Abstract

Excerpted From: Eric L. Muller, Government Lawyers, Ethical Dilemmas: the Case of Herbert Wechsler and Japanese American Incarceration, 93 Fordham Law Review 1197 (March, 2025) (177 Footnotes) (Full Document)

Who should government agency lawyers aspire to be? What should they aim to do with their power and discretion?

These are questions we might ask about lawyers in every role and institution, but answers often suggest themselves quickly. Criminal defense lawyers fight the state's case. The deal lawyer negotiates the best possible deal. The prosecutor protects the public by securing convictions. The personal injury lawyer seeks accountability to make the client whole.

The answers are harder in the case of the government agency lawyer. Their client is an agency that exists to serve the public. The lawyer may be as responsible for formulating their client's positions as for advancing them. The boundaries of acting “in role” can often be fuzzier for government agency lawyers than for others.

Two little-known chapters in the storied life of twentieth-century luminary Herbert Wechsler illuminate those boundaries. Both date from his service between 1944 and 1946 as Assistant Attorney General in charge of the War Division in the U.S. Department of Justice. And both derive from his work there on matters relating to the removal and imprisonment of Japanese Americans. In one, Wechsler oversaw preparation of the government's U.S. Supreme Court brief in Fred Korematsu's challenge to the constitutionality of removing Japanese Americans en masse from the West Coast. In the other, he helped devise and implement a system that allowed Japanese Americans to renounce their U.S. citizenship. Reflecting in the mid-1950s on his wartime work, Wechsler recalled that he had strongly disapproved of the U.S. Army's program for mass removal of Japanese Americans. It was, he said, “an abomination” about which “no one could have felt more distressed ... than [he], other than those personally affected by it.” The accuracy of his recollection is unclear, as he left behind no account of his feelings at the time when he was actually doing the work. This Essay, however, takes him at his word, examining the curious fact that despite his claimed disapproval, he undertook the two tasks and in later years, insisted he had made the right decisions in the matters and would make them the same way again.

Shoring up his confidence on the rightness of his choices was his commitment to a principle he called “the separation of function in society,” which recognizes the assignment of unique responsibilities to different actors in a government structure. Congress, the President, the Supreme Court, and Wechsler's own Justice Department office have distinct roles to play, and a firm commitment to staying in role is “one of the ways in which a rich society avoids what might otherwise prove to be insoluble dilemmas of choice.”

Let us look closely at Wechsler's understanding of his role and at the choices he made in matters touching Japanese Americans. In doing so, we will learn that “acting in role” entails more professional freedom and discretion for the government lawyer than we might imagine.

[. . .]

Not a year after Wechsler concluded work on the Korematsu litigation and the Renunciation Act and its implementation, he found himself in Nuremberg, Germany as assistant to Francis Biddle, the primary American judge at the war crimes trials of top Nazi officials. There, defendants like Ernst Kaltenbrunner and Albert Speer testified to the supposedly narrow limits of the roles they played in the Nazi government. Kaltenbrunner, leader of the Reich Security Main Office, maintained that he only nominally headed the agencies that, unbeknownst to him, carried out unthinkable atrocities, and that approving those atrocities was the job of others. Speer, minister of armaments and munitions, insisted that it was the job of others to secure and assign the slave labor on which his munitions operations depended.

There is no evidence that Wechsler heard any faint echo of his own Justice Department role in the testimonies of Kaltenbrunner and Speer. And that is not surprising. The enterprise those German officials helped administer had engaged in horrors incalculably more wicked than anything in the domestic American experience. Wechsler would have understood his work as on the opposite rim of a moral canyon separating his work from that of the Nuremberg defendants.

And yet there is a certain irony in Wechsler's reliance on the “separation of functions” as the justification for the choices he made in the matters touching on the rights and lives of the Japanese Americans. It is true, as Wechsler argued, that “a distribution of responsibilities” can be “one of the ways in which a rich society avoids what might otherwise prove to be insoluble dilemmas of choice” for its various officials. Yet it is also true, as Nuremberg demonstrated, that overreliance on the separation of functions can lead government officials to diminish their sense of responsibility for the projects they participate in and limit their understanding of the freedoms they can exercise in their roles.

Legal ethicist David J. Luban has recently written insightfully about what he calls the Spielraum available to government officials engaged in morally troubling projects. The term's literal translation is ““space for play,” but Luban uses it to refer to the “oppositional maneuvering room” that lawyers have, or can make for themselves, in the work they do within morally troublesome systems. In his work heading the DOJ War Division, Herbert Wechsler certainly experienced oppositional thoughts and feelings about the government's treatment of Japanese Americans. But a constrained sense of his role and of the scope of his discretion led him to not explore some of the maneuvering room he had available. Wechsler's example should serve as a reminder to lawyers serving government institutions of the opportunities to use their discretion for the good if they can cultivate the practice of looking for them.

Dan K. Moore Distinguished Professor in Jurisprudence and Ethics, University of North Carolina School of Law.