History

FDR Solicitor General Lied to Supreme Court about Japanese Internment

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In Korematsu v. United States (1944), the U.S Supreme Court, packed to the hilt with 8 justices appointed by President Franklin D. Roosevelt, upheld FDR's notorious Executive Order 9066, which authorized the forced internment of Japanese-Americans as a matter of "military urgency" during World War II. It's an ugly decision and the full story is even worse. As The Los Angeles Times reports, Neal Katyal, the acting solicitor general for the Obama administration, has admitted that one of his predecessors, FDR's Solicitor General Charles Fahy, deliberately misled the Supreme Court in the case. Here's L.A. Times reporter David Savage:

Katyal said Tuesday that Charles Fahy, an appointee of President Franklin D. Roosevelt, deliberately hid from the court a report from the Office of Naval Intelligence that concluded the Japanese Americans on the West Coast did not pose a military threat. The report indicated there was no evidence Japanese Americans were disloyal, were acting as spies or were signaling enemy submarines, as some at the time had suggested….

[Katyal] said that two of the government's civilian lawyers had told Fahy it would be "suppression of evidence" to keep the naval intelligence report from the high court.

"What does Fahy do? Nothing," Katyal said.

Instead, Fahy told the justices the government and the military agreed the roundup of Japanese Americans was required as a matter of "military necessity."

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112 responses to “FDR Solicitor General Lied to Supreme Court about Japanese Internment

  1. I don’t see how this is relevant some 60 years later. It’s not like the US is currently detaining people without trial based solely on their country of orig…oh.

    1. This. Anyway, without the Feds, we’d return to Jim Crow anyway.

      Eggs, omlettes and all that.

      1. I will never understand the people who argue that we need the Federal government, of all institutions, to end racism in America.

        1. Racist!

      2. Jim Crow? Shoot, without the Feds, we’ll all just off ourselves by driving cars that explode at 30 MPH!

        -jcr

  2. That’s a breach of national security to let it be known that the government lied. Treason, really.

    1. Even worse: terrorism!

  3. But FDR stopped the Great Depression! Really! That justifies any racist civil rights violations!

    1. Were people so depressed because everything was black and white?

      1. I think everything was black and white because everyone was so depressed, Pro L.

        1. That’s why that depression was great, eh? I think I begin to approach understanding.

          That’s how we know the recent recession wasn’t/isn’t actually a depression, right? Because everything seems to be still in color.

      2. Yes, but then the un un-depressed everything and added color to the world, so now people are happy because of the un.

        1. Indeed, they are unhappy now!

      3. Sepia. get your filters straight.

        1. My family is from the South. We were denied sepia during Reconstruction.

    2. But FDR stopped the Great Depression!

      Regressives (aka Progressives) will not stop shoving this lie in our faces everytime we try to talk about the need of a free markets.

      1. Because when facts don’t support your dogma, new facts can be invented.

        All you have to do is compare the 30 years post-WWII and the 30 years after that and see which policies preceded which economic conditions. Not a good argument for laissez-faire, to say the least.

        1. You’re correct, except for your conclusion. Prior to the GD, when gov’t largely kept it’s hands off, economic shocks were severe, but extremely short-lived compared to what we endure now (years of stagnation / slow growth followed by yet another “jobless” recovery). Herbert Hoover, at the start of the GD, instituted most of what FDR would flesh out into the New Deal (it was Hoover who put in place wage freezes, and started the first gov’t make-work programs). After that, we got the Depression for a freaking decade. So there’s the result of your favored policy…a decade of malaise. Hope you’re happy. But then again, you’ve never been one much for “facts”.

          1. Your causal chain here is ideologically convenient but false. Regardless of what Hoover and FDR tried, it was never enough to end the depression until they stopped trying to balance the budget and went full-on with spending for the war. The post-war domestic policies that created the ensuring prosperity had absolutely nothing to do with a “free market” and everything to do with creating workplace protections, safety nets, and other aspects of a middle class promoting environment. To the extent these programs have been eroded, prosperity has declined (except for those at the very top).

            Read this and get back to me.

            1. A Salon article written by Reich offered as “proof” for the progressive English major’s views on the economy. You really know how to play to the stereotype, Tony.

              1. Fine, refute him point by point. Or just take the brainwashed idiot’s way out, cry bias. I don’t care.

            2. Hmm, Logic 101. **Warning** This is an economics lesson for a liberal; most of you can ignore the entire post.

              Gov’t does something repeatedly, and a certain result follows. In this instance, gov’t almost never does anything except tighten it’s belt during economic downturns, and said downturns last only an average of 8 months – a year, with full recovery usually within a couple of years of the initial downturn.

              This is what we call the “constant”.

              Next we get to what is, in some circles, known as the “variable”.

              In this case, it would be Hoover suddenly deciding that this time, the downturn is somehow different (granted, it was worse than any in living memory at the time), and so requires gov’t intervention and solution. They do so. Amazingly, the economy does not recover.

              Fast forward. We come to another variable. World War II. Liberals love it, because 1) you get to fight fascists, and 2) it supposedly got us out of the GD (though libs get squishy when asked if it was FDR and the New Deal, or WWII that ended the Depression. If it was WWII, then the New Deal was theoretically useless, because the War would have fixed things anyway).

              Afterward, liberals claim the Golden Age of the 1950s and 60s had something to do with liberal policies re: working folks. They tend to ignore things that are inconvenient to them; that you had a massive portion of the populace out of the workforce due to racial discrimination and many women still staying at home. Like anything else, lowering the supply of something (workers) drives up the price of that thing (salary).

              Additionally, liberals like to ignore that most of the civilized world was burned to the ground. In the post-WWII world, for awhile, the US made up literally almost 50% of world productive capacity. By the end of the 1970s, with Europe & Japan fully rebuilt, and China & India coming online, there is vastly more productive capacity than existed even a few decades before. We’re back to supply and demand. The more supply of something there is, the less money can be commanded for it. Wages went down. Benefits were cut in order to remain cost-competitive. It’s easy to give nice salaries and benefits when you’re one of the only places on earth making cars. Not so easy when half the globe can make a car for cheaper than you can.

              I could link you to articles stating categorically that the New Deal did not end the Depression, but they’re from the same partisan sources that your link was from, and you wouldn’t believe my people anymore than I believe yours. That’s why I tried to lay out the logic for you above. And if you think that WWII was great, and that it was only the spending that helped, and not the fact that American factories weren’t destroyed en masse and that large impoverished populations were not competeting with us for jobs, then I’m sorry. Because the only answer for you will be to 1) spend like there’s no tomorrow, and 2) couple that with destroying tens of millions of people and utterly wiping out the productive capacity of half the globe. Oh, and get the darkies and the wymens out of the workforce again. Then you’ll have your utopia, you sick fuck.

              1. I don’t care how many facts you want to throw around, FDR’s policies ended the depression. That’s the bottom line. End of story.

                1. I don’t care how many facts you want to throw around, FDR’s policies ended the depression. That’s the bottom line. End of story.

                  LOL…its astounding that you can argue that such policies “ended the depression”, when it took 11 years to do what more “hands off” approaches did in less than 2 years.

            3. Your causal chain here is ideologically convenient but false. Regardless of what Hoover and FDR tried, it was never enough to end the depression until they stopped trying to balance the budget and went full-on with spending for the war. The post-war domestic policies that created the ensuring prosperity had absolutely nothing to do with a “free market” and everything to do with creating workplace protections, safety nets, and other aspects of a middle class promoting environment. To the extent these programs have been eroded, prosperity has declined (except for those at the very top).

              Your history is contrived from thin air. War-time GDP did NOT show any correction for the Depression. Robert Higgs shows that private investment did not recover until AFTER the war and after much of the New Deal policies were discontinued. Employment rates were near full employement, but only because you removed a significant portion of the male population from the labor pool and sent them off to war. The post-war recovery was the product of pent up private productive capacity for non-war goods and services.

              The War Economy was no more real than the Soviet Economy

              1. Exactly. A command economy is not a real economy.

        2. All you have to do is compare the 30 years post-WWII and the 30 years after that and see which policies preceded which economic conditions. Not a good argument for laissez-faire, to say the least.

          Great example of post hoc ergo propter hoc fallacy. Looking at GDP data points on a timeline graph tells nothing of causation.

        3. So, given that the government spends far more now than it ever did back then, how did we get in another near-depression?

          1. It doesn’t, as a percentage of GDP. Though, despite this, apparently we’re spending enough to be in hysterics over.

    3. What really depresses me is the fact that millions of people actually believe that FDR was a good man.

      -jcr

  4. Statist douche appointed by another statist douche acts completely in character and does what statist douches always do.

    More news at 11.

    1. And remember, kids, you can’t spell douche without Che!

      1. I wanna punch middle class white kids in the face for wearing those ridiculous shirts.

        1. I just ask if they also own a Hitler t-shirt.

          1. Those “Hitler European Tour” shirts were real popular when I was in college.

            1. I have an odd feeling those were worn without the sense of nonirony that wearers of the Che shirts have.

  5. Precedent, bitchez!

  6. You know what? I actually consider the release of this information to be a somewhat clumsy attempt to rehabilitate the government’s reputation in this matter.

    The fix was in with regard to the Japanese internment. The President and the SCOTUS were going to make it happen, no matter what.

    This “revelation” is an empty attempt to make it look like the President wasn’t a tyrant and the SCOTUS not his craven enablers. “No, really! If only we had had this report, we wouldn’t have done ANY of that stuff! Honest!”

    Bull Fucking Shit.

    You know why that report disappeared? Because nobody wanted to see it. The SCOTUS would still have ignored it even if it had been entered into evidence.

    1. How do you know this? Are you sure?

    2. I’m sure because FDR signed the executive orders.

      I’m sure because of the sequence in which DeWitt issued his own orders in Military Zone #1.

      Did you know that before the Japanese were interned, they were banned from leaving Military Zone #1?

      In other words, DeWitt made sure the Japanese couldn’t leave the areas where FDR was handing them the authority to intern them, for the relative safety of areas where they didn’t have that authority. He was that determined to be able to intern them. And he had Roosevelt’s full support. He had read the Ringle report at that point and didn’t give a damn.

      I’m sure because of the contortions and ratiocination in the Korematsu decision.

      I’m also sure because in the earlier Hirabayashi and Yasui decisions, the SCOTUS reached the same conclusions.

  7. Instead, Fahy told the justices the government and the military agreed the roundup of Japanese Americans was required as a matter of “military necessity.”

    Thereby allowing the Justices to invoke the “military necessity” exception to the BOR.

    What’s that? Your copy of the Constitution doesn’t have that exception. Report to the internment camps for re-education, comrade. Its a matter of military necessity.

    1. Instead, Fahy told the justices the government and the military agreed the roundup of Japanese Americans was required as a matter of “military necessity.”

      This statement was true.

      FDR, Earl Warren, and General DeWitt all agreed.

      That means that the federal and state government and the military authorities all agreed.

      Had DeWitt NOT agreed, FDR would just have fired him and appointed someone else to his post. And kept doing that until he had someone who agreed. The same exact way Bush just fired people until he could say that the military supported all of his WoT programs.

      1. Well, Ashcroft was actually one of the least on board with all the WoT programs; not surprising for people who remembered his record on, say, encryption when in the Senate. But because he was a Pentacostal, parts of the Right were going to love him and the Left hate him regardless.

        So naturally we eventually got the ten times worse Alberto Gonzalez yes-man.

    2. What’s that? Your copy of the Constitution doesn’t have that exception.

      I got into it this weekend at a survivalist convention over this very thing. I was handing out LP stuff, and the guy told me he was with us 99%, but that he would never support Ron Paul or any libertarian because we’re “soft” on the existential Muslim threat (sharia law imposed on the US, etc.)

      He threw out the old, “you’re wrong, the constitution is NOT a suicide pact”, and I don’t really have a response to that, because at that point, it’s strictly a philosophical difference. After some prodding, I got him to admit that he would agree to “temorarily” jettison ALL freedoms, if it meant destroying the Muslim menace. He doens’t think America is defined by our (initially at least) unique drive for freedom; he’s a blood-and-soil type. What can you say to people like that?

      1. The problem with survivalists is that they’re 50% likely to be a Live Free or Die type and 50% likely to be an American History X type and there’s no way to tell the difference just by looking.

      2. He threw out the old, “you’re wrong, the constitution is NOT a suicide pact”, and I don’t really have a response to that, because at that point, it’s strictly a philosophical difference. After some prodding, I got him to admit that he would agree to “temorarily” jettison ALL freedoms, if it meant destroying the Muslim menace. He doens’t think America is defined by our (initially at least) unique drive for freedom; he’s a blood-and-soil type. What can you say to people like that?

        His argument is based on his false belief that him or people like him will be the one’s in charge of this suspension of liberty and directed at the “enemy”. But since he can’t guarantee that him or people like him will remain in charge, he has argued for allowing himself to become the target, for which he would likely claim would be unjust.

      3. What can you say to people like that?

        “Ein reich, ein volk. . . .”

      4. He who fights with monsters must see to it that in the process he does not become a monster himself.

      5. Also “temporarily” haha.

        1. Hmm, vague. Not laughing at your typo, laughing at the idea that such a thing would be “temporary”.

      6. “The Constitution is a security system”

        or…

        “Quis custodiet ipsos custodes”

        or, you could ask him about the ratio of people killed by criminals and terrorists to people killed by their own governments over the past century or so.

        or, you could just ask him “Why do you want to give Barack Obama the tools he needs to get away with bombing your house with an unmanned drone if the feds start to worry about you or just want to remind everyone who’s in charge?”

    3. “”What’s that? Your copy of the Constitution doesn’t have that exception. “”

      All reinterpretations will be in secret.

  8. Japanese, Arab (whoops, I mean Muslim), whatever. Round ’em all up, cause you know they’re plotting something. They can’t possibly love ‘merca as much as we do!

    Better would be to round up all the politicians… maybe the xenophobic fearmongering talkshow hosts too!

    1. But we don’t want the Irish!

  9. It’s official: Government? is bad.

  10. So what is the point of this snarky post? A big “I told you so”?

    Are libertarians against government telling the truth now? I bet you all drive on *public* roads and get US mail. Hypocrites! Move to Somalia already if you love it so much.

      1. I think you could get drunk just from that one post. That’s a rarity.

    1. Seriously, where do you come up with this comment? The ire of the post, of course, is directed at the FDR administration. I don’t see anything criticizing the solicitor general for fessing up.

      1. umadbro?

        1. I had to use roads again this morning.

          1. Don’t feed the morontrolls (new word I just made up), ProL.

            1. Moronotroll would be better.

              1. Is that a High Speed Moronotroll?

                1. That’s where I was going, yes.

            2. I like the word troltards (which I just made up). But I’m wondering, are we using “morons” now instead of “retards” ’cause rather/rectal is offended by the term “retards”?

              1. How about trolltoad? Like toll road, but with trolls and toads instead.

              2. “Retards” is kind of mean and uncalled for (not that that stops me from using it). Though since you are not supposed to use it to refer to actual retards anymore, maybe it is OK. What was my point again?

                1. Is cuntroll? Like some sort of sushi?

                  1. Sorry, there was originally a sentence in there.

                1. Intertrol.

                  1. Do you have to pay the troll toll?

                    1. Is that a troll who collects tolls, or a toll on trolls?

  11. By the way, exposing the ugly truth about internment–and ‘fessing up about it–must have been a contributing factor to why we didn’t have huge internment camps during the War on Terror. It wasn’t because Alberto Gonzales and Rummy refused to bend the law. And It wasn’t out of the goodness’ of the Cheney Administration’s heart either–it was because the American people wouldn’t have stood for it.

    The Bush Administration did legal and logical somersaults to try to do the same thing as internment camps–off our shores by way of Guantanamo and extraordinary rendition. …but nothing on the scale of what we did to people of Japanese ancestry during World War II.

    I said “Japanese ancestry”, of course, because some 60,000 of those “Japanese” internment camp victims–were American citizens of Japanese ancestry.

    We may have had a handful of American citizens caught up in the War on Terror that way, but nothing on the scale of the internment camps of World War II. And if we want to avoid making the same human rights mistakes we made during the War on Terror, we should fully investigate and confront the human rights abuses we perpetrated during the War on Terror too.

    1. To be sure, as bad as the War on Terror has been, I doubt seriously that any internment based on nationality alone was considered.

      1. I think the Japanese internment camps did to that idea what the Vietnam War did to conscription. As bad as the War on Terror was, there was never any serious consideration given to implementing the draft either.

        There’s an old saw about how we always seem to be fighting the last war–projecting the last war onto the one we’re fighting now. I don’t know about that, but we definitely seem to learn from the last war’s mistakes–when we ‘fess up.

        The apology to Japanese Americans came decades late. If we want to avoid making the same human rights mistakes we made during the WOT, we need to embrace them.

        I think we did some of the same sorts of things. I remember shortly after 9/11, when all my Muslims friends who had family here on visas–all men from predominantly Muslim countries over a certain age had to report to the INS. A lot of those people were quietly deported. I’m not sure that’s entirely right–but it’s a lot better than internment camps!

        We basically treated Americans of Japanese ancestry like we treated Native Americans before them. I think we can pat ourselves on the back for not falling for that again. Surely, the fear that Muslims among us would do us harm was more realistic during the WOT than the fear the Japanese-Americans would rise up against us!

        We got one thing right during the WOT (no conscription), and we did a lot better on internment camps. Every good manager focuses their people on what they did right–after they point out the mistakes that were made.

        And we made some big ones on torture.

        1. I’m not sure that’s entirely right–but it’s a lot better than internment camps!

          Michelle Malkin would like to have a word with you.

          http://www.amazon.com/Defense-…..0895260514

          1. I’ve wasted less than five minutes of my life thinking about what Michelle Malkin thinks…about anything. …and that includes the time I spent writing this comment.

            A lot of these people really would go away if we just ignored them. Michelle Malkin, Ann Coulter… I’m more interested in what Vince McMahon has to say.

            I see the title of that book, and it just looks like a cry for help.

    2. If the radical nutbars ever do succeed in detonating a nuke in the US, you can kiss your Bill of Rights goodbye and say hello to internment camps.

      “Temporarily”, of course.

      1. It’ll never happen. The loving caress of the TSA is here to stop them.

        1. There will always be another “number 2” or “number 3” man in Al-Qaeda to justify the continued existence of the national security state.

          We are living in a James Bond movie where SMERSH/QUANTUM/SPECTRE/HYDRA will never be totally destroyed.

      2. Given the backbone of the American people and the willingness of the politicians to pander to the lowest scum, it won’t take a nuke attack, just another little job like 9/11.

      3. Not to mention the American “Empire of Trust” will become the other kind of empire in a real hurry.

        1. The failed kind? The empire is rotten to the core, it’s just waiting for some barbarians to do the honors.

  12. In the first sentence, you spelled anointed wrong.

  13. In your face, Michelle Malkin!

  14. Dr. Seuss was, first and foremost, a Democratic Party loyalist. His editorial cartoons on the importance of internment (and the disloyalty of Japanese-American fifth columnists) are rather shocking today.

    1. Really? I could have sworn that I have seen a bunch of anti-New Deal cartoons by Dr. Seuss.

      1. But on further investigation, I see you are right. Why can’t artists just shut the fuck up about their stupid, ill-informed political views?

        1. But then we’d have no Friday Funnies.

        2. Well, Dr. Seuss did get his start as an editorial cartoonist for Democratic Party newspapers.

  15. Progressives love them some concentration camps.

    1. Dude, they prefer the term “universal public education.” Get it right.

    2. Republicans like blowing up Arab babies.

      1. Dude, they prefer the term “undermining terrorist recruitment efforts.” Get it right.

        1. In any case, we’re all glad that this has come to an end under the current administration.

          1. This place has like 3 libertarians. The rest of you are GOP talking points spouting morons. The wars will end under Obama, not with a snap of a finger though. And he doesn’t deserve equal blame for having inherited them.

            1. Tony, don’t even go there. We can pull up pages of quotes from Senator and Candidate Obama outlining positions on national security, warrants, etc., which directly contradict what he’s done now that he’s in office.

              At least attempt an honest argument and say he didn’t know then what he knows now, and he’s changed his mind once he had all the facts. I’d still argue it, but it’s at least something I can see being a legit discussion. The “everything he does is perfectly in line with what we were expecting” meme is such bullshit it’s not even worth arguing against. The mere existence of disaffected actual liberals who are still protesting Gitmo, the newest, shiniest war in Libya, and the fact that he basically had to massively lose a midterm before finally doing something concrete about gay rights puts the lie to your bullshit DNC talking points.

              1. Oh I don’t believe he should get a pass on foreign policy, I just don’t like the Bush presidency revisionism inherent in attempts to create a false equivalence. I tend to judge the relative folly of these things on body counts.

            2. The wars will end under Obama

              Including the one he just started in Lybia?

              1. Or the one he started in Pakistan?

                1. Ending the wars will be a major theme of the Obama 2012 campaign.

      2. Yes, but so do Democrats.

      3. So do progressives (see Libya). It’s bipartisan!

      4. The Democrats do, too, you pathetic little fauxgressive Dembot.

    3. Yeah, just ask the plains Indians.

      -jcr

  16. This paragraph from the article shows that the facts are not really new:

    “[The current Solicitor General] looked into the history of the World War II internment cases, including documents revealed in the 1980s. Peter Irons, a professor at UC San Diego, had found reports in old government files that showed the U.S. military did not see Japanese Americans as a threat in 1942. His research led to federal court hearings that set aside the convictions of Korematsu and Hirabayashi. Congress later voted to have the nation apologize and pay reparations to those who were wrongly held.”

    It was in the 1980s that Fahy’s misbehavior came to light, the courts overturned the convictions of the Japanese-Americans who defied the wartime policy, and Congress voted an apology bill, which President Reagan signed.

    Then Michelle Malkin later said that Congress and Reagan were wimps who had caved in to the sinister Japanese-Americans-Who-Didn’t-Like-Being-Locked-Up-In-Camps lobby.

    The new angle is that a current solicitor general is saying, “yeah, all that stuff they said in the 80s about FDR being wrong – that was all true.”

  17. We are the land of the free and the home of the brave – except when it matters. This is the land of liberty – unless that liberty interferes in any way whatsoever with the will of those in charge. Most people live under the delusion that this is a free society when the reality is, you are only free to the extent that the government has no particular interest of interfering with that freedom. People seem to confuse their insignificance to those in power with being free.

  18. Does anyone remeber Gallup New Mexico standing against this executive order? I cant find any good links or stories about it but I remeber the librarian Octavia Fellin discussing people there standing up to the executive order because families like the Miyamura’s (http://en.wikipedia.org/wiki/Hiroshi_H._Miyamura) were a large part of the community…..

    anybody? maybe it was just in my head…

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