Charles Sheehan has just published in the American Journal of Legal History an article (entitled "Solicitor General Charles Fahy and Honorable Defense of the Japanese–American Exclusion Cases") defending wartime Solicitor General Charles Fahy against the wll-known and almost universally credited accusation (leveled in the 1980s by Peter Irons and recently picked up by Neal Katyal) that Fahy suppressed material evidence of the innocence (as it were) of Japanese Americans in the notorious Hirabayashi and Korematsu cases. It's at 54 Am. J. Legal Hist. 469.
(The article doesn't appear to be available for free online anywhere.)
Peter Irons broke the news of the discovery of this "suppression of evidence" back in the early 1980s, and it was instrumental in securing the writs of error coram nobis for Fred Korematsu and Gordon Hirabayashi at that time. The claim, as Sheehan notes, was that a key naval intelligence officer (Kenneth Ringle) anonymously published in the popular press a version of a report he'd filed in January of 1942 depicting most Japanese Americans as loyal and safe, contrary to the "facts" about Japanese Americans' risks of disloyalty and sabotage of which the Solicitor General ultimately asked the Court to take judicial notice. Fahy knew of this report's existence but didn't bring it to the attention of the Court, notwithstanding contrary urgings by Ed Ennis, the top lawyer in the Justice Department's Alien Enemy Control Unit.
Irons (and now Katyal) maintains that the failure to disclose this report to the Court approximated the suppression of key evidence in the government's hands contradicting their own claims about the inherent risks posed by Japanese Americans. They also maintain (as Irons and other lawyers had to do in order to secure the grants of coram nobis) that this suppression was prejudicial, in the sense of (mis)leading the 1940s Supreme Court into reliance.
I think there's much to be said for Sheehan's defense of his grandfather (yes, Fahy was Sheehan's grandfather, so there's a risk of special pleading here, one that Sheehan acknowledges) on the specific issue of willful evidence suppression. I've long felt that Irons (and Katyal) have overstated the reliability, stature, and significance of the naval intelligence report -- and that in any event, the wartime Court wouldn't have needed (or relied upon) allegations about the mixed loyalties and racial risks posed by Japanese Americans in order to believe (as the majority of the Justices surely did at the time, just as most Americans surely did) that Japanese Americans were not fully American, were not fully assimilated, and were not due a presumption of safety. (Jerry Kang has made a version of this point quite brilliantly.)
There were certainly people within the Justice Department (and many within the War Relocation Authority) who knew the race-based-mass-suspicion argument to be factually mistaken. I do wish those voices had prevailed ... but I've never been wholly persuaded that the failure to surface the naval intelligence report rose to the level of a willful and material suppression of evidence.
And of course there's the obvious point that the report was published in Harper's in October of 1942, albeit anonymously (by "an intelligence officer"). It's hard to say that the allegations in the report were "suppressed" when in fact they had been in the public arena for months by the time the Court heard the Hirabayashi case. These days, in the due process context, the fact that a piece of evidence is available to the defense defeats any claim that the government "suppressed" it. What was "suppressed," if anything, was just the fact of Ringle's authorship.
Having said all of this, though, I've got to say that I've come to believe that the suppression-of-evidence claim put forward by Irons (and picked up by Katyal) is ultimately a bit of a sideshow -- a distraction from a more significant misrepresentation by Justice Department lawyers. (Likelier by Ennis than by Fahy.)
On the issue of military necessity in both Hirabayashi and Korematsu, the government repeatedly asked the Court to take judicial notice of the nature of the military threat facing the Pacific Coast at the moment when military decisionmakers were deciding upon the mass removal of Japanese Americans. The threat, government lawyers insisted, was of an "invasion" of the coast. The word "invasion" permeates the government's briefs in Hirabayashi and Korematsu and figured prominently in oral arguments too. (It also mirrored the prevalent fears of the population.)
The trouble here is that Ed Ennis (at a minimum) knew -- from his personal involvement in the debates with the War Department early in 1942 about whether mass removal was necessary -- that military planners were not anticipating a coastal "invasion" at the time and did not believe such an "invasion" possible. (If you think for a moment about what was logistically necessary to attempt the invasion of Normandy in 1943 across a few dozen miles of water in the English Channel you'll immediately understand why they would have understood an "invasion" of Los Angeles or San Francisco across thousands of miles of the Pacific was not in the cards.) The military was not planning to deal with a coastal invasion in the early spring of 1942; the military was not devoting its key energies to preparations for a coastal invasion but was instead predominately pulling resources away from the West Coast in order to support the "Germany First" strategy upon which FDR and Churchill settled. This isn't just 20-20 hindsight; it is all confirmed in contemporaneous military planning records in the National Archives. (I document this carefully in my article "Hirabayashi and the Invasion Evasion.")
The story Irons and Katyal tell about the government's misleading the Court about the racial risks of Japanese Americans appeals to our post-60s sensibilities because it sounds in racism. It's the sort of thing we're primed to believe and primed to find reprehensible. And there's no doubt that race was a card that the SG played in the Japanese American cases (regardless of whether what that office did actually amounted to the suppression of evidence, or whether the Court relied upon it). But the focus on racism has distracted us from a less-sexy-but-probably-more-influential misrepresentation by the government -- a misrepresentation about the extent of the degree of the threat the Japanese posed to the coast. I don't think the Court needed to rely on the SG's office for their understanding of how race enhanced the risk of subversion that Japanese Americans posed; this was an understanding most of the Justices no doubt already had. I do, on the other hand, think the Court would have had good reason to rely on representations from the SG's office about the nature and extent of the risk of a Japanese coastal invasion. From what other source would or could they have drawn their impressions on that issue?
So in the end, I think the literature benefits from Sheehan's defense of his grandfather. But it also perpetuates the focus on the wrong misrepresentation.
Eric, all very interesting. I wish I were better informed on the nature of the issues here. I wonder how much the Court focused on invasion (as opposed to sabotage). When I had Herbert Wechsler for federal courts around 1989 I remember him sort of casually remarking that there was controversy over the morality of Korematsu, but that he believed at the time that internment was necessary to protect against sabotage and that he still believed it may have helped protect us. For there were, in fact, no internal attacks. I wasn't too knowledgable about this issue, but I remember thinking that was a bold defense of something that pretty much everyone believed, at least with the benefit of hindsight, was wrong. (at least that's how I remember it 25+ years on)
Posted by: Al Brophy | January 09, 2015 at 05:38 PM