In an unusual statement posted on the Justice Department's blog, Acting Solicitor General Neal Katyal on Friday spoke of the "mistakes" made by a long-ago predecessor in defending the U.S. government's World War II Japanese-American internment program before the Supreme Court.
Katyal reviewed evidence unearthed in the 1980s that in 1943 and 1944, then-Solicitor General Charles Fahy failed to tell the Court of relevant reports minimizing the danger posed by Japanese-Americans living on the west coast. His omissions and misstatements came in the cases of Korematsu v. United States and Hirabayashi v. United States, in which the Court upheld the internment program. The rulings, never overturned, are widely viewed now as embarrassments to the Court.
"Those decisions still stand today as reminders of the mistakes of that era," Katyal wrote in his blog post. "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."
The blog post is titled "Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases." But it is not in the formal sense a confession of error of the kind that would be filed in an actual case before a court.
Nonetheless, over the weekend, Fred Korematsu's daughter as well as members of the legal team that fought to overturn his conviction in the 1980s viewed Katyal's statement as a significant and welcomed step.
"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," said Korematsu's daughter Karen in a phone interview. "I'm sorry my father is not here to read it. But I am glad the record is starting to be told." Her father died in 2005, and in 2009 she co-founded the Fred T. Korematsu Institute for Civil Rights and Education in his name.
"It's very nice, and long overdue," said Peter Irons, the University of California San Diego political scientist who in 1981 discovered the documents that showed Fahy misled the high court. "It's as close to a confession of error from the government as we are likely to get."
Katyal indicated in his statement that it was timed to coincide with Asian-Pacific American Heritage Month, which is May. Katyal is scheduled to speak Tuesday, along with Attorney General Eric Holder Jr., at an event marking the occasion in the department's Great Hall. Katyal, who declined to elaborate on the blog post, is expected to leave the department sometime later this year, assuming that the Senate confirms Donald Verrilli as the next SG.
Following the discovery of documents contradicting SG Fahy's argument before the wartime Supreme Court, lawyers for Korematsu and Gordon Hirabayashi filed writs of coram nobis, a rarely invoked process for reversing mistaken court decisions caused by fraud or other errors, when no other relief is available.
In granting Korematsu's writ in 1984, Judge Marilyn Patel of the U.S. District Court for the Northern District of California spoke of "critical contradictory evidence known to the government and knowingly concealed from the courts." She also noted the existence of memoranda between Justice Department officials discussing the obligation to give the courts an honest account of the conflicting evidence about the threat posed by Japanese Americans and whether an internment program was justified. Not presenting the full picture "might approximate the suppression of evidence," one official warned.
"The information was critical to the court's determination," Patel wrote. "The judicial process is seriously impaired when the government's law enforcement officers violate their ethical obligations to the court." The government dropped its opposition to overturning the conviction, but never explicitly acknowledged its misleading statements.
Hirabayashi's conviction was also vacated, and in a 1987 decision affirming that action, the U.S., Court of Appeals for the 9th Circuit rebuked the solicitor general for misleading the courts. The appeals panel said the government's argument that the Supreme Court would have reached the same decision even if Fahy had been forthright "ignores the traditionally special relationship between the Supreme Court and the solicitor general which ... commands special credence from the Court."
Katyal referred to that statement in his blog post, adding that "The court thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor."
Fahy, who went on to serve as a judge on the D.C. Circuit, died in 1979 before his defense of the internment program was discredited. Hirabayashi is a retired sociologist who taught at the University of Alberta in Canada. Korematsu was awarded the Presidential Medal of Freedom in 1998. At the web site of the Korematsu Institute, Katyal's statement was heralded as "unprecedented."