Initiative on Asian Americans and Pacific Islanders Blog

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.

Fighting the New Global Slave Trade

As a human rights lawyer and a Korean-American, I am honored to take part in this month-long celebration of Asian Americans and Pacific Islanders (AAPI) in the United States and to help advance the cause of human rights both within our country and across the globe.

One of the most urgent challenges the AAPI community must address – and one of the most egregious human rights abuses of our time—is the modern global slave trade: the crime of human trafficking.

Traffickers prostitute underage girls, force boys to beg on the streets, subject men to debt bondage in agriculture and factory work, and enslave women in homes as domestic workers.  As we have seen in U.S. v. Lee and more recently in the U.S. v Global Horizons prosecution, this crime dramatically affects the rights of those of Asian and Pacific Islander descent on U.S. soil. Trafficking undermines the guarantees of the Thirteenth Amendment of the U.S. Constitution and Article 4 of the Universal Declaration of Human Rights.

While the problem is massive and global, we are finally seeing progress through the growth of legal norms and regimes. One hundred and forty six countries are now parties to United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), which supplements the UN Convention on Transnational Organized Crime.  Palermo embodies the “3P” approach to combating trafficking – prosecution, protection and prevention.

Instead of focusing on only one face of the trafficking problem, Palermo calls on its member states not just to criminalize and prosecute trafficking in persons, whether sex trafficking or forced labor, but also to provide fundamental protections to its victims.  The United States has stood at the vanguard in combating trafficking at home and overseas by promoting the “3P” approach and the ratification of Palermo.  Under U.S. law, the Trafficking Victims Protection Act of 2000 (TVPA) provides the foundation of our anti-trafficking commitment.

The annual Trafficking in Persons (TIP) Report, which ranks more than 175 countries on their anti-trafficking efforts and can result in serious restrictions on poorly performing countries, is a powerful diagnostic and diplomatic tool to aid us in this effort. More than 116 countries have now joined us in passing anti-trafficking legislation, but far more must be done.  In the Asia and Pacific Island region, only three countries were given the highest rank last year, while the majority of countries remain in the bottom two ranks.

The United States is not above this scrutiny. Last year, through Secretary Clinton’s leadership, the United States was also evaluated and ranked according to the standards set forth in the TVPA and included in the TIP Report.  Despite our high ranking, the report made clear how much we in the United States still must do to meet this challenge. 

As Asian Americans and Pacific Islanders, we must do more to help close these gaps, both at home and abroad.  So long as anyone toils as a victim of trafficking in the United States, Asia or elsewhere, my office, our Department, and this Administration will continue to fight this plague wherever it arises. In the 21st Century, it is long past time for us to stop tolerating this kind of lawless global abuse of our fellow human beings.

Harold Hongju Koh is Legal Adviser to U.S. Department of State