Evidence withheld in WWII detention

WASHINGTON – Acting Solicitor General 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 the Japanese-Americans were disloyal, acting as spies or signaling enemy submarines, as some at the time had suggested.

Fahy was defending Roosevelt’s executive order that authorized forced removals from “military areas.” 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 has 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, FDR’s solicitor general told the court that the government and the military agreed the roundup of Japanese-Americans was required as a matter of “military necessity.”

In 1943, the high court unanimously upheld a curfew imposed on Japanese-Americans in the case of Gordon Hirabayashi v. United States. And in 1944, the court in a 6-3 decision upheld the removal order imposed on Japanese-Americans in Fred Korematsu v. United States. The majority accepted the government’s claim this 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 – at least until now.

“It seemed obvious to me we had made a mistake. The duty of candor wasn’t met,” Katyal said after the meeting.