In a highly unusual admission of misconduct, the government’s top Supreme Court lawyer posted a “Confession of Error” on the Justice Department’s blog regarding the internment of Japanese Americans during World War II.
Acting Solicitor General Neal Katyal issued a statement holding his predecessor Charles Fahy responsible for defending the forced incarceration of over 100,000 people of Japanese descent to the high court by deliberately omitting naval intelligence that found Japanese Americans on the West Coast to not pose a military threat to the country.
“There are several terrific accounts of the roles that Solicitors General have played throughout history in advancing civil rights. But it is also important to remember the mistakes,” Katyal wrote. “Today, our Office takes this history as an important reminder that the ‘special credence’ the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court. Only then can we fulfill our responsibility to defend the United States and its Constitution, and to protect the rights of all Americans.”
Then-Solicitor General Fahy defended the “military necessity” of an executive order by FDR that cleared the way for the government to relocate Japanese Americans to internment camps. Katyal acknowledged that had it not been for Fahy’s suppression of key evidence, the Supreme Court may have well ruled differently in the landmark cases brought to them by Gordon Hirabayashi and Fred Korematsu, where the mass incarceration of Japanese Americans was deemed constitutional.
The decisions are two of only a few cases where the high court ruled that the government met standards of strict scrutiny for racial discrimination, and are widely viewed as some of the worst decisions in Supreme Court history. The rulings were overturned in the 1980s after political scientist and civil rights lawyer Peter Irons unearthed the government files that proved that the U.S. military did not, in fact, see Japanese Americans as a threat in 1942. Judge Marilyn Patel noted that critical evidence had been “knowingly concealed from the courts” when Korematsu’s name was cleared in 1984.
“It’s very nice, and long overdue,” Irons, a professor at UC San Diego, said. “It’s as close to a confession of error from the government as we are likely to get.”
Korematsu died in 2005 but was awarded the Presidential Medal of Freedom in 1998. “I always wondered if in my lifetime we would get from the Department of Justice a statement acknowledging that Fahy failed to uphold his oath,” his daughter Karen Korematsu told The Blog of Legal Times. “I’m sorry my father is not here to read it. But I am glad the record is starting to be told.” Karen co-founded the Fred T. Korematsu Institute for Civil Rights and Education in her father’s honor in 2009.
In his statement, Katyal also lamented the gross generalizations Fahy had made about Japanese Americans in arguing for their interment, including that they were disloyal and motivated by “racial solidarity.” Fahy himself went on to become a judge on the D.C. Circuit and died in 1979 before his defense of imprisoning Japanese Americans was discredited.
Katyal said the admission of error has particular relevance during May, which is Asian-Pacific American Heritage Month. Katyal, an Indian American, is the first Asian American to hold the Solicitor General post, and is known for winning the Supreme Court case that struck down Guantánamo Bay military commissions in 2006. Katyal will be stepping down later this year if the Senate confirms President Obama’s SG nominee Donald Verrilli Jr.