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 Ex parte
Vallandingham, 1 Wall. 243;
In re Vidal,
179 U. S. 126;
cf. Ex parte Quirin, supra, 317 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 Dynes v.
Hoover, 20 How. 5,
61 U. S. 81;
Runkle v. United
States, 122
Page 327 U. S. 9
U.S. 543,
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 Ex parte
Milligan, 4 Wall. 2,
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 United States v.
Anderson, 9 Wall. 56,
76 U. S. 70;
The Protector,
12 Wall. 700,
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 Stewart v.
Kahn, 11 Wall. 493,
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,
Page 327 U. S. 13
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
Page 327 U. S. 16
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
Page 327 U. S. 18
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
Page 327 U. S. 20
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
Page 327 U. S. 21
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,
"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."
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 sessions shortly, denied the motion. Counsel then
asked for "a short recess of a day." The commission suggested a
recess until 1:30 in the afternoon. Counsel responded this would
not suffice. The commission stated it felt "that the Defense should
be prepared, at least on its opening statement," to which senior
counsel answered: "We haven't had time to do that, sir." The
commission then recessed until 8:30 the following morning.
Further comment is hardly required. Obviously the burden placed
upon the defense, in the short time allowed for preparation on the
original bill, was not only "tremendous." In view of all the facts,
it was an impossible one, even though the time allowed was a week
longer than asked. But the grosser vice was later, when the burden
was more than doubled by service of the supplemental bill on the
eve of trial, a procedure which, taken in connection with the
consistent denials of continuance and the commission's later
reversal of its rulings favorable to the defense
Page 327 U. S. 61
was wholly arbitrary, cutting off the last vestige of adequate
chance to prepare defense and imposing a burden the most able
counsel could not bear. This sort of thing has no place in our
system of justice, civil or military. Without more, this wide
departure from the most elementary principles of fairness vitiated
the proceeding. When added to the other denials of fundamental
right sketched above, it deprived the proceeding of any semblance
of trial as we know that institution.
IV
Applicability of the Articles of War
The Court's opinion puts the proceeding and the petitioner,
insofar as any rights relating to his trial and conviction are
concerned, wholly outside the Articles of War. In view of what has
taken place, I think the decision's necessary effect is also to
place them entirely beyond limitation and protection, respectively,
by the Constitution. I disagree as to both conclusions or
effects.
The Court rules that Congress has not made Article 25 and 38
applicable to this proceeding. It think it has made them applicable
to this and all other military commissions or tribunals. If so, the
commission not only lost all power to punish petitioner by what
occurred in the proceedings. It never acquired jurisdiction to try
him. For the directive by which it was constituted, in the
provisions of Section 16, [
Footnote
2/28] was squarely in conflict with Articles 25 and 38 of the
Articles of War, [
Footnote 2/29]
and therefore was void.
Page 327 U. S. 62
Article 25 allows reading of depositions in evidence, under
prescribed conditions, in the plainest terms "before any military
court or commission in any case not capital," providing, however,
that "testimony by deposition may be adduced
for the defense in
capital cases." (Emphasis added.) This language clearly and
broadly covers every kind of military tribunal, whether "court" or
"commission." It covers all capital cases. It makes no exception or
distinction for any accused.
Article 38 authorizes the President, by regulations, to
prescribe procedure, including modes of proof, even more
all-inclusively, if possible, "in cases before courts-martial,
courts of inquiry, military commissions, and other military
tribunals." Language could not be more broadly inclusive. No
exceptions are mentioned or suggested, whether of tribunals or of
accused persons. Every kind of military body for performing the
function of trial is covered. That is clear from the face of the
Article.
Article 38, moreover, limits the President's power. He is, so
far as practicable, to prescribe "the rules of evidence generally
recognized in the trial of criminal cases in the
Page 327 U. S. 63
district courts of the United States," a clear mandate that
Congress intended all military trials to conform as closely as
possible to our customary procedural and evidentiary protections,
constitutional and statutory, for accused persons. But there are
also two unqualified limitations, one "that nothing contrary to or
inconsistent with these articles (specifically here Article 25)
shall be so prescribed," the other "that all rules made in
pursuance of this article shall be laid before the Congress
annually."
Notwithstanding these broad terms, the Court, resting chiefly on
Article 2, concludes the petitioner was not among the persons there
declared to be subject to the Articles of War, and therefore the
commission which tries him is not subject to them. That Article
does not cover prisoners of war or war criminals. Neither does it
cover civilians in occupied territories, theaters of military
operations, or other places under military jurisdiction within or
without the United States or territory subject to its sovereignty,
whether they be neutrals or enemy aliens, even citizens of the
United States, unless they are connected in the manner Article 2
prescribes with our armed forces, exclusive of the Navy.
The logic which excludes petitioner on the basic that prisoners
of war are not mentioned in Article 2 would exclude all these. I
strongly doubt the Court would go so far, if presented with a trial
like this in such instances. Nor does it follow necessarily that,
because some persons may not be mentioned in Article 2, they can be
tried without regard to any of the limitations placed by any of the
other Articles upon military tribunals.
Article 2, in defining persons "subject to the articles of war,"
was, I think, specifying those to whom the Articles in general were
applicable. And there is no dispute that most of the Articles are
not applicable to the petitioner. It does not follow, however, and
Article 2 does not provide, that there may not be in the Articles
specific provisions
Page 327 U. S. 64
covering persons other than those specified in Article 2. Had it
so provided, Article 2 would have been contradictory not only of
Articles 25 and 38, but also of Article 15, among others.
In 1916, when the last general revision of the Articles of War
took place, [
Footnote 2/30] for
the first time, certain of the Articles were specifically made
applicable to military commissions. Until then, they had applied
only to courts-martial. There were two purposes -- the first to
give statutory recognition to the military commission without loss
of prior jurisdiction, and the second to give those tried before
military commissions some of the more important protections
afforded persons tried by courts-martial.
In order to effectuate the first purpose, the Army proposed
Article 15. [
Footnote 2/31] To
effectuate the second purpose, Articles
Page 327 U. S. 66
25 and 38 and several others were proposed. [
Footnote 2/32] But, as the Court now construes the
Articles of War, they have no application to military commissions
before which alleged offenders against the laws of war are tried.
What the Court holds, in effect, is that there are two types of
military commissions, one to try offenses which might be cognizable
by a court-martial, the other to try war crimes, and that Congress
intended the Articles of War referring in terms to military
commissions without exception to be applicable only to the first
type.
Page 327 U. S. 67
This misconceives both the history of military commissions and
the legislative history of the Articles of War. There is only one
kind of military commission. It is true, as the history noted
shows, that what is now called "the military commission" arose from
two separate military courts instituted during the Mexican War. The
first military court, called by General Scott a "military
commission," was given jurisdiction in Mexico over criminal
offenses of the class cognizable by civil courts in time of peace.
The other military court, called a "counsel of war" was given
jurisdiction over offenses against the laws of war. Winthrop,
Military Law and Precedents (2d ed., reprinted 1920) *1298-1299.
During the Civil War,
"the two jurisdictions of the earlier commission and council
respectively . . . [were] united in the . . . war court, for which
the general designation of 'military commission' was retained as
the preferable one."
Winthrop,
supra at *1299. Since that time, there has
been only one type of military tribunal, called the military
commission, though it may exercise different kinds of jurisdiction,
[
Footnote 2/33] according to the
circumstances under which and purposes for which it is
convened.
The testimony of General Crowder is perhaps the most
authoritative evidence of what was intended by the legislation,
Page 327 U. S. 68
for he was its most active official sponsor, spending years in
securing its adoption and revision. Articles 15, 25, and 38
particularly are traceable to his efforts. His concern to secure
statutory recognition for military commissions was equalled by his
concern that the statutory provisions giving this should not
restrict their preexisting jurisdiction. He did not wish, by
securing additional jurisdiction, overlapping partially that of the
court-martial, to surrender other. Hence, Article 15. That Article
had one purpose and one only. It was to make sure that the
acquisition of partially concurrent jurisdiction with
courts-martial should not cause loss of any other. And it was
jurisdiction, not procedure, which was covered by other Articles
with which he and Congress were concerned in that Article. It
discloses no purpose to deal in any way with procedure or to
qualify Articles 25 and 38. And it is clear that General Crowder at
all times regarded all military commissions as being governed by
the identical procedure. In fact, so far as Articles 25 and 38 are
concerned, this seems obvious for all types of military tribunals.
The same would appear to be true of other Articles also,
e.g., 24, (prohibiting compulsory self-incrimination), 26,
27, 32 (contempts), all except the last dealing with procedural
matters.
Article 12 is especially significant. It empowers general
courts-martial to try two classes of offenders: (1) "any person
subject to military law," under the definition of Article
2, for any offense "made punishable by these articles;" (2) "and
any other person who
by the law of war is subject to trial
by military tribunals," not covered by the terms of
Article 2. (Emphasis added.)
Article 12 thus, in conformity with Article 15, gives the
general court-martial concurrent jurisdiction of war crimes and war
criminals with military commissions. Neither it nor any other
Article states or indicates there are to be
two kinds of
general courts-martial for trying war crimes; yet
Page 327 U. S. 69
this is the necessary result of the Court's decision, unless, in
the alternative, that would be to imply that, in exercising such
jurisdiction, there is only one kind of general court-martial, but
there are two or more kinds of military commission, with wholly
different procedures and with the result that "the commander in the
field" will not be free to determine whether general court-martial
or military commission shall be used as the circumstances may
dictate, but must govern his choice by the kind of procedure he
wishes to have employed.
The only reasonable and, I think, possible conclusion to draw
from the Articles is that the Articles which are in terms
applicable to military commissions are so uniformly, and those
applicable to both such commissions and to courts-martial when
exercising jurisdiction over offenders against the laws of war
likewise are uniformly, applicable, and not diversely according to
the person or offense being tried.
Not only the face of the Articles, but specific statements in
General Crowder's testimony support this view. Thus, in the portion
quoted above [
Footnote 2/34] from
his 1916 statement, after stating expressly the purpose of Article
15 to preserve unimpaired the military commission's jurisdiction,
and to make it concurrent with that of courts-martial insofar as
the two would overlap, "so that the
military commander in the
field in time of war will be at liberty to employ either form
of court that happens to be convenient," he went on to say: "Both
classes of courts have the same procedure," a statement so
unequivocal as to leave no room for question. And his quotation
from Winthrop supports his statement, namely: "Its (
i.e.,
the military commission's) composition, constitution and procedure
follow the analogy of courts-martial."
At no point in the testimony is there suggestion that there are
two types of military commission, one bound by
Page 327 U. S. 70
the procedural provisions of the Articles, the other wholly free
from their restraints, or, as the Court strangely puts the matter,
that there is only one kind of commission, but that it is bound or
not bound by the Articles applicable in terms, depending upon who
is being tried and for what offense; for that very difference makes
the difference between one and two. The history and the discussion
show conclusively that General Crowder wished to secure, and
Congress intended to give, statutory recognition to all forms of
military tribunals; to enable commanding officers in the field to
use either court-martial or military commission as convenience
might dictate, thus broadening to this extent the latter's
jurisdiction and utility; but, at the same time, to preserve its
full preexisting jurisdiction, and also to lay down identical
provisions for governing or providing for the government of the
procedure and rules of evidence of every type of military tribunal,
wherever and however constituted. [
Footnote 2/35]
Page 327 U. S. 71
Finally, unless Congress was legislating with regard to all
military commissions, Article 38, which gives the President the
power to "prescribe the procedure, including modes of proof, in
cases before courts-martial, courts of inquiry, military
commissions, and other military tribunals" takes on a rather
senseless meaning, for the President would have such power only
with respect to those military commissions exercising concurrent
jurisdiction with courts-martial.
All this seems so obvious upon a mere reading of the Articles
themselves and the legislative history as not to require
demonstration. And all this Congress knew, as that history shows.
In the face of that showing, I cannot accept the Court's highly
strained construction, first, because I think it is in plain
contradiction of the facts disclosed by the history of Articles 15,
25 and 38 as well as their language, and also because that
construction defeats at least two of the ends General Crowder had
in mind -- namely, to secure statutory recognition for every form
of military tribunal and to provide for them a basic uniform
Page 327 U. S. 72
mode of procedure or method of providing for their
procedure.
Accordingly, I think Articles 25 and 38 are applicable to this
proceeding; that the provisions of the governing directive in
Section 16 are in direct conflict with those Articles, and, for
that reason, the commission was invalidly constituted, was without
jurisdiction, and its sentence is therefore void.
V
The Geneva Convention of 1929
If the provisions of Articles 25 and 38 were not applicable to
the proceeding by their own force as Acts of Congress, I think they
would still be made applicable by virtue of the terms of the Geneva
Convention of 1929, in particular, Article 63. And in other
respects, in my opinion, the petitioner's trial was not in accord
with that treaty, namely with Article 60.
The Court does not hold that the Geneva Convention is not
binding upon the United States, and no such contention has been
made in this case. [
Footnote
2/36] It relies on other
Page 327 U. S. 73
arguments to show that Article 60, which provides that the
protecting power shall be notified in advance of a judicial
proceeding directed against a prisoner of war, and Article 63,
which provides that a prisoner of war may be tried 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, are
not properly invoked by the petitioner. Before considering the
Court's view that these Articles are not applicable to this
proceeding by their terms, it may be noted that, on his surrender,
petitioner was interned in conformity with Article 9 of this
Convention.
Page 327 U. S. 74
The chief argument is that Articles 60 and 63 have reference
only to offenses committed by a prisoner of war while a prisoner of
war, and not to violations of the law of war committed while a
combatant. This conclusion is derived from the setting in which
these articles are placed. I do not agree that the context gives
any support to this argument. The argument is, in essence, of the
same type as the argument the Court employs to nullify the
application of Articles 25 and 38 of the Articles of War by
restricting their own broader coverage by reference to Article 2.
For reasons set forth in the margin, [
Footnote 2/37] I think it equally invalid here.
Page 327 U. S. 76
Neither Article 60 nor Article 63 contains such a restriction of
meaning as the Court reads into it. [
Footnote 2/38] In the absence of any such limitation,
it would seem that they were intended to cover all judicial
proceedings, whether instituted for crimes allegedly committed
before capture or later. Policy supports this view. For such a
construction is require for the security of our own soldiers, taken
prisoner, as much as for that of prisoners we take. And the
opposite one leaves prisoners of war open to any form of trial and
punishment for offenses against the law of war their captors may
wish to use, while safeguarding them, to the extent of the treaty
limitations, in cases of disciplinary offense. This, in many
instances, would be to make the treaty strain at a gnat and swallow
the camel.
The United States has complied with neither of these Articles.
It did not notify the protecting power of Japan in advance of
trial, as Article 60 requires it to do, although the supplemental
bill charges the same failure to petitioner
Page 327 U. S. 77
in Item 89. [
Footnote 2/39] It
is said that, although this may be true, the proceeding is not
thereby invalidated. The argument is that our noncompliance merely
gives Japan a right of indemnity against us, and that Article 60
was not intended to give Yamashita any personal rights. I cannot
agree. The treaties made by the United States are, by the
Constitution, made the supreme law of the land. In the absence of
something in the treaty indicating that its provisions were not
intended to be enforced, upon breach, by more than subsequent
indemnification, it is, as I conceive it, the duty of the courts of
this country to insure the nation's compliance with such treaties,
except in the case of political questions. This is especially true
where the treaty has provisions -- such as Article 60 -- for the
protection of a man being tried for an offense the punishment for
which is death; for to say that it was intended to provide for
enforcement of such provisions solely by claim, after breach, of
indemnity would be, in many instances, especially those involving
trial of nationals of a defeated nation by a conquering one, to
deprive the Articles of all force. Executed men are not much aided
by post-war claims for indemnity. I do not think the adhering
powers' purpose was to provide only for such ineffective
relief.
Finally, the Government has argued that Article 60 has no
application after the actual cessation of hostilities, as there is
no longer any need for an intervening power between the two
belligerents. The premise is that Japan no longer needs Switzerland
to intervene with the United
Page 327 U. S. 78
States to protect the rights of Japanese nationals, since Japan
is now in direct communication with this Government. This, of
course, is in contradiction of the Government's theory, in other
connections, that the war is not over, and military necessity still
requires use of all the power necessary for actual combat.
Furthermore the premise overlooks all the realities of the
situation. Japan is a defeated power, having surrendered, if not
unconditionally, then under the most severe conditions. Her
territory is occupied by American military forces. She is scarcely
in a position to bargain with us or to assert her rights. Nor can
her nationals. She no longer holds American prisoners of war.
[
Footnote 2/40] Certainly, if
there was the need of an independent neutral to protect her
nationals during the war, there is more now. In my opinion the
failure to give the notice required by Article 60 is only another
instance of the commission's failure to observe the obligations of
our law.
What is more important, there was no compliance with Article 63
of the same Convention. Yamashita was not tried "according to the
same procedure as in the case of persons belonging to the armed
forces of the detaining Power." Had one of our soldiers or officers
been tried for alleged war crimes, he would have been entitled to
the benefits of the Articles of War. I think that Yamashita was
equally entitled to the same protection. In any event, he was
entitled to their benefits under the provisions of Article 63 of
the Geneva Convention. Those benefits he did not receive.
Accordingly, his trial was in violation of the Convention.
VI
The Fifth Amendment
Wholly apart from the violation of the Articles of War and of
the Geneva Convention, I am completely unable to
Page 327 U. S. 79
accept or to understand the Court's ruling concerning the
applicability of the due process clause of the Fifth Amendment to
this case. Not heretofore has it been held that any human being is
beyond its universally protecting spread in the guaranty of a fair
trial in the most fundamental sense. That door is dangerous to
open. I will have no part in opening it. For, once it is ajar, even
for enemy belligerents, it can be pushed back wider for others,
perhaps ultimately for all.
The Court does not declare expressly that petitioner, as an
enemy belligerent, has no constitutional rights, a ruling I could
understand, but not accept. Neither does it affirm that he has
some, if but little, constitutional protection. Nor does the Court
defend what was done. I think the effect of what it does is in
substance to deny him all such safeguards. And this is the great
issue in the cause.
For it is exactly here we enter wholly untrodden ground. The
safe signposts to the rear are not in the sum of protections
surrounding jury trials or any other proceeding known to our law.
Nor is the essence of the Fifth Amendment's elementary protection
comprehended in any single one of our time-honored specific
constitutional safeguards in trial, though there are some without
which the words "fair trial" and all they cannot become a
mockery.
Apart from a tribunal concerned that the law as applied shall be
an instrument of justice, albeit stern in measure to the guilt
established, the heart of the security lies in two things. One is
that conviction shall not rest in any essential part upon unchecked
rumor, report, or the results of the prosecution's
ex
parte investigations, but shall stand on proven fact; the
other, correlative, lies in a fair chance to defend. This embraces
at the least the rights to know with reasonable clarity in advance
of the trial the exact nature of the offense with which one is to
be charged; to have reasonable time for preparing to meet the
charge, and to have the aid of counsel in doing so, as also in
the
Page 327 U. S. 80
trial itself, and if, during its course, one is taken by
surprise, through the injection of new charges or reversal of
rulings which brings forth new masses of evidence, then to have
further reasonable time for meeting the unexpected shift.
So far as I know, it has not yet been held that any tribunal in
our system, of whatever character, is free to receive "such
evidence as
in its opinion would be
of assistance
in proving or disproving the charge" or, again as in its opinion,
"would have probative value in the mind of a reasonable man;" and,
having received what in its unlimited discretion it regards as
sufficient, is also free to determine what weight may be given to
the evidence received without restraint. [
Footnote 2/41]
When to this fatal defect in the directive, however innocently
made, are added the broad departures from the fundamentals of fair
play in the proof and in the right to defend which occurred
throughout the proceeding, there can be no accommodation with the
due process of law which the Fifth Amendment demands.
All this the Court puts to one side with the short assertion
that no question of due process under the Fifth Amendment or
jurisdiction reviewable here is presented. I do not think this
meets the issue, standing alone or in conjunction with the
suggestion which follows that the Court gives no intimation one way
or the other concerning
Page 327 U. S. 81
what Fifth Amendment due process might require in other
situations.
It may be appropriate to add here that, although without doubt
the directive was drawn in good faith in the belief that it would
expedite the trial and that enemy belligerents in petitioner's
position were not entitled to more, that state of mind and purpose
cannot cure the nullification of basic constitutional standards
which has taken place.
It is not necessary to recapitulate. The difference between the
Court's view of this proceeding and my own comes down in the end to
the view, on the one hand, that there is no law restrictive upon
these proceedings other than whatever rules and regulations may be
prescribed for their government by the executive authority or the
military and, on the other hand, that the provisions of the
Articles of War, of the Geneva Convention and the Fifth Amendment
apply.
I cannot accept the view that anywhere in our system resides or
lurks a power so unrestrained to deal with any human being through
any process of trial. What military agencies or authorities may do
with our enemies in battle or invasion, apart from proceedings in
the nature of trial and some semblance of judicial action, is
beside the point. Nor has any human being heretofore been held to
be wholly beyond elementary procedural protection by the Fifth
Amendment. I cannot consent to even implied departure from that
great absolute.
It was a great patriot who said:
"He that would make his own liberty secure must guard even his
enemy from oppression, for if he violates this duty he establishes
a precedent that will reach himself. [
Footnote 2/42]"
MR. JUSTICE MURPHY joins in this opinion.
[
Footnote 2/1]
Cummings v.
Missouri, 4 Wall. 277;
Kring v. Missouri,
107 U. S. 221.
[
Footnote 2/2]
Armour Packing Co. v. United States, 209 U. S.
56,
209 U. S. 83-84;
United States v. Cohen Grocery Co., 255 U. S.
81,
cf. Screws v. United States, 325 U. S.
91.
See 327 U.S.
1fn2/17|>note 17 and text.
[
Footnote 2/3]
Hawk v. Olson, 326 U. S. 271;
Snyder v. Massachusetts, 291 U. S. 97,
291 U. S. 105:
"What may not be taken away is notice of the charge and an adequate
opportunity to be heard in defense of it."
See
327 U. S.
[
Footnote 2/4]
The commission's findings state:
"We have received for analysis and evaluation 423 exhibits
consisting of official documents of the United States Army, the
United States State Department, and the the Philippines;
affidavits; captured enemy documents or translations thereof;
diaries taken from Japanese personnel, photographs, motion picture
films, and Manila newspapers."
See notes
327 U.S.
1fn2/19|>19 and 20.
Concerning the specific nature of these elements in the proof,
the issues to which they were directed, and their prejudicial
effects,
see text
infra and notes in
327 U.
S.
[
Footnote 2/5]
Queen v.
Hepburn, 7 Cranch. 290;
Donnelly v. United
States, 228 U. S. 243,
228 U. S. 273.
See 327 U. S.
327 U.S.
1fn2/21|>note 21.
[
Footnote 2/6]
Motes v. United States, 178 U.
S. 458,
178 U. S. 471;
Paoni v. United States, 281 F. 801.
See Parts
327 U. S. S.
56|>III.
[
Footnote 2/7]
See 327 U. S. S.
1fn2/10|>10,
327 U.S.
1fn2/19|>19;
327 U. S.
[
Footnote 2/8]
The line of authorization within the military hierarchy extended
from the President, through the Joint Chiefs of Staff and General
MacArthur, to General Styer, whose order of September 25th and
others were made pursuant to and in conformity with General
MacArthur's directive. The charge was prepared by the Judge
Advocate General's Department of the Army. There is no dispute
concerning these facts or that the directive was binding on General
Styer and the commission, though it is argued his own authority as
area commanding general was independently sufficient to sustain
what was done.
[
Footnote 2/9]
"16. Evidence. -- a. The commission shall 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. In particular, and without
limiting in any way the scope of the foregoing general rules, the
following evidence may be admitted:"
"(1) Any document while appears to the commission to have been
signed or issued officially by any officer, department, agency, or
member of the armed forces of any government, without proof of the
signature or of the issuance of the document."
"(2) Any report which appears to the commission to have been
signed or issued by the International Red Cross or a member
thereof, or by a medical doctor or any medical service personnel,
or by an investigator or intelligence officer, or by any other
person whom the commission finds to have been acting in the course
of his duty when making the report."
"(3) Affidavits, depositions, or other statements taken by an
officer detailed for that purpose by military authority."
"(4) Any diary, letter or other document appearing to the
commission to contain information relating to the charge."
"(5) A copy of any document or other secondary evidence of its
contents, if the commission believes that the original is not
available or cannot be produced without undue delay. . . ."
[
Footnote 2/10]
In one instance, the president of the commission said:
"The rules and regulations which guide this Commission are
binding upon the Commission and agencies provided to assist the
Commission. . . . We have been authorized to receive and weigh such
evidence as we can consider to have probative value, and further
comments by the Defense on the right which we have to accept this
evidence is decidedly out of order."
But see 327 U.S.
1fn2/19|>note 19.
[
Footnote 2/11]
Cf. text
infra at
327 U.S.
1fn2/19|>note 19 concerning the prejudicial character of the
evidence.
[
Footnote 2/12]
327 U.S.
1fn2/4|>Note 4.
[
Footnote 2/13]
Namely,
"(1) starvation, execution or massacre without trial, and
maladministration generally of civilian internees and prisoners of
war; (2) torture, rape, murder, and mass execution of very large
numbers of residents of the Philippines, including women and
children and members of religious orders, by starvation, beheading,
bayoneting, clubbing, hanging, burning alive, and destruction by
explosives; (3) burning and demolition without adequate military
necessity of large numbers of homes, places of business, places of
religious worship, hospitals, public buildings, and educational
institutions. In point of time, the offenses extended throughout
the period the accused was in command of Japanese troops in the
Philippines. In point of area, the crimes extended through the
Philippine Archipelago, although by far he most of the incredible
acts occurred on Luzon."
[
Footnote 2/14]
Cf. 327 U.S.
1fn2/13|>note 13.
[
Footnote 2/15]
In addition, the findings set forth that captured orders of
subordinate officers gave proof that "they at least" ordered acts
"leading directly to" atrocities; that
"the
proof offered to the Commission
alleged
criminal
neglect . . . as well as complete failure
by
the higher echelons of command
to detect and prevent
cruel and inhuman treatment accorded by local commanders and
guards;"
and that, although "the defense had established the difficulties
faced by the accused" with special reference, among other things,
to the discipline and morale of his troops under the "swift and
overpowering advance of American forces," and notwithstanding he
had stoutly maintained his complete ignorance of the crimes, still
he was an officer of long experience; his assignment was one of
broad responsibility; it was his duty "
to discover and
control" crimes by his troops, if widespread, and therefore
"The Commission concludes: (1) that a series of atrocities and
other high crimes have been committed by members of the Japanese
armed forces under your command against the people of the United
States, their allies, and dependencies throughout the Philippine
Islands; 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,
you failed to provide effective control of your troops, as was
required by the circumstances."
"Accordingly, upon secret written ballot, two-thirds or more of
the members concurring, the Commission finds you guilty as charged
and sentences you to death by hanging."
(Emphasis added.)
[
Footnote 2/16]
See 327 U.S.
1fn2/15|>note 15.
[
Footnote 2/17]
The charge, set forth at the end of this note, is consistent
with either theory -- or both -- and thus ambiguous, as were the
findings.
See 327 U.S.
1fn2/15|>note 15. The only word implying knowledge was
"permitting." If "willfully" is essential to constitute a crime or
charge of one, otherwise subject to the objection of "vagueness,"
cf. Screws v. United States, 325 U. S.
91, it would seem that "permitting" alone would hardly
be sufficient to charge "willful and intentional" action or
omission; and, if taken to be sufficient to charge knowledge, it
would follow necessarily that the charge itself was not drawn to
state, and was insufficient to support, a finding of mere failure
to detect or discover the criminal conduct of others.
At the most, "permitting" could charge knowledge only by
inference or implication. And, reasonably, the word could be taken
in the context of the charge to mean "allowing" or "not preventing"
-- a meaning consistent with absence of knowledge and mere failure
to discover. In capital cases, such ambiguity is wholly out of
place. The proof was equally ambiguous in the same respect, so far
as we have been informed, and so, to repeat, were the findings. The
use of "willfully," even qualified by a "must have," one time only
in the findings hardly can supply the absence of that or an
equivalent word or language in the charge or in the proof to
support that essential element in the crime.
The charge was as follows:
"Tomoyuki Yamashita, General Imperial Japanese Army, between 9
October 1944 and 2 September 1945 at Manila and other places 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
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, General Tomoyuki Yamashita,
thereby violated the laws of war."
[
Footnote 2/18]
Cf. Text
infra, 327 U.
S.
[
Footnote 2/19]
On November 1, early in the trial, the president of the
commission stated:
"I think the Prosecution should consider the desirability of
striking certain items. The Commission feels that there must be
witnesses introduced on each of the specifications or items.
It
has no objection to considering affidavits, but it is unwilling to
form an opinion of a particular item based solely on an
affidavit. Therefore, until evidence is introduced, these
particular exhibits are rejected."
(Emphasis added.)
Later evidence of the excluded type was offered, to introduction
of which the defense objected on various grounds, including the
prior ruling. At the prosecution's urging, the commission withdrew
to deliberate. Later, it announced that,
"after further consideration, the Commission reverses that
ruling [of November 1] and affirms its prerogative of receiving and
considering affidavits or depositions, if it chooses to do so, for
whatever probative value the Commission believes they may have,
without regard to the presentation of some partially corroborative
oral testimony."
It then added:
"The Commission
directs the prosecution again to
introduce the affidavits or depositions then in question, and other
documents of similar nature which the prosecution stated has been
prepared for introduction."
(Emphasis added.)
Thereafter, this type of evidence was consistently received, and
again by the undisputed statement of counsel, as the sole proof of
many of the specifications of the bills a procedure which they
characterized correctly, in my view, as having, "in effect,
stripped the proceeding of all semblance of a trial, and converted
it into an
ex parte investigation."
[
Footnote 2/20]
This perhaps consisted in the showing of the so-called
"propaganda" film, "Orders from Tokyo," portraying scenes of battle
destruction in Manila, which counsel say "was not, in itself,
seriously objectionable." Highly objectionable, inflammatory and
prejudicial, however, was the accompanying sound track with comment
that the film was "evidence which will convict," mentioning
petitioner specifically by name.
[
Footnote 2/21]
Innumerable instances of hearsay, once or several times removed,
relating to all manner of incidents, rumors, reports, etc., were
among these. Many instances, too, are shown of the use of opinion
evidence and conclusions of guilt, including reports made after
ex parte investigations by the War Crimes Branch of the
Judge Advocate General's Department, which it was and is urged had
the effect of "putting the prosecution on the witness stand" and of
usurping the commission's function as judge of the law and the
facts. It is said also that some of the reports were received as
the sole proof of some of the specifications.
[
Footnote 2/22]
Also with Paragraph 82 of the Rules of I and Warfare.
[
Footnote 2/23]
Typical of the items are allegations that members of the armed
forces of Japan under the command of the accused committed the
acts
"[d]uring the months of October, November, and December, 1944
[of] brutally mistreating and torturing numerous unarmed
noncombatant civilians at the Japanese Military Police Headquarters
located at Cortabitarte and Mabini Streets, Manila,"
and,
"On or about 19 February 1945, in the Town of Cuenca, Batangas
Province, brutally mistreating, massacring, and killing Jose M.
Laguo, Esteban Magsamdol, Jose Lanbo, Felisa Apuntar, Elfidio
Lunar, Victoriana Ramo, and 978 other persons, all unarmed
noncombatant civilians, pillaging and unnecessarily, deliberately,
and wantonly devastating, burning, and destroying large areas of
that town."
[
Footnote 2/24]
The supplemental bill contains allegations similar to those set
out in the original bill.
See 327 U.S.
1fn2/23|>note 23. For example, it charged that members of
the armed forces of Japan under the command of the accused "during
the period from 9 October 1944 to about 1 February 1945 at Cavite
City, Imus, and elsewhere in Cavite Province," were permitted to
commit the acts of "brutally mistreating, torturing, and killing or
attempting to kill, without cause or trial, unarmed noncombatant
civilians."
[
Footnote 2/25]
See 327 U.S.
1fn2/39|>note 39 and text,
327 U. S.
[
Footnote 2/26]
In support of the motion, counsel indicated surprise by saying
that, though it was assumed two or three new specifications might
be added, there had been no expectation of 59 "about entirely new
persons and times." The statement continued:
"We have worked earnestly seven days a week in order to prepare
the defense on 64 specifications. And when I say 'prepare the
defense,' sir, I do not mean merely an affirmative defense, but to
acquaint ourselves with the facts so that we could properly
cross-examine the Prosecution's witnesses."
". . . 'In advance of trial' means: sufficient time to allow the
defense a chance to prepare its defense."
"We earnestly state that we must have this time in order
adequately to prepare the defense. I might add, sir, we think this
is important to the accused, but far more important than any rights
of this accused, we believe, is the proposition that this
Commission should not deviate from a fundamental American concept
of fairness. . . ."
[
Footnote 2/27]
The commission went on to question the need for all of the six
officers representing the defense to be present during presentation
of all the case, suggested one or two would be adequate and others
"should be out of the courtroom" engaged in other matters, and
strongly suggested bringing in additional counsel in the midst of
the trial, all to the end that "need to request continuance may not
arise."
[
Footnote 2/28]
See 327 U.S.
1fn2/9|>note 9.
[
Footnote 2/29]
Article 25 is as follows:
"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,
if such deposition be taken when the witness resides, is
found, or is about to go beyond the State, Territory, or district
in which the court, commission, or board is ordered to sit, or
beyond the distance of one hundred miles from the place of trial or
hearing, or when it appears to the satisfaction of the court,
commission, board, or appointing authority that the witness, by
reason of age, sickness, bodily infirmity, imprisonment, or other
reasonable cause, is unable to appear and testify in person at the
place of trial or hearing:
Provided, That testimony by
deposition may be adduced for the defense in capital
cases."
(Emphasis added.) 10 U.S.C. § 1496.
Article 38 reads:
"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:
Provided further, That all rules made in pursuance of this article
shall be laid before the Congress annually."
(Emphasis added.) 10 U.S.C. § 1509.
[
Footnote 2/30]
Another revision of the Articles of War took place in 1920. At
this time, Article 15 was slightly amended.
In 1916 Article 15, 39 Stat. 653, was enacted to read:
"The provisions of these articles conferring jurisdiction upon
courts-martial shall not be construed as depriving military
commissions, provost courts, or other military tribunals
of
concurrent jurisdiction in respect of offenders or offenses
that, by the law of war, may be lawfully triable by such military
commissions, provost courts, or other military tribunals."
(Emphasis added.)
The 1920 amendment put in the words "by statute or" before the
words "by the law of war" and omitted the word "lawfully."
[
Footnote 2/31]
Speaking at the Hearings before the Committee on Military
Affairs, House of Representatives, 62nd Cong., 2d Sess., printed as
an Appendix to S.Rep.229, 63rd Cong., 2d Sess., General Crowder
said:
"The next article, No. 15, is entirely new, and the reasons for
its insertion in the code are these: in our War with Mexico, two
war courts were brought into existence by orders of Gen. Scott,
viz., the military commission and the council of war. By
the military commission, Gen. Scott tried cases cognizable in time
of peace by civil courts, and by the council of war, he tried
offenses against the laws of war.
The council of war did not
survive the Mexican War period, and, in our subsequent wars, its
jurisdiction has been taken over by the military commission,
which, during the Civil War period, tried more than 2,000 cases.
While the military commission has not been formally authorized by
statute, its jurisdiction as a war court has been upheld by the
Supreme Court of the United States. It is an institution of the
greatest importance in a period of war, and should be preserved.
In the new code, the jurisdiction of courts-martial has been
somewhat amplified by the introduction of the phrase 'Persons
subject to military law.' There will be more instances in the
future than in the past when the jurisdiction of courts-martial
will overlap that of the war courts, and the question would
arise whether Congress having vested jurisdiction by statute the
common law of war
jurisdiction was not ousted. I wish to
make it
perfectly plain by the new article that, in such cases,
the jurisdiction of the war court is concurrent."
S.Rep. No.229, 63rd Cong., 2d Sess., p. 53. (Emphasis
added.)
And later, in 1916, speaking before the Subcommittee on Military
Affairs of the Senate at their Hearings on S.3191, a project for
the revision of the Articles of War, 64th Cong., 1st Sess., printed
as an Appendix to S.Rep.230, 64th Cong., 1st Sess., General Crowder
explained at greater length:
"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 commissions. 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 court-martial, it might be held
that the provision operated to exclude trials by military
commission and other war courts; so this new article was
introduced. . . ."
"
It just saves to these war courts the jurisdiction they now
have and makes it a concurrent jurisdiction with courts-martial, so
that the military commander in the field in time of war
will be at liberty to employ either form of court that
happens to be convenient.
Both classes of courts have the same
procedure. For the information of the committee and in
explanation of these war courts to which I have referred, I insert
here an explanation from Winthrop's Military Law and Precedents
--"
" The military commission -- a war court -- had its origin in
G.O. 20, Headquarters of the Army at Tampico, February 19, 1847
(Gen. Scott). Its jurisdiction was confined mainly to criminal
offenses of the class cognizable by civil courts in time of peace
committed by inhabitants of the theater of hostilities. A further
war court was originated by Gen. Scott at the same time, called
'council of war,' with jurisdiction to try the same classes of
persons for violations of the laws of war, mainly guerillas. These
two jurisdictions were united in the later war court of the Civil
War and Spanish War periods, for which the general designation of
'military commission' was retained. The military commission was
given statutory recognition in section 30, act of March 3, 1863, 12
Stat. 736, and in various other statutes of that period. The United
States Supreme Court has acknowledged the validity of its judgments
(
Ex
parte Vallandingham, 1 Wall. 243 and
Coleman v.
Tennessee, 97 U. S. 509). It tried more than
2,000 cases during the Civil War and reconstruction period.
Its
composition, constitution, and procedure follows the analogy of
courts-martial. Another war court is the provost court, an
inferior court with jurisdiction assimilated to that of justices of
the peace and police courts, and other war courts variously
designated 'courts of conciliation,' 'arbitrators,' 'military
tribunals' have been convened by military commanders in the
exercise of the war power as occasion and necessity dictated."
" Yet, as I have said, these war courts never have been formally
authorized by statute."
" Senator Colt: They grew out of usage and necessity?"
" Gen. Crowder: Out of usage and necessity. I thought it was
just as well, as inquiries would arise, to put this information in
the record."
S.Rep. No.130, 64th Cong., 1st Sess. (1916) p. 40. (Emphasis
added.)
Article 15 was also explained in the "Report of a committee on
the proposed revision of the articles of war, pursuant to
instructions of the Chief of Staff, March 10, 1915," included in
Revision of the Articles of War, Comparative Prints, Etc.,
1904-1920. J.A.G.O., as follows:
"A number of articles . . . of the revision have the effect of
giving courts-martial jurisdiction over certain offenders and
offenses which, under the law of war or by statute, are also
triable by military commissions, provost courts, etc. Article 15 is
introduced for the purpose of making clear that, in such cases, a
court martial has only a concurrent jurisdiction with such war
tribunals."
[
Footnote 2/32]
Of course, Articles 25 and 38, at the same time that they gave
protection to defendants before military commissions, also provided
for the application by such tribunals of modern rules of procedure
and evidence.
[
Footnote 2/33]
Winthrop, speaking of military commissions at the time he was
writing, 1896, says:
"The offences cognizable by military commissions may thus be
classed as follows: (1) Crimes and statutory offences cognizable by
State or U.S. courts, and which would properly be tried by such
courts if open and acting; (2)
Violations of the laws and
usages of war cognizable by military tribunals only; (3)
Breaches of military orders or regulations for which offenders are
not legally triable by court-martial under the Articles of
War."
(Emphasis added.) Winthrop at *1309.
And cf. Fairman,
The Law of Martial Rule (2d ed.1943):
"Military commissions take cognizance of three categories of
criminal cases:
offenses against the laws of war, breaches
of military regulations, and civil crimes which, where the ordinary
courts have ceased to function, cannot be tried normally."
(Emphasis added.) Fairman, 265-266.
See also Davis, A
Treatise on the Military Law of the United States (1915) 309,
310.
[
Footnote 2/34]
327 U.S.
1fn2/31|>Note 31.
[
Footnote 2/35]
In addition to the statements of General Crowder with relation
to Article 15, set out in
327 U.S.
1fn2/31|>note 31,
supra, see the following
statements made with reference to Article 25 in 1912 at a hearing
before the Committee on Military Affairs of the House:
"We come now to article 25, which relates to the admissibility
of depositions. . . . It will be noted further that
the
application of the old article has been broadened to include
military commissions, courts of inquiry, and military
boards."
"Mr. SWEET. Please explain what you mean by military
commission."
"Gen. CROWDER. That is our common law of war court, and was
referred to by me in a prior hearing. [The reference is to the
discussion of Article 15.] This war court came into existence
during the Mexican War, and was created by orders of Gen. Scott. It
had jurisdiction to try all cases usually cognizable in time of
peace by civil courts. Gen. Scott created another war court, called
the 'council of war,' with jurisdiction to try offenses against the
laws of war. The constitution, composition, and jurisdiction of
these courts
have never been regulated by statute. The
council of war did not survive the Mexican War period, since which
its jurisdiction has been taken over by the military commission.
The military commission received express recognition in the
reconstruction acts, and its
jurisdiction has been
affirmed and supported by all our courts. It was extensively
employed during the Civil War period and also during the
Spanish-American War. It is highly desirable that this important
war court should be continued to be governed as heretofore, by the
laws of war, rather than by statute."
S.Rep. No.229, 63d Cong., 2d Sess., 59;
cf. S.Rep. 130,
64th Cong., 1st Sess., 54-55. (Emphasis added.)
See also
Hearings before the Subcommittee of the Committee on Military
Affairs of the Senate on Establishment of Military Justice, 66th
Cong., 1st Sess., 1182-1183.
Further evidence that procedural provisions of the Articles were
intended to apply to all forms of military tribunal is given by
Article 24, 10 U.S.C. § 1495, which provides against compulsory
self-incrimination "before a military court, commission, court of
injury, or board, or before any officer conducting an
investigation." This article was drafted so that "The prohibition
should reach all witnesses,
irrespective of the class of
military tribunal before which they appear. . . ." (Emphasis
added.) Comparative Print showing S.3191 with the Present Articles
of War and other Related Statutes, and Explanatory Notes, Printed
for use of the Senate Committee on Military Affairs, 64th Cong.,
1st Sess., 17, included in Revision of the Articles of War,
Comparative Prints, Etc., 1904-1920, J.A.G.O.
[
Footnote 2/36]
We are informed that Japan has not ratified the Geneva
Convention.
See discussion of Article 82 in the paragraphs
below. We are also informed, however -- and the record shows this
at least as to Japan -- that, at the beginning of the war, both the
United States and Japan announced their intention to adhere to the
provisions of that treaty. The force of that understanding
continues, perhaps with greater reason, if not effect, despite the
end of hostilities.
See 327 U.S.
1fn2/40|>note 40 and text.
Article 82 provides:
"The provisions of the present Convention must be respected by
the High Contracting Parties under all circumstances."
"In case, in time of war, one of the belligerents is not a party
to the Convention, its provisions shall nevertheless remain in
force as between the belligerents who are parties thereto."
It is not clear whether the Article means that, during a war,
when one of the belligerents is not a party to the Convention, the
provisions must nevertheless be applied by all the other
belligerents to the prisoners of war not only of one another, but
also of the power that was not a party thereto, or whether it means
that they need not be applied to soldiers of the nonparticipating
party who have been captured. If the latter meaning is accepted,
the first paragraph would seem to contradict the second.
"Legislative history" here is of some, if little, aid. A
suggested draft of a convention on war prisoners drawn up in
advance of the Geneva meeting by the International Committee of the
Red Cross (Actes de la Conference Diplomatique de Geneve, edited by
Des Gouttes, pp. 21-34) provided in Article 92 that the provisions
of the Convention
"ne cesseront d'etre obligatories qu'au cas ou l'un des Etats
belligerents participant a la Convention se trouve avoir a
combattre les forces armees d'un autre Etat que n'y serait par
parties at a l'egard de cet Etat seulement."
See Rasmussen, Code des Prisonniers de Guerre (1931)
70. The fact that this suggested article was not included in the
Geneva Convention would indicate that the nations in attendance
were avoiding a decision on this problem. But I think it shows more
-- that is, it manifests an intention not to foreclose a future
holding that, under the terms of the Convention, a state is bound
to apply the provisions to prisoners of war of nonparticipating
state. And not to foreclose such a holding is to invite one. We
should, in my opinion, so hold, for reasons of security to members
of our own armed forces taken prisoner, if for no others.
Moreover, if this view is wrong and the Geneva Convention is not
strictly binding upon the United States as a treaty, it is strong
evidence of and should be held binding as representing what have
become the civilized rules of international warfare. Yamashita is
as much entitled to the benefit of such rules as to the benefit of
a binding treaty which codifies them.
See U.S. War Dep't
Basic Field Manual, Rules of Land Warfare (1940), par. 5-b.
[
Footnote 2/37]
Title III of the Convention, which comprises Articles 7 to 67,
is called "Captivity." It contains Section I, "Evacuation of
Prisoners of War" (Articles 7, 8); Section II, "Prisoners-of-War
Camps" (Articles 9-26); Section III, "Labor of Prisoners of War"
(Articles 27-34); Section IV, "External Relations of Prisoners of
War" (Articles 35-41), and Section V, "Prisoners' Relations with
the Authorities" (Articles 42-67). Thus, Title III regulates all
the various incidents of a prisoner of war's life while in
captivity.
Section V, with which we are immediately concerned, is divided
into three chapters. Chapter 1 (Article 42) gives a prisoner of war
the right to complain of his condition of captivity. Chapter 2
(Articles 43-44) gives prisoners of war the right to appoint agents
to represent them. Chapter 3 is divided into three subsections, and
is termed "Penalties Applicable to Prisoners of War." Subsection 1
(Articles 45-53) contains various miscellaneous articles to be
considered in detail later. Subsection 2 (Articles 54-59) contains
provisions with respect to disciplinary punishments. And subsection
3 (Articles 60-67), which is termed "Judicial Suits," contains
various provisions for protection of a prisoner's rights in
judicial proceedings instituted against him.
Thus, subsection 3, which contains Articles 60 and 63, as
opposed to subsection 2, of Chapter 3, is concerned not with mere
problems of discipline, as is the latter, but with the more serious
matters of trial leading to imprisonment or possible sentence of
death;
cf. Brereton, The Administration of Justice Among
Prisoners of War by Military Courts (1935) 1 Proc. Australian &
New Zealand Society of International Law 143, 153. The Court,
however, would have the distinction between subsection 2 and
subsection 3 one between minor disciplinary action against a
prisoner of war for acts committed while a prisoner and major
judicial action against a prisoner of war for acts committed while
a prisoner. This narrow view not only is highly strained, confusing
the different situations and problems treated by the two
subdivisions. It defeats the most important protections subsection
3 was intended to secure, for our own as well as for enemy captive
military personnel.
At the most, there would be logic in the Court's construction if
it could be said that all of Chapter 3 deals with acts committed
while a prisoner of war. Of course, subsection 2 does, because of
the very nature of its subject matter. Disciplinary action will be
taken by a captor power against prisoners of war only for acts
committed by prisoners after capture.
But it is said that subsection 7 deals exclusively with acts
committed by a prisoner of war after having become a prisoner, and
this indicates subsection 3 is limited similarly. This ignores the
fact that some of the articles in subsection 1 appear, on their
face, to apply to all judicial proceedings for whatever purpose
instituted. Article 46, for example, provides in part:
"Punishments other than those provided for the same acts for
soldiers of the national armies may not be imposed upon prisoners
of war by the military authorities and courts of the detaining
Power."
This seems to refer to war crimes as well as to other offenses,
for surely a country cannot punish soldiers of another army for
offenses against the law of war when it would not punish its own
soldiers for the same offences. Similarly, Article 47 in subsection
1 appears to refer to war crimes as well as to crimes committed by
a prisoner after his capture. It reads in part:
"Judicial proceedings against prisoners of war shall be
conducted as rapidly as the circumstances permit; preventive
imprisonment shall be limited as much as possible."
Thus, at the most, subjection 1 contains, in some of its
articles, the same ambiguities, and is open to the same problem,
that we are faced with in construing Articles 60 and 63. It cannot
be said therefore that all of chapter 3, and especially subsection
3, relate only to acts committed by prisoners of war after capture,
for the meaning of subsection 3, in this argument, is related to
the meaning of subsection 1, and subsection 1 is no more clear
restricted to punishments and proceedings in disciplinary matters
than is subsection 3.
[
Footnote 2/38]
Article 60 pertinently is as follows:
"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."
"This advice shall contain the following information:"
"a) Civil state and rank of prisoner;"
"b) Place of sojourn or imprisonment;"
"c) Specification of the [count] or counts of the indictment,
giving the legal provisions applicable."
"If it is not possible to mention in that advice the court which
will pass upon the matter, the date of opening the trial, and the
place where it will take place, this information must be furnished
to the representative of the protecting Power later, as soon as
possible, and at all events at least three weeks before the opening
of the trial."
Article 63 reads:
"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."
[
Footnote 2/39]
Item 89 charged the armed forces of Japan with subjecting to
trial certain named and other prisoners of war
"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 executed a
death sentence without communicating to the representative of the
protecting power the nature and circumstances of the offense
charged."
[
Footnote 2/40]
Nations adhere to international treaties regulating the conduct
of war at least in part because of the fear of retaliation. Japan
no longer has the means of retaliating.
[
Footnote 2/41]
There can be no limit either to the admissibility or the use of
evidence if the only test to be applied concerns probative value
and the only test of probative value, as the directive commanded
and the commission followed out, lies "in the Commission's
opinion," whether that be concerning the assistance the "evidence"
tendered would give in proving or disproving the charge or as it
might think would "have value in the mind of a reasonable man." Nor
is it enough to establish the semblance of a constitutional right
that the commission declares, in receiving the evidence, that it
comes in as having only such probative value, if any, as the
commission decides to award it and this is accepted as
conclusive.
[
Footnote 2/42]
2 The Complete Writings of Thomas Paine (edited by Foner, 1945)
588.