A surrogate of President-elect Donald Trump on Wednesday invoked Japanese internment camps as precedent for creating a registry for Muslim immigrants. This comes less than a week after the Kansas secretary of state told Reuters that Trump's team might reprise a post-Sept. 11 national registry of immigrants from countries regarded as havens for "extremist activity."
Such conversations in the president-elect's circles have raised new concerns about civil rights among advocates for American Muslims.
Former Navy SEAL and Trump surrogate Carl Higbie told Fox News' Megyn Kelly that the registry would be legal and that "we need to protect America first."
Here is how that exchange went after Higbie said there was legal precedent for the registry and referred to Japanese internment camps:
Kelly: You know better than to suggest that. I mean, that's the kind of stuff that gets people scared, Carl.
Higbie: Right. I'm not saying I agree with it, but in this case I absolutely believe that a regional-based ...
Kelly: You can't be citing Japanese internment camps as precedent for anything the president-elect is gonna do.
Higbie: Look, the president needs to protect America first, and if that means having people that are not protected under our Constitution have some sort of registry so we can understand, until we can identify the true threat and where it's coming from, I support it.
Last week, Kansas Secretary of State Kris Kobach told Reuters that the Trump transition team focused on immigration was considering using an executive order to bring back the post-Sept. 11 National Security Entry-Exit Registration system. Kobach helped President George W. Bush create the registry, which the Justice Department suspended in 2011.
According to the DOJ website, the program mandated that people from "extremist" countries provide fingerprints and photos at the borders that would then be checked against a database of "known criminals and terrorists." It also allowed for "exit controls that will help the Immigration and Naturalization Service to remove those aliens who overstay their visas."
Democratic Rep. Keith Ellison of Minnesota said that if the Trump administration "moves forward with the racist and divisive policies his team have been advocating for, we will be the first ones to stand up to him. We will be the first ones to tell him, 'No.' "
More than a year ago, Trump said that if elected, he "would certainly implement" a law that would require Muslims to add their names to a national database. Trump, when challenged, did not distinguish his proposal from others throughout history, including the World War II Nazi effort to register Jews, according to the New York Times. The president-elect later attempted to distance himself from that statement, claiming on Twitter that a reporter had made those remarks.
Democratic Rep. Judy Chu of California denounced Higbie's comments.
"Any proposal to force American Muslims to register with the federal government, and to use Japanese imprisonment during World War II as precedent, is abhorrent and has no place in our society," Chu said. "These ideas are based on tactics of fear, division, and hate that we must condemn."
Higbie isn't the first to invoke internment camps in reference to Muslim immigrants in recent years. In November 2015, when talking about the perceived threat of Syrian refugees, the then-mayor of Roanoke, Va., cited the 1942 order requiring more than 120,000 Americans of Japanese descent to relocate to camps.
"I'm reminded that President Franklin D. Roosevelt felt compelled to sequester Japanese foreign nationals after the bombing of Pearl Harbor," Democrat David Bowers said in a statement, "and it appears that the threat of harm to America from Isis now is just as real and serious as that from our enemies then."
Politicians and activists quickly criticized Bowers and pointed out that Japanese internment had long been discredited. In 1988, Japanese-Americans who were sent to the camps were paid reparations, and in 1991, President George H.W. Bush issued a formal apology.
On Thursday afternoon, Rep. Mike Honda, D-Calif., said "no one should go through what my family and 120,000 innocent people suffered regardless of their race or religion or any other way they would choose to try and divide us."
The idea of a return to darker days is more than just hyperbole. A 1944 Supreme Court ruling that allowed for Japanese internment still stands. The Atlantic's Matt Ford detailed how the case, Korematsu v. United States, was argued:
"In one of its most widely condemned decisions, the U.S. Supreme Court upheld the exclusion orders in Korematsu v. United States. Justice Hugo Black argued for a 6-3 majority that the exclusion orders were a necessary outgrowth of the president's war powers and justified by the situation at hand. 'Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions,' he wrote in his opinion for the Court. 'But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.'
"The Supreme Court has never overturned Korematsu, largely because federal and state governments have not attempted the mass internment of an entire ethnic group since then. But the decision belongs to what legal scholars describe as the anti-canon of American constitutional law — a small group of Supreme Court rulings universally assailed as wrong, immoral, and unconstitutional. Dred Scott v. Sandford, Plessy v. Ferguson, Buck v. Bell, and Korematsu form the anti-canon's core; legal scholars sometimes include other decisions as well."
Ford pointed out, however, that one of the judges wrote in his dissent that implicit in the Korematsu decision was the "legalization of racism."