The discussion continues. Up till 2006 and the Hamdan ruling, the military commissions were a creation of the Executive branch (see previous post on commissions’ history).
Who could these men be? What were they talking about? What authority could they represent? K. lived in a country with a legal constitution, there was universal peace, all the laws were in force; who dared seize him in his own dwelling? He had always been inclined to take things easily, to believe in the worst only when the worst happened, to take no care for the morrow even when the outlook was threatening. But that struck him as not being the right policy here, one could certainly regard the whole thing as a joke, a rude joke which his colleagues in the Bank had concocted for some unknown reason …
— Franz Kafka, The Trial[1]
Summary:
Military commissions, newly re-established by the Military Commissions Act of 2006,[2] were, and are, a type of extraordinary wartime tribunal, very unlike courts-martial. Unlike courts-martial, which try soldiers, these military courts can try anybody, anywhere on this planet, on rules of evidence and procedure very much different than civilian courts or military courts-martial.
These military commissions are now in session at Guantánamo, and present a very real possibility of secret and arbitrary trials that mock due process and make judicial murder a real possibility. The accused become subject to this by being designated, on the President’s say-so, “enemy combatants” outside the protections of U.S. and international law.
Facts:
The definition; the differences
[Defendant John] Lilburne began with an eloquent demand that the court uphold ‘the first fundamental liberty of an Englishman’ that ‘all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred’ … ‘that all the world may know with what candour and justice the court does proceed against you.’[3] —Geoffrey Robertson, The Tyrannicide Brief
As we discussed in previous posts, military commissions were once similar to courts-martial, though courts-martial have since evolved into a formal court system, with rules of evidence, procedure and appeal, very much resembling civilian courts, particularly in General Courts-Martial.[4] Military commissions are special military tribunals[5] by which the U.S. military may try any persons, particularly non-U.S. military (e.g., spies, “enemy combatants,” etc.); the authority for these courts is currently the Military Commissions Act (MCA) of 2006.[6] As currently authorized, these courts may determine rules of evidence, may adjudge verdict and pass sentences of imprisonment or death, and appeals to any civilian U.S. or international court, including most habeas appeals, are forbidden.[7]
Some of the differences from standard courts-martial:
| Courts-Martial | Military Commissions |
| Have jurisdiction over those persons, usually service members, who are subject to the Uniform Code of Military Justice (UCMJ),[8] worldwide.[9] | Have jurisdiction over “enemy combatants,” i.e., any person who “purposefully and materially supported hostilities against the United States”, US citizens or not.[10] (Expanded from the pre-MCA definition of enemy combatants as non-U.S., al-Qaeda-affiliated persons.)[11] The Executive branch designation of such a person is “dispositive.”[12] |
| Courts-martial are established and operate as integral to the UCMJ, and are bound by military case law.[13] | Created by the Military Commissions Act (MCA) under a separate section of 10 U.S.C. and are not bound by case law.[14] |
| Court-martial panel appointed per UCMJ; presiding judge and defense counsel from independent (outside chain of command) sources.[15] Defendant can retain civilian counsel who need only be licensed to practice in civilian jurisdiction.[16] | Military commission judges and counsel (including military defense counsel) are detailed by the Secretary of Defense.[17] No provision for independent or permanently-assigned defense counsel as such. Civilian counsel must have no bar complaints and must have SECRET clearance.[18] |
| Guided by the Manual for Courts-Martial (MCM), which includes (procedural) Rules for Courts-Martial (RCM) and the Military Rules of Evidence therein. | Guided by the MCA and regulations created by the Secretary of Defense. MCM doesn’t apply. |
| Must follow the Military Rules of Evidence in the MCM and evidentiary case law. | Secretary of Defense can set rules “practicable or consistent with military or intelligence activities, as well as rules of evidence that the military judge deems of “probative value”; evidence may not be excluded because it wasn’t under search warrant; hearsay evidence is admissible (unless the party opposing it “demonstrates” its unreliability.[19] Could include ex parte, in camera evidence under a new evidentiary “National Security Privilege.[20] Makes military case law (e.g., Military Reports generated by military appellate courts) irrelevant,[21] excludes UCMJ Articles on speedy trial, rights against compulsory self-incrimination, and pretrial due process.[22] |
| Must comply with Art. 31 limitations on pretrial interrogations[23] Prisoners may not be subjected to punishment, or confinement “any more rigorous than the circumstances required to insure his presence” before trial.[24] | Art. 31 specifically excluded, along with other procedural UCMJ protections.[25] Evidence obtained under duress may be admissible.[26] |
| Tries accused for statutory offenses specified in the UCMJ punitive articles (Art. 77-134). Includes crimes of common-law nature, e.g., rape, murder, larceny, solicitation et al. | Includes “law of war” traditional offenses such as pillaging, denying quarter, taking hostages, murder “in violation of the law of war”. Torture by the accused is triable. Rape and sexual assault[27] clauses name offenses already in the UCMJ[28] but the wording is different. “Terrorism” is one offense named.[29] Much language from customary law of war, e.g., misusing a flag of truce, “pillaging,” “treachery or perfidy,” etc.[30]. |
| Penalty specified by MCM; death penalty only where punitive statute[31] on the offense charged expressly provides for it. | Penalties as prescribed by the MCA which include death or confinement – the latter can be served at prisons run by the U.S. “or its allies.”[32] |
| New: “lawful enemy combatants”[33] under Art. 2(a)[34] subject to normal courts-martial. MCA inserts a new UCMJ provision in Art. 81 (conspiracy) that adds “to commit an offense under the law of war” to the definitions.[35] | Persons subject to the MCA may not invoke the Geneva Conventions in any proceeding involving the U.S. or current or former U.S. officials, in any U.S. or State court. President is the sole interpreter of all four Geneva conventions.[36] |
| Findings and sentence appealed through military appellate system and (ultimately, via cert.) to U.S. Supreme Court. | Executive review; judicial appeals sharply limited.[37] D.C. Circuit may review matters of law, i.e., only if the tribunal was consistent with the MCA or “to the extent applicable, the Constitution and the laws of the United States.”[38] |
| Military courts may hear common-law writs, including habeas corpus.[39] | The MCA forbids habeas corpus appeals generally to those subject to the MCA, particularly to non-U.S. citizens.[40] |
“Enemy Combatants,” attainting of: Personal jurisdiction para bellum:
When reminded that, after all, a crime had to have been committed for there to be a criminal, Knarrpanti opined that once the criminal was identified, it was a simple matter to find out what his crime had been. Only a superficial and careless judge would … not be able to slip into the inquest some small lapse or other on the defendant’s part that would justify the arrest.[41]
The UCMJ and the MCA create “status-based” jurisdiction over the people they will try: the former, to military servicemembers and those who in some way accompany them;[42] the latter, to those designated as “enemy combatants,” i.e., who “materially and purposefully” aid enemies of the United States (unlike the original post-9/11 military-commission orders, this is not limited to al Qaeda or Taliban members or non-US citizens). Since “enemy combatants” are not legal combatants as defined by the Administration’s notions about the Geneva Convention[43] these persons are, by their decree, illegal; “outlaw” – outside the law – in the original common-law sense.
This labeling is important. “[T]he power of the executive branch to declare persons unlawful or enemy combatants, thereby denying them constitutional rights to due process and the rights afforded under the laws of war.”[44]
Thus:
It is the government’s position that once someone has been properly designated as such, that person can be held indefinitely until the end of America’s war on terrorism or until the military determines on a case by case basis that the particular detainee no longer poses a threat to the United States or its allies. Within the general set of “enemy combatants” is a subset of individuals whom the administration decided to prosecute for war crimes before a military commission established pursuant to a Military Order issued by President Bush on November 13, 2001. … Should individuals be prosecuted and convicted in accordance with the Military Order, they would be subject to sentences with fixed terms of incarceration or other specific penalties.[45] – Guantanamo Detainee Cases, 2005
The UCMJ does confer court-martial jurisdiction over prisoners of war.[46] A “prisoner of war” is a precise legal term, which, under the III Geneva Convention, are those who were captured while lawfully serving as members of enemy armed forces, or members of militias or resistance movements, as defined in III GC’s Article 4.[47] This might not fit those accused of being one of the extra-national groups affiliated with al-Qaeda, or, for that matter, those irregulars continuing to fight in Afghanistan and Iraq after the removal of their pre-9/11 governments.[48]
Fall 2006: The Military Commissions Act
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
— Alexander Hamilton, The Federalist No. 81
In response to Hamdan, the Administration sought legislation from Congress. On Sept. 28-29, 2006, after one hour of debate in the Senate (no filibuster, amendments defeated), Congress passed the MCA, signed into law by George W. Bush on Oct. 17.[49] Most of its provisions amend 10 U.S.C. and other U.S. Code titles.
Its salient provisions – beyond those cited above[50] – now include:
10 U.S.C. §§ 948a(1 & 2). Defines “enemy combatants” and lawful enemy combatants, i.e., those who can be treated as prisoners of war protected under the Geneva Conventions et al. The wording is parallel to Article 4 of Geneva Convention (III) on Treatment of Prisoners of War[51] but omits the Article 4 categories of persons accompanying the enemy, irregular resistance fighters, and civilian internees.[52]
10 U.S.C.§ 948b. Military commissions generally. Makes military case law (e.g., Military Reports generated by military appellate courts) irrelevant,[53] excludes UCMJ Articles on speedy trial, rights against compulsory self-incrimination, and pretrial due process.[54] [N.B. No provision for venue, forum non conveniens or siting.]
10 U.S.C. §§ 948b(f) & (g). Deems MCA commissions to afford, ipse dixit, all judicial guarantees required by Geneva Common Article 3,[55] but asserting that enemy combatants may not invoke the Geneva Conventions.
10 U.S.C. §§ 948d & 949m. Jurisdiction. Can try any offenses before, on or after 9/11.[56] “Enemy combatant” designation by the Executive branch – their say-so – is “dispositive” to subject the person to the tribunal. May adjudge the death penalty either under this statute “or the law of war.” Law of war is customary international law – military custom – and not statutory.[57]
10 U.S.C. § 948j. Judges are designated by Defense regulations – “detailed” and not necessarily from an independent agency. The convening authority of a military commission – but only that person – is forbidden to use the judge’s efficiency report to reflect trial performance.[58]
10 U.S.C. § 948k. Secretary of Defense gets to detail trial counsel and military defense counsel. No provision for independent defense counsel.
10 U.S.C. § 948r. Excludes statements obtained by “torture” – however the Executive defines torture.[59] Statements elicited before the Detainee Treatment Act (Dec. 2005) may be admissible if the judge finds them of sufficient probative value.
10 U.S.C. § 949a. Rules. Secretary of Defense can set rules “practicable or consistent with military or intelligence activities, as well as rules of evidence that the military judge deems of “probative value”; evidence may not be excluded because it wasn’t under search warrant; hearsay evidence is admissible (unless the party opposing it “demonstrates” its unreliability.
10 U.S.C. § 949c. Civilian defense counsel must not have been the subject of “any sanction of disciplinary action” (including accusations?) and must have a SECRET clearance.
10 U.S.C. § 949d(d & e). Proceedings may be closed if national security information is involved, including exclusion of the defendant.
10 U.S.C. § 949d(f). Major new “National Security Privilege.” Executive branch or military department can assert this new evidentiary privilege to withhold evidence from the defense, or alternatively present redacted portions or a “summary.” Effectively, ex parte evidence, along with ex parte consultation with the Executive department raising the privilege. “Protection of sources” clause could potentially screen off witnesses as well if the evidence is testimonial.
10 U.S.C. § 949l. Rulings of law by the judge are conclusive, that is, there will be no interlocutory appeals to higher courts (but the judge may change his ruling during the trial).
10 U.S.C. § 949u. Confinement. Those found guilty may serve sentences of confinement in armed forces facilities (e.g., the brig), or any prison under the U.S. or its allies.
10 U.S.C. §§ 950c, 950d, 950f, 950g. Appeal. Beyond Executive branch review of trial and sentence, the MCA creates a new Court of Military Commission Review, appointed by the Secretary of Defense (not Congress). The United States (only that party) may take interlocutory appeals to the CMCR. The D.C. Circuit may review matters of law, i.e., only if the tribunal was consistent with the MCA or “to the extent applicable, the Constitution and the laws of the United States.”[60] Supreme Court may review if it grants cert.[61]
10 U.S.C. §§ 950i, 950j. Execution of sentence and appeals. Secretary of Defense can prescribe procedures; President must approve death sentences. Accused must file a “timely petition” for review or cert. (no definition as to “timely.”) No court, justice or judge has habeas jurisdiction on any MCA matter.
10 U.S.C. § 950v. Crimes triable. Includes “law of war” traditional offenses such as pillaging, denying quarter, taking hostages, murder “in violation of the law of war”. Torture by the accused is triable. Rape and sexual assault[62] name offenses already in the UCMJ[63] but the wording is different. Defines “spying” differently than the UCMJ;[64] as with “conspiracy”[65] A military commission is left to interpret this on its own, given the deliberate exclusion of military or other case law (see MCA § 948b discussion, above).
10 U.S.C. § 950v(b)(24-26). Terrorism, which includes activity calculated to influence government or to retaliate against government conduct. “Material support” to terrorism or “wrongfully aiding the enemy” are also offenses, though the statute provides no clear mens rea and, with no case law (see above) the definitions may not be apparent to counsel preparing for trial.
18 U.S.C. § 2441(3). The MCA strikes out a jurisdictional clause[66] and adds a lengthy new subsection defining breaches of Geneva Common Article 3. This might not agree with customary international law on Common Article 3 since the Geneva Conventions’ creation in 1949.
28 U.S.C. § 2241. New subsection (e) added, stripping courts of jurisdiction to hear habeas.
Amendments to UCMJ.[67] Adds “lawful enemy combatants” to Art. 2(a)[68] as subject to normal courts-martial; excludes military commissions from UCMJ Arts. 21, 28, 48, 50(a), 904, and 906. Inserts a new UCMJ provision into Article 81 (conspiracy) that adds “to commit an offense under the law of war” to the definitions.
Geneva exclusion and interpretation. Sec. 5 of the MCA forbids any person from invoking the Geneva Conventions in any proceeding involving the U.S. or current or former U.S. officials, in any U.S. or State court. Sec. 6 leaves the President as the sole interpreter of all four Geneva conventions. (N.B., the MCA does not mention other applicable treaties to invoke, e.g., the International Covenant on Civil and Political Rights (1966), [69] with its provisions on torture, cruel treatment, arbitrary arrest or detention, due process, or the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987),[70] or the Inter-American Convention on the Forced Disappearance of Persons (1994).[71]
Congress has since passed the Military Commissions Act of 2009[72], and the Obama administration has established a Manual for Military Commission Trials and a military-commissions appellate court. More on this in future posts.[73]
[1] Franz Kafka, The Trial 7 (Borzoi, 10th ed., 1953).
[2] S. 3930, “Military Commissions Act of 2006.” Copy of bill, as passed, online at http://www.loc.gov/rr/frd/Military_Law/pdf/S-3930_passed.pdf . U.S. Code sections modified or created by this Act denoted infra as (MCA).
[3] Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold 219 (Pantheon Books, 2005). Mr. Lilburne’s trial took place after Charles’ execution, during the Puritan military government of Oliver Cromwell.
[4] Maj. Timothy C. MacDonnell (Prof., Crim. Law), Military Commissions and Courts-Martial: A brief Discussion of the Constitutional and Jurisdictional Distinctions between the two Courts, 2002-MAR Army Law. 19.
[5] Hereinafter, the word “tribunal” is a synonym for military commissions.
[6] Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006), enacting Chapter 47A of title 10 of the United States Code.
[7] Contravening ex parte Quirin, 317 U.S. 1, 24 (1942).
[8] Art. 2, 3 & 5, UCMJ (10 U.S.C. §§ 802-803, 805.
[9] Art. 5, UCMJ.
[10] (MCA) 10 U.S.C. § 948a(1).
[11] Military Order of November 13, 2001, 66 F.R. 57833, 57834 (Nov. 16, 2001), § 2(a) defining “persons subject to this order.” Hereinafter, “President’s Military Order.” Available online at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html. See also id., § 7(b)(1).
[12] (MCA) 10 U.S.C. § 948d(c). “Providing material support” to terrorism and “aiding the enemy” are also punishable offenses under this Act. (MCA) 10 U.S.C. §§ 950v(b)(25, 26).
[13] Art. 1-146 is the UCMJ (10 U.S.C. §§ 801-946 respectively). See esp. Arts. 16-29 on courts-martial composition and jurisdiction.
[14] (MCA) 10 U.S.C.§ 948b(c).
[15] Art. 6a, 26, 27 UCMJ (10 U.S.C. §§ 806a, 826-827).
[16] Art. 26(b) UCMJ. See online www.nlg.org/mltf, click on “Military Law” and then “General” for qualification of civilian counsel.
[17] (MCA) 10 U.S.C.§§ 948j & 948k.
[18] (MCA) 10 U.S.C.§ 949c.
[19] (MCA) 10 U.S.C.§ 949a.
[20] (MCA) 10 U.S.C. § 949d(f).
[21] (MCA) 10 U.S.C.§ 948b(c).
[22] 10 U.S.C.§§ 810, 831(a, b, d) and 832 (UCMJ Arts. 10, 31 and 32 respectively). Mentioned at (MCA) 10 U.S.C. § 948b(d).
[23] Art. 31 (10 U.S.C. § 831). Military courts have construed Art. 31 to be broader than Miranda. U.S. v. Baird, 851 F.2d 376, 383 (D.C. Cir., 1988).
[24] Art. 13 UCMJ.
[25] (MCA) 10 U.S.C.§ 948b(c).see § 948b generally.
[26] (MCA) 10 U.S.C.§§ 948r, 949a.
[27] (MCA) 10 U.S.C. §§ 950v(b)(21-22).
[28] 10 U.S.C. § 920 (UCMJ Art. 120).
[29] (MCA) 10 U.S.C. § 950v(b)(24-26). albeit defining terrorism with less precision than 18 U.S.C. §§ 2331 et seq., under which terrorism is already a Federal criminal offense, in a body of statutes (Chapter 113B, Title 18) with enactments in 1990 and 1996.
[30] That tribunals try customary law of war, and courts-martial the statutory offenses set by Congress, was a divergence noted as far back as the Civil War. Louis Fisher, Military Tribunals and Presidential Power 48 (University Press of Kansas, 2005).
[31] Punitive statutes are Art. 77-134 (10 U.S.C. §§ 877-934).
[32] (MCA) 10 U.S.C. § 950g(c). Emphasis added.
[33] See Geneva Convention, Article 3 and 4 discussion, infra.
[34] UCMJ, 10 U.S.C. § 802(a), which provides for jurisdiction over certain categories of military personnel, including, prior to the MCA, prisoners of war.
[35] MCA, Sec. 4(a) and 4(b).
[36] MCA, Sec. 5 and 6.
[37] (MCA) 10 U.S.C. §§ 950c, 950d, 950f, 950g, 950i, 950j.
[38] Emphasis added.
[39] U.S. Navy-Marines Court of Appeal v. Carlucci, 26 M.J. 328 (1988).
[40] (MCA) 10 U.S.C. § 950j and (MCA) 28 U.S.C. § 2241(e). But see 8 U.S.C. § 1226a (originally, § 412 of the Patriot Act), which provides habeas for detained aliens subject to the Patriot Act.
[41] German Judge E.T.A. Hoffman, in his satire The Flea, quoted by Ingo Müller, Hitler’s Justice: The Courts of the Third Reich 3 (Harvard University Press, 1991).
[42] Art. 2, 3, and 5 UCMJ (10 U.S.C. §§ 802, 803, 805). Art. 5 makes this status worldwide.
[43] Convention (No. III) Relative to the Treatment of Prisoners of War, Concluded at Geneva, 12 August 1949, T.I.A.S. 3362.
[44] 185 A.L.R. Fed. 475, Designation as Unlawful or Enemy Combatant.
[45] In re Guantanamo Detainee Cases, 355 F.Supp. 2d 443, 447 (Jan. 31, 2005).
[46] Art. 2(a)(9) (10 U.S.C. § 802(a)(9)).
[47] Includes who are “(a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly; (d) That of conducting their operations in accordance with the laws and customs of war,” or merchant ship crews or those accompanying an enemy force, e.g., journalists, contractors, etc. III Geneva Convention (III GC) supra, Art IVA(2). MCA proponents often cite this four-prong test but tend to omit the other categories of legal combatants in Art. IVA & B.
[48] See esp. III GC Art. 4A(6), which covers a wide category of resistance and irregular fighters, post-invasion.
[49] See Wikipedia page, “Military Commissions Act,” at http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006.
[50] In this Briefing Paper’s contrast of courts-martial and military commissions in general, supra.
[51] Geneva Convention (III) on Treatment of Prisoners of War, 1956 WL 54809, T.I.A.S. No. 3364, 6 U.S.T. 3316. Hereinafter GCIII.
[52] Id., Article 4A5-6 and 4B.
[53] (MCA) 10 U.S.C.§ 948b(c).
[54] 10 U.S.C.§§ 810, 831(a, b, d) and 832 (UCMJ Arts. 10, 31 and 32 respectively).
[55] GCIII, supra, Article 3. “Common Article 3” is Art. 3 in all four Geneva Conventions of 1949, which, in Art. 3(d) forbids “The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. “
[56] Possibly a violation of Ex Post Facto, U.S. Const. Art. I, § 9, cl. 3. Flouts a finding in Hamdan, supra.
[57] Louis Fisher, Military Tribunals, supra, at 98.
[58] Contrast to 10 U.S.C. §§ 826(c) and 837 (UCMJ Art. 26(c) & 37).
[59] See, e.g., Jay Bybee, Memorandum, Office of Legal Counsel, U.S. Dept. of Justice, August 1, 2002, or Draft memorandum, Alberto Gonzalez to the President, Jan. 25, 2002, being coy about the definition of torture. Both documents hyperlinked in Appendix 3 infra.
[60] (MCA) 10 U.S.C. § 950g(c).
[61] Emphasis mine.
[62] (MCA) 10 U.S.C. §§ 950v(b)(21-22).
[63] 10 U.S.C. § 920 (UCMJ Art. 120).
[64] Compare (MCA) 10 U.S.C. § 950v(b)(27) with 10 U.S.C. §§ 906 & 906A (UCMJ Arts. 106/106A on spying and espionage).
[65] (MCA) 10 U.S.C. § 950v(b)(38); compare with 10 U.S.C. § 881 (UCMJ Art. 81), the latter making “effects an act” as an element, while the former adds “overt act” – and makes conspiracy a capital offense.
[66] The former 18 U.S.C. § 2441(3), which said, “(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.’
[67] The Uniform Code of Military Justice is 10 U.S.C. §§ 801-946.
[68] UCMJ, 10 U.S.C. § 802(a), which provides for jurisdiction over certain categories of military personnel, including, prior to the MCA, prisoners of war.
[69] Available online at http://193.194.138.190/html/menu3/b/a_ccpr.htm as of Jan. 27, 2003.
[70] See online at Office of UN High Commissioner for Human Rights, http://www.ohchr.org/english/law/cat.htm . The U.S. ratified the Convention Against Torture in 1994 only with the reservation that “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”
[71] 33 I.L.M. 1529. See “relevant statutes and treaties,” Appendix 2.
[72] Title XVIII of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. No. 111-84, H.R. 2647, 123 Stat. 2190, enacted October 28, 2009).
[73] For a succinct and ongoing view of the current Guantánamo courts, see http://en.wikipedia.org/wiki/Guantanamo_military_commissions.
Some more detail on the military-commission system up through 2006 and the Military Commissions Act. Hollywood recently examined one such trial in the Robert Redford film, “The Conspirator,” focusing on Mary Surratt.
– – –
The legal mind has a lazy habit of looking for “precedents” to justify what has been done or is about to be done. Little effort is made to scrutinize the precedent to determine whether it was acceptable then or worth repeating. The fact that something has been done before does not mean it should be done again. There is nothing “apt” about the Quirin decision. As Justice Frankfurter later remarked, it “was not a happy precedent.” The American legal system would do well not to see its like again. —Louis Fisher[1]
Counsel with clients facing such military commissions should review the commissions’ U.S. history, not least because the case history (key cases in bold) is the major, perhaps primary, basis for the Administration’s current pleadings on detention and military tribunals. The case history – bizarre as it is – is what the Administration relies on, more than it does the meager statutory basis for the tribunals.[2]
The military commission, as now understood, originated in the Civil War, though similar courts, termed as commissions, councils of war, or provost courts did convene in wartime from the Revolution to the 1845-1848 war with Mexico. This was against the inclinations of the Framers whose itemized “abuses and usurpations”, in the Declaration of Independence, noted that King George III “has affected to render the Military Independent of and superior to the Civil Power, … [and] depriving us in many cases, of the benefits of Trial by Jury.”[3]
The Lincoln Administration systematized these informal military courts at the start of the Civil War.[4] Executive Order No. 1, Relating to Political Prisoners provided for arrest, detention, parole or trial, by military authorities, of persons suspected of disloyalty or spying; the legal justification being the rebellion of half the country and the subsequent suspension of habeas corpus.[5] As in 2001, the military would supplement the Order with its instructions, in this case General Order 100 (1862) establishing not only military trials but martial law: virtually unlimited jurisdiction anywhere in the presence of the enemy.[6]
“Tribunals were instruments to enforce not so much the Articles of War[7] enacted by Congress and delegated to courts-martial, but rather the customary international standards known as the ‘laws of war.’ It was a well-established principle, said [Army Chief-of-Staff] Gen. Halleck, that ‘ insurgents and marauding predatory and guerrilla bands are not entitled’ to an exemption from military tribunals.”[8] Thus a pattern that would echo in later such military commissions to the present day: exclusion of a class of combatants from statutory law and due process, on the say-so of military officials, to be tried on notional military customs of offenses and tradition.
Many of the military commissions sat in occupied (Southern) territory, in war zones with few functioning civil courts.[9] However, military arrests and, later, military-commission trials also snared Northern citizens expressing pro-rebel or anti-war sentiment.[10] The most decisive, in legal history, were the Indianapolis trials of late 1864, the basis for ex parte Milligan[11], in which a U.S. military court tried several suspected members of a rebel fifth-column group, despite the fact that Indiana had functioning civil courts. Lamdin Milligan, sentenced to hang, brought a habeas corpus action before the Federal district court, and in 1866 the U.S. Supreme Court ruled that civilian courts did not give up their right to review habeas corpus, that “[m]artial rule can never exist where courts are open, and in the proper and unobstructed exercise of their jurisdiction,” and that the military could not try a “citizen in civil life, not connected with the [U.S.] military or naval service, by a military tribunal, for any offense whatever.”[12] Although it addressed the wrongs to a U.S. citizen, it was silent on the issue of foreign nationals.
While Milligan was pending, military commissions tried two high-visibility 1865 cases, of the Lincoln assassination conspirators and of Capt. Henri Wirz, commandant of the Confederate prison camp at Andersonville, Ga.[13] The Lincoln trial, held in Washington before a Union Army panel with little legal experience, and marked by irregularities in evidence and procedure (e.g., the prisoners wore canvas hoods till midway through the trial), ended in the hanging of four of the conspirators, including the first woman executed by U.S. jurisprudence[14] – and it only emerged, much later, that a majority of the court recommended clemency for Mrs. Surratt, who was hanged anyway.[15] The trial’s notoriety and Milligan notwithstanding, a descendant of Dr. Samuel Mudd was unable to get a post-9/11 court to change the trial verdict.[16] Except for this 2002 case, U.S. courts apparently never got to review the Wirz or Lincoln-conspirator defendants before they were hanged.
The military commissions were also used in the judicial murder of Native Americans taken in battle with U.S. forces. After a major Dakota (eastern Sioux) uprising in Minnesota in 1862, 38 of the Dakota were convicted on charges of rape, robbery and murder of Minnesota settlers, and were hanged en masse.[17]
The death penalty was not unusual in 1862, and other American Indians have been tried and convicted in American courts. But the Dakota trials and executions were different. The Dakota were tried, not in a state or federal criminal court, but before a military commission. They were convicted, not for the crime of murder, but for killings committed in warfare. The official review was conducted, not by an appellate court, but by the President of the United States. Many wars took place between Americans and members of the Indian nations, but in no others did the United States apply criminal sanctions to punish those defeated in war.[18]
In the winter of 1872-3, Kientpoos (“Captain Jack”) with about 150 other Modoc men, women and children, withstood over 1,000 U.S. Army troops in what is now the Lava Beds National Monument in far northern California. During the six-month siege, a peace parley between the Modocs and Gen. E. R. S. Canby ended with the death of Canby and another negotiator[19].
The Army charged Kientpoos and several other Modoc leaders with the Canby killings as well as killings of local ranchers at the start of the war. Washington instructed Canby’s replacement, Gen. Jefferson C. Davis, to convene a military commission at Ft. Klamath, Oregon, the nearest post. The Modocs did not have counsel, though Kientpoos did attempt to cross-examine witnesses. He noted, “I hardly know how to talk here. I do not know how white people talk in a place such as this, but I will do the best I can.”
The chief prosecution witness, a Modoc warrior named “Hooker Jim,” turned state evidence and avoided serious penalty, even though Hooker Jim was the one who shamed Kientpoos into ambushing the negotiators, and who led the initial attacks on local farms without Kientpoos’ knowledge. Kientpoos and five other Modocs were sentenced to hang; President Grant spared two but ordered that they be informed only at the foot of the scaffold. After the hanging, the heads of Kientpoos and the other three were cut off and sent to Washington as part of an ongoing “craniology” study of native skulls, ending up in the Smithsonian.[20] He deserved better.[21]
The Wilson Administration avoided military commissions in the First World War, even given the spy hysteria of the day. The Administration doubted the legality of such a tribunal, and the Espionage and Sabotage Acts were draconian enough.[22]
The next major military commission trials were in World War II; indeed, except for ex parte Milligan, the major case law dates from this conflict, Quirin, Yamashita and Eisentrager being particularly oft-cited now, the former two arising on U.S. territory.
ex parte Quirin.[23] In June 1942, eight German saboteurs, landed by submarines on the U.S. coast, were quickly captured by the FBI. (None of the agents were particularly bright, and several had reasons to defect). FDR insisted on a quick trial and execution, so, by executive order, created a military commission to do so. The case, although mostly in camera, was fully publicized (J. Edgar Hoover wanted publicity for the FBI) and U.S. Attorney-General Francis Biddle was prosecutor.[24] The defense was vigorous but somewhat irregular (i.e., the eight defendants had two (Government-appointed) defense counsel between them, despite conflict-of-interest problems, including two defendants turning state’s evidence against the others.[25]
The defendants (Richard Quirin et al) appealed on a habeas petition to the U.S. Supreme Court, who ruled in ex parte Quirin[26] that FDR’s executive order, the trial, the verdict, and the statutory authority were all valid, even given two naturalized American citizens among the German defendants, nor did their prosecution as “unlawful belligerents” (i.e., spies) contravene the U.S. Constitution Art. III § 2 (treason) or the Fifth and Sixth Amendments.[27] However, the Court retained “the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.” The courts’ right of review with or without habeas corpus, and access to the courts by the accused, drew on Milligan, “Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty.”[28] However, it’s worth noting that the Court published the decision almost three months after six of the defendants[29] were electrocuted and the rest sent to prison.[30]
The Quirin ruling, exhumed after 9/11, is proving a particularly nasty weapon in Bush Administration pleadings. At least one expert on the Quirin case, Louis Fisher, has stated that the Quirin defendants’ rights, truncated as they were, may be far more than George W. Bush would accord those tried under the MCA, even though the Bush tribunals derive from the 1942 model.[31]
Colepaugh. [32] A second spy case echoed Quirin. Two German agents, one of them a defector, William C. Colepaugh (born in Connecticut), landed on the Maine coast in November 1944. They were quickly picked up by the FBI, tried by a military commission as spies,[33] and sentenced to death (FDR died before their execution; the two were subsequently commuted to life). Colepaugh filed for habeas corpus from Leavenworth in 1956 and was turned down. The Federal court ruled that, as a spy, he was subject to a military commission under the Quirin precedent, with no right to a civilian treason trial.[34]
Duncan v. Kahanamoku.[35] The WWII-period Court did overturn one type of military commission, those trying U.S. citizens on U.S. soil for non-military offenses. On December 7, 1941, U.S. authorities declared martial law in the territory of Hawaii. The U.S. military fortunes recovered after Midway but military commissions remained in business in Hawaii for the rest of the war. Two defendants – both of them civilians, both convicted by tribunals for non-military offenses (embezzlement and brawling) — were vindicated, albeit on narrow grounds. “Our question does not involve the well-established power of the military to exercise jurisdiction over members of the armed forces, … those directly connected with such forces, … or enemy belligerents, prisoners of war, or others charged with violating the laws of war… We are not concerned with the recognized power of the military to try civilians in tribunals established as a part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function.”[36]
Overseas, U.S. field commands also used military commissions, in the more traditional battlefield settings, for drumhead trials of 67 foreign nationals (usually accused as spies), of whom they executed 32.[37] One such trial became another important Court case—
Eisentrager.[38] Twenty-one German nationals continued to serve in Japanese-occupied China after the surrender of Nazi Germany on 8 May 1945. Captured after the Japanese surrender in September of that year, they were not repatriated as prisoners of war. Rather, as “unlawful combatants” on the Quirin pattern, they faced a U.S. military commission in Nanking and drew prison terms. The Court refused habeas corpus, inasmuch as they were not U.S. citizens and were captured in another country – a decision that may haunt current detainees held outside the U.S. homeland.
The Court majority seemed to find less privilege in non-citizens than U.S. citizens, as JJ. Black, Douglas and Burton noted in partial dissent:
As the Court points out, Paul was fortunate enough to be a Roman citizen when he was made the victim of prejudicial charges; that privileged status afforded him an appeal to Rome, with a right to meet his ‘accusers face to face.’[39] But other martyrized disciples were not so fortunate. Our Constitution has led people everywhere to hope and believe that wherever our laws control, all people, whether our citizens or not, would have an equal chance before the bar of criminal justice.[40]
Another important trial and judicial murder, that of Japanese Gen. Yamashita,[41] convened in Manila at the same time, albeit on what was then U.S. territory, the Philippines. The case[42] is important in that it established the doctrine of a commander’s responsibility for his/her subordinate’s actions (subsequently echoed as an offense in Bush’s Military Commission Instructions),[43] permitted verdict and punishment on that responsibility though it was an offense not in the statute-books,[44] and established the legality of a military-commission trial even where denial of Fifth Amendment due process was an issue. None of five tribunal members were lawyers; they were subject to heavy lobbying by Gen. MacArthur, they admitted ex parte and hearsay evidence as they saw fit and they condemned the defendant for simply being in command – not an offense until then – not for committing war crimes himself, which the Prosecution never alleged and which Gen. Yamashita may not have done. None of this bothered the Supreme Court majority. As a dissenting Justice noted,
Wholly apart from the violation of the Articles of War and of the Geneva Convention, I am completely unable to *79 accept or to understand the Court’s ruling concerning the applicability of the due process clause of the Fifth Amendment to this case. Not heretofore has it been held that any human being is beyond its universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for all.
… I cannot accept the view that anywhere in our system resides or lurks a power so unrestrained to deal with any human being through any process of trial. What military agencies or authorities may do with our enemies in battle or invasion, apart from proceedings in the nature of trial and some semblance of judicial action, is beside the point. Nor has any human being heretofore been held to be wholly beyond elementary procedural protection by the Fifth Amendment. I cannot consent to even implied departure from that great absolute.
It was a great patriot who said:
‘He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.’[45]
The Court thus denied Gen. Yamashita’s habeas appeal on Feb. 1, 1946 and he was promptly hanged.
The United States participated, at war’s end, in international tribunals in Germany and Japan of war criminals: enemy commanders, cabinet members, jurists. These differed from U.S. military commissions in that these proceedings were on the basis of international charters and with different rules of procedure, including full Anglo-American rights of evidence, due process and counsel; indeed, the treatment meted out to the likes of Hermann Göring was far more considerate than what Gen. Yamashita suffered.[46]
Between the end of WWII and 9/11, the U.S. military tried only a handful of such cases, usually of U.S. dependents (see Appendix 1 under “U.S. Trials Overseas”). While not usually discussed in this context they may be useful to counsel in a 9/11 tribunal or detention case.
Military commissions: courts created by decree
It was all very regrettable, but not wholly without justification. K. must remember that the proceedings were not public; they could certainly, if the Court considered it necessary, become public, but the Law did not prescribe that they must be made public. Naturally, therefore, the legal records of the case, and above all the actual charge-sheets, were inaccessible to the accused and his counsel, and consequently one did not know in general, or at least not know with any precision, what charges to meet in the first plea…[47] —Franz Kafka
On Nov. 13, 2001, the Bush Administration created, by Executive decree, a system of military commissions, although they tried no prisoners prior to the 2006 Hamdan ruling overturning them.[48] DoD supplemented the Nov. 2001 decree with Military Commission Orders and Instructions[49], mirrored in 32 C.F.R. §§ 9.1-9.12.[50] The Administration, as statutory authority for the military commissions, [51] cited 10 U.S.C. § 113(d), 140(b), 821, 836, along with Congress’ Sept. 2001 Authorization for the Use of Military Force,[52] specifically against “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”[53] The Administration cites that AUMF language, such that it is, as personal jurisdiction over those they would thus try. The Title 10 statutes mentioned only in passing – and did not create – the tribunals, and not with the specificity of the UCMJ[54].
Military/national-security proceedings parallel to, or auxiliary to, military commissions.
[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.[55] — D.C. District Ct., Jan. 2005
As of 2006, these other proceedings include:
- Combatant Status Review Tribunals.[56] Created subsequent to the 2004 Rasul and Hamdi Supreme Court rulings, DoD set up Combatant Status tribunals to permit detainees to contest their designation as an enemy combatant. DoD conducted the hearings in the latter part of 2004 to Jan. 2005. Of the cases, 520 detainees were determined to be enemy combatants; 38 were exonerated.[57] DoD must obtain detainees’ permission, by questionnaire, to detainees to release their names and get those questionnaires back to the court not later than Oct. 26, 2005.[58] Whether the information used by this panel, to make its determinations, was elicited by torture was an issue in In re Guantanamo Detainee Cases, along with the validity of this panel itself and the very designation of “enemy combatant.”[59]
- Administrative Review Boards. DoD has created “Administrative Review Procedures” for prisoners at Guantánamo; this process is an administrative panel to determine individual detainees’ status on the recommendation of the custodial authorities, and whether the U.S. should continue to detain them. It does not review those who are designated for military commission trials. It is an administrative panel but does guarantee counsel – to the review board, not those it reviews.[60]
- FISA Court. The Foreign Intelligence Surveillance Act or 1978, 50 U.S.C. §§ 1801 et seq, provides for a FISA court, of judges appointed by the Chief Justice, to meet in secret (if need be) and approve Government applications for surveillance where espionage, terrorism or other national-security threats are involved. While not a component of the President’s military commissions, intelligence developed by FISA can lend itself to determining a prisoner’s capture, enemy-combatant designation, detainment or tribunal, and the evidence might be admissible in the latter, perhaps ex parte or in camera.
- Terrorist Removal Court. 8 U.S.C. §§ 1531-1537 provides for the removal of aliens found to be terrorists, after public hearings before a court created for that purpose, under the same rules as FISA.[61] This court does not seem to have been convened, at least since 9/11.
The Detainee Treatment Act
The Detainee Treatment Act of 2005 (DTA)[62] — included in the Department of Defense Appropriations Act, 2006 and signed by President Bush, December 30, 2005 — incorporated the McCain Amendment and the Graham-Levin Amendment on detainees. It provided for “uniform standards for interrogation of persons” in detention, that standard being the Army Field Manual on the subject.[63] It also included a prohibition on “cruel inhuman or degrading treatment” in violation of the UN Convention Against Torture and the U.S. 5th, 8th and 14th Amendments,[64] and protects U.S. personnel from civil or criminal prosecution if they did not know that the interrogation procedure they were using was illegal (a “good-faith reliance as a factor” being one criterion).[65] The DTA also stripped Federal courts of habeas jurisdiction over detainees.[66]
President Bush appended a signing statement that he would interpret the DTA “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief,” i.e., as he saw fit.[67]
June 2006: The Hamdan ruling
The King [Charles I] sacked the Chief Justice … and his Privy Council directed the warden of the prison to answer the habeas corpus writ merely by stating that the orders to commit the MPs[68] to prison without trial ‘were and are by His Majesty’s special command’. This was not a lawful answer, the MP John Selden argued in the Five Knights’ Case which followed in 1627,[69] because Magna Carta required that no person can lose his liberty except by due process of law: ‘His Majestey’s special command’ was not a law, let alone lawful reason for indefinite detention. On the contrary, replied the Attorney-General, the King’s command was the law … an ‘act of state’, an exercise of the royal prerogative into which the courts could not enquire.[70]
The D.C. Circuit considered the matter of Selim Hamdan, alleged driver to Osama bin Laden in July 2005,[71] holding that the separation of powers doctrine was not violated by President’s designation of a military commission to try an Al Qaeda suspect. Further, they ruled, the Geneva Convention of 1949 is not enforceable in court by an enemy combatant, and even if it was, a military-commission trial does not violate it.[72]
The U.S. Supreme Court subsequently granted cert. to Hamdan’s habeas and mandamus petitions.[73] Rejecting the lower court’s approach, the Supreme Court ruled, on June 29, 2006, that:
- It indeed had jurisdiction to hear habeas appeals by prisoners at Guantánamo, contrary to the DTA.[74]
- Military discipline and military efficiency are not served by excluding civilian courts in a case like this, since Mr. Hamdan is not a servicemember, and, further, the military-commission tribunal created to try him was not part of the “integrated system of military courts and review procedures.[75]
- The military commission created by the President’s Order was not expressly authorized by Constitutional act, nor did the AUMF or DTA provide such authorization, nor did Congress’ authorization of AUMF show Congressional intent to expand the authorization it showed in Art. 21 of the UCMJ.[76]
- The military commission also violated both the UCMJ and the four Geneva Conventions, in its exclusion of the accused and his counsel from certain evidentiary proceedings, in its acceptance of any evidence of “probative value” to the tribunal president.[77]
- The tribunal rules of procedure have diverged from those of courts-martial, which were historically the same but are no longer; further, the procedural rules violate the Geneva Conventions; further, that Eisentrager doesn’t apply and Hamdi does in that the Geneva rights were indisputably part of the law of war.[78]
- Geneva Common Article 3, which affords minimal protection even to those individuals not signatories to Geneva or in a non-international conflict, and is binding.[79]
- Military tribunals must be limited to trying offenses within the convening commander’s theater, for offenses charged to have occurred during, not before or after the war.[80] Common Art. 3 must be understood to incorporate the barest trial protections recognized by customary international law, and the Administration’s military commissions deviated from them.[81]
Postscript: Mr. Hamdan’s military defense counsel, Lt. Cdr. Charles Swift, was passed over for promotion to Commander[82] for his second time in the fall of 2006, thus ending his military career.
To be continued.
[1] Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law 161 (University Press of Kansas, 2nd ed., Landmark Law Cases and American Society, 2005)
[2] Michael Belknap, A Putrid Pedigree: The Bush Administration’s Military Tribunals in Historical Perspective, 38 Cal. W. L. Rev. 433, 441-442 (Spring 2002).
[3] Declaration of Independence quoted in Henry Steele Commager, Documents of American History 100-101 (Crofts & Co., 3rd ed., 1944). For the evolution of U.S. military tribunals from Revolutionary times to 1862, see Louis Fisher, Military Tribunals 1-40, supra.
[4] This history is recounted, and argued, in Application of Yamashita, 327 U.S. 1, 66-72 (Rutledge, J., dissenting).
[5] Executive Order No. 1 (Feb. 14, 1862), 115 O.R. 221-223, Series II, Vol. 2.
[6] General Orders No. 100, Instructions For The Government Of Armies of the United States in the Field: Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863 (Gov’t Printing Office, 1898), available online. Rationale : “To save the country is paramount in all other considerations.”—Art. 5, G.O. 100.
[7] Predecessor to the Uniform Code of Military Justice.
[8] Louis Fisher, Military Tribunals 48, supra, quoting from The War of the Rebellion: a Compilation of the Official Records of the Union and Confederate Armies (hereinafter “O.R.”) 242-243, Series II, Vol. 1 (Government Printing Office, 1880).
[9] Belknap, supra, 38 Cal. W. L. Rev. at 448-449.
[10] Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties 51-68 (New York: Oxford Univ. Press, 1991, paperback).
[11] Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
[12] Id. at 60.
[13] J. Holt, Adjutant-General, Bureau of Military Justice report to Secretary of War Edwin Stanton, Nov. 13, 1865, 126 O.R. 489-494, Series III, Vol. 5.
[14] Belknap, supra, 38 Cal. W. L. Rev. at 462-467. For more on the Lincoln conspiracy trial see online http://www.law.umkc.edu/faculty/projects/ftrials/lincolnconspiracy/lincolnconspiracy.html.
[15] Louis Fisher, Military Tribunals, supra, at 68-69.
[16] Mudd v. White, 309 F.3d 819 (D.C. Cir., 2002).
[17] See 43 Stan. L. Rev. 13, Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice
[18] Id. at 13
[19] The Modocs guessed wrongly that the deaths of such dignitaries would end the war. It may not be the last time that enemies of the U.S. find themselves on trial for violating Western concepts that they might not have understood before the event. Cultural misunderstandings can cut both ways. For further thoughts and references on cultural relativism see Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 24 (2nd edition, Oxford University Press, 2001).
[20] See Richard Dillon, Burnt-Out Fires: California’s Modoc Indian War (Prentice-Hall, Inc., 1973) for an authoritative account of the war and the trial, the latter beginning at 305. See also Dee Brown, Bury My Heart at Wounded Knee (Holt, Rinehart and Winston, 1970), the chapter “The Ordeal of Captain Jack” being a concise account of the whole sorry episode.
[21] The Dakota and Modoc cases here extracted from General Yamashita’s Revenge: A Judicial Murder and its Implications for U.S. Military Commissions in Current Warfare, 4 N.C.C. L.Rev. 13, 32 (May 2003)
[22] Jack Goldsmith and Cass R. Sunstein, Military Tribunals and Legal Culture: What A Difference Sixty Years Makes, 19 Const. Comment. 261, 285 (Spring 2002).
[23] 317 U.S. 1 (1942).
[24] Michael Dobbs, Saboteurs : The Nazi Raid on America 207-229 (Knopf, February 2004).
[25] Id. at 229.
[26] 317 U.S. 1 (1942).
[27] Id. at 18 et seq. Since it was not treason, their offense was espionage, not a capital offense till FDR made it so, ex post facto.
[28] All id. at 9
[29] Including one of the two U.S. citizens, Herbert Haupt.
[30] 19 Const. Comment, supra, at 270
[31] Fisher, Military Tribunals supra, at 258 on Quirin’s impact; at 168-9 on the FDR/Bush comparison.
[32] Colepaugh v. Looney, 235 F.2d 429 (10th Cir., Kansas, 1956); cert. denied, 77 S.Ct. 568 (1957)
[33] With none of the PR horn-tooting of the 1942 trial; FDR and the Secretary of War seem to have opted for a more discreet trial than 1942. Louis Fisher, Nazi Saboteurs, supra, at 116-120; see also Louis Fisher, Military Tribunals xi, supra.
[34] Colepaugh, 235 F.2d at 432.
[35] Duncan v. Kahanamoku, 327 U.S. 304 (1946). The Kahanamoku here is Duke Paoa Kahanamoku, Sheriff of the City and County of Honolulu.
[36] Id. at 313-314.
[38] Johnson v. Eisentrager, 339 U.S. 763 (1950). Eisentrager is now in question by Hamdan v. Rumsfeld.
[39] Acts 25:16.
[40] Eisentrager at 798.
[41] Application of Yamashita, 327 U.S. 1 (1946).
[42] Recounted elsewhere; see, e.g., General Yamashita’s Revenge: A Judicial Murder and its Implications for U.S. Military Commissions in Current Warfare, 4 New Coll. of Cal. L.Rev. 13 (May 2003).
[43] Military Commission Instruction No. 2, Crimes and Elements for Trial by Military Commission, ¶¶ 6B(c)(3) and (4), which classes command responsibility as a collateral offense along with aiding & abetting and conspiracy.
[44] Breaching the maxim nulla crimen et nulla poena sin lege, no crime or punishment without a pre-existing statute.
[45] Application of Yamashita, 327 U.S. 1, 78-81 (Rutledge, J., dissenting).
[46] Noted in Hirota v. MacArthur, 69 S.Ct. 197 (majority decision)(1948); concurring and dissenting opinions at 69 S.Ct. 1238. For an example of the post-WWII charters and safeguards see also Charter of the International Military Tribunal, London, 8 August 1945, 82 U.N.T.S. 279.
[47] Kafka, supra note 1, at 146.
[48] Military Order of November 13, 2001, Federal Register Nov. 16, 2001 (Vol. 66, No. 222) at 57831-57836 (also listed as 66 F.R. 57833 (Nov. 16, 2001). See online at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html and, for 66 F.R. 57833, at http://www.law.uchicago.edu/tribunals/docs/exec_order.pdf.
[49] Listed in Appendices below, see “Official Documents” for pre-Hamdan documents creating military-commission courts by Executive decree.
[50] Military Commission Orders and Instructions, and 32 C.F.R. §§ 9.1-9.12, were identical and might not reflect the MCA. MLTF memorandum, “Military Commission Trials” (Oct. 13, 2005) at 11-12, had a comparison, in parallel hyperlinked columns, of the two sets of documents.
[51] UCMJ provisions mentioning military tribunals are at 10 U.S.C. §§ 818, 821, 836 (Art. 18, 21, 36). But see 8 U.S.C. § 1226a (orig. § 412 of the USA-Patriot Act). Detained aliens subject to the Patriot Act must be criminally charged, or removal proceedings begun, within seven days of detention. Provision for habeas corpus.
[52] Authorization for Use of Military Force Joint Resolution (Sept. 18, 2001), Pub.L. 107-40, S.J.Res. 23, 115 Stat. 224, 50 U.S.C. § 1541, see online at The Avalon Project website, http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm.
[53] Id., § 2, apparently a form of jurisdiction in personam as well as an authorization for the President to wage battle.
[54] Contrast Uniform Code of Military Justice, 10 U.S.C. §§ 801-876 (Art. 1-76) on courts-martial jurisdiction, composition, procedure etc. with the authorities cited in this Paper for military commissions.
[55] In re Guantanamo Detainee Cases, 355 F.Supp.2d 443, 456 (U.S.D.C., D.C., Jan. 31, 2005).
[56] Deputy Secretary of Defense Order of July 7, 2004, see online at http://www.dod.gov/news/Jul2004/d20040707review.pdf. See also Combatant Status Implementation Guidelines, July 30, 2004, online at http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf.
[57] Associated Press v. U.S. Department of Defense, — F.Supp.2d —-, 2005 WL 2065171 (S.D.N.Y, Aug. 29, 2005).
[58] Press v. U.S. Dept. of Defense, — F.Supp.2d —-, 2005 WL 2348477 (S.D.N.Y., Sept. 26, 2005).
[59] In re Guantanamo Detainee Cases, supra, 355 F.Supp.2d at 468-472 .
[60] “Administrative Review Procedures for Enemy Combatants in the Custody of the Department of Defense at Guantanamo Bay Naval Base, Cuba,” DOD Order, May 11, 2004; see online at http://www.defenselink.mil/news/May2004/d20040518gtmoreview.pdf. See also online “Making Sense of the Guantanamo Bay Tribunals,” Human Rights Watch’s summaries of the different panels at Gitmo, at http://hrw.org/english/docs/2004/08/16/usdom9235.htm
[61] Per 8 U.S.C. § 1532.
[62] H.R. 2863, Title X. See text online at http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-white.php. As mentioned in the MCA, the DTA is at 42 U.S.C. § 2000dd-1.
[63] DTA § 1002, see also Army Field Manual 34-42, Intelligence Interrogation. Note that Army Regulations, like Air Force and Navy Secretary Instructions and Marine Corps Orders, are regulations with the force of law, breach of which is violation of Art. 92 (10 U.S.C. § 892). N.B. that an Army Field Manual is a publication that describes tactics or operational doctrine.
[64] DTA § 1003. What the 14th Amendment, which prohibits States from denying due process or equal protection of law, has to do with a Federal branch of government, is difficult to gauge.
[65] DTA § 1004. But see the traditional maxims Ignorantia corum quae quis sciere tenetur non excusat, Ignorance of that which a person – e.g., trained interrogators – is held to know does not excuse him, and Ignorantia facti excusat, ignorantia juris non excusat, Ignorance of fact excuses, but ignorance of law does not excuse. Max Radin, Radin Law Dictionary 395 (Oceana Publications, 2nd ed., revised, 1970).
[66] See discussion of the Hamdan ruling below.
[67] See “McCain Detainee Amendment,” online at http://en.wikipedia.org/wiki/McCain_Detainee_Amendment .
[68] Here, “MP” is Member of Parliament.
[69] 3 State Trials 1 (1627).
[70] Robertson, The Tyrannicide Brief supra, at 33. [70] Here, “MP” is Member of Parliament.
[70] 3 State Trials 1 (1627).
[71] Hamdan v. Rumsfeld, 415 F.3d 33, 2005 WL 1653046 (D.C. Cir., July 15, 2005). Current Chief Justice John Roberts was part of the Circuit’s majority, which does not bode well for future Court reviews of the tribunal issues.
[72] Note: a full list of historic and current military-commission and detention cases is at Appendix 1. Case law is evolving rapidly and this Briefing Paper can make no this-is-final conclusion.
[73] Hamdan v. Rumsfeld, Docket No. 05-184, 548 U.S. ___ (June 29, 2006); 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185; 19 Fla. L. Weekly Fed. S 452.
[74] Overturning DTA § 1005(e). Id. at 7-20. All page references to Hamdan are from the slip opinion.
[75] Id. at 20-25.
[76] Id. at 25-30.
[77] Id. at 49-72.
[78] Id. at 53-62.
[79] Id. at 65-70.
[80] Id. at Parts V and VI-D, 30-49.
[81] Id. at 70-72.
[82] “Gitmo win likely cost Navy lawyer his career”, Seattle Press-Intelligencer (July 1, 2006) at A01, online at http://seattlepi.nwsource.com/national/276109_swift01.html; see also “Guantánamo defense lawyer forced out of Navy, ”Seattle Times (Oct. 8, 2006).
Here, a brief index of cases on command-responsibility. I will be adding to it as new case law appears or as I find them in research. Those who are not lawyers may still find this list a helpful reference as I discuss the command-responsibility doctrine as it has developed since the Yamashita case.
(Note: “U.S.”, in citations, means U.S. Reports, the formal U.S. Supreme Court reports. Case citations are volume, report, page # at start of ruling, and, if citing a particular page, a comma and another page #. “327 U.S. 1, 26”, for instance, would refer to a citation on page 26 of the decision starting at volume 327, U.S. Reports, decision that starts at page 1. “F.2d” is Federal Reports (U.S. appellate courts, 2nd series).
Command-responsibility cases
Application of Yamashita, 327 U.S. 1 (1946) (discussed in the law review). Origin of command-responsibility doctrine: strict criminal liability for commanders for all acts of their subordinates, presumably including subordinates’ conduct of extrajudicial imprisonment and killings, including ultra vires tribunals.
Kadić v. Karadzić, 70 F.3d 232 (2nd Cir., 1995). Murder, rape, torture, arbitrary detention of citizens, whether or not under color of authority, violate the law of war; commanders are required to prevent such acts; all parties must apply to minimum law of war requirements in common Art. 3, Geneva Conventions. Further extension of Yamashita in U.S. case law.
Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283 (11th Cir.(Fla.), Apr 30, 2002). Families of U.S. churchwomen tortured and killed in Salvadoran civil war brought civil against former Salvadoran general. 11th Circuit overturned their case on technical grounds but recognized the applicability of the Yamashita doctrine in U.S. jurisprudence.
Prosecutor v. Delalić et al. (“the Čelebići camp case”), Trial Chamber, Int’l Criminal Tribunal for the former Yugoslavia (IT-96-21, 2001), upheld, Appellate Chamber, ICTY (2003). See also Prosecutor v. Blaškić (“Lašva Valley case”), (Trial Chamber, ICTY, IT-95-14, March 3, 2000), mostly overturned, Appellate Chamber, ICTY, IT-95-14-A (2004). ICTY statute (Art. 7(3)) and cases brought further development of the Yamashita command- responsibility doctrine. The commander must be in effective control.
Prosecutor v. Halilović, Trial Chamber, ICTY (IT-01-48, 2007). Acquitted under the prevailing standard of proof, that the Defendant could not be held responsible for atrocities committed by those who were not under his command.
Prosecutor v. Akayesu, Judgment and Sentence (ICTR-96-4-I (Int’l Criminal Tribunal for Rwanda, 1998). Jean-Paul Akayesu, bourgmeister (civilian mayor), convicted of genocide and crimes against humanity during the 1994 genocide, both by overt acts and failing to control the gendarmes under his control. Extension of command-responsibility doctrine to civilian officials. “… An individual is criminally responsible as a superior for acts of a subordinate if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” (Case, sentence and judgment at http://www.unictr.org).
Related:
Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir., 1980). Torture under color of official authority ruled as being beyond any norm of international law; applicable here to foreign nationals under the Alien Tort Claims Act but broad language possibly applicable where the defendant(s) are U.S. citizens. While the defendant, a Paraguayan police official, was directly involved in the torture, it is of possible use in future trials if the defense alleges the defendant’s command authority justifies the underlying crime.
The central charge itself, of course, was a novelty in law up to 1945: that he was in command from Oct. 1944-Sept. 1945, that atrocities took place in his command sector, and that through neglect or deliberate inaction he was responsible. The two Bills of Particulars spelled out the atrocities. They break down into four general areas, which readers should bear in mind:
1. the mistreatment of Allied PWs and civilian detainees in prison camps in Luzon and elsewhere. (Worth remembering that the camps and their supply were under the army commissariat, not a part of Yamashita’s 14th Area Army command.)
2. the torture and murder of civilian and resistance prisoners by the Japanese military secret police, the Kempeitai, and by Japanese field tribunals. (The Kempeitai were also a separate agency, reporting to the War Ministry in Tokyo, and Yamashita had to apply to them to relieve the Kempeitai commander in Manila. However, one such Kempeitai facility was within a few hundred yards of Yamashita’s HQ at Ft. McKinley, outside Manila).
3. the atrocities against the people of Manila during the siege of Jan.-Feb. 1945, the central charge. The Defense stressed that the garrison was mostly a naval/marine force under Rear Adm. Iwabuchi, and that Japanese Army and Navy forces did not operate under joint command, unlike U.S. practice.
4. the atrocities during anti-guerrilla campaigns in the countryside, in Batangas and elsewhere. These were Army units, although the colonel in Batangas testified he was operating on his own, and Japanese Army commanders often did operate with far looser oversight than in U.S. forces, and had since the start of the war in China in 1937.
Should Yamashita have known or must have known, or, to use The Hague’s formulation, was he in effective command? Worth discussing at this blog. I might mention, due to subsequent research after 2004, that Yamashita wasn’t present in China during such events as the Rape of Nanking (he served in a quieter sector in Manchuria) — nonetheless, he asked for, and got, Lt. Gen. Akira Muto as his chief-of-staff when he reported to Manila. This raised eyebrows in the Japanese Army, because Muto had been in a rival faction (Tojo’s “Control Faction”, while Yamashita headed the “Imperial Way Group,”) and had had considerable service in China — a reason why Muto wound up on trial, with Tojo, in the great war-crimes trial in Tokyo.
If anybody “should have known or must have known”, Gen. Muto would have.
Yamashita was also in effective command at the fall of Singapore. The subsequent Sook Ching massacre — the attempted extermination of the ethnic Chinese there — took place while he was still in Singapore. Historians in Singapore and Japan are only recently finding new material on this affair. This didn’t come up in the Manila trial, so we need to judge the trial, rather than Yamashita, on this basis. Yamashita is dead, but the Manila trial, via the U.S. Supreme Court and The Hague, is now living case law.
The discussion continues.
(Gen. Yamashita testifies at his trial, 1945)
Gentle readers: submitted in 2004, this law-review article sets out the basic themes regarding the Yamashita case. Having become a law-review editor-in-chief since then, I can see some flaws in it. The main importance of the case, as later posts will discuss, the command-responsibility doctrine, which has become important case law, particularly at the tribunals at The Hague from 1991 on.
The military-commissions theme is still very much on point as well, since it was such a court that tried Yamashita, and such a court that sits at Guantánamo today (10/2011). What’s not commonly-known, and needed more stressing, was that while courts-martial have evolved since 1950 into a Federal court system with its own rules of procedure and evidence, and its own appellate courts and case law, the commissions remained a freak wartime event, created in 1862, re-created on that model in 1942 for the Quirin spy case, and re-re-created on that model in 2001.
The Yamashita case is also an exemplar of everything that can go wrong in a military commission trial: made-up rules of evidence and procedure (I found a case of quadruple hearsay during the trial). It was such a travesty that Yamashita’s verdict and sentence were a miscarriage of justice — however. Since 2004, considerable new research from Singapore suggests that Yamashita must have known about atrocities like the Parit Sulong and Sook Ching massacres during the Dec. 1941-Feb. 1942 campaign. Maybe the Manila trial was wrong, but the British court at Singapore might have had more reason to condemn him.
Finally, the detentions issue, post-9/11, is not quite on point — but since the Bush administration implemented it with the commissions as part of their War on Terror, it’s worth a discussion, in this article and today.
One caveat: case law on detentions has moved on since 2004, with the Hamdi, Hamdan, and other Supreme Court cases, the Military Commissions Acts of 2006 and 2009 — but to make the detention-and-commission system seemingly permanent.
And a postscript: U.S. Supreme Court Justice Frank Murphy had served, during the 1930s, as U.S. Governor-General of the Philippines, and, after the creation of the Commonwealth in 1936, as High Commissioner. The Yamashita trial took place in the ballroom of the old High Commissioner’s palace, one of the few such structures still standing in Manila in late 1945. If anybody had a candid interest in the case, Justice Murphy would.
– – –
[published as … General Yamashita’s Revenge, 4 N.C.C. L.Rev. 13 (May 2003). Page citations (*) included.]
*13
General Yamashita’s Revenge:
A Judicial Murder and its Implications for U.S. Military Commissions in Current Warfare
By [coram nobis][1]
[pic]
They stand before the record of this trial as bloodstained Gloucester stood by the body of his slain King. He begged of the widow, as they beg of you: “Say I slew them not.” And the Queen replied, “Then say they were not slain. But dead they are…” If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.
– U.S. Supreme Court Justice Robert Jackson, end of final U.S. prosecution argument, Nuremberg, 26 July 1946.[2]
| I |
t’s possible, by the time you read this, that U.S. forces will establish military commissions[3] as an attempt to place foreign nationals * 14 overseas and in the U.S on trial for the atrocities that took place in Kurdistan during the invasions of Iran in 1980 and Kuwait in 1990, and those resulting from the Taliban government’s reign in Afghanistan. These commissions would also address and include individuals who were involved in the 9/11 attack on the U.S. In terms of the tribunals’ legality, it is important to address whether their convening is valid and if the sentences they impose are forms of extrajudicial abuse or murder. Further, it is worth reviewing in light of command responsibility[4]. The military jurists who conduct these proceedings, the generals who convene these proceedings, and the Administration officials who review them may find themselves as culpable as their subjects.
We begin with perhaps the most decisive example of a U.S. military commission in action: one convened in 1945 in war-ravaged Manila to place General Tomoyuki Yamashita on trial.
– – –
I. Death of a General[5]
Gen. Yamashita was a soldier by profession, highly regarded in the Japanese Imperial Army for his intelligence and ability. A general by the 1930s, Yamashita survived intramural struggles for power in Tokyo in the mid-’30s, as well as the young officers’ revolt of February 1936. In December 1941 he was in command of the 25th Army, tasked with the invasion and conquest of Malaya[6]. Despite inferiority in numbers and supplies he swept the peninsula and took Singapore in February 1942. (By comparison, Japanese commanders invading the Philippines didn’t overcome the last of Gen. Douglas MacArthur’s U.S. forces there till May. MacArthur fled promising to return).
Yamashita became known as the “Tiger of Malaya” for this feat; he would go on to other assignments in Manchuria and didn’t appear in the *15 Japanese-occupied Philippines until October 1944[7], when he was assigned as 14th Army Group commander (effectively senior Japanese commander in the theater). — His reappearance occurred just as U.S. Gen. MacArthur began landing in the Philippines. By the end of January 1945, MacArthur’s forces were on the main island of Luzon and closing in on Manila. During this time, American naval superiority meant that Yamashita could not move easily among the many Philippine islands, naval aircraft ranged freely over his lines of communications, and his supply and command systems were frequently under attack. And he had no air support: Gen. Kyoji Tominaga, commander of the Fourth Air Army, withdrew to Formosa with most of his pilots.
Gen. Yamashita felt he could not defend Manila and, as MacArthur had done when overwhelmed by Japan in 1942, declared it an open city and ordered a withdrawal to the mountains. Rear Admiral Sanji Iwabuchi, the officer commanding the city, disobeyed and dug in with 21,000 naval troops for a last stand. Facing certain death, Iwabuchi’s troops, in “bewilderment, outrage and despair,”[8] usually drunk, went on a rampage among the local people, looting, raping, killing, and destroying.
A brilliant study on this phenomenon, the dynamics of indiscipline and despair that result in rampaging soldiery, comes from a feminist, rather than a military, historian. “Good national leaders, good fathers, wouldn’t have deployed their sons to such a war in the first place … the rogue captain unaccountable to a higher command was no anomaly.”[9]
With overwhelming numbers and firepower, MacArthur’s forces surrounded the city and applied heavy artillery and air bombardment, followed by house-to-house fighting. When the fighting in the city ended on Feb. 28, after the only urban battle in the Pacific War, almost the entire Japanese garrison, and 100,000 of the city’s population, were dead.
Gen. Yamashita faded into the mountains of northern Luzon and managed to prolong his resistance till Japan formally surrendered on *16 September 2, 1945. The next day, he came out of the mountains and surrendered as well. “Not for him the futile glory of the mass suicide attack and his own hara-kiri — that, he felt, would have been an abdication of responsibility on his part. In the end he simply surrendered, to halt the deaths of his men from starvation and disease.”[10]
Within six weeks, he was on trial for his life.
The case moved quickly. At Gen. MacArthur’s direction, and under Pacific Regulations of 24th September 1945,[11] Governing the Trial of War Criminals, Lt. Gen. Wilhelm Styer, Commanding General of U.S. Army Forces, Western Pacific, convened a military commission of five U.S. Army generals[12] to place Gen. Yamashita on trial in Manila. Gen. Yamashita was served, on September 25, with charges that he “between 9th October, 1944 and 2nd September, 1945, *** unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he, General Tomoyuki Yamashita, thereby violated the laws of war.”[13] On October 8 he was arraigned before the Commission and the Prosecution filed a Bill of Particulars that day.[14]
This first Bill of Particulars[15] was a litany of atrocities committed by Japanese military personnel, most of them listed as occurring in the Manila area, particularly during the siege period of January-February 1945. A random sample shows the range of different war crimes and their horrific nature:
32. On about 9 February 1945, at and in the vicinity of St. Faults College, Malate, Manila, cruelly and brutally mistreating Marcelino Pungalon, Meneleo Carlos, Sr., Estelita Benito, and approximately 600 other persons, including men, women and children, all unarmed noncombatant civilians; brutally massacring and killing without cause or trial, Bruno Acura, Celia Aguas, Jose Aquino, and 370 additional persons, including men, women and children, all unarmed noncombatant civilians; wounding, maiming and attempting to kill, without cause or trial *17 Celestina Antipolo, Zeila Antipolo, Cornelia Ayson, and 24 other persons, including men, women and children, all unarmed noncombatant civilians; unnecessarily, deliberately and wantonly burning and destroying buildings, together with fixtures, furniture and other contents thereof, and dedicated to religion, art and science and not used for military purposes, of the aforesaid St. Paul’s College and seizing and confiscating and stealing money, jewels and other private property of civilians.
33. On about 9 February 1945, in the vicinity of Dana Perfume Factory, Pasay, Rizal Province, cruelly beating, torturing and thereafter killing, without cause or trial, Eugene Andrewitz Kremleff, Russian, Julian Jawai and Alfredo Gana, Filipino, all unarmed noncombatant civilians.
34. During the period from 9 February 1945 to 17 February 1945, both dates inclusive, at and in the vicinity of Bay View Hotel, Alhambra Apartment Hotel, Miramor Apartment Hotel and Manila Hotel, all in Ermita, Manila, cruelly mistreating and abusing approximately 400 women, all unarmed and noncombatant civilians; cruelly mistreating, abusing and repeatedly raping more than 40 women and female children, and cruelly mistreating, abusing and attempting to rape more than 36 other women and female children; unnecessarily and wantonly burning, damaging or destroying the said buildings, private property, their furniture, fixtures and contents.
35. On about 8 and 9 February 1945, in Malate, Manila, killing, without cause or trial, Africa Canillas, Amparo Canillas, Charles Canillas, Elvira Canillas, and five (5) other members of the Felipe Canillas family, and Zoillo Llave, all unarmed noncombatant civilians; pillaging and unnecessarily and wantonly burning and destroying private property, the house and home of Felipe Canillas.
36. On about 13 February 1945, in the vicinity of No. 1609 Taft Avenue, Malate, Manila, cruelly mistreating and subsequently killing without cause or trial, Albert P. Delfino, Venezuelan Consul in Manila, then known by the perpetrators to be such, Francis A. Delfino, Maria Dolores Delfino, and John Doe Ching, all unarmed noncombatant civilians; cruelly mistreating, wounding and attempting to kill, without cause or trial, Igmidio Ramos, and a woman whose name is unknown; unnecessarily and wantonly burning and destroying private property, including the house at 1609 Taft Avenue and numerous other buildings in that area, together with the furniture, fixtures and contents thereof.
37. On about 11 February 1945, at 1580 Taft Avenue, Malate, Manila, killing, without cause or trial, Vassanmal Popardes and three (3) other British Indians, and Emilio Tubayano and three (3) other Filipinos, all unarmed non combatants; unnecessarily and wantonly burning and destroying private property, the house and home of Hashmatrai Hatchand, together with the furniture, fixtures and contents thereof.
38. On about 7 February 1945, near the Syquia Apartments in Malate., Manila, killing, without cause or trial, Father Peter Fallon, Father John Henaghan, Father Patrick Kelly and Father Joseph Monaghan, Priests of the Malate Catholic Church and Convent, and Jose Chico, Gerardo Rictra, Jack Sullivan, Conrado Vallenas, Victor Velasco, Bertito Zamora, Marcial Zamora, and Cristi Malaban, all unarmed noncombatant civilians.
39. On about 9 February 1945, at 515 Dakota Street, Malate, Manila, killing, without cause or trial, Kishinchand Mirchandani, Devjimal Changomal Lalivani, Thelma Parrish and Carl Parrish, Jr. (infant child), all unarmed noncombatant civilians.
40. On about 20 February 1945, in the Iloguin District approximately 2½ kilometers east of Pasig, Rizal Province, brutally mistreatment and robbery, and subsequent killing, without cause or trial, of Candido Jabson, and the brutal treatment, robbery, wounding and attempt to kill, of Raymunda Jabson and Delfina Jabson, all unarmed and noncombatant civilians; abuse and attempt to rape Raymunda Jabson; robbery, seizing, confiscating and stealing watches, clothes and other private personal property; and pillage of private property.
41. On about 12 February 1945, at 150 Vito Cruz Street, Singalong, Manila, brutal mistreatment, torture, burning alive or otherwise killing Carlos Perez Rubio, Sr., Lopita Perez Rubio, Javier Perez Rubio, Herbert Fox, Mrs. Herbert Fox, Marina Padua, Alphonso Pahodpod, and more than twenty two other persons including men, women and children, and brutally mistreating, attempting to burn alive and wounding Jose Balboa, Ignacio Bustamente and other persons; all unarmed and noncombatant civilians; unnecessarily, deliberately and wantonly burning and destroying private property, the house and home of Carlos Perez, Sr. * * *
The first Bill of Particulars totaled 64 entries over eight mimeographed, single-spaced pages[16]. This, combined with the photographic record of the destruction of Manila, much of it deliberate demolition, demonstrates the wanton harm that Adm. Iwabuchi’s men and the Kempeitai military (secret) police[17] inflicted on the city and its people. That something evil happened in and around Manila in January and February 1945 is without doubt, and explains why the Filipino people, the U.S. military, and notably *18 Gen. MacArthur would want vengeance, or at least a sacrificial scapegoat.
Gen. Yamashita pleaded not guilty[18] and the Defense filed a number of motions, among which were:
To dismiss the case. The Commission ruled that there was no provision in their procedure for this motion. Not sustained.
That the Bill did not specify the time, place and dates of Gen. Yamashita’s disregarding and failing his duty. Commission ruled that a second Bill of Particulars could be filed later, subject to conditions as the Commission might specify. The first Bill was received into evidence.[19]
Defense and Prosecution prepared their cases, but when the Commission reconvened on October 29, the Prosecution submitted a second Bill of Particulars with 59 new, separate and distinct offenses, “ … members of the Armed Forces of Japan under the command of the Accused committed the following: …”, alleging the granting of “permission” for the 59 acts, but providing no details or who permitted them. The defense moved that this was in conflict with the October 8 ruling, “unconscionable … practically to double at the last minute the list of offenses charged” (overruled), that the evidence for the 59 acts should be disclosed (rejected), that it needed two weeks to prepare a case in answer to the new Bill (rejected, pending end of Prosecution’s presentation), and, again, to dismiss the case on the basis that the combined Bills’ 123 offenses did not allege the accused had any part in them (denied). The defense further alleged that the Commission did not have authority direct from the President to convene and that the courts of the Philippine Commonwealth were in session (motion rejected).[20]
The Prosecution’s case included 286 witnesses and 423 exhibits, alleging numerous atrocities in the Philippines and that the accused was in command. Some witnesses alleged, second and third hand, that they had been told that “Imperial Headquarters” or Yamashita had ordered this or that atrocity.[21] The appeal would later argue *23[22] that much of the evidence was “hearsay evidence, opinion evidence, and ex parte affidavits.”[23]
The Defense made several requests for continuances to prepare their case, on the 6th, 12th, and 20th of November. Even the Prosecutor told the Commission that, “Frankly, sir, it took the War Crimes Commission some three months to investigate these matters and I cannot conceive of the Defense undertaking a similar investigation with any less period of time.” The Commission parried or denied the requests.[24] As for the evidence itself, the Commission ruled on Nov. 1 that it was unwilling to receive uncorroborated (ex parte) affidavits; on Nov. 5 it reversed itself and affirmed that it would receive evidence “for whatever probative value the Commission believes they may have, without regard to the presentation of some partially corroborative oral testimony.”[25]
The Defense case did not dispute the fact of the atrocities, but sought to show that Gen. Yamashita was not legally responsible. Yamashita was subordinate to the Supreme Southern Command under Field-Marshal Count Hisaichi Terauchi, whose headquarters was in Manila; the Navy forces reported to the Navy Ministry in Tokyo; Count Terauchi thus commanded the 4th Air Army as well as transport and communications forces, not Yamashita, leaving only 120,000 troops to Yamashita out of 300,000 in Luzon.[26]
Defense witnesses included the commander of Japanese troops in Batangas province near Manila, scene of a number of atrocities, who said he “might have” come under Yamashita’s command but admitted to ordering the massacres there himself. Adm. Denhichi Okūchi, Supreme Commander of naval forces in the Philippines, stated that administrative control of naval forces had not been in Gen. Yamashita’s hands. Lt. Gen. Shizus Yokoyama, an army commander under Yamashita, testified that Yamashita had issued no orders for killings or destruction in Manila and had ordered fair treatment of the Filipino people. Lt. Gen. Akira Muto, Yamashita’s chief of staff, testified in detail to the lack of transportation, food, morale and command communications; he did say that Yamashita had sacked the commander of the Kempeitai after complaints about his methods.[27] The Defense closed asserting that U.S. military law itself only recognized command liability for improper exercise of the command, and not *24 for crimes committed by subordinates without authority; further, that the Prosecution had submitted no proof of any criminal responsibility by Gen. Yamashita.[28]
The Prosecution maintained that there was no distinction between criminal and administrative responsibility, that this was a clear case of criminal negligence, and that there was no evidence that he either took steps to stop the excesses or have him relieved.[29] The Commission adjourned on December 5[30] and presented its verdict on December 7, 1945, the fourth anniversary of Pearl Harbor.[31] The Commission found that,
“ *** [T]he crimes were so extensive and widespread, both as to time and area, that they must either have been wilfully permitted by the accused, or secretly ordered by the accused. *** The Japanese Commanders testified that they did not make personal inspections or independent checks during the Philippine campaign to determine for themselves the established procedures by which their subordinates accomplish their missions. Taken at full face value, the testimony indicates that Japanese senior commanders operate in a vacuum, almost in another world with respect to their troops, compared with standards American Generals take for granted ***[32]
“General Yamashita : The Commission concludes : (1) That a series of atrocities and other high crimes have been committed by members of the Japanese armed forces under your command against people of the United States, their allies and dependencies throughout the Philippine *25 Islands; that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and non-commissioned officers; (2) That during the period in question you failed to provide effective control of your troops as was required by the circumstances.
“ Accordingly upon secret written ballot, two-thirds or more of the members concurring, the Commission finds you guilty as charged and sentences you to death by hanging.”[33]
The U.S. Army officers defending Gen. Yamashita appealed first to the Supreme Court of the Commonwealth of the Philippines, and then to the U. S. Supreme Court, in what would become Application of Yamashita.[34] The Court deliberated on Jan. 7-8, 1946, and in a decision by Chief Justice Stone, denied writs of habeas corpus and prohibition. The Court ruled that the Commission was legally convened, in that a peace treaty had not been signed, that under ex parte Quirin,[35] it could not be concerned with guilt or innocence on a habeas corpus application, that a lawful tribunal is not subject to review merely because of a wrong finding of fact, and that the charge, an unlawful breach of duty, was valid. The Court did note that “we are not here concerned with the power of military commissions to try civilians,”[36] and that it did not foreclose a right of appeal on Constitutional grounds. It did rule, however, that since the Commission’s proceedings were not subject to judicial review, “it is unnecessary to consider what, in other situations, the Fifth Amendment might require.”[37] The General’s writs were denied.
In two savage dissents, Justices Murphy and Rutledge attacked, respectively, the substance of the charges and the Commission’s conduct. These are well worth reviewing in the light of the present day:
The Fifth Amendment guarantee of due process of law applies to ‘any person’[38] … no exception is made as to those who are accused of war crimes or … the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is…[39]
The failure of the military commission to obey … the Fifth Amendment is apparent … petitioner was rushed to trial under an improper charge, given insufficient time to prepare an adequate defense, deprived *26 of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged. In all this needless and unseemly haste there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war … the established principles of international law afford not the slightest precedent for such a charge …[40]
… Petitioner’s rights under the due process clause of the Fifth Amendment were grossly and openly violated without any justification.[41]
Justice Murphy continued:
… [R]ead against the background of military events … these charges amount to this: ‘We, the victorious American forces, have done everything possible to destroy and disorganize your lines of communication, your effective control of your personnel, your ability to wage war. In those respects we have succeeded. We have defeated and crushed your forces. And now we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively besieging and eliminating your forces and blocking your ability to maintain effective control. Many terrible atrocities were committed by your disorganized troops. Because these atrocities were so widespread we will not bother to charge or prove that you committed, ordered or condoned any of them. … Our standards of judgment are whatever we wish to make them.’
Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander of a defeated force …”[42]Even the laws of war heretofore recognized by this nation fail to impute responsibility to a fallen commander for excesses committed by his disorganized troops while under attack * * * From this the conclusion seems inescapable that the United States recognizes individual criminal responsibility for violations of the laws of war only as to those who commit the offenses or who order or direct their commission. Such was not the allegation here.[43]
Justice Rutledge’s dissent was equally vigorous:
*27 There the maxim about the law becoming silent in the noise of arms applies. The purpose of battle is to kill. But it does not follow that this would justify killing by trial after capture or surrender, without compliance with laws or treaties made to apply in such cases, whether trial is before or after hostilities end.[44]
A more complete abrogation of customary safeguards relating to the proof, whether in the usual rules of evidence or any reasonable substitute and whether for use in the trial of crime in the civil courts or military tribunals, hardly could have been made. So far as the admissibility and probative value of evidence was concerned, the directive made the commission a law unto itself.[45]
But there is not a suggestion in the findings that petitioner personally participated in, was present at the occurrence of, or ordered any of these incidents … The only inferential findings that he had knowledge, or that the commission so found, are ‘that they must either have been wilfully permitted by the accused, or secretly ordered by’ him; and in the conclusion of guilt and the sentence. … Indeed the commission’s ultimate findings draw no express conclusion of knowledge, but state only two things: (1) the fact of widespread atrocities and crimes; (2) that petitioner ‘failed to provide effective control *** as required by the circumstances.’ ***
This vagueness, if not vacuity, in the findings runs throughout the proceedings, from the charge itself through the proof and the findings, to the conclusion. * * * the Court’s opinion nowhere expressly declares that knowledge was essential to guilt or necessary to be set forth in the charge.[46]Justice Rutledge noted that “the sole proof of knowledge introduced at the trial was in the form of ex parte affidavits and depositions.”[47] Further, “[i]nnumerable instances of hearsay, once or several times removed, relating to all manner of incidents, rumors, reports, etc., were among these. Many instances, too, are shown of the use of opinion evidence and conclusions of guilt, including reports *28 made after ex parte investigations by the War Crimes Branch of the Judge Advocate General’s Department …”[48]
Petitioner asserts, and there can be no reason to doubt, that by the use of all this forbidden evidence he was deprived of the right of cross-examination and other means to establish the credibility of the deponents or affiants, not to speak of the authors of reports, letters, documents and newspaper articles; of opportunity to determine whether the multitudinous crimes specified in the bills were committed in fact by troops under his command or by naval or air force troops not under his command at the time alleged …[49]
Justice Rutledge also challenged other aspects of the Supreme Court majority’s decision:
The Court’s opinion puts the proceeding and the petitioner, in so far as any rights relating to his trial and conviction are concerned, wholly outside the Articles of War. In view of what has taken place, I think the decision’s necessary effect is also to place them entirely beyond limitation and protection, respectively, by the Constitution. I disagree as to both conclusions or effects.
The Court rules that Congress has not made Article 25 and 38[50] applicable to this proceeding. It think it has made them applicable to this and all other military commissions or tribunals. If so the commission not only lost all power to punish petitioner by what occurred in the proceedings. It never acquired jurisdiction to try him.[51]
The dissent went on, arguing that the United State’s conduct in prosecuting Gen. Yamashita was itself a violation of international law:
The United States … [did] not notify the protecting power of Japan in advance of trial as Article 60 requires it to do, although the supplemental bill charges the same failure to petitioner in Item 89.[FN39][52] … Item 89 charged the armed forces of Japan with subjecting to trial … prisoners of war ‘without prior notice to a representative of the protecting power, without opportunity to defend, and without counsel; denying opportunity to appeal from the sentence rendered; failing *29 to notify the protecting power of the sentence pronounced; and executed a death sentence without communicating to the representative of the protecting power the nature and circumstances of the offense charged.’[53]
Finally, the Government has argued that Article 60 has no application after the actual cessation of hostilities, as there is no longer any need for an intervening power between the two belligerents. The premise is that Japan no longer needs Switzerland to intervene with … This of course is in contradiction of the Government’s theory, in other connections, that the war is not over and military necessity still requires use of all the power necessary for actual combat.
Furthermore the premise overlooks all the realities of the situation. Japan is a defeated power, having surrendered, if not unconditionally then under the most severe conditions. Her territory is occupied by American military forces. She is scarcely in a position to bargain with us or to assert her rights. Nor can her nationals.[54]I am completely unable to accept or to understand the Court’s ruling concerning the applicability of the due process clause of the Fifth Amendment to this case. Not heretofore has it been held that any human being is beyond its universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for all.[55]
The Court announced its decision on Feb. 4. 1946, and Gen. Tomoyuki Yamashita was hanged February 23, 1946.[56] “The world I knew is now a shameful place / There will never come a better time / For me to die.”[57] So perished the Tiger of Malaya, possibly the most able of the Japanese army commanders of the war. His death was an injustice; the precedent would survive him and reach into the next century, as we shall see infra.
*30 – – –
II. Military Commissions up to WWII
It’s worth reviewing the “military commissions” from the time the phrase starts appearing in U.S. jurisprudence, at the time of the War Between the States.[58]
After Ft. Sumter, with considerable anti-war and pro-rebel (“Copperhead”) sentiment in several Northern states, the Lincoln Administration suspended habeas corpus and began to try Copperheads before military tribunals. The Civil War era was a time of decisive legal battles — Dred Scott, the Alabama Claims, the Emancipation, the ex parte clashes — and the military commissions were the scene of many of them. The key actions:
ex parte Merryman[59]. Chief Justice Roger Taney[60] sat as circuit judge for a Union Army-occupied eastern Maryland when Merryman, accused of sabotaging railroad bridges, came up for review. It’s worth noting that Taney ruled that President Lincoln did not have the right to suspend habeas corpus, and that he had exceeded his war powers.[61]
ex parte Vallandigham[62]. Clement Vallandigham, well-known Ohio Copperhead politician and sometime congressman, was hauled before a Union Army commission in Cincinnati on capital charges of expressing sympathy for the rebels in his speech of May 1, 1863, for which he was sentenced to imprisonment for the duration of the war (subsequently commuted to banishment to rebel lines). The Court ruled it had no certiorari right in military commission cases[63]. It’s worth noting that the Union cause was nowhere near victory when this came up before the Court in 1863 — the time of the rebel victory at Chickamauga and the deadlocked campaigns in Virginia and Tennessee; further, Chief Justice Taney was not in the majority on this decision and would die within a year.[64]
ex parte Milligan.[65] Lamdin P. Milligan, a civilian resident of Indiana, was hauled before a military commission as a “prisoner of war” on Oct. 21, 1864 and charged with conspiracy, aid and comfort to the rebels, and *31 “violations of the laws of war.” They alleged that he was a member of a rebel fifth-column organization. Milligan was sentenced to death by hanging. This was at a time when Indiana was, and had always been, under full Federal control. He brought a habeas corpus action before the Federal district court, and in 1866 the Supreme Court ruled that civilian courts did not give up their right to review habeas corpus, that “[m]artial rule can never exist where courts are open, and in the proper and unobstructed exercise of their jurisdiction,” and that the military could not try a “citizen in civil life, not connected with the [U.S.] military or naval service, by a military tribunal, for any offense whatever.”[66] Although it addressed the wrongs to a U.S. citizen, it was silent on the issue of foreign nationals.
United States Supreme Court Chief Justice William Rehnquist is one of the more important historians of this time, because his Court, as well as the Court during the Civil War he chronicled, confronts military law in a time of conflict.[67] Rehnquist has devoted a book and several public speeches to Civil War breaches of civil liberty[68]. Interestingly, his recollections touching these issues can be vague. Note his remarks in a speech to the Trustees of Indiana University[69] regarding Article I of the Constitution, and the actual Article I:
| “The provision of the Constitution dealing with habeas corpus is found in Article I, dealing with the legislative power vested in Congress, and provides that the writ of habeas corpus shall not be suspended unless in time of war or rebellion the public safety shall require it.” — Rehnquist[70] | “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”[71]—U. S. Constitution, Article I, Section 9, cl. 2. [emphasis added] |
*32 The distinction may be important. The saboteurs landed on the U.S. coast by U-boat (and doomed by ex parte Quirin,[72]) and the 19 hijackers who attacked Washington and New York on Sept. 11, 2001, constituted neither rebellion nor invasion, nor were the former named as such at the time.
Many recent reviews of the military commissions issue, when addressing past history, deal with the ex parte trials and the Lincoln conspiracy trial. They usually overlook the treatment of defeated Native American combatants during this same period. After a major Dakota (eastern Sioux) uprising in Minnesota in 1862, the defeated warriors faced a U.S. military commission in a time of lynch fever. 38 of the Dakota tribe, were convicted on charges of rape, robbery and murder of Minnesota settlers, and were hanged en masse.[73] Their epitaph echoes Gen. Yamashita’s:
The death penalty was not unusual in 1862, and other American Indians have been tried and convicted in American courts. But the Dakota trials and executions were different. The Dakota were tried, not in a state or federal criminal court, but before a military commission. They were convicted, not for the crime of murder, but for killings committed in warfare. The official review was conducted, not by an appellate court, but by the President of the United States. Many wars took place between Americans and members of the Indian nations, but in no others did the United States apply criminal sanctions to punish those defeated in war.[74]
Then there is the case of Kientpoos, “Captain Jack,” who, with about 150 other Modoc men, women and children, for six months in the winter of 1872-3, withstood over 1,000 U.S. Army troops, in what is now the Lava Beds National Monument in far northern California. During the siege, a peace parley between the Modocs and Gen. E. R. S. Canby ended with the death of Canby and another negotiator[75].
When the Army finally captured the band, Kientpoos and several other leaders were charged with the Canby killings and with atrocities against local Oregon ranchers at the start of the war. Washington instructed the new commander, Gen. Jefferson C. Davis, to convene a military commission – brushing aside a demand from the Governor of Oregon. Davis advised Washington that Oregonians were in a lynching mood.
The Army conducted the trial at Ft. Klamath, Oregon (just over the state line). The Modocs did not have counsel. Kientpoos did attempt to cross-examine witnesses. He noted, “I hardly know how to talk here. I do not know how white people talk in a place such as this, but I will do the best I can.”
The chief prosecution witness, a Modoc warrior named “Hooker Jim,” turned state evidence and avoided serious penalty, even though Hooker Jim was the one who shamed Kientpoos into ambushing the negotiators, and who led the initial attacks on local farms without Kientpoos’ knowledge. Kientpoos and five other Modocs were sentenced to hang; President Grant spared two but ordered that they be informed only at the foot of the scaffold. After the hanging, the heads of Kientpoos and the other three were cut off and sent to Washington as part of an ongoing “craniology” study of native skulls, ending up in the Smithsonian.[76] He deserved better.
ex parte Quirin.[77] The U.S. Supreme Court, in what would be an oft-cited case concerning German spies landed by U-boat on the U.S. coast[78], ruled in 1942 in ex parte Quirin that FDR’s executive order, the trial, the verdict, and the statutory authority were all valid, even given a naturalized American citizen among the German defendants.[79] However, the Court retained “the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.” The courts’ right of review with or without habeas corpus, and access to the courts by the accused, drew on Milligan, “Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty.”[80] However, it’s worth noting that the Court published the decision almost three months after six of the defendants were electrocuted and the rest sent to prison.[81]
Overseas, U.S. Army military commissions operated where Army field units picked up illegal non-U.S. combatants, mostly spies. Justice was swift: a typical case, in France, was that of Stefan Kotas and Josef Wende, two Polish nationals working for German intelligence — and in civilian clothes — when captured by an American patrol on Sept. 24, 1944 near the Moselle River. They *34 confessed the next day, were sentenced by a military commission on Oct. 18, and were shot on Nov. 11.[82]
– – –
III. Nuremberg: Some Examples
In 1945 the victorious Allied powers, Britain, France, the Soviet Union and the United States signed the Charter of the International Military Tribunal, which governed the trials at Nuremberg and bound its participants, including the U.S., to its provisions. The Charter, for the first time, set individual culpability for breaches of international law[83], abolished the superior-orders and act-of-state defenses, and provided for due process of the defendants. The Charter would thereafter serve as the basis for codification of considerable international law.[84]
Among the 21 German defendants at that first trial were two jurists and two generals. Hans Frank served as general counsel to the Nazi Party from 1926 until 1939, and crafted many of its early legal policies.[85] Here is a sample of this jurist in action, in a speech to the German Academy of Law in November 1939:
Today we are proud to have formulated our legal principles from the very beginning in such a way that they need not be changed in the case of war. For the rule, that right is that which is useful to the nation, and wrong is that which harms it, which stood at the beginning of our legal work, and which established this collective term of nation as the only standard of value of the law — this rule dominates also the law of these times.[86]
Translated: legality was what was expedient for the state, and both were founded on force of arms. If history teaches anything it’s that armed force – and anything founded on it – is ultimately fallible, “One with Nineveh and Tyre.”[87] It’s a lesson for our own time.
*35 Wilhelm Frick, German minister of the Interior from Hitler’s accession in 1933, crafted the anti-Jewish Nuremberg Laws, constructed a legal fiction creating Adolf Hitler’s German citizenship[88], abolished civil liberties and constructed a centralized police organization that would include the Gestapo.[89] Frick’s U.S. prosecutor was Dr. Robert Kempner, a German lawyer who had worked in the Prussian state government when Frick and Goering came in, then fled to the United States. Dr. Kempner, now a U.S. citizen, was very well acquainted with what Frick had done to the German legal system.[90]
Field-Marshal Wilhelm Keitel, military commander-in-chief, implemented the Commando Order, the summary execution of Allied commandos (uniformed special forces) taken behind German lines. He also was aware, in a way that Gen. Yamashita was not, of executions of (Soviet) civilians and prisoners of war, and created the Night and Fog[91] decree, providing for the permanent disappearance of resistance fighters. Colonel-General Alfred Jodl, chief of military operations, assisted Keitel with the Commando Order and the conduct of the war in Russia.[92] Frank, Frick, Jodl and Keitel authored what passed for Nazi legality and due process. The IMT easily stripped any legitimacy away from these fictions and found all four guilty of the resulting extrajudicial killings, i.e., war crimes and crimes against humanity.[93] All four went to the gallows.[94]
IV. Some Constitutional Fundamentals.
Art. I. The original power to form military courts-martial and to write governing statutes such as the Uniform Code of Military Justice (UCMJ)[95] is vested in Congress.[96]
*36 Art. II. The power to form military commissions is an arguendo of the President’s role, as Commander in Chief, named in Section 2.[97] Ex parte Quirin and Madsen seem to support this.[98]
Art. III, § 2. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; *** to Controversies to which the United States shall be a Party;–to Controversies between two or more States; *** and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” Ex parte Quirin confirmed that the Court wants to review cases even if the Court is inclined to support the trials and verdicts. Alexander Hamilton was quite emphatic on judicial prerogative in this area:
*** The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. *** But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. *** So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.[99]
And:
*** we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party … It is, then, to extend:
First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES. ***
Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls … as they have an evident connection with the preservation of the national peace.
*** If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.[100] The possibility of particular mischiefs can never be viewed, by a well informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.[101] [emphasis in the original]
In the minds of those who drafted the Constitution, the supremacy of Federal court review, even in international and wartime cases, was unambiguous. If a Chief Justice like William Rehnquist were predisposed to rule in favor of the Defense Department in wartime proceedings, he would still want to review such cases. The interest he has shown in the Milligan period is a good sign.
Art. III, § 3. “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It’s tempting to invoke this to afford two U.S. citizens, Jose Padilla (arrested in the U.S.)[102] and Yaser Esam Hamdi[103] (picked up by U.S. forces in Afghanistan) their day in civilian court. *38 This may be problematic; the former German spy William C. Colepaugh tried to invoke his right to a civil treason trial and got short shrift.[104] So far the cases of Padilla and Hamdi are at this writing very much incomplete, and the two men remain detained in the brig indefinitely.[105]
V. From Yamashita to the Present Day
For much of the later 20th Century, the Yamashita case would remain a footnote to WWII history. However, it merely slumbered, along with several parallel cases on U.S. military judicial power, awaiting the present day. Some are worth reviewing.
Hirota v. MacArthur.[106] Supreme Court declined habeas corpus in the case of war criminals tried before an international tribunal in Tokyo.
Duncan v. Kahanamoku.[107] On December 7, 1941, U.S. authorities declared martial law in the territory of Hawaii. Given a perceived threat of insurrection or invasion, the Lincoln precedent seemed relevant. The Pacific Fleet battle line lay sunken in the harbor mud; the Japanese Carrier Striking Force was ranging from the territory of Alaska – where the Japanese did invade, however far out in the Aleutians – to far Ceylon. An invasion seemed an imminent threat, though in time, it would fade. U.S. military rule did not, and two plaintiffs who had been sentenced by military commissions – both of them civilians, both for non-military offenses — sued. (Duncan was found guilty of embezzlement, and plaintiff White was a shipfitter who had brawled with two Marine sentries at his shipyard). The Supreme Court ruled that the military could not try U.S. citizens if civilian courts were available.
*39 Eisentrager.[108] Twenty-one German nationals continued to serve in Japanese-occupied China after the surrender of Nazi Germany on 8 May 1945. Captured after the Japanese surrender in September of that year, they were not repatriated as prisoners of war. Rather, as “unlawful combatants,” they faced a U.S. military commission in Nanking and drew prison terms. In a decision written by Justice Jackson, the Court refused habeas corpus, inasmuch as they were not U.S. citizens and were captured in another country – a decision which may haunt current detainees held outside the U.S.
The Court’s distinguishing factor seems to have been privileges of U.S. citizens vs. non-citizens, as JJ. Black, Douglas and Burton noted in partial dissent:
As the Court points out, Paul was fortunate enough to be a Roman citizen when he was made the victim of prejudicial charges; that privileged status afforded him an appeal to Rome, with a right to meet his ‘accusers face to face.’[109] But other martyrized disciples were not so fortunate. Our Constitution has led people everywhere to hope and believe that wherever our laws control, all people, whether our citizens or not, would have an equal chance before the bar of criminal justice.[110]
Madsen[111]. Civilian courts weren’t available when Mrs. Madsen, a U.S. military dependent in occupied Germany, murdered her husband in their quarters and faced a military commission (not a court-martial, as would have happened to Lt. Madsen if he had murdered her instead) on charges of violating the then-current German law against murder[112]. The case did extend U.S. jurisdiction, it was a narrow instance where the German courts were defunct and extradition and Status of Forces (jurisdiction over U.S. military individuals) agreements hadn’t been completed and the German murder statute was.
Youngstown Sheet & Tube Co., et al v. Sawyer.[113] This case, along with Duncan, usually goes unremarked in discussion of military commissions and authority, but it is important. The young William Rehnquist’s presence as law clerk to Justice Robert Jackson is significant in that, “It’s a story Rehnquist told at length in one of his earlier books, but does not discuss in All the Laws but One.”[114]
Faced with a steel workers’ strike in April 1952, President Truman ordered[115] Federal seizure of several major steel mills, on grounds of wartime necessity. The Court heard the case and ruled that the President could not exceed his authority – in this case, for armed seizure of steel mills about to shut down in a labor dispute. The fact that it was in the middle of the Korean War, and a crucial wartime industry was at stake, did not persuade the Court to see it Harry Truman’s way. The Court ruled that:
- such an action would have to stem from an act of Congress or the Constitution itself,
- that “theater of war” concepts did not extend from Korea to Youngstown, *40 Ohio, even given the President’s belief that steel was vital to national defense,[116]
- that Congress, not the President, makes laws and the President is limited to veto or faithful execution, and
- that the lawmaking power of Congress is not subject to presidential or military supervision or control.[117]
“The Constitution is neither silent nor equivocal about who shall make laws which the President is to execute,”[118] wrote Justice Hugo Black. A concurring opinion by Justice Robert Jackson[119] went further:
The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, ‘The executive Power shall be vested in a President of the United States of America.’ Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: ‘In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.’ If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.
* * * ‘he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices * * *.’ U.S.Const. Art. II, s 2. He ‘* * * shall Commission all the Officers of the United States.’ U.S.Const. Art. II, s 3. Matters such as those would seem to be inherent in the Executive if anything is.
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.[120]
And:
The clause on which the Government next relies is that ‘The President shall be Commander in Chief of the Army *41 and Navy of the United States * * *.’ These cryptic words have given rise to some of the most persistent controversies in our constitutional history. *** I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.
And:
Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander-in-Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power ‘to raise and support Armies’ and ‘to provide and maintain a Navy.’ (Emphasis supplied.) This certainly lays upon Congress primary responsibility for supplying the armed forces. * * * There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command.[121]
Colepaugh[122]. William C. Colepaugh, born in Connecticut (but had German grandparents), a defector to Germany and an agent of the SD[123], landed on the Maine coast in November 1944 with a German partner, Erich Gimpel. They were quickly picked up by the FBI and tried by a military commission as spies, and sentenced to death (subsequently commuted to life).[124] Colepaugh, confined at Leavenworth penitentiary, filed for habeas corpus in 1956 and was turned down. The Federal court ruled that, as a spy, he was subject to a military commission under the Quirin precedent.[125]
The present day: The Yamashita precedent awoke at the end of the century in a torts case in Florida, Ford ex rel. Estate of Ford v. Garcia.[126] In it, the families of churchwomen tortured and murdered by members of the Salvadoran military brought suit against a former Salvadoran general, under the Torture Victims’ Protection Act[127], citing the Yamashita doctrine as precedent.
The American Journal of International Law noted that, “Yamashita was the seminal Supreme Court case recognizing the three elements of the command responsibility doctrine, as well as affirmative defenses under the doctrine … The consensus is that “[t]he concept of effective control over a subordinate [–]in the *42 sense of a material ability to prevent or punish criminal conduct, however that control is exercised[–]is the threshold to be reached in establishing a superior-subordinate relationship ….”[128]
“The doctrine of command responsibility required a plaintiff to prove three and only three elements: (a) the commander had a superior-subordinate relationship with the troops that committed the human rights abuses; (b) the commander knew, or should have known, that these troops were committing such offenses; and (c) the commander failed to prevent or repress the abuses. Once these three elements are met, a commander may be held criminally and civilly liable for the human rights violations committed by subordinates unless he presents affirmative defenses to overcome the presumption of liability.”[129]
The 11th Circuit did not uphold Ms. Ford’s survivors, but the grounds were that the District Court had erred over instructions about the command-responsibility doctrine and objections thereto under Federal Rule of Civil Procedure 51[130]. The Court did uphold the Yamashita doctrine as such, citing Yamashita itself, Congressional intent and recent precedent in international criminal courts for the former Yugoslavia (ICTY) and for Rwanda (ICTR).[131]
(It’s worth noting that one of those rulings, at ICTY, softens the Yamashita doctrine in that the prosecution now needs to show that the superior has effective control over the persons committing the violations of international law, i.e., has material ability to prevent the crimes and punish the perpetrators, a defense originally denied to Gen. Yamashita. It does put the burden on the prosecution to prove the ability, not simply that the defendant was in command.) [132]
The 11th Circuit ruling concurred, noting, “A reading of the [ICTY and ICTR] cases suggests that a showing of the defendant’s actual ability to control the guilty troops is required as part of the plaintiff’s burden under the superior- subordinate prong of command responsibility, whether the *43 plaintiff attempts to assert liability under a theory of de facto or de jure authority.”[133]
The original plaintiffs did not prevail. Yamashita did.
VI. The second Bush Administration and the Military Commissions
The United States military is a party to much of current international law, both through treaties and tribunals to which it has been a party from the 1945 Nuremberg Charter through the 1949 Geneva Conventions to the International Criminal Tribunals for Rwanda and for the former Yugoslavia, and through incorporation into U.S. law, the UCMJ in particular, though prosecuted as criminal offenses (e.g., murder, rape, etc.) under customary law.[134] Any military commissions formed will have to conform to the legality and due process issues previously established.[135]
The doctrine of command responsibility applies to U.S. precedent as well, from the doctrine originally enunciated in Yamashita and the Nuremberg charter and since reemphasized by later treaties and international law. Both trials may have gone against the nullem crimen et nulla poena sine lege doctrine in 1945 but the precedent is now law: superior orders are not a defense to war crimes.[136]
It’s worth noting the difference between military commissions and military courts-martial in U.S. law.[137] Courts-martial do provide for broader rights against self-incrimination, right to counsel, right to appellate counsel, pretrial discovery than in Federal civilian courts, and appeal (three levels, not two)[138]. Courts-martial also afford rights to due process, burden of proof, unanimous finding by the panel, and proper rules of evidence[139] (Military Rules of Evidence being almost identical to ongoing Federal Rules of Evidence).[140] Members of the U.S. military, prisoners of *44 war, and “In time of war, persons serving with or accompanying an armed force in the field” are subject to the UCMJ and trial by court-martial.[141]
Military commissions, however, are less definitive, and “extraordinary” according to its proponents.[142] This Article has shown supra the caprice with which many have been conducted, and the spotty Court support for them. Indeed, the semi-official advocacy for the commissions, in the March 2002 Army Lawyer, is studded with ambiguities, e.g., that the U.S. commissions were “similar” to the IMT and IMTFE [they were not],[143] “the [Quirin] Court expressly left open [sic],”[144] “nothing … in the UCMJ … explicitly limits or permits the use of military commissions … ,”[145] and “… the President’s order creates some concerns.”[146] To say the least.
We now come to President George W. Bush’s order creating military commissions for the current conflict.[147] Its key provisions:
Sec. 2. Definition and Policy.
(a) The term “individual subject to this order” shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida [sic];
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international *6 terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order * * **45 Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death. * * *
(1) military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting as the triers of both fact and law;
(3) admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person;[148]
(4) in a manner consistent with the protection of information classified or classifiable [sic!] ***
(6) conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present;
(7) sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and
(8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense * * *
Sec. 7. Relationship to Other Law and Forums.
* * * (b) With respect to any individual subject to this order–
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal. [149]
Some of the objections to it:
- Whether the violations of U.S. and state criminal statutes [e.g., in New York] “create some concerns” over *46 jurisdiction.[150] It’s worth noting that the first World Trade Center attack and the Oklahoma City bombing were both tried in U.S. Federal Court; the attack on the CIA headquarters, by the Commonwealth of Virginia.[151]
- Whether membership alone in al-Qaeda or harboring terrorists violate the law of war, “the necessary predicate to the jurisdiction …”[152]
- Whether the Order applies to “acts not associated with the September 11 acts,” which would “uncouple the authority of such military commissions” from Congress’ Sept. 18 (post 9/11), 2001 resolution,[153] as well as the absence of a formal war declaration by Congress.[154]
- Applicability to the 5th and 6th Amendments and the question, not express in the Order, of habeas corpus.[155]
- The fact that military common law and procedure has evolved since WWII for courts-martial and that they’re no longer identical with military commissions; that the International Convention on Civil and Political Rights,[156] to which the U.S. is a party, sets certain procedures for all courts, and that military commissions do not afford the same procedural protections as in civilian courts.[157]
- Contravention of Congress’ will, expressed in Art. 21 and 36 of the UCMJ, on jurisdiction over individuals and rules of procedure. [158]
- Conflict with Section 412 of the Patriot Act, of all things.[159] As enacted by Congress Oct. 26, 2001 after 9/11, § 412 provided that detained aliens subject to the Patriot Act must be criminally charged, or removal proceedings begun, within seven days of detention. What’s more, it provided for said aliens to apply for habeas corpus.[160]
- This Article would venture to suggest that it may be far simpler, and grounded in far more legality, if Congress simply adds a provision to UCMJ Art. 2 (10 U.S.C. § 802), regarding those eligible for courts-martial, as an added class of persons subject to court-martial, and the rights accorded therewith, under the UCMJ, e.g.,
Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons captured by U.S. military forces outside the United States in a theater of combat operations, not otherwise covered by this Article, who are not U.S. citizens, and are unlawful combatants[161] charged with an offense against U.S. military law or against international laws of war, or, who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for commission of hostile acts involving destruction of life or property, have the status of unlawful combatants subject to prosecution under this Chapter, for offenses punishable under this Chapter.
This would encompass the Geneva conventions, and Quirin definitions of unlawful combatant, but accord the same long-established procedures and protections that come with courts-martial, without the ambiguities of a commission. This Article would argue, based on the past history of military courts-martial v. military commissions, discussed supra, that the function of the former is to provide justice and is still able to act in accordance with military security, whereas the latter – military commissions – seems to be simply an expeditious means of conviction and execution. One should not meet a need for efficient justice by building a guillotine.[162]
– – –
Suffice to say that military commissions, as done in the past and as currently proposed, are already on dubious ground, especially in expanded conflicts that the U.S. may engage in.[163]
Presently, members of contemplated U.S. military commissions, *48 if those commissions are found to be without merit due to lack of legality, constitutionality or in violation of due-process guarantees of our Constitution, international common law, or international treaty, would become culpable for the results.[164] Penal or capital sentences would now be extrajudicial imprisonment, or homicide, and expose the participating jurists to prosecution.
Further, the detainment of prisoners without trial and without status as prisoners of war, like the immigrants picked up in the U.S. or prisoners taken in the field and held outside the U.S., for wartime security reasons, constitutes ‘forced disappearances’ as defined by recent law. Even if the “disappearances” are not permanent (i.e., lethal), if it entails “an absence of information or a refusal to acknowledge that deprivation or freedom or to give information of the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees,” it’s still illegal. This acts as precedent with the Organization of American States’ 1994 adoption of the Inter-American Convention on the Forced Disappearance of Persons.[165]
Finally, the responsibility for capital sentences goes directly to the top. The Army is the likeliest venue in that event, and according to Army Regulation 190-55, the place of execution is stipulated as the U.S. Disciplinary Barracks at Ft. Leavenworth, Kansas; the stipulated method is lethal injection; and the President of the United States must approve the sentence. There will be no battlefield executions here: this, in turn, places personal responsibility on the President of the United States.[166]
Similarly, like the Nuremberg precedents prosecuted by the United States that involved jurists like Frank and Frick, and generals like Jodl and Keitel, this should leave us all with something to think about.
Thus the legitimacy of the detainments and the military commissions of today could be stripped of their authority retroactively.
By stripping them of their legality, the jurists, military officers, Cabinet members and White House officials who participate or sign off orders for detainments, executions and similar, may find themselves in legal jeopardy. Perhaps, one day, they won’t be able to plead that they simply followed a President’s order, that they “slew them not.” [167]
The Yamashita precedent may yet return to haunt them all.
– – –
“The high feelings of the moment doubtless will be satisfied. But in the sober afterglow will come the realization of the boundless and dangerous implications of *49 the procedure sanctioned today. No one in a position of command in an army, from sergeant to general, can escape those future [implications]. Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision.”
— Justice Frank Murphy, dissent, Application of Yamashita, Feb. 4, 1946 [168]
# # #
[1] Author is currently (May 2003) in his first year at New College School of Law. He is also a Major (ret.), Military Police, U.S. Army Reserve. He gratefully acknowledges the help of Carol Jean Swan, formerly Cpl., Women’s Army Corps, an observer at some of the Yamashita trial and whose memories and album of photographs and documents from her wartime service, including her time in Manila in 1945, provided the inspiration and materials to begin this Article.
[2] The Trial of German Major War Criminals Sitting at Nuremberg, Germany, Published Under the Authority of H.M. Attorney-General By His Majesty’s Stationery Office, London: 1946, (hereinafter cited infra as IMT Nuremberg), Vol. 19 (19 IMT) at 406. IMT Nuremberg available online at http://www.nizkor.org/hweb/imt/.
[3] A form of tribunal. The term “military commissions” is defined, and its history described, infra.
[4] The legal doctrine of command responsibility was established in Gen. Yamashita’s case and this Article discusses it at length, infra.
[5] Unless otherwise cited, biographical references to Gen. Yamashita before his surrender are derived passim from Meirion & Susie Herries, Soldiers of the Sun: The Rise and Fall of the Imperial Japanese Army (Random House, 1991). Ordinarily the author would not rely on one source for the General’s life and times, but those are not at issue in this Article: his legal legacy is. Soldiers of the Sun is useful for readers who wish to see Yamashita’s military career in the context of Japanese militarism before WWII and its gradual collapse of discipline from the 1937 Rape of Nanking to the 1945 Rape of Manila.
[6] In the present-day nation of Malaysia. The Malay peninsula extends from the Thai border on the Asian mainland to its tip at Singapore.
[7] His first command appearance in the Philippines, thus missing the Japanese capture of Manila, the Bataan campaign and the Death March, in 1942.
[8] Id. at 483.
[9] For a fascinating case study on the psychodynamics of atrocity — the March 1968 massacre by U.S. Army soldiers of Vietnamese civilians at My Lai — see Susan Faludi, Stiffed: The Betrayal of the American Man (paperback ed. by Perennial, 1999) at 315-352. One comes to understand both the military culture, when absent effective command, that creates such a “street gang mentality,” as she terms it, making such events inevitable whether it be in Nanking, Manila or My Lai. The U.S. command in 1968 may not have been in actual control – though culpable enough in the cover-up and the mealy-mouthed courts-martial that followed.
[10] Herries at 437.
[11] The date suggests that the regulations were drawn up for the occasion.
[12] None of whom had legal training, according to Herries at 464.
[13] Part I at 3, Trial of General Tomoyuki Yamashita, United States Military Commission, Manila, Source: Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume IV. London: HMSO, 1948, in six parts, available online at http://www.ess.uwe.ac.uk/WCC/Yamashita1.htm. Hereinafter referred to as Yamashita Trial Report.
[14] Id. at 4.
[15] Robert H. Kerr, Major, Infantry, Prosecutor, General Headquarters, U.S. Army Forces, Pacific: Bill of Particulars, 1 October 1945. Copy in personal possession of author.
[16] None of the 64 counts mentions Gen. Yamashita.
[17] Essentially a separate security force, not much different than the Gestapo.
[18] An observer of the proceedings, Cpl. Carol Jean Swan, of the U.S. Women’s Army Corps and working for Armed Forces Radio/Manila, remembers the General as “a professional-looking soldier, very dignified.”
[19] I Yamashita Trial Report 8.
[20] Id. 10-15.
[21] Prosecution case in II Yamashita Trial Report at 16-20.
[22] [pp. 19-22 of the print edition were of contemporary photographs of Manila and the trial.]
[23] III Yamashita Trial Report at 36
[24] I Yamashita Trial Report at 15-16.
[25] II Yamashita Trial Report at 23. The term “probative value” will recur infra in conjunction with Pres. G. W. Bush’s 2001 order for military commissions.
[26] Id. at 23.
[27] Id. at 21-22.
[28] Id. at 28-29.
[29] III Yamashita Trial Report at 29-33.
[30] Id.
[31] Which suggests either haste or a desire to use Dec. 7 as a symbolic occasion.
[32] Which overlooks, in an island group as scattered as the Philippines, the effect of U.S. naval and air supremacy and the advances of the U. S. 6th and 8th Armies beginning in October 1944.
[33] III Yamashita trial report at 35.
[34] Application of Yamashita: Yamashita v. Styer, Commanding General, U.S. Army Forces, Western Pacific, 327 U.S. 1, 66 S.Ct. 340. Hereinafter referred to as Yamashita, with Vol. 327 U.S. page citations.
[35] Quirin discussed infra in detail.
[36] Which leaves this case silent as to both U.S. citizens and foreign civilians.
[37] Yamashita at 23. Majority decision at 1-26.
[38] This Article recommends Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, (1886), and Wong Wing v. U.S., 163 U.S. 228, 16 S.Ct. 977 (1896), both of which were quite clear about foreign citizens’ rights under the due-process clauses of the 5th and 14th Amendments.
[39] Yamashita at 26 (Murphy, J., dissenting).
[40] Id. at 27-28 (Murphy, J., dissenting).
[41] Id. at 40 (Murphy, J., dissenting).
[42] Id. at 34 (Murphy, J., dissenting).
[43] Id. at 37 (Murphy, J., dissenting).
[44] Id. at 47 (Rutledge, J., dissenting).
[45] Id. at 49 (Rutledge, J., dissenting).
[46] Id. at 50-52 (Rutledge, J., dissenting).
[47] Id. at 53-54 (Rutledge, J., dissenting).
[48] Id. at 55, fn. 21 (Rutledge, J., dissenting).
[49] Justice Rutledge noted “sole proof of knowledge … ex parte affidavits and depositions … innumerable instances of hearsay … ex parte investigations” by Prosecution in Yamashita at 53-55 including Fn. 21.
[50] [of the Articles of War, predecessor to the present day Uniform Code of Military Justice]
[51] Id. at 61 (Rutledge, J., dissenting).
[52] Id. at 76-77 (Rutledge, J., dissenting). emphasis mine.
[53] Id. Fn. 39 at 77 (Rutledge, J., dissenting).
[54] Id. at 77 (Rutledge, J., dissenting).
[55] Id. at 78-79 (Rutledge, J., dissenting).
[56] V Yamashita Trial Report
[57] Harries at 465.
[58] Noted in ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) at 29. But see Justice’s Rutledge’s dissent in Yamashita at 66-67, in which he notes the term originated in the Mexican War, albeit in tandem with more powerful “counsels of war.” The Civil War united the two in a single war court, according to Rutledge.
[59] 17 F.Cas. 144 (C.C.D. Md. 1861).
[60] Who wrote the majority decision in Dred Scott (Scott v. Sandford, 60 U.S. 393 (1857)), a case which shall live in infamy in legal history.
[61] Merryman, passim.
[62] 68 U.S. (1 Wall.) 243 (1863).
[63] Mr. Vallandigham resumed his law practice after the war, and gave his life in the cause of criminal justice. “In his last appearance in the courtroom, he represented a client on trial for murder. The accused man’s defense was that the victim had drawn his own gun in a fashion that caused it to fire, killing himself. To prove the defense argument, Vallandigham demonstrated the victim’s method of drawing a gun — using the loaded evidence gun as his prop. The firearm went off, and he lost his life–but proved his case.” Source: The Darwin Awards, online at http://www.darwinawards.com/. See also Webster’s American Biographies (G.&C. Merriam Co., 1974) at 1064.
[64] Webster’s American Biographies at 1017.
[65] 71 U.S. (4 Wall.) 2 (1866)
[66] Milligan at 32-33.
[67] The probable war in Iraq and wherever else, by the time you read this (written 3/19/03).
[68] See 72 Ind. L.J. 927, William Rehnquist, Civil Liberty and the Civil War: the Indianapolis Treason Trials; see also Remarks of Chief Justice William H. Rehnquist, 100th Anniversary Celebration Of the Norfolk and Portsmouth Bar Association, Norfolk, Virginia, May 3, 2000 online at http://www.supremecourtus.gov/publicinfo/speeches/sp_05-03-00.html; see also William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime (New York: Alfred A. Knopf, Inc., 1998). But see 16 Const. Comment. 691, Margaret A. Garvin, Civil Liberties During War: History’s Institutional Lessons, a critical book review of All the Laws but One.
[69] 72 Ind. L.J. at 929
[70] Id.
[71] USCA Const. Art. I § 9, cl. 2
[72] 317 U.S. 1 (1942).
[73] See 43 Stan. L. Rev. 13, Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice
[74] Id. at 13
[75] The Modocs guessed wrongly that the deaths of such dignitaries would end the war. It may not be the last time that enemies of the U.S. find themselves on trial for violating Western concepts that they might not have understood before the event. Cultural misunderstandings can cut both ways. For further thoughts and references on cultural relativism see Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 2nd edition (Oxford University Press, 2001) at 24. I recommend this book as a definitive law text on the subject for International Law or other classes concerned with these issues.
[76] See Richard Dillon, Burnt-Out Fires: California’s Modoc Indian War (Prentice-Hall, Inc., 1973) for an authoritative account of the war and the trial, the latter beginning at 305. See also Dee Brown, Bury My Heart at Wounded Knee (Holt, Rinehart and Winston, 1970), the chapter “The Ordeal of Captain Jack” being a concise account of the whole sorry episode.
[77] Ex Parte Quirin, 317 U.S. 1 (1942)
[78] See, e.g., 19 Const. Comment. 261, Spring 2002, Military Tribunals and Legal Culture: What A Difference Sixty Years Makes, Jack Goldsmith and Cass R. Sunstein
[79] Quirin at 25-27.
[80] All Id. at 9
[81] 19 Const. Comment at 270
[82] David Kahn, Hitler’s Spies: German Military Intelligence in World War II (MacMillan, 1978) at 363.
[83] Which at that time included the 1899 and 1907 Hague Conventions against aggressive war and abuses therein and the 1929 Geneva Convention on the Wounded and the Sick, though these were without punitive force till Nuremberg.
[84] See Ratner and Abrams at 5-7.
[85] Frank’s personal indictment presented by the prosecution at 4 IMT 136 (Jan. 10, 1946)
[86] 2 Nazi Conspiracy and Aggression (U.S. Gov’t Printing Office, Washington, 1946), documents pertaining to Frank at 624-653, here cited document 3445-PS, available online at http://www.ess.uwe.ac.uk/genocide/Frank.htm#SEIZURE%20OF%20POWER
[87] “Recessional,” from 2 Kipling: A Selection of His Stories and Poems (Doubleday & Co., 1956 ed.) at 450, the poem being an 1897 warning to Britain in the midst of its imperial Jubilee celebration. See also human history, passim.
[88] Hitler, of course, was born an Austrian, but spent WWI in the Bavarian Army and settled in postwar Bavaria.
[89] 4 IMT 328.
[90] Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Alfred A. Knopf, 1992) at 267. Taylor was another U.S. prosecutor who would lead the U.S. prosecution in later Nuremberg trials. His account of the trial is authoritative and quite readable.
[91] “Nacht und Nebel” in the trial transcript, 4 IMT 115.
[92] Various documents Jodl and Keitel either authored, or signed, pertaining to mistreatment of prisoners of war and extrajudicial executions, is among a list of evidence documents submitted to the IMT and other tribunals, available online at the Web Genocide Documentation Centre, at http://www.ess.uwe.ac.uk/genocide/war_criminals.htm (valid link as of Feb. 15, 2003), amply making them culpable.
[93] The case against Jodl and Keitel begins in earnest at 4 IMT 105. See also Telford Taylor, who presented much of the case against them, at 251-261.
[94] Telford Taylor at 610.
[95] 10 U.S.C. §§ 801 et seq
[96] U.S.C.A. Const. Art. I § 8, cl. 9-12 & 14 on tribunals inferior to the Supreme Court, these clauses also permit Congress to define offenses against the law of nations, to declare war, and make rules for “Government and Regulation of the land and naval forces.”
[97] USCA Const. Art. II § 2, cl. 1. In absence of attempts by Congress to limit President’s power, he, as Commander-in-Chief of the Army and Navy, may in time of war establish and prescribe jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of United States, and his authority to do so sometimes survives cessation of hostilities. Madsen v. Kinsella, U.S.W.Va.1952, 72 S.Ct. 699, 343 U.S. 341, 96 L.Ed. 988, rehearing denied 78 S.Ct. 697, 356 U.S. 925, 2 L.Ed.2d 720.
[98] Both cases supra. See also Anne English French, Trials in Times of War: Do the Bush Military Commissions Sacrifice Our Freedoms?, 63 Ohio St. L.J. 1225, 1250 (2002), for further discussion.
[99] The Federalist No. 80 (Alexander Hamilton). See generally Federalist No. 78 (Alexander Hamilton) for further emphasis on supremacy of judicial review.
[100] For a look at how Art. III might have interacted with a permanent International Criminal Court, see Audrey I. Benison, 37 Stan. J. Int’l L. 75, Stanford Journal of International Law, Winter 2001, International Criminal Tribunals: Is There A Substantive Limitation on the Treaty Power? For the purposes of this article, however, the ICC is a moot issue, given the second Bush Administration’s withdrawal.
[101] The Federalist No. 80 (Alexander Hamilton)
[102] Padilla ex rel. Newman v. Bush, — F.Supp.2d —-, 2002 WL 31718308, S.D.N.Y., Dec 04, 2002
[103] Hamdi v. Rumsfeld, 294 F.3d 598, 4th Cir.(Va.), Jun 26, 2002; reversed and remanded Hamdi v. Rumsfeld, — F.3d —-, 2003 WL 60109, (4th Cir.(Va.), Jan 08, 2003). The case probably will have evolved further by the time you read this.
[104] Colepaugh v. Looney, 235 F.2d 429 (10th Cir., Kansas, 1956); cert. denied, 77 S.Ct. 568 (1957). For the treason ruling see 235 F.2d at 432.
[105] This Article is primarily concerned with the fate of foreign nationals before future U.S. military commissions, the past experiences with military commissions, and the responsibility of those who try them. The issue of U.S. citizens’ vulnerability to military trial may come up if the two ever face prosecution and merits a separate article, which can draw in part from the authorities cited herein.
[106] Majority decision in Hirota at 69 S.Ct. 197; concurring and dissenting opinions at 29 S.Ct. 1238. Worth noting because the Supreme Court declined to review, in part, because the International Military Tribunal for the Far East (IMTFE) was an international court, not a U.S. military tribunal.
[107] Duncan v. Kahanamoku, 327 U.S. 304 (1946), gov’t rejected. The Kahanamoku here is Duke Paoa Kahanamoku, Sheriff of the City and County of Honolulu.
[108] Johnson v. Eisentrager, 339 U.S. 763 (1950)
[109] Acts 25:16.
[110] Eisentrager at 798.
[111] Madsen v. Kinsella, U.S.W.Va.1952, 72 S.Ct. 699, 343 U.S. 341, rehearing denied 356 U.S. 925.
[112] German Crim. Code § 211, Sept. 1941, cited in Madsen at 344. Just as well for Mrs. Madsen that she faced a U.S. military court and not a German civilian one, as German practice in 1941 would have involved the longstanding method of death by beheading for civil murder cases.
[113] Youngstown Sheet & Tube Co., et al v. Sawyer, 343 U.S. 579 (1952)
[114] 16 Const. Comment at 708
[115] Executive Order 10340, 103 F.Supp. 569, appended to Youngstown.
[116] Youngstown, 343 U.S. at 583.
[117] Id. at 579-580.
[118] Id. at 587.
[119] Who was absent from the Court in 1945-6 as Chief U.S. Prosecutor at the IMT, and so wasn’t present to deliberate Yamashita.
[120] Youngstown Sheet & Tube at 641.
[121] This and previous excerpt id. at 641-2.
[122] Colepaugh v. Looney, 235 F.2d 429 (10th Cir., Kansas, 1956); cert. denied, 77 S.Ct. 568 (1957)
[123] Sicherheitsdienst, SS intelligence.
[124] Kahn at 3.
[125] Colepaugh, 235 F.2d at 432.
[126] Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 52 Fed.R.Serv.3d 1244, 15 Fla. L. Weekly Fed. C 510, (11th Cir.(Fla.), Apr 30, 2002)
[127] 28 U.S.C. § 1350
[128] 96 Am. J. Int’l L. 719, Sean D. Murphy, Doctrine of Command Responsibility in U.S. Human Rights Cases (July, 2002) at 720, 721.
[129] Id. at 721.
[130] Ex rel. Estate of Ford at 1287-1288.
[131] Id.
[132] Prosecutor v. Blaskic, Judgment (Trial Chamber ICTY, March 3, 2000), ¶¶295, 302. See generally 49 DePaul L. Rev. 925 (Summer 2000), Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal for more on the proceedings’ effect.
[133] Ex rel. Estate of Ford at 1291.
[134] See Ratner & Abrams, supra, at 89; see generally U.S. Dep’t of the Army, Field Manual 27-10, Law of Land Warfare, 1956
[135] See generally Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J. Int’l L. 1.
[136] Ratner & Abrams supra at 136.
[137] For one comparison from the Army viewpoint, see, Maj. Gen. (ret.) Michael J. Nardotti, Jr., Military Commissions, 2002-MAR Army Law. 1.
[138] The services’ individual Courts of Criminal Appeal, the Court of Appeals for the Armed Forces, and the U.S. Supreme Court.
[139] Nardotti supra at 2-3, see also UCMJ Art. 31-32 (10 U.S.C.A. §§ 831-832) for the statutes on defendants’ rights and pretrial investigation.
[140] Which can be found in the Manual for Courts Martial (MCM). Updated often. Full 2002 ed. at http://www.usapa.army.mil/pdffiles/mcm2002.pdf (last checked Jan. 4, 2003).
[141] 10 USC § 802 (Art. 2, UCMJ)
[142] Nardotti at 4.
[143] American Bar Association Task Force on Terrorism and the Law Report and Recommendations on Military Commissions [hereinafter cited as “ABA” for purpose of this Article], 2002-MAR Army Law. 8 at 10. But see Charter of the International Military Tribunal, August 8, 1945, online at http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm. If nothing else, the IMT was an international, not U.S., body, with clear rules of procedure and evidence.
[144] Id. at 9.
[145] Id. at 11.
[146] Id. at 12.
[147] Hereinafter referred to as the Order. Military Order of November 13, 2001, Federal Register Nov. 16, 2001 (Vol. 66, No. 222) at 57831-57836. Appended to 2002-MAR Army Law. 1 at 5. All the Army Lawyer articles cited herein, published by the Judge-Advocate General’s School at Charlottesville, Va., are available on Westlaw.com. The reader should also consult Maj. Timothy C. MacDonnell (Prof., Crim. Law), Military Commissions and Courts-Martial: A brief Discussions of the Constitutional and Jurisdictional Distinctions between the two Courts, 2002-MAR Army Law. 19 for a more thorough discussion, as well as Maj. Michael O. Lacey, Military Commissions: A Historical Survey, 2002-MAR Army Law. 41 for a somewhat error-ridden survey of the ground covered in this Article.
[148] Emphasis mine. Read the Yamashita military commission’s use of the term “probative value” supra regarding the evidence, such that it was, in that trial.
[149] The Order, supra. It may be far simpler if Congress simply adds a provision to the UCMJ placing terror suspects captured overseas under the jurisdiction of properly-convened courts-martial. See discussion of inclusion possibilities for Art. 2 UCMJ infra.
[150] ABA, 2002-MAR Army Law. 8 at 11.
[151] See, e.g., U.S. v. McVeigh, 153 F.3d 1166. Court of appeals noted among its findings that the attack did involve what it termed a “weapon of mass destruction” at 1166. See also, e.g., U.S. v. Rahman, 854 F.Supp 254 (1994) and subsequent history on the first WTC conspiracy. For the CIA/Mir Aimal Kansi case see NewsHour transcript, “Facing Justice,” June 18, 1997, see also Kasi v. Commonwealth, 256 Va. 407,
[152] ABA at 13.
[153] Id.
[154] Id. at 14.
[155] Id.
[156] Available online at http://193.194.138.190/html/menu3/b/a_ccpr.htm as of Jan. 27, 2003.
[157] Id. at 15. The ABA Task Force set a list of sharp “recommendations” to temper future commissions in section VII, id. at 17-18.
[158] 10 U.S.C. §§ 821, 836, cited in Anne French, 63 Ohio St. L.J. 1225 at 1255-1265. She notes that the two Articles are very similar to the Articles 15 and 28 cited by the Quirin court (and flouted in Yamashita’s case).
[159] French, id., cited at 1266 and Fn. 188 as codified at 8 U.S.C.A. § 1226a.
[160] Id. at 1266-1268.
[161] I.e., outside the classes of lawful combatants (i.e., prisoners of war (PWs) with all the protections thereto), defined by Art. 4 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, (available online at the site of the UN High Commissioner for Human Rights at http://www.unhchr.ch/) which includes as criteria: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly; (d) That of conducting their operations in accordance with the laws and customs of war. (Art. 4, § 2 of that Convention). PWs as such are still under the jurisdiction of the UCMJ (10 U.S.C. § 802a(7)).
[162] Author, obiter dictum.
[163] Written January 27, 2003.
[164] See Jordan J. Paust, supra at 28. The warning to military jurists is explicit: “The U.S. military must disobey an order calling for a patent illegality. Such an order would be ultra vires and constitute a war crime if issued during an armed conflict. At least for military lawyers, the present Military Order, in part, is such an order and places present and future U.S. military personnel in harms way.”
[165] Ratner & Abrams supra at 123.
[166] AR 190-55, US Army Correctional System: Procedures For Military Executions, 11/1/99, is available online at http://www.usapa.army.mil/series_pubs.asp.
[167] See generally Paust, supra; see also Neal K. Katyal and Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L.J. 1259 (2002). Both address the potential illegalities of the military commissions.
[168] Dissent by Justice Murphy, Yamashita, at 28.
(Photo: Gen. Yamashita (L) on the day of his surrender, 3 September 1945)
This will be a blog about national-security, war-crimes, military and international law, esp. how the U.S. interacts with them currently. I draw these as inspirations:
1. Glenn Greenwald’s column at Salon. While his viewpoints and interests parallel mine, I will focus more narrowly on these issues.
His column is at http://politics.salon.com/writer/glenn_greenwald/. I am a frequent poster under my name-de-blog, Coram Nobis.
2. My background, which I will expand on as I post. Briefly, I was trained as an MP during my time in the National Guard and Army Reserve, which included criminal law and corrections. I have a 2005 law degree, with a focus, during my internship, in military law and military commissions. I was editor-in-chief of my law review and wrote at considerable length on military-law issues, both in the review and during my internship. I have been active in the ACLU at the chapter and affiliate levels. (And yes, all of these events actually complement each other).
3. The body of war-crimes law centering on the Yamashita case (Application of Yamashita, 327 U.S. 1 (1946)), which has become bedrock U.S. and international case law as “command-responsibility doctrine,” which holds military and civil commanders strictly liable for atrocities taking place under their command.
4. The concept of rule of law.
There’ll be more, a lot more. In the meantime, welcome.
Coram Nobis
yamashitalegacy 
