Korematsu and Hirabayashi families, legal teams react to ‘confession of error’

Fred Korematsu. photo by Lia Chang by keithpr. Courtesy of the Fred T. Korematsu Family

The families and legal teams of Fred Korematsu and Gordon Hirabayashi, two civil rights icons, reacted to the news that the U.S. Department of Justice has finally admitted its mistakes in the cases challenging the government’s World War II incarceration of Japanese Americans.

The “confession of error,” posted by then-acting Solicitor General Neal Katyal on the Department’s Website on May 20, is the first such admission of wrongdoing since the 1940s, when the Supreme Court ruled against Korematsu and Hirabayashi, two young men who challenged the incarceration and related curfew orders that compromised the civil rights of Japanese Americans.

Korematsu was arrested for defying U.S. military orders that forced Japanese Americans into concentration camps. That same year, Hirabayashi turned himself into the FBI after being convicted for violating the government’s curfew order imposed on Japanese Americans.

Both plaintiffs eventually appealed their cases to the U.S. Supreme Court, which upheld their convictions on the grounds that the forced removal of Japanese Americans was justified due to “military necessity.”

In 1983 and 1987, after the discovery of new evidence proving the government had known there was no grounds for the mass incarceration, both Korematsu and Hirabayashi re-opened their cases, leading their convictions to be overturned in the U.S. District Court and the U.S. Court of Appeals, respectively.

Their cases never reached the U.S. Supreme Court again, and the high court’s decisions in Korematsu v. United States and Hirabayashi v. United States are widely condemned as one of the darkest chapters in American legal history.

In the statement, Katyal cites evidence that the Solicitor General at the time, Charles Fahy (who is not mentioned by name), suppressed evidence in the Korematsu and Hirabayashi cases that clearly stated the minimal threat posed to the nation by Japanese Americans.

“Those decisions still stand today as a reminder of the mistakes of that era,” wrote Katyal, 41, who is of Indian American heritage and was the first Asian American to hold the post before being replaced earlier this month.

“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,” stated Katyal. “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,” Katyal continued. “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.”

The families and legal teams point out that Katyal’s statement did not mention a third similar case, that of attorney Min Yasui, which was also re-opened in the 1980s. Yasui passed away in 1986 before his second case was decided.

“My father always believed the incarceration of Japanese Americans was unconstitutional. He encouraged all Americans to stand up for what is right,” said Karen Korematsu, daughter of Fred Korematsu and co-founder of the Korematsu Institute. “We are appreciative of acting Solicitor General Katyal’s remarkable stand to correct the record. Let this be a constant reminder of how justice for all can only be achieved if the people responsible for upholding our rights act with integrity, responsibility and honesty.”

“Solicitor General Katyal’s May 20th posting, ‘Confession of Error,’ is indeed momentous,” said UCLA Professor Lane Hirabayashi, who spoke on behalf of his uncle, Gordon. “If Gordon didn’t know at the time that government prosecutors distorted evidence, however, he knew in his heart that mass incarceration was unconstitutional. It remains a shame that the Supreme Court never confronted the constitutional issues at hand in Korematsu, Yasui and Hirabayashi.”

“Katyal … acknowledge[d] out loud that the nation, at the top-most echelon, failed to uphold justice. It doesn’t heal the wounds, but it’s the right thing to do,” says Lorraine Bannai, a member of Korematsu’s 1983 legal team. “What a vindication for Fred, Gordon and Min, and the 110,000 other Japanese Americans who suffered the consequences of the deceit.”

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