The pact with the devil occurred in the fall of 2001, when then President George W. Bush and Congress decided that they would use the machinery of the federal government to secure safety, rather than liberty. So, the Bush-inspired Patriot Act permits federal agents to write their own search warrants, and the Bush-inspired new FISA statutes permit search warrants of some Americans’ phone calls without a showing of probable cause as the Constitution requires, and the Bush-era intimidation of telephone service providers permitted our overseas spies to snoop on our domestic phone calls. None of this has enhanced safety, and all of it has diminished liberty.
In the Obama administration, the devil has demanded more. In the past five years, we have seen federal spies capturing the keystrokes on our computers, local police using federal dollars to install cameras and microphones on nearly every street corner, and, the latest lamentable phenomenon, the use of false emergencies to undermine freedom.
The Korematsu decision reflected perennial dangers: panic and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies.
It is less important that the decision be repudiated than that it be remembered. Especially by those currently clamoring, since Boston, for a U.S. citizen — arrested in America and concerning whom there is no evidence of a connection with al-Qaeda, the Taliban or other terror network — to be detained by the military as an “enemy combatant.” The Korematsucase is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.