Confession of Error: Justice Department Finally Admits it was Wrong in Hirabayashi v. United States

 In May 2011, Neal Katyal, then Acting Solicitor General of the U.S., issued a “confession of error” on behalf of his office for defending the mass government roundup and imprisonment of U.S. citizens and immigrants of Japanese descent during World War II.

Last night Katyal, who is now a law professor at Georgetown University and a partner in the firm Hogan Lovells, LLP, spoke about this confession of error in a talk at Fordham Law School. He described how in 1943 Solicitor General Charles Fahey had to defend the government’s actions when the appeal of conscientious objector Gordon Hirabayashi, who had been convicted of violating curfew during the earlier forced roundup, reached the Supreme Court. Although Fahey was aware of intelligence reports that found that the vast majority of Japanese Americans did not pose a security threat, he papered over that evidence, leading to the Court unanimously uphold  Hirabayashi’s conviction in June 1943. You can read a blog post Katyal wrote on the confession of error here.

In a way, Katyal’s talk was a tribute to Justice Department lawyers Charles Ennis and John Burling, who fought hard to “challenge the system from within” and urged Fahey not to fight Hirabayashi’s appeal and those of Fred Korematsu and Minoru Yasui, even as Fahey made “arguments that were products of their time.” After Assistant Attorney General and Columbia law professor Herbert Weschler drafted a footnote to the government’s brief fudging Justice’s position in order to prevent any accusations of suppression of evidence, Ennis and Burling reluctantly signed their names to it.

   

Katyal told the audience his “greatest regret” was that Hirabayashi did not receive the Presidential Medal of Freedom during this life time, as Korematsu was able to do. Since posthumous awards are sometimes given, Katyal added, “I would very much like to see that.”

The talk, directed at a hall full of law students and law professors, was a footnote to the story of the World War II incarceration, yet poignant and relevant as well. Katyal’s advice to current Justice Department officials prosecuting the war on terror: “Because the courts lack institutional competencies in war matters [Justice Department lawyers] have to make the most accurate briefs and have to explain their reasoning…their duty of candor means they have to be absolutely sure to tell every part of the story.” Let’s hope that the current staff in Washington heeds Katyal’s message.

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