Reviewed by Samuel T. Morison, Appellate Defense Counsel, Office of the Chief Defense Counsel, U.S. Department of Defense. E-mail: samuel.morison [at] osd.mil.
In the immediate aftermath of 9/11, a handful of President Bush’s closest advisors prevailed upon him to dust off a policy that had not been invoked for nearly 60 years. At their urging, Bush hastily issued a “military order” in his capacity as Commander-in-Chief, which provided that those responsible for the attacks, if apprehended, would be tried for “war crimes” by a military tribunal. Expressly modeled on an order issued by President Roosevelt in 1942, Bush dispensed with the procedural rules that normally apply to court-martial proceedings. There was one important difference, however. Roosevelt had established an ad hoc tribunal to prosecute a specific group of defendants for a particular offense and limited the class of potential defendants to enemy nationals who attempted to commit war crimes within the territory of the United States. Bush seemed to envision something more expansive. He thus reserved to himself the discretion to “determine from time to time” who would be subject to military jurisdiction for terrorism-related offenses without any apparent limitations.
We have been dealing with the repercussions of that decision for more than a decade. In Hamdan v. Rumsfeld (2006), the Supreme Court struck down Bush’s order, finding that the procedural rules it established to govern commission proceedings ran afoul of both the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions (pp.613-35). The majority also affirmed an exacting standard for determining the subject matter jurisdiction of a law-of-war commission. “At a minimum,” Justice Stevens cautioned, “the government must make a substantial showing that the crime for which it seeks to try a defendant by [this type of] military commission is acknowledged to be an [existing] offense against the law of war” (p.603).
The Bush administration reacted to the Supreme Court’s decision by proposing the creation of a “code of military commissions” to supplement the UCMJ. The purpose of the legislation was to establish “for the first time in our Nation’s history a comprehensive statutory structure that would allow for the fair and effective prosecution of captured members of al Qaeda and other unlawful enemy combatants” (White House Fact Sheet 2006, p.1). The connection between a permanent adjudicatory system aimed at terrorism suspects and the traditional use of military commissions is, to put it gently, obscure. Heretofore, military commissions had been the exception, not the rule, creatures of necessity to be used in exigent wartime circumstances, rather [*35] than a standing institution.
Congress was unperturbed by this historical anomaly, if it was even aware of it. Within a matter of weeks, it gave the President’s proposal its legislative imprimatur by enacting the Military Commissions Act (MCA) with few substantive changes. Yet, in 2012, a conservative panel of the D.C. Circuit dealt a second major blow to the credibility of the new system. In Hamdan v. United States (2012), the first direct appeal of a conviction under the MCA, the court unanimously concluded that the Government had essentially ignored Justice Stevens’ admonition. The defendant had been convicted in a military commission of “providing material support for terrorism,” which the Government belatedly conceded is not, and has never been, recognized as a violation of the international law of war. To avoid ex post facto concerns, the court read the MCA to authorize prosecution for conduct committed prior to its passage only if it constituted an existing offense under international law. Because the alleged offense occurred prior to the statute’s enactment, the court reached the inevitable conclusion that the defendant’s conviction was void for lack of jurisdiction (pp.1248-52). As a consequence of this decision, no more than a handful of the roughly 800 persons who have been detained at Guántanamo Bay since 2001 are likely to be tried for alleged war crimes.
The Bush administration’s ill-conceived resort to military commissions to prosecute terrorism suspects is a good illustration of what historian Peter Maguire has usefully called the American proclivity to engage in “strategic legalism,” namely the manipulation of juridical procedures to conceal the pursuit of larger foreign policy objectives (Maguire 2001, p.9). At its worst, this has been little more than a sanctimonious exercise in victor’s justice, in which the losers in an armed conflict are put on trial by and for the political benefit of the winners.
Allan Ryan’s timely new book on the first major post-World War II military commission trial, Yamashita’s Ghost, places our more recent experience in context and shows how difficult it is to escape the deep shadow cast by this tangled history. A former Supreme Court clerk and Marine Corps JAG officer, Ryan would seem to be ideally suited to take on the subject. In the preface, he sets two goals for himself, first, “to provide [a] full account of the case and its context … so that readers may judge for themselves what happened,” and secondly, to reflect on “what lessons [the case] holds for us today” (p.xv).
As a narrative account of Yamashita’s trial and execution, the book is entirely successful. Grounded in solid archival research, the tenor of the text is historical and descriptive, and Ryan wisely eschews legal technicalities in order to make it accessible for a lay audience. After a brief sketch on the law of war and a biographical introduction of Yamashita, the heart of the book is a highly readable account of the legal proceedings that unfolded primarily in the ballroom of the former U.S. High Commissioner’s mansion in Manila, which was pressed into service as a makeshift courtroom. Ryan’s portrayal has the pace and energy of a true-crime drama, which keeps one turning the page even though we know how the story ends. [*36]
Far from an ordinary line officer, Yamashita was the “most accomplished military leader” of his generation (p.xiii). He had personally opposed going to war against the United States, but became a household name in 1942, when he brilliantly outmaneuvered the superior British and Australian forces in the battle for Singapore. Nor was there anything about his conduct of that campaign that marked him as a future war criminal. As Ryan depicts it, he was to all appearances the consummate professional soldier. “Yamashita prized and emphasized discipline in his ranks,” Ryan writes, “Soldiers engaged in pillage … were not fighting and advancing, and Yamashita moved swiftly to punish them” (p.14). Christened the “Tiger of Malaya,” he became so popular that his great rival, War Minister Hideki Tojo, “dispatched him … to Manchuria, far from the military’s nerve center,” where he lived in virtual exile until the fortunes of war had turned decisively against Japan (p.11).
Yamashita had the misfortune of being appointed to take command of the Japanese army in the Philippines in October 1944, less than two weeks before the United States launched a massive invasion to retake the islands. Faced with overwhelming opposition, Yamashita made the fateful decision to remove his headquarters from Manila to Baguio some 125 miles to the north on the island of Luzon. His strategy was to abandon Manila, leaving behind only a small contingent of soldiers to carry off supplies and destroy military targets, and to fight a rearguard action in the rugged mountains of Luzon in a desperate attempt to divert American forces from attacking the Japanese home islands. From his isolated location, however, he was unable to exercise effective command and control over his forces, not least because the Japanese army’s outdated wire communications equipment was notoriously inept, particularly “in the face of [American] artillery, mortar, naval gunfire and aircraft” (p.43).
The contentious relationship between the Japanese army and navy, which unlike the Allies had no unified command structure, further blurred the lines of authority. In February 1945, some 16,000 naval personnel who had recently been placed under Yamashita’s nominal tactical control disobeyed his orders to evacuate Manila. The remnants of a kamikaze force, these troops resolved to fight to the bitter end and, in an orgy of violence, committed a series of gruesome atrocities against the civilian population of the city, by all accounts without Yamashita’s knowledge.
In September 1945, Yamashita surrendered and became a prisoner of war of the U.S. Army. Three weeks later, the Supreme Allied Commander for the Far East, General Douglas MacArthur, charged Yamashita with violating the laws of war by “permitting” his troops to commit a series of war crimes against protected persons and property. The charge was conspicuously vague about whether it included any element of volition by the accused. As stated in the charge sheet, his defense lawyers pointed out, Yamashita was “not charged with having done something or having failed to do something, but solely with having been something.” For merely by virtue of having been appointed the commander in a particular [*37] theater of operations, he was apparently being held responsible for “every crime committed by every soldier assigned to his command” (p.93).
There was no dispute that Japanese troops had committed numerous atrocities against civilians and prisoners of war in the battle of the Philippines. But the concept of command responsibility had never been interpreted as a kind of status-based, strict liability offense. On the contrary, at the end of World War I, it had seemed “elementary” to the United States delegation negotiating the fate of the German high command that the law of war imputed individual liability only for culpable acts or omissions. In this view, a general officer could not “be punished for the acts of others without proof being given” of three essential elements: first, “that he knew of the commission of the acts in question,” secondly, “that he … possessed the power … to prevent, to put an end to, or repress them,” and thirdly, that he had a legal “duty or obligation to act” under the circumstances. The United States insisted that in order to constitute an offense, each of these elements had to “exist in conjunction, and a standard of liability which [did] not include them all [was] to be rejected” (p.69).
Moreover, it had been a staple of military justice since at least the mid-nineteenth century that, as a matter of fair notice to the defendant, a customary violation of the law of war could not be imposed retrospectively at the discretion of a commander. According to the preeminent American authority on the subject, before a customary law-of-war offense could “be recognized and acted upon as such by a military court or commander,” it must “have prevailed without variation for a long period” and “be well defined, equitable, and uniform in its application” (Winthrop 1886, p.44).
Such was the state of the law prior to World War II. Yet, throughout the proceedings, the Government made no serious attempt to prove that Yamashita actually knew about, ordered or condoned the underlying war crimes for which he was eventually executed. Indeed, the Government steadfastly refused to clarify the mens rea necessary to constitute the offense. In response to Yamashita’s motion to dismiss the indictment on ex post facto grounds, the chief prosecutor insisted that the commission had no authority to decide the scope of its own jurisdiction, but rather was duty bound to accept at face value the validity of the charge as MacArthur had drafted it, whatever that meant. The commission’s verdict was also equivocal, merely stating that “a series of atrocities … [had] been committed by troops under [Yamashita’s] command” and that he had “failed to provide effective control of [his] troops as was required by the circumstances” (Ryan 2012, p.250). Similarly, MacArthur’s staff judge advocate advised him to affirm the verdict and death sentence, because the evidence “abundantly proved” that the atrocities were committed by members of Yamashita’s command and “were so widespread” that one could infer “that [his] professed ignorance [was] incredible” (p.268).
When Yamashita’s habeas petition reached the Supreme Court, Chief Justice Harlan Stone, writing for a six-member majority, allowed that the [*38] commission lacked authority “to place [him] on trial unless the charged preferred against him [was] a violation of the law of war” ( In re Yamashita 1946, p.13). The Chief Justice then begged the crucial question by blatantly mischaracterizing the defendant’s argument. According to the defense, he wrote, the flaw in the charge was that it did “not allege that [Yamashita had] either committed or directed the commission” of war crimes (p.14). The obvious rejoinder is that an officer need not be a direct participant to be responsible for the commission of war crimes, because he can also be held individually liable for a “culpable failure” to protect noncombatants (p.17). The law of war thus imposed on Yamashita “an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population” (p.16). Finally, Stone completed the syllogism by asserting that this was “the precise issue” that was litigated in the commission (p.15). Having thus constructed a straw man, Stone declined to weigh the sufficiency of the evidence: “We merely hold that the charge sufficiently states a violation against the law of war, and that the commission, upon the facts found, could properly find [Yamashita] guilty of such a violation” (p.17).
It was a remarkably craven performance, perhaps most notable for the fact that it provoked two of the greatest dissents in the Court’s history, which introduced the modern conception of universal human rights into constitutional jurisprudence. For his part, Stone had previously circulated a draft opinion that would have held that “the commission’s rulings on evidence and procedure were consistent with the due process of law” (Ryan 2012, p.285). But that was a bridge too far for at least one of his wavering colleagues and Stone was afraid of losing his grip on the majority. He thus rewrote the opinion to avoid the issue by disclaiming any “intimation one way or the other” about what “the Fifth Amendment might require” in a law-of-war commission convened to try an enemy combatant. (In re Yamashita 1946, p.23).
The fallacy in the majority’s analysis, as Ryan points out, is that it indulges the same ambiguity that had infected the trial from the beginning. In Stone’s locution, it is impossible to tell whether the phrase “within his power” refers to an officer’s de jure authority to issue orders to troops under his command, or to his practical ability to exercise control over those troops all things considered. Understood in the latter sense, Yamashita never denied that he was obligated to protect noncombatants from gratuitous violence by his own troops. Rather, he consistently maintained that he had been neither culpably ignorant of events on the ground nor capable of controlling the guilty troops, who, after all, had disregarded his orders to evacuate Manila. By refusing to clarify the mens rea necessary to constitute the offense, the majority effectively gave MacArthur a license to adjust the crime to fit the evidence, whatever it happened to be.
Curiously, Ryan fails to mention an important coda to the case. As it happens, we subsequently learned that the lynchpin of the Government’s argument was almost certainly false. In October 1948, a military tribunal in Tokyo was convened to try Admiral [*39] Soemu Toyoda, the highest ranking officer in the Japanese Navy during the Philippine campaign, on charges that were substantively identical to Yamashita’s (Prévost 1992, p.331). Toyoda testified that in early January 1945, he had approved the transfer of “limited command over the Manila [naval] force” to Yamashita, “with the proviso that the navy would retain veto power over the decision” (p.331). When the battle for Manila began, however, Toyoda ordered that the city “should be defended to the very end,” which directly contradicted Yamashita’s order to evacuate (p.332). Based on the available evidence, Yamashita was no longer even technically in command of the naval forces who were responsible for the atrocities that occurred in Manila.
In a final, cruel twist, the tribunal acquitted Toyoda on the grounds that, “although the atrocities … are proved to have occurred,” there was no evidence that he had given “any order, acquiesced, condoned, had knowledge or means of gaining knowledge” of the terrible events that occurred in Manila (p.334). As Ann Marie Prévost suggests, the outcome of the Toyoda trial was yet another exercise in strategic legalism. By the time the trial ended in late 1949, “the official U.S. policy was already centered on the rehabilitation of Japan; China was now perceived as the Asian enemy. Admiral Toyoda was simply a beneficiary of this distinct change in attitude” (p.335).
Ryan is surely correct that Yamashita’s ghost still haunts us, though not because the case stands as a robust precedent for holding officers strictly accountable for misconduct by their subordinates. As the contretemps of the Bush administration illustrate, there is no reason to think that the United States is ever going to pass judgment on a flag officer, much less the Commander-in-Chief, according to the standard applied at Yamashita’s trial. For example, the Abu Ghraib scandal involved the systematic abuse of numerous Iraqi detainees, at least one of whom was murdered, while in the custody of the U.S. military. Yet, the brigadier general in command of the prison was not prosecuted. Instead, she was administratively demoted to colonel for unrelated misconduct, and later quietly promoted back to brigadier general and allowed to retire. In the conduct of foreign affairs, consistency is the hobgoblin of small nation-states. As a doctrinal matter, the Yamashita standard thus appears to be a dead letter.
I would argue that Yamashita’s ghost still haunts us because, by any reasonable measure, he did not receive a fair trial. MacArthur not only preferred a novel and ambiguous charge, he handpicked five subordinate generals to serve as both judge and jury, urged them to conduct the trial quickly, and apparently interfered in the proceedings when he was displeased with the commission’s procedural rulings.
In addition to the specter of unlawful influence, none of the panel members had any previous legal experience. This became immediately apparent at the arraignment when the presiding officer, Major General Russell Reynolds, was perplexed by the difference between a charge and a specification. As anyone with a passing familiarity with court martial practice would have known, a specification is the military analogue of an indictment, which gives the accused notice of the essential facts constituting [*40] the offense charged. At the arraignment, Yamashita was served with 64 specifications describing various war crimes that he was alleged to have “permitted.” Three days before trial, the Government served him with 59 additional specifications, but the commission denied Yamashita’s motion for a continuance to investigate the new allegations.
MacArthur’s convening order also made no pretense about abiding by the procedural rules applicable to courts-martial. Instead, he directed the commission to consider any “evidence” that might “be of assistance” or have “probative value” to a reasonable person. As the chief prosecutor acidly observed, the proceedings were meant to be unconstrained by “the tortuous technicalities” of the criminal law, such as the defendant’s pesky right to confront the witnesses against him (Ryan 2012, p.98). Under this directive, the commission routinely accepted hearsay evidence, sometimes three and four times removed, ex parte declarations of uncertain reliability, and a 30-minute propaganda film produced by the Office of Strategic Services entitled “Orders From Tokyo,” which spectacularly announced that the U.S. Army had recovered an order “from the Japanese Supreme Command for the systematic destruction of Manila’s citizens” (p.154). Needless to say, no such order was introduced into evidence.
The entire trial from arraignment to verdict was completed in less than six weeks. When the case reached the Supreme Court, as we’ve seen, the majority declined for tactical reasons to consider the application of the Due Process Clause of the Fifth Amendment to the trial of enemy combatants. But as Justices Murphy and Rutledge famously protested in dissent, shouldn’t the Constitution follow the flag, at least when the U.S. military puts a person on trial for his life in a criminal prosecution? The problem is all the more acute when the trial is far removed in time and place from any actual battlefield. Under these circumstances, what plausible claim of military necessity would justify a departure from the bedrock constitutional commitment to due process of law?
It is instructive that we have avoided confronting this thorny question for so long. We should find out the answer soon enough, however. As we speak, in the glorified tin-roofed shed that serves as a courthouse in Guántanamo Bay, the Government is seeking the death penalty for six defendants charged with terrorism-related offenses under the MCA. The cases are lumbering their way through the pre-trial process before a military judge, albeit with distant echoes of the High Commissioner’s ballroom in Manila. Perhaps, when all is said and done, General Yamashita will finally be able to rest in peace.
Maguire, Peter. 2001. Law and War: An American Story. New York: Columbia University Press.
Prévost, Ann Marie. 1992. “Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita.” Human Rights Quarterly, 14 (3): 303-38.
The White House. September 6, 2006. [*41] “Fact Sheet: The Administration’s Legislation to Create Military Commissions,” available at http://georgewbushwhitehouse.archives.gov/news/releases/ 2006/09/20060906-6.html.
William Winthrop. 1886. Military Law: Vol. 1. Washington, D.C.: W. H. Morrison.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012).
In re Yamashita, 327 U.S. 1 (1946).
© Copyright 2013 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official policy or position of the Department of Defense or the United States Government.