Reclaim Democracy!

Canyon Resources Corporation Seizes the (Ballot) Initiative

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In Montana, a Corporation Corrupts the Purest Form of Democracy

By Jeff Milchen
Updated November 3, 2004

Editor’s note: Canyon Resources’ $3 million investment bought a lot of ads, but not enough votes on Election Day as Initiative 147 was defeated by a 58 to 42 percent margin. Congratulations to all who worked to stop this corporate assault.

When Montanans first employed the ballot initiative in 1912, all four measures passed had a common aim: revoking the corrupting political power of mining behemoth Amalgamated Copper. So it’s no small irony that, in 2004, a mining corporation is using the initiative process to try reversing the expressed will of Montana citizens.

Executives at Colorado-based Canyon Resources, Inc. (CRI) dislike Montanans’ 1998 decision to pass Initiative 137 and become the first state to ban the practice of spraying cyanide over ore piles to chemically extract gold and silver. CRI remains eager to build a new cyanide heap mine on the Blackfoot River that I-137 prevented, so the company already has invested $3 million (about 98% of all funds) to qualify and market I-147 — an initiative to reverse the ban. That’s a huge sum in a state where 30 second prime-time TV ads in the state’s largest media market cost just $900.

CRI promises new jobs and tax revenues, while opponents warn that the practice inevitably will poison our water supplies, as happened at the company’s notorious CR Kendall mine near Lewiston.

Arguments on those points will rage in the weeks ahead, but let’s not forget a more fundamental issue: why do we allow the citizens’ initiative – theoretically democracy in its purest form – to be used against us by non-citizens (corporations)?

Of course, one could argue that we’ve tried and failed to stop the practice. In 1996, Montanans passed I-125, banning direct corporate funding of initiatives, only to have it struck down in 1998 by a federal judge, based on the notion that corporations possess free speech rights just like you and me.

But saying, “we tried, and the courts wouldn’t let us,” is akin to blaming the Supreme Court for racism before it abolished segregated schools in 1954. The more difficult truth is we’ve failed to protect our rights to self-governance that many Americans died to establish and defend. Like in 1954, public pressure must compel the courts to change — this time to restore necessary limits to corporate power.

When American colonists declared independence from England in 1776, they also freed themselves from control by English corporations that dominated domestic businesses (thanks to preferential treatment by the king ) and extracted colonial wealth. After fighting a revolution to end this exploitation, our founders retained a healthy fear of corporations’ power and limited them to strictly business activities. For decades, states typically prohibited corporations from spending any money to influence politics or even public opinion.

In the 1800s, corporations gradually dismantled those barriers, and by century’s end, their lawyers had persuaded the U.S. Supreme Court that corporations legally were persons entitled to constitutional rights, thus creating “corporate personhood.” The activist judges were undeterred by the fact that corporations are unmentioned in the U.S. Constitution.

Soon, corporations had perverted the Bill of Rights itself by winning its protections — even before women and minorities had full personhood rights — and used this power to deny political rights to real human beings.

Yet corporations’ did not secure a legal privilege to participate in ballot initiatives until the Supreme Court’s 5-4 decision in First National Bank of Boston v. Bellotti (written by former corporate lawyer Lewis Powell in 1978) toppled one of the last barriers to corporate dominance of government.

Today, corporations face no legal limits to influencing or running ballot initiatives in the 24 states (and many local governments) that permit them. The Bellotti precedent also applies to referenda (used in three states), whereby state legislators may refer an issue to a vote by state citizens.

Montanans are not alone in facing corporate attempts at direct lawmaking. In California, a corporate consortium is advancing Proposition 64 to dramatically weaken the nation’s strongest consumer protection law.

Wal-Mart executives have repeatedly used ballot initiatives to overrule local laws that would prevent enormous new “supercenters.” The company lost a high-profile battle in Inglewood, California last spring by literally trying to exempt itself from all local planning and environmental regulations, but as corporations continue molding our law and culture, what was an outrage one year becomes the law soon after. Often, the threat of a costly initiative battle is sufficient to intimidate a community into bending or breaking its rules.

Citizens still win a few skirmishes (let’s hope keeping cyanide out of our rivers and aquifers will be one), but the larger struggle — to determine whether citizens or corporations will control the future of our communities and country — will depend on changing the rules of engagement.

The judges who overturned previous attempts to get corporations out of the initiative process handed us painful defeats, but take heart — each great human rights advance in American history has had to overcome some lost battles before winning. The struggle by citizens to reclaim our rights and return giant corporations to strictly business activities will be no exception.

Jeff Milchen founded ReclaimDemocracy.org, working to revitalize American democracy and restore citizen authority over corporations.

* Every one of 22 donors to the I-147 campaign as of 10/18/04 was a corporation.

Related Resources

Montana’s initiative history is based on research by David Schmidt in “Citizen Lawmakers: The Ballot Initiative Revolution.”

Roots of Rebellion: Why Montana is the Only State to Reject Citizens United

Beware of “Junk Lawsuits” Hype

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Citizens’ right to hold corporations accountable is the real target

By Jeff Milchen
Published October 27, 2004

“We think lawsuit abuse is a serious problem in this country,” proclaimed Dick Cheney while debating John Edwards in early October. The “runaway lawsuits” theme is repeated at almost every Bush/Cheney campaign stop.

Knowing the record of his own company, I can’t help wondering whether Cheney is like an alcoholic seeking help, for during his five-year reign as CEO, Halliburton and its subsidiaries filed more than 150 separate court actions (documented by Halliburton Watch). Those lawsuits pursued injunctions, evictions, and attempted to collect alleged debts from other corporations and individuals, sometimes for as little as $1,500.

But Halliburton is just part of a larger pattern. A recent study by Public Citizen indicates that the 7 million U.S. corporations file four times as many lawsuits as the 281 million individual Americans, so corporations are 160 times as likely to sue as an average person.

The study covered the only four U.S. jurisdictions that require records with enough detail to distinguish corporate-initiated lawsuits from those filed on behalf of individuals: Mississippi, Arkansas, Philadelphia and Cook County (Chicago and vicinity).

And what about the “frivolous lawsuits” we hear about constantly? The same Public Citizen study noted, “businesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses.”

Scrolling down big business’ hit list, next up is “runaway awards.” Here again, if large awards are a serious problem, corporations seem to be the primary cause. Last November, National Law Journal reported that eight of the year’s 10 largest awards to date involved corporations suing each other.

And while Cheney blamed frivolous lawsuits for their “devastating impact” on health-care costs during the VP debate, perhaps he should focus on suits filed by pharmaceutical corporations, rather than injured citizens.

In 2001, a federal court ruled that Bristol-Myers Squibb (BMS) filed frivolous patent-infringement lawsuits to block the introduction of generic competition for its lucrative anti-anxiety drug, BuSpar. Despite “losing” the claim, BMS delayed competition for four months, during which it gouged Americans for about four times the price it could charge in a competitive market.

BMS’s actions were so egregious that the Federal Trade Commission ordered the company to halt “any fraudulent or objectively baseless claim or otherwise engage in sham litigation.”

Again, this is an example of systemic abuse. As Merrill Goozner documents in his exhaustively-researched book, “The $800 Million Pill,” baseless claims to extend patent monopolies are routine practice for BMS and other drug manufacturers.

Of course, the corporate lobbyists behind calls for “tort reform” aren’t so concerned by these cases. Class-action lawsuits — which help average citizens harmed by corporate negligence or malevolence to gain compensation and punish the offender — are their target. So while Congress considers capping class-action punitive damages (awards in such cases have not increased over the past decade) at $250,000, the bill wouldn’t touch frivolous suits like those filed by BMS.

I’ve worked for years organizing and advocating for independent business owners, and learned there are indeed a few unscrupulous lawyers filing sleazy lawsuits. Since large corporations generally will fight any questionable lawsuit, small businesses that can’t afford the time or risk of fighting are the usual targets.

We should strive to eliminate such suits and rid the legal profession of those who file them, but a $250,000 cap on punitive damages would do little to discourage the offenders. Their aim is to coerce smaller out-of-court settlements, not go to trial.

That cap on damages, however, would endanger every American, because the amount is inadequate to deter or change criminal practices at large companies. Consider that BMS voluntarily paid more than $500 million to victims of its fraudulent patent claim, and you quickly see that a $250,000 punishment is insufficient to deter large corporate criminals.

When asked during the debate if he thought Senator Edwards, a former trial lawyer, was part of the lawsuit problem, Cheney responded, “I’m not familiar with his cases.” (As if Bush campaign staffers didn’t scrutinize every lawsuit the man ever filed). But as The Washington Post noted, Edwards’ previous political opponents seeking dirt “came away frustrated because Edwards’ clients were almost universally sympathetic figures.” Like most trial lawyers, he helped genuine victims get justified compensation and deter wrongdoers from harming others.

The attack on trial lawyers is really an attack on citizens’ ability to sue corporations, and it goes far beyond this election cycle; it’s part of a long-term assault on the rights of citizens and small business owners to hold corporations accountable via the courts. Having successfully undermined or dismantled regulations on big business in many realms, the next corporate agenda item is to regulate us — to strip citizens of our right to punish corporate crime and criminals.

We can and should find ways to curb groundless lawsuits, including disbarring lawyers deemed by judges and peers to have repeatedly filed unjustified lawsuits (and nobody despises unscrupulous attorneys more than honest ones). Genuine improvements, however, must work narrowly to discourage the small fraction of suits that truly are frivolous, not shield giant corporations from one of our few functioning tools to hold them accountable.

Jeff Milchen directs ReclaimDemocracy.org

 

Replace Bi-partisan Shows With Real Debates

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By Jeff Milchen
Published by the Pacific News Service, Sept 29, 2004

George W. Bush’s father, a five-time participant in events staged by the Commission on Presidential Debates (CPD), described them this way: “…it’s too much show business and too much prompting, too much artificiality, and not really debates. They’re rehearsed appearances.”

The problems began in 1988, when the League of Women Voters halted its long-time sponsorship of the debates over bi-partisan attempts to turn them into glorified infomercials. The League officially stated, “We have no intention of becoming an accessory to the hoodwinking of the American people.”

After the League’s withdrawal, the Republican and Democratic parties immediately seized the opportunity to control the debates with their own bi-partisan group, the CPD. Chaired by former heads of the respective parties, the CPD simply executes agreements made by the major party candidates and shields them from accountability for actions such as choosing sound-bite exchanges over real debate and excluding viable candidates from outside the dominant parties. The 32-page Kerry/Bush agreement forbids direct exchanges between candidates, limits follow-up questions and controls details right down to podium and camera angles.

Though few citizens’ know the full story, millions apparently recognize the events have ceased to be genuinely informative. From 1976 to 1984, 60-80 million viewers watched each debate hosted by the non-partisan League. But since then, Americans have tuned out the CPD’s staged events in droves. CPD events have averaged just 40 million viewers in the past two elections. Sixty percent of households tuned in to watch the Carter-Reagan debate in 1980 (in which candidates had a respectable 4 minutes per answer) compared to 30 percent of households dialing into the last Bush-Gore battle of 2 minute (maximum) sound bites in 2000. Though the numbers rebounded in the first 2004 debate, even with 60 million more potential U.S. viewers since 1984, viewership still is down.

What’s made the events so unappealing? The restrictive rules and shorter response times have enabled many scripted and evasive answers. Even the “town hall” debate is largely a facade, with CPD moderators screening questions from the pre-selected audience and forbidding any follow-up. The Kerry and Bush campaigns specified that the microphone must be cut if any participants deviate from the question approved by the moderator.

The lack of direct exchanges and moderators who stick tightly to standard stump speech topics may be the greatest injury to voters. Among key issues that never were mentioned in any 2000 presidential debate were: corporate power or corporate crime, the “drug war,” population growth, immigration and “free trade.” The only mention of labor referred to banning their soft money contributions. Will any moderator challenge the candidates about corporate power over elections or scandals like Halliburton and Enron this year? It will take exceptional courage as long as CPD events are staged for their owners’ benefit, not voters’.

And while more money than ever is being spent on youth voter registration, the CPD events send the message that their concerns don’t matter. While seniors and social security each were referenced more than 60 times during three debates in 2000, neither teenagers nor college students were mentioned at all — and every debate occurred on a college campus!

The narrow range of topics is linked to shutting out viable independent and “third party” candidates (except when both are convinced the outsider will help them, as with Ross Perot in 1992). For 2004, the major parties decreed that 15 percent of the public must indicate plans to vote for a candidate for him to be invited to the debate club. That’s an impossibly high bar, given that most news outlets never have mentioned that three candidates other than Bush, Kerry and Ralph Nader all have earned ballot positions in enough states to win an Electoral College majority (David Cobb, Green Party; Michael Badnarik, Libertarian Party; and Michael Peroutka, Constitution Party). Voters of every ideology lose when our choices are dictated by the two dominant parties.

This year, the organization I direct, Reclaim Democracy!, was proud to help launch a new and truly non-partisan Citizens’ Debate Commission (CDC) to challenge the CPD’s control and provide real debates, rather than sound-bite volleys. These debates would feature direct exchanges between candidates, set fair candidate participation criteria and address a wide range of pressing issues.

The CDC is supported by more than 60 civic groups as diverse as the American electorate, including leaders of the Free Congress Foundation, Judicial Watch, Youth Vote Coalition, Common Cause, the TransAfrica Forum and, tellingly, the former producer of the CPD debates. Yet most major media (with notable exceptions like the L.A. Times) have ignored the challenge entirely, much like the major parties deny voters’ rights to know their full options.

Simply exposing the CPD’s illegitimacy and directly challenging its control has forced it to adopt some of our plan, like varying moderators, lengthening rebuttal time, and allowing some follow-up questions and surrebuttals. It also led to the Memorandum of Understanding between candidates being released for the first time, which in turn produced more critical media coverage than ever before.

But that’s not enough when it comes to the single most influential forum for Americans trying to decide whether to vote and who to vote for. We all deserve debates that serve democracy, not two political parties. The Citizens’ Debate Commission is ready to serve that role and could well succeed by the next presidential election — if, that is, Americans step up and demand the change.

At the time of writing, Jeff Milchen directed Reclaim Democracy!, a non-profit organization working to revitalize American democracy. 

See our overview of the presidential debates and the need for reform.

Overview of Do-Not-Call Registry Litigation

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by ReclaimDemocracy.org Staff & Volunteers
Last updated October 4, 2004

Editors’ Note: If you seek detailed legal analysis of the DNCR case, see: Mainstream Marketing Services, et al. v. Federal Trade Commission: Resources and Legal Analysis

Introduction

Beneath the surface of the Do-Not-Call list dispute lie critical constitutional and democratic questions, such as: should corporations have free speech rights? Should courts consider economic impacts in evaluating whether a law is constitutional?

ReclaimDemocracy.org has compiled resources presenting all sides of this dispute and the larger issues of “commercial speech” and corporate claims to the protections of the U.S. Constitution. We do so because we believe it presents a key opportunity to re-examine the judicial creation of constitutional rights for corporations (corporate personhood) and explore how corporations use ill-gotten power to trump bona fide rights of citizens.

Background of the Do-Not-Call Registry (DNCR)

U.S. residents have tried to avoid unwanted phone solicitations with unlisted numbers, caller ID, voice mail, and other devices. Until recently, the burden rested on individuals to stop unwanted solicitations by spending time and money on these technologies and by requesting that they be added to company-specific”do not call” lists (a request telemarketers legally are obliged to honor). Despite these significant expenditures of time and money, many citizens complain they are losing control and are unable to defend their personal space.

In response, the Federal Trade Commission (FTC) created the national Do-Not-Call registry in 2003. The DNCR allows citizens to place their phone numbers on a national list controlled by the federal government. Under the law, it is illegal for commercial telemarketers to call people on the registry (however businesses may solicit recent customers who are on the list).

Citizens may register online at www.donotcall.gov or by phone. Three months after registration, commercial telemarketers are forbidden from calling you. Telemarketing companies are required to cover the costs of the program by purchasing the do-not-call lists from the government at a cost of $25 per area code and a $7,375 maximum annual charge. If a telemarketer makes an unauthorized call, the recipient can file a complaint, which the FTC will compile and use to fine or prosecute repeat offenders.

Telemarketing Corporations Sue to Block the Program

Telemarketing corporations filed two lawsuits attempting to stop implementation of the program. In the first, five telemarketing firms jointly argued that the Federal Trade Commission did not possess the legal authority to create and enforce the registry. On September 24, 2003, U.S. District Judge Lee R. West ruled for the telemarketers and prohibited the FTC from implementing the list and its associated restrictions. In response, the next day Congress approved legislation ratifying the authority of the FTC to enforce the no-call list, which George W. Bush promptly signed into law.

This Congressional save did not last long, however. Another group of telemarketing corporations (Mainstream Media Services, TMG Marketing, and American Teleservices Association) had filed a second lawsuit. On September 25 Denver-based U.S. District Court Judge Edward Nottingham decided that the registry unconstitutionally violates the telemarketing corporations’ “free speech rights.” Nottingham reasoned that no legal basis existed for the FTC to allow citizens to screen for-profit solicitors while not also offering citizens an opportunity to block calls from non-profit groups. So Nottingham prohibited the FTC from implementing the registry on October 1, 2003, the date it was supposed to take effect.

The FTC appealed the decision to the Tenth Circuit Court of Appeals. On October 7, a three-judge panel gave the FTC permission to enforce the registry while it decides whether to uphold or strike down Judge Nottingham’s decision. In doing so, the Tenth Circuit found that the FTC had a substantial chance of success on the merits of its appeal regarding the constitutionality of the DNCR.

The FTC reopened access to the registry on October 10, and it went into full effect on October 17. In addition, the Federal Communications Commission (FCC), which has overlapping jurisdiction with the FTC to protect citizens from telemarketing abuses, passed regulations under which it, too, can enforce the DNCR. The two agencies will coordinate enforcement. While the ultimate constitutionality of the registry hangs in the balance, the FTC already has issued civil fines to enforce the registry (see this pdf file for details).

Getting at the Core Issues

The DNCR dispute provides provocation to examine some extreme arguments made by the telemarketing industry:

1. Corporations enjoy commercial speech rights that are on par with, and may even take precedence over, the rights of people to enjoy peace and privacy in their homes.

2. The government must weigh the financial impacts of speech regulation on an industry as part of evaluating a law’s constitutionality. This is particularly disturbing given that telemarketing corporations voluntarily chose to create an industry based on breaching citizens’ privacy.

The inherent conflict between court-created “corporate rights” and the rights of human beings is growing. Consider this dualism: Corporations have obtained “intellectual property rights” to profit exclusively (with government enforcing their private monopoly) from the creations of employees–even for decades after an employees death. Access to, and use of, this information by others is limited because the government forcibly protects this lucrative proprietary information. Conversely, you have almost no power to protect your own personal information, such as your telephone number, e-mail addresses, home address, and personal financial information; and what little power you possess (excepting the DNCR) has required substantial time and effort to exercise. Courts have created corporate property rights allowing businesses to buy and sell this information without your consent.

The question for citizens is whether to accept corporate usurpation of human rights or to help revoke illegitimately-granted corporate privileges.

Updates: On October 4, 2004, without comment, the U.S. Supreme Court rejected an appeal by commercial telemarketers, which upheld the no-call list as constitutional.

Additional Resources

See our legal analysis of the Do-Not-Call Registry cases, with links to major briefs, court decisions and news coverage.

Learn more about Corporate Personhood

Black-Majority Congressional Districts May Undermine Black Americans’ Political Power

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By Henry Louis Gates Jr.
First published by The NY Times, Sept 23, 2004

The Voting Rights Act – signed into law on Aug. 6, 1965 – was a high point of the civil rights era. In 1965, there were 5 black members of Congress; today there are 39. No single piece of legislation since the 14th Amendment has had such a measurable and dramatic effect on the political fortunes of black Americans.

What’s not so clear is whether the effect is now mainly a positive one.

In 1965, in the infamous “Bloody Sunday” police riot on Pettus Bridge in Selma, a young civil rights leader named John Lewis risked his life for the cause of black enfranchisement. Yet two years ago, the same John Lewis, now a congressman from Georgia, found himself accused by John Ashcroft’s Justice Department of violating the Voting Rights Act.

That’s because he and his fellow Georgia Democrats backed a plan to reduce the concentration of minority voters in various districts. And Section 5 of the act prohibits “retrogression”: a change in district boundaries that would diminish a district’s percentage of black voters.

It sounds like some political “Freaky Friday”: was Mr. Ashcroft really trying to protect black Georgians from Mr. Lewis? Not exactly.

Mr. Lewis says Georgia is now a place where black candidates can be elected by black-white coalitions. “More and more, black and white voters, especially in the South, see that they’re in the same boat,” he says. “A lot of issues, like protecting the environment, creating jobs, protecting neighborhoods, cleaning up a toxic site, or trying to do something about Iraq, have very little to do with race.”

Meanwhile, Mr. Ashcroft’s record shows little concern for black voters but abundant concern for Republican candidates. As governor of Missouri, he vetoed two bills designed to redress racial inequalities in voter registration.

As U.S. attorney general, he has effectively seconded the Justice Department’s Voting Section to the G.O.P. Remember Tom DeLay’s plan to redistrict Texas to gain seats for Republicans? As Jeffrey Toobin has reported in The New Yorker, career lawyers at the Voting Section had drafted a long internal memo arguing that the DeLay plan would illegally dilute minority voting power. But late last year, Mr. Ashcroft’s political staff approved the plan anyway. Come November, you’ll see the results.

The creation of black-majority districts was necessary when the Democratic Party had a monopoly in the South, and whites would almost never vote for blacks. But since 1990, districting deals between Republicans and black Democrats have led to political mischief. Shepherding black voters into black districts left other districts lily-white – and skewed to the right. You saw the consequences in 1994, when the House came under Republican control.

In Georgia and elsewhere, there has been a clash between what the constitutional scholar Richard Pildes calls “descriptive” and “substantive” representation. Descriptive representation is centered on the symbolism of skin: a black face for a black constituency. But it came at the cost of substantive representation – the likelihood that lawmakers, taken as a whole, would represent the group’s substantive interests. Blacks were winning battles but losing the war as conservative Republicans beat white moderate Democrats.

Still, Georgia v. Ashcroft – finally settled in favor of the Georgia Democrats by the Supreme Court – is really a symptom of a bigger problem: not racial districting but partisan districting. “The United States is the only country that places the power to draw election districts in the hands of self-interested political actors,” Mr. Pildes says. “The joke is that the voters don’t really choose the candidates; the candidates choose their voters.”

Iowa, which has genuinely competitive districts drawn by a nonpartisan panel, is an exception. Jim Leach, a Republican congressman from Iowa, says about 390 seats in the U.S. House are safe for one party or the other: he calls it “the collegiality of incumbency.” The safe Republican districts “tend to nominate to the right of center, while safe Democratic districts tend to nominate left of center.” The result is a polarized Congress.

In 2007, Section 5 of the Voting Rights Act is set to expire and Congress will have to decide how to respond. After years of race- and party-based redistricting, two things seem likely. There’ll be many black faces in the House – and the Republicans will be running the place.

© 2004 NY Times

Fred Korematsu Speaks Out on Racial Profiling and Scapegoating

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By Fred Korematsu
First published by the San Francisco Chronicle, Sep 16, 2004

In 1942, I was arrested and convicted for being a Japanese American trying to live here in the Bay Area. The day after my arrest a newspaper headline declared, “Jap Spy Arrested in San Leandro.”

Of course, I was no spy. The government never charged me with being a spy. I was a U.S. citizen born and raised in Oakland. I even tried to enlist in the Coast Guard (they didn’t take me because of my race). But my citizenship and my loyalty did not matter to the federal government. On Feb. 19, 1942, anyone of Japanese heritage was ordered excluded from the West Coast. I was charged and convicted of being a Japanese American living in an area in which all people of my ancestry had been ordered to be interned.

I fought my conviction at that time. My case went to the U.S. Supreme Court, but in 1944 my efforts to seek protection under the Constitution were rejected.

After I was released in 1945, my criminal record continued to affect my life. It was hard to find work. I was considered to be a criminal. It took almost 40 years and the efforts of many people to reopen my case. In 1983, a federal court judge found that the government had hidden evidence and lied to the Supreme Court during my appeal. The judge found that Japanese Americans were not the threat that the government publicly claimed. My criminal record was removed.

As my case was being reconsidered by the courts, again as a result of the efforts of many people across the country, Congress created a commission to study the exclusion and incarceration of Japanese Americans. The commission found that no Japanese American had been involved in espionage or sabotage and that no military necessity existed to imprison us. Based on the commission’s findings and of military historians who reconsidered the original records from the war, Congress passed the Civil Liberties Act of 1988, declaring that the internment of Japanese Americans was unjustified. Finally, it seemed that the burden of being accused of being an “enemy race” had been lifted from our shoulders.

But now the old accusations are back. Fox News media personality Michelle Malkin claims that some Japanese Americans were spies during World War II. Based upon her suspicions, Malkin claims the internment of all Japanese Americans was not such a bad idea after all. She goes on to claim that racial profiling of Arab Americans today is justified by the need to fight terrorism. According to Malkin, it is OK to take away an entire ethnic group’s civil rights because some individuals are suspect. Malkin argues for reviving the old notion of guilt by association.

It is painful to see reopened for serious debate the question of whether the government was justified in imprisoning Japanese Americans during World War II. It was my hope that my case and the cases of other Japanese American internees would be remembered for the dangers of racial and ethnic scapegoating.

Fears and prejudices directed against minority communities are too easy to evoke and exaggerate, often to serve the political agendas of those who promote those fears. I know what it is like to be at the other end of such scapegoating and how difficult it is to clear one’s name after unjustified suspicions are endorsed as fact by the government. If someone is a spy or terrorist they should be prosecuted for their actions. But no one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese Americans, then these are very dangerous times for our democracy.

Fred Korematsu was awarded the nation’s highest civilian honor, the Presidential Medial of Freedom, in 1998. He and his wife, Kathryn, continue to live in their longtime hometown of San Leandro.

© 2004 SF Chronicle