A deliberate, knowing lie.

May 25, 2011 1:14 PM

Acting Solicitor Gen. Neal Katyal, in an extraordinary admission of misconduct, took to task one of his predecessors for hiding evidence and deceiving the Supreme Court. The misconduct took place 'in two of the major cases in its history: the World War II rulings that upheld the detention of more than 110,000 Japanese Americans.' 'Scholars and judges have denounced the World War II rulings as among the worst in the court's history, but neither the high court nor the Justice Department had formally admitted they were mistaken — until now. "It seemed obvious to me we had made a mistake. The duty of candor wasn't met," Katyal said.'

The WWII internment of Japanese-Americans authorized by President Roosevelt, was one of the most famous cases of abuse stemming from suspension of habeas corpus.

'Former Supreme Court Justice Tom C. Clark, who represented the US Department of Justice in the "relocation," writes in the epilogue to the 1992 book Executive Order 9066: The Internment of 110,000 Japanese Americans:

The truth is—as this deplorable experience proves—that constitutions and laws are not sufficient of themselves...Despite the unequivocal language of the Constitution of the United States that the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066.'

'Katyal said Tuesday that Charles Fahy' '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.'

'Neal Katyal, 41, who is of Indian American heritage and is the first Asian American to hold the post, said he decided "to set the record straight" Tuesday at a Justice Department event honoring Asian Americans and Pacific Islanders.

He 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.'

'A year ago, Katyal became the acting solicitor general when Elena Kagan was nominated to the Supreme Court. He had made a name for himself in legal circles in 2006 when took on the case of Salim Hamdan, who faced a military trial at the U.S. prison at Guantanamo Bay, Cuba. He won in the Supreme Court, which struck down the military commissions because they had not been authorized by Congress.

But that victory in Hamdan vs. Rumsfeld earned him some critics in the Senate — and it may have cost him the chance to win Senate confirmation as solicitor general. This year, President Obama passed over Katyal and nominated Deputy White House Counsel Donald Verrilli Jr. for the post. Katyal said he would step down when the Senate officially confirmed Verrilli.'

posted by VikingSword (37 comments total)

A long time coming.
posted by Ironmouth at 1:17 PM on May 25, 2011 [1 favorite]

70 years. 70 fucking years.
posted by benito.strauss at 1:17 PM on May 25, 2011

Katyal was my con law professor, and he basically rocks for a variety of reasons, so I'm not surprised that he is the one doing this.

Also, my wife has a huge crush on him that I have to mention to embarrass her.
posted by Bulgaroktonos at 1:22 PM on May 25, 2011 [6 favorites]

70 years. 70 fucking years.

Korematsu is now pronounced 'Guantanamo.'
posted by phaedon at 1:26 PM on May 25, 2011 [10 favorites]

70 years. 70 fucking years.

Hey, at least it finally happened.
posted by Brandon Blatcher at 1:28 PM on May 25, 2011 [1 favorite]

"The truth is—as this deplorable experience proves—that constitutions and laws are not sufficient of themselves...Despite the unequivocal language of the Constitution of the United States that the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066."

Thank God we learn from the lessons of the past, though.
posted by darkstar at 1:32 PM on May 25, 2011 [10 favorites]

But that victory in Hamdan vs. Rumsfeld earned him some critics in the Senate — and it may have cost him the chance to win Senate confirmation as solicitor general.

I am not privy to the inside beltway politics behind this statement, but should't the mere suggestion that this guy won't get senate confirmation because he argued to uphold the powers of the house tick someone off?
posted by phyrewerx at 1:34 PM on May 25, 2011 [1 favorite]

I know, I know — better late than never. But there's a whole lot of room between late and on time. Imagine how you'll feel when it's officially revealed that Bush lied to get us into the second Iraq War. In the year 2071.

(Not discounting Katyal's bravery. I'm sure he'll suffer professionally, and I wouldn't be surprised if he'll suffer personally.)
posted by benito.strauss at 1:35 PM on May 25, 2011 [2 favorites]

I really appreciate that Katyal did this for us.
posted by dragonplayer at 1:41 PM on May 25, 2011

I am not privy to the inside beltway politics behind this statement, but should't the mere suggestion that this guy won't get senate confirmation because he argued to uphold the powers of the house tick someone off?

Well, it ticks me off.
posted by furiousxgeorge at 1:47 PM on May 25, 2011

Well done, Mr Katyal.

should't the mere suggestion that this guy won't get senate confirmation because he argued to uphold the powers of the house tick someone off?

Well, God knows it ticks *me* off.
posted by rmd1023 at 1:49 PM on May 25, 2011 [1 favorite]

Yeah, ticks me off as well, but just gives me one more reason to love Neal Katyal (I didn't have him for con law, but would go see him at panels and everything else around GULC whenever I could.)

I feel the need to mention that he is also a big New Pornographers fan. This seems important to me, for some reason.
posted by Navelgazer at 1:51 PM on May 25, 2011 [1 favorite]

A small but gleaming bead of sweat trickled slowly down the forehead of Alberto Gonzales.
posted by brain_drain at 1:54 PM on May 25, 2011 [5 favorites]

Navelgazer, The New Pornographers actually came up during class on at least one occasion. The context was that because of his role in Bush v Gore some Democratic group had asked him if he would be available to help them out on election night. The answer was no, because he was going to be seeing The New Pornographers.
posted by Bulgaroktonos at 2:00 PM on May 25, 2011 [1 favorite]

hal_c_on, yes, that's who you're thinking of. Dude beat Dubya on Hamdan v. Rumsfeld, aka the Gitmo habeus case.
posted by Navelgazer at 2:08 PM on May 25, 2011

It's about damn time
Sorry, I couldn't resist, all the rapture threads do funny things to me. ;)
posted by jeffburdges at 2:11 PM on May 25, 2011

Forgive me for being, perhaps, ignorant, but I guess I don't understand fully the motives behind the relocation camps (unless they were just knee jerk fear based racism).

The process required a lot of effort. If they knew there was no threat, what was the reason they pushed for it anyhow? What did the government stand to gain from it? Did they get to confiscate their money and property?

Don't misunderstand me as defending or refuting the above, I guess I just want to know why we did such a senseless thing.
posted by Bathtub Bobsled at 2:18 PM on May 25, 2011 [2 favorites]

the Gitmo habeus case.

speaking of which...

Forgive me for being, perhaps, ignorant, but I guess I don't understand fully the motives behind the relocation camps (unless they were just knee jerk fear based racism).

the west coast has a long history of anti-asian pogroms. it's one of the reasons why Vancouver Canada looks the way it does racially...
posted by ennui.bz at 2:24 PM on May 25, 2011 [1 favorite]

Bathtub Bobsled, in the wikipedia link in the FPP, there's some background to this. There was huge and widespread racism especially concentrated in California, where the vast majority of Japanese-Americans settled.

There were also economic motives:

"Internment was popular among many white farmers who resented the Japanese-American farmers. "White American farmers admitted that their self-interest required removal of the Japanese."[22] These individuals saw internment as a convenient means of uprooting their Japanese American competitors."

Many businesses owned by Japanese-Americans were sold at firesale prices to white business owners. It was a massive transfer of resources.
posted by VikingSword at 2:25 PM on May 25, 2011 [9 favorites]

Uh, that's nice I guess but it was 70 years ago. Not really that exciting.

Not discounting Katyal's bravery. I'm sure he'll suffer professionally, and I wouldn't be surprised if he'll suffer personally.

Oh come on, there is no one out there who still supports the government in this. Except for Michell Malkin I guess.
posted by delmoi at 2:39 PM on May 25, 2011

Oh come on, there is no one out there who still supports the government in this. Except for Michell Malkin I guess.

The government (and corporations) have this big thing about admitting wrong doing or culpability, as it opens the doors for lawsuits and legal action. Which is also why these things ("Hey, sorry about this gross violation of your civil rights, my bad.") always get admitted long after most of the people who could take action are dead.

While it's politically safe for the US at this point, Katyal will definitely be seen as a potential troublemaker, especially given all the current civil rights violations we KEEP doing.
posted by yeloson at 2:49 PM on May 25, 2011 [5 favorites]

(Not discounting Katyal's bravery. I'm sure he'll suffer professionally, and I wouldn't be surprised if he'll suffer personally.)

Suffer professionally and personally? Do you think that the ghost of Charles Fahy is going to rise from the dead and prevent Katyal from returning to Georgetown Law Center? That Fahy's legion of acolytes are going to picket Katyal's attendance at Georgetown cocktail parties?

The wrongness of the Korematsu decision is well-settled. In the 1980s, Judge Miriam Patel ruled in the internment coram nobis cases that the government had concealed material information that should have been disclosed to the Supreme Court. In 1983, the congressional Commission on Wartime Relocation acknowledged that the interment was unjust, incorrect, and motivated by racism. In 1988, President Reagan signed the Civil Liberties Act that provided redress to those who were interned, which President Bush followed up with additional funding and another apology in 1992. In 1991, Peter Irons published his book (cited by Katyal) summarizing the internal communications between Fahy and Ennis about the Ringle report, which were part of Judge Patel's rulings nearly a decade earlier. By 1992, Justice Clark was admitting (as linked in the FPP) that the Korematsu decision was an unconscionable violation of the Constitution.

This week, Neal Katyal wrote a short blog post saying that Korematsu was wrong and that Fahy concealed evidence (as Patel, Reagan, Irons, et al had been acknowledging for decades). We all knew that already. The government has admitted all that already. Katyal was just piling on. There's nothing brave about that. Certainly nothing that is professionaly or personally risky. He should have taken a shot at Plessy v. Ferguson for good measure.

Why would he pile on? Because he was not nominated to become Solicitor General. So he has to go back to the legal academy, where is gratuitous (however justified) shot at Fahy will gain him plaudits. The plaudits might help him avoid criticism for defending DOMA and Gitmo and all of the other Obama legal strategies that were largely a continuation of Bush policies that the legal academy deplored four years ago.
posted by Slap Factory at 2:59 PM on May 25, 2011 [8 favorites]

Slap Factory: Do you think that the ghost of Charles Fahy is going to rise from the dead and prevent Katyal from returning to Georgetown Law Center? That Fahy's legion of acolytes are going to picket Katyal's attendance at Georgetown cocktail parties?

No, I don't think that. I did assume that he would get some sort of 'unreliable' label in some quarters. But I have no idea how politics and government actually works, so maybe there will be no cost for him.

delmoi: Oh come on, there is no one out there who still supports the government in this. Except for Michell Malkin I guess.

There's a difference between saying "from our current vantage point we can see that it was the wrong thing to do" and "at the time it occurred process was violated -- it was wrong from the second it took place, not just from a moral but also from a legal perspective". Though I wasn't aware of the Peter Irons book that Slap Factory cites, so maybe everyone else already knew that the repudiation was this deep, this pervasive.

Also, in my mind I hear Gonzalez or Ashcroft saying "Regardless of how history judges the actions that were taken at the time of National Peril, it is important that the United States never show doubt.", so I'm enjoying one of the benefits of the current administration.

Though I still think Obama sucks on extending national security bullshit and preserving the unitary executive.
posted by benito.strauss at 3:25 PM on May 25, 2011

Viking Sword, thank you for the explanation.

Last question: Is there actually a place on earth that can rightfully tout itself as "The Land of the Free"?

Yes, that's more of a rhetorical question, but I have a child on the way, and I'm not looking forward to explaining to her things like this. I want to take her somewhere far away from people doing awful things to their fellow man in the name of "civilization."

I just want to live somewhere the atrocities are done by "they" to "them" with " us" not being either party.

A man can dream...
posted by Bathtub Bobsled at 3:25 PM on May 25, 2011

(unless they were just knee jerk fear based racism).

It was that.
posted by furiousxgeorge at 3:28 PM on May 25, 2011 [2 favorites]

OH FFS, J. Edgar Hoover was against EO 9066! If he's thinking you're going too far, you better back the fuck off it.
posted by Bathtub Bobsled at 3:29 PM on May 25, 2011

Suffer professionally and personally? Do you think that the ghost of Charles Fahy is going to rise from the dead and prevent Katyal from returning to Georgetown Law Center? That Fahy's legion of acolytes are going to picket Katyal's attendance at Georgetown cocktail parties?

You'd be surprised. I know I was. Not by Fahy's ghost or his legion of acolytes. Fahy was merely a nasty little cog in the machinery of racism, repression and authoritarianism. No, you'd be surprised by something very real and corporal and dangerous, like the kind of rhetoric from mainstream GOP politicians, where civil liberties and worker rights gains made a century ago are under assault in a "us vs them" political campaigns. Have you heard, of a little band of brave souls across the nation, identified under the banner of Tea baggers? No? Yes? I recommend you listen to some of those voices. Frightening stuff. No matter how far back you go, and how settled you think some of these debates were, you'd be surprised. There are millions out there who are foaming at the mouth at the mention of that red menace communist FDR. And these people have political power - and have voted in a boatload of politicians who speak their language. You can make fun of a Rand Paul, but you should listen carefully to what he says, because he represents real voters. Do you think these senators and congressmen have no power, and that people like Katyal have nothing to fear from them, and that he would pay no political price for his stands? Don't bet on it.

Further, I took that quote about bravery and professional/personal risks to be about his participation in the Hamdan case. From the FPP article:

"But that victory in Hamdan vs. Rumsfeld earned him some critics in the Senate — and it may have cost him the chance to win Senate confirmation as solicitor general."

Racism, hate, fear and repression have not been abolished anywhere in the world, and certainly not in the U.S. Anyone who takes a high profile stand against these, potentially faces professional/personal risks.

I am not necessarily ready to call Katyal a hero for taking such stands. But I'm not going to cynically dismiss it as so much grandstanding that's utterly unnecessary in our glorious republic free of political extremism.
posted by VikingSword at 3:48 PM on May 25, 2011 [3 favorites]

Well, honestly, VikingSword, I was extrapolating from the (reported) Solicitor General loss. And like you, I can be glad over truth and justice getting a little more official sanction without jumping to blind adoration of those doing the sanctioning.

But it still feels like we're moving more towards rule by men, as opposed to the rule of law I think the country actually was founded on. It's way too easy to ignore this when the men (and women) you prefer are currently doing the ruling.
posted by benito.strauss at 4:22 PM on May 25, 2011

I'm not sure how Katyal is going to suffer professionally for this. Is there some contingent of rabid Korematsu supporters that I don't know about? I thought pretty much everybody now thinks the decision was wrong, with current Gitmo/executive authority supporters trying to distinguish the current issues from the WWII ones, not leaning on Korematsu for precedential value. Am I way off base?

(Regardless, good for him.)
posted by dixiecupdrinking at 5:21 PM on May 25, 2011

Also, how many freaking Georgetown Law graduates are on here? Sheesh!
posted by dixiecupdrinking at 5:25 PM on May 25, 2011

The government (and corporations) have this big thing about admitting wrong doing or culpability, as it opens the doors for lawsuits and legal action.

The government already admitted it was bad, and also paid restitution. Also, what Slap Factory said.
posted by delmoi at 5:37 PM on May 25, 2011

It's one of history's little ironies that just a few years later, Fahy would chair Truman's Committee on Equality of Treatment and Opportunity in the Armed Services, which was tasked with overseeing the implementation of military desegregation.
posted by Rangeboy at 5:44 PM on May 25, 2011

Last question: Is there actually a place on earth that can rightfully tout itself as "The Land of the Free"?

Yes, that's more of a rhetorical question, but I have a child on the way, and I'm not looking forward to explaining to her things like this. I want to take her somewhere far away from people doing awful things to their fellow man in the name of "civilization."

I just want to live somewhere the atrocities are done by "they" to "them" with " us" not being either party.

A man can dream...

Nowhere is perfect but there are plenty of places that are a big improvement on your current one in this regard. The USA chooses to maintain a vast hegemony, and doing this necessarily entails violence and subjugation and violation of freedom. What you are looking for is a nation that is not trying to jockey for dominance, does not feel threatened, is unlikely to be threatened and unlikely to threaten others, and has a decent economy and strong institutions of law. I can think of a few. None perfect, but still a clear leg up from the USA.
posted by -harlequin- at 6:59 PM on May 25, 2011

Lest we forget. The right-wing media personality Michelle Malkin wrote a pro-Japanese internment book that also served as a thinly veiled argument for racial profiling and internment of Muslims in the war on terror.
posted by jonp72 at 7:36 PM on May 25, 2011 [1 favorite]

Is there some contingent of rabid Korematsu supporters that I don't know about? I thought pretty much everybody now thinks the decision was wrong

Yes?

I have a brief story about this.

I go to some music festivals every year. They're relatively hippied-out affairs, and the people I hang out with are not usually Republican Base material. Then again, one of them is in the middle of the country. Last year, at that one in particular, I was stumbling back into camp somewhere near sunrise and happened across a dude whose tent was near mine, hanging out and smoking a cigarette. We talked fairly pleasantly for a while, and then he made some comment to the effect that, you know, most people don't know this but the Nazis weren't the only ones with concentration camps back then. I agreed that this was true. With this as a point of departure, he explained that

a) we probably should have killed all of the Japanese Americans outright instead of interning them.

b) on that model, we should round up and kill every Muslim in America.

There may have been some nuance on the last point; I think he might have been willing to consider deporting the women and children. I'm not sure. I'd been awake for a very long time and my brain basically went numb and I just kind of sat there dazed by how fucking horrified I suddenly felt by everything, so I didn't exactly ask for more detail.

Now, ok, this guy is a particularly nasty piece of business, right? And also a marginalized dude from a small town in the middle of nowhere. So maybe I shouldn't draw too many conclusions. But I cannot escape the feeling that there are a lot of that guy. He's far from the first of the type I've ever met. And if you dial him back a little ways, to just before the sort of red zone of absolute broken-brained lunatic racism, you get to stuff like that Michelle Malkin book and you have this pile of ideas that a lot of people in my own family entertain.

Maybe I'm wrong, but I can't help thinking it goes like this: A crazy racist here or there is probably not having that much influence, but the little outbursts of crazy racism are symptoms. That dude would hate no matter what, but there sure is a lot of shit floating around out there for his hate to latch on to. I think this is relevant because I think it's important to do whatever we can to make ideas that eventually condense down to rambling 6am statements in support of genocide completely untenable.
posted by brennen at 10:04 PM on May 25, 2011 [2 favorites]

Many businesses owned by Japanese-Americans were sold at firesale prices to white business owners. It was a massive transfer of resources.


Holy shit. I knew this before, especially regarding the Japanese Canadian fishing fleet, but just now I connected the dots: this is exactly what happened to the Jews (businesses sold off to Germans) before the Final Solution got into full swing. And Jesus, this was happening pretty much simultaneously.

We're the good guys, right? Right?
posted by Meatbomb at 12:08 AM on May 26, 2011

When I was in high school, I was given a history assignment to talk to my grandparents about what they might remember from World War II.

My Dad's side of the family are Japanese-American and I knew the history of Japanese internment camps, and that my Dad's family been relocated at one point. When I talked to my grandparents about it, they told me something that I'd never heard of before: they were allowed to leave the camps because of a shortage of agricultural workers in the U.S. at the time.

There were some sort of criteria for release that they met--grandmother was born in the U.S., grandfather was in the U.S. since early childhood, both spoke English fluently and were Methodists.

They spent a couple of years working their butts off picking potatoes for J.R. Simplott who had a contract with the U.S. Army. My grandfather told me that he and the other workers were paid some pitiful amount (I think it was ten cents per day, or something like that) and were so desperately hungry and poor that they considered going back to the camps.

So apparently per the logic of the U.S. government, my grandparents were too dangerous to be allowed to farm on their own, but not too dangerous to help launch Simplott on his way to becoming a millionaire and tax cheat.

I sound bitter and snarky, but my grandparents never were. They chose to focus on the people who were kind to Japanese-Americans at the time. People like Esther Boyd and Dan McDonald, who testified to Congress that Japanese-Americans were loyal citizens, and watched over the Japanese temple in Wapato until their neighbors returned from the camps. My Dad's side of the family was so touched by Dan McDonald's testimony that both my father and his cousin are named after Dan McDonald.
posted by creepygirl at 8:32 PM on May 26, 2011 [4 favorites]