Confession of Error: The Solicitor General's Mistakes During the Japanese-American Internment Cases

It has been my privilege to have served as Acting Solicitor General for the past year and to have served as Principal Deputy Solicitor General before that.  The Solicitor General is responsible for overseeing appellate litigation on behalf of the United States, and with representing the United States in the Supreme Court.  There are several terrific accounts of the roles that Solicitors General have played throughout history in advancing civil rights.  But it is also important to remember the mistakes.  One episode of particular relevance to AAPI Heritage Month is the Solicitor General’s defense of the forced relocation and internment of Japanese-American during World War II. 

Following the attack on Pearl Harbor, the United States uprooted more than 100,000 people of Japanese descent, most of them American citizens, and confined them in internment camps.  The Solicitor General was largely responsible for the defense of those policies.

By the time the cases of Gordon Hirabayashi and Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment.  The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody.  But the Solicitor General 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 he 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 FCC.  And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

The Supreme Court upheld Hirabayashi’s and Korematsu’s convictions.  And it took nearly a half century for courts to overturn these decisions.  One court decision in the 1980s that did so highlighted the role played by the Solicitor General, emphasizing that the Supreme Court gave “special credence” to the Solicitor General’s representations.  The court thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.  Yet those decisions still stand today as a reminder of the mistakes of that era.

Today, our Office takes this history as an important reminder that the “special credence” the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court.  Only then can we fulfill our responsibility to defend the United States and its Constitution, and to protect the rights of all Americans.

 Neal Katyal is the Acting Solicitor General of the United States.