IN RE YAMASHITA, 327 U. S. 1 (1946) -- US Supreme Court Cases from Justia & Oyez

Prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. On that day, he surrendered to the United States Army and became a prisoner of war. Respondent was the Commanding General of the United States Army Forces, Western Pacific, whose command embraced the Philippine Islands. Respondent appointed a military commission to try the petitioner on a charge of violation of the law of war. The gist of the charge was that petitioner had failed in his duty as an army commander to control the operations of his troops, "permitting them to commit" specified atrocities against the civilian population and prisoners of war. Petitioner was found guilty, and sentenced to death.

Held:

1. The military commission appointed to try the petitioner was lawfully created. P. 327 U. S. 9.

(a) Nature of the authority to create military commissions for the trial of enemy combatants for offenses against the law of war, and principles governing the exercise of jurisdiction by such commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and other cases. Pp. 327 U. S. 7-9.

(b) A military commission may be appointed by any field commander, or by any commander competent to appoint a general court-martial, as was respondent by order of the President. P. 327 U. S. 10.

(c) The order creating the military commission was in conformity with the Act of Congress (10 U.S.C. §§ 1471-1593) sanctioning

Page 327 U. S. 2

the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants. P. 327 U. S. 11.

2. Trial of the petitioner by the military commission was lawful, although hostilities had ceased. P. 327 U. S. 12.

(a) A violation of the law of war, committed before the cessation of hostilities, may lawfully be tried by a military commission after hostilities have ceased -- at least until peace has been officially recognized by treaty or proclamation by the political branch of the Government. P. 327 U. S. 12.

(b) Trial of the petitioner by the military commission was authorized by the political branch of the Government, by military command, by international law and usage, and by the terms of the surrender of the Japanese government. P. 327 U. S. 13.

3. The charge preferred against the petitioner was of a violation of the law of war. P. 327 U. S. 13.

(a) The law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and he may be charged with personal responsibility for his failure to take such measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged violations of the law of war, and whether such measures as he may have taken were appropriate and sufficient to discharge the duty imposed upon him, were questions within the peculiar competence of the military officers composing the commission, and were for it to decide. P. 327 U. S. 16.

(c) Charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment. P. 327 U. S. 17.

(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set forth a violation of the law of war, and the military commission had authority to try and to decide the issue which it raised. P. 327 U. S. 17.

4. In admitting on behalf of the prosecution a deposition and hearsay and opinion evidence, the military commission did not violate any Act of Congress, treaty, or military command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an enemy combatant by a military commission

Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions upon the procedure to be followed in such trial. Pp. 327 U. S. 19-20.

(b) Article 63 of the Geneva Convention of 1929, which provides that

"Sentence may be pronounced against a prisoner of war only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power,"

does not require that Articles 25 and 38 of the Articles of War be applied in the trial of the petitioner. Article 63 refers to sentence "pronounced against a prisoner of war" for an offense committed while a prisoner of war, and not for a violation of the law of war committed while a combatant. P. 327 U. S. 20.

(c) The Court expresses no opinion on the question of the wisdom of considering such evidence as was received in this proceeding, nor on the question whether the action of a military tribunal in admitting evidence which Congress or controlling military command has directed to be excluded may be drawn in question by petition for habeas corpus or prohibition. P. 327 U. S. 23.

5. On an application for habeas corpus, the Court is not concerned with the guilt or innocence of the petitioner. P. 327 U. S. 8.

6. By sanctioning trials of enemy aliens by military commission for offenses against the law of war, Congress recognized the right of the accused to make a defense, and did not foreclose their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. P. 327 U. S. 9.

7. The Court does not appraise the evidence on which the petitioner here was convicted. P. 327 U. S. 17.

8. The military commission's rulings on evidence and on the mode of conducting the proceedings against the petitioner are not reviewable by the courts, but only by the reviewing military authorities. From this viewpoint, it is unnecessary to consider what, in other situations, the Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.

9. Article 60 of the Geneva Convention of 1929, which provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining Power shall advise the representative of the protecting Power thereof as soon as possible, and always before the date set for the opening of the trial,"

applies only to persons who are subjected to judicial proceedings for offenses committed while prisoners of war. P. 327 U. S. 23.

10. The detention of the petitioner for trial, and his detention upon his conviction, subject to the prescribed review by the military authorities, were lawful. P. 327 U. S. 25.

Leave and petition denied.

Page 328 U. S. 4

No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and prohibition in this Court challenging the jurisdiction and legal authority of a military commission which convicted applicant of a violation of the law of war and sentenced him to be hanged. Denied.

No. 672. Petition for certiorari to review an order of the Supreme Court of the Commonwealth of the Philippines, 42 Off.Gaz. 664, denying an application for writs of habeas corpus and prohibition likewise challenging the jurisdiction and legal authority of the military commission which tried and convicted petitioner. Denied.

MR. CHIEF JUSTICE STONE delivered the opinion of the Court.

No. 61 Miscellaneous is an application for leave to file a petition for writs of habeas corpus and prohibition in this Court. No. 672 is a petition for certiorari to review an order of the Supreme Court of the the Philippines (28 U.S.C. § 349) denying petitioner's application to that court for writs of habeas corpus and prohibition. As both applications raise substantially like questions, and because of the importance and novelty of some of those presented, we set the two applications down for oral argument as one case.

Page 327 U. S. 5

From the petitions and supporting papers, it appears that, prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. On that date, he surrendered to and became a prisoner of war of the United States Army Forces in Baguio, Philippine Islands. On September 25th, by order of respondent, Lieutenant General Wilhelm D. Styer, Commanding General of the United States Army Forces, Western Pacific, which command embraces the Philippine Islands, petitioner was served with a charge prepared by the Judge Advocate General's Department of the Army, purporting to charge petitioner with a violation of the law of war. On October 8, 1945, petitioner, after pleading not guilty to the charge, was held for trial before a military commission of five Army officers appointed by order of General Styer. The order appointed six Army officers, all lawyers, as defense counsel. Throughout the proceedings which followed, including those before this Court, defense counsel have demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged.

On the same date, a bill of particulars was filed by the prosecution, and the commission heard a motion made in petitioner's behalf to dismiss the charge on the ground that it failed to state a violation of the law of war. On October 29th, the commission was reconvened, a supplemental bill of particulars was filed, and the motion to dismiss was denied. The trial then proceeded until its conclusion on December 7, 1945, the commission hearing two hundred and eighty-six witnesses, who gave over three thousand pages of testimony. On that date, petitioner was found guilty of the offense as charged, and sentenced to death by hanging.

The petitions for habeas corpus set up that the detention of petitioner for the purpose of the trial was unlawful for

Page 327 U. S. 6

reasons which are now urged as showing that the military commission was without lawful authority or jurisdiction to place petitioner on trial, as follows:

(a) That the military commission which tried and convicted petitioner was not lawfully created, and that no military commission to try petitioner for violations of the law of war could lawfully be convened after the cessation of hostilities between the armed forces of the United States and Japan;

(b) that the charge preferred against petitioner fails to charge him with a violation of the law of war;

(c) that the commission was without authority and jurisdiction to try and convict petitioner, because the order governing the procedure of the commission permitted the admission in evidence of depositions, affidavits, and hearsay and opinion evidence, and because the commission's rulings admitting such evidence were in violation of the 25th and 38th Articles of War (10 U.S.C. §§ 1496, 1509) and the Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair trial in violation of the due process clause of the Fifth Amendment;

(d) that the commission was without authority and jurisdiction in the premises because of the failure to give advance notice of petitioner's trial to the neutral power representing the interests of Japan as a belligerent as required by Article 60 of the Geneva Convention, 47 Stat. 2021, 2051.

On the same grounds, the petitions for writs of prohibition set up that the commission is without authority to proceed with the trial.

The Supreme Court of the Philippine Islands, after hearing argument, denied the petition for habeas corpus presented to it on the ground, among others, that its jurisdiction was limited to an inquiry as to the jurisdiction of the commission to place petitioner on trial for the offense charged, and that the commission, being validly constituted

Page 327 U. S. 7

by the order of General Styer, had jurisdiction over the person of petitioner and over the trial for the offense charged.

In Ex parte Quirin, 317 U. S. 1, we had occasion to consider at length the sources and nature of the authority to create military commissions for the trial of enemy combatants for offenses against the law of war. We there pointed out that Congress, in the exercise of the power conferred upon it by Article I, § 8, Cl. 10, of the Constitution to "define and punish . . . Offenses against the Law of Nations . . . " of which the law of war is a part, had, by the Articles of War (10 U.S.C. §§ 1471-1593), recognized the "military commission" appointed by military command, as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war. Article 15 declares that

"the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions . . . or other military tribunals of concurrent jurisdiction in respect of offenders of offenses that, by statute or by the law of war, may be triable by such military commissions . . . or other military tribunals."

See a similar provision of the Espionage Act of 1917, 50 U.S.C. § 38. Article 2 includes among those persons subject to the Articles of War the personnel of our own military establishment. But this, as Article 12 indicates, does not exclude from the class of persons subject to trial by military commissions "any other person who, by the law of war, is subject to trial by military tribunals" and who, under Article 12, may be tried by court martial, or, under Article 15, by military commission.

We further pointed out that Congress, by sanctioning trial of enemy combatants for violations of the law of war by military commission, had not attempted to codify the law of war or to mark its precise boundaries. Instead, by Article 15, it had incorporated, by reference, as within the

Page 327 U. S. 8

preexisting jurisdiction of military commissions created by appropriate military command, all offenses which are defined as such by the law of war and which may constitutionally be included within that jurisdiction. It thus adopted the system of military common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts, and as further defined and supplemented by the Hague Convention, to which the United States and the Axis powers were parties.

We also emphasized in Ex parte Quirin, as we do here, that, on application for habeas corpus, we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged. In the present cases, it must be recognized throughout that the military tribunals which Congress has sanctioned by the Articles of War are not courts whose rulings and judgments are made subject to review by this Court. See 68 U. S. 39. They are tribunals whose determinations are reviewable by the military authorities either as provided in the military orders constituting such tribunals or as provided by the Articles of War. Congress conferred on the courts no power to review their determinations save only as it has granted judicial power "to grant writs of habeas corpus for the purpose of an inquiry into the cause of the restraint of liberty." 28 U.S.C. §§ 451, 452. The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. If the military tribunals have lawful authority to hear, decide, and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts, but for the military authorities, which are alone authorized to review their decisions. See 61 U. S. 81; 122 U. S. 555-556; Carter v. McClaughry, 183 U. S. 365; Collins v. McDonald, 258 U. S. 416. Cf. Matter of Moran,@ 203 U. S. 96, 203 U. S. 105.

Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we hold now, that Congress, by sanctioning trials of enemy aliens by military commission for offenses against the law of war, had recognized the right of the accused to make a defense. Cf. Ex parte Kawato, 317 U. S. 69. It has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.

With these governing principles in mind, we turn to the consideration of the several contentions urged to establish want of authority in the commission. We are not here concerned with the power of military commissions to try civilians. See 71 U. S. 132; Sterling v. Constantin, 287 U. S. 378; Ex parte Quirin, supra,@ 317 U. S. 45. The Government's contention is that General Styer's order creating the commission conferred authority on it only to try the purported charge of violation of the law of war committed by petitioner, an enemy belligerent, while in command of a hostile army occupying United States territory during time of war. Our first inquiry must therefore be whether the present commission was created by lawful military command, and, if so, whether authority could thus be conferred on the commission to place petitioner on trial after the cessation of hostilities between the armed forces of the United States and Japan.

The authority to create the Commission. General Styer's order for the appointment of the commission was made by him as Commander of the United States Armed Forces, Western Pacific. His command includes, as part

Page 327 U. S. 10

of a vastly greater area, the Philippine Islands, where the alleged offenses were committed, where petitioner surrender as a prisoner of war, and where, at the time of the order convening the commission, he was detained as a prisoner in custody of the United States Army. The Congressional recognition of military commissions and its sanction of their use in trying offenses against the law of war to which we have referred sanctioned their creation by military command in conformity to long established American precedents. Such a commission may be appointed by any field commander, or by any commander competent to appoint a general court martial, as was General Styer, who had been vested with that power by order of the President. 2 Winthrop, Military Law and Precedents,2d Ed., *1302; cf. Article of War 8.

Here, the commission was not only created by a commander competent to appoint it, but his order conformed to the established policy of the Government and to higher military commands authorizing his action. In a proclamation of July 2, 1942 (56 Stat. 1964), the President proclaimed that enemy belligerents who, during time of war, enter the United States, or any territory possession thereof, and who violate the law of war, should be subject to the law of war and to the jurisdiction of military tribunals. Paragraph 10 of the Declaration of Potsdam of July 6, 1945, declared that " . . . stern justice shall be meted out to all war criminals, including those who have visited cruelties upon prisoners." U.S. Dept. of State Bull., Vol. XIII, No. 318, pp. 137, 138. This Declaration was accepted by the Japanese government by its note of August 10, 1945. U.S. Dept. of State Bull., Vol. XIII, No. 320, p. 205.

By direction of the President, the Joint Chiefs of Staff of the American Military Forces, on September 12, 1945, instructed General MacArthur, Commander in Chief, United States Army Forces, Pacific, to proceed with the trial, before

Page 327 U. S. 11

appropriate military tribunals, of such Japanese war criminals "as have been or may be apprehended." By order of General MacArthur of September 24, 1945, General Styer was specifically directed to proceed with the trial of petitioner upon the charge here involved. This order was accompanied by detailed rules and regulations which General MacArthur prescribed for the trial of war criminals. These regulations directed, among other things, that review of the sentence imposed by the commission should be by the officer convening it, with "authority to approve, mitigate, remit, commute, suspend, reduce, or otherwise alter the sentence imposed," and directed that no sentence of death should be carried into effect until confirmed by the Commander in Chief, United States Army Forces, Pacific.

It thus appears that the order creating the commission for the trial of petitioner was authorized by military command, and was in complete conformity to the Act of Congress sanctioning the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants. And we turn to the question whether the authority to create the commission and direct the trial by military order continued after the cessation of hostilities.

An important incident to the conduct of war is the adoption of measures by the military commander not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war. Ex parte Quirin, supra, 317 U. S. 28. The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war. That sanction is without qualification as to the exercise of this authority so

Page 327 U. S. 12

long as a state of war exists -- from its declaration until peace is proclaimed. See 76 U. S. 70; 79 U. S. 702; McElrath v. United States, 102 U. S. 426, 102 U. S. 438; Kahn v. Anderson, 255 U. S. 1, 255 U. S. 9-10. The war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has recognized, the evils which the military operations have produced. @See 78 U. S. 507.

We cannot say that there is no authority to convene a commission after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace has been officially recognized by treaty or proclamation of the political branch of the Government. In fact, in most instances, the practical administration of the system of military justice under the law of war would fail if such authority were thought to end with the cessation of hostilities. For only after their cessation could the greater number of offenders and the principal ones be apprehended and subjected to trial.

No writer on international law appears to have regarded the power of military tribunals, otherwise competent to try violations of the law of war, as terminating before the formal state of war has ended. [Footnote 1] In our own military history,

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there have been numerous instances in which offenders were tried by military commission after the cessation of hostilities and before the proclamation of peace, for offenses against the law of war committed before the cessation of hostilities. [Footnote 2]

The extent to which the power to prosecute violations of the law of war shall be exercised before peace is declared rests not with the courts, but with the political branch of the Government, and may itself be governed by the terms of an armistice or the treaty of peace. Here, peace has not been agreed upon or proclaimed. Japan, by her acceptance of the Potsdam Declaration and her surrender, has acquiesced in the trials of those guilty of violations of the law of war. The conduct of the trial by the military commission has been authorized by the political branch of the Government, by military command, by international law and usage, and by the terms of the surrender of the Japanese government.

The Charge. Neither Congressional action nor the military orders constituting the commission authorized it to place petitioner on trial unless the charge preferred against him is of a violation of the law of war. The charge, so far as now relevant, is that petitioner, between October 9, 1944, and September 2, 1945, in the Philippine Islands,

"while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to

Page 327 U. S. 14

control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines, and he . . . thereby violated the laws of war."

Bills of particulars, filed by the prosecution by order of the commission, allege a a series of acts, one hundred and twenty-three in number, committed by members of the forces under petitioner's command during the period mentioned. The first item specifies the execution of a

"a deliberate plan and purpose to massacre and exterminate a large part of the civilian population of Batangas Province, and to devastate and destroy public, private, and religious property therein, as a result of which more than 25,000 men, women and children, all unarmed noncombatant civilians, were brutally mistreated and killed, without cause or trial, and entire settlements were devastated and destroyed wantonly and without military necessity."

Other items specify acts of violence, cruelty, and homicide inflicted upon the civilian population and prisoners of war, acts of wholesale pillage, and the wanton destruction of religious monuments.

It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are recognized in international law as violations of the law of war. Articles 4, 28, 46, and 47, Annex to Fourth Hague Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged as against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by "permitting them to commit" the extensive and widespread atrocities specified. The question, then, is whether the law of war imposes

Page 327 U. S. 15

on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result. That this was the precise issue to be tried was made clear by the statement of the prosecution at the opening of the trial.

It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could, with impunity, neglect to take reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.

This is recognized by the Annex to Fourth Hague Convention of 1907, respecting the laws and customs of war on land. Article I lays down, as a condition which an armed force must fulfill in order to be accorded the rights of lawful belligerents, that it must be "commanded by a person responsible for his subordinates." 36 Stat. 2295. Similarly, Article 19 of the Tenth Hague Convention, relating to bombardment by naval vessels, provides that commanders in chief of the belligerent vessels "must see that the above Articles are properly carried out." 36 Stat. 2389. And Article 26 of the Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2092, for the amelioration of the condition of the wounded and sick in armies in the field, makes it

"the duty of the commanders in chief of the belligerent

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armies to provide for the details of execution of the foregoing articles [of the convention], as well as for unforeseen cases."

And, finally, Article 43 of the Annex of the Fourth Hague Convention, 36 Stat. 2306, requires that the commander of a force occupying enemy territory, as was petitioner,

"shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

These provisions plainly imposed on petitioner, who at the time specified was military governor of the Philippines as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals. [Footnote 3] A like principle has been applied so as to impose liability on the United States in international arbitrations. Case of Jenaud, 3 Moore, International Arbitrations 3000; Case of "The Zafiro," 5 Hackworth, Digest of International Law 707.

We do not make the laws of war, but we respect them so far as they do not conflict with the commands of Congress or the Constitution. There is no contention that the present charge, thus read, is without the support of evidence, or that the commission held petitioner responsible for failing to take measures which were beyond his control or inappropriate for a commanding officer to take in the circumstances. [Footnote 4]

Page 327 U. S. 17

We do not here appraise the evidence on which petitioner was convicted. We do not consider what measures, if any, petitioner took to prevent the commission, by the troops under his command, of the plain violations of the law of war detailed in the bill of particulars, or whether such measures as he may have taken were appropriate and sufficient to discharge the duty imposed upon him. These are questions within the peculiar competence of the military officers composing the commission, and were for it to decide. See Smith v. Whitney, 116 U. S. 167, 116 U. S. 178. It is plain that the charge on which petitioner was tried charged him with a breach of his duty to control the operations of the members of his command, by permitting them to commit the specified atrocities. This was enough to require the commission to hear evidence tending to establish the culpable failure of petitioner to perform the duty imposed on him by the law of war, and to pass upon its sufficiency to establish guilt.

Obviously, charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment. Cf. Collins v. McDonald, supra, 258 U. S. 420. But we conclude that the allegations of the charge, tested by any reasonable standard, adequately allege a violation of the law of war, and that the

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commission had authority to try and decide the issue which it raised. Cf. Dealy v. United States, 152 U. S. 539; Williamson v. United States, 207 U. S. 425, 207 U. S. 447; Glasser v. United States, 315 U. S. 60, 315 U. S. 66, and cases cited.

The Proceedings before the Commission. The regulations prescribed by General MacArthur governing the procedure for the trial of petitioner by the commission directed that the commission should admit such evidence

"as, in its opinion, would be of assistance in proving or disproving the charge, or such as, in the commission's opinion, would have probative value in the mind of a reasonable man,"

and that, in particular, it might admit affidavits, depositions, or other statements taken by officers detailed for that purpose by military authority. The petitions in this case charged that, in the course of the trial, the commission received, over objection by petitioner's counsel, the deposition of a witness taken pursuant to military authority by a United States Army captain. It also, over like objection, admitted hearsay and opinion evidence tendered by the prosecution. Petitioner argues, as ground for the writ of habeas corpus, that Article 25 [Footnote 5] of the Articles of War prohibited the reception in evidence by the commission of depositions on behalf of the prosecution in a capital case, and that Article 38 [Footnote 6] prohibited the reception of hearsay and of opinion evidence.

Page 327 U. S. 19

We think that neither Article 25 nor Article 38 is applicable to the trial of an enemy combatant by a military commission for violations of the law of war. Article 2 of the Articles of War enumerates "the persons . . . subject to these articles," who are denominated, for purposes of the Articles, as "persons subject to military law." In general, the persons so enumerated are members of our own Army and of the personnel accompanying the Army. Enemy combatants are not included among them. Articles 12, 13, and 14, before the adoption of Article 15 in 1916, 39 Stat. 653, made all "persons subject to military law" amenable to trial by courts-martial for any offense made punishable by the Articles of War. Article 12 makes triable by general court martial "any other person who, by the law of war, is [triable] by military tribunals." Since Article 2, in its 1916 form, 39 Stat. 651, includes some persons who, by the law of war, were, prior to 1916, triable by military commission, it was feared by the proponents of the 1916 legislation that, in the absence of a saving provision, the authority given by Articles 12, 13, and 14 to try such persons before courts-martial might be construed to deprive the nonstatutory military commission of a portion of what was considered to be its traditional jurisdiction. To avoid this, and to preserve that jurisdiction intact, Article 15 was added to the Articles. [Footnote 7] It declared that

"The provisions of these articles

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conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of offenders or offenses that, by the law of war, may be lawfully triable by such military commissions."

By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction, as we held in Ex parte Quirin, to any use of the military commission contemplated by the common law of war. But it did not thereby make subject to the Articles of War persons other than those defined by Article 2 as being subject to the Articles, nor did it confer the benefits of the Articles upon such persons. The Articles recognized but one kind of military commission, not two. But they sanctioned the use of that one for the trial of two classes of persons, to one of which the Articles do, and to the other of which they do not, apply in such trials. Being of this latter class, petitioner cannot claim the benefits of the Articles, which are applicable only to the members of the other class. Petitioner, an enemy combatant, is therefore not a person made subject to the Articles of War by Article 2, and the military commission before which he was tried, though sanctioned, and its jurisdiction saved, by Article 15, was not convened by virtue of the Articles of War, but pursuant to the common law of war. It follows that the Articles of War, including Articles 25 and 38, were not applicable to petitioner's trial, and imposed no restrictions upon the procedure to be followed. The Articles left the control over the procedure in such a case where it had previously been -- with the military command.

Petitioner further urges that, by virtue of Article 63 of the Geneva Convention of 1929, 47 Stat. 2052, he is entitled to the benefits afforded by the 25th and 38th Articles of War to members of our own forces. Article 63 provides:

"Sentence may be pronounced against a prisoner of war

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only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power."

Since petitioner is a prisoner of war, and as the 25th and 38th Articles of War apply to the trial of any person in our own armed forces, it is said that Article 63 requires them to be applied in the trial of petitioner. But we think examination of Article 63 in its setting in the Convention plainly shows that it refers to sentence "pronounced against a prisoner of war" for an offense committed while a prisoner of war, and not for a violation of the law of war committed while a combatant.

Article 63 of the Convention appears in part 3, entitled "Judicial Suits," of Chapter 3, "Penalties Applicable to Prisoners of War," of § V, "Prisoners' Relations with the Authorities," one of the sections of Title III, "Captivity." All taken together relate only to the conduct and control of prisoners of war while in captivity as such. Chapter 1 of Section V, Article 42, deals with complaints of prisoners of war because of the conditions of captivity. Chapter 2, Articles 43 and 44, relates to those of their number chosen by prisoners of war to represent them.

Chapter 3 of Section V, Articles 45 through 67, is entitled "Penalties Applicable to Prisoners of War." Part 1 of that chapter, Articles 45 through 53, indicates what acts of prisoners of war committed while prisoners shall be considered offenses, and defines to some extent the punishment which the detaining power may impose on account of such offenses. [Footnote 8] Punishment is of two kinds -- "disciplinary" and

Page 327 U. S. 22

"judicial," the latter being the more severe. Article 52 requires that leniency be exercised in deciding whether an offense requires disciplinary or judicial punishment. Part 2 of Chapter 3 is entitled "Disciplinary Punishments," and further defines the extent of such punishment and the mode in which it may be imposed. Part 3, entitled "Judicial Suits," in which Article 63 is found, describes the procedure by which "judicial" punishment may be imposed. The three parts of Chapter 3, taken together, are thus a comprehensive description of the substantive offenses which prisoners of war may commit during their imprisonment, of the penalties which may be imposed on account of such offenses, and of the procedure by which guilt may be adjudged and sentence pronounced.

We think it clear, from the context of these recited provisions, that part 3, and Article 63 which it contains, apply only to judicial proceedings directed against a prisoner of war for offenses committed while a prisoner of war. Section

Page 327 U. S. 23

V gives no indication that this part was designed to deal with offenses other than those referred to in parts 1 and 2 of chapter 3.

We cannot say that the commission, in admitting evidence to which objection is now made, violated any act of Congress, treaty, or military command defining the commission's authority. For reasons already stated, we hold that the commission's rulings on evidence and on the mode of conducting these proceedings against petitioner are not reviewable by the courts, but only by the reviewing military authorities. From this viewpoint, it is unnecessary to consider what, in other situations, the Fifth Amendment might require, and as to that, no intimation one way or the other is to be implied. Nothing we have said is to be taken as indicating any opinion on the question of the wisdom of considering such evidence, or whether the action of a military tribunal in admitting evidence which Congress or controlling military command has directed to be excluded may be drawn in question by petition for habeas corpus or prohibition.

Effect of failure to give notice of the trial to the protecting power. Article 60 of the Geneva Convention of July 27, 1929, 47 Stat. 2051, to which the United States and Japan were signatories, provides that,

Petitioner relies on the failure to give the prescribed notice to the protecting power [Footnote 9] to establish want of authority in the commission to proceed with the trial.

Page 327 U. S. 24

For reasons already stated, we conclude that Article 60 of the Geneva Convention, which appears in part 3, Chapter 3, Section V, Title III of the Geneva Convention, applies only to persons who are subjected to judicial proceedings for offenses committed while prisoners of war. [Footnote 10]

Page 327 U. S. 25

It thus appears that the order convening the commission was a lawful order, that the commission was lawfully constituted, that petitioner was charged with violation of the law of war, and that the commission had authority to proceed with the trial, and, in doing so, did not violate any military, statutory, or constitutional command. We have considered, but find it unnecessary to discuss, other contentions which we find to be without merit. We therefore conclude that the detention of petitioner for trial and his detention upon his conviction, subject to the prescribed review by the military authorities, were lawful, and that the petition for certiorari, and leave to file in this Court

Page 327 U. S. 26

petitions for writs of habeas corpus and prohibition should be, and they are

Denied.

MR. JUSTICE JACKSON took no part in the consideration or decision of these cases.

* Together with No. 672, Yamashita v. Styer, Commanding General, on petition for writ of certiorari to the Supreme Court of the the Philippines. For earlier orders in these cases, see 326 U.S. 693-694.

[Footnote 1]

The Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties of the Versailles Peace Conference, which met after cessation of hostilities in the First World War, were of the view that violators of the law of war could be tried by military tribunals. See Report of the Commission, March 9, 1919, 14 Am.J.Int.L. 95, 121. See also memorandum of American commissioners concurring on this point, id. at p. 141. The treaties of peace concluded after World War I recognized the right of the Allies and of the United States to try such offenders before military tribunals. See Art. 228 of Treaty of Versailles, June 28, 1919; Art. 173 of Treaty of St. Germain, Sept. 10, 1919; Art. 157 of Treaty of Trianon, June 4, 1920.

The terms of the agreement which ended hostilities in the Boer War reserved the right to try, before military tribunals, enemy combatants who had violated the law of war. 95 British and Foreign State Papers (1901-1902) 160. See also trials cited in Colby, War Crimes, 23 Michigan Law Rev. 482, 496-497.

[Footnote 2]

See cases mentioned in Ex parte Quirin, supra, 317 U. S. 32, note 10, and in 2 Winthrop, supra, *1310-1311, n. 5; 14 Op.Atty.Gen. 249 (Modoc Indian Prisoners).

[Footnote 3]

Failure of an officer to take measures to prevent murder of an inhabitant of an occupied country committed in his presence. Gen.Orders No. 221, Hq.Div. of the Philippines, August 17, 1901. And, in Gen.Orders No. 264, Hq.Div. of the Philippines, September 9, 1901, it was held that an officer could not be found guilty for failure to prevent a murder unless it appeared that the accused had "the power to prevent" it.

[Footnote 4]

In its findings, the commission took account of the difficulties

"faced by the accused with respect not only to the swift and overpowering advance of American forces, but also to errors of his predecessors, weakness in organization, equipment, supply . . . , training, communication, discipline, and morale of his troops,"

and

"the tactical situation, the character, training and capacity of staff officers and subordinate commanders, as well as the traits of character of his troops."

It nonetheless found that petitioner had not taken such measures to control his troops as were "required by the circumstances." We do not weigh the evidence. We merely hold that the charge sufficiently states a violation against the law of war, and that the commission, upon the facts found, could properly find petitioner guilty of such a violation.

[Footnote 5]

Article 25 provides:

"A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, . . . Provided, That testimony by deposition may be adduced for the defense in capital cases."

[Footnote 6]

Article 38 provides:

"The President may, by regulations, which he may modify from time to time, prescribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals, which regulations shall, insofar as he shall deem practicable, apply the rules of evidence generally recognized in the trial of criminal cases in the district courts of the United States: Provided, That nothing contrary to or inconsistent with these articles shall be so prescribed. . . ."

[Footnote 7]

General Crowder, the Judge Advocate General, who appeared before Congress as sponsor for the adoption of Article 15 and the accompanying amendment of Article 25, in explaining the purpose of Article 15, said:

"Article 15 is new. We have included in article 2, as subject to military law, a number of persons who are also subject to trial by military commission. A military commission is our common law war court. It has no statutory existence, though it is recognized by statute law. As long as the articles embraced them in the designation 'persons subject to military law,' and provided that they might be tried by court-martial, I was afraid that, having made a special provision for their trial by court-martial [Arts. 12, 13, and 14], it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced. . . ."

Sen.R. 130, 64th Cong., 1st Sess., p. 40.

[Footnote 8]

Part 1 of Chapter 3, "General Provisions," provides in Articles 45 and 46 that prisoners of war are subject to the regulations in force in the armies of the detaining power, that punishments other than those provided "for the same acts for soldiers of the national armies" may not be imposed on prisoners of war, and that "collective punishment for individual acts" is forbidden. Article 47 provides that

"Acts constituting an offense against discipline, and particularly attempted escape, shall be verified immediately; for all prisoners of war, commissioned or not, preventive arrest shall be reduced to the absolute minimum. Judicial proceedings against prisoners of war shall be conducted as rapidly as the circumstances permit. . . . In all cases, the duration of preventive imprisonment shall be deducted from the disciplinary or the judicial punishment inflicted."

Article 48 provides that prisoners of war, after having suffered "the judicial of disciplinary punishment which has been imposed on them," are not to be treated differently from other prisoners, but provides that "prisoners punished as a result of attempted escape may be subjected to special surveillance." Article 49 recites that prisoners "given disciplinary punishment may not be deprived of the prerogatives attached to their rank." Articles 50 and 51 deal with escaped prisoners who have been retaken or prisoners who have attempted to escape. Article 52 provides:

"Belligerents shall see that the competent authorities exercise the greatest leniency in deciding the question of whether an infraction committed by a prisoner of war should be punished more than once because of the same act or the same count."

[Footnote 9]

Switzerland, at the time of the trial, was the power designated by Japan for the protection of Japanese prisoners of war detained by the United States, except in Hawaii. U.S.Dept. of State Bull. Vol. XIII, No. 317, p. 125.

[Footnote 10]

One of the items of the bill of particulars in support of the charge against petitioner specifies that he permitted members of the armed forces under his command to try and execute three named and other prisoners of war,

"subjecting to trial without prior notice to a representative of the protecting power, without opportunity to defend, and without counsel; denying opportunity to appeal from the sentence rendered; failing to notify the protecting power of the sentence pronounced, and executing a death sentence without communicating to the representative of the protecting power the nature and circumstances of the offense charged."

It might be suggested that, if Article 60 is inapplicable to petitioner, it is inapplicable in the cases specified, and that, hence, he could not be lawfully held or convicted on a charge of failing to require the notice provided for in Article 60 to be given.

As the Government insists, it does not appear from the charge and specifications that the prisoners in question were not charged with offenses committed by them as prisoners, rather than with offenses against the law of war committed by them as enemy combatants. But, apart from this consideration, independently of the notice requirements of the Geneva Convention, it is a violation of the law of war, on which there could be a conviction if supported by evidence, to inflict capital punishment on prisoners of war without affording to them opportunity to make a defense. 2 Winthrop, supra, *434, 435, 1241; Article 84, Oxford Manual; U.S. War Dept., Basic Field Manual, Rules of Land Warfare (1940) par. 356; Lieber's Code, G.O. No. 100 (1863) Instructions for the Government of Armies of the United States in the Field, par. 12; Spaight, War Rights on Land, 462, n.

Further, the commission, in making its findings, summarized as follows the charges on which it acted in three classes, any one of which, independently of the others if supported by evidence, would be sufficient to support the conviction: (1) execution or massacre without trial and maladministration generally of civilian internees and prisoners of war; (2) brutalities committed upon the civilian population, and (3) burning and demolition, without adequate military necessity, of a large number of homes, places of business, places of religious worship, hospitals, public buildings, and educational institutions.

The commission concluded: "(1) that a series of atrocities and other high crimes have been committed by members of the Japanese armed forces" under command of petitioner

"against people of the United States, their allies and dependencies; . . . that they were not sporadic in nature, but in many cases were methodically supervised by Japanese officers and noncommissioned officers;"

(2) that, during the period in question, petitioner "failed to provide effective control of [his] troops, as was required by the circumstances." The commission said:

"Where murder and rape and vicious, revengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them."

The commission made no finding of noncompliance with the Geneva Convention. Nothing has been brought to our attention from which we could conclude that the alleged noncompliance with Article 60 of the Geneva Convention had any relation to the commission's finding of a series of atrocities committed by members of the forces under petitioner's command, and that he failed to provide effective control of his troops, as was required by the circumstances, or which could support the petitions for habeas corpus on the ground that petitioner had been charged with or convicted for failure to require the notice prescribed by Article 60 to be given.

MR. JUSTICE MURPHY, dissenting.

The significance of the issue facing the Court today cannot be overemphasized. An American military commission has been established to try a fallen military commander of a conquered nation for an alleged war crime. The authority for such action grows out of the exercise of the power conferred upon Congress by Article I, § 8, Cl. 10 of the Constitution to "define and punish . . . Offenses against the Law of Nations. . . ." The grave issue raised by this case is whether a military commission so established and so authorized may disregard the procedural rights of an accused person as guaranteed by the Constitution, especially by the due process clause of the Fifth Amendment.

The answer is plain. The Fifth Amendment guarantee of due process of law applies to "any person" who is accused of a crime by the Federal Government or any of its agencies. No exception is made as to those who are accused of war crimes or as to those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is. The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color, or beliefs. They rise above any status of belligerency or outlawry. They survive any popular passion or frenzy of the moment. No court or legislature or executive, not even the mightiest

Page 327 U. S. 27

army in the world, can ever destroy them. Such is the universal and indestructible nature of the rights which the due process clause of the Fifth Amendment recognizes and protects when life or liberty is threatened by virtue of the authority of the United States.

The existence of these rights, unfortunately, is not always respected. They are often trampled under by those who are motivated by hatred, aggression, or fear. But, in this nation, individual rights are recognized and protected, at least in regard to governmental action. They cannot be ignored by any branch of the Government, even the military, except under the most extreme and urgent circumstances.

The failure of the military commission to obey the dictates of the due process requirements of the Fifth Amendment is apparent in this case. The petitioner was the commander of an army totally destroyed by the superior power of this nation. While under heavy and destructive attack by our forces, his troops committed many brutal atrocities and other high crimes. Hostilities ceased, and he voluntarily surrendered. At that point, he was entitled, as an individual protected by the due process clause of the Fifth amendment, to be treated fairly and justly according to the accepted rules of law and procedure. He was also entitled to a fair trial as to any alleged crimes, and to be free from charges of legally unrecognized crimes that would serve only to permit his accusers to satisfy their desires for revenge.

A military commission was appointed to try the petitioner for an alleged war crime. The trial was ordered to be held in territory over which the United States has complete sovereignty. No military necessity or other emergency demanded the suspension of the safeguards of due process. Yet petitioner was rushed to trial under an improper charge, given insufficient time to prepare an adequate defense, deprived of the benefits of some of the most

Page 327 U. S. 28

elementary rules of evidence, and summarily sentenced to be hanged. In all this needless and unseemly haste, there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity, or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the acts of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge. This indictment, in effect, permitted the military commission to make the crime whatever it willed, dependent upon its biased view as to petitioner's duties and his disregard thereof, a practice reminiscent of that pursued in certain less respected nations in recent years.

In my opinion, such a procedure is unworthy of the traditions of our people or of the immense sacrifices that they have made to advance the common ideals of mankind. The high feelings of the moment doubtless will be satisfied. But in the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today. No one in a position of command in an army, from sergeant to general, can escape those implications. Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision. But even more significant will be the hatred and ill will growing out of the application of this unprecedented procedure. That has been the inevitable effect of every method of punishment disregarding the element of personal culpability. The effect in this instance, unfortunately, will be magnified infinitely, for here we are dealing with the rights of man on an international level. To subject an enemy belligerent

Page 327 U. S. 29

to an unfair trial, to charge him with an unrecognized crime, or to vent on him our retributive emotions only antagonizes the enemy nation and hinders the reconciliation necessary to a peaceful world.

That there were brutal atrocities inflicted upon the helpless Filipino people, to whom tyranny is no stranger, by Japanese armed forces under the petitioner's command is undeniable. Starvation, execution, or massacre without trial, torture, rape, murder, and wanton destruction of property were foremost among the outright violations of the laws of war and of the conscience of a civilized world. That just punishment should be meted out to all those responsible for criminal acts of this nature is also beyond dispute. But these factors do not answer the problem in this case. They do not justify the abandonment of our devotion to justice in dealing with a fallen enemy commander. To conclude otherwise is to admit that the enemy has lost the battle, but has destroyed our ideals.

War breeds atrocities. From the earliest conflicts of recorded history to the global struggles of modern times, inhumanities, lust, and pillage have been the inevitable byproducts of man's resort to force and arms. Unfortunately, such despicable acts have a dangerous tendency to call forth primitive impulses of vengeance and retaliation among the victimized peoples. The satisfaction of such impulses, in turn, breeds resentment and fresh tension. Thus does the spiral of cruelty and hatred grow.

If we are ever to develop an orderly international community based upon a recognition of human dignity, it is of the utmost importance that the necessary punishment of those guilty of atrocities be as free as possible from the ugly stigma of revenge and vindictiveness. Justice must be tempered by compassion, rather than by vengeance. In this, the first case involving this momentous problem ever to reach this Court, our responsibility is both lofty and difficult. We must insist, within the confines of our proper

Page 327 U. S. 30

jurisdiction, that the highest standards of justice be applied in this trial of an enemy commander conducted under the authority of the United States. Otherwise, stark retribution will be free to masquerade in a cloak of false legalism. And the hatred and cynicism engendered by that retribution will supplant the great ideals to which this nation is dedicated.

This Court, fortunately, has taken the first and most important step toward insuring the supremacy of law and justice in the treatment of an enemy belligerent accused of violating the laws of war. Jurisdiction properly has been asserted to inquire "into the cause of restraint of liberty" of such a person. 28 U.S.C. § 452. Thus, the obnoxious doctrine asserted by the Government in this case -- to the effect that restraints of liberty resulting from military trials of war criminals are political matters completely outside the arena of judicial review -- has been rejected fully and unquestionably. This does not mean, of course, that the foreign affairs and policies of the nation are proper subjects of judicial inquiry. But, when the liberty of any person is restrained by reason of the authority of the United States, the writ of habeas corpus is available to test the legality of that restraint, even though direct court review of the restraint is prohibited. The conclusive presumption must be made, in this country at least, that illegal restraints are unauthorized and unjustified by any foreign policy of the Government, and that commonly accepted juridical standards are to be recognized and enforced. On that basis, judicial inquiry into these matters may proceed within its proper sphere.

The determination of the extent of review of war trials calls for judicial statesmanship of the highest order. The ultimate nature and scope of the writ of habeas corpus are within the discretion of the judiciary unless validly circumscribed by Congress. Here, we are confronted with a use of the writ under circumstances novel in the history of the

Page 327 U. S. 31

Court. For my own part, I do not feel that we should be confined by the traditional lines of review drawn in connection with the use of the writ by ordinary criminals who have direct access to the judiciary in the first instance. Those held by the military lack any such access; consequently the judicial review available by habeas corpus must be wider than usual in order that proper standards of justice may be enforceable.

But, for the purposes of this case, I accept the scope of review recognized by the Court at this time. As I understand it, the following issues in connection with war criminal trials are reviewable through the use of the writ of habeas corpus: (1) whether the military commission was lawfully created and had authority to try and to convict the accused of a war crime; (2) whether the charge against the accused stated a violation of the laws of war; (3) whether the commission, in admitting certain evidence, violated any law or military command defining the commission's authority in that respect, and (4) whether the commission lacked jurisdiction because of a failure to give advance notice to the protecting power as required by treaty or convention.

The Court, in my judgment, demonstrates conclusively that the military commission was lawfully created in this instance, and that petitioner could not object to its power to try him for a recognized war crime. Without pausing here to discuss the third and fourth issues, however, I find it impossible to agree that the charge against the petitioner stated a recognized violation of the laws of war.

It is important, in the first place, to appreciate the background of events preceding this trial. From October 9, 1944, to September 2, 1945, the petitioner was the Commanding General of the 14th Army Group of the Imperial Japanese Army, with headquarters in the Philippines. The reconquest of the Philippines by the armed forces of the United States began approximately at the time when

Page 327 U. S. 32

the petitioner assumed this command. Combined with a great and decisive sea battle, an invasion was made on the island of Leyte on October 20, 1944.

"In the six days of the great naval action, the Japanese position in the Philippines had become extremely critical. Most of the serviceable elements of the Japanese Navy had become committed to the battle, with disastrous results. The strike had miscarried, and General MacArthur's land wedge was firmly implanted in the vulnerable flank of the enemy. . . . There were 260,000 Japanese troops scattered over the Philippines, but most of them might as well have been on the other side of the world so far as the enemy's ability to shift them to meet the American thrusts was concerned. If General MacArthur succeeded in establishing himself in the Visayas, where he could stage, exploit, and spread under cover of overwhelming naval and air superiority, nothing could prevent him from overrunning the Philippines."

Biennial Report of the Chief of Staff of the United States Army, July 1, 1943, to June 30, 1945, to the Secretary of War, p. 74.

By the end of 1944, the island of Leyte was largely in American hands. And on January 9, 1945, the island of Luzon was invaded.

"Yamashita's inability to cope with General MacArthur's swift moves, his desired reaction to the deception measures, the guerrillas, and General Kenney's aircraft, combined to place the Japanese in an impossible situation. The enemy was forced into a piecemeal commitment of his troops."

Ibid., p. 78. It was at this time and place that most of the alleged atrocities took place. Organized resistance around Manila ceased on February 23. Repeated land and air assaults pulverized the enemy, and, within a few months, there was little left of petitioner's command except a few remnants which had gathered for a last stand among the precipitous mountains.

As the military commission here noted,

"The Defense established the difficulties faced by the Accused with respect

Page 327 U. S. 33

not only to the swift and overpowering advance of American forces, but also to the errors of his predecessors, weaknesses in organization, equipment, supply, with especial reference to food and gasoline, training, communication, discipline, and morale of his troops. It was alleged that the sudden assignment of Naval and Air Forces to his tactical command presented almost insurmountable difficulties. This situation was followed, the Defense contended, by failure to obey his orders to withdraw troops from Manila, and the subsequent massacre of unarmed civilians, particularly by Naval forces. Prior to the Luzon Campaign, Naval forces had reported to a separate ministry in the Japanese Government, and Naval Commanders may not have been receptive or experienced in this instance with respect to a joint land operation under a single commander who was designated from the Army Service."

The day of final reckoning for the enemy arrived in August, 1945. On September 3, the petitioner surrendered to the United States Army at Baguio, Luzon. He immediately became a prisoner of war, and was interned in prison in conformity with the rules of international law. On September 25, approximately three weeks after surrendering, he was served with the charge in issue in this case. Upon service of the charge, he was removed from the status of a prisoner of war and placed in confinement as an accused war criminal. Arraignment followed on October 8 before a military commission specially appointed for the case. Petitioner pleaded not guilty. He was also served on that day with a bill of particulars alleging 64 crimes by troops under his command. A supplemental bill alleging 59 more crimes by his troops was filed on October 29, the same day that the trial began. No continuance was allowed for preparation of a defense as to the supplemental bill. The trial continued uninterrupted until December 5, 1945. On December 7 petitioner was found guilty as charged, and was sentenced to be hanged.

Page 327 U. S. 34

The petitioner was accused of having

"unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes."

The bills of particular further alleged that specific acts of atrocity were committed by "members of the armed forces of Japan under the command of the accused." Nowhere was it alleged that the petitioner personally committed any of the atrocities, or that he ordered their commission, or that he had any knowledge of the commission thereof by members of his command.

The findings of the military commission bear out this absence of any direct personal charge against the petitioner. The commission merely found that atrocities and other high crimes

"have been committed by members of the Japanese armed forces under your command . . . ; that they were not sporadic in nature, but, in many cases, were methodically supervised by Japanese officers and noncommissioned officers . . . ; that, during the period in question, you failed to provide effective control of your troops, as was required by the circumstances."

In other words, read against the background of military events in the Philippines subsequent to October 9, 1944, these charges amount to this:

"We, the victorious American forces, have done everything possible to destroy and disorganize your lines of communication, your effective control of your personnel, your ability to wage war. In those respects, we have succeeded. We have defeated and crushed your forces. And now, we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively beseiging and eliminating your forces and blocking your ability to maintain effective control. Many terrible atrocities were committed by your disorganized troops. Because these atrocities were so widespread, we will not bother to charge or prove that you committed, ordered, or

Page 327 U. S. 35

condoned any of them. We will assume that they must have resulted from your inefficiency and negligence as a commander. In short, we charge you with the crime of inefficiency in controlling your troops. We will judge the discharge of your duties by the disorganization which we ourselves created in large part. Our standards of judgment are whatever we wish to make them."

Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander of a defeated force. To use the very inefficiency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies bears no resemblance to justice, or to military reality.

International law makes no attempt to define the duties of a commander of an army under constant and overwhelming assault, nor does it impose liability under such circumstances for failure to meet the ordinary responsibilities of command. The omission is understandable. Duties, as well as ability to control troops, vary according to the nature and intensity of the particular battle. To find an unlawful deviation from duty under battle conditions requires difficult and speculative calculations. Such calculations become highly untrustworthy when they are made by the victor in relation to the actions of a vanquished commander. Objective and realistic norms of conduct are then extremely unlikely to be used in forming a judgment as to deviations from duty. The probability that vengeance will form the major part of the victor's judgment is an unfortunate but inescapable fact. So great is that probability that international law refuses to recognize such a judgment as a basis for a war crime, however fair the judgment may be in a particular instance. It is this consideration that undermines the charge against the petitioner in this case. The indictment permits -- indeed compels -- the military commission of a victorious nation to

Page 327 U. S. 36

sit in judgment upon the military strategy and actions of the defeated enemy, and to use its conclusions to determine the criminal liability of an enemy commander. Life and liberty are made to depend upon the biased will of the victor, rather than upon objective standards of conduct.

The Court's reliance upon vague and indefinite references in certain of the Hague Conventions and the Geneva Red Cross Convention is misplaced. Thus, the statement in Article 1 of the Annex to Hague Convention No. IV of October 18, 1907, 36 Stat. 2277, 2295, to the effect that the laws, rights and duties of war apply to military and volunteer corps only if they are "commanded by a person responsible for his subordinates," has no bearing upon the problem in this case. Even if it has, the clause "responsible for his subordinates" fails to state to whom the responsibility is owed, or to indicate the type of responsibility contemplated. The phrase has received differing interpretations by authorities on international law. In Oppenheim, International Law (6th ed., rev. by Lauterpacht, 1940, vol. 2, p. 204, fn. 3) it is stated that

"The meaning of the word 'responsible' . . . is not clear. It probably means 'responsible to some higher authority,' whether the person is appointed from above or elected from below. . . ."

Another authority has stated that the word "responsible" in this particular context means "presumably to a higher authority," or "possibly it merely means one who controls his subordinates, and who therefore can be called to account for their acts." Wheaton, International Law (14th ed., by Keith, 1944, p. 172, fn. 30). Still another authority, Westlake, International Law (1907, Part II, p. 61), states that "probably the responsibility intended is nothing more than a capacity of exercising effective control." Finally, Edwards and Oppenheim, Land Warfare (1912, p. 19, par. 22) state that it is enough "if the commander of the corps is regularly or temporarily commissioned as an officer or is a person of

Page 327 U. S. 37

position and authority." It seems apparent beyond dispute that the word "responsible" was not used in this particular Hague Convention to hold the commander of a defeated army to any high standard of efficiency when he is under destructive attack; nor was it used to impute to him any criminal responsibility for war crimes committed by troops under his command under such circumstances.

The provisions of the other conventions referred to by the Court are, on their face, equally devoid of relevance or significance to the situation here in issue. Neither Article 19 of Hague Convention No. X, 36 Stat. 2371, 2389, nor Article 26 of the Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2092, refers to circumstances where the troops of a commander commit atrocities while under heavily adverse battle conditions. Reference is also made to the requirement of Article 43 of the Annex to Hague Convention No. IV, 36 Stat. 2295, 2306, that the commander of a force occupying enemy territory

"shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

But the petitioner was more than a commander of a force occupying enemy territory. He was the leader of an army under constant and devastating attacks by a superior reinvading force. This provision is silent as to the responsibilities of a commander under such conditions as that.

Even the laws of war heretofore recognized by this nation fail to impute responsibility to a fallen commander for excesses committed by his disorganized troops while under attack. Paragraph 347 of the War Department publication, Basic Field Manual, Rules of Land Warfare, FM 27-10 (1940), states the principal offenses under the laws of war recognized by the United States. This includes all of the atrocities which the Japanese troops were alleged to have committed in this instance. Originally,

Page 327 U. S. 38

this paragraph concluded with the statement that

"The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall."

The meaning of the phrase "under whose authority they are committed" was not clear. On November 15, 1944, however, this sentence was deleted and a new paragraph was added relating to the personal liability of those who violate the laws of war. Change 1, FM 27-10. The new paragraph 345.1 states that

"Individuals and organizations who violate the accepted laws and customs of war may be punished therefor. However, the fact that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defense or in mitigation of punishment. The person giving such orders may also be punished."

From this, the conclusion seems inescapable that the United States recognizes individual criminal responsibility for violations of the laws of war only as to those who commit the offenses or who order or direct their commission. Such was not the allegation here. Cf. Article 67 of the Articles of War, 10 U.S.C. § 1539.

There are numerous instances, especially with reference to the Philippine Insurrection in 1900 and 1901, where commanding officers were found to have violated the laws of war by specifically ordering members of their command to commit atrocities and other war crimes. Francisco Frani, G.O. 143, Dec. 13, 1900, Hq. Div. Phil.; Eugenio Fernandez and Juan Soriano, G.O. 28, Feb. 6, 1901, Hq.Div.Phil.; Ciriaco Cabungal, G.O. 188, Jul. 22, 1901, Hq.Div.Phil.; Natalio Valencia, G.O. 221, Aug. 17, 1901, Hq.Div.Phil.; Aniceta Angeles, G.O. 246, Sept. 2, 1901, Hq.Div.Phil.; Francisco Braganza, G.O. 291, Sept. 26, 1901, Hq.Div.Phil.; Lorenzo Andaya, G.O. 328, Oct. 25, 1901, Hq.Div.Phil. And, in other cases, officers have been held

Page 327 U. S. 39

liable where they knew that a crime was to be committed, had the power to prevent it, and failed to exercise that power. Pedro Abad Santos, G.O. 130, June 19, 1901, Hq.Div.Phil. Cf. Pedro A. Cruz, G.O. 264, Sept. 9, 1901, Hq.Div.Phil. In no recorded instance, however, has the mere inability to control troops under fire or attack by superior forces been made the basis of a charge of violating the laws of war.

The Government claims that the principle that commanders in the field are bound to control their troops has been applied so as to impose liability on the United States in international arbitrations. Case of Jeannaud, 1880, 3 Moore, International Arbitrations (1898) 3000; Case of The Zafiro, 1910, 5 Hackworth, Digest of International Law (1943) 707. The difference between arbitrating property rights and charging an individual with a crime against the laws of war is too obvious to require elaboration. But even more significant is the fact that even these arbitration cases fail to establish any principle of liability where troops are under constant assault and demoralizing influences by attacking forces. The same observation applies to the common law and statutory doctrine, referred to by the Government, that one who is under a legal duty to take protective or preventive action is guilty of criminal homicide if he willfully or negligently omits to act and death is proximately caused. State v. Harrison, 107 N.J.L. 213, 152 A. 867; State v. Irvine, 126 La. 434, 52 So. 567; Holmes, The Common Law, p. 278. No one denies that inaction or negligence may give rise to liability, civil or criminal. But it is quite another thing to say that the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the absence of personal culpability. Had there been some element of knowledge or direct connection with the atrocities, the problem would be entirely different. Moreover, it must be remembered that we are not dealing

Page 327 U. S. 40

here with an ordinary tort or criminal action; precedents in those fields are of little if any value. Rather, we are concerned with a proceeding involving an international crime, the treatment of which may have untold effects upon the future peace of the world. That fact must be kept uppermost in our search for precedent.

The only conclusion I can draw is that the charge made against the petitioner is clearly without precedent in international law or in the annals of recorded military history. This is not to say that enemy commanders may escape punishment for clear and unlawful failures to prevent atrocities. But that punishment should be based upon charges fairly drawn in light of established rules of international law and recognized concepts of justice.

But the charge in this case, as previously noted, was speedily drawn and filed but three weeks after the petitioner surrendered. The trial proceeded with great dispatch, without allowing the defense time to prepare an adequate case. Petitioner's rights under the due process clause of the Fifth Amendment were grossly and openly violated without any justification. All of this was done without any thorough investigation and prosecution of those immediately responsible for the atrocities, out of which might have come some proof or indication of personal culpability on petitioner's part. Instead the loose charge was made that great numbers of atrocities had been committed and that petitioner was the commanding officer; hence he must have been guilty of disregard of duty. Under that charge the commission was free to establish whatever standard of duty on petitioner's part that it desired. By this flexible method a victorious nation may convict and execute any or all leaders of a vanquished foe, depending upon the prevailing degree of vengeance and the absence of any objective judicial review.

At a time like this when emotions are understandably high it is difficult to adopt a dispassionate attitude toward

Page 327 U. S. 41

a case of this nature. Yet now is precisely the time when that attitude is most essential. While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others. We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. And it is applicable in both war and peace. We must act accordingly. Indeed, an uncurbed spirt of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit. The people's faith in the fairness and objectiveness of the law can be seriously undercut by that spirit. The fires of nationalism can be further kindled. And the hearts of all mankind can be embittered and filled with hatred, leaving forlorn and impoverished the noble ideal of malice toward none and charity to all. These are the reasons that lead me to dissent in these terms.

MR. JUSTICE RUTLEDGE, dissenting.

Not with ease does one find his views at odds with the Court's in a matter of this character and gravity. Only the most deeply felt convictions could force one to differ. That reason alone leads me to do so now, against strong considerations for withholding dissent.

More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law. In this stage of war's aftermath, it is too early for Lincoln's great spirit, best lighted in the Second Inaugural, to have wide hold for the treatment of foes. It is not too early -- it is never too early -- for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process

Page 327 U. S. 42

of law in the trial and punishment of men -- that is, of all men, whether citizens, aliens, alien enemies, or enemy belligerents. It can become too late.

This long held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered. If we need not or cannot be magnanimous, we can keep our own law on the plane from which it has not descended hitherto and to which the defeated foes' never rose.

With all deference to the opposing views of my brethren, whose attachment to that tradition needless to say is no less than my own, I cannot believe in the face of this record that the petitioner has had the fair trial our Constitution and laws command. Because I cannot reconcile what has occurred with their measure, I am forced to speak. At bottom, my concern is that we shall not forsake in any case, whether Yamashita's or another's, the basic standards of trial which, among other guaranties, the nation fought to keep; that our system of military justice shall not, alone among all our forms of judging, be above or beyond the fundamental law or the control of Congress within its orbit of authority, and that this Court shall not fail in its part under the Constitution to see that these things do not happen.

This trial is unprecedented in our history. Never before have we tried and convicted an enemy general for action taken during hostilities or otherwise in the course of military operations or duty. Much less have we condemned one for failing to take action. The novelty is not lessened by the trial's having taken place after hostilities ended and the enemy, including the accused, had surrendered. Moreover, so far as the time permitted for our

Page 327 U. S. 43

consideration has given opportunity, I have not been able to find precedent for the proceeding in the system of any nation founded in the basic principles of our constitutional democracy, in the laws of war, or in other internationally binding authority or usage.

The novelty is legal, as well as historical. We are on strange ground. Precedent is not all-controlling in law. There must be room for growth, since every precedent has an origin. But it is the essence of our tradition for judges, when they stand at the end of the marked way, to go forward with caution keeping sight, so far as they are able, upon the great landmarks left behind and the direction they point ahead. If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice, including this one, both in their own judging and in their new creation. The proceedings in this case veer so far from some of our time-tested road signs that I cannot take the large strides validating them would demand.

I

It is not in our tradition for anyone to be charged with crime which is defined after his conduct, alleged to be criminal, has taken place, [Footnote 2/1] or in language not sufficient to inform him of the nature of the offense or to enable him to make defense. [Footnote 2/2] Mass guilt we do not impute to individuals, perhaps in any case, but certainly in none where the person is not charged or shown actively to have participated in or knowingly to have failed in taking action to

Page 327 U. S. 44

prevent the wrongs done by others, having both the duty and the power to do so.

It is outside our basic scheme to condemn men without giving reasonable opportunity for preparing defense; [Footnote 2/3] in capital or other serious crimes, to convict on "official documents . . . ; affidavits; . . . documents or translations thereof; diaries . . photographs, motion picture films, and . . . newspapers" [Footnote 2/4] or on hearsay, once, twice or thrice removed, [Footnote 2/5] more particularly when the documentary evidence or some of it is prepared ex parte by the prosecuting authority and includes not only opinion but conclusions of guilt. Nor in such cases do we deny the rights of confrontation of witnesses and cross-examination. [Footnote 2/6]

Our tradition does not allow conviction by tribunals both authorized and bound [Footnote 2/7] by the instrument of their creation to receive and consider evidence which is expressly excluded by Act of Congress or by treaty obligation; nor is it in accord with our basic concepts to make the tribunal, specially constituted for the particular trial, regardless of those prohibitions, the sole and exclusive judge of the credibility,

Page 327 U. S. 45

probative value, and admissibility of whatever may be tendered as evidence.

The matter is not one merely of the character and admissibility of evidence. It goes to the very competency of the tribunal to try and punish consistently with the Constitution, the laws of the United States made in pursuance thereof, and treaties made under the nation's authority.

All these deviations from the fundamental law, and others, occurred in the course of constituting the commission, the preparation for trial and defense, the trial itself, and therefore, in effect, in the sentence imposed. Whether taken singly in some instances as departures from specific constitutional mandates or in totality as in violation of the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, a trial so vitiated cannot withstand constitutional scrutiny.

One basis protection of our system, and one only, petitioner has had. He has been represented by able counsel, officers of the army he fought. Their difficult assignment has been done with extraordinary fidelity not only to the accused, but to their high conception of military justice, always to be administered in subordination to the Constitution and consistent Acts of Congress and treaties. But, as will appear, even this conceded shield was taken away in much of its value by denial of reasonable opportunity for them to perform their function.

On this denial and the commission's invalid constitution specifically, but also more generally upon the totality of departures from constitutional norms inherent in the idea of a fair trial, I rest my judgment that the commission was without jurisdiction from the beginning to try or punish the petitioner, and that, if it had acquired jurisdiction then, its power to proceed was lost in the course of what was done before and during trial.

Only on one view, in my opinion, could either of these conclusions be avoided. This would be that an enemy

Page 327 U. S. 46

belligerent in petitioner's position is altogether beyond the pale of constitutional protection, regardless of the fact that hostilities had ended and he had surrendered with his country. The Government has so argued, urging that we are still at war with Japan, and all the power of the military effective during active hostilities in theaters of combat continues in full force, unaffected by the events of August 14, 1945, and after.

In this view, the action taken here is one of military necessity, exclusively within the authority of the President as Commander-in-Chief and his military subordinates to take in warding off military danger and subject to no judicial restraint on any account, although, somewhat inconsistently, it is said this Court may "examine" the proceedings generally.

As I understand the Court, this is in substance the effect of what has been done. For I cannot conceive any instance of departure from our basic concepts of fair trial if the failures here are not sufficient to produce that effect.

We are technically still at war, because peace has not been negotiated finally or declared. But there is no longer the danger which always exists before surrender and armistice. Military necessity does not demand the same measures. The nation may be more secure now than at any time after peace is officially concluded. In these facts is one great difference from Ex parte Quirin, 317 U. S. 1. Punitive action taken now can be effective only for the next war, for purposes of military security. And enemy aliens, including belligerents, need the attenuated protections our system extends to them more now than before hostilities ceased or than they may after a treaty of peace is signed. Ample power there is to punish them or others for crimes, whether under the laws of war during its course or later during occupation. There can be no question of that. The only question is how it shall be done, consistently

Page 327 U. S. 47

with universal constitutional commands or outside their restricting effects. In this sense, I think the Constitution follows the flag.

The other thing to be mentioned in order to be put aside is that we have no question here of what the military might have done in a field of combat. There, the maxim about the law becoming silent in the noise of arms applies. The purpose of battle is to kill. But it does not follow that this would justify killing by trial after capture or surrender, without compliance with laws or treaties made to apply in such cases, whether trial is before or after hostilities end.

I turn now to discuss some of the details of what has taken place. My basic difference is with the Court's view that provisions of the Articles of War and of treaties are not made applicable to this proceeding, and with its ruling that, absent such applicable provisions, none of the things done so vitiated the trial and sentence as to deprive the commission of jurisdiction.

My Brother MURPHY has discussed the charge with respect to the substance of the crime. With his conclusions in this respect, I agree. My own primary concern will be with the constitution of the commission and other matters taking place in the course of the proceedings, relating chiefly to the denial of reasonable opportunity to prepare petitioner's defense and the sufficiency of the evidence, together with serious questions of admissibility, to prove on offense, all going, as I think, to the commission's jurisdiction.

Necessarily, only a short sketch can be given concerning each matter. And it may be stated at the start that, although it was ruled in Ex parte Quirin, supra, that this Court had no function to review the evidence, it was not there or elsewhere determined that it could not ascertain whether conviction is founded upon evidence expressly excluded by Congress or treaty; nor does the Court purport to do so now.

Page 327 U. S. 48

II

Invalidity of the Commission's Constitution

The fountainhead of the commission's authority was General MacArthur's directive by which General Styer was ordered to and pursuant to which he did proceed with constituting the commission. [Footnote 2/8] The directive was accompanied by elaborate and detailed rules and regulations prescribing the procedure and rules of evidence to be followed, of which, for present purposes, Section 16, set forth below, [Footnote 2/9] is crucial.

Page 327 U. S. 49

Section 16, as will be noted, permits reception of documents, reports, affidavits, depositions, diaries, letters, copies of documents or other secondary evidence of their contents, hearsay, opinion evidence and conclusions -- in fact, of anything which, in the commission's opinion, "would be of assistance in proving or disproving the charge," without any of the usual modes of authentication.

A more complete abrogation of customary safeguards relating to the proof, whether in the usual rules of evidence or any reasonable substitute and whether for use in the trial of crime in the civil courts or military tribunals, hardly could have been made. So far as the admissibility and probative value of evidence was concerned, the directive made the commission a law unto itself.

It acted accordingly. As against insistent and persistent objection to the reception of all kinds of "evidence," oral, documentary and photographic, for nearly every kind of defect under any of the usual prevailing standards for admissibility and probative value, the commission not only consistently ruled against the defense, but repeatedly stated it was bound by the directive to receive the kinds of evidence it specified, [Footnote 2/10] reprimanded counsel for continuing to make objection, declined to hear further objections, and, in more than one instance during the course of the proceedings, reversed its rulings favorable to the defense where initially it had declined to receive what the prosecution offered. Every conceivable kind of statement, rumor, report at first, second, third or further hand, written, printed, or oral, and one "propaganda" film were allowed to come in, most of this relating to atrocities committed

Page 327 U. S. 50

by troops under petitioner's command throughout the several thousand islands of the Philippine Archipelago during the period of active hostilities covered by the American forces' return to and recapture of the Philippines. [Footnote 2/11]

The findings reflect the character of the proof and the charge. The statement quoted above [Footnote 2/12] gives only a numerical idea of the instances in which ordinary safeguards in reception of written evidence were ignored. In addition to these 423 "exhibits," the findings state the commission "has heard 286 persons during the course of this trial, most of whom have given eye-witness accounts of what they endured or what they saw."

But there is not a suggestion in the findings that petitioner personally participated in, was present at the occurrence of, or ordered any of these incidents, with the exception of the wholly inferential suggestion noted below. Nor is there any express finding that he knew of any one of the incidents in particular or of all taken together. The only inferential findings that he had knowledge, or that the commission so found, are in the statement that "the crimes alleged to have been permitted by the accused in violation of the laws of war may be grouped into three categories" set out below, [Footnote 2/13] in the further statement that

"the prosecution

Page 327 U. S. 51

presented evidence to show that the crimes were so extensive and so widespread, both as to time and area, [Footnote 2/14] that they must either have been willfully permitted by the accused or secretly ordered by"

him, and in the conclusion of guilt and the sentence. [Footnote 2/15] (Emphasis added.) Indeed, the commission's ultimate findings [Footnote 2/16] draw no express conclusion of knowledge, but state only two things: (1) the fact of widespread atrocities and crimes; (2) that petitioner "failed to provide effective control . . . as required by the circumstances."

This vagueness, if not vacuity, in the findings runs throughout the proceedings, from the charge itself, through the proof and the findings, to the conclusion. It affects

Page 327 U. S. 52

the very gist of the offense -- whether that was willful, informed, and intentional omission to restrain and control troops known by petitioner to be committing crimes, or was only a negligent failure on his part to discover this and take whatever measures he then could to stop the conduct.

Although it is impossible to determine from what is before us whether petitioner in fact has been convicted of one or the other or of both these things, [Footnote 2/17] the case has been

Page 327 U. S. 53

presented on the former basis and, unless, as is noted below, there is fatal duplicity, it must be taken that the crime charged and sought to be proved was only the failure, with knowledge, to perform the commander's function of control, although the Court's opinion nowhere expressly declares that knowledge was essential to guilt or necessary to be set forth in the charge.

It is in respect to this feature especially, quite apart from the reception of unverified rumor, report, etc., that perhaps the greatest prejudice arose from the admission of untrustworthy, unverified, unauthenticated evidence which could not be probed by cross-examination or other means of testing credibility, probative value, or authenticity.

Counsel for the defense have informed us in the brief and at the argument that the sole proof of knowledge introduced at the trial was in the form of ex parte affidavits and depositions. Apart from what has been excerpted from the record in the applications and the briefs and such portions of the record as I have been able to examine, it has been impossible for me fully to verify counsel's statement in this respect. But the Government has not disputed it, and it has maintained that we have no right to examine the record upon any question "of evidence." Accordingly, without concession to that view, the statement of counsel is taken for the fact . And, in that state of things, petitioner has been convicted of a crime in which knowledge is an essential element, with no proof of knowledge other than what would be inadmissible in any other capital case or proceeding under our system, civil or military, and which, furthermore, Congress has expressly commanded shall not be received in such cases tried by military commissions and other military tribunals. [Footnote 2/18]

Moreover, counsel assert in the brief, and this also is not denied, that the sole proof made of certain of the specifications

Page 327 U. S. 54

in the bills of particulars was by ex parte affidavits. It was in relation to this also vital phase of the proof that there occurred one of the commission's reversals of its earlier rulings in favor of the defense [Footnote 2/19] -- a fact, in itself, conclusive demonstration of the necessity to the prosecution's case of the prohibited type of evidence and of its prejudicial effects upon the defense.

These two basic elements in the proof -- namely, proof of knowledge of the crimes and proof of the specifications in the bills, that is, of the atrocities themselves -- constitute the most important instances, perhaps, if not the most flagrant, [Footnote 2/20]

Page 327 U. S. 55

of departure not only from the express command of Congress against receiving such proof, but from the whole British-American tradition of the common law and the Constitution. Many others occurred which there is neither time nor space to mention. [Footnote 2/21]

Petitioner asserts, and there can be no reason to doubt, that, by the use of all this forbidden evidence, he was deprived of the right of cross-examination and other means to establish the credibility of the deponents or affiants, not to speak of the authors of reports, letters, documents, and newspaper articles; of opportunity to determine whether the multitudinous crimes specified in the bills were committed in fact by troops under his command or by naval or air force troops not under his command at the time alleged; to ascertain whether the crimes attested were isolated acts of individual soldiers or were military acts committed by troop units acting under supervision of officers; and, finally, whether, "in short, there was such a pattern' of conduct as the prosecution alleged and its whole theory of the crime and the evidence required to be made out."

He points out in this connection that the commission based its decision on a finding as to the extent and number

Page 327 U. S. 56

of the atrocities, and that this, of itself, establishes the prejudicial effect of the affidavits, etc., and of the denial resulting from their reception of any means of probing the evidence they contained, including all opportunity for cross-examination. Yet it is said there is no sufficient showing of prejudice. The effect could not have been other than highly prejudicial. The matter is not one merely of "rules of evidence." It goes, as will appear more fully later, to the basic right of defense, including some fair opportunity to test probative value.

Insufficient as this recital is to give a fair impression of what was done, it is enough to show that this was no trial in the traditions of the common law and the Constitution. If the tribunal itself was not strange to them otherwise, it was in its forms and modes of procedure, in the character and substance of the evidence it received, in the denial of all means to the accused and his counsel for testing the evidence, in the brevity and ambiguity of its findings made upon such a mass of material, and, as will appear, in the denial of any reasonable opportunity for preparation of the defense. Because this last deprivation not only is important in itself, but is closely related to the departures from all limitations upon the character of and modes of making the proof, it will be considered before turning to the important legal questions relating to whether all these violations of our traditions can be brushed aside as not forbidden by the valid Acts of Congress, treaties, and the Constitution, in that order. If all these traditions can be so put away, then indeed will we have entered upon a new but foreboding era of law.

III

Denial of Opportunity to Prepare Defense

Petitioner surrendered September 3, 1945, and was interned as a prisoner of war in conformity with Article 9

Page 327 U. S. 57

of the Geneva Convention of July 27, 1929. [Footnote 2/22] He was served with the charge on September 25, and put in confinement as an accused war criminal. On October 8, he was arraigned, and pleaded not guilty. On October 29, the trial began, and it continued until December 7, when sentence was pronounced, exactly four years, almost to the hour, from the attack on Pearl Harbor.

On the day of arraignment, October 8, three weeks before the trial began, petitioner was served with a bill of particulars specifying 64 items setting forth a vast number of atrocities and crimes allegedly committed by troops under his command. [Footnote 2/23] The six officers appointed as defense counsel thus had three weeks -- it is true, at the prosecution's suggestion, a week longer than they sought at first -- to investigate and prepare to meet all these items and the large number of incidents they embodied, many of which had occurred in distant islands of the archipelago. There is some question whether they then anticipated the full scope and character of the charge or the evidence they would have to meet. But, as will appear, they worked night and day at the task. Even so, it would have been impossible to do thoroughly had nothing more occurred.

But there was more. On the first day of the trial, October 29, the prosecution filed a supplemental bill of particulars

Page 327 U. S. 58

containing 59 more specifications of the same general character, involving perhaps as many incidents occurring over an equally wide area. [Footnote 2/24] A copy had been given the defense three days earlier. One item, No. 89, charged that American soldiers, prisoners of war, had been tried and executed without notice having been given to the protecting power of the United States in accordance with the requirements of the Geneva Convention, which it is now argued, strangely, the United States was not required to observe as to petitioner's trial. [Footnote 2/25]

But what is more important is that defense counsel, as they felt was their duty, at once moved for a continuance. [Footnote 2/26] The application was denied. However the commission indicated that if, at the end of the prosecution's presentation

Page 327 U. S. 59

concerning the original bill, counsel should "believe they require additional time . . . , the Commission will consider such a motion at that time," before taking up the items of the supplemental bill. Counsel again indicated, without other result, that time was desired at once "as much, if not more" to prepare for cross-examination "as the Prosecutor's case goes in" as to prepare affirmative defense.

On the next day, October 30, the commission interrupted the prosecutor to say it would not then listen to testimony or discussion upon the supplemental bill. After colloquy, it adhered to its prior ruling and, in response to inquiry from the prosecution, the defense indicated it would require two weeks before it could proceed on the supplemental bill. On November 1, the commission ruled it would not receive affidavits without corroboration by witnesses on any specification, a ruling reversed four days later.

On November 2, after the commission had received an affirmative answer to its inquiry whether the defense was prepared to proceed with an item in the supplemental bill which the prosecution proposed to prove, it announced:

"Hereafter, then, unless there is no [sic] objection by the Defense, the Commission will assume that you are prepared to proceed with any items in the Supplemental Bill."

On November 8, the question arose again upon the prosecution's inquiry as to when the defense would be ready to proceed on the supplemental bill, the prosecutor adding:

"Frankly, sir, it took the War Crimes Commission some three months to investigate these matters, and I cannot conceive of the Defense undertaking a similar investigation with any less period of time."

Stating it realized "the tremendous burden which we have placed on the Defense" and its "determination to give them the time they require," the commission again adhered to its ruling of October 29.

Page 327 U. S. 60

Four days later, the commission announced it would grant a continuance "only for the most urgent and unavoidable reasons." [Footnote 2/27]

On November 20, when the prosecution rested, senior defense counsel moved for a reasonable continuance, recalling the commission's indication that it would then consider such a motion and stating that, since October 29, the defense had been "working night and day," with "no time whatsoever to prepare any affirmative defense," since counsel had been fully occupied trying "to keep up with the new Bill of Particulars."

The commission thereupon retired for deliberation and, on resuming its s

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IN RE YAMASHITA, 327 U. S. 1 (1946)

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In re Yamashita, 327 U.S. 1 (1946)

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II

III