The
government argued that internment was justified by
military necessity. The nation was at war, and it needed
to keep Japanese Americans away from the coasts, to
prevent espionage and for the safety of the country. In
making its successful case,
There was no excuse for
not telling the Supreme Court about this devastating
report. Hirabayashi was one man, and even with
lawyers to help him, he could never have had access
to all the facts. Neither could the justices. That
is why, in cases involving the military, the court
is particularly reliant on the government’s lawyers
to provide it with all the necessary information.
Indeed, that is
precisely how less- senior government lawyers saw it
at the time. One Justice Department lawyer, Edward
Ennis, [who died in 1990] told Solicitor General
Charles Fahy: “I think we should consider very
carefully whether we do not have a duty to advise
the Court of the existence of the Ringle memorandum
and of the fact that this represents the view of the
Office of Naval Intelligence. It occurs to me that
any other course of conduct might approximate the
suppression of evidence.”
Fahy refused. Instead, he told the court that the
detention of all Japanese Americans was necessary.
The court agreed — and in the end, it is not hard to
see why. The nine justices were not experts in
military necessity, and when the solicitor general
says something is necessary for the war effort, it
is very difficult to disagree.
Challenging the government in a time of war is a
terrifying thing. When I [Neal Katyal] did it a few
years ago on behalf of Guantanamo detainees, I took
comfort from Gordon’s actions. It isn’t easy to be
attacked as disloyal, but his life gave me strength.
And I was proud to see that the government did not
stoop to the level it did in World War II. Instead,
it tried to win its case on the merits, with candor
to the court.