1 For some interesting reflections on the writing of recent and contemporary history, see Alan Brinkley, Writing the History of Contemporary America, Daedalus, Summer 1984, at 138–39. Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War ch. 5 (New York, 1982) discusses the Bridges case.Google Scholar

2 Terkel, Studs, “The Good War”: An Oral History of World War Two (New York, 1984).Google Scholar

3 Spector, Ronald H., Eagle Against the Sun: The American War with Japan (New York, 1984).Google Scholar

4 Wyman, David S., The Abandonment of the Jews: America and the Holocaust, 1941–1945, at 296 (New York, 1984).Google Scholar

5 Grodzins, Morton, Americans Betrayed (Chicago, 1949).Google Scholar

6 Jacobus ten Broek, Edward N. Barnhart, & Floyd W. Matson, Prejudice, War, and the Constitution (Berkeley, Cal., 1954). The Berkeley project also produced accounts of the impact of the evacuation and relocation policy on the Japanese Americans: Dorothy S. Thomas & Richard S. Nishimoto, The Spoilage (Berkeley, Cal., 1946); Dorothy S. Thomas, The Salvage (Berkeley, Cal., 1952).Google Scholar

7 Conn, Stetson, Rose C. Engleman, & Byron Fairchild, The United States Army in World War 11: The Western Hemisphere: Guarding the United States and Its Outposts (Washington, D.C., 1964).Google Scholar

8 Daniels, Roger, Concentration Camps U.S.A. (New York, 1972); id., The Decision to Relocate the Japanese Americans (Philadelphia, 1975); id., Concentration Camps, North America (Melbourne, Fla., 1981); id., The Politics of Prejudice: The Anti-Japanese Movement in California and the Struggle for Japanese Exclusion (Berkeley, Cal., 1962).Google Scholar

9 Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (Washington, D.C., 1982).Google Scholar

10 320 US. 81 (1943); 320 U.S. 115(1943); 323 U.S. 214(1944); 323 U.S. 283 (1944).Google Scholar

11 Hoover had opposed the evacuation policy from the outset. In effect, its implementation implied that the FBI had not adequately done its job of maintaining proper surveillance in the Japanese American community.Google Scholar

12 Fahy's behavior here contrasted sharply with that in a wartime treason case involving a citizen who had aided German saboteurs: Cramer v. United States, 325 U.S. 1 (1945). After a hearing in which the Court posed a number of historical questions on the treason clause, Fahy engaged Willard Hurst, then working in the Navy Department, to research the Court's queries. Hurst's answers, which later formed the basis of his landmark work on the history of treason, contained material contrary to the government's interest in the case. Apparently, some members of Fahy's staff were reluctant to submit such material to the justices, but according to Hurst's recollections, Fahy told them that the Court asked to be fully briefed on the history of the treason clause' “and that's what we're going to give them” (Hurst, to the author, Jan. 21, 1985). Fahy apparently made his decision to use Hurst's findings shortly after his arguments in Korematsu. For Hurst's work, see The Law of Treason in the United States (Westport, Conn., 1971).Google Scholar

This discussion is not intended to excuse Fahy's failure to make a full disclosure to the Court. The rationalization whereby government lawyers are said to have primary responsibility to their client (i.e., the government) in effect argues against the notion of citizens as the ultimate sovereign. Edward Ennis might have had the last, and the most useful, word on moral and ethical behavior in this case. If there is a mini-hero in Irons's tale, it is Ennis, who fought an extended guerrilla war against his War Department counterparts. Yet, he consistently bowed to the decisions of his superiors, despite his serious misgivings. Four decades later, when Irons asked why he had not resigned instead of submitting, Ennis said: “Watergate hadn't happened yet” (at 351). For a discussion on making judgments out of historical context, see note 23 infra. Google Scholar

13 For the earliest discussion of Murphy's dissatisfaction with the government's policy, and the tensions within the Court, see Sidney, Fine, Mr. Justice Murphy and the Hirubuyashi Case, 33 Pac. Hist. Rev. 195 (1964). In the concluding volume of his biography of Murphy, Fine thoroughly explores the Court's conflicts in the other cases as well: id., Frank Murphy: The Washington Years ch. 18 (Ann Arbor, 1984). Justice Jackson, who also had been attorney general, did not appear to be as close to Hoover as Murphy was, but it is possible that the director also provided information to him.Google Scholar

14 See, e.g., Ex parte Quirin, 317 US. 1 (1942); Keegan v. United States, 325 U.S. 278 (1945); In re Yamashita, 327 U.S. 1 (1946).Google Scholar

15 The Commission on Wartime Relocation assailed Justice Douglas's majority opinon as unnecessarily “crabbed and confined.” The Endo decision, the report concluded, “did not come with an air of generosity or largeness of spirit”. Commission on Wartime Relocation, supra note 9, at 239.Google Scholar

16 The majority's decision in Korematsu offers a compelling validation for the use of institutional analysis in interpreting Supreme Court decisions. Clearly, in this case, Justice Black and his majority colleagues justified their action as deference to the judgment of “properly constituted military authorities” (323 U.S. at 223) and to the political judgments of the executive and legislative branches. See Komesar, Neil K., Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U. Chi. L. Rev. 366, 387–91 (1984).Google Scholar

17 Forty years later we learned that Morris Ernst regularly reported ACLU activities to J. Edgar Hoover. The ACLU's San Francisco office resisted the national council's pleas for restraint. Led by Executive Director Ernest Besig, it eagerly sought test cases to challenge the government's policy.Google Scholar

18 Rostow, Eugene V., The Japanese-American Cases-A Disaster, 54 Yale L.J. 489 (1945).Google Scholar

19 Biddle, Francis, In Brief Authority 219 (New York, 1964).Google Scholar

20 Commission on Wartime Relocation, supra note 9, at 84.Google Scholar

21 Daniels, Concentration Camps U.S.A., supra note 8, at 65–73. FDR's racial views have not been systematically explored. We do know, e.g., that he asked the Smithsonian Institution to study the notion that the “evil-doing of the Japanese could be attributed to their less-developed skulls”. Christopher Thorne, Allies of a Kind: The United States, Britain, and the War Against Japan, 1941–1945, at 725–30, 158–59 (New York, 1978). In 1936, the president suggested that all Japanese persons, citizen and non-citizen, who met any Japanese ships or officers in Hawaii should be identified and their names retained on a “special list of those who would be the first to be placed in a concentration camp in the event of trouble.” Roosevelt memo, Aug. 10, 1936, submitted to the Commission on Wartime Relocation, quoted in N.Y. Times, Feb. 10, 1983. See John W. Dower's work on racial aspects of World War II in Asia, forthcoming in 1986.Google Scholar

22 Citing Stimson's diaries and Biddle's notes.Google Scholar

23 N.Y. Times, Oct. 5, 1983. Judge Marilyn H. Patel nevertheless granted the coram nobis petition, despite the government's opposition to the move. 586 F. Supp. 769 (N.D. Cal., 1984). The government decided not to appeal. A district court, of course, cannot effectively overrule a Supreme Court ruling; thus the Koremutsu doctrine in effect remains intact. As of February 1985, the petitioners were appealing an adverse lower court ruling in the Yasui case. Most interesting, it seems, is a promised evidentiary hearing on the coram nobis materials in the Hirabuyushi case, scheduled for June 1985. In preliminary arguments, the government denounced Judge Patel's Koremutsu ruling.Google Scholar

Irons's book raises numerous questions about the dividing line between advocacy and writing history, a subject that requires lengthier examination than can be given here. Irons himself has raised the issue (at xii). Here I would state that historical judgments require sensitivity to context and attention to the full range of actors and issues. Briefs are designed to “win” a point: Both historians and advocates engage in selection, but the former must acknowledge the complexity and contradiction of the evidence. The historian inevitably raises and illuminates a wide spectrum of questions; briefs, however, focus on answers, indeed seek to avoid questions in the minds of readers. Aviam Soifer, in an otherwise favorable review, criticized Irons on this point. “[I]f his book has a significant flaw, it is that its boldest claims may have been tailored a bit to meet the burden Irons and his clients must satisfy in their coram nobis petitions.”Soifer, Aviam, Lawyers and Loyalty, 12 Revs. Am. Hist. 580 (1984).Google Scholar

24 Déjà vu. Compare the remarks of a federal court judge in Washington state in 1942: “How many [here] believe that if our enemies should manage to send a suicide squadron of parachutists to Puget Sound that the Enemy High Command would not hope for assistance from many such American-born Japanese?”Ex parte Ventura, 44 F. Supp. 520 (W.D. Washington, 1942) (quoted in Irons at 113). Mary Ventura, a nisei married to a Filipino, had challenged the curfew, claiming that she was a loyal citizen. To this, the judge replied that if she were “as loyal and devoted as her petition avers she would be glad to conform to the precautions which Congress, the President, and the armed forces, deem requisite to preserve the Constitution.”Google Scholar