You are on page 1of 7

The Lessons of World War II Selective

Internment for Today’s Travel Ban
Debate

MARY ELIZABETH BASILE CHOPAS

When the United States entered World War II in December 1941,
Italian nationals (along with Japanese and Germans) living in this country
who had not become American citizens were declared enemy aliens and
subject to restrictions. Several thousand Italians were arrested and detained
for hearings, and hundreds were interned for varying periods of time
through the selective internment process. The story of Italian families
affected by internment orders and various government policies, such as
nighttime searches of homes for shortwave radios and signaling devices
and restrictive curfews, illuminates how the executive branch of the U.S.
government and the military in the 1940s responded to perceived threats to
national security. There were multiple layers of repression—presumptive
guilt in arrests, internment based on membership in social organizations or
political parties and on expression of undemocratic ideas, and bars to
citizenship. Decisions about who should be interned and who should be
paroled or released were largely based on perceptions of who exhibited
qualities befitting an American citizen, such as a positive attitude toward
democracy, a good work ethic, and sentiments of allegiance to the U.S.
government.1
The history of the internment of Italians during World War II raises
questions similar to what we ask today about how liberal democracies may
remain true to democratic values while protecting their citizens from
terrorism. The ongoing debate that began in the winter of 2017 over the
constitutionality and implementation of travel bans affecting foreign
nationals from predominantly Muslim countries wishing to enter the
United States poses the issue of whether persons may be barred from entry
without having undergone an individualized determination of security
threat based on specific intelligence.2 In its latest form, President Trump’s

1See MARY ELIZABETH BASILE CHOPAS, SEARCHING FOR SUBVERSIVES: THE STORY OF ITALIAN
INTERNMENT IN WARTIME AMERICA 7 (2017).
2See Protecting the Nation from Foreign Terrorist Entry into the United States, Exec. Order
No. 13769, revoked and replaced by Exec. Order No. 13780 (same title); Summary and Analysis of
Trump Executive Order on Visa Issuance/Screening and Refugees, Doc. No. 17012775,
https://perma.cc/27XB-ZWEG, (last visited Feb. 14, 2018).

101
2018 New Eng. L. Rev. Forum v. 52

Proclamation 9645 expands and further defines Executive Order 13780. It
seeks to engage foreign countries, identified by the Department of
Homeland Security and the Department of State as having inadequate
travel documentation for its nationals, in improving “information-sharing
and identity management protocols and procedures” through a set of
conditional restrictions and limitations.3 With the Supreme Court’s decision
on December 4, 2017 to lift the injunctions issued against Proclamation
9645 by the U.S. District Court for the District of Hawaii in Hawaii v. Trump
and by the U.S. District Court for the District of Maryland in International
Refugee Assistance Project v. Trump, the third travel ban is fully in effect. It
appears that the justices found compelling arguments by lawyers for the
Trump administration that the most recent order is different from earlier
travel bans because it is the product of an extensive review process and
applies to some countries where Muslims are not a majority.4 The Supreme
Court granted the government’s writ of certiorari in Trump v. Hawaii, on
appeal from the Ninth Circuit Court of Appeals’ decision that the ban
violated federal immigration law.5 In the case before the Supreme Court,
the Trump administration has posed the following three questions:
whether the respondents’ challenge to the travel ban is justiciable; whether
the president has the authority expressed in the proclamation to suspend
the entry of aliens abroad; and whether the global injunction of the
proclamation issued by the district court is overbroad. Additionally, the
Court will take up a fourth question presented by Hawaii in its brief—
whether the travel ban violates the establishment clause in the U.S.

3 See generally Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017). This proclamation,
“Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United
States by Terrorists or Other Public Safety Threats,” implemented “Travel Ban 3.0,” which has
applied to individuals of various legal statuses traveling from Iran, Chad, Libya, North Korea,
Syria, Somalia, Yemen, and Venezuela indefinitely. Chad has been removed from the list. See
Jess Bravin & Brent Kendall, Travel Ban Appears Likely to Survive High Court Scrutiny, WALL ST.
J., https://perma.cc/9BEW-WFQ9 (last visited May 3, 2018).
4 See Order Granting Appellant’s Motion for a Stay Pending Appeal, Trump, President of U.S.,

et al. v. Hawaii, et al (Dec. 4, 2017)(No. 17A550), available at https://perma.cc/2EDP-P5CH; Order
Granting Appellant’s Motion for a Stay Pending Appeal, President of U.S., et al. v. Int’l Refugee
Assistance Project, et al (Dec. 4, 2017) (No. 17A560), available at https://perma.cc/28FE-RZUX; See
also Amy Howe, Justices Allow Full Travel Ban to Go Into Effect While Government Appeals,
SCOTUSblog (Dec. 4, 2017, 5:18 PM), https://perma.cc/C6BG-LVXG (last visited Feb. 14, 2018).
5 On February 15, 2018, the Fourth Circuit Court of Appeals also ruled to block enforcement of
the restrictions under Travel Ban 3.0 in International Refugee Assistance Project v. Trump, on
grounds of the violation of the Constitution’s establishment clause and of federal immigration
law. The appellate court’s decision is stayed pending the resolution of Trump v. Hawaii in
the Supreme Court. Marcia Coyle, “The Words of the President” Doom Trump Travel Ban, Fourth
Circuit Says, NAT’L L. J. (Feb. 15, 2018).
2018 The Lessons of World War II Selective Internment 103

Constitution. 6 At issue is the president’s ability to make decisions on
matters of national security and foreign relations unrestricted by the courts.
Meanwhile, while we wait for the highest court to weigh in on these
issues and the travel ban remains in effect, lawyers and policy analysts
debate the adequacy of the individualized vetting process for visa
applicants. Some immigrants, including those with close family or
professional ties to the United States, may submit to the discretionary
waiver process where the standard of proof is as follows: an individual is
not a national security threat; denial of entry would cause undue hardship;
and his or her entry into the United States is “in the national interest.”7 The
selective internment process during World War II offers some worthwhile
lessons as the government struggled with striking the proper balance
between ensuring the nation’s safety and guaranteeing the protection of
civil liberties then, as it does now. President Roosevelt’s administration
grappled with the same questions policy-makers ask today about how the
U.S. government can reliably assess the security threat posed by
noncitizens and considerations of whether their loyalty lay with their
homeland or adopted country. An analysis of policies employed during
World War II considers what role various categories of citizenship play, the
type of evidence that is productive and predictive of subversive activity,
and the form of process that may be afforded suspects in the determination
of loyalty.8
Distinctions in categories of citizens have historically mattered in terms
of the rights afforded individuals. With territorial presence in the United
States comes an expectation of greater rights approaching that of a citizen.9
A significant number of the Italian aliens interned during World War II
were legal residents, most of whom had lived in the United States for many
years. Their long-term presence in the United States meant that they had
become accustomed to the freedoms of living in a democratic society,
including free speech, the freedom of association, and a fair hearing to
address the loss of such freedoms. For this reason, wartime policies that

6See Trump v. Hawaii, 138 S. Ct. 923 (January 19, 2018); Amy Howe, Justices to Review Travel
Ban Challenge, SCOTUSBLOG (Jan. 19, 2018, 3:53 PM), https://perma.cc/FP4N-X8C2.
7 See Aaron Reichlin-Melnick, Travel Ban 3.0 Developments: What You Should Know, AM.
IMMIGRATION COUNCIL https://perma.cc/C2RC-L9UM (last visited Feb. 14, 2018). Note that
“Travel Ban 4.0,” which applies to refugees and their families from eleven countries, has been
enjoined by the Federal District Court in Washington State. See Beth Stickney, Updated: Federal
Court Blocks Refugee “Travel Ban 4.0,” https://perma.cc/88A6-GBDU, ME. BUS. IMMIGRATION
COAL. (last visited Feb. 2, 2018).
8 See Chopas, supra note 1, at 147–49.

9 See KUNAL M. PARKER, THE CONSTITUTION, CITIZENSHIP, AND IMMIGRATION IN AMERICAN

HISTORY: 1790–2000, at 27–29 (2013).
2018 New Eng. L. Rev. Forum v. 52

placed restrictions upon those considered dangerous, initially through
detention that turned into indefinite internment, brought a sense of
disillusionment with the promises of a free, democratic society.10
Turning to today’s immigration policies, Proclamation 9645 similarly
recognizes that rights for noncitizens may depend upon the residential status of
foreign nationals in stating: “The United States affords lawful permanent
residents more enduring rights than it does to nonimmigrants. Lawful
permanent residents are more difficult to remove than nonimmigrants even after
national security concerns arise, which heightens the costs and dangers of errors
associated with admitting such individuals.”11 For this reason, Proclamation 9645
applies a tailored approach for persons from countries found to have inadequate
travel documentation.
The form of the vetting process for individuals who wish to enter the
United States from the countries designated in the proclamation remains
undefined in the public’s eyes. The Department of State announced its
decision in May 2017 to use a questionnaire that asks certain visa
applicants to reveal their social media handles. Seeking clarity on this
policy, the Knight First Amendment Institute at Columbia University filed
a Freedom of Information Act request on August 7 seeking the release of
documents pertaining to the government’s consideration of individuals’
speech, beliefs, and associations in decisions to exclude or remove
noncitizens from the United States. Since government agencies did not
respond in a timely manner to its FOIA request, the Knight Institute filed a
lawsuit seeking records on these screening processes and on more recent
screening policies focused on “expressive and associational activity.” The
government policies have raised First Amendment concerns about whether
the Department of Homeland Security has the authority to maintain
records of the social media accounts of immigrants, including naturalized
U.S. citizens and lawful permanent residents.12
Looking back to the selective internment process during World War II,
we see the use of similar questionnaires seeking information about the
alien’s political beliefs and affiliations, memberships in war veterans
associations, subscriptions to foreign language newspapers and journals,
and the like. Not only did the 1940s’ wartime policies raise First

10 See Chopas, supra note 1, at 135–36.
11 Proclamation No. 9645, 82 Fed. Reg. 4516, §1(h)(ii) (Sept. 24, 2017).
12 See Knight First Amendment Inst. at Columbia Univ. v. U.S. Dep’t of Homeland Sec. et al.,

Case No. 1:17-cv-07572; Knight Institute Sues for Documents on ‘Extreme Vetting’ and Social Media
Monitoring of Immigrants, Visitors to the United States, KNIGHT FIRST AMENDMENT INST.,
https://perma.cc/724U-H7A9 (last visited Feb. 15, 2018); see also Victoria Bekiempis, Civil
Liberties Group Demands Info on Immigrant Vetting Process, NY DAILY NEWS,
https://perma.cc/7XPP-WTVR (last visited Feb. 15, 2018).
2018 The Lessons of World War II Selective Internment 105

Amendment concerns, but they also raised questions about what
information is productive and predictive of subversive activity. Such
information proved unreliable as a predictor of Italian alien disloyalty to
the American government, particularly in situations where Fascist Party
membership was a requirement for employment or membership in an
organization considered suspect occurred many years prior to the alien’s
examination before alien enemy hearing boards.13
The process applied to alien enemies that evolved during the course of
the war may inform today’s policy-makers who confront the issue of how
to most effectively and efficiently determine who presents a security risk.
One key difference, however, is the expectation today of cooperation from
the foreign countries affected by the travel ban in sharing information on
public safety and national security risks presented by each individual
seeking entry into the United States, as well as data on that individual’s
criminal background. There could be no comparable information sharing
with the governments of the Axis powers during World War II about
suspect nationals from these countries given the reality of the war
situation. Also, the fact that many of the alien enemies who ended up in
internment had been long-time residents in this country made any criminal
background in Italy much less relevant than their record in the United
States. 14 Alien enemy hearing boards across the country, under the
direction of Attorney General Francis Biddle, examined the loyalty of
Italian aliens in hearings that followed ad hoc form procedures similar to
administrative hearings for deportation, but without the advantage of
attorney representation. The hearings were provided as a courtesy since
the Alien Enemy Act of 1798 allows the government to detain and deport
aliens of enemy countries without any hearing or individualized finding of
dangerousness and without attorney representation.15 Each board consisted
of three members appointed by the attorney general—typically prominent
attorneys and businessmen, law school professors and deans—who posed
questions examining whether the alien before them exhibited qualities
befitting a potential U.S. citizen.16
Although the specific task of the alien enemy hearing boards was not
clear to every board, resulting in inconsistencies in the hearings across the
country, the boards were expected to present the attorney general a
recommendation of release, parole, or internment for every alien examined.

13 See Chopas, supra note 1, at 91–93, 136–38.
14 Some Italian aliens did make multiple trips back and forth to their homeland, raising the
suspicion of U.S authorities.
15 Alien Enemy Act of 1798, 50 U.S.C. § 21 (2012); see David Cole, The New McCarthyism:

Repeating History in the War on Terrorism, 38 HAR. C.R.C.L. L. REV., 15 (2003).
16 Chopas, supra note 1, at 80.
2018 New Eng. L. Rev. Forum v. 52

Questions probed the aliens’ political activities in the United States and
Italy, as well as their feelings about democracy and allegiance to the United
States in an examination of their hearts and minds. The hearings contained
some semblance of due process in allowing affidavits of the alien and
witness statements. Yet the case files of individual internees reveal that the
procedure did not allow the aliens, many of whom were illiterate, to
address the government’s suspicions of disloyalty given that they were not
allowed attorney representation in the hearings and often did not have
access to translators. 17 Through a series of remedial instructions to the
boards, Attorney General Biddle tried to make the adjudicatory process
fairer by requiring transcripts and a statement of charges, as well as an
opportunity for rebuttal of charges, and by allowing rehearings where
there was evidence of some deficiency in the initial hearing. 18 But the
remedial instructions could not remedy the misjudgments that hearing
boards inevitably made because they lacked specific information on the
Italian American organizations and the particular involvement that each
suspect Italian alien had in that organization. The procedural changes
eventually inserted greater due process into the alien enemy hearings, but
came too late to save many aliens, most of whom were interned within the
first six months of the United States’ entry into the war, from frustration
with the U.S. government.19
Different regions of the world present different patterns of security risk
based on varying protocols of criminal record keeping and information
sharing. This makes it challenging for state officials to determine what
individual qualities, particular mindsets, memberships in certain
organizations, and involvement in particular types of employment or
associations are predictive of subversive activity. The selective internment
process in the 1940s improved over the course of the war because the
Justice Department required hearing boards to keep more transparent
paper trails and to provide aliens rehearings to remedy problems in the
initial hearings or to account for changed circumstances. The lesson from
the U.S. government’s treatment of alien enemies during World War II is
that these types of safeguards can protect against the injustice of broad
inferences of suspicion based on national origin. Today’s methods of
investigating individuals seeking waivers to enter the United States from
countries affected by the travel ban may be vastly more complicated due to
technological advances, but the concept of consistent and fair application of
policies and procedures remains the same. The vetting process today is not

17 Chopas, supra note 1, at 81, 87–89, 136.
18 Chopas, supra note 1, at 89–90.
19 Chopas, supra note 1, at 137.
2018 The Lessons of World War II Selective Internment 107

transparent and therefore not fully understood. Only a process with
identifiable and reasonable standards can strike a balance between keeping
our nation safe and preserving the ideals of a free, democratic society.