Revisiting a sad chapter in American history, Acting Solicitor General Neal Katyal has issued a “confession of error” on behalf of his office, acknowledging that it failed terribly in connection with the internment of Japanese-Americans during World War II.

In a statement ^[1]issued on Friday and timed to coincide with Asian-Pacific American Heritage Month, which is May, Katyal said the Solicitor General’s office had played major roles in advancing the cause of civil rights.  But, unhappily, the office committed a major mistake — or worse — in the anti-Japanese hysteria that swept the United States after Pearl Harbor, Katyal said.

“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,” Katyal noted. ” The Solicitor General was largely responsible for the defense of those policies.”

The Solicitor General from November 1941 to September 1945 was Charles Fahy, who later became a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Evidence that surfaced decades later indicated that Fahy concealed evidence that undermined a key rationale for the internment: that many Japanese-Americans posed a security threat. Those few Japanese-Americans who were dangerous had been identified as such early on, Katyal noted. Moreover, intelligence analysts at the time discredited suggestions that Japanese-Americans were using radio transmitters to communicate with Japanese submarines off the Pacific Coast.

“And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by ‘racial solidarity,’” Katyal said of his long-ago predecessor, whom he did not name.

When the cases of Gordon Hirabayashi and Fred Korematsu, which attacked the constitutionality of the internments, reached the U.S. Supreme Court, Fahy did not tell the the justices about the evidence “despite warnings from Department of Justice attorneys that failing to alert the Court “’might approximate the suppression of evidence,’” Katyal noted.

In 1944, the Supreme Court ruled against Hirabayashi and Korematsu, 6-3, in a decision that has come to be seen as a low point for the tribunal.  In 1984, as Korematsu was seeking to clear his name, U.S. Judge Marilyn Patel of the Northern District of California noted ^[2] that critical evidence had apparently been “knowingly concealed from the courts,” as The Blog of Legal Times recalled ^[3].

Charles Fahy, who was a naval aviator in World War I and was awarded a Navy Cross, died in 1979, before his defense of the internment program had been discredited. And it must be said that he was not the only public official whose otherwise distinguished career was marred by the internment episode.

As Attorney General of California, Earl Warren forcefully advocated internment of Japanese-Americans.  But FBI Director J. Edgar Hoover opposed it, not so much on constitutional grounds but because he said his agents had already rounded up the dangerous people.