After a trial in federal court, Hirabayashi was convicted of violating the evacuation order. When he was told that the government had no funds to send him to the work camp in Arizona where he was to serve his sentence, he offered to get himself there. So he hitchhiked. When he arrived, the U.S. Marshals office could not find his paperwork and told Hirabayashi he was free to go. He once again refused, and served his sentence.
Hirabayashi once described his parents as leading lives that “emphasized the oneness of belief and behavior.” The same must be said about him.
When he refused evacuation in 1942, no end to World War II was in sight; he faced the prospect of indefinite separation from his family members, who were being sent to the internment camp. Hirabayashi’s roommate, who originally planned to defy the evacuation order with him, eventually yielded to family entreaties to go along with it. Hirabayashi did not.
At the time, the attack on Pearl Harbor was fresh in the public consciousness, and the West Coast in particular was in the grip of anti-Japanese sentiment. The Los Angeles Times heartily endorsed internment of the “Japs,” then-California Attorney General Earl Warren came out in support of the plan, and even the ACLU refused to support Hirabayashi’s case until it reached the Supreme Court.
When his case arrived at the high court’s doors, the justices refused to help. His conviction was left intact in 1943 by a unanimous Supreme Court. Part of the blame may rest with the justices, but part must rest with the United States government, and with the way its lawyer, the solicitor general, conducted the case.
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, however, the government chose not to share with the court a key report that flatly contradicted this argument.
That January 1942 report, written by naval intelligence, concluded that only a small percentage of Japanese Americans posed a potential threat and that the most dangerous were already in custody or already known. The report concluded that “the entire ‘Japanese Problem’ has been magnified out of its true proportion, largely because of the physical characteristics of the people” and that “it should be handled on the basis of the individual, regardless of citizenship, and not on a racial basis.”
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, 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 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.
Hirabayashi’s legacy lives on. In the 1980s, when a federal court of appeals learned that the solicitor general had suppressed evidence in his case, it overturned his conviction — more than 40 years after the Supreme Court upheld it. You can hear echoes of his fight in the respectful protests against (and counter-protests for) Roe v. Wade. You can hear them in Thurgood Marshall’s long quest to desegregate American schools. And you can hear them in the voices of so many others who fight — within the system — for what they believe is right.
At a young age, Hirabayashi realized something profound: Our American system is strong enough to admit its mistakes and to correct them. He knew that silence posed a greater danger than any challenge, and that giving up on the system of law posed the greatest threat of all.
One need not have many heroes if they are carefully chosen. Gordon Hirabayashi — who fought valiantly, obediently and patriotically — is mine.
Neal Katyal served as acting solicitor general of the United States from May 2010 to June 2011. He is a law professor at Georgetown University and a partner at Hogan Lovells, LLP.
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