Department of Justice
Alien Enemy Control Unit
Washington

December 19, 1942

MEMORANDUM FOR MR. CHARLES FAHY
DIRECTOR, WAR DIVISION

Re: U.S. v. Korematsu
U.S. v. Hirabayashi

Assistant United States Attorney Zirpoli who is preparing an answering brief for the Government on the Korematsu appeal agreed with me when I called it to his attention that imposition of sentence had been suspended and that there was no appealable final judgment and therefore the appeal must be dismissed. He pointed out to me, however, that the defendant's attorney might immediately apply to the District Judge for a sentence and request that its execution be suspended and probation continued and in this way would obtain a final appealable judgment which could be added to the present record without delaying the appeal. In view of the fact that Mr. Zirpoli was writing a brief I thought he should be told at once of this procedural defect but I advised him not to file a motion to dismiss the appeal until next Tuesday so that you and Mr. Berge would have an opportunity to approve this action. I also advised him not to offer opposing counsel any assistance or encouragement to correct the record because of the likelihood that we might wish to get rid of this case even by dismissing the information if opposing counsel decided to request, and the court decided to grant, an appealable judgment. I think we should decide what to do and advise Mr. Zirpoli on Monday.

Mr. Zirpoli advised me that disposing of this case would not dispose of the question of the constitutionality of the evacuation because the Hirabayashi case involves the same question from the Western District of Washington and was on the same appellate calendar ahead of the Korematsu case. This office was not aware that an appeal was pending in this case but upon inquiry Mr. McInerney advises us that a request had just been received to print the record and therefore the briefs are not due until February which is contrary to Mr. Zirpoli's view of the piece of this case on the calendar. I think we should now decide whether we want to go ahead with this case and if so the brief should certainly be written in the Department and not in the United States Attorney's office. This is the first great constitutional issue arising out of the second World War and I believe the Solicitor General should take it in hand even at this stage.

Edward J. Ennis