Court draws on lessons of WWII


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

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

The "great divide between our enemies and ourselves," Justice Wiley B. Rutledge wrote in his 1946 dissent, is that theirs is ruled by "unbridled power" and "ours is one of universal law" - for friends and foes alike.

The swift military trial of Gen. Tomoyuki Yamashita failed to meet the basic standards of fairness, Rutledge said, because the general had been convicted of a war crime without evidence that he had done wrong.

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

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

His prediction came true.

That onetime law clerk, now Justice John Paul Stevens, wrote the high court's opinion ordering that war crimes suspects be tried, as the Geneva Conventions require, in "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."

Stevens spoke for the 5-3 majority in Hamdan v. Rumsfeld, which in June rejected the Bush administration's rules for military tribunals, saying that the new judicial procedures did not offer defendants a fair trial.

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

When it came to setting legal rules for the war on terrorism, Stevens, 86, looked back six decades to World War II, including the lessons learned in the trial of the Japanese general.

In the Hamdan case, the court rejected a provision in the tribunal rules that allowed defendants to be removed from the courtroom at the request of prosecutors. Stevens argued that, at minimum, defendants charged with war crimes deserve to be present at their trials and to confront all the evidence against them.

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

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

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

"I think the lesson that Wiley Rutledge learned was that you have to be especially vigilant about the government's claims in times of emergency," said Diane Marie Amann, a former Stevens clerk who is a law professor at the University of California, Davis. Shortly after joining the court, Rutledge had voted with the majority to uphold the military's internment of Japanese Americans on the West Coast. It was a decision that the court came to regret.

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

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

That might have been unwise.

In the majority opinion, Justice Stevens described Yamashita's trial as a "glaring" and "notorious" exception to the American tradition of fairness in military trials.

And "in response to subsequent criticism of General Yamashita's trial," he wrote, both the U.S. Uniform Code of Military Justice and the Geneva Conventions were revised to add new standards of fairness.

David G. Savage writes for the Los Angeles Times.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.