Top lawyer boosts civic education

Just where the line falls between protecting civil liberties and national security depends in part on who speaks up, one of the nation’s top lawyers told Mililani High School students gathered at the Hawaii Supreme Court, in the first statewide videoconference for social studies.

Neal Katyal, who until May was acting solicitor general of the United States, is best known nationally for successfully challenging the secret military tribunals set up by the Bush administration to try terrorism suspects at Guantanamo Bay. In his talk with students Thursday, Katyal centered his remarks on the government’s mishandling of the cases of two young men — Fred Korematsu and Gordon Hirabayashi — who stood up against the mass internment of 120,000 Japanese-Americans during World War II.

"There was an obvious tragedy for the thousands and thousands of Japanese-Americans who suffered so much," Katyal told the students. "And there was another tragedy in the way it was conducted in the Supreme Court that led me to issue a statement in May."

Katyal issued a rare "confession of error" on behalf of the Solicitor General’s Office in May, noting that his counterpart during World War II had withheld crucial information from the Supreme Court in those cases, including reports from the Office of Naval Intelligence and the Federal Bureau of Investigation that undermined the rationale for rounding up people on the basis of race. Both Korematsu, a welder, and Hirabayashi, a student at the University of Washington, were convicted of violating military orders related to the internment and lost their appeals to the Supreme Court.

"The court is very deferential to presidents in time of war," Katyal said. "I do think there would have been a good chance if they were told that the Navy disagreed with this, if they were told that the FBI disagreed with this, I do think there would have been a good chance that the outcome would have been switched."

Katyal’s appearance, part of a newly developed curriculum on the Korematsu v. United States case, was piped live to other public schools, including Nanakuli High School and Anuenue School. Rosanna Fukuda, educational specialist in social studies, said she hoped it was "just the beginning" for such videoconferences. The Korematsu curriculum is a joint project of the Hawaii State Bar Association, University of Hawaii Law School, Judiciary History Center and the Department of Education.

"Because the funding for civic education programs like ‘We the People’ has been cut, the law school and the bar association have been stepping up to help the Judiciary History Center to fill some of the void," said Cathy Levinson, a member of the bar association’s Civic Education Committee. She and her husband, former Hawaii Supreme Court Justice Steven Levinson, said the students were lucky to spend time with Katyal, a Georgetown University law professor and legal "superstar."

The students seem to agree.

"It was really inspiring to speak to someone at that level, face to face," said Lisa Grandinetti, a junior taking advanced placement U.S. history at Mililani.

It wasn’t until the 1980s that researchers came across documents that had been concealed from the high court in the Korematsu and Hirabayashi cases. They showed that naval intelligence and the FBI had concluded there was no reason to round up Japanese-Americans en masse, that as a group they were loyal Americans and had not committed espionage, and the few who were potentially disloyal could be dealt with case by case, as were Italian-Americans and German-Americans. On that basis, Korematsu and Hirabayashi petitioned to have their cases reopened, and their convictions were overturned by a federal district judge.

"Fred Korematsu’s story is a call to action for all of us and especially for all of you, the future of our country, to speak up when a wrong is being committed," Liann Ebesugawa, executive director of the Board of Education, told the students. "Mr. Katyal has time and time again stood up and spoken up for what is right and he has protected our constitutional freedoms many times over."

In response to a question from a student about where the line between civil liberties and national security now falls, Katyal said "the line switches almost daily," and pointed to bills pending in Congress regarding trials of terrorism suspects.

"Courts generally don’t want to get involved," Katyal said. "They’re generalists. They don’t have the special expertise. But in a few times in our nation’s history, they have said, ‘Enough is enough, you can’t do this.’"

That was the case at Guantanamo. Katyal volunteered to represent a detainee there and won a landmark Supreme Court case, Hamdan v. Rumsfeld, that found the terrorism tribunals violated U.S. law and the Geneva Conventions. Asked how he got the courage to take on that case, Katyal said his parents immigrated to the United States from India to ensure their children would be treated fairly.

"It’s never easy to bring a case like the first one I brought," he said. "I just thought it was the right thing to do."