Allegiance (42 page)

“What?”

“Detention was never authorized. Congress never approved. The President never wanted it done.”

“That's not true.”

“I am thinking of the future,” Frankfurter says. “We need to move forward. Not to revisit policy choices that were made in good faith for the safety of the nation.”

There is an unusual brightness to the room, a rushing in my ears. “Men died in those camps,” I say. “Men died rather than go there.” Frankfurter looks at me, impassive. “That was not a policy choice. If it was unconstitutional, what we did to those people, it was closer to a crime.”

Frankfurter leans back in his chair, casts his eyes toward the ceiling. He has cut himself shaving, I can see: spots of blood stipple the pink skin of his neck where the razor went too close. But there will be a high collar when he goes out, a black robe for the courtroom. “Ah, Cash,” he says. “What will be gained by spending our time and energy laying blame for the past? Some people may have exceeded their authority. That is what the opinion will say.” His face comes down again, gleaming and smooth. “Detention of loyal Americans was never part of the plan. But as far as the program went, it was approved by the President and Congress, and every expert consulted said it was safe, necessary, and effective.”

“They said nothing of the sort. I have the reports. The FBI and the FCC. What are you relying on? Karl Bendetsen's memos?”

Frankfurter draws himself straighter. “I have the word of the Solicitor General. This is the position of the US government.”

“Charles Fahy himself asked you not to do this,” I say. “He asked you for an honest judgment, for the truth. What will you give him?”

“I will give him the way to move forward.”

“We do not move forward by shutting our eyes to the past.”

“Yes, we do.” Frankfurter seems honestly puzzled at my words. “That is exactly how we move forward.”

I look at him for a moment, and then I nod my head. “Of course,” I say. I am thinking of Karl Bendetsen again. He didn't make the policy; he just told a client what the law allowed. No one made the policy, it seems; perhaps there never was such a policy at all. But men lay in the stockade, and blood flecked the wall, and blue chips of china danced off the ground where the wedding plates were smashed. Look forward, Frankfurter says, but what he means is look away.

I rise from the chair. Frankfurter is no longer on my side, if he ever really was. “Of course you're right,” I tell him. “There was never any doubt.”

• • • • 

Frankfurter's clerk walks me out toward the exit, across the thick carpet, down the marble halls. We are almost there when I hear whistling and Hugo Black rounds the corner.

“Cash!” He is clearly surprised to see me. “Sneaking around without stopping in to say hi?”

“Just a little business, Justice,” I say.

“Judge,” he corrects me.

“Judge. I'm putting off social calls until the cases come down.”

Black nods. “Quite right.” But he stands there anyway. The government is losing
Endo
, I think. Those are votes against Roosevelt, even if the opinion is a lie. There must be some in
Korematsu
, too. Murphy, surely. Roberts, Douglas, Jackson. And Hugo Black makes five.

“How's JoJo?”

“Still sneezing,” he answers. “I can hear her nights.” He chuckles. “Looking for monsters in the garden.”

“There aren't any,” I say. Is he hinting something? “No monsters, Judge. Nothing to be scared of.”

He laughs again and claps me on the shoulder. “You tell her that. Soon.” Now he walks on; Frankfurter's clerk leads me around the corner, past the Douglas chambers. There is the person I want to see. I throw Clara a look. Five minutes later she comes to the clerk's entrance and beckons me back inside. Douglas is out somewhere and the secretary is guarding his door. We have Clara's office to ourselves.

She sits down at her desk. “What is it?”

I walk over to the window. Clara's view is the same one I used to have. Constitution Avenue out the window and a stack of cert petitions on the desk. “Frankfurter is manipulating things with these cases,” I say. “I know he is. This isn't right.”

Clara's face clouds. “You still want me to talk to Black.” She looks at the papers piled in front of her.

“Please,” I say.

Clara shakes her head.

“I know it's not proper. But the Court can bend the rules to get the right result.”

“Oh, that's what they're doing, Cash. They just think the other result is the right one.”

“What?”

“You see, not following the rules can fail, too.”

“Just tell Black the truth.”

“He knows, Cash.” Her voice is soft, but the words hit like a slap.

“What do you mean?”

“All your reports, all your evidence. Murphy's been saying it. I've been helping his clerk.” For the first time I notice the depth of the shadows under her eyes. “It's not that they don't know what's happening; it's that they don't care. Not for these people. There are more important things at stake.”

It is what Frankfurter said. And somehow he has gotten a majority behind him.

“This is what happens to people who aren't like you,” Clara continues. “When you get scared, of course they're the first to feel it.”

“But Murphy has the facts on his side. What can Frankfurter say to that?”

“Frankfurter?”

“In the opinion. I can tell he's writing it.”

She hesitates. “I didn't want to tell you this. I hoped you were right, that he'd come around.”

“Tell me what?”

“Frankfurter's not writing the opinion. It's Black.”

There is something in my throat. For a moment the words won't come. “It's Black?”

“I went to him,” Clara says. “I could see that Murphy's arguments weren't working. So I told him what you said about the original version of the Final Report. That time wasn't a problem, that General DeWitt just thought no one could tell them apart.”

“What did he say?”

“He said, ‘Well, can you?' I was surprised. I asked him what he meant. He said, ‘Can you tell them apart? If Japanese troops landed on the West Coast, could you tell who was American and who wasn't? And if some of them were fighting with the Imperial Army, out of uniform, could you tell who was loyal and who wasn't? They'd all be shot.'

“I said, ‘If German troops landed and were fighting out of uniform, could you tell who was American and who wasn't?' ”

“What did he say to that?”

“He said it wasn't the same thing. He said, ‘Listen, DeWitt's a patriot. He's no racist. I know what it's like to be unjustly accused of that.' ” She stops.

“That was it?” I ask.

“No,” says Clara. “I said one more thing. I said, ‘Mr. Justice, I ask you to consider that the man unjustly accused here is Fred Korematsu.' ”

“And then?”

“Then he said, ‘Call me Judge.' And that was it.”

I put my forehead against the window and close my eyes. The glass is cold
on my skin. Clara's hand touches my shoulder softly. “Poor boy.” She is so close I can feel her breath against my hair as she speaks. “Sometimes there is nothing to be done.”

“
Shikata ga nai
,” I say.

“What?”

“Never mind.” I feel tired, more tired than I have ever been. Something has hollowed me out, removed whatever vital core powered me through the earlier days. Innocence, optimism, youth. “So it's over. There's nothing to do.”

She tilts her head again, eyes dark with concern. “No, it's not over. Remember what you said to me.”

“What?”

“You're still in danger. You need to worry about yourself now.”

N
OVEMBER COMES.
T
HE
First Army is fighting in Germany; the B-29s are bombing Japan. At Leyte Gulf, Bull Halsey and Thomas Kinkaid have destroyed the last great fleet to sail under the rising sun. The Nisei regimental combat team has spent half its strength fighting through the Vosges to free a lost battalion of Texans. And Roosevelt has won his fourth term, with the Democrats picking up four House seats in California.

I open my desk drawer and take out a sheaf of papers. They are covered in handwriting, the names of cases, clerks, and Justices. Some words are circled or underlined, connected to others by lines and arrows. Gene Gressman's notes are what I have left now. There will be no help from Black, no help from Frankfurter. I cannot affect the Japanese cases; I cannot use Haynes to find the men behind Gene's murder. All I can do is look at these notes, consult them like a holy book, as inscrutable as it is infallible. I do not know what they mean, but there must be truth in them somewhere. Because someone thought they were worth killing for.

Words, names, diagrams. Next to each case, there is a list of Justices. Sometimes all of them, sometimes as few as one. Lines link their names to those of clerks. There is something the Justices are doing, something the clerks are influencing. The voting, presumably. That is my first thought. Gressman has drawn me a picture of the Anti-Federalists' work: Justices voting for corporate interests and against the power of the federal government.

But when I call down to the library and have them send up the volumes of the
US Reports
containing the cases he's listed, I see that's not how it works.
Hamel Manufacturing v. Skyler Corporation
, for instance, has four names next to it on Gressman's chart. But it's a unanimous decision: all the Justices voted together. And it's not about the power of the federal government at all; it's a contract dispute between a mill and a clothier.
Allcom, Inc. v. Linden Brothers
has one name next to it, but the Court did not even decide the case. In the
US Reports
there is only a curt notation:
Certiorari denied
.

And then it hits me. The votes he's recording are not at the merits stage. They're votes on the certiorari petitions. That was Gene's theory in the first place, that the Court was hearing cases it shouldn't and someone was profiting from that knowledge.
The boring business cases,
he said.
That's where the money is
.

Frankfurter's talk of a conservative conspiracy crowded it from my mind, but it all makes sense now. Two plans were in motion at the same time, Colonel Richards pushing his ideological agenda and someone else using the access for other purposes. Driving the Court to hear business cases and trading the companies' stock ahead of the decisions. That's what they wanted to conceal, the thing Richards didn't know about; that's what was worth killing Gene for. Enough money at stake would provide a motive, and avoiding discovery would too. The SEC would take an interest in these men. Even without Haynes, that is something I can hang on them. If I can find them.

I spread the papers out on the desk. It all fits. The patriots and the scoundrels, one hand not knowing what the other did. None of them would care about the Japanese cases; Frankfurter was right about that. But now the picture begins to blur again. If no one cared about the Japanese cases, why did they kill John Hall and not me? What other reason could there be for keeping me alive? I lean forward, frowning. Does that mean I am in danger now? Or that I was never in danger at all?

I am so deep in thought I do not hear the footsteps in the corridor. Only when he clears his throat do I look up and see Francis Biddle standing in my doorway. “I need you, Cash,” he says. “There's trouble in Tule Lake.”

“What is it?”

“Walk with me.”

We go down the hallway, toward the elevators. “The decisions will issue soon,” he says. “The Japanese cases.”

“How do you know?”

“Felix Frankfurter. He keeps us informed.”

The neutral, principled judge. I shake my head. Just a bit, but Biddle catches it.

“It's in everyone's interest,” he says. “We need to prepare.”

“What do we need to do?”

“We're going to lose
Endo
,” Biddle tells me. He pushes the call button. “Unless there's some reason to doubt loyalty on an individual basis, they can go home.”

“That's fine by me.”

“Me too. First floor,” he says to the operator. “The War Department sees things differently, of course. They're going to try to tell the courts that they doubt everyone's loyalty. On an individual basis. But I don't think it will work.” The aluminum door opens; we walk out into the Great Hall.

“That's fine by me too,” I say.

Biddle swings a roll of paper, patting his thigh. “Justice takes no position on the matter. But in any event, there will be a large number of loyal detainees returning. They may face a chilly reception.”