Intern Problem - cases involving interned Japanese during WWII

The Justice Department couldn't lose. In April 1998, department litigators had moved to dismiss a class-action suit against the government, filed on behalf of Latin Americans of Japanese descent interned during World War II. "There was no way we were going to go down," recalls a Justice official. "We had an airtight case, and the lawsuit would have been dismissed." Enter deputy attorney general Eric Holder, civil-rights-division chief Bill Lann Lee, and other Justice officials who had different ideas. They concocted a strategy, in effect, to throw the case, defying the will of Congress and costing the government millions of dollars. It is a story of racial politics, bureaucratic subterfuge, and, most of all, Clinton-administration contempt for the law.

After Pearl Harbor, the United States feared that Japan might attack Central and South America next, especially the critical Panama Canal. In this atmosphere, 16 Latin American governments detained at least 8,500 Axis nationals, many of them consular officers representing Japan, Germany, and Italy, plus their families. More than 3,000 were eventually transported to the United States for use in prisoner swaps. About 2,300 of these were Japanese, mostly from Peru. The Roosevelt administration was eager to exchange them for some of the 3,300 American civilians held in China by Japan. Many were traded, but some Axis nationals remained in American camps throughout the war.

Half a century later, the American Civil Liberties Union decided that these Japanese nationals deserved reparations from the federal government, and filed a class-action lawsuit, Mochizuki v. United States. They compared the plight of their plaintiffs to that of the 120,000 Japanese Americans who were removed from their homes and sent to internment camps during the war. In 1988, following a lengthy debate, Congress passed a law to pay $20,000 each to the Japanese- American victims of internment, two-thirds of whom were U.S. citizens at the time of their confinement. The ACLU argued that the Japanese Latin Americans deserved the same treatment and that the courts should broaden the meaning of the law to include them.

Congress, though, didn't agree. The Japanese Latin Americans were deliberately excluded from the restitution pact. They had been, after all, predominantly the citizens of enemy nations during the war. To the extent that they suffered hardship, they were no different from millions of others in the 20th century's greatest conflict-and who never thought the United States owed them compensation. The congressionally mandated Commission on Wartime Relocation and Internment of Civilians, which drove the reparations debate, had considered these Japanese Latin Americans in a detailed appendix to its long report. It chose not to recommend any sort of redress.

At a 1987 hearing, Rep. Howard Berman asked whether the law would cover Japanese Latin Americans. His fellow California Democrat, Rep. Norman Mineta, who was crucial in the deliberations, replied: "First of all, this bill is really to benefit U.S. citizens who have been wronged by the actions of their own government. So I would think that this bill would not extend to, let's say, the act of the Peruvian government, which, at that time, sent them to the United States." Rep. Barney Frank then suggested, "We can always take an amendment." Nobody offered one.

But in October 1997, 65 members of Congress, almost all of them Democrats, wrote to President Clinton urging him to pay $20,000 to each of several hundred formerly interned Japanese Latin Americans. Clinton's reply came on January 27, 1998. He regretted that it wasn't "within my authority" to include these persons under the law. Two days later, the Justice Department filed a statement with the federal court of claims: "The plain language of the Act leaves no room for doubt that [ACLU] plaintiffs are ineligible for redress payments." Chief judge Loren A. Smith seemed to agree. He said the court had a "duty to take the course of action the law requires," regardless of whether this led to a "right and moral resolution" from the perspective of those favoring restitution.

Wheels then started to turn at the Justice Department, where Bill Lann Lee had just arrived as acting head of the civil-rights division. "Isn't there anything we can do?" asked Richard Jerome, a deputy associate attorney general, at a series of meetings. Lee echoed this sentiment, and their words became a refrain at Justice. Lawyers in the civil division argued that the government should continue to defend itself against the lawsuit, but found it tough going when so many Clinton appointees were equating foreign nationals with American citizens. "It's hard to make these distinctions very aggressively," says a department attorney. "You wonder if your colleagues will start thinking you're a racist."

A settlement didn't seem to make sense: The law was crystal clear, and the judge had hinted broadly that he was prepared to dismiss. When Jerome circulated a memo outlining a proposed settlement-he suggested awarding $5,000 to each plaintiff-Stuart Frisch, general counsel of the Justice Management Division, shot back in a memo of his own: "I see virtually no litigative risk. Accordingly, I cannot advise an accountable officer to certify the settlement payments you propose to make." The Immigration and Naturalization Service also opposed the settlement.