High Court's 1946 War Crimes Ruling Resounds
By David G. Savage
Times Staff Writer

August 6, 2006

WASHINGTON — Five months after the end of World War II, the U.S. Supreme Court, in a 6-2 decision, upheld the death sentence of a Japanese general who had commanded the final defense of the Philippine Islands.

The court's action greatly troubled a young Navy veteran, John Stevens, who a year later became a law clerk for one of the two dissenters in the case.

The "great divide between our enemies and ourselves," Justice Wiley B. Rutledge wrote in his 1946 dissent, was that "theirs was a philosophy of universal force" and "ours is one of universal law" — for friends and foes.

The swift military trial of Gen. Tomoyuki Yamashita stemmed from Japanese troops' brutal attacks on Filipino civilians. Rutledge said it failed to meet basic standards of fairness because the general had been convicted of war crimes in the absence of any evidence he had done wrong.

"If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice," Rutledge's dissent said.

Rutledge died three years later of a heart attack, after just six years on the court, and his name faded from the public's memory. But his former clerk kept alive those dissenting words, writing in a 1956 book chapter that Rutledge's view on the importance of fairness in military trials would "be shared by others in years to come."

His prediction came true.

That onetime law clerk is Justice John Paul Stevens, who in June wrote the Supreme Court's ruling that accused war criminals must be tried, as the Geneva Convention requires, in "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Stevens was speaking for the 5-3 majority in Hamdan vs. Rumsfeld, which rejected the Bush administration's special rules for military tribunals because, the court said, the rules did not offer defendants a fair trial.

The high court had agreed two years earlier that the government could hold so-called enemy combatants — captured during conflict but not affiliated with a nation's military — at a U.S. facility at Guantanamo Bay, Cuba. But this time it faced the question of whether some detainees could be tried as war criminals, and possibly executed, under evolving rules set by the White House alone.

When it came to setting rules for the war on terrorism, the 86-year-old Stevens looked back six decades to World War II and the trial of the Japanese general.

In Hamdan, the court rejected a tribunal provision permitting the removal of defendants from the courtroom at prosecutors' request. Stevens argued that, at minimum, defendants charged with war crimes deserved to be present at their trials and to confront all the evidence against them.

In Yamashita, Rutledge had argued that because the evidence consisted only of reports of atrocities, and not witnesses who had seen or heard the attacks ordered, the general could not adequately defend himself.

Stevens also found that the government must show that the alleged war criminal had committed "a hostile and warlike act" against Americans, not simply that he was linked to others who committed atrocities.

Salim Ahmed Hamdan has acknowledged that he was a driver for Osama bin Laden but has denied participation in any terrorist plans. Gen. Yamashita had argued that he was cut off from his troops during the atrocities and that he had not ordered, approved or even known of them.

Some of Stevens' former law clerks say they have been struck by the decisive role his World War II-related experience has played in his handling of cases involving the war on terrorism.

"Stevens was greatly influenced by Rutledge. He admired him as a person and as a judge. And without question, he carried that relationship with him," said Deborah Pearlstein, a lawyer for Human Rights First. "When I was a clerk, he would often mention an opinion or dissent by Rutledge."

"It's remarkable when you look back at Yamashita," said University of Oklahoma law professor Joseph T. Thai. "Wiley Rutledge strongly believed in the rule of law and justice. He said what separates us from the people we fought against is that we believe in fair treatment for all. He said we can't allow the fears and pressures of the moment as a reason to mete out swift justice to our enemies and to abandon our basic principles.

"And that's the lesson Justice Stevens applies to the war on terrorism: Even as we seek to punish the 'worst of the worst,' we must abide by the rule of law."

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Although Yamashita had outspokenly opposed Japan's preparations for war, he was a fearsome leader once the battle was joined, earning the nickname "Tiger of Malaya" for his role in the capture of Singapore in 1942.

But the tide began shifting in favor of the Americans, and in October 1944, Yamashita was sent to Manila to take over the defense of the Philippines. He was soon cut off from much of his army and fled into the mountains. The troops he left behind in the city went on a drunken rampage in the final months of the war, raping and murdering thousands.

Army Gen. Douglas MacArthur, the victorious U.S. commander in the Pacific, insisted on holding Japanese commanders responsible for atrocities committed by their troops. The first to be charged was the Tiger of Malaya. In October 1945, a month after Japan's formal surrender, Yamashita pleaded not guilty to "a violation of the law of war" for having "failed to provide effective control" of his troops and for "permitting them to commit brutal atrocities" against Americans and Filipinos.

Five officers under MacArthur's command, none of them lawyers, served as the judge and jury. Prosecutors presented evidence of 123 counts of murder, rape and other atrocities committed by Japanese forces, but none of the crimes were directly linked to Yamashita.

The "trial marked the first time in history that the United States as a sovereign power had tried a general of a defeated enemy nation for alleged war crimes," George Guy, one of Yamashita's court-appointed military lawyers, later wrote. Yet "there had not been one word or one shred of evidence in the entire seven weeks of trial to show that Yamashita had ordered or condoned any of the things that had taken place, or that he had knowledge of them."

On Dec. 7, 1945 — four years to the day after the Japanese attack on Pearl Harbor — the presiding American general convicted Yamashita and sentenced him to death. The atrocities were "so extensive and so widespread" that they "must have been willfully permitted by the accused or secretly ordered" by him, the American officers concluded.

MacArthur planned to carry out the sentence immediately. But to his surprise, the Supreme Court voted to hear an appeal lodged by Yamashita's defense team, staying the execution.

In the end, six justices decided the matter was for the military to decide, not the federal courts. "We are not concerned with the guilt or innocence of the petitioners" in habeas corpus cases such as Yamashita's, Chief Justice Harlan Fiske Stone wrote for the majority.

Stone added: "If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts."

Stone insisted on handing down the opinion quickly. Rutledge, the last appointee of President Franklin D. Roosevelt, worked through the night to complete his dissent in time.

"More is at stake than Gen. Yamashita's fate," he began. "There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law."

He then tried to show how the trial, at every stage, had ignored the rules of fairness.

The majority opinion and Rutledge's dissent were read at the Supreme Court on Feb. 4, 1946. Justice Frank Murphy also dissented. The ninth member of the court, Justice Robert H. Jackson, was absent, leading the prosecution of Nazi officials at the war crimes trials at Nuremberg.

Two weeks after the ruling, Yamashita was hanged.

"The dissent in Yamashita took courage, for Rutledge's case file brims with letters berating him for supporting a 'Jap,' " Diane Marie Amann, a former Stevens clerk who is now a law professor at UC Davis, wrote this year in the Fordham Law Review.

In an interview, she added: "I think the lesson that Wiley Rutledge learned was that you have to be especially vigilant about the government's claims in times of emergency." Shortly after Rutledge joined the court, he had voted with the majority to uphold the military's internment of Japanese Americans on the West Coast. It was a decision that the court came to regret.

"That lesson was not lost on Stevens. Even in times of emergency, we have to live up to the traditions of the law," Amann said.

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In military law, the Yamashita case established the precedent that commanders are responsible for the actions of their troops. It was less clear as a precedent for the use of military tribunals.

In 1866, after the Civil War, the Supreme Court condemned the use of military trials and said they must be confined to "the theater of active military operations." Its decision overturned the conviction of a Confederate sympathizer, L.P. Milligan, who had been tried in a military court in Indiana and sentenced to die for conspiring to free Union troops' prisoners.

But in 1942, the high court upheld the military trials and death sentences handed out that year to Nazi saboteurs who had secretly landed on Long Island, N.Y. That decision served as a precedent for upholding Yamashita's conviction.

This year, Bush administration lawyers cited the Yamashita case four times in their brief to the Supreme Court defending military tribunals.

That may have been unwise.

As the author of the majority opinion, Justice Stevens had the last word. He described Yamashita's trial as a "glaring" and "notorious" exception to the American tradition of fairness in military trials. He wrote that, at the time, it "generated an unusually long and vociferous critique" from two justices.

And "at least partially in response to subsequent criticism of Gen. Yamashita's trial," he continued, the U.S. Uniform Code of Military Justice and the Geneva Convention were revised to add new standards of fairness.

The Yamashita case, Stevens concluded, "has been stripped of its precedential value" — vindicating Justice Rutledge's dissent 60 years after it was handed down.