixties and early Seventies. COINTELPRO never ended; the “national security” rationale is a permanent counter to Black militancy.

Nearly five decades after declaring the Black Panther Party the “greatest threat to U.S. national security,” the FBI in 2017 “assessed” that a rejuvenated Black grassroots movement constitutes a threat to U.S. law enforcement. “Black Identity Extremists” were deemed responsible for an increase in “ideologically motivated” attacks on police. According to a declassified FBI Intelligence Assessment :

“The FBI assesses it is very likely this increase began following the August 9 2014 shooting of Michael Brown in Ferguson, Missouri, and the subsequent Grand Jury November 2014 declination to indict the police officers involved. The FBI assesses it is very likely incidents of alleged police abuse against African Americans since then have continued to feed the resurgence in ideologically motivated, violent criminal activity within the BIE movement. The FBI assesses it is very likely some BIEs are influenced by a mix of anti-authoritarian, Moorish sovereign citizen ideology, and BIE ideology. The FBI has high confidence in these assessments, based on a history of violent incidents attributed to individuals who acted on behalf of their ideological beliefs, documented in FBI investigations and other law enforcement and open sources reporting. The FBI makes this judgment with the key assumption the recent incidents are ideologically motivated.”

“The FBI assesses it is very likely some BIEs are influence by a mix of anti-authoritarian, Moorish sovereign citizen ideology, and BIE ideology.”

The Brennan Center for Justice, in testimony before the Congressional Black Caucus, noted that “Department of Justice Guidance for Federal Law Enforcement Regarding Their Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity states that the Constitution only requires that these characteristics cannot be the sole basis for a law enforcement action (BAR italics).”

As long as the feds cite “criminal activity” and hostile “ideologies” among the targeted groups, they are empowered to carry out what are, in reality, race- and religion-based counter-measures. Should these alleged activities become sufficiently threatening, the next step is to invoke “national security” — and then all bets are off on how far they will go in suppressing the “threat,” including mass roundups.

This year, Freedom of Information requests revealed that a “Race Paper ” is circulating within the giant Homeland Security apparatus. The American Civil Liberties Union, the Center for Media Justice and 40 other organizations are seeking a non-redacted version of the document. Homeland Security includes ICE, the TSA, the Secret Service and FEMA, the Federal Emergency Management Agency, and operates under a national security mandate. It’s where the Mass Black Incarceration State and the National Security State will combine, should the U.S. government embark on a mass roundup and internment of Blacks — the group that is a permanent threat to the White Man’s Country.

The U.S. Supreme Court will not interfere, as long as race is not the only rationale invoked.

By Glen Ford/BAR

Posted by The NON-Conformist

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