Allegiance (40 page)

I sit at the counsel table with Ennis and Fahy. Biddle has not come to the argument. The evacuation was unconstitutional, he is saying now; he will not be in court to defend it. I wish he had offered us these thoughts in time to include them in the brief.

We have other supporters. War Department officials pack the front row of spectators. Uniforms to fill in the background, they tell us. To remind the Justices we're still at war.

I mutter insincere thanks. To my right I can see the clerks assembled in their gallery, Clara hiding behind the Douglas column. She is safe, at least; Miller has reported that no more apes pursue her.

“All rise,” calls the marshal, and we stand as the Justices file in. They take their seats. There is Frankfurter, his face inscrutable; there is Black, and I think I catch a smile. He will come around if we can give him the truth. Frankfurter will not help me with these cases, I am sure. He will wrap his head in the flag, say that the President can do no wrong. But he will find me Haynes and the men who directed him, and that means that I can concentrate on swinging Hugo Black.

Charles Horsky is first to the podium. Military necessity did not require the evacuation, he tells the Court. There has been no proof of disloyalty; there are no facts in the government's brief that establish a threat.

Frankfurter interrupts. “Do you think we can say that there were no other facts that General DeWitt knew that we do not? Did he say he had no other facts?”

I cannot figure out where he is going with this question, and neither can Horsky. Imagining facts that DeWitt left unreported makes no sense, especially given that the facts he did report were false.

“General DeWitt issued a report that gave his facts,” says Horsky. “He did not indicate that there were any others.” He pauses. “Indeed, the government's brief in this case concedes that the military judgment was based on attitudes and opinions rather than objective facts. And I would like to call the Court's attention to an extraordinary footnote. ‘With respect to the circumstances surrounding the evacuation, the views of this Department differ.' ” He pauses
again, while I think about how much better my original footnote would have sounded in the marble chamber.

“What does this mean?” Horsky opens his hands above the podium. “The government does not endorse General DeWitt's Final Report. But what do they think of it? They do not tell us. Parts of it, one might conclude, are false. But which parts? They do not tell us.” Beside me, Fahy stiffens. Horsky leans forward. “They ask for trust when they are evidently concealing something. It is not the role of this Court to blindly approve the government's actions.”

Ennis is smiling as Horsky sits down, and I am thinking he has done a good job. I have helped Fahy practice his argument, and he has nothing to counter the attack on the Final Report. What he has planned to say is mostly irrelevant now.

I would not like to be in Fahy's shoes, and he seems troubled, chewing his lower lip as he approaches the podium. “If the Court please,” he says, “before I begin the main argument, I should like to say that the government stands undivided in support of the evacuation program.”

I am taken aback. It is not the opening I have heard him rehearse. “My friend here has just suggested that some footnote in our brief rejects General DeWitt's Final Report and with it the military necessity for the evacuation. That is a neat piece of fancy dancing. The judgment of the government—not just the military, but the whole government—has always been that the measures taken were justified. We maintain that position.”

Ennis's expression passes from shock to anger to sorrow. At the other table I can see consternation on Horsky's face. No doubt he is wondering if we've taken him for a ride.

“So what about this Final Report?” asks Justice Black. “Do you say the Court is required to accept the facts it asserts?”

“Not all of them, Your Honor,” says Fahy. For someone making up an argument on the spot, I have to admit he is doing a pretty good job. “But the Court should consider them as evidence of what the general was thinking, his motives, and what he based his decision on.”

“And you think those facts are an adequate justification?”

“We do. A complete justification.”

“Does each Justice have a copy of that report?” Chief Justice Stone asks.

“I think not, Your Honor,” says Fahy, “but I am sure the War Department can provide one.”

“Please make sure it does,” says Stone, and Fahy nods.

Beside me, Ennis lets out an audible groan. Our strategy of encouraging Horsky to attack the Final Report has backfired horribly. It has driven Fahy to provide a full-throated defense.

Justice Murphy clears his throat. “What are the facts which you think most strongly support the military judgment here?”

“Consider the whole context of the decision. If the Japanese Army had landed on the West Coast, we could not have stopped them west of the Rockies. We did not know where their navy was. We did not know they had not steamed east from Pearl Harbor and were poised to fall upon California.” Fahy is trying to pivot away from the Final Report, back to the broader argument we planned, but the damage is done.

“We know where that navy is now,” Murphy says. “It's in pieces on the ocean floor. How can you justify excluding these people from their homes now?”

“This Court must evaluate the order as of the time it was made.”

“And yet exclusion continues. The gates of the camps are still locked, the barbed wire is still on the fences. How do you explain that? Or you would say it is not at issue in this case; it is for tomorrow.”

Fahy reverts to his quietest mode.

“Yes, Justice. The question of detention is presented in the
Endo
case and not this one. As to evacuation, I say this Court must only ask whether some reasonable basis for the decision existed. If it is argued that subsequent events showed it was all a mistake, that in June the Battle of Midway turned back the threat of invasion, then this is my answer.” He raises his hands, fists together. “Say that to those who turned back the threat, if they can be reached where they lie at the bottom of the Pacific Ocean, among the hulls of the warships that went down with them in that battle.” It is a prepared line, its rhetorical effectiveness somewhat blunted by Murphy's use of the same image. Fahy's tone turns casual again. “At the same time, as a matter of fact, the Japanese did land upon the territory of the United States, in the Aleutian Islands. In the spring of 1942, what did General
DeWitt know? He knew Japan could project its power to American soil. He had before him reports of signal lights from the coast and intercepts of unidentified radio transmissions. He concluded that military necessity required the removal of the Japanese to the interior. That conclusion was not unreasonable.”

Horsky is now openly looking at me. I try not to react. It is one thing for Fahy to respond to Horsky's attacks on the Final Report by announcing that the government generally stands behind it. But now he is asserting as fact two key elements that he knows have been disproved. I wonder why I ever thought that the War Department machinations had to be the product of some external conspiracy. This is just my government at work. Who is loyal, who is not? Who is a friend and who an enemy? Whoever they say. And the government does not make mistakes.

For a moment I have some sympathy for Richards and his Anti-Federalists. But as Frankfurter pointed out, they are not concerned with the Japanese. Limits on how much wheat we can grow, tax dollars taken from paychecks before we see them, those are the signs of dictatorship that must be fought, not camps in the desert for false Americans.

“A wiser man might not have so concluded.” Murphy has not given up.

“Of course,” says Fahy. “The military makes mistakes.” Curious, I sit straighter. “During the invasion of Sicily,” he continues, “hundreds of our men were shot down by our own forces. Someone made a mistake.” Ah, I think. It is not that mistakes should be corrected; it is that the fact of some mistakes legitimates others. We won't say,
Of course they can put you in a camp; after all, they could draft you
anymore; we'll say,
After all, they could shoot you by mistake
. I slouch down again. Fahy leaves a moment of silence for other questions, but there are none. “As I have said before, the government is aware that it has called upon some citizens to bear a heavy burden. But we are engaged in a war for our very survival as a nation. And in time of war, it is not enough to say, ‘I am a citizen and I have rights.' One must also say, ‘I am a citizen and I have obligations.' ”

It is the same closing he used in
Hirabayashi
. It struck me as sensible then, and I am surprised at the violence of the revulsion it stirs in me now. Ennis snorts. Seated among the clerks, Clara shows no reaction. At the other table,
Horsky is still looking at me. As I watch, he stretches out his hand to the white quill and knocks it to the floor.

“The case is submitted,” says Chief Justice Stone.

• • • • 

“What was that?” Ennis asks on the way out.

“Whispering Charlie's got a fighter's instinct, I guess,” I say. “They backed him into a corner and he had to come out swinging.” The guess remains unconfirmed; Fahy says nothing to us after the
Korematsu
argument. The word in Main Justice is that he is furious with Horsky, but whether it is for slighting the government's integrity or for driving Fahy to stretch the truth, I have no idea.

Whatever the case, he has cooled down considerably by the time of the
Endo
argument the next day. He is silent on the way to court and sits equally silent as we wait for the Justices to take the bench. Mitsuye Endo's lawyer is named James Purcell. Justice Frankfurter requires him to walk through the procedural history of the case in some detail, perhaps for the benefit of the spectators. Once that is done, there is little left to say. “The government concedes that Miss Endo is a loyal American,” Purcell says. “And it concedes that there is no authority to detain loyal Americans. There is therefore no authority to detain her.” There is silence in the courtroom. “Would you like more?” Purcell asks. Justice Murphy laughs aloud. There are no questions.

Fahy continues to look down at the table for several moments after Purcell has returned to his seat. He appears to be studying the white quill in its inkwell before him. His walk to the podium is slow. As I look at his shoulders I realize how small he is. Usually he seems larger in court; he speaks for the United States, stands cloaked in its authority. But today the cloak seems to weigh on him, pressing him down even smaller.

He spreads his hands to begin the argument, but he gets no farther than “May it please the Court.”

“Do you accept your opponent's claim that this case is properly before us?” Frankfurter asks.

It is an opportunity for Fahy to try to turn the argument away from substance, to see the case decided on a technicality, but the fighter's instincts he
showed yesterday seem to have vanished. He waves a hand dismissively. “I have no wish to interfere with a disposition on the merits.”

“What then is your argument?” asks Murphy.

Fahy is in full-whisper mode. “The only purpose of this so-called detention is protective. The Relocation Authority is willing to let Miss Endo, or any other loyal citizen, leave. They simply want to ensure that she is going to a community where untoward events can be avoided. They have her best interests at heart and are seeking only to make sure that she relocates to an appropriate place.”

“But then you are not willing to let her leave,” says Justice Roberts. “You won't let her go until she agrees to go somewhere you approve of. For how long do you claim you can hold her? In her best interests, let us say, can you hold her for a quarter century?”

“No,” says Fahy quietly. If he overreached yesterday, he is making up for it now.

“No?” asks Roberts. “That would be a violation? But why? There may not be any place willing to accept her for twenty-five years.”

Fahy does not try a direct answer. “A great deal has been accomplished under this program for the resettlement of these people,” he says.

Roberts does not relent. “And in the meantime it's okay? A little violation of the Constitution might be winked at, but not a violation for twenty-five years?”

“I think not, Your Honor.” Fahy sounds almost sad. “I think no violation of the Constitution should be winked at.”

Chief Justice Stone intervenes. “Your argument is that the Relocation Authority is doing good by holding these people until they agree to go to placid communities. But why does the prospect of doing good give the government authority over them? Can the government detain any one of us on the grounds that it is for our own good?”

“No, Your Honor,” says Fahy. “I think not.” Silence falls. Like an animal playing dead, he has stilled the enthusiasm of the Justices for aggressive questioning. He has also, it seems to me, conceded every issue that matters. Unless I am gravely mistaken, the Solicitor General of the United States has just thrown a case.

“I have a word to speak for my government now,” says Fahy. “We seek no scapegoat in this case. We hope this Court will reject any theory that the government of the United States is not responsible for what, in fact, it did. No person exceeded his authority here. The program of evacuation and detention was developed and implemented by the government, and if it is unconstitutional, that is what this Court must say. We should not leave any doubt what the government of the United States has done.”

Again there is silence. “The case is submitted,” says Stone.

Fahy leaves the courtroom ahead of us, walking fast. “Now does he ritually disembowel himself?” Ennis asks. “I hear they need people to chop off their heads in case they don't die fast enough. If there's no one else, I understand that as a citizen, I have obligations.”