The Law At War: Did the advocacy by Government lawyers in the 'Japanese Internment Cases' cross an ethical line?

February 24, 2011 5:30 PM

Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
(located on 8th Avenue between 49th and 50th Streets)

In Hirabayashi and Korematsu, the Government argued that 'military necessity' justified the exclusion and detention of Japanese-Americans living in the Western Defense Zone. According to a report by General DeWitt, the commander of the Western Defense Command, the 'military necessity' arose from the danger of sabotage and espionage by Japanese-Americans, particularly in the event of an invasion, which the Government suggested was considered a real possibility by military authorities. The loyalty of Japanese-Americans was particularly suspect based on racial and cultural factors, the Government claimed. Yet the Justice Department attorneys were aware that the DeWitt Report was contradicted by other military authorities.

General Marshall, Army Chief of Staff, and General Clarke, his deputy, for example, never regarded an invasion of the West Coast as a realistic possibility, and so advised Congress and the Justice Department in 1942. The claims of espionage and sabotage by Japanese-Americans along the West Coast had been debunked by the FBI, the FCC and the Office of Naval Intelligence as early as January 1942, facts learned by the Justice Department no later than early 1944. Moreover many Government lawyers knew or suspected that General Dewitt's Report was inspired by deep-seated racial animus toward "Orientals." 

All of that came to a head in April and May 1944 when the Solicitor General's office was drafting the Government's brief in Korematsu. During the internal Justice Department debates, some complained about the "suppression of evidence" if the Government was not candid about the differing evaluations by military and other authorities; others contended that the War Department wanted to present "lies" to the Supreme Court.

Yet by then much of the same information was publicly available, albeit without all the details and sometimes by anonymous leaks, and was used by the defendant's attorneys and amici to attack the credibility of the Government's claims of 'military necessity' and its reliance on racial and cultural factors as evidence of the supposedly unique danger presented by the Japanese-American population on the West Coast.

Both at the time and later, the Government's attorneys justified their presentation as appropriate advocacy. Their view was that policy questions were for the political and military authorities; the constitutional issues were for the courts to decide (which they did, in favor of the Government); and the weakness in their factual and legal argument was for the defense attorneys to develop. Was that enough, or did the Government attorneys cross an ethical line in not being more candid with the Court? This program explores those ethical issues.

CLE Hours: 2.00

Program Materials

Fancy Dancing in the Marble Palace by Peter Irons
Hirabayashi: The Biggest Lie of the Greatest Generation by Eric L. Muller
ONI Report - Ringle to Chief of ONI - 1-26-1942
Memo from Atty Gen Bindle to Asst Sec of War McCloy 3-9-1942
Letter from Dewitt to FCC 9-27-1942
Hirabayashi's Principal Brief in US v Hirabayashi
Gov't brief in US v. Hirabayashi, 320 US 81 (1943)
Gov't Brief in Hirabayashi (Word format)
Hirabayashi's Reply Brief
Supreme Court Decision - US v Hirabayashi - 320 US 81 (1943)
Korematsu's Principal Brief 1943
Korematsu's Principal Brief 1944 Korematsu v. US
Gov't Brief in Korematsu v US
Supreme Court Decision - Korematsu v US - 323 US 214 (1944)
Dewitt Report - Initial Version - 4-15-1943
Letter from Lt. Gen. Dewitt to Asst Sec of War McCloy with Initial Dewitt Report 4-15-1943
Transcript of Telephone Conversation between McCloy and Bendetsen 4-19-1943
Notes of Meeting Between McCloy and Bendetsen 4-26-1943
Dewitt Telegram re: the Final Report 4-27-1943
Memo - Ennis to Fahy re: Brief 4-30-1943
Dewitt Report Final Edition 6-5-1943
Memo from J. Edgar Hoover to Attorney General 2-7-1944
Memo - Burling to Ennis 2-23-1944
FCC Report to Atty Gen Biddle 4-4-1944