Korematsu V. United States - Alleged Suppression of Evidence By The Solicitor General

Alleged Suppression of Evidence By The Solicitor General

On May 20, 2011, Acting Solicitor General Neal Katyal released an unusual statement denouncing one of his predecessors of more than 65 years ago, Solicitor General Charles Fahy. He accused Mr. Fahy of having “suppressed critical evidence” in the Hirabayashi and Korematsu cases before the Supreme Court during World War II.

The historical record shows that the allegedly suppressed document, known as the Ringle Report, did not originate within "the Office of Naval Intelligence," but was written by a junior intelligence officer in the field and was specifically disavowed by the Office of the Chief of Naval Operations in a letter to the FBI dated February 14, 1942. The letter enclosed a copy of the report, and stated that the report “...does not represent the final and official opinion of the Office of Naval Intelligence.” Only two years after the "internment" did the FCC and FBI officially state they had found no evidence of collaborationist radio transmissions by Japanese Americans being sent from the West Coast, but they did find some evidence of such illicit radio transmissions from Hawaii. Accordingly, it was long felt that any suspicion of "suppression of evidence" by Solicitor General Fahy was ill-advised. Korematsu's vindication in 1983, however, was a ruling that the internment was fatally flawed.

Acting Solicitor General Katyal remarked in 2011 that, in the pre-war era of ethnic segregation in public accommodations, which on the West Coast included wide refusal of equal treatment of "Japs," the Chief's office was easily prejudiced to disavow the Ringle Report in its 1942 letter. He noted that Fahy's subordinates had actually alerted Fahy in writing that failing to investigate that report, or at least to disclose its existence in the briefs or argument in the Supreme Court, “might approximate the suppression of evidence.” Thus, Katyal concluded that Mr. Fahy “did not inform the Court that a key set of allegations used to justify the internment” had been doubted, if not fully discredited, within the government's own agencies.

Katyal therefore announced his office's filing of a formal "admission of error" negating the precedent value of the Supreme Court decision the government had thereby won. He reaffirmed the extraordinary duty of the Solicitor General to address the Court with "absolute candor," due to the "special credence" the Court explicitly grants to his court submissions.