Gordon K. Hirabayashi v. United States of America, Gordon K. Hirabayashi v. United States

I. INTRODUCTION

Gordon Hirabayashi is an American citizen who was born in Seattle, Washington, in 1918, and is currently Professor Emeritus of Sociology at the University of Alberta. He is of Japanese ancestry. In 1942 he was living in Seattle and was therefore subject to wartime orders requiring all persons of Japanese ancestry, whether citizens or not, to remain within their residences between 8:00 p.m. and 6:00 a.m. He was also subject to subsequent orders to report to a Civilian Control Station for processing requisite to exclusion from the military area. Hirabayashi refused to honor the curfew or to report to the control station because he believed that the military or *593 ders were based upon racial prejudice and violated the protection the Constitution affords to all citizens. The Supreme Court reviewed his conviction for violating the curfew order and unanimously affirmed. In an opinion by Chief Justice Stone, the Court accepted the government’s position that the curfew was justified by military assessments of emergency conditions existing at the time. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Because Hirabayashi had received a concurrent sentence for violating the exclusion order, the Court affirmed that conviction as well. Id. at 105, 63 S.Ct. at 1387. The following year, a majority of what was by then a sharply divided Court applied the same military emergency rationale to uphold explicitly the exclusion of all citizens of Japanese ancestry from the West Coast. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

The Hirabayashi and Korematsu decisions have never occupied an honored place in our history. In the ensuing four and a half decades, journalists and researchers have stocked library shelves with studies of the eases and surrounding events. These materials document historical judgments that the convictions were unjust. They demonstrate that there could have been no reasonable military assessment of an emergency at the time, 1 that the orders were based upon racial stereotypes, 2 and that the orders caused needless suffering and shame for thousands of American citizens. 3 The legal judgments of the courts reflecting that Hirabayashi and Korematsu had been properly convicted of violating the laws of the United States, however, remained on their records. Petitioner filed this lawsuit in 1983 to obtain a writ of error coram nobis to vacate his convictions and thus to make the judgments of the courts conform to the judgments of history-

The event which triggered the lawsuit occurred in 1982, when an archival researcher discovered the sole remaining copy of the original report prepared by the general who issued the curfew and exclusion orders. This report was intended to explain the basis for those orders. War Department officials revised the report in several material respects and tried to destroy all of the original copies before issuing the final report. The Justice Department did not know of the existence of the original report at the time its attorneys were preparing briefs in the Hirabayashi and Korematsu cases.

In his coram nobis petition Hirabayashi contended that the original report, the circumstances surrounding its alteration, and recently discovered related documents provided the proof, unavailable at the time of his conviction, that the curfew and exclusion orders were in fact based upon racial prejudice rather than military exigency. Hirabayashi further alleged that the government concealed these matters from his counsel and the Supreme Court, and that had the Supreme Court known the true basis for the orders, the ultimate decision in the case would probably have been different.

The district court held a full evidentiary proceeding on Hirabayashi’s claims. It reviewed hundreds of documents and heard the testimony of several witnesses. They included Edward Ennis, who had been the Director of the Alien Enemy Control Unit at the Department of Justice and a principal author of the government’s briefs in *594 both the Hirabayashi and Korematsu cases; William Hammond, who had been the Assistant Chief of Staff for the entire Western Defense Command; Aiko Herzig-Yoshinaga, a researcher for the Commission on Wartime Relocation and Internment of Civilians from 1981 to 1983 and the person who discovered the original version of the final report.

In a careful opinion containing detailed findings of fact, the district court confirmed Hirabayashi’s contentions in virtually every factual respect. See Hirabayashi v. United States, 627 F.Supp. 1445 (W.D.Wash.1986). It rejected as factually and legally unsupported the government’s arguments that Hirabayashi had not been prejudiced by the concealment of the newly discovered material, that Hirabayashi could and should have made the same claims years earlier, and that there was no remaining case or controversy because Hirabayashi suffered no continuing adverse consequences from the original convictions.

The district court held that Hirabayashi’s conviction for violating the exclusion order resulted in a violation of due process and ordered it vacated. 627 F.Supp. at 1457. Another district court has reached the same result in the Korematsu case, Korematsu v. United States, 584 F.Supp. 1406 (N.D.Cal.1984), and there has been no appeal. 4 The district court in this case, however, concluded as a matter of law that the curfew conviction should not be vacated. It ruled that because the curfew order less significantly infringed Hirabayashi’s freedom, the Supreme Court would have distinguished it from the exclusion order and would have affirmed the conviction even if it had known the racial basis of the order. Hirabayashi, 627 F.Supp. at 1457.

Both Hirabayashi and the government appeal. In reviewing the district court’s decision, we must uphold the findings of fact unless they are clearly erroneous, and review the legal issues de novo. United States v. McConney, 728 F.2d 1195, 1200 n. 5 & 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We agree with the district court’s factual and legal analysis leading to its vacation of the exclusion conviction. We disagree with the court’s conclusion that the curfew conviction rests upon a legal foundation different from the exclusion conviction. We therefore hold that both convictions should be vacated.

II. FACTUAL BACKGROUND

This proceeding is a collateral attack upon convictions for violating military orders promulgated in 1942. The facts underlying this litigation thus form a very small part of the great mosaic of American participation in World War II. In order to resolve the contentions of both parties on appeal, we must first understand the nature and origin of the crimes of which the petitioner was convicted; the posture of the case as it was presented to the United States Supreme Court; the material which the government suppressed from the Court; and the relevance of that material to the Supreme Court’s analysis.

A. The Military Exclusion Orders and Hirabayashi’s Conviction.

On December 7, 1941, President Roosevelt issued Presidential Proclamation *595 No. 2525, reprinted in H.R.Rep. No. 2124, 77th Cong., 2d Sess. (1942); R. Daniels, supra note 1, at 61, delegating broad authority to the Attorney General and the Secretary of War to promulgate and enforce regulations aimed at curtailing the liberties of enemy aliens following the declaration of war against Japan, Italy, and Germany. A subject of immediate governmental internal debate was whether or not our Constitution permitted similar action with respect to citizens, and specifically, whether or not the evacuation of citizens of Japanese ancestry from the West Coast was appropriate. The Justice Department consistently took the view that civilian authorities could not authorize the exclusion of citizens and that the matter should be left to military judgment. 5

Consistent with that view, President Roosevelt signed Executive Order No. 9066 on February 19, 1942. It authorized the Secretary of War or his designees to prescribe military areas from which any or all persons, citizens as well as aliens, might be excluded. Exec. Order No. 9066, 3 C.F.R. 1092 (1938-1943 Comp.). The next day, Secretary of War Stimson delegated his authority under the Executive Order to Lt. Gen. John L. DeWitt, the Commanding General of the Western Defense Command. On March 2, 1942, General DeWitt issued Public Proclamation No. 1, designating “Military Areas” within the western states. 7 Fed.Reg. 2320 (1942). On March 21, President Roosevelt signed legislation making it a misdemeanor to disregard restrictions imposed by a military commander. Pub.L. No. 77-503, 56 Stat. 173 (1942).

Based upon the authority of the Executive Order and the criminal statute, General DeWitt began issuing orders requiring certain persons to obey curfew restrictions and report at designated times and places for evacuation from military areas. Two of these orders provided the basis for Hirabayashi’s convictions.

In Public Proclamation No. 3, dated March 24,1942, General DeWitt proclaimed “as a matter of military necessity” that all German and Italian aliens and all persons of Japanese ancestry, whether aliens or American citizens, within established military zones would be required beginning March 28, 1942, to remain within their place of residence between 8 p.m. and 6 a.m. 7 Fed.Reg. 2543. That same day, General DeWitt began issuing a series of Civilian Exclusion Orders, each relating to a specified area within the territory of his command. Order No. 57, pertaining to Seattle, issued May 10, 1942, required the petitioner to report either May 11 or May 12 to a designated civilian control station as a prerequisite to exclusion from the military area on May 16. 7 Fed.Reg. 3725. Hirabayashi went instead to the FBI where he volunteered that he had not abided by the curfew restrictions and that he, as a matter of conscience, would not register with the civilian control station. Hirabayashi’s actual loyalty to this country has apparently never been questioned before, during or since World War II. 6

A grand jury indicted petitioner on May 28, 1942. Count I charged that he had failed to report pursuant to Civilian Exclusion Order 57. Count II charged the curfew violation. He was tried by a jury in October 1942, found guilty, and sentenced to three months on each count to be served concurrently. 7 On appeal, this court certified issues to the Supreme Court, and the Supreme Court on April 5, 1943, certified *596 the entire record to it. Hirabayashi, 320 U.S. at 84-85, 63 S.Ct. at 1378.

B. The Supreme Court Proceedings.

Briefing to the Supreme Court took place in the spring of 1943. In his brief, Hirabayashi argued that there was no emergency justifying a racially based classification and that the orders had been issued upon invidious racial prejudice. For example, Hirabayashi’s brief stated:

Whatever may have been the panicky notion about a Japanese invasion of the West Coast right after Pearl Harbor, it was quite evident by the time the orders here in question were promulgated that the Japanese were not easily going to be able to do this. They had not invaded Australia; had not even attacked Hawaii a second time, [footnote omitted] The picture of Japanese paratroops hiding among the Japanese residents of the West Coast to assist at an invasion is pure fantasy. The truth of the matter is that there was no military necessity, nor even reasonable ground for belief that such necessity required either general curfew regulations or wholesale evacuation orders.

Brief for Appellant at 19, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) (No. 870).

The Justice Department justified the exclusion and curfew orders upon what it said was a reasonable judgment of military necessity. It argued that because of cultural characteristics of the Japanese Americans, including religion and education, it was likely that some, though not all, American citizens of Japanese ancestry were disloyal. Brief for United States at 18-32. It then argued that because of the military exigencies, the government did not wait to segregate the loyal from the disloyal. The government’s brief stated:

The classification was not based upon invidious race discrimination. Rather, it was founded upon the fact that the group as a whole contained an unknown number of persons who could not readily be singled out and who were a threat to the security of the nation; and in order to impose effective restraints upon them it was necessary not only to deal with the entire group, but to deal with it at once.

Id. at 35. Later in its brief, the government stated that “[w]hat was needed was a method of removing at once the unknown number of Japanese persons who might assist a Japanese invasion, and not a program for sifting out such persons in the indefinite future.” Id. at 62.

The government claimed that the “operative fact” on which the classification was made was the danger arising from the existence of over 100,000 persons of Japanese descent on the West Coast. Id. at 63. It acknowledged, however, that the “record in this case does not contain any comprehensive account of the facts which gave rise to the exclusion and curfew measures here involved.” Id. at 10-11. The government therefore made extensive use of judicial notice in order to convey its position that those responsible for the orders reasonably regarded an emergency situation to exist. It argued that “historical facts” and “facts appearing] in official documents ... are peculiarly within the realm of judicial notice.” Id. at 11.

The government’s argument that the urgency of the situation made individual hearings to determine loyalty impossible was the subject of special concern. Solicitor General Charles Fahy filed a post-argument memorandum stressing that the hearings could not have been utilized because the “situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings.” (emphasis added). 8

*597 The Supreme Court decided the case on June 21,1943. The government’s view prevailed; Chief Justice Stone deferred to the military assessment of necessity. The Court saw the racial classification as justifiable only as a matter of military expediency, and indicated that it had to accept the judgment of the military authorities that the exigencies of time required the entire Japanese population to be treated as a group. The Court concluded:

Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the warmaking branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with____

320 U.S. at 99, 63 S.Ct. at 1385.

The problem for the Court was stated with greater anguish in Justice Douglas’ concurring opinion where he pointed out that “guilt is personal under our constitutional system. Detention for reasonable cause is one thing. Detention on account of ancestry is another.” 320 U.S. at 107-OS, 63 S.Ct. at 1389 (Douglas, J., concurring). He nevertheless rejected Hirabayashi’s argument, concluding that expediency so required.

Much of the argument assumes that as a matter of policy it might have been wiser for the military to have dealt with these people on an individual basis and through the process of investigation and hearings separated those who were loyal from those who are not. But the wisdom or expediency of the decision which was made is not for us to review____ [Wjhere the peril is great and the time is short, temporary treatment on a group basis may be the only practicable expedient whatever the ultimate percentage of those who are detained for cause.

Id. at 106-07, 63 S.Ct. at 1388 (Douglas, J., concurring).

C. The Coram Nobis Proceedings: General DeWitt’s Report and Other Matters Developed in the Record Below.

Hirabayashi filed this coram nobis proceeding early in 1983, alleging that new material had come to light in this decade which showed that the Department of War had suppressed evidence from both Hirabayashi and the Justice Department during the crucial period when the case was being presented to the Supreme Court, and that this material required the court to grant the unusual writ of coram nobis to vacate the convictions. The government, recognizing that the circumstances surrounding Hirabayashi’s convictions may have been unjust, 9 nevertheless asked the district court to refrain from considering the facts, and to dismiss the petition for coram no-bis. It asked the court instead to utilize the provisions of Fed.R.Crim.P. 48, permitting termination of a prosecution by dismissal of the indictment, to vacate the conviction. The district court denied the government’s motion to dismiss and held a full evidentiary hearing on Hirabayashi’s claims.

The principal factual matter developed at the trial concerned the suppressed report of General DeWitt. This report set forth the basis for his promulgation of the orders *598 of which Hirabayashi stood convicted. At the time General DeWitt issued his series of orders regarding curfew and exclusion in 1942, neither he nor the War Department provided any factual explanation of the reasons for the orders. After they were issued, General DeWitt prepared such a report. The official version of the report, Final Report: Japanese Evacuation from the West Coast 1942, was dated June 5, 1943, but was not made public until January 1944. Recent historical research, however, has uncovered in the National Archives a previously unknown copy of an original version of that report. That copy reflects that General DeWitt transmitted his original report to the War Department in Washington on April 15, 1943. See Hirabayashi, 627 F.Supp. at 1449, 1455-56 (describing circumstances surrounding discovery and transmittal).

The original version differed materially from the official version. Most significantly, the original report did not purport to rest on any military exigency, but instead declared that because of traits peculiar to citizens of Japanese ancestry it would be impossible to separate the loyal from the disloyal, and that all would have to be evacuated for the duration of the war. Other documents in the record below show that officials in the War Department were alarmed when they received the original report. The district court observed that Assistant Secretary of War John J. McCloy was “more than a little exercised because the Final Report had been printed in final form and distributed without any prior consultation by the Western Defense Command with the War Department about its contents.” 627 F.Supp. at 1450.

McCloy and Colonel Karl Bendetsen, who was in charge of the Wartime Civil Control Administration of the Western Defense Command, had a number of communications with General DeWitt in order to persuade him to change the report. Id. at 1450-53. At first intransigent, DeWitt stated “[I] [h]ave no desire to compromise in any way govt case in Supreme Court.” 627 F.Supp. at 1451 (quoting Letter of May 5, 1943, from General DeWitt to Brigadier General Barnett). He eventually capitulated. The result was that the report was changed in several substantive respects after the War Department suggested some fifty-five alterations. The changes most relevant to this case were summarized by the district court as follows:

Page iii, paragraph 2, second sentence: Eliminate the words “and will continue for the duration of the present war.” Page iii, paragraph 2, end of the second sentence: Insert “The surprise attack at Pearl Harbor by the enemy crippled a major portion of the Pacific Fleet and exposed the West Coast to an attack which could not have been substantially impeded by defensive fleet operations. More than 120,000 persons of Japanese ancestry resided in colonies adjacent to many highly sensitive installations. Their loyalties were unknown, and time was of the essence.”

Page 9. Strike the following: “It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats’ was unfeasible.”

And replace with the following: “To complicate the situation, no ready means existed for determining the loyal and the disloyal with any degree of safety. It was necessary to face the realities — a positive determination could not have been made.”

627 F.Supp. at 1451-52.

The revised, official version of the report was dated June 5, 1943. The War Department tried to destroy all copies of the original report when the revised version was prepared. This record contains a memo by Theodore Smith of the Civil Affairs Division of the Western Defense Command, dated June 29, 1943, certifying that he witnessed the burning of “the galley proofs, galley pages, drafts and memorandums of the original report of the Japanese Evacuation.”

*599 Edward Ennis, the Director of the Alien Enemy Control Unit of the Justice Department and a principal author of the government’s 1942 brief, testified extensively in these proceedings. He testified as to his efforts in 1943 and 1944 in briefing both the Korematsu and Hirabayashi cases, and other efforts on the part of the Justice Department to obtain the full materials from the War Department supporting General DeWitt’s decisions. While preparing the government’s brief in Hirabayashi, Ennis learned that a report had been written but when he asked for a copy, the War Department gave him only a few selected pages. The district court observed, in denying the Government’s Petition for Rehearing in this case, that it found Ennis entirely credible and that it believed that had Ennis had the original report showing the true rationale of DeWitt, he would have informed the Supreme Court of its contents.

On the basis of the evidence before it, the district court entered an extensive opinion setting forth the reasons for its decision to vacate the exclusion conviction. Judge Voorhees based that decision upon the factual record developed before him. He found first, that while the Supreme Court based its decision in Hirabayashi upon deference to military judgment of the need for expediency, General DeWitt, the person responsible for the racially based confinement of American citizens, had made no such judgment. The district court further found that the United States government doctored the documentary record to reflect that DeWitt had made a judgment of military exigency. Finally, the court found that had the suppressed material been submitted to the Supreme Court, its decision probably would have been materially affected. The government appeals the grant of relief.

The district court refused, however, to grant coram nobis relief with respect to the curfew conviction. It based that decision upon its conclusion that the Supreme Court would have drawn a legal distinction between the curfew and exclusion orders. It is from that denial of relief that Hirabayashi appeals. We consider first the contentions of the government.

III. THE GOVERNMENT’S CONTENTIONS IN ITS APPEAL

The government’s contentions in its appeal from the district court’s decision to vacate the exclusion conviction can be classified in four general categories. They are, first, that certain factual determinations of the district court are clearly erroneous; second, that the claims are barred by laches; third, that the case is moot because Hirabayashi does not continue to suffer from any adverse consequences from the convictions; and, finally, that the district court abused its discretion in reaching the merits of the petition by not granting the government’s motion to vacate the convictions pursuant to Fed.R.Crim.P. 48.

A. Factual Challenges.

We turn to the government’s challenge to certain of the district court’s factual findings. The government first takes issue with the district court’s finding that it was General DeWitt who made the decision that exclusion of all persons of Japanese ancestry from the West Coast was required by military necessity. 627 F.Supp. at 1456. Support for the finding that the decision was General DeWitt’s is abundant in this record. Secretary of War Stimson delegated his authority to General DeWitt pursuant to the power delegated to Stimson by the President. See Public Proclamation No. 1, 7 Fed.Reg. 2320 (1942). There has been no showing that General DeWitt even consulted with War Department officials in Washington before issuing the orders Hirabayashi refused to obey. It is now clear that DeWitt did not consult with Washington before preparing his final report. Hirabayashi, 627 F.Supp. at 1450. As one commentator wrote soon after the orders were issued: “The Japanese question had political and economic angles, but the President’s Executive Order of February 19 treated it as fundamentally a military problem and placed responsibility squarely upon the Commanding General.” Fairman, The *600 Law of Martial Rule and the National Emergency, 55 Harv.L.Rev. 1253, 1299 (1942).

The government points to uncontroverted evidence in the record that there were those in the War Department who did not agree with the reasons given by General DeWitt for the order and would have justified the order on other grounds. This evidence, however, merely underscores the critical nature of General DeWitt’s decision and his report. It was because General DeWitt had exercised the authority, and because his judgment was essential, that the War Department suppressed the original version of his report in the first place. Indeed, Solicitor General Fahy in his oral argument in 1944 in Korematsu conceded that it was the views of the Commanding General which counted, and that if his orders had been based upon racist precepts, they would have been invalid. The following colloquy took place in which Justice Frankfurter and the Solicitor General discussed the revised version of DeWitt’s report without knowledge of the existence of the original version.

MR. JUSTICE FRANKFURTER: Suppose the commanding general, when he issued Order No. 34, had said, in effect, “It is my judgment that, as a matter of security, there is no danger from the Japanese operations; but under cover of war, I had authority to take advantage of my hostility and clear the Japanese from this area.” Suppose he had said that, with that kind of crude candor. It would not have been within his authority, would it?

MR. FAHY: It would not have been.

MR. JUSTICE FRANKFURTER: As I understand the suggestion, it is that, as a matter of law, the report of General DeWitt two years later proved that that was exactly what the situation was. As I understand, that is the legal significance of the argument.

MR. FAHY: That is correct, Your Hon- or; and the report simply does nothing of the kind.

To support its position the government cites language in the Supreme Court’s opinion in Hirabayashi, referring to the judgment of Congress and military authorities, in order to suggest that somehow the Supreme Court made a factual finding contrary to the district court’s finding. Hirabayashi, 320 U.S. at 99, 63 S.Ct. at 1385. Neither the Supreme Court’s opinion nor the record before it in 1943 supports such an argument. The district court’s decision correctly reflects the historical record that the orders were the direct result of General DeWitt’s exercise of the authority delegated to him. The district court’s finding that it was General DeWitt who decided that the curfew and exclusion orders were required is not clearly erroneous.

The government next challenges as factually erroneous the district court’s finding that the Supreme Court in 1943 would probably have reached a different result in the exclusion case if it had known the true basis for the General’s decision. The government disagrees with the following portions of the district court’s opinion:

Had the statement of General DeWitt been disclosed to petitioner’s counsel, they would have been in a position to argue that, contrary to General DeWitt’s belief, there were in fact means of separating those who were loyal from those who were not; that the legal system had developed through the years means whereby factual questions of the most complex nature could be answered with a high degree of reliability. Counsel for petitioner could have pointed out that with very little effort the determination could have been made that tens of thousands of native-born Japanese Americans — infants in arms, children of high school age or younger, housewives, the infirm and elderly — were loyal and posed no possible threat to this country.

* # # # * *

Had counsel for petitioner known and been able to present to the Supreme Court the [initial] reason stated by General DeWitt for the evacuation of all Japanese, [and] ... [i]f the military necessity for exclusion was the impossibility of separating the loyal from the disloyal, the Supreme Court would not have *601 had to defer to military judgment because this particular problem, separating the loyal from the disloyal, was one calling for judicial, rather than military, judgment.

627 F.Supp. at 1456-57.

The government characterizes its challenge as one to a factual finding, which we must uphold unless clearly erroneous. To the extent, however, that the government is asking us to assess the district court’s judgment as to the legal materiality of the suppressed evidence, it is also raising a question of law, and we review with greater latitude. See McConney, 728 F.2d at 1204 (adopting functional analysis for mixed questions of law and fact).

In making this challenge, the government agrees with petitioner and the district court that the Supreme Court in Hirabayashi deferred to a military judgment that circumstances required the prompt evacuation of all Japanese Americans, and that there was not enough time to attempt to separate the loyal from the disloyal. The government also agrees with petitioner and the district court that General DeWitt acted on the basis of his own racist views and not on the basis of any military judgment that time was of the essence. What the government contends in this appeal is that on the basis of the record before it, the Supreme Court should have known both that General DeWitt was a racist, and that he made no military judgment of emergency. The government asks us to hold, therefore, that the Supreme Court probably would have reached the same erroneous result even if the government had not suppressed the evidence and had accurately represented to the Court the basis of General DeWitt’s decision.

There are several problems with this position. First, as the district court observed when it denied rehearing, the material in the record before the Supreme Court showing General DeWitt’s racism was limited primarily to a newspaper clipping. More importantly, it was principally Hirabayashi and those amici who supported him, not the government, who presented the evidence of racial bias to the Court and who argued that the decisions must have been based upon racism rather than military necessity. By contrast, the information now in the public record constitutes objective and irrefutable proof of the racial bias that was the cornerstone of the internment orders.

The basis for General DeWitt’s decision was a very crucial issue which divided the government and Hirabayashi. For illustration, Hirabayashi’s brief referred to testimony by DeWitt indicating that “prejudice dominated his thinking,” and quoted him as stating: “It makes no difference whether the Japanese is theoretically a citizen ... A Jap is a Jap.” San Francisco News, April 13, 1943, at 1, cited in Reply Brief for Appellant at 1 n. 2. Extracts from the newspaper article were reproduced in the appendix to that brief. The Amicus Brief of the American Civil Liberties Union, in support of Hirabayashi’s position, also suggested that the order was based upon the racist view that it was impossible to segregate the loyal from the disloyal:

There were those, of course, who claimed that it would have been impossible to tell the loyal from the disloyal; who said that all persons of Japanese ancestry look alike. It is a challenge to the intelligence of this nation that such childish opinions actually carried the day.

Brief for American Civil Liberties Union at 13. Similar arguments were made by the Japanese American Citizens League in their Amicus Brief in support of Hirabayashi.

The government, on the other hand, through the device of judicial notice asked the Supreme Court to recognize that the judgment made was one of exigency; the “principal danger to be apprehended was a Japanese invasion.” Brief for United States at 65. It argued that the “situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings.” Post-Argument Memorandum of Solicitor General Fahy. In deciding the case against Hirabayashi, the Supreme Court obviously accepted the government’s view of the facts as the government presented them in 1943, and rejected Hirabayashi’s.

*602 In asking us to hold that the Supreme Court would have reached the same result even if the Solicitor General had advised Hirabayashi and the Court of the true basis for General DeWitt’s orders, the government ignores the fact that in 1943 it was clearly in a better position to know that basis than was the defense. It also ignores the traditionally special relationship between the Supreme Court and the Solicitor General which permits the Solicitor General to make broad use of judicial notice and commands special credence from the Court. 10 The record here shows that Ennis, in preparing the government’s brief, felt that responsibility keenly. 11

The importance which the Supreme Court attached to the statements of the government regarding the factual situation at the time was brought out during the course of the proceedings in Korematsu, decided a year after Hirabayashi. By the time Korematsu was briefed and argued, the revised version of DeWitt’s report had been made public. Justice Department attorneys with access to contemporaneous intelligence reports had had misgivings about the accuracy of even that version. This apprehension was reflected in a footnote to the government’s brief in Korematsu limiting reliance on the report. 12 The footnote came up during oral argument, *603 the transcript of which is in this record. Solicitor General Pahy denied that the footnote was a repudiation of the military necessity of the evacuation and reaffirmed the government’s position in Hirabayashi. 13

The Court’s divided opinions in Korematsu demonstrate beyond question the importance which the Justices in Korematsu and Hirabayashi placed upon the position of the government that there was a perceived military necessity, despite contrary arguments of the defendants in those cases. The majority in Korematsu reaffirmed the Court’s deference in Hirabayashi to military judgments. Justice Murphy’s dissent highlighted the difference between his position and the majority’s. He expressly faulted the majority’s acceptance of the government’s justification that “time is of the essence.” We now know this very phrase was inserted by the War Department into DeWitt’s final report and was not a concept upon which DeWitt himself based his decision. Justice Murphy said:

No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry, [citation omitted] It is asserted merely that the loyalties of this group “were unknown and time was of the essence. ”

Korematsu, 323 U.S. at 241, 65 S.Ct. at 205 (Murphy, J., dissenting) (emphasis added). Justice Jackson’s dissent zeroed in on the majority’s acceptance of General DeWitt’s revised report. He stated:

So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.