Thread by @jedshug

Chief Justice Roberts, if you’re writing the decision in the Travel Ban case, you should know it will permanently define your Court. Read this on the govt’s sham waiver. Recall Japanese Internment and Solicitor Gen. Fahy, who had deceived the Court...1/ slate.com/news-and-polit…

2/ Solicitor General Noel Francisco has repeatedly misrepresented the facts of Trump’s animus towards Muslims and how the ban’s waiver process was just a sham, fraudulent “window dressing.”
slate.com/news-and-polit…

3/ Here’s SG Francisco’s earlier misrepresentation from oral argument. His “correction” a week later, three sentences, was so minimal that it shows how deliberately he was otherwise misleading the Court on Trump’s animus and how the ban actually worked.
slate.com/news-and-polit…

4/ Two "consular officers called Francisco’s assertions into question. Counter to what Francisco argued before SCOTUS, they had no discretion to grant waivers...Francisco gave incomplete and misleading information about how these decisions are made." slate.com/news-and-polit…

5/ When the DOJ defended the Japanese internment in the 1940s, it also misled the Court. Historian Peter Irons discovered this evidence in the 1980s, too late for the imprisoned plaintiffs, but not too late to make SG Charles Fahy infamous for his lies. slate.com/news-and-polit…

6/ Peter Irons revisited this history last week:
"Solicitor Gen. Fahy knowingly misled the justices about the dangers of espionage and sabotage purportedly posed by members of this racial minority. Fahy’s subordinate, Edward Ennis, discovered a report..." sfchronicle.com/opinion/openfo…

7/ ...prepared for the Office of Naval Intell, stating “the entire ‘Japanese Problem’ has been magnified out of its true proportion (and) should be handled on the basis of the individual, and not on a racial basis.”
Ennis warned Fahy that failing to advise the Supreme Court...

8/ "...might qualify as suppression of evidence. Nonetheless, Fahy hid the report & induced the Justices to conclude that Japanese Americans as a group included substantial numbers of potential Japanese agents, justifying the internment orders as a matter of “military necessity.”

9/ Fahy later offered a report by Gen. John L. DeWitt, who issued the internment orders, about Japanese Americanswho sent signals to subs. But agencies found no evidence to confirm DeWitt’s charges. Urging Fahy to disavow the DeWitt report, Ennis said, “It is highly unfair..."

10/ "to this racial minority that these lies, put out in an official publication, go uncorrected.” Again, Fahy ignored him, instead assuring the court that 'not a single line, a single word, or a single syllable' in the DeWitt report cast doubt on the military necessity..."

11/ Irons used this evidence to overturn the convictions in 1983. Judge Patel issued a posthumous rebuke to Fahy: “The judicial process is seriously impaired when the government’s law enforcement officers violate their ethical obligations to the court.”

12/ This “stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect gov actions from close scrutiny and accountability.”
The Trump admin has not provided any evidence of necessity for its Travel/Muslim Ban.

13/ Fahy was lucky that the evidence came out after his death. Francisco might not be so lucky. The statistics and cases presented already suggested that the waiver process was "window dressing." Did Francisco deliberately mislead the Court? And Roberts can't pretend it away...

14/ Hugo Black wrote Korematsu. It hasn't tainted his legacy, because he didn't know of SG Fahy's lies, and he had a celebrated civil rights record afterward.
But Francisco's mispresentations have been exposed.
And Roberts has a bad civil rights/voting rights record...

15/ Roberts and Kennedy, you can follow Fahy and Francisco into historical infamy.
Or you can hold the government accountable to present the facts.
If they are hiding these basic facts, what else are they hiding? It will get out eventually. Don't be on the wrong side of history.

16/ The lawyers in the Travel Ban case should file letter with the Supreme Court on the racial animus ("infest") and flagrant constitutional rights violations in border family separations, as well. Animus drives this entire administration.
@neal_katyal @AshaRangappa_