PRESS RELEASE: November 15, 2014 – Vol. 9, No. 28

Former Acting US Solicitor General Cites Misconduct in Hirabayashi and Korematsu cases

JAVA participates in White House, Arlington Cemetery and WW II Memorial events

Capitol Hill, Washington, DC. Neal Katyal, former Acting Solicitor General of the United States, was the keynote speaker at the 14th Veterans Day Program at the National Japanese American Memorial to Patriotism in Washington, DC. He spoke from the stage, facing the monument of two cranes entwined in barbed wire and the names and the number of internees in each of the ten internment camps etched on the granite wall. Professor Katyal told the audience, many of them US citizens who were forcibly confined in internment camps for the duration of the war, that Solicitor General Charles Fahy, who had the responsibility to represent the government in the high court, “hid evidence and deceived the Supreme Court that upheld the detention of more than 110,000 Japanese Americans.”

Professor Neal Katyal, former Acting Solicitor General of the United States

Professor Neal Katyal, former Acting Solicitor General of the United States

The Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment before the cases of Gordon Hirabayashi and Fred Korematsu reached the Supreme Court. The evidence was the Ringle Report, produced by the Office of Naval Intelligence, which found that that there was no evidence that the Japanese American community was acting as spies or sending signals to enemy submarines. Solicitor General Fahy did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones.

Nor did Fahy inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and the Federal Communications Commission. Further making matters worse, he based his beliefs on groundless stereotyped generalizations about Japanese Americans, such as that they were all disloyal and motivated by “racial solidarity.”

“The solicitor general, the US government’s top courtroom attorney, is viewed as the most important and trusted lawyer to appear before the Supreme Court and he had the duty of absolute candor in our representations to the court. It is unlikely that the Supreme Court, in 1943, would have unanimously upheld the curfew imposed on Japanese Americans in the case of Gordon Hirabayashi versus United States on the grounds of military urgency” had the Solicitor General exhibited complete candor,” Katyal said.

Katyal mentioned Hirabayashi, in particular, as a person of admirable character. A religious pacifist, Hirabayashi allowed himself to be arrested on July 16, 1942, for violating the curfew and for refusing to be relocated to a concentration camp. As a result, he was sentenced to 90 days in a Tucson, Arizona, prison. Government officials were willing to drop the charges. However, Hirabayashi declined as his goal was to take his case to the Supreme Court. When officials told Hirabayashi they did not have the funds to transport him to prison, he hitch hiked to Tucson. When he arrived at the prison, he was told they did not have his papers. He left and returned the following day and was finally admitted to prison, where he was confined for 90 days. His lawyer appealed his convictions that eventually lead to the famous Supreme Court case. On April 27, 2012, President Barack Obama announced Hirabayashi would receive the Presidential Medal of Freedom for his stand against Japanese American internment. Unfortunately, Hirabayashi died two days before the scheduled presentation.

Katyal, recognized as one of the top lawyers in America, is currently the Paul and Patricia Saunders Professor at the Georgetown University Law Center in Washington, DC. He was Acting Solicitor General from 2010 – 2011 and was Principal Deputy Solicitor General before that.

Earlier in the day, Lieutenant Colonel (LTC) Allen Goshi, USA (Ret) and Nancy Yamada attended the annual White House breakfast for veterans, hosted by Vice President Joe Biden. Also, during that morning, President Gerald Yamada participated in the Arlington Cemetery laying of the wreath at Tomb of the Unknown and the Vice President’s address to the nation at the Amphitheater. JAVA representatives, Col Derek Hirohata, USAF and LTC Mark Nakagawa, USA (Ret), participated in the Arlington event as color guards. Friends of the World War II Memorial invited Terry Shima to lay a wreath at the Wall of Heroes at the World War II Memorial. Representing the Japanese American community, Shima paid respects to the 400,000 veterans, including 700 Nisei, who were killed in combat during World War II.


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