In 1944 U.S. District Court Judge T. Blake Kennedy in Wyoming ruled 63 young Heart Mountain boys could not raise the unconstitutionality of mass incarceration as a defense in their trial for draft resistance. The jury could only rule on whether or not they failed to report for induction, and convicted the lot.
In 2007, although the cases are different, a military judge at Fort Lewis south of Seattle ruled this week that Army 1st Lt. Ehren Watada can not raise the legality of the war in Iraq as a defense for his refusal to deploy there. The Seattle Times article has links to court documents in Watada’s court-martial trial. See also the Seattle P-I.
By the way, did you see the howler on the season premiere of “24” on Jan. 14? Under siege from terrorist attacks, in a terse exchange on the legal precedents for locking up American Muslims in concentration camps, “President Wayne Palmer” bemoaned how “Roosevelt imprisoned over 200,000 Japanese Americans in what most historians consider to be a shameful mistake.” Where were the fact-checkers? S.I. Hayakawa would have cried “semantic inflation.” What was troubling, though, was the next line of dialogue: “Well I would ask those historians how many of those Japanese Americans were thus prevented from perpetrating acts of sabotage in this country?” The answer, of course, is exactly none.