Acting Solicitor Gen. Neal Katyal, in an extraordinary admission of misconduct, took to task one of his predecessors for hiding evidence and deceiving the Supreme Court in two of the major cases in its history: the World War II rulings that upheld the detention of more than 110,000 Japanese Americans.
Katyal said Tuesday that Charles Fahy, an appointee of President Franklin D. Roosevelt, deliberately hid from the court a report from the Office of Naval Intelligence that concluded the Japanese Americans on the West Coast did not pose a military threat. The report indicated there was no evidence Japanese Americans were disloyal, were acting as spies or were signaling enemy submarines, as some at the time had suggested.
Fahy was defending Roosevelt's Executive Order 9066, which authorized forced removals of Japanese Americans from "military areas" in 1942. The solicitor general, the U.S. government's top courtroom attorney, is viewed as the most important and trusted lawyer to appear before the Supreme Court, and Katyal said he had a "duty of absolute candor in our representations to the court."
Katyal, 41, who is of Indian American heritage and is the first Asian American to hold the post, said he decided "to set the record straight" Tuesday at a Justice Department event honoring Asian Americans and Pacific Islanders.
He said that two of the government's civilian lawyers had told Fahy it would be "suppression of evidence" to keep the naval intelligence report from the high court.
"What does Fahy do? Nothing," Katyal said.
Instead, Fahy told the justices the government and the military agreed the roundup of Japanese Americans was required as a matter of "military necessity." Roosevelt issued the order on Feb. 19, 1942, about two months after Japan's attack on Pearl Harbor, which plunged the U.S. into World War II.
In 1943, the high court unanimously upheld a curfew imposed on Japanese Americans in the case of Gordon Hirabayashi vs. United States. And in 1944, the court in a 6-3 decision upheld the removal order imposed on Japanese Americans in Fred Korematsu vs. United States. The majority accepted the government's claim that it was a matter of "military urgency."
Scholars and judges have denounced the World War II rulings as among the worst in the court's history, but neither the high court nor the Justice Department had formally admitted they were mistaken — until now.
"It seemed obvious to me we had made a mistake. The duty of candor wasn't met," Katyal said.
Korematsu, who was awarded the Presidential Medal of Freedom by President Clinton, died in Marin County in 2005 at age 86. On Tuesday, his daughter Karen said she was grateful that Katyal had acknowledged the mistakes of his predecessor.
"It was a remarkable statement he made," she said. "It proves what my father believed all along — that removing the Japanese Americans was wrong and incarcerating them was unconstitutional."
Korematsu was sent to a camp in Utah, one of 10 in the country. California had two, Tule Lake and Manzanar.
Katyal said that last summer he was doing research for several immigration cases when he came upon some ugly, disturbing comments about Asians in 19th century briefs submitted to the Supreme Court. Chinese immigrants were described as "people not suited to our institutions." People from India were described as a "subject race."
He then looked into the history of the World War II internment cases, including documents revealed in the 1980s. Peter Irons, a professor at UC San Diego, had found reports in old government files that showed the U.S. military did not see Japanese Americans as a threat in 1942. His research led to federal court hearings that set aside the convictions of Korematsu and Hirabayashi. Congress later voted to have the nation apologize and pay reparations to those who were wrongly held.
Katyal said he decided it was important to publicly acknowledge the mistakes made in the solicitor general's office. Hiding the truth from the justices, he said, "harmed the court, and it harmed 120,000 Japanese Americans. It harmed our reputation as lawyers and as human beings, and it harmed our commitment to those words on the court's building: Equal Justice Under Law."
Hirabayashi is now 93 and living in Canada. His memory of the World War II years has faded, said his nephew Lane Hirabayashi, a professor of Asian American studies at UCLA. "I know Gordon would be very pleased by this. He didn't know at the time that government prosecutors had distorted evidence. However, he knew in his heart that mass incarceration was unconstitutional," he said.
"I thought it was good and very long overdue," Irons said of Katyal's statement. "This was a deliberate, knowing lie by Fahy to the Supreme Court. For the government's highest counsel to make that statement now is quite noteworthy and admirable."
A year ago, Katyal became the acting solicitor general when Elena Kagan was nominated to the Supreme Court. He had made a name for himself in legal circles in 2006 when took on the case of Salim Hamdan, who faced a military trial at the U.S. prison at Guantanamo Bay, Cuba. He won in the Supreme Court, which struck down the military commissions because they had not been authorized by Congress.
But that victory in Hamdan vs. Rumsfeld earned him some critics in the Senate — and it may have cost him the chance to win Senate confirmation as solicitor general. This year, President Obama passed over Katyal and nominated Deputy White House Counsel Donald Verrilli Jr. for the post. Katyal said he would step down when the Senate officially confirmed Verrilli.