Also kept from the court was a report, prepared for the Chief of Naval Operations and made available to DeWitt, estimating potentially disloyal Japanese as just 3 percent of the Japanese-American population, and declaring that these were "already fairly well known to naval intelligence" and could be quickly apprehended, if necessary.
The report concluded.:."The entire Japanese problem has been magnified out of its true proportion, largely because of the physical characteristics of the people (and) should be handled on the basis of the individual . . . and not on a racial basis."
Fahy ignored an assistant attorney general's warning that not advising the court of this report would constitute "suppression of evidence."
Furthermore, DeWitt justified internment because "the interception of unauthorized radio communications" emanating from along the coast "conclusively" accounted for Japanese submarine attacks on U.S. ships.
The FBI, however, reported "no information" of "any espionage activity ashore or . . . illicit shore-to-ship signaling."
The Federal Communications Commission investigated "hundreds" of reports of suspicious radio communications but found nothing to confirm DeWitt's accusations.
Yet Fahy in his oral argument assured the court he could guarantee the veracity of "every line, every word, and every syllable" of DeWitt's report, and that "no person in any responsible position has ever taken a contrary position."
The Korematsu decision reflected perennial dangers: panic, and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies.
It is less important that the decision be repudiated than that it be remembered.
Especially by those currently clamoring, since Boston, for an American citizen — arrested in America, and concerning whom there is no evidence of a connection with al-Qaeda, the Taliban or other terror network — to be detained by the military as an "enemy combatant."
The Korematsu case is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.
Will's email address is georgew...@washpost.com.