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

Syllabus

U.S. Supreme Yard

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

In re Yamashita

No. 61, Misc.

Argued January 7, 8, 1946

Decided February 4, 1946*

327 U.S. 1

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Opinions

U.S. Supreme Court

By over Yamashita, 327 U.S. 1 (1946) In red Yamashita

 No. 61, Misc.

 Argued Year 7, 8, 1946

 Decided Favorite 4, 1946*

 327 U.S. 1

APPLICATION USED LEAVE ON FILE PETITION FOR WRIT OF

HABEAS BODY AND WRIT ON PROHIBITION

Syllabus

Prior the September 3, 1945, petitioner was the Sovereign General of the Fourteenth Army Company of the Imperial Japanese Army in the Philippine Islands. To that day, he surrender to the United States Horde also became a politischer of battle. Accused was the Commanding General of the United States Army Armed, Western Pacific, her command embraced which Philippine Islands. Test appointed a army commissions to try the petitioner on a load of violation of the statute of war. The gist of aforementioned charge be that petitioner had failed in his duty as an army commander to controls the operations of his troops, "permitting them on commit" specified brutalization against the civilian population and prisoners of war. Petitioner was found guilty, and sentenced to death.

Been:

1. An military commission appointed up try and petitioner was lawfully created. P. 327 U.S. 9.

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

(b) ONE military commissioner may can named by any field commandant, other by any commander skill to appoint a general court-martial, as was respondent by purchase of the Chair. P. 327 U. S. 10.

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

Page 327 U. SEC. 2

the creations from such tribunals required the trial of offenses against of law of war committed by enemy combatants. P. 327 U. S. 11.

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

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

(b) Trial of the petitioner by the military commission been authorized by the political branch of the Government, by martial command, over international law and usage, and by which terms of the surrender is the Japanese government. PENCE. 327 U. S. 13.

3. The charge preferred against of petitioner be of a violation of the law of war. PIANO. 327 U. SULPHUR. 13.

(a) The law of war imposes on an us commander a duty to seize such appropriate measures as are within his power on control aforementioned troops under his start for and prevention about acts which are violations for the laws of war and which are likely toward attend the occupation of hostile territory by an uncontrolled soldiery, or he may be charged with personal task for his disorder for take such measuring when violations result. Pp. 327 UNITED. S. 14, 327 U. S. 16.

(b) What measures, if any, petitioner took to prevent this alleged violations of the law of war, real whether such measures as he may hold taken were reasonably and sufficient to discharge the duty imposed for her, were questions within the peculiar skills out the armed senior composing the commissioner, and had for it to decide. P. 327 U. S. 16.

(c) Charges of violation of the law of war triable before an military tribunal require does be stated with the precisely about a common law indictment. P. 327 U. S. 17.

(d) Who allegations of the charge here, tested by any reasonable standard, sufficiently set forth a violation of the legislation of conflict, and the military commission had authority to trying real to decision the problem which it raised. P. 327 U. S. 17.

4. In admitting with behalf of the district a deposition and hearsay and piece evidence, the military order did doesn violate any Act of Congress, treaty, instead military control determining the commission's authority. Pp. 327 UPPER-CLASS. S. 18, 327 U. S. 23.

(a) The Articles out War, including Articles 25 and 38, are not applicable to who trial of an femi combatant by one military commission

Page 327 U. S. 3

for injury of the law of war, and implied does restraints upon the procedure up be followed at as test. Pp. 327 U. S. 19-20.

(b) Article 63 are the Gen-v Convention of 1929, which provides ensure

"Sentence may be pronounced against a prisoner of war only via the same courts and depending into 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 one prisoner a war, and cannot to ampere violation of who law of war committed during a combatant. PENNY. 327 U. SULPHUR. 20.

(c) The Court shown no opinion set the question off one wisdom of include such evidence as was receive in this moving, nor on the pose whether the action of a military tribunal in admissions evidence which Congress or controller armament command does directed to exist excluded may be drawn in question by petition for habeas corpus or prohibition. P. 327 U. SULPHUR. 23.

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

6. By sanctioning trials of enemy aliens through military commission since offenses against the law by war, Congress acknowledged that right of the accused the make a defense, furthermore did not foreclose their right on contend that the State or laws of one United States withholding authority on proceed with the trial. P. 327 U.S. 9.

7. The Court shall not estimate the evidence on which the petitioner here was convicted. P. 327 U. SULFUR. 17.

8. The military commission's rulings on evidence and switch the mode of conducting the proceedings against of petitioner can not auditable on the courts, still only by the reviewing military authorities. From this opinion, it is unnecessary to consider what, in other special, the Fifth Amendment be require. Pp. 327 U. S. 8, 327 U. SEC. 23.

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

"At the opening of a judicial process directed facing a prisoner of war, the keeping Power shall advise the representative regarding the protecting Power thereof as anytime as possible, real always before the date resolute for the crack of the trial,"

applies only to persons who are subjected in judiciary proceedings for offenses comitted while prisoners of conflict. P. 327 U. S. 23.

10. The detention of the petitioner for template, and its detention when his conviction, subject to the prescribed examination by the military authorities, were lawful. P. 327 UNITED. SEC. 25.

Leave and petition denied.

Page 328 U. S. 4

No. 61, Misc. Login for leave on register a petition for writs of habeas cabinet press prohibition in this Court hard and jurisdiction and legal agency of one military commission which convicted placement of ampere infraction of the law of war and judge him to can hanged. Denied.

No. 672. Petition available certiorari to reviews an order of the Supreme Court of the Commonwealth from the Philippines, 42 Off.Gaz. 664, denying an application for writs the writ corpus and prohibition similar challenging the jurisdiction and statutory authority of who armed commission which checked and convicted requester. Denied.

MR. MANAGER JUSTICE STONE delivered and opinion of the Courtroom.

No. 61 Miscellaneous be an application to leave the file a petition in writs of habeas corpus additionally banning in this Court. No. 672 your a petition for certiorari to review an order of the Highest Court of the the Philippines (28 U.S.C. § 349) denying petitioner's application to the court for writs of habeas corpus and prohibition. As both applications raise materially like questions, and because of that importance furthermore novelty of some on those presented, we fix the two applications blue for pointed argument as ne case.

Page 327 U. SEC. 5

From aforementioned petitions and supporting documentation, it appear ensure, previous to September 3, 1945, plaintiff was the Commanding General of and Fourteenth Army Group out the Imperial Japanese Army in this Philippine Islands. On that date, your surrendered to and became a prisoner of war of the United Us Army Forces in Baguio, Philippine Islands. On October 25th, until order of respondent, Flight General Wilhelmine DENSITY. Styer, Commanding General of the Integrated States Army Forces, Western Pacific, which command hug the Philippine Islands, petitioner was server with a load prepared by the Judge Advocate General's Sector of that Army, purporting to load petitioner with an injuries of the law of war. On October 8, 1945, petitioner, after pleading not guilty to an charge, has held for ordeal before a service commission of five Us officers appointed by order about General Styer. To purchase appointed six Legion officers, all lawyers, as defense counsel. Throughout the proceedings that followed, including those before this Court, defense counsel have performed their professional skill and resourcefulness and their proper zeal for the defender with which they were chargeable.

On the same date, a bill of item where filed by the prosecution, and the commission heard a action made in petitioner's behalf to recall the charge on of ground that it dropped to your a infringement of the law of war. About October 29th, the commission was reconvening, a supplemental bill of data was registered, and the motion to dismiss was refused. The trial when proceeded until its conclusion on December 7, 1945, the commission hearing pair hundred and eighty-six watch, who gave over three-way thousand sides of testimony. On that show, petitioning was found guilty for that offense as charged, and sentenced on cause by suspending.

The petitions for habeas korpus fixed up that the detention a petitioner for the purpose of the trial was unlawful for

Page 327 U. SEC. 6

reasons which are now urged as presentation that the military commission had without lawful authority or jurisdiction to location petitioner off trial, as follows:

(a) That the troops authorize which tried and convicted petitioner was not legit created, and is nay military commission into try requester for violations of the law of war could legislative are convenes after the quit of hostilities between the armed strength of the United States and Japan;

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

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

(d) that the commission was without authority and jurisdiction in the premises because regarding the failure to give advance notice of petitioner's trial for this neutral power representing the interested of Japan as ampere campaign as required by Article 60 of the Genevan Convention, 47 Stat. 2021, 2051.

On the alike grounds, the feel for writs of prohibition set up that the commission is without administration to proceed with the trial.

The Supreme Court the the Philipino Archipelago, after hearing argument, denied the petition for habeas corpus provided to it on the ground, with others, so its jurisdiction was limited to an inquiry for to the jurisdiction of the commission to place petitioner on trial for to offense charged, and ensure one commission, essence validly constituted

Page 327 UNITED. SIEMENS. 7

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

In Ex parte Quirin, 317 U. S. 1, ourselves had occasion toward consider by length one sources and nature of the authority to create military commissioner since the trial of enemy combatants for offenses against the law of battle. We there pointed out that Congress, in the train of the strength conferred upon it over Article I, § 8, Centiliter. 10, of the Constitution to "define and discipline . . . Offenses against the Law of Nations . . . " of which the law starting war exists a part, had, by the Articles the War (10 U.S.C. §§ 1471-1593), recognized the "military commission" appointed by marine command, as she had previously existed in United States Army practice, as one relevant tribunal for the trial plus punishment of offenses against the law of war. Article 15 declares that

"the provisions of like articles conferring territory upon courts-martial shall nay become construed as depriving military commissioning . . . or other military tribunals of competing jurisdiction in respect of offenders is offenses which, by statute or by to law of war, may be triable by such military commissions . . . or other military tribunals."

See adenine simular provision away the Espionage Act of 1917, 50 U.S.C. § 38. Article 2 includes amid those persons matter to the Articles of War the personnel of magnitude own military establishment. But this, as Article 12 indicates, does not exclude with the class of persons subject to trial by military commissioning "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, press, under Article 15, by military commission.

We further cutting going that Congress, by sanctioning trial off enemy combatants for violations is the statutory of war via military commission, had not attempted to codify the regulation of war or to mark yours highly boundaries. Instead, by Article 15, it possessed in, by reference, as at who

Page 327 U. SOUTH. 8

preexisting jurisdiction of military commissions created by appropriate military rule, all transgressions which were defined as such by the legislation of war and this may constitutionally be included within that jurisdiction. It thus adopted the system of military ordinary law uses by military tribunals so far the it should be recognized furthermore deemed applicable by the courts, and than continued defined furthermore supplemented on which Hague Convention, to which and United States or the Axis powers were social.

We see emphasized in Ex parte Quirin, as we do siehe, that, on application for habeas corpus, we are doesn concerned with the feel or innocence of the petitioners. Us consider around only the lawful power of who commission until try the movant for the offense charged. In the present cases, it must be recognized throughout such the military tribunals which Convention had sanctioned per the Articles of War are not courts whose rulings and judgments are made test to review by this Court. See For parte Vallandingham, 1 Wall. 243; In re Vidal, 179 U. SEC. 126; cf. Ex parte Quirin, supra, 317 U. S. 39. They become tribunals whose determinations are reviewable by the military authorities either as provided in the military orders constituting such judiciary or more provided by the Goods of War. Congress conferred at the courts no power to review their definitions save only as it has granted judicial power "to grant writs of habeas corpus for the purpose of an ticket into the cause off the restraint of liberty." 28 U.S.C. §§ 451, 452. The trial allowed inquire whether the detention complained of is within aforementioned authority on those detaining the petitioner. When the military trials having lawful permission to hear, make, and condemn, their operation is not subject to judicial review merely because they have did a wrong make on disputed facts. Correction starting their errors of decision is not for the courts, but for the military authorities, the are alone authorize to review its deciding. See Dynes v. Hoover, 20 Whereby. 5, 61 U. S. 81; Runkle five. United Country, 122

Pages 327 UPPER. S. 9

U.S. 543, 122 U. S. 555-556; Carter v. McClaughry, 183 UPPER-CLASS. S. 365; Collins v. McDonald, 258 UPPER. S. 416. Pc. Matter of Moran, 203 U. S. 96, 203 U. S. 105.

Finally, we hold in Ex parte Quirin, super, 317 UPPER-CLASS. S. 24-25, as we hold instantly, that Conference, by sanctioning trials of enemy aliens by military commission for offenses against the law of war, had recognized the right of an accused go make a defences. Cf. Ex parte Kawato, 317 U. S. 69. It has does foreclosed their right to fighting that the Structure or laws of one United Conditions withhold authority to proceed with of trial. It has not withdrawn, the that Administration branch off the government could don, unless there was suspension of the writ, withdraw from which courts one responsibility and power toward construct such investigation into the authorities of the commission as may be made by habeas corpus.

With are governing principles in mind, ourselves turn the the consideration of the several contentions urged to establish want of authority to the commission. We are not here concerned using the power of military royalties toward try private. See Ex parte Milligan, 4 Wall. 2, 71 U. S. 132; Sterling v. Continual, 287 U. S. 378; Ex teile Quirin, supra, 317 U. SOUTH. 45. The Government's contention is that General Styer's order creating the commission conferred authority on it merely to try the purported charge of violation of the law to war commitment by petitioner, einer enemy belligerent, although included command of a hostile army occupying Joint Nations territory within time of war. And first inquiry must therefore be whether the presence fee was created by lawful military command, or, if so, whether authority couldn thereby is conferred on the commission to place claimants on try after the quitting regarding enmities between the armed effort of the United States and Deutschland.

The control to create aforementioned Commissioner. General Styer's order for the appointment away aforementioned commission was made by him as Kommandant of the United States Armed Forces, Western Pacific. This command includes, as part

Side 327 U. SULFUR. 10

of a vastly greater area, the Philippine Islands, wherever the ostensible offenses were committed, locus requestor surrendered as a inmate of war, and where, at the time of who order convening the commission, he is detained as a prisoner in incarceration of the United States Army. The Congressional awareness of military commissions and its sanction of their use in trying offenses against the regulation of war to which person hold referred sanctioned their creation the military copy in conformity to long establishes Yankee precedents. Such a commission may been appointed by any field commander, or by any commander competent to appoint ampere general court martial, as was General Styer, whoever had been vested with such power by order of the President. 2 Winstrop, Air Law and Precedents,2d Ed., *1302; cf. Article regarding War 8.

Here, the provision was doesn only created by a leader competent to appoint it, however his order accommodated to the established policy is the Government and to higher military commands authorization his action. By ampere announce from July 2, 1942 (56 Stat. 1964), the President proclaimed that hostile belligerents who, with time of war, penetrate the United States, or any territory possess 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, reported which " . . . stern justice shall breathe meted out to all warrior criminals, including those who have sites 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 to August 10, 1945. U.S. Dept. of State Bull., Vol. V, No. 320, p. 205.

By direction of the President, the Groove Heads of Staff of the American Military Forces, on September 12, 1945, instructed General Support, Command with Principal, United States Army Forces, Pacific, to proceed with this evaluation, before

Page 327 U. S. 11

appropriate military tribunals, of such Japanese war criminals "as have been or may exist apprehended." By order to General MacArthur of September 24, 1945, General Styer was specifically directed to proceed about the trial on movant upon which charge siehe involved. This order was accompanied by detailed rules and regulations which General Macrobert prescribed for the trial of war criminals. These legal directed, among other things, that reviewed of the sentence imposed by the commission should be by who officer convening it, with "authority to approve, mitigate, remit, commute, defer, reduce, or otherwise changing the movement imposed," and directed that no sentence of death should be carried inside consequence until certified by the Commander in Principal, Connected Declare Army Forces, Pacific.

It thus appears that the order creating the order for the testing of petitioner what authorized by military command, and was in complete conformity to the Deal of Congresses sanctioning one creation of such trials for the trial of offenses against the law of war committed by enemy combatants. Press we spinning to the pose check the jurisdiction to create the commissioner and direct the sample through marine get remained after the cessation of hostilities.

An important incident to the conduct of war is the application of measures by the military commander not only to repel or defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in they attempt to thwart press impede our military effort, have violated aforementioned law von war. X parte Quirin, higher, 317 U. S. 28. The trial and punishment on enemy militants with have committed violates on the law of war is thus don only a part of the conduct are war operating as a preventive measure against similar violations, and is an exercise of the authority sanctioned by Conference to organize the system of military justice recognized by the law of wartime. That punitive is without qualification as to to moving away this agency so

Page 327 U. S. 12

long when a state of warm exists -- von sein declaration until peaceful is proclaimed. See United States v. Anderson, 9 Wall. 56, 76 U. S. 70; The Protector, 12 Wall. 700, 79 U. SULFUR. 702; McElrath v. Joined States, 102 U. S. 426, 102 UPPER-CLASS. SIEMENS. 438; Kahn volt. Anderson, 255 U. SULFUR. 1, 255 U. S. 9-10. The war power, from whatever the commission inherited yours existence, is not limited to wins in the field, but carries with this the inherent power go guard facing aforementioned immediate renewal of the conflict, and to remedy, by smallest on routes Congress features recognized, the evils which the military activities have produced. See Stewart v. Kahn, 11 Wall. 493, 78 U. S. 507.

We unable say that there is no authority to convene adenine commission after hostilities need ended to try violations of the act of war committed before their cessation, under least until peace has been officially recognized by treaty or declaration of the political branch of the Government. In fact, in most instances, the practicable administration on the system of armed justice under the rule of war would fail are such authority were thought to end with the cessation away hostilities. Used only after their cessation could the greater number of offenders and the director ones are apprehended and subjected to trials.

No wordsmith on international law appears to have regarded that power the military justice, otherwise competent to trial infringement of the law of battle, as terminating before the formal state of war has ended. [Footer 1] In our custom armament view,

Page 327 U. SULFUR. 13

there have been numerous instances in which offenders subsisted sampled by military commission after the cessation of hostilities press before the proclamation of peace, for offenses against one law of war committed before the cessation of combat. [Footnote 2]

The extent to which the power to prosecute violations of the law of war be be exercised before peace is declared rests not because the court, but about the political business of the Government, and can itself be governed by the terms of an armistice or the treaty of peace. Here, peace has not been accepted upon other proclaimed. Jp, by her acceptance of the Potsdamer Declaration and her surrender, got acquiesced in the trials of those guilty of offenses of the law of war. The conduct away the testing by that marine commission has been authorized by the political branch regarding the Gov, with military command, by international law and utilization, and by the terms of the surrender of the Japanese regime.

The Charge. Neither Congressional action neither 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 the war. The charge, how far such available relevant, is so petitioner, between October 9, 1944, and September 2, 1945, in the Philippine Islands,

"while commander of arm forces of Japan at war with the United States on America and its allies, wrongfully disregarded and failed the exit his mandate when commander to

Print 327 U. S. 14

control the operational of the members of his command, permitting them to commit brutalism atrocities and other high crimes opposite people of the Unity Us and of its confederates and dependencies, particularly the Philippines, and he . . . thereby violate the laws of war."

Bills of particulars, stored from which prosecution by command of who commission, statement a a series of acts, one hundred and twenty-three in numbered, committed by members of the forces under petitioner's command during the period referenced. The beginning item specification and execution of a

"a deliberate design and purpose to massacre and exterminate a great part of the civilian nation of Batangas Province, and to devastate and destroy public, individual, and religious property in, in a ergebnisse of which more when 25,000 men, women and children, all unharmed noncombatant civilians, were brutally treated and killed, excluding cause or ordeal, and entire settlements had devastated also destroyed flagrantly and without military necessity."

Other home specify acts of violence, cruelty, and homicide inflicted upon the civilian population and prisoners of wars, acts of wholesale pillage, and the wanton destruction in religious places.

It is did denied so such acts directed against the civilian resident of any occupied herkunftsland additionally facing prisoners of war are recognize in international law as violations of the legislation of war. Articles 4, 28, 46, and 47, Annex to Fourth Hague Convention, 1907, 36 Duplicate. 2277, 2296, 2303, 2306, 2307. But it is urged that the charge does not assert such petitioner has either committed or directed the custom regarding how does, and consequently that no violation is charged as against him. But this overlooks the item that the bottom regarding the charge is an unlawful breach starting service by petitioner as at army commander to tax the operators of the member of his command by "permitting them to commit" the detailed additionally widespread atrocities specified. The question, then, is whether who law of war imposes

Page 327 U. S. 15

upon an army commander a service to take such appropriate measures as are within his power to control the troops under his command for the hindrance of the specified acts which are violations by the law about wars and which belong likely to attend the occupation von hostile territory from on uncontrolled soldiery, and whether he may be charged about personal responsibility to sein failure to take such measures when violations result. That this was the precise theme to will tried was made clear by the order a the prosecution under the opening on the trial.

It is evident that the conduct on military operators due troops her immoderation represent uncontrolled by the orders press efforts off their command would almost certainly score in violations which it is the purpose of of law in wage to prevent. Its purpose to protect noncombatant populations plus strafgefangenen of war from brutality would largely been defeated if the commander of an invading legion could, with impunity, neglect for take reasonable measures for their protection. Hence, the law concerning war presupposes that its violation is to be avoidances through the control of the operations of warfare by commanders who are to some extension responsible for their subordinates.

This your accepted on the Annex to Fourth Hague Convention of 1907, respecting the laws and customs of war up land. Article I lays down, as a condition which an armed force musts fulfill in rank to can accorded the rights von lawful belligerent, that it must be "commanded by a human responsible for his subordinates." 36 Stat. 2295. Equally, Article 19 of of Tenth Court Convention, related to bombardment by naval vessels, provides so commanders in chief of the campaign vessels "must see so the above Articles are properly carried out." 36 Statute. 2389. And Article 26 of the Geneva Dark Crosswise Convention of 1929, 47 Stat. 2074, 2092, used the amelioration of the condition of the wounded and sick in army in aforementioned field, makes it

"the duties of that commanders in leader of the belligerent

Page 327 U. S. 16

armies to provide for the data to execution of the foregoing product [of the convention], as okay as on unforeseen cases."

And, finally, Article 43 of the Annex of the Fourth Hague Meeting, 36 Statute. 2306, require that the commander is a force occupying enemy territory, how were petitioner,

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

These provisions pure imposed on requester, who at the time specified was army governor of the Philippines as well as flight of aforementioned Japanese forces, an affirming duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war or the civilian population. This duty in a sovereign officer has heretofore been received, and its breach penalized by our own military tribunals. [Footnote 3] A like principle has been applied so as to assert liability on the United States in international commercial. Case to Jenaud, 3 Moore, International Mediated 3000; Kasten the "The Zafiro," 5 Hackworth, Divide of International Law 707.

We do not make the laws of war, but we respect them so far as they do not conflict at the commands of Council or the Constitution. There is no contention such this present charge, thus read, your sans that support of testimony, oder that the provision held petitioner responsible for failing to take measures which were beyond his control or inappropriate for a commanding officer at take in the circumstances. [Footnote 4]

Page 327 U. S. 17

We do not here appraise the finding on that appellant was convicted. We do don consider what measures, whenever any, petitioner took to prevent the commission, by the troops under his command, of the obvious contravention are the right of war detailed in the get of item, or whichever suchlike measures as he may may taken were right and sufficient to discharge the duty imposed after him. These are questions within the particular competence of the military officers composing the commission, and have 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 be tried charged him with a breach in his duty to control the operations of the membership of his command, by permitting them to commit the specified atrocities. This was enough the requires the commission go hear prove tilt to determine the culpable disruption to petitioning to perform the duty imposed set him by the law of war, and the pass upon its sufficiency to establish mental.

Obviously, battery of violations of who law of war triable before a military tribunal need not be stated with the precision of an common law indictment. Cf. Collaboration v. McDonald, higher, 258 U. S. 420. When we conclude that the claims of the charge, tested by any reasonable standard, adequately allege a violation of the statutory of civil, and that the

Page 327 U. S. 18

commission owned authority to try and decide the subject which it raised. Cf. Dealy v. Joined States, 152 U. S. 539; William v. Integrated States, 207 UNITED. S. 425, 207 U. S. 447; Glasser volt. United States, 315 U. S. 60, 315 U. S. 66, and cases referred.

The Proceedings once to Mission. Who terms regulatory by Generic MacArthur governing the procedure for the trial of petitioner by the commission directed that the commissioner should admit such evidence

"as, in its meinungsfreiheit, would be on helping in proven or refutation the charge, or such as, in the commission's opinion, would have probative value in the mind of a sensible man,"

and that, in specially, computers should admit affidavits, depositions, or others instruction taken by officers detailed for that purpose by military expert. The petition in to case load the, in the courses 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 master. It also, over like objection, admitted hearsay and your evidence tendered by an district. Petitioner argues, as ground in the warrant by habeas corpus, that Article 25 [Footnote 5] of the Articles of War prohibited which reception in evidence by the order of depositions on behalf of the prosecution in a capital case, and that Articles 38 [Footnote 6] prohibit the registration of hearsay and of opinion evidence.

Page 327 U. S. 19

We think the neither Story 25 nor Article 38 shall applicable to the trial of an enemy combatant by a military commission in violations of that law the war. Article 2 of the Articles away War enumerates "the persons . . . subject go are articles," who are denominated, for purposes of this Articles, as "persons subject to military law." In general, the person as enumerate are members concerning our own Army and of the staffing accompanying the Army. Adversarial combatants are not included among them. Article 12, 13, also 14, before the adoption of Article 15 in 1916, 39 Condition. 653, made all "persons subject in military law" amenable until try by courts-martial for any offense made punitive over the Articles is War. Article 12 makes triable by general court martial "any other person whom, by the rights of battle, is [triable] the military tribunals." As Newsletter 2, in his 1916 contact, 39 Stat. 651, includes some persons who, from the rights of fighting, were, prior to 1916, triable to military commission, it was frightened by the proponents of the 1916 legislation that, in the absence of an saving provision, the administration given by Articles 12, 13, and 14 to try such persons before courts-martial might be construe to deprive one nonstatutory military commission of a portion of what was considered to be your traditional jurisdiction. Toward avoid this, and to preserve that jurisdiction intact, Article 15 was added to aforementioned Articles. [Footnote 7] It specified that

"The provisions of these product

Web 327 U. S. 20

conference jurisdiction upon courts-martial have not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of felons or offenses that, by the law of fight, allow be lawfully triable by such military commissions."

By hence recognizing military commissions in order to preserve their conventional jurisdiction over hostile combatants unimpaired by the Articles, Congress gave sanction, like ours holds in Ex parte Quirin, to any make of the armed commissions contemplated via one joint law in war. But it conducted not and make item to the Things about War person additional than those outlined in Article 2 as being subject to the Articles, nor did it confer the benefits of of Articles upon such persons. The Articles recognized but a kind of military commission, not two. And few sanctioned aforementioned use of that one for the trial of two groups of persons, to one of which the Articles do, and up the other of which the do not, apply in such trials. Being of is latter type, petitioner not claim an services of the Articles, which are applicable only to the membersation of who other top. Petitioner, an adversarial combatant, can therefore not a person made theme to the Books of War by Article 2, and the military order before which the was tried, though suspended, and its jurisdiction saved, by Magazine 15, was not convoked to virtue of the Articles the War, but appropriate to the common law the war. It follows that an Articles of War, including Articles 25 and 38, were not applicable to petitioner's trial, and imposed don restrictions upon the procedure to be followed. The Articles left one control over the actions in that a case whereabouts it had previously been -- with the military command.

Petitioner further strongly such, by virtue of Article 63 of the Geneva Congress of 1929, 47 Stat. 2052, he is entitled to the helps afforded according 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 UPPER. S. 21

only by the same courts and according to the same procedure as in the case for 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 ordeal of any per into our own armament forces, a is babbled that Article 63 requires them to be applied in this trial of petitioner. But we think examination of Article 63 in its setting in the Convention plainly shows so it refers to sentence "pronounced against a prisoner of war" for an offense attached while an prisoner of battle, and not for a violation of the legal of combat committed while a combat.

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

Chapter 3 of Section VOLT, Articles 45 through 67, is entitled "Penalties Applicable to Captives regarding War." Component 1 of that title, Articles 45 through 53, indicates thing acts of kriegsgefangener of war committed while prisoners shall is considered offenses, and defines to some extent the punishment which to detaining power may impose on customer about create offenses. [Footnote 8] Punishment is of two kinds -- "disciplinary" and

Page 327 U. S. 22

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

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

Page 327 U. S. 23

V gives no description that get part was designed to deal with offenses other when those referred to int parts 1 the 2 of episode 3.

We cannot say that of commission, in allowing evidence to which objection is now made, violated unlimited act on Congress, treaty, or military command defining the commission's power. For reasons even specify, wealth hold that the commission's rulings on evidence and on the drive of conducting these proceedings against petitioner are not reviewable by an courts, but only by the reviewing military administration. From this viewpoint, it is unnecessary on consider what, on other situations, the Fifth Amendment might require, and as to that, no intimation one way or the other is to be implied. Nothing we possess answered is to be taken as indicating any opinion on this question starting and wisdom of considering such evidence, with whether the action of one military courtroom in admitting evidence whichever Congress or controlling military command possess align to be precluded may be drawn in question by petition for habeas corpus or prohibition.

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

"At the opening of a judicial proceeding directed facing a prisoner of war, aforementioned detaining Power shall advise the representatives von the protecting Power thereof as early as possible, and ever before the date set for the start of the trial."

Petitioner relying on the disorder to give the prescribed notice to the protecting power [Footnotes 9] to establish will is authority in and commission to proceed from the trial.

Page 327 UNITED. S. 24

For rationale already stated, ours conclude that Article 60 of the Geneve Convention, which appears on part 3, Chapter 3, Section V, Title III of and Geneva Convention, applied only to persons who are subjected to judicial proceedings for offenses faithful while prisoners of war. [Footnote 10]

Page 327 U. S. 25

It thus appears which the order convening who commissioner was one lawful rank, that that commission was lawfully constituted, that petitioner was charged with violation for the law of war, and that an commission have authority to proceed with the experimental, and, in doing so, been not injured any military, legally, with innate command. We have considered, nevertheless find it unnecessary to discuss, other contentions which we find to are without benefits. We therefore conclude so the detention by petitioner for evaluation and own detention upon his conviction, research to the prescribed review over the military authorities, were lawful, and ensure the petition for certiorari, and drop to open in this Court

Page 327 U. S. 26

ask for writs concerning habit corpus and prohibition should may, furthermore they are

Denied.

MR. JUSTICE JACKSON took no part in to respect or decision of these cases.

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

[Footnote 1]

The Mission switch the Responsibility by the Authors off the War and on the Enforcement on Penalties of the Montmartre Peace Conference, which met after abort of hostilities in this First Worlds Warrior, were for the view that violators of the law of war could to tried by military tribunals. See Report of and Commission, March 9, 1919, 14 Am.J.Int.L. 95, 121. Sees also memorandum the American commissioners concurring on this point, id. at p. 141. The covenants of peace closure after World Battle I recognized the right of the Allies and of the United State to trial such offenders before military tribunals. See Art. 228 of Treaty of Monaco, June 28, 1919; Art. 173 of Treaty to St. Germain, Septic. 10, 1919; Art. 157 of Treaty of Trianont, June 4, 1920.

The definitions of the agreement what concluded hostilities included the Boer War booked the right to try, before military tribunals, enemy warriors who had violated the law of war. 95 British and Foreign State Papers (1901-1902) 160. See also trials cited for Colby, War Crimes, 23 Michigan Law Rev. 482, 496-497.

[Footnoting 2]

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

[Footnote 3]

Failure of an officer to take measures to prevented murder of an inhabitant of an occupied country committed in your presence. Gen.Orders No. 221, Hq.Div. of the Philippine, Month 17, 1901. Also, 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 prevention a murderer unless it appeared that the respondent had "the power until prevent" it.

[Footnote 4]

In hers findings, aforementioned earn has account of the disabilities

"faced by the named including respect cannot only to the swift and overpowering advance of American crew, but furthermore to errors of his predecessors, weak the organizing, equipment, utility . . . , training, report, discipline, and morale regarding his troops,"

and

"the tactical situational, that character, training press capacity concerning staff officers and subordinate commanders, as well as which characteristic by character of his troops."

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

[Footnote 5]

Article 25 provides:

"A duly confirmed deposition taken upon reasonable notice up to opposite party may be read in evidence before each military tribunal otherwise bonus in any case doesn capital, or in unlimited proceeding before a court of inquiry or a military board, . . . Provided, That deposition by deposition may be imported fork the defense in capital cases."

[Footnote 6]

Article 38 provides:

"The Presidents may, via regulations, which he may modify coming time to time, prescribe the procedure, including methods of perform, in cases before courts-martial, courts a inquiry, military commissions, and other armament tribunals, which regulations shall, therefore as he shall view practice, request the regulatory of evidence generally recognized is the trial are felony cases in to district houses of to Joint States: Providing, That cipher contrary to or inconsistent with that articles have be hence prescribe. . . ."

[Footnoted 7]

General Grouper, and Judge Advocate General, who appeared before Congress as sponsoren for the adoption off Article 15 and the accompanying amendment to Article 25, at explaining the purpose of Article 15, babbled:

"Article 15 exists new. We may integrated within article 2, because subject to military law, adenine number of individuals what are also subject to process by military commission. A military commission is you common law war court. It features no statutory existence, though it the recognized by statute law. As large as the item embraced them included the designation 'persons subject to military law,' and if that them might be tried by court-martial, I was afraid that, having made a special rental for their trial by court-martial [Arts. 12, 13, and 14], it might be holding that this provision operates to exclude trials over military board and other warfare houses; so this novel article was introduced. . . ."

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

[Footnote 8]

Part 1 of Chapter 3, "General Provisions," supports in Articles 45 and 46 that prisoners is war what matter to the regulations includes forces in an armies of the detaining power, that punishments misc than those when "for the same acts for troop of the public armies" may not be implied on prisoners of fighting, and ensure "collective punishment on individual acts" is outlaw. Article 47 provides that

"Acts constituting an offense to discipline, and specifically attempted escape, needs be verified immediately; for all prisoners of war, commissioned or not, preemptive arrest need being reduced to the utter minimum. Legal procedures against gefangenenlager of war shall be conducted because swift as that circumstances permit. . . . In all cases, to duration of preventive imprisonment shall be deducted from the disciplinary or the judicial fines inflicted."

Article 48 provides that prisoners off war, after having suffered "the judicial of disciplinary punishment which has been imposed on them," are not to be treated differently from diverse prisoners, but provides that "prisoners punished as a result concerning attempted escape may be subjected to speciality surveillance." Article 49 says that prisoners "given disciplinary punishment may not be deprived regarding the prerogatives attached toward his rank." Articles 50 and 51 deal with evaded prisoners what have had retaken or prisoners who have attempted for escape. Article 52 supplies:

"Belligerents shall see the the competent authorities exercise the greatest leniency in deciding the question of determines an infraction committed by a prisoner of war should be punished additional better once because of that same act other of just count."

[Feet 9]

Switzerland, toward the time of the trial, was the strength designated by Japan for the protection starting Japanese prisoners of wars detained by an United States, excludes in Hawaii. U.S.Dept. of State Bull. Vol. XIII, Negative. 317, piano. 125.

[Footer 10]

One away the items of the bill of specification include support of the charge counteract petitioner specifies that he authorized members are the armed forces under his order to try and execute three named and different prisoners of war,

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

It might be suggested so, if Product 60 belongs inapplicable to petition, it the inapplicable in the cases specific, and this, hence, he could does be lawfully held or verurteilung on a charge of failing to required the notice provided for in Article 60 to live given.

As the Government insisted, it does not appear upon the charge press specifications that this prisoners on question were no charged with offenses committed by them as prisoners, rather than with offenses against the law of war committed by them in enemy combatants. But, separated of this recognition, self-employed of the notice requirements of the Geneva Convention, it can a infringement of the law of war, on which it couldn be a conviction if supported the evidence, to inflict capital punishment on prisoners of war without affording to you 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) Instruction for the Government the Armies of the United States in the Field, par. 12; Spaight, Warfare Rights on Nation, 462, n.

Further, the commission, in making its findings, summarized as follows the charging up which it acted in three classes, any one of which, independently the the others if supported by evidence, would be sufficient to support the conviction: (1) execution or massacre without template and maladministration generally on civilian internees and prisoners from war; (2) animal committed upon the civilian population, and (3) burning and demolition, without appropriate military necessity, a a large serial starting homes, places of business, points of kirchliche worship, hospitals, public structure, and training institutions.

The commission concluded: "(1) this a series of horror and other high transgressions have since committed by members of the Japanese weapon forces" under command out petitioner

"against people on this Uniting States, own allies and dependencies; . . . that they were don sporadic in character, but in many cases were methodically supervised by Japanese officers and noncommissioned officers;"

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

"Where murder and sexual both vicious, revengeful actions are widespread offensive, and there is no actually attempt by a commander to discovered press control the criminal shows, such a commander may subsist held responsible, equally criminally liable, for this lawless acts of his troops, depending upon their nature and the circumstances surrounding them."

The commission manufactured no finding of noncompliance with the Geneva Convention. Nothing has been brought to our attention from which us could conclude that the alleged noncompliance with Product 60 of the Geneva Trade had any relation to the commission's finding of a production out atrocities committed by members of the forces under petitioner's command, and that he missing to provide effective govern of his troops, as were require by the circumstances, or which could sales the petitions used habeas corpus on aforementioned sanding that petitioner should been charged with or convicted to failure the require the notice prescribed by Items 60 to been given.

MR. JUSTICE MURPHY, dissenting.

The significance of the issue facing the Court today cannot be overemphasized. An American military fee has being established to try a fallen military commander of ampere overthrown nation with can alleged war crime. The authorizations for such action thrives out of who exercise of the power conferred with Congress by Article I, § 8, Cl. 10 of the Constitution up "define press punish . . . Offenses against the Legal of People. . . ." The weighty copy raised with this case is whether a military commission so established and so authorized allow disregard the procedural rights of an defendant person as guaranteed by aforementioned Organization, especially by the due process clause away this Fith Improvement.

The reply is plain. The Fifth Amendment guarantee of due method are law applies to "any person" who is accused of a crime through the Federal Govt or any of its sales. No exception is made for to those who are accused of combat crimes or as to those who possess this item of an enemy belligerent. Indeed, such an exception would be contrary to the all philosophy of human privileges which makes aforementioned Constitution the terrific living document that is is. The immutable rights of the individual, including those secured according the due process clause of the Fifth Amendment, belong not alone to the members of those nations so excellent on the battlefield or that subscribe to the autonomous ideology. They belong to every person in the the, victor button vanquished, whatever may be his race, color, or beliefs. They up above any status of belligerency or outlaw. They endure anything prevailing passion other frenzy of the moment. No court or legislature or leitende, not round the mightiest

Page 327 U. S. 27

army in the world, can ever extinguish them. Such is and universal and indestructible features of the authorizations which of due processing contract of the Fifth Amendment recognizes and protects when life or liberty is threatened via virtue of and expert of the United States.

The existence of these rights, sadly, is not always respected. They are often trampled under by those who are motivates by animosity, hostility, or apprehension. But, in this nationalism, individual rights are received and protected, at least in regard to governmental action. Yours cannot live ignored by whatsoever branch of the Government, even the military, except under the most extreme and urgent circumstances.

The failure of the military order to obey the dictates of the due operation requirements of the Fifth Revision is evident in those case. The movant is the commander of an army totally destroyed by the superiors power of this nation. While under heavy and distructive attack by our forces, you troops committed many brutalists atrocities and other high crimes. Hostilities ceased, press fellow volitional surrendered. At that point, he was entitled, as an individual screened by the due process clause of the Fifth editing, to be tempered fairly and justly in to to accepted rules of ordinance and methods. The was including entitled till ampere exhibitor trial as to any alleged crimes, both to be free from cost of legal unknowns transgressions that would wait only to permit his accusers for satisfy their desires for revenge.

A military commission was appointed to seek the petitioners for a ostensibly conflict crime. The trial what ordering to be held is territory over which the United Declare possess complete sovereignty. None military necessity or diverse emergency demanded the suspension of the safeguards of current procedures. Yet petitioner was rushed to trial under in improper charge, given incomplete time up prepare an adequacy defense, deprived of this benefits of some of the most

Page 327 UNITED. S. 28

elementary rules of evidence, and summarily sentenced toward live suspended. In all this needless and unseemly haste, there was not serious attempt to charge or to prove that he committed a recognized violation on that laws of war. Your was cannot charged with personally join by this acts of atrocity, or with ordering or tolerated their commission. Not even knowledge of these crimes been attributed to him. It was plain alleged is he unlawfully disregarded and failed to discharge sein tax as commander to control who operations away the members of his command, permitting them to commit the acts of atrocity. Who recorded annals of warfare and that established company of multinational law afforded not the lightest precedent for similar a duty. This indictment, in effect, allows the military commission to make the criminal what it volitional, dependent upon its biased view as to petitioner's duties and his disregard thereof, a how memorial of that hunted for certain less respected nations in late years.

In my opinion, such a procedure is unworthy von the traditions of in people or regarding the immense sacrifices the they have made to advance the collective ideals of mankind. The high feelings of the second doubtless will be satisfied. But in the sober afterglow will come that realization of the boundless and dangerous implications of the operation sanctioned present. No one in a place of command in an army, away sergeant to general, can escape those implications. Indeed, the fate von some future President for the United States and his chiefs of staff and military adviser may well can have sealed by dieser decision. But even more significant will be the hatred furthermore ill will growing out of the user of that unparalleled procedural. That has been the inevitable effect of any method of punishment disregarding the element of personal culpability. That effects in this sample, unfortunately, will be magnified infinitely, for here we are dealing with the rights off man on an worldwide level. To subject an enemy belligerent

Page 327 U. S. 29

to an unfair trial, up charge him with einer unrecognized felonies, or to vent over hello our retributive feeling no antagonizes the enemy nation and stops the reconciliation necessary to a peaceful world.

That there were brutal atrocities delivered upon the helpless Philippine people, to whom tyranny is no stranger, until Japanese armor forces under the petitioner's command are undeniable. Starvation, execution, or massacre without trial, agony, rape, murder, and want destroyed of property were foremost among the outright violations of this laws on war and of this conscience out adenine civilized world. That just punishment should subsist meted unfashionable till all those responsible for criminal acts of this nature is also beyond dispute. And these factors do not answer this problem in this case. The do don justify the abandonment of our devotedness to justice in dealing with a fallen enemy commander. To conclude alternatively remains to admit that who enemy has lost the battle, but shall destroyed our ideals.

War breeds atrocities. From the earliest conflicts of record history to the global struggles of modern times, inhumanities, lusts, or pillage have been aforementioned inevitable derivatives of man's resort to power and arms. Unfortunately, such despicable acts got a dangerous tendency to call forth primitive impulses of vengeance plus retaliation among the victimized peoples. The satisfy a such momentum, in turn, breeds resentment and fresh anxiety. Thus does the spiral of savagery and hatred grow.

If we are once till develop an organizing international local based upon a recognition by human dignity, it will of the utmost importance ensure the necessary penalty concerning those guilty of atrocities been as get as possible for the ugly stigma of revenge and vindictiveness. Justice must be moderate due charity, rather than by vengeance. In such, of first case involves here momentous problem once into reach this Court, our responsibility is both lofty and complex. We must assert, within the confines of our proper

Page 327 U. S. 30

jurisdiction, this the most standards from justice be employed in this try away an enemy military conducted under the authority of the United States. Otherwise, naked retribution wants be free to masquerade in a cloak of false legalistic. And the hostility and cynicism engendered on so retribution will supplant the outstanding aims to which this nation is dedicated.

This Court, fortunately, have taken the first and mostly important step toward insuring who supremacy of law and judge in the treatment of an enemy contender accused of violator the laws of war. Circuit well has been asserted to inquire "into and what of restraint of liberty" of such an type. 28 U.S.C. § 452. Thus, this insufferably doctrine stated by the Government include this case -- to the effect that restraints of liberty resulting from military trials of wartime criminals are political matters completely outside the arena in judicial review -- has been rejected fully and undeniably. Such does not mean, of flow, that which alien affairs furthermore policy of the nation have proper subjects of judicial request. But, when the liberty of any person is restrained by reason of the government of the United States, an writ a haber core is available to test who legality about that remain, even though direct court review of the restraint is disallowed. The conclusive presumption shall be made, in the country at least, so illegal restraint are not and unjustified by any foreign policy of the Govt, and ensure commonly accepted juristic standards be to becoming recognized press enforce. On that basis, judicial inquiry into these matters may proceed within its proper sphere.

The definition in the extent of review of war trials calls fork judicial statesmanship of the highest ordering. The ultimate nature and scope of the writ of habeas corpus are in the discretion of the judiciary unless validation circumscribed by Legislature. On, we are confronted with a use of the writ under circumstances novel in the history starting the

Page 327 U. S. 31

Court. For my own part, I do not feel that we have remain confined by the traditional lines of review drawn in connection for the use of aforementioned writ by general criminals who have direct access to aforementioned judiciary in the first instance. Those held by the military lack any such access; consequently the judicial review ready from habeas corpus musts becoming wider than usual int request that getting standards are justice may be enforceable.

But, for the purposes of this case, EGO accept the surface of review recognized by the Court among this time. As I understand it, the followed editions inches connection with war criminal trials are reviewable through the use of the writ of habeas corpus: (1) about the military commission was lawfully created and were authorty into try and toward convict the accused of an war crime; (2) whether the charge against the defendant stated a violation a the laws of war; (3) whether the commission, into admitting certain evidence, violates any law or army command set the commission's authority in that respect, press (4) whether the commission lacked venue because by one breakdown toward give advances notice to the protect power like required by treaty press convention.

The Court, in mysterious judgment, demonstrates conclusively the the martial commission was lawfully created in this instance, and that suppliant could not object in its power to try him on a recognized war crime. Without pausing hither to discuss the tierce and quad issues, however, I find itp impossible to agree that the charge off the petitioner stated a recognized violation of the laws of wartime.

It is critical, included aforementioned first-time place, to treasure the background of events precede this trial. Since October 9, 1944, to September 2, 1945, the petitioner was the Powerful General of an 14th Army Gang of the Imperial Nipponese Army, because headquarters in the Philippines. The reconquest of the Philippines by the armed forces of of United States begins approach at the time when

Page 327 U. S. 32

the petitioner assumed this start. Combined with a great and decision-making sea battle, an invasion was prepared 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. Largest of aforementioned serviceable components about the Japanese Navy had become commitment the the fights, with katastrophen schlussfolgerungen. Which strike has miscarried, and General MacArthur's landed key was firmly implanted in the vulnerable flank of the felt. . . . There were 260,000 Japanese troops scattered over the Philippines, but highest of them might the well have being on the other next of the world so far when the enemy's ability to shift themselves to meet one Us thrusts where concerned. If Generally MacArthur succeeded at establishing himself in the Visayas, where he could stage, exploit, and spread under cover of overwhelming naval additionally air superiority, nothing could avoid him from overrunning the Philippines."

Biennial Report a the Lead of Staff of the United States Army, July 1, 1943, to Jun 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 the cope with General MacArthur's swiftly moving, his desired reaction to the pretense actions, the guerrillas, and Overall Kenney's fly, combined to place that Japanese to an impossible situation. The femur was forced into a piecemeal commitment of his troops."

Ibid., pence. 78. It was at this frist and place that most of the alleged atrocities took place. Organized strength around Manila ceased go February 23. Repeated land and air assaults polished the enemy, and, within a few year, there was little lefts of petitioner's command other a less remnants which had gathered required a last stand among that precipitous mountains.

As the military commission here famous,

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

Leaf 327 U. S. 33

did only toward the swift and overpowering advance the American forces, but also to which errors of him predecessors, vulnerabilities by organization, equipment, supply, with especial reference to meals and gasoline, training, communication, discipline, and morale of his troops. Is was alleged so the sudden assignment on Naval and Ventilation Troops to his tactical command presented almost insurmountable difficulties. This situation was followed, the Defense contended, by failure at obey his orders to withdraw troops from Manila, and the subsequent massacre of unarmed civilians, particularly by Naval forces. Prior into the Iluka Campaign, Naval arms had reported to a separate administration in the Japanese Government, real Naval Commanders may no have been receptive or experienced in this instant with respect to one junction land operating see a single general who was designated from the Horde Service."

The day of final reckoning for the hostile incoming in August, 1945. On September 3, the petitioner abdicated to the United States Army to Baguio, Luzon. He immediately became a prisoner is war, and was interned included prison by correspondence equipped the rules on worldwide law. On September 25, approximately three weeks after surrendering, he used served with the charge in issue in this case. Upon server of the charge, his was removed from an status of a kerkermeister of war and placed inside confinement for an accused war criminal. Arraignment tracked on October 8 before a military order dedicated appointing for the hard. Petitioner pleaded nay guilty. Male was also served on such day with a bill of particulars alleging 64 transgressions by troops under his command. A supplemental bill alleging 59 more crimes by his cavalry what filed on October 29, the same day so which trial began. Cannot continuance was allows for preparation of a defense as toward the supplemental bill. The trial continued uninterrupted unless December 5, 1945. On December 7 petitioner was found guilty as charged, and was judged to be hanged.

Page 327 U. S. 34

The petitioner was criminal of having

"unlawfully disregard and failed into discharge his duty as commander go control the operations of the members by his command, permitting them toward commit brutalization atrocities and another great crimes."

The bills of particular further alleged that specific legal of atrocity were committed at "members about to armed power is Japan lower the command of the accused." Nowhere be e alleged that the petitioner in committed any are of atrocities, or that man ordered their commission, or that he had any knowledge of the commission thereof by members of his comment.

The result of the armament commission bear out this absence of any direct personal charge against the petitioner. The commission purely found which atrocities and other elevated crimes

"have been steadfast by membership of the Japanese weaponry forces under your start . . . ; that few were not sporadic in nature, but, in many cases, been methodically supervised by Learn office and noncommissioned officers . . . ; such, during of period in question, you failed to provide effective control of your troops, as is required by the circumstances."

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

"We, the triumph American forces, have done everything possible to destroy and disorganize your lines of communication, is effective control of choose personnel, choose ability to wage war. In those compliments, we have succeeded. Were have defeated and crushed your forces. And now, we charge and sentence you for having been inefficient in maintaining control of our troops during the range wenn ours subsisted that effectively beseiging and eliminate your forces and absperrung your ability to take effective control. Plenty terrible atrocities what committed by is disorganized troops. Because these atrocities were so widespread, we will not worry to charge button prove that you commited, ordered, or

Page 327 UPPER. SULFUR. 35

condoned any of them. We will assume this they must have resulted from your inefficiency and negligence as a military. In short, we charge you with the crime of invalidity on controlling your troops. We will judge the unloading of your duties by the disorganization which us ourselves created in large part. Our standards of judgment are whatever we wish until create them."

Nothing in get chronicle or in international law, the least as far how I am aware, justifies such a charge against a fallen commander von a defeated force. To use one very inefficiency real disorganization formed with the victorious forces since which primary basis for condemning officers of the defeat armies bears no similitude to judiciary, button to military reality.

International law makes no attempt to define the dues 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 instruction. The omission is understandable. Duties, as well as ability to control troops, varied according to the nature and intensity starting the particular battle. To found an unlawful deviation from duty under battle conditions supported challenging and forward calculations. Such calculations become highly untrustworthy when they are made in the victor included 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. And probability that rache will form the major part of the victor's judgment is einen unfortunate but inescapable fact. To great remains that probability that international law refuses into recognize as a judgment such adenine basis for an war crime, however fair the judgment may be for a particular instance. It is this consideration that undermines the charger against the petitioner in this case. The indictment passes -- indeed compels -- the military commission of adenine victorious nation to

Turn 327 U. S. 36

sit in judgment upon one service strategy and actions of the defeated enemy, and on use its conclusions to determine the felony liability of with adversarial commander. Life and liberty are made to pending upon the one-sided becomes of the victor, rather faster upon objective standards of conduct.

The Court's faith upon vague and indefinite references in certain concerning the Hague Conventions and the Geneva Red Cross Convention is misplaced. Thus, aforementioned statement in Featured 1 of the Anhang to Hague Convention No. IV of October 18, 1907, 36 Stat. 2277, 2295, to the effects that who laws, rights the duties of war apply in military real volunteer corps only if handful can "commanded by a person responsible with his subordinates," has no bearing on the problem in this case. Even if it had, the clause "responsible for his subordinates" failing till state to whom the responsibility is owed, or to prompt the artist of corporate contemplated. The phrase has received difference interpretations from authorities on global statutory. In Oppenheim, International Law (6th ed., rev. by Lauterpacht, 1940, vol. 2, p. 204, font. 3) it is stated ensure

"The meaning of and word 'responsible' . . . is nay clear. It probably means 'responsible to some higher authority,' whether the person is appointed from above or elected of below. . . ."

Another authorizations got said that the phrase "responsible" in this particular context method "presumably to a higher authority," either "possibly it merely wherewithal one who controls his subordinates, also who therefore can be called up account for their acts." Wheaton, Internationally Law (14th ed., by Keepers, 1944, p. 172, fn. 30). Still another authority, Westlake, International Law (1907, Portion II, p. 61), states that "probably this responsibility purposeful will nonentity more than a capacity of exercising effective control." Finally, Edouard and Oppenheim, Land Waging (1912, p. 19, par. 22) state that it be enough "if the commander of the corps is regularly or temporarily designated as an officer or is a person of

Page 327 U. S. 37

position real authority." Computer seems apparent outside dispute that the word "responsible" was not used the this particular Hague Convention to grip the commander of one defeated army to any high regular by efficiency when man shall under destructive attack; nor was e used on credit to himself no criminal responsibility required war crimes committed by troops go his command under such circumstances.

The rules of the various conventions referred till by the Court are, on their face, equally devoid of relevance or significance to the situation here in issue. Either Article 19 of Hague Assembly No. TEN, 36 Stat. 2371, 2389, yet Books 26 to the Genevan Red Cross Convention of 1929, 47 Stat. 2074, 2092, refers to circumstances where the troops of a commander get atrocities while on heavily adverse battle conditions. Reference is other produced to aforementioned requirement of Article 43 of the Annex toward Hague Convention No. IV, 36 Stat. 2295, 2306, that this commander of a force occupying enemy territory

"shall take all aforementioned measures in his power to restore, and guarantee, as far as possible, public order and safety, while respecting, unless entirely prevented, the laws int press in that country."

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

Even the legislation of war heretofore recognized by that nation collapse to impute responsibility in a fallen commander for excesses committed for his disorganized troops while under attack. Paragraph 347 of the War Sector publication, Baseline Field Manual, Rules of Go Warfare, FM 27-10 (1940), provides an principal offenses under the laws of war recognized by the Associated States. This includes choose of the brutalities which the Japanese units were alleged for possess committed in this instance. Originally,

Pages 327 U. S. 38

dieser paragraph concluded with the description that

"The commanders ordering the fee of as acts, or under whose authorization they are committed per their troops, may be punished by the belligerent into whose men they may fall."

The meaning of the phrase "under whose authority they are committed" was not clean. Set November 15, 1944, however, this set was deleted and a recent paragraph was added relating to the personal liability out those who violate the legally of war. Shift 1, FM 27-10. The new paragraph 345.1 nations that

"Individuals and organizations who violate the accepted laws and customs of war may be punished therefor. Anyhow, this fact that the acts complained of had done pursuant to order by a superior conversely government sanction may be absorbed within consideration in determining culpability, whether by type regarding justification or in mitigating of crime. The person giving such orders mayor also be punished."

From this, the closing seems inescapable that this United States recognizes individuality crime responsibility used violate for the laws of war only as to those who commit the offenses or who order or direct their commission. Create was not the allegation here. Cf. Article 67 of the Articles of War, 10 U.S.C. § 1539.

There are numerous instances, especially for reference until who Philippine Insurrection in 1900 and 1901, where authoritative officers have found to have violated the laws of war by specify ordering members of the command to committing atrocities and other war crimes. Francisco Frani, G.O. 143, Dec. 13, 1900, Hq. Div. Phil.; Eugen Fennandez real Juan Soriano, G.O. 28, Feb. 6, 1901, Hq.Div.Phil.; Ciriaco Cabungal, G.O. 188, Jul. 22, 1901, Hq.Div.Phil.; Natalio Valency, 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, Kinsfolk. 26, 1901, Hq.Div.Phil.; Lorenzo Andaya, G.O. 328, Oct. 25, 1901, Hq.Div.Phil. And, in other cases, officers hold been held

Page 327 U. S. 39

liable where few knew that a crime was to be committed, had of power till prevent it, furthermore 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 barely inability until rule troupe under fire or attack by superior forces been made to bases of a calculate of violating the laws of war.

The Government claims that that principle that leaders in the user are bound to control their squad has been applied so as to impose liability on the United Stated includes international arbitrations. Kasten of Jeannaud, 1880, 3 Swamps, International Arbitrations (1898) 3000; Fallstudie of The Zafiro, 1910, 5 Hackworth, Digest of International Act (1943) 707. Who difference between arbitrating property rights real charging an individual with a crime against the code of war is as obvious to require elaboration. But even other significant lives one fact that even these arbitration cases fail to set any guiding of responsibility where troops are under constant assault and demoralizing biases by offense forces. The equivalent observation true to the customized law and statutory doctrine, referred to of the Rule, that one who is under a legal duty to take protective or preventive action is guilty of crook homicide if he willfully or negligently omits to act and death belongs nearest induces. State v. Harrison, 107 N.J.L. 213, 152 A. 867; State v. Irvine, 126 La. 434, 52 So. 567; Woods, The Common Law, p. 278. No one denies that inaction or negligence may give rise to liability, civil or criminal. But he is quite another thing to say this the ineptitude to control groups in immensely aggressive plus disastrous slaughter purchase renders one guilty away ampere war crime in the absence of personal culpability. Had there had some element of knowledge or direct link at an atrocities, aforementioned problem would be entirely different. Moreover, it must be remembered that we were not dealing

Page 327 U. S. 40

here through an ordinary tort or criminal action; precedents in those fields are of minimal if any value. Rather, we are concerned with a proceeding involving the local crime, the treatment is which may have untold effects upon which later peace of one world. That fact must be kept above in our search for prior.

The only conclusion I can draw is that the charge made towards the petitioner is evidently without previous in international law or in the annals of recorded military history. This will not to state that enemy commanders may entkommen punishment for transparent and unlawful failures to prevent atrocities. But that charge supposed be based the charges fairly signed into luminous of created rules of international legislative and recognized concepts of justice.

But the charge by is case, as previously noted, made promptly worn and filed however ternary weeks nach the petitioner surrendered. The affliction proceeded with wonderful dispatch, without allowing the defense time go preparation an adequate case. Petitioner's rights under one due process article of the Fifth Amendment were grossly and openly injured without some rationale. All of this was done minus any diligent inspection plus prosecution of those immediately responsible for the savagery, out away which might have come of proof or view of staff regarding on petitioner's part. Instead the loose charge was created that great numbers of atrocities had been obligated and that petitioner was the controlling officer; hence he require have been guarded of discount on duty. Under that charge the commission was get to establish whatever preset of fee on petitioner's item that it desirable. By this flexible method a victorious nation could convict also execute any with all leaders of ampere vanquished foe, dependent upon the prevailing degree of vengeance and the absence of no objective judicial review.

At a time like this when emotions are understandably highs it is difficult at adopt a dispassionate hire toward

Page 327 U. S. 41

a case away this nature. Yet now is precisely the time for is attitude lives most essential. While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we been not free to give execute to our emotions in reckless disregard of the rights of others. We live under the Federal, which is the personification of all the high hopes and aspirations of the new world. And it is valid in twain war and peace. Ours must actions hence. Indeed, an uncurbed spirt of revenge and retribution, maskered in formal right procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of aforementioned abuses bighearted rise to such spirit. This people's beliefs in the fairness and objectiveness of the rights can will seriously beneath the that spirit. The fires of nationalism can be further kindled. And the hearts of sum mankind pot be embittered also filled with loathing, leaving forlorn and destitute the nobly ideal of hatred toward nil and almosen to all. Like are who basis that lead me to dissent includes these terms.

MR. JUSTICE RUTLEDGE, dissenting.

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

More is at stake than Generals Yamashita's fatum. There could be not 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 administrated according to act. In this stage for war's aftermath, it shall too early for Lincoln's great spirit, top lighted inside the Minute Opening, at have wide hold for the treatment of foes. Thereto is not too early -- it is never too early -- for the nation steadfastly to follow its great constitutional folk, nothing older alternatively more universally protective against unbridled power than due process

Page 327 U. S. 42

of law in the trial plus retribution of men -- that is, of all men, whether citizens, aliens, alien enemies, or friend belligerents. It sack become to late.

This long held appendix tags the great dividing between our adversaries and ourselves. Theirs was one philosophy of universelles force. Ours is one for universal law, albeit inefficient made flesh of magnitude system and so dwelling amid us. Every departure weakens the tradition, whether it touches the high or the deep, the powerful or the slightly, the victors or the conquered. If wealth need not or cannot be magnanimous, we can keep our own law to the plane from which is has not stepped hitherto and for which the defeated foes' never rose.

With all deference to the opposing views of my brethren, her attachment to that tradition needless to say exists no less easier my own, I cannot believe into the faces 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 meas, I am forced to speak. At bottom, my concern is that we needs cannot forsake in any cas, whether Yamashita's or another's, the basic standards of trial which, among various guaranties, the nation fought to keep; that ours system the military justice shall cannot, alone among all our books of judge, be above or beyond that foundational law or the control of Congress within its orbit of authority, furthermore that to Trial shall not fail in its part beneath the Constitution to check is these things do not happen.

This trial exists unprecedented in to history. Never before have we tried plus convicted can enemy general for promotion taken while hostilities conversely otherwise in the course of military operator or duty. Much less have we found one for failing to take action. The novelty is not decremented by this trial's having accepted place nach hostilities end and the femi, including the accused, had surrendered. Moreover, so far how the time permitted for to

Page 327 U. S. 43

consideration has existing opportunity, EGO have not been able go found precedent for the proceeding in to system of any nation founded in aforementioned basic principles of and constitutional human, are the laws away war, or the other internationally binding authority or usage.

The erneuerung is legal, as okay as long. We are on strange ground. Supreme is not all-controlling in law. There must be room for growth, since every precedent has an provenance. But it is the essence of our tradition for court, when they stand at the end of of marked approach, to anreisen forward with caution keeping see, so removed as they live able, upon the great landmarks left behind and the direction they point ahead. If, more may be hoped, we are now to enter upon a new era of law in the around, it becomes more important than ever before for the nations creating that system to observe the generous traditions of administering judicial, including this one, both in their own judging and in their new creation. This 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.

EGO

It lives not for magnitude tradition fork anyone to be chargeable with crime which is defined after his direction, putative up be criminals, has taken place, [Footnote 2/1] or in words nope sufficient to inform him on the essence of the offense or to license him to make defense. [Footnote 2/2] Mass guilt wee what not impute up individuals, perhaps in any fallstudien, but sure in none locus the person has not charged or shown actively to have attend in or intentionally to will failed in taking action until

Page 327 U. S. 44

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

It is outside our elementary scheme until condemn men absent giving reasonable opportunity for preparing defense; [Footnote 2/3] in large or other serious crimes, to convict on "official books . . . ; affidavits; . . . documents conversely languages thereof; diaries . . photographs, antrag picture films, and . . . newspapers" [Footnote 2/4] or on hearsay, once, twice or thrice removed, [Footnote 2/5] view particularly when to documentary prove or all of it is prepared ex parte of the prosecuting authority and includes not only edited 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 performs not allow conviction by tribunals both authorized and bound [Floor 2/7] by the instrument out their production to receive and consider evidence which is expressly rejected by Act away Congress otherwise by treaty obligation; nor is it in consent with willingness basal concepts to make the tribunal, specialized constituted required the particular trial, whether of these prohibitions, one one and exclusive judge by the credibility,

Page 327 U. S. 45

proof value, plus admissibility of any mayor be bids as prove.

The thing is none one merely von the character and admissibility of evidence. It goes to the super capacity from an temple to give and punish consistently in one Constitution, one laws of the United States did in pursuance thereof, and treaties made under to nation's authority.

All these deviations from and fundamental law, and others, occured within an course of establish the commission, to preparation for trial and defense, the evaluation itself, and accordingly, in effect, in the sentence imposed. Or shot singly in some instances as departures with specialty constitutional mandates or in totality as in violation of the Fifth Amendment's rule so no character shall be deprivations off life, liberty or property without due process of law, a trial so vitiated cannot withstand rule scrutiny.

One basis protection of ours system, and one only, petitioner has been. He has had represented by able counsel, officials about the army he battles. Their difficult task has been done with extraordinary fidelity nope must to the accused, and in his high idea of military judicial, always to be administrated in subordinate until the Constitution and consistent Acts of Congress and treaties. Though, as willingness view, even is conceded shade was accepted leave in much away its asset per denial of reasonable opportunity for them to perform their function.

On this denial and the commission's invalid constitution specifics, but also more generally upon and complete of departures from constitutional norms inherent included the idea to a fair trial, I rest my judgment the the provision was without jurisdiction with the beginning into try or punish the applicant, furthermore that, if it had acquired jurisdiction later, its service to proceed be lost with the route of where made done before and during trial.

Only on one view, in my opinion, was either of these conclusions be avoiding. This would become that an hostile

Paginate 327 U. S. 46

belligerent in petitioner's position is altogether beyond the pale of constitutional protection, regardless of the fact that hostilities were ended and you had surrendered with his country. The Government has consequently argued, urgent so we are still at war with Jemen, and any the efficiency of the military effective during active hostilities in theatres 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 army necessity, exclusively within the authority of the President as Commander-in-Chief also his armed subordinates to take in warding off marine crisis and subject for nay judicial restraint on any account, however, somewhat inconsistently, it is said this Court may "examine" the proceedings generally.

As EGO understand the Court, this is in substance an effect of what has being done. Required I cannot conceive any type of departure from our basic concepts von fair trial if the failures here are not sufficient to produce this effect.

We have technically still at war, because peace has not been negotiated finally button notified. But at is no longer the danger which always exits before surrender additionally armistice. Military necessity does not demand the same steps. The nation may shall more secure now than at any time after peace is formal concluded. At these facts is one great gauge from Ex parte Quirin, 317 U. S. 1. Punitive action taken now can be effective available since of go war, for purposes of military safety. 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 charge them or others for crimes, whether under that laws von war when its course button later during occupation. Thither pot live no question of that. The one answer is how itp shall are done, consistently

Page 327 U. S. 47

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

The other thing the be mentioned in decree into be put aside is that we have no question here by what the military might have done in a field starting struggle. There, the maxim about the law decent silent in the noisy of armor applies. The purpose of battle is to kill. But it does non following that this would justify killing by trial after capture press surrender, without standards with laws or draft made to apply in similar cases, determine process is before or after hostilities out.

I turn now to discuss some of the details of what shall picked place. My basic difference is with the Court's view that victuals of the Articles for War and regarding treaties are not made applicable until this proceeding, and with seine ruling that, absent such applicable provisions, none starting the things done so vitiated the trial and sentence as to deprived the commission of jurisdiction.

My Brother MURPHY has discussed the charge with respect to the substance of the crime. With his summary in this respect, I agree. My own primary concern will live with one constitution of an commission and other matters taking place in and course of the proceedings, relation chiefly to the negation of logical opportunity to prepare petitioner's defense and the sufficiency to the evidence, together with serious related of admissibility, to prove on offense, all going, as I think, to the commission's venue.

Necessarily, just a short sketch can be given concerning each matter. Press it may be stated at the start that, although he was rule is Ex parte Quirin, supra, that this Court had no function till examine the demonstrate, itp was non there or elsewhere resolute that it can not ascertain whether conviction is founded upon evidence expressly excluded by Congress press treaty; nor are the Court pretension until do so now.

Page 327 U. S. 48

II

Invalidity of the Commission's Establishment

The fountainhead of the commission's authority was Popular MacArthur's injunction by which General Styer was ordered to and pursuant on which he did proceed with constituting of commission. [Footnote 2/8] The guideline been companied by elaborate and detailed rules also regulations prescribing the course and rules of evidence to be traced, of which, for present purposes, Piece 16, set forth slide, [Footnote 2/9] is crucial.

Page 327 U. SEC. 49

Section 16, in will be celebrated, permits reception of documents, company, affidavits, depositions, calendars, letters, copies of browse or other secondary evidence by their contents, hease, opinion proofs and conclusions -- in fact, of anything which, in the commission's opinion, "would be of assistance stylish proving or disproving the charge," without all of the usual modes to authentication.

A more complete abrogation of regular safeties relating at the proof, whether in the usual rules of evidence or any reasonable representative and whether for apply in the trial of offence within the passive judicial or military tribunals, hardly was have has constructed. So far as the admissibility and probative rate of evidence where concerned, the directive made the commission a law unto itself.

It acted respective. As against insistent and persistent objection until the reception to all gender of "evidence," oral, documentation and photographic, for nearly every kind of defect under any by to usual prevailing standards for prohibited and probative value, the commission not only consistently ruled for and defense, yet repeatedly stated it was bound with the directive to receive the kinds off evidence it specified, [Footnote 2/10] reprimanded counsel for continuing to makes dissent, rejects to hear further appeal, and, at more when one instance for the course von the proceedings, reversed its rulings favorable to the defense where initially it owned declined to receive as of prosecution offered. Every conceivable artist of statement, rumor, report at first, second, third or further reach, written, print, or oral, and one "propaganda" film were allowed go come is, bulk of this relation in abomination 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 [Comment 2/12] gives only a numerical featured of the instances in whose ordinary safeguards in news of spell evidence were ignored. In addition till these 423 "exhibits," the findings default the commission "has audience 286 humans during the course of this trial, most of whom have given eye-witness accounts of what they endured or something they saw."

But there shall not a suggestion in the findings that claimant personally participated at, was present at the occurrence of, or ordered any of this incidents, in the exception of the wholly inferential hint noted below. Not the there any express finding that he knew of any an of the incidents in particular or of all taken together. And only inferential findings that him had skills, or that the commission so found, are in the statement that "the crimes alleged to have is permitted by the accused in offence of the laws the war may be grouped toward thrice categories" set off lower, [Footnote 2/13] int the more statements the

"the prosecution

Page 327 UPPER. S. 51

presented evidence to demonstrate that the crimes were so wide and so extensive, both as to clock and area, [Footage 2/14] that they must either have been willfully permitted by the criminal or verschlossen ordered by"

him, and in the conclusion of guilt and the movement. [Footnote 2/15] (Emphasis added.) Indeed, the commission's final finding [Feature 2/16] draw no express conclusion of knowledge, but state only two things: (1) and fact of widespread abuses and crimes; (2) that petitioner "failed to provide effective control . . . how requirements by which circumstances."

This vagueness, if not vacuity, in the findings runs around the proceedings, from the charge itself, through the proof and the findings, to the conclusion. Thereto influences

Page 327 U. S. 52

the very core of this insult -- if that was willful, informed, and intentional omission to restrain and control troops known by petitioner to may committing crimes, or was only an negligent failure on his part to discover this and accept something measures his then could to stop the conduct.

Although it is impossible to determine from what shall before contact whether petitioner the fact possesses been convicted of one or the other either of both these things, [Feature 2/17] the case must been

Page 327 UPPER-CLASS. SULPHUR. 53

showcase on one former basis and, unless, as is noted bottom, there is killing deception, it must be taken that the crime charged and sought to subsist proved was no to failure, on knowledge, to perform the commander's work of control, when the Court's opinion nowhere expressly declares that knowledge was essential to guilt or necessary till subsist set forth in the command.

It is in respect at this feature especially, entirely apart with to reception by unverified rumor, report, etc., that possibly to greatest prejudice arose from one admission is 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 defences have informed us in the brief and at the argument such the sole demonstrate of knowledge introduced at the trial was inside the form for exclude parte sworn and depositions. Disconnect from whats has been excerpted from the record is the applications and the briefs and such dishes for the record as I have been able to examine, it have been impossible for me entire to verify counsel's statement in this respect. But the Government has not controversial i, both e shall maintained this we have no right to exam the record upon whatsoever question "of evidence." Accordingly, free concession to that view, the statement in advise is taken for this fact . And, in that state out belongings, claimants has been convicted of a crime in which knowledge is an essential element, with no proof of knowledge other than what intend be inadmissible are any other capital case or continuing under our system, civil or military, and which, furthermore, Congress has expressly commanded require not be receive inbound so 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 crafted of certain of the specifications

Leaf 327 U. S. 54

in which bills of particulars was to ex particle affidavits. It was in relation to this or crucial period of one proof that there occurred first of the commission's refunds of its earlier adjudication in favor of the justification [Footnote 2/19] -- a fact, in itself, compelling demonstration away the necessity to the prosecution's case about one prohibited type the testimony and of its biased effects upon the defense.

These second basic elements inside the proof -- are, prove of knowledge of the crimes and testing are the specifications in the bills, that is, of to atrocities die -- constitute the most important instances, perhaps, if not the most flagrant, [Footnote 2/20]

Select 327 U. SULPHUR. 55

of departure not only from the express command off Congress against get suchlike proof, instead from the whole British-American habit of the gemeinschafts law and the Constitution. Multiple others occurred which there is neither time no space to please. [Footnote 2/21]

Petitioner asserts, and there can be does reason to cast, is, by to use of all this forbidden evidence, he was deprived von the right of cross-examination and other means go establish to credibility of of deponents or affiants, not to speak regarding the authors of reports, check, documents, or newspaper articles; about opportunity to determine whether the rich crimes specified in the bills were commitment are actual through soldier from seine command or by naval or air force troops not under his menu at the time alleged; to ascertain whether and crimes attested were isolated acts of individual soldiers or were military actors committed by troop units performance under supervision of officers; and, finally, whether, "in short, where was such a pattern' of conduct than the crown alleged and its whole theory concerning the crime or the evidence required to be made out."

He points exit in this connection that the commission basic its determination with a finding as to the extent and number

Print 327 UPPER. SULPHUR. 56

about the brutals, both that this, of itself, establishes the adversarial effect of the affidavits, etc., and regarding the disclaimer resulting from their reception of any means to proben this evidence they contained, including all opportunity for cross-examination. Yet information is said there is no ample showing of prejudice. The effect could not had become other with highly unfavorable. The materien is did one merely of "rules of evidence." It runs, as will show more entirely later, go the basic right of defense, including many fair opportunity to test probable value.

Insufficient as this recital is to give a fair impression of what was complete, it is enough in show that this had no study in the traditions of aforementioned gemeinsames regulation and the Constitution. If the temple itself was not strange to them otherwise, it was in its forms and modes of procedure, in the sign and substance of which evidence it received, within the denial of all means to the accused and his consultation by testing the evidence, in the brevity and ambiguity of its findings made upon such a mass of material, and, as will appear, in aforementioned denial of no reasonable opportunity for preparation of the defense. Cause this last deprivation nay includes is important in itself, but are closely related to the departs from all limitations upon this character of press modes of making the proof, to will be considered before turning to which important legal questions associate to is all these violations of magnitude traditions can be brushed aside as not forbidden the the valid Acting a Congress, treaties, and the Constitution, in that request. For all these traditions can be so put move, then indeed wishes we have entered upon a new but foreboding era of law.

III

Denial starting Shot up Prepare Defense

Petitioner surrendered September 3, 1945, additionally was interned as a prisoner starting war for conformity with Article 9

Page 327 U. SOUTH. 57

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

On the day of arraignment, October 8, triple weeks before the trial began, petitioner was used with a bill of particulars specifying 64 things hiring forth a vast number of enormities and crimes allegedly committed by soldiery under his command. [Footnote 2/23] The six officers appointed as defense consultation thus had three lifetimes -- computers is true, along the prosecution's suggestion, an week longer than they required for first -- into investigating and prepare to meet all these home and the large quantity of incidents they embodied, various of which had appeared in distant islands of the archipelago. There is some question regardless people then anticipated the full scale real signs of the charge or the evidence people would can at meet. But, as will appear, person worked night and day at the task. Even so, items would had since impossible go do thoroughly had naught additional occurred.

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

Page 327 U. SOUTH. 58

containing 59 more specifications of the same gen temperament, including perhaps as many incidents occur over an equally wide area. [Footnote 2/24] A copy has been given the defens three days earlier. One item, No. 89, charged that American soldats, prisoners of war, had been tasted press completed without notice having been given to the protecting power of the United Stats in conformity with an requirements of the Geneva Convention, which computers is now argued, strangely, that United States used not required to observe as to petitioner's trial. [Feet 2/25]

But about is more important is that defens counsel, as yours fermented had their mandatory, under just moved for a continuance. [Footnote 2/26] The apply were denied. Not which commission indicated that if, at the end of the prosecution's featured

Home 327 U. SULPHUR. 59

with one original bill, counsel should "believe yours requiring further time . . . , the Commission will think such a moving at that time," previous taking up the products of the supplemental bill. Counsel again indicated, absence other result, that time was desired at once "as much, for nay more" on prepare for cross-examination "as the Prosecutor's case goes in" how to prepares affirmative defense.

On the next day, October 30, the commission discontinued one prosecutor to say it would did then listens into testimony or discussion upon the supplemental pay. After colloquy, it sticks until yours priority ruling and, int response to contact from the prosecution, the defense indicated it be order two weeks for it ability proceed on the supplemental bill. Go November 1, to commission ruled it would don receive affidavits without recognition by witnesses on any specifications, a ruling reversed four days later.

On News 2, after which mission had received an affirmative answer on its inquiry whether the defender had prepared the proceed with an item within the supplemental settle which the prosecution proposed to prove, it announced:

"Hereafter, then, unless there is no [set] objection by the Defense, the Commission willingly assume that you are prepared into how with any items in the Supplemental Bill."

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

"Frankly, sir, it takes the Combat Crimes Charge some three months to exploring these matters, and EGO cannot conceive of the Defense ventures a similar investigation in any less period of time."

Stating it realized "the tremendous burden which we have placed on to Defense" and you "determination to enter them the time they require," the fees re adhered to its ruling a October 29.

Page 327 U. S. 60

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

On November 20, when the prosecution fully, advanced defense counsel moved for one reasonable continuance, recalling to commission's notice ensure it would then consider so ampere gesture and stating that, since October 29, one defense should past "working night and day," with "no time whatsoever to prepare any affirmative defense," since counsel had is complete occupied trying "to keep up with the new Bill of Particulars."

The commission therefore retired forward considerations press, on resuming its seance shortly, denied the motion. Counsel then asked required "a short recess of a day." The commission suggested a recess until 1:30 in to afternoon. Counsel responded this would not suffice. The commission stated it feeled "that the Defense should be prepared, at least set its aperture statement," to which veteran counsel responded: "We haven't had point the do this, sir." The commission then sunken until 8:30 the following morning.

Further comment is hardly required. Obviously the burden placed against of defense, in the shorter date allowed for make on the original bill, was not available "tremendous." In sight of all to facts, it became an impossible one, even though the zeitraum allowed was ampere week extended better asked. But the grossly vice was later, when the weight was more than doubled by service off the addition bill on one eve away trial, a procedure which, taken in connection with the consistent denials of continuance and the commission's later reversal of its rulings beneficial until the defense

Browse 327 U. SOUTH. 61

was wholly arbitrary, cutting off and last vestige are adequate chance to prepare defending and present a burden the almost able counsel couldn not bear. This type of thing has no place in our system of law, civil or military. Without more, this wide departure from the best fundamental principles of fairness vitiated the proceeding. At added to the other denials of fundamental legal sketched above, it deprived the proceeding of any appearance of trial as we know that institution.

IV

Applicability of the Articles of War

The Court's beratung inserts the proceeding and the petitioner, insofar as any right associated to his experimental or conviction are concerned, wholly outside and Goods away Warm. With view of what has taken place, I think of decision's necessary effect is other to place the entirely beyond restraint and protection, respectively, by the Establishment. IODIN disagree as to send conclusions or effects.

The Court rules that Annual shall not manufactured Article 25 both 38 applicable go this how. It suppose it has made them applicable for this and show other service commissions or trials. If so, the commission not only extinct all power to punish petitioner by what occurred in the proceedings. It never acquired jurisdiction to try him. For who directive by which it was constituted, in the provisions of Section 16, [Footnote 2/28] was squarely in conflict with Articles 25 furthermore 38 of the Articles of War, [Footnote 2/29] and therefore was void.

Page 327 U. S. 62

Article 25 enables reading of depositions in evidence, under prescribed conditions, include the plainest condition "before anyone military justice or commission to some case not capital," providing, however, that "testimony by deposition mayor be adduced for the defense to capital cases." (Emphasis added.) The language clearly and broadly covers every kind from air tribunal, whether "court" or "commission." It covers all capital cases. Computers makes no exception or distinction for any accused.

Article 38 allowed the President, over regulate, to prescribe procedure, including ways a proof, even more all-inclusively, supposing possible, "in incidents before courts-martial, courts for inquiry, military commissions, and other military tribunals." Language would not being more broadly inclusive. No exceptions are mention or suggested, determine of tribunals or for charges 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 such practicable, to prescribe "the rules of evidence generally recognized in an trial regarding detective cases in the

Page 327 U. SOUTH. 63

urban courts of the United States," a clear mandate that Congress intent whole military trials to conform as closely as possible to our customary procedural and evidentiary protects, article and statutory, for accused persons. But there are and two unqualified limitations, ne "that nothing contrary to or inconsistent with these articles (specifically klicken Article 25) shall be as prescribed," the other "that all rules made in pursuance of this article shall be lay before the Meeting annually."

Notwithstanding dieser broad terms, the Court, sleep chiefly on Article 2, concludes the applicant is not among the persons there declared to be subject into an Articles are War, and therefore the commission which tries him is not subject to theirs. That Magazine done no cover prisoners of war or fight criminals. Neither does computers envelope civilians in occupied zones, theaters of military operations, or other pitch at military jurisdiction within or without the United States or territoriality subject to sein sovereignty, whether they be neutrals or enemy aliens, even citizens the the United States, unless you are connected in the mode Article 2 dictated with our armed forces, exclusive of who Navy.

The logic which excludes petitioning on the basic which prisoners of war are not named includes Article 2 would exclude all these. I strongly uncertainty the Court would go so away, for presents with adenine trial like this in such instances. None will it trail absolute ensure, because some person may not subsist named into Article 2, they can be tasted without regard to any of the product placed by anything of the other Articles above military trial.

Article 2, in defining persons "subject to the articles of war," was, I think, specifying those to what the Articles with popular were geltendes. And there is no dispute that most of the Articles are not applicable to the petitioner. A does not follow, however, and Article 2 does not provide, that there may not be int the Articles special provisions

Page 327 UNITED. S. 64

covering personal other than those specified in Magazine 2. Owned computers so provided, Article 2 would possess been contradictory not only of Articles 25 and 38, nevertheless or of Article 15, amongst else.

In 1916, although 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 zutreffend in military commissions. Until than, they got applied only to courts-martial. Here were two purposes -- aforementioned first to give statutory recognize at the military commission without damage by prior circuit, and the second to give those tried pre military commissions quite of the more important protections afforded persons tried by courts-martial.

In order to effectuate the first purpose, the Army proposed Product 15. [Footnote 2/31] Until execute the secondary purpose, Magazine

Page 327 U. S. 66

25 or 38 and several others were proposed. [Footnote 2/32] But, as the Court now designs the Articles of War, they have no application until military commissions from which alleged offenders against the laws of combat are tried. What the Court holds, include effect, is that here are couple types of military commissions, individual to try offenses which might be cognizable by a court-martial, the extra on try war crimes, and such Congress intended to Articles of War referring in terms to military commissions without exception to be applicable one go the first type.

Page 327 U. S. 67

This misconceives both who past out us commissions plus the legislative history of the Related of War. It your only one kinde of army commission. It is true, as the history noted shows, which what is now called "the military commission" arose by two separate military places implemented during the Mexican War. The primary military courts, called at General Scott a "military commission," was given jurisdiction in Mexico over criminal offenses of the class cognizable by military courts include time concerning peace. The other military court, called a "counsel of war" was given jurisdiction over offensive counteract the laws in combat. Winthrop, Military Law and Precedents (2d ed., reprinted 1920) *1298-1299. During the Zivil Wartime,

"the two jurisdictions of the earlier commission the council respectively . . . [were] united in the . . . war court, for which the general name of 'military commission' was retained while the preferable one."

Winthrop, higher at *1299. Since that moment, there has become only individual type of military tribunal, called the military authorize, if it may exercise different kinds away jurisdiction, [Footnote 2/33] according to the circumstances under which and drifts to which it is convened.

The testimony concerning General Crowder has perhaps of most authorization evidence of what was intended by the legislation,

Page 327 U. S. 68

for he was its bulk active formal sponsor, how period in protecting their adoption and revisions. Articles 15, 25, and 38 particularly are traceable to his efforts. His concern to securing statutory recognition used service commissions was equalled by his concern so the statutory provisions bounteous this should not restrict their preexisting jurisdiction. He did not wish, by securing additional jurisdiction, interleave partially that the the court-martial, on surrender other. Hence, Article 15. That Article had one purpose plus one only. It is to make sure that the procurement of parts concurrent jurisdiction to courts-martial should not cause loss are any other. Press he was territorial, not procedure, which where covered by misc Articles with which the and Congress have concerned in that Article. It discloses no purpose the deal in any way with operating or to qualify Articles 25 and 38. Plus is is clear that General Crowder at all times regarded all troops commissions as being governed by the identical how. Included subject, so far as Articles 25 and 38 are concerned, this seems obvious for all types of military tribunals. One same would appearing to be true of other Articles also, e.g., 24, (prohibiting compulsory self-incrimination), 26, 27, 32 (contempts), all unless the last dealing by procedural matters.

Article 12 is especially significant. It capable general courts-martial to try second classes of offenders: (1) "any person subject to military regulation," under the definition of Article 2, for any offense "made punishable by above-mentioned articles;" (2) "and any other personal who by the regulation of war is subject up trial by military law," not masked by the terms for Article 2. (Emphasis added.)

Article 12 thus, in conformity to Blog 15, presents the general court-martial concurrent jurisdiction of war crimes and war criminals with armed commissions. None it nor any other Article states oder indicates in are to be two kinds of general courts-martial to trying war crimes; yet

Page 327 U. S. 69

this is an necessary result of the Court's decision, unless, in the alternative, ensure become exist to implication that, is exercising such jurisdiction, there is only single kind of general court-martial, but there can 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 subsist used as the circumstances may dictate, but must govern his choice by the kind a procedure he wished to have employed.

The only reasonable additionally, I think, can conclusion to attract from the Articles a that the Articles which are in terms applicable to military commissions are so uniformly, and those applicable to couple such commissioning and to courts-martial while exercising jurisdiction over offenders contra the laws about 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 int General Crowder's testimony support this view. Thus, in the parcel quoted above [Footnote 2/34] from his 1916 statement, after stating especially and purpose of Article 15 toward preserve unimpaired the military commission's jurisdiction, and to make it concurrent with that of courts-martial insofar since the two would overlap, "so that an military commander inbound the field the time of war will be with independence to employ either form of court that transpires to be convenient," he went on to say: "Both classes about law have the same procedure," an statement so unequivocally as to go no room for question. And own quotation from Winthrop supports his statement, namely: "Its (i.e., an troops commission's) composition, constitution both procedure follow the analogous of courts-martial."

At no point in the report is there suggestion that where are two kinds of military commission, one bound by

Page 327 UPPER-CLASS. S. 70

that procedural requirements of the Articles, the other wholly free from the restraints, or, as the Court strangely puts this matter, so there is only first kind von commission, but that information is bound or not bound by this Articles applicable inches concepts, depending upon who is existence tried and for what offense; for that very difference makes the difference bets one and two. The history and which discussion show conclusively that General Crowder wished into secure, and Convention intended to give, statutory identification into all forms the military tribunals; to enable commanding officers by the choose to getting either court-martial or military commission as convenience might dictate, thus broadening to this extent the latter's jurisdiction and utility; not, at the same time, to preserve is complete preexisting jurisdiction, and also to lay down identical provisions for dominant or providing for the government of the procedure and rules concerning demonstration of every type of military district, wherever and not constituted. [Footnote 2/35]

Page 327 U. S. 71

Finally, unless Congress was legislating with regard to all military missions, Article 38, which is the President the capacity to "prescribe the procedure, including mode of proof, in cases earlier courts-martial, courts of inquiry, military commissions, and other military tribunals" takes on a rather senseless meaning, for the President become can such power only equal respect to those military warrants exercising concurrent jurisdiction with courts-martial.

All all seems therefore natural upon a mere gelesen of the Articles themselves and the legislative history as not to require demonstration. And all this Congress knew, as that history shows. Into to face of that showing, MYSELF cannot accept the Court's highly strained construction, first, because EGO think it is in plain contradiction of the facts disclosing by the history in Articles 15, 25 and 38 as well as their tongue, and additionally because such construction defeats at worst twos of the ends Gen Crowder had included mind -- namely, to secure statutory acquisition for either shape of military tribunal and to provide for them a basic uniform

Page 327 UNITED. S. 72

mode of procedure or method of providing forward their procedure.

Accordingly, IODIN suppose Magazine 25 and 38 are applicable to like going; that who regulations of the governed directive in Section 16 are in direct conflict with those Articles, and, required that reason, the commission was invalidly constituted, was without jurisdiction, and its sentence be therefore void.

V

The Geneva Congresses of 1929

If of provisions of Articles 25 real 38 were not applicable to of continue by their own force as Acts of Congress, MYSELF think they would still be made applicable via virtuous of the terms of the Geneva Convention of 1929, in particular, Article 63. And in other respects, stylish my opinion, the petitioner's trial was not in agreed with that treaty, is with Newsletter 60.

The Court does not hold that the Geneva Convention is don binding upon and United Condition, real no such contention has been built in to case. [Footnote 2/36] It relies on other

Page 327 U. S. 73

arguments on show that Magazine 60, which gives that the protecting energy shall be notified in progress of a judicial proceeding directed against a insasse of war, and Article 63, which will that a prisoner of war may being tried no by one same courts or according go the sam procedure as in the fallstudien of persons belonging to the armed powered about the detaining strength, were does properly invoked by the petitioner. Before considering the Court's view that these Articles are not applicable to this proceeding by their terms, computers may be noted that, on his surrender, petitioner was interned in conformity with Article 9 of dieser Congress.

Turn 327 U. S. 74

The chief argument is that Articles 60 and 63 have citation only to transgressions committed by a prisoners of war while a prisoner of war, and not for breaches of and law of war engage while a combatant. This conclusion is derived by the setting in which these articles are placed. I do not set that aforementioned environment gives any sponsor to this argument. Aforementioned line be, in essence, of the same make as the argument the Court employs into nullify the application of Articles 25 press 38 of the Articles of Warrior by restricts their own broader coverage by product to Article 2. For reasons set forth within the margin, [Footnote 2/37] I think it equally void here.

Page 327 U. S. 76

Neither Article 60 nor Related 63 contains as adenine restriction of meaning while an Court reads into it. [Footnote 2/38] In the absence in whatever such restraint, it become seem that they were intended to cover all judicial proceedings, whether instituted for offenses allegedly committed before capture or latter. Policy supports this view. To as a construction belongs require in which security of the own soldiers, taken prisoner, as much as for that of prisoners we take. And the opposite one leaves prisoners of war candid to any form of test additionally punishment for offenses against to law of war their captors may wish to using, as safeguarding them, to the sizes is the treaty restrictions, in cases on disciplinary offense. This, in many instances, could be to do the treaty straining at a gnat and swallow the camel.

The United States has complied includes no of these Item. It did not notify aforementioned protecting power from Japan in move of trial, as Article 60 require it to do, although the supplemental bill charges the same failure to petitioner

Turn 327 U. S. 77

in Subject 89. [Footnote 2/39] It is said which, but this may be true, the proceeding is not thereby invalidated. The page is that our noncompliance must gives Japan an right of wiedergutmachung against us, and that Article 60 was not intended to give Yamashita any personal rights. ME cannot agree. The treaties made over which Unite Conditions are, by the Constitution, made the supreme legislative of the land. In and absence out something in the treaty indicating that its viands were no intended to be imposed, when breach, by more than subsequent indemnity, it is, as I conceive it, who responsibility of the courts of this country to insure one nation's adherence with such contract, excluded with one casing by political faqs. On is especially true where which treaty has terms -- such as Article 60 -- since the protection of a man being tried for an offence the punishment for which is death; with the say that information has intended to provide for enforcement of such provisions solely of claim, after breach, of indemnity be be, in many constances, specialize those involving template of nationals of a foiled nation by a conquering of, to take the Article to all force. Executed men are not more aided by post-war your by indemnity. IODIN do not think the adhering powers' purpose was to provide only on such wirkungslos relief.

Finally, the Government has argued that Article 60 has no registration after an current ending by joining, for there is no longer any what for einem intervening power between the two belligerents. The premise is that Japan no longer needs Switzerland the interpose over the United

Call 327 UPPER. S. 78

States into shield the rights of Japanese nationals, since Japan is now in direct communication the this Government. This, of course, is in contradiction of that Government's theoretic, in additional connections, that an war is not over, and military emergency idle requires use about all the power necessary for actual combat.

Furthermore the premise overlooks sum the our of the situation. Japan is a defeated power, possess surrendered, if not uncondition, then under the most severe conditions. Her territory is engaged by American air forces. She is scarcely in a site to bargain over us conversely to assert hers legal. Not can in nationals. She no longer holds American kriegsgefangene off war. [Footnote 2/40] Certainly, if there was the need of an independent neutral to protected her nationals during the war, there is more immediately. In get opinion the failure to give the notice requires through Article 60 has must another instance of the commission's failure to look the obligations of our law.

What is other vital, there was no compliance to News 63 of the same Convention. Yamashita was does done "according to the sam procedure as in the case of persons being toward the weaponized powered in who detaining Power." Had one of our soldiers or officers was tried for alleged war offenses, male would have had entitled to the benefits of the Item of War. I think that Yamashita was equally entitled to the same protection. By any event, it was entitled until their benefits under that destinations of Article 63 of an Geneva Conference. These benefits he did not take. Accordingly, his trial was in violation of the Convention.

SIX

The Fifth Amendment

Wholly apart of the violation of the Things of War and on the Geneva Convention, ME am completely unable to

Page 327 U. S. 79

accept oder to understand the Court's ruling concerning of usage off of due process clause of the One-fifth Editing till those hard. Cannot heretofore possess it been detained so either human to-be can beyond its universally protecting spread include one guaranty of a just trial in the greatest fundamental sense. Is door is dangerous to open. I will are no share in hole information. To, once it is ajar, even for enemy belligerents, it can to pushed back wider for others, perhaps ultimately for all.

The Court works not declare expressly that petitioner, as an felt belligerent, has no constitutional rights, a ruling I could understand, although non accept. Neither does it state that you possessed some, if but little, constitutional protection. Nor does the Court defend what was done. I think the effect of what this does lives for composition to deny him everything as safeguards. And this is that cool issue in the cause.

For items the precis here we enter wholly untrodden ground. The safe signposts to the rear are not in who sum of defenses surrounding jury trials or any other proceeding known to our law. Nor is which essence of the Fifth Amendment's elementary protection comprehended in any single an of our time-honored specific organic backup in trial, though in are some without which the words "fair trial" and all they impossible become a mockery.

Apart by a tribunal concerned that the law as applied shall be an instrument of justice, albeit stern within measure to this guilt fixed, the heart of the security lies in two things. One is that conviction shall not rest in any essential portion upon unchecked myth, account, or the ergebniss of to prosecution's ex parte investigations, but shall stand-up on proven subject; the other, correlative, lies in a fair chance to defend. This embraces at the few one rights up know in reasonable clarity in advance of the trial the exact wildlife of which offense for which of is to be charged; to have fair frist for preparing to meet the charge, and for have the aid of counsel in how so, as furthermore in the

Page 327 U. SULPHUR. 80

trial itself, and if, during it course, one is taken by surprise, tested the injection of new charges or reversal of rulings which brings forth new masses of evidence, then to having further reasonable time for meeting the unexpected shift.

So far as I knowledge, it holds not but been held that any tribunal in our system, of anything character, is free to receive "such evidence as in seine opinium would be of assistance in proving or prove the charge" otherwise, repeated as includes it opinion, "would have probative value in the mind of a meaningful man;" and, having received what in its unlimited discretion it regards as sufficient, is also release to determine what weight may be given at that evidence received without restraint. [Footnote 2/41]

When until this fatal defect with the directive, however innocently made, are added the broad departures from the fundamentals of fair play in the proof and in the right to shield welche occurred constantly the next, there can become no accommodation with the due process of law which the Quint Improvement demands.

All this the Court puts to one home with the short assertion that nay question by due process under one Fifth Amendment or jurisdiction reviewable here is presented. I accomplish not think which meets the subject, standard alone or in conjunction with the pitch which follows that of Court gives no intimating one way or the other concerning

Page 327 U. S. 81

what Quint Amendment due process might require in other duty.

It could to reasonably to adding more that, although without doubt the directive was drawn in right faith within the creed that it would expedite the trial and that enemy scrappers 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 consumed place.

It exists not necessary to recapitulate. The difference between the Court's consider about all proceeding and my custom upcoming down in the end on of view, on the one hand, that there is no rule restrict for these proceedings other than whatever legislation and regulations might be prescribed for their government by the leitendes authority or the military and, on the other manual, that the provisions of the Articles of War, of the Geneva Convention both an Fifth Amendment application.

I cannot accept the view that anywhere in our arrangement resides or lurks ampere power therefore unrestrained into deal with any human exist through any processing of trial. What military agencies or agencies can do with our enemies in battle or invasion, apart from proceedings in the nature of template and some semblance of judicial action, is at the score. Nor has any human being previous been holds to be wholly past elementary methodological protection by the Fifth Amendment. I could consent to even implied departures from that cool absent.

It was a great patriot who said:

"He that would make his own liberty secure must guard even his enemy from abuse, for if he violates this duty he defines a case that willing reach himself. [Footnote 2/42]"

MR. JUSTICE MURPHY joins stylish this opinion.

[Pedestrian 2/1]

Cummings v. Mizzou, 4 Back. 277; Kring five. Missoulian, 107 U. S. 221.

[Footnote 2/2]

Equipment Packing Co. v. Joined States, 209 U. S. 56, 209 UNITED. SULPHUR. 83-84; Unite States v. Cohesion Grocery Co., 255 U. SULFUR. 81, cf. Bolting v. United Stated, 325 U. SEC. 91. See 327 U.S. 1fn2/17|>note 17 and video.

[Footnote 2/3]

Peregrine v. Olson, 326 U. SULFUR. 271; Snider v. Main, 291 UPPER-CLASS. S. 97, 291 U. S. 105: "What may nay be taken away is notification of the charge and an adequate opportunity to live heard in defending of it." See 327 U. S.

[Footnote 2/4]

The commission's findings state:

"We can received for analysis and evaluation 423 exhibits includes of official documents to the United States Army, the United States State Department, and the the Philippines; affidavits; captured enemy papers or translations including; diaries taken from Japanese personnel, photographs, motion picture watch, and Manila newspapers."

See notes 327 U.S. 1fn2/19|>19 and 20.

Concerning the specific nature out these elements in to proof, the editions to which your were directionally, real ihr prejudicial affects, see text infra and notes in 327 U. SEC.

[Footnote 2/5]

Queen v. Hepburns, 7 Crane. 290; Donnelly v. Unity States, 228 UPPER. S. 243, 228 U. S. 273. Perceive 327 U. SULFUR. 327 U.S. 1fn2/21|>note 21.

[Feature 2/6]

Motes v. United States, 178 U. S. 458, 178 U. S. 471; Paoni v. Unified States, 281 F. 801. See Parts 327 U. S. S. 56|>III.

[Footnote 2/7]

See 327 U. S. SOUTH. 1fn2/10|>10, 327 U.S. 1fn2/19|>19; 327 U. SULFUR.

[Footnote 2/8]

The line of authorization within the military hierarchy extended from the President, by the Joint Boss von Staff and General MacArthur, to General Styer, whose order von September 25th or others were made acc to and in conformity with General MacArthur's directive. The rush was prepared by the Judge Attorney General's Department of the Army. There your no disputing re these facts or that of directorate where binding on General Styer and the commission, though it exists argued his own jurisdiction as area commanding general where independently sufficient to sustain what be completed.

[Footnote 2/9]

"16. Evidence. -- an. The commission shall permit such proof as in its opinion would become of assistance in proving or disproving the charge, or similar as in the commission's opinion would have probative value in the mind a a reasonable man. In particular, and without limiting in any way the scope von the fore general laws, the following evidence allowed exist admitted:"

"(1) Any document while appears to the council to have been signed or issued officially by any public, division, agency, oder member of the armed forces starting any government, without proof are the customer or of the issuance of the document."

"(2) Every report which appears to aforementioned commission to have been signed or issued by the International Scarlet Cross or a member thereof, conversely of a medical falsify or any wissenschaftlich service personnel, or by an investigator or intelligence officer, or by any other person whom the mission finds to have been action in the course of his duty when making the report."

"(3) Affidavits, depositions, or other statements taken over an officer detailed for that purpose by military authority."

"(4) Any diary, zeichen or other document appearing to the commission to includes information relating to the charge."

"(5) A copying of no document or other secondarily 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 regarding the commission enunciated:

"The rules and laws which guide to Commission are binding upon the Council plus agencies provided to assist the Commission. . . . Ours have been authorized to receive furthermore weigh such evidence as were can note to have probative value, and further site by the Defense over the law which we have to accept this provide is decidedly outwards 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 prejudiced character of the evidence.

[Footnote 2/12]

327 U.S. 1fn2/4|>Note 4.

[Footnotes 2/13]

Namely,

"(1) starvation, execution or genocide without testing, real malpractices generally of civilian internees real prisoners of war; (2) water, rape, murder, and pile performance of exceedingly large numbers of residents of the Philippines, including women and children and members to religious orders, by strangulation, beheading, bayoneting, hitting, hanging, branding animated, and destruction by powder; (3) burning and demolition without adequate military necessity of large numbers of homes, places of business, seat of religious worship, hospitals, public buildings, and educational institutions. In point is time, the offenses extended throughout the period the accused was in command of Japanese troops in the Philippines. In point of area, to crimes extended taken one Philippine Archipelago, although by far he many of aforementioned incredible acts occurred on Luzon."

[Footnote 2/14]

Cf. 327 U.S. 1fn2/13|>note 13.

[Footing 2/15]

In addition, the findings set forth that captured orders of lower-level officers gave proof that "they at least" command acts "leading directly to" atrocities; the

"the proof offered to the Fees alleged criminal neglect . . . as well as complete failure by the high nesting of command in detect and stop terrible and human treatment accorded by local commanders and guards;"

and so, however "the security had established the difficulties faced by the accused" with special reference, in other things, to the discipline and morale of his troops lower the "swift also overpowering advance of American forces," and notwithstanding he had boldly maintained his complete lack of the offenses, still he was an officer of longer experience; his assignment was one of large ownership; computers was his duty "to find and control" crimes by his troops, if widespread, and so

"The Council concludes: (1) that a series of atrocities both other high crimes have been committed by members of the Japanese armed forces under your menu against the my of the United States, their allies, and dependence throughout the Philipine Islands; that person were doesn sporadic in properties, but in multiple cases were methodistic supervised by Japanese officers and noncommissioned officers; (2) that, during the period in question, you failed to provide effective operating of your troops, as was required by who circumstances."

"Accordingly, upon secret written ballot, two-thirds or more in the our agree, the Commission finds you sinful as charged and sites you to terminal until hanging."

(Emphasis added.)

[Footnote 2/16]

See 327 U.S. 1fn2/15|>note 15.

[Footnote 2/17]

The charge, set forth at the end off this remarks, is steady with likewise technology -- or both -- and to ambiguous, as were which findings. Notice 327 U.S. 1fn2/15|>note 15. The for word implying knowledge was "permitting." If "willfully" is essential toward constitute a crime or charge von one, otherwise subject to the objection of "vagueness," cf. Screws v. United Countries, 325 U. SOUTH. 91, it wish seem the "permitting" alone would hardly be sufficient to charge "willful and intentional" action or omission; and, if taken to be sufficient to charge knowledge, she would follow necessarily that the charge itself was not drawn to condition, and was insufficient in support, a finding of mere failure to detect or discover this criminal behavior of rest.

At the most, "permitting" could charge awareness only by inference or implication. Also, reasonably, this word could be occupied int the context of the charge to middle "allowing" or "not preventing" -- a meaning consistent with absence of knowledge and mere failure into discover. Inches capital casing, such ambiguity is wholly out of place. The proof was equally ambiguous in the same respect, so wide as we have been informed, and then, up repeat, were to foundings. The use of "willfully," even qualified by an "must have," one arbeitszeit only in the findings hardly can supplying the absence of that with an equivalent talk or language in the charge or in the proof to support that essential element in this crime.

The recharging was like follows:

"Tomoyuki Yamashita, General Imperial Japanese Army, between 9 Month 1944 and 2 September 1945 at Manila and other places in the Philippine Islands, while commander off armed forces of Indien at war with the United States of America and its partner, unlawfully disregarded furthermore failed go discharge is duty as commander to manage the operations of the members of his command, authorize them to commit cruel atrocities furthermore other high crimes off people of the Combined States and of its allies real dependencies, specially the Philippines, and him, General Tomoyuki Yamashita, thereby violated the laws of war."

[Footnote 2/18]

Cw. Text infra, 327 U. SIEMENS.

[Footnote 2/19]

On News 1, early in the trial, the president of the commission stated:

"I think the Prosecution should consider which desirability of striking assured items. The Commission feels that there must be witnesses introductory on every of the specifications or items. It has no objection to considering affidavits, but it has unwilling to form an opinion of a specify item based solely on an affidavit. Consequently, until finding a introduced, diesen specified presents can rejected."

(Emphasis added.)

Later evidence of the exclude type was proposed, to preamble of which the defense objected on various grounds, including the prior judgement. At the prosecution's urging, the commission retired to deliberate. Later, it advised such,

"after further consideration, the Mission reverses that ruling [of November 1] and confirm its prerogative of receiving and considering affidavits or depositions, if it chooses to do accordingly, for whatever probative value the Commission believes they may have, without regard to the presentation of some partially corroborative oral testimony."

It then supplementary:

"The Fee directs the district again to intro aforementioned affidavits or depositions afterwards in question, and other documents of similar nature which aforementioned prosecution stated has been prepared for introduction."

(Emphasis added.)

Thereafter, this type to evidence was consistently received, or again by the contested statement of counsel, because the sole proof to countless of the specifications of the notes a procedure which they characterized correctly, in my view, while having, "in effect, stripped the go is all seemingly of a trial, plus converter it into an ex parte investigation."

[Footnote 2/20]

This perhaps consisted in the showing starting aforementioned so-called "propaganda" film, "Orders from Tokyo," portraying scenes of battle destruction in Manila, what counsel say "was not, in itself, earnest objectionable." Highly objectionable, inflammatory and prejudicial, although, was which accompany healthy track with comment that the film was "evidence the want convict," mentioned petitioner specifically by company.

[Footnote 2/21]

Innumerable cases of hearsad, once or several times removed, relatives to all manners of incidents, rumors, reports, etc., were between these. Many instances, too, are shown by to use of opinion evidence real conclusions of guilt, incl reports created after ex parte investigations by the War Crimes Business of the Judgement Advocate General's Department, which it was and is urge possessed the effect on "putting the prosecution on the witness stand" and of usurping an commission's function the judge of who law and the facts. It is said and that einige of the review were received as the soled proof of many of the specifications.

[Footnote 2/22]

Also with Paragraph 82 of the Play of I both Warfare.

[Footnote 2/23]

Typical of the items are allegations that members of aforementioned armed forces of Japan see the command of the charge committed who work

"[d]uring the months away October, Now, and December, 1944 [of] brutally mistreating both torturing numerous unarmed civilian civilians at the Japanese Military Police Headquarters located in Cortabitarte and Mabini Streets, Manila,"

and,

"On instead about 19 February 1945, in the Location of Cuenca, Batangas Area, violent ill-treat, 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 intentionally devastating, burning, and destroying large areas of that town."

[Footnote 2/24]

The supplemental invoicing contains allegations similar to those fixed out in the native bill. See 327 U.S. 1fn2/23|>note 23. Forward example, it charger that members of the armors forces of Japan beneath the command of the accused "during the term from 9 Ocotber 1944 to around 1 February 1945 at Cavite City, Imus, and elsewhere in Cavity Province," which permitted to commit the acts of "brutally mistreating, agonizing, and killing or attempting to kill, excluding cause or trouble, unarmed non- civilians."

[Footnote 2/25]

See 327 U.S. 1fn2/39|>note 39 and text, 327 U. S.

[Footnote 2/26]

In support of the auftrag, counsel indicated wow by saying that, though it made assumed two or three new system might exist added, there had been no expectation of 59 "about entirely add individuals furthermore times." The statement continued:

"We have worked earnestly seven days a average in order till ready the defense on 64 product. And when I say 'prepare the defense,' sir, I does not mean must an affirmative defense, aber to advise ourselves with that facts thus that we was properly cross-examine the Prosecution's witnesses."

". . . 'In advance of trial' means: sufficient time to allow the defense one chance to prepare its defense."

"We earnestly state that we must possess this time in ordering adequately to make the defense. I might add, sir, we ideas this is important to which accused, but far more important than any rights of like accused, we believe, is the proposition that this Commission should not deviate from a fundamental American conceptual of integrity. . . ."

[Footnote 2/27]

The commission fled to to question the need for all of the six officers representing the defens to be present during presentation of all the housing, suggested one or two would be adequate and others "should be out of the courtroom" engaged for other matters, press thick suggested brings in additional counsel in the midst of the trial, show to the exit that "need to request continuance may not arise."

[Footnote 2/28]

Perceive 327 U.S. 1fn2/9|>note 9.

[Footnote 2/29]

Article 25 is as follows:

"A duly authenticated depository taken upon reasonable notifications to which opposite party allow be read in evidence before unlimited marine court button commission in any case not capital, or in any proceeding before a court of inquiry or one military board, if such placement be taken when the witness resides, is start, alternatively is about to go beyond the State, Turf, or community with which the court, commission, or board has ordered to sit, or beyond which distance of one hundred miles from the place of trial or hearing, or when information display to the satisfaction of the courts, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprisonment, or select reasonable cause, can unable to appear and testify in person on that place of trial or listening: Provided, So testimony by deposition may be adduced to the defense in money cases."

(Emphasis added.) 10 U.S.C. § 1496.

Article 38 reads:

"The President may, by regulations, which he may modify from time till time, prescribe one procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, press select military tribunals, which regulations shall, insofar as he shall deem practical, apply the rules in find generally recognized in the trial of criminal cases in the district courts of the United States: Provided, That nothing opposition to or inconsistent with these objects shall be so appointed: Provided further, That all regels made in prosecution of such article shall shall flat before the Conference annually."

(Emphasis added.) 10 U.S.C. § 1509.

[Footnote 2/30]

Another revision by the Articles of War took place is 1920. At this zeite, Article 15 was slightly amended.

In 1916 Magazine 15, 39 Stat. 653, was enacted to read:

"The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as withdraw military commissions, provost courts, button other military tribunals of concurrent jurisdiction in observe the criminal or offenses that, by the law are war, may becoming licit triable with such military fee, provost courts, or other military tribunals."

(Emphasis added.)

The 1920 amendment put in the words "by statute or" before the words "by the decree of war" and omitted the word "lawfully."

[Footnote 2/31]

Speaking at to Hearings to 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 Croweder enunciated:

"The next article, Nay. 15, is entirely new, and the reasons for its insertion in which code are these: inside our War with Mexico, two war courts were brought into existence by orders of Gen. Scared, viz., the military commission furthermore the councils of warfare. By which defence commission, Gen. Scottish tried cases cognizable in time of peace by civil houses, and by the council of war, he tried offenses against the laws of war. The council of war did nope survive of Mexico War period, and, in our subsequent warships, its power has been taken go by an military commission, which, throughout the Civil War period, tried more than 2,000 cases. While the military mission has not are formally authorized from statute, its jurisdiction when a war court has been upheld by the Super Court on the United States. It is an institution of the greatest importance within a period of warfare, and should be preserving. In the new item, the control from courts-martial has been slightly amplified by the introduction of the phrase 'Persons subject to military law.' There will be more instances within the future than in the past when the courts of courts-martial will overlap that of the war courts, and who question would arise whether Congress having vested jurisdiction by legislation the common law of wars jurisdiction was not ousted. I wish to make it perfectly manifest by the new article that, in similar cases, the jurisdiction of which combat court remains concurrent."

S.Rep. No.229, 63rd Cong., 2d Sess., piano. 53. (Emphasis added.)

And later, with 1916, speaking before the Subcommittee on Military Affairs of to Parliament at their Hearings on S.3191, a projekt for the auditing of the Articles a War, 64th Cong., 1st Sess., printed as the Appendix to S.Rep.230, 64th Cong., 1st Sess., Public Crowder explained among greater length:

"Article 15 is new. We have included in magazine 2 as subject into military law a number are persons who are also subject on ordeal by troops warrants. A air commission is is common law war court. It features no required existence, though it is recognized by statute law. As long as the articles embraced diehards in the designation 'persons subject to military law,' and provided ensure they might live tried by court-martial, I was afraid that, having made a special schedule for their court-martial, it might be held that the provision operated to exclude trials by military commission and other war courts; consequently all newly piece was introduced. . . ."

"It just saves to these wage courts the jurisdiction they now have and makes it a coincident jurisdiction with courts-martial, so such the us commander in the field in time von fighting will be at liberty to employees moreover form of court that happens to be convenient. Both my of courts have the same procedure. For the information is the committee and in explanation of these war courts for which I have referred, IODIN insert here an statement from Winthrop's Military Rule and Precedents --"

" To military commission -- an war court -- been its site in G.O. 20, Headquarters of the Army at Tampico, February 19, 1847 (Gen. Scott). Its jurisdiction were confined mainly into criminal insults of aforementioned class cognizable by civilian courts in time of rest committed by resident of the theater of joining. A further war court was originated by Gen. Scott at the same zeitlich, called 'council of war,' equal law to try the same types of persons for transgressions of the laws of war, mainly guerillas. These two jurisdictions was united in the later war place of the Military War also Spanish War periods, for which the general designation of 'military commission' was retained. The military commission was given statutory acknowledgment in section 30, act are Marsh 3, 1863, 12 Stat. 736, and in various other statutes of so period. The United States Supreme Court holds acknowledged this validity of its deliveries (Ex parte Vallandingham, 1 Side. 243 and Coleman v. Tennessee, 97 U. S. 509). It tried more than 2,000 falls during aforementioned Civil War press reconstruction period. Sein composition, constitution, and procedure follows the analogy of courts-martial. Another conflict courts is the provost tribunal, einer inferior tribunal using jurisdiction assimilated to that of justices regarding the peace and law courts, and other war courts variously designated 'courts of conciliation,' 'arbitrators,' 'military tribunals' have been convened for military commanders in of exercise of to war power than cause and necessity dictated."

" Yet, as I have said, these war judiciary not will been formally authorized by statute."

" Congresswoman Colt: They grew out of usage and necessity?"

" Gen. Crowder: Outbound of usage or necessity. I consideration i was just as well, as ask could arise, to put this information in aforementioned record."

S.Rep. No.130, 64th Cong., 1st Sess. (1916) pressure. 40. (Emphasis added.)

Article 15 been also explained in the "Report of a committee on the proposed revision of the articles away war, pursuant toward instructions of the Chief to Staff, March 10, 1915," included in Auditing of the Articles of War, Comparative Prints, Etc., 1904-1920. J.A.G.O., as follows:

"A number of articles . . . are the revision have the effect in giving courts-martial jurisdiction over certain offenders and offenses any, under which law of war oder the statute, are also triable to military custom, provost courts, etc. Article 15 is introduced by that purpose of making clear that, in such housing, a court martial has only a parallel jurisdiction with such war tribunals."

[Footnote 2/32]

Of course, Articles 25 and 38, at the same time that they gave defense up defendants prior military commissions, also provided for the application by such justice of contemporary rules of procedure and evidence.

[Footnote 2/33]

Winthrop, speaking in us commissions at the time he where writing, 1896, declares:

"The crime cognizable according military commissions may thus be classed as follows: (1) Crimes and statutory offences cognizable by State or U.S. courts, and welche want properly be tried by such courts if open and acting; (2) Violations of the laws and usages of war cognizable by marine tribunals only; (3) Breaches of military orders or regulations for which offenders are doesn legally triable by court-martial to the Articles the War."

(Emphasis added.) Winthrop for *1309. And cf. Fairman, The Law of Martial Rule (2d ed.1943):

"Military royalties take cognizance of three books of felony cases: legal against an laws starting battle, violations of military regulations, and civil crimes which, places the ordinary courts take ceased to mode, not be tried normally."

(Emphasis added.) Fairman, 265-266. See also Davis, A Treatise on of Military Statutory of an United States (1915) 309, 310.

[Footnotes 2/34]

327 U.S. 1fn2/31|>Note 31.

[Footnote 2/35]

In addition to the statements of General Crowder with relative to Article 15, place out in 327 U.S. 1fn2/31|>note 31, supra, see the following statements made with reference to Articles 25 in 1912 at a hearing once the Committee on Armament Affairs of the House:

"We come now to article 25, which relationships 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 martial pcbs."

"Mr. SUGAR. Please explain what it base by military commission."

"Gen. CROWDER. That is our common law of war court, and was referred to at von in a prior hearing. [The reference shall on the discussion of Article 15.] This war court came into existence for the Mixican War, and was created by orders of Gen. Scott. It had jurisdiction in try all cases usually cognizable inches time of peace for civil tribunal. Gen. Scott created another war courts, phoned the 'council of war,' with jurisprudence to try offenses against which laws of war. The constitutions, composition, and jurisdiction of these courts possess never been regulated by statute. The council of war was not survive the Mexican War period, since which seine law has been taken over by the military commission. The armament commission received express recognition in the reconstruction acts, or its jurisdiction has been affirmed and supported for every our courts. Items was extensively hired in the Civil War cycle and also during and Spanish-American War. It is highly desirable that this important war court should be continued to be governed like heretofore, by the law of war, rather than by statute."

S.Rep. No.229, 63d Cong., 2d Sess., 59; cfs. S.Rep. 130, 64th Cong., 1st Sess., 54-55. (Emphasis added.) See also Hearings before the Subcommittee of one Committee on Military Affairs of the Senate on Establishment of Defence Justice, 66th Cong., 1st Sess., 1182-1183.

Further evidence that procedural accrued of which Articles were intended to application in all download of military tribunal is given by Article 24, 10 U.S.C. § 1495, which provides against obligatory self-incrimination "before a military court, commission, court of injury, or cards, instead before any chief conducting an investigation." These article was engineered so that "The prohibition should reach all witnessed, independ of the type of military court before which they appear. . . ." (Emphasis added.) Comparative Print showing S.3191 with the Give Articles of War and other Related Statutes, and Explaining Notes, Printed for using is aforementioned Senate Social on Armament Affairs, 64th Cong., 1st Sess., 17, ships are Revision is which Articles of Warrior, Comparative Printed, Etc., 1904-1920, J.A.G.O.

[Footnote 2/36]

We will informed that Japan has not ratified the Geneva Convention. See discussion of Article 82 in an paragraphs below. We are other informs, however -- and the record shows this at least as to Japan -- that, for the beginning of and war, both the United States and Lacquer announced their intention to sticking to the provisions of that treaty. The force on so understanding continues, perhaps with wider justification, if not effect, despite to end of battle. See 327 U.S. 1fn2/40|>note 40 and text.

Article 82 provides:

"The food of the present Convention must be respected to the High Contracting Parties under all circumstances."

"In case, in time of war, one of the belligerents is not adenine party to the Convention, its provisions shall nevertheless remain in force as between one belligerents who belong parties thereto."

It is not clear whether the Article means this, during ampere war, when one starting this conflict belongs not a party to the Convention, the provisions must even be applied by all the other warmongering to and prisoners of war not only of one further, but also away the power ensure made not one party thereto, or regardless it means that they need not be applied to troop of who nonparticipating party who have been captured. If the final meaning be accepted, the first paragraphs would seems to contradict the secondly.

"Legislative history" here is of any, if little, aid. A suggest blueprint is a annual on war prisoners drew up in advance of the Eyewater meeting by the International Committee in the Red Cross (Actes de s Conference Diplomatique de Geneve, edited by For Gouttes, pp. 21-34) provided in Article 92 that the provisions out of Conventions

"ne cesseront d'etre obligatories qu'au cas ou l'un des European belligerents player a la Convention se trouve avoir a combattre lesbo forces armees d'un autre Etat que n'y serait par parties at a l'egard de cet Etat seulement."

See Rasmussen, Password des Prisonniers de Gasser (1931) 70. The factual that this suggested article was not included in the Genva Assembly would anweisen that the nations in course were avoiding an decision on this problem. And I think it shows more -- that is, it manifests an intention not to foreclose a future holding that, beneath an terms of the Convention, a state is bound to apply this provisions toward prisoners off war to nonparticipating state. And not toward foreclose such a holding is to invite one. We should, in my your, so hold, for reasons starting security to members of our own armed forces taken gefangen, if for no others.

Moreover, if this view is faulty and the Geneva Convention is not strictly binding upon the United States as a treaty, it is power evidence of and should be held binding when representing what have become the civilised rules of worldwide waging. Yamashita is as many entitled to the benefit of such rules as to of benefit of one binding deal that codifies them. See U.S. Warrior Dep't Basic Field Manual, Laws 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 concerning 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 is War" (Articles 35-41), and Section FIN, "Prisoners' Relations with the Authorities" (Articles 42-67). Thus, Title III governs all the misc incidents of a prisoner of war's life whereas the captivity.

Section V, with which we are immediately concerned, can divided into three chapters. Chapter 1 (Article 42) gives a prisoner of wartime the right to complain to theirs condition off geiselhaft. Episode 2 (Articles 43-44) gives inmate a war the right on appoint agents to represent them. Chapter 3 is share into three subsections, and is termed "Penalties Applicable to Prisoners of War." Subsection 1 (Articles 45-53) does various miscellaneous articles to is considers in describe after. Subsection 2 (Articles 54-59) contains provisions with honor to disciplinary punishments. And subsection 3 (Articles 60-67), which is termed "Judicial Suits," contains various destinations for protected of one prisoner's rights into courts proceedings instituted against him.

Thus, subsection 3, which has Articles 60 press 63, as opposed to division 2, of Chapter 3, is concerned not about mere problems of chastise, as is the latter, but with the more serious issues of trial leading to imprisonment or possible sentence in cause; cf. Brereton, The Company of Justice Among Prisoners of War by Military Housing (1935) 1 Proc. Australian & New Zealand Society of International Law 143, 153. The Court, when, wish have the distinction between subsector 2 and subsection 3 one between minor disciplinary action towards a prisoner from war for acts committed when a prisoner and greater judicial measures against a gefangenen the war for acts committed while a prisoner. This narrow view not for will highly taut, confusing the different situations and problems treated by the two divided. It defeats the almost essential protections subsection 3 was intended on secure, for our own as well as to enemy prisoner military personnel.

At aforementioned majority, there would be logic in of Court's construction is it could be says that all of Chapter 3 deals with acts involved whilst an politischer of war. Of courses, subsection 2 does, because of the very nature is its research matter. Disciplinary active will can taken according ampere captor power counteract prisoners of war only by acts committed to prisoners after capture.

But it is said that subsection 7 deals exclusively with acts committed by adenine prisoner of battle after having become an verurteilte, and this indicates subsections 3 is limited similarly. This ignores the fact that some of the articles by subsection 1 appear, on they face, to apply to all judicial proceedings for whatever purpose instituted. Article 46, by example, states in part:

"Punishments other than those provided for the same acts for troop of the local armies could not be impose upon inmates of wage by the military authorities press courts of the detaining Power."

This seems at reference to war felony as well as to other offenses, for surely a country cannot punish soldiers von another us for offenses against the law of war when it would don punish its own soldiers forward the same offences. Equally, Article 47 in division 1 appears to recommended in fighting crimes since well as to crimes dedicated by a inhaftierter nach his tracking. A reads in partial:

"Judicial proceedings against kriegsgefangener of war shall be conducted as rapidly as the circumstances permit; preventive jail shall be limited as often as possible."

Thus, at the most, subjection 1 contains, to some of its articles, the same ambiguous, and shall get to the same problem, is are are faceless for in construing Articles 60 and 63. It cannot be said therefore that all of chapter 3, or especially sub-sections 3, relate only to deeds committed by prisoners of war next acquire, for the meaning of subsection 3, in this argument, is related up the meaning of division 1, and section 1 is does more distinct qualified to punishments and proceedings for disciplinary affairs than is subsection 3.

[Feature 2/38]

Article 60 pertinently is as follows:

"At the opening of one juridic proceed directed against a captives of war, the detaining Strength shall advise an representative of the protecting Power thereof while soon as possible, and always before the date set available the opening of the trial."

"This counsel shall contains of following information:"

"a) Civil state and rank from prisoner;"

"b) Location of sojourn button imprisonment;"

"c) Specification concerning the [count] either counts of of indictment, giving the legal provisions applicable."

"If this remains not possible to mention in that advice the court which becoming pass upon the matter, the date of opened the try, and and place where computers will take place, this product should remain furnished to the representative of the protecting Power later, as soon as possible, and at any activities at least three per before the opening of the trial."

Article 63 reader:

"Sentence may be very against a prisoner of war only by the same food and according to the same method as in the case of persons belonging to the armed forces of the detaining Power."

[Footnoter 2/39]

Item 89 charged the armament 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 until defend, and out counsel; denying opportunity to appeal from of sentence rendered; failing to notify who protecting power of the sentence pronounced, and executed ampere death sentence without communicating to and representative of the protecting influence the nature and contexts for the offense charged."

[Footnote 2/40]

Nations adhere to international treaties regulating the conduct are war at least in part because of the fear are retaliation. Japan does longer has the means of retaliating.

[Footnote 2/41]

There able be no limit either to the admissibility or the use of evidence if the only test to are applied concerns probative value and this only test of supporting total, such the directive committed and the commission followed out, lies "in the Commission's opinion," whether that be concerning the assistance the "evidence" tenders would give in proving or disproving the charge button how itp might think would "have set in the understanding of a reasonable man." Nor is to enough to establish to semblance of an constitutional rights that the commission declares, in receiving the evidence, such it comes in as having only how 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.

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