Acting United States Solicitor General Neal Katyal recently wrote on his blog about the "mistakes" made by the World War II Solicitor General in defending the U.S. government's Japanese-American internment program before the U.S. 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, according to the Law.com. 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.
In 1984, Judge Marilyn Patel of the U.S. District Court for the Northern District of California found that Fahy's conduct consisted 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, reported Law.com.
"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.
According to Law.com, Katyal referred to that statement in his blog post, adding: "The court thought it unlikely that the Supreme Court would have ruled the same way had the solicitor general exhibited complete candor."
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