Us Rep 327001

CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES

AT
OCTOBER TERM, 1945.
IN RE YAMASHITA.
NO. 61, MISC. APPLICATION FOR LEAVE TO FILE PETITION
FOR WRIT OF HABEAS CORPUS AND WRIT OF PROHIBITION.*
Argued January 7, 8, 1946.-Decided February 4, 1946.

Prior to September 3, 1945, petitioner was the Commanding General
of the Fourteenth Army Group of the Imperial Japanese Army in
the Philippine Islands. On that day, he surrendered to the United
States Army and became a prisoner of war. Respondent was the
Commanding General of the United States Army Forces, Western
Pacific, whose command embraced the Philippine Islands. Respond-
ent appointed a military commission to try the petitioner on a charge
of violation of the law of war. The gist of the charge was that peti-
tioner had failed in his duty as an army commander to control the
operations of his troops, "permitting them to commit" specified
atrocities against the civilian population and prisoners of war. Peti-
tioner was found guilty and sentenced to death. Held:
1. The military commission appointed to try the petitioner was
lawfully created. P. 9.
(a) Nature of the authority to create military commissions for
the trial of enemy combatants for offenses against the law of war, and
principles governing the exercise of jurisdiction by such commissions,
considered. Citing Ex parte Quirin, 317 U. S. 1, and other cases.
Pp. 7-9.
(b) A military commission may be appointed by any field com-
mander, or by any commander competent to appoint a general court
martial, as was respondent by order of the President. P. 10.
(c) The order creating the military commission was in conform-
ity With the Act of Congress (10 U. S. C. §§ 1471-1593) sanctioning
*Together with No. 672, Yamashita v. Styer, Commanding General,
on petition for writ of certiorari to the Supreme Court of the Common-
wealth of the Philippines. For earlier orders in these cases see 326
U. S. 693, 694.
OCTOBER TERM, 1945.
Syllabus. 327 U. S.
the creation of such tribunals for the trial of offenses against the law
of war committed by enemy combatants. P. 11.
2. Trial of the petitioner by the military commission was lawful,
although hostilities had ceased. P. 12.
(a) A violation of the law of war, committed before the cessa-
tion of hostilities, may lawfully be tried by a military commission
after hostilities have ceased, at least until peace has been officially
recognized by treaty or proclamation by the political branch of the
Government. P. 12.
(b) Trial of the petitioner by the military commission was au-
thorized by the political branch of the Government, by military
command, by international law and usage, and by the terms of the
surrender of the Japanese government. P. 13.
3. The charge preferred against the petitioner was of a violation
of the law of war. P. 13.
(a) The law of war imposes on an army commander a duty to
take such appropriate measures as are within his power to control the
troops under his command for the prevention of acts which are viola-
tions of the law of war and which are likely to attend the occupation
of hostile territory by an uncontrolled soldiery; and he may be
charged with personal responsibility for his failure to take such
measures when violations result. Pp. 14, 16.
(b) What measures, if any, petitioner took to prevent the al-
leged violations of the law of war, and whether such measures as he
may have taken were appropriate and sufficient to discharge the
duty imposed upon him, were questions within the peculiar com-
petence of the military officers composing the commission and were
for it to decide. P. 16.
(c) Charges of violations of the law of war triable before a mili-
tary tribunal need not be stated with the precision of a common law
indictment. P. 17.
(d) The allegations of the charge here, tested by any reasonable
standard, sufficiently set forth a violation of the law of war; and
the military commission had authority to try and to decide the issue
which it raised. P. 17.
4. In admitting on behalf of the prosecution a deposition and hear-
say and opinion evidence, the military commission did not violate any
Act of Congress, treaty or military command defining the commis-
sion's authority. Pp. 18, 23.
(a) The Articles of War, including Articles 25 and 38, are not
applicable to the trial of an enemy combatant by a military commis-
IN RE YAMASHITA. 3
Syllabus.
sion for violations of the law of war, and imposed no restrictions upon
the procedure to be followed in such trial. Pp. 19, 20.
(b) Article 63 of the Geneva Convention of 1929, which pro-
vides that "Sentence may be pronounced against a prisoner of war
only by the same courts and according to the same procedure as in
the case of persons belonging to the armed forces of the detaining
Power," does not require that Articles 25 and 38 of the Articles of
War be applied in the trial of the petitioner. Article 63 refers to
sentence "pronounced against a prisoner of war" for an offense com-
mitted while a prisoner of war, and not for a violation of the law of
war committed while a combatant. P. 20.
(c) The Court expresses no opinion on the question of the wis-
dom of considering such evidence as was received in this proceeding,
nor on the question whether the action of a military tribunal in ad-
mitting evidence which Congress or controlling military command
has directed to be excluded may be drawn in question by petition for
habeas corpus or prohibition. P. 23.
5. On an application for habeas corpus, the Court is not con-
cerned with the guilt or innocence of the petitioner. P. 8.
6. By sanctioning trials of enemy aliens by military commission
for offenses against the law of war, Congress recognized the right of
the accused to make a defense, and did not foreclose their right to
dontend that the Constitution or laws of the United States withhold
authority to proceed with the trial. P. 9.
7. The Court does not appraise the evidence on which the peti-
tioner here was convicted. P. 17.
8. The military commission's rulings on evidence and on the mode
of conducting the proceedings against the petitioner are not review-
able by the courts, but only by the reviewing military authorities.
From this viewpoint it is unnecessary to consider what, in other situ-
ations, the Fifth Amendment might require. Pp. 8, 23.
9. Article 60 of the Geneva Convention of 1929, which provides
that "At the opening of a judicial proceeding directed against a pris-
oner of war, the detaining Power shall advise the representative of
the protecting Power thereof as soon as possible, and always be-
fore the date set for the opening of the trial," applies only to
persons who are subjected to judicial proceedings for offenses
committed while prisoners of war. P. 23.
10. The detention of the petitioner for trial and his detention upon
his conviction, subject to the prescribed review by the military
authorities, were lawful. P. 25.
Leave and petition denied.
OCTOBER TERM, 1945.
Opinion of the Court. 327 U. S.
No. 61, Misc. Application for leave to file a petition

for writs of habeas corpus and prohibition in this Court
challenging the jurisdiction and legal authority of a mili-
tary commission which convicted applicant of a viola-
tion of the law of war and sentenced him to be hanged.
Denied.
No. 672. Petition for certiorari to review an order of
the Supreme Court of the Commonwealth of the Phil-
ippines, 42 Off. Gaz. 664, denying an application for writs
of habeas corpus and prohibition likewise challenging the
jurisdiction and legal authority of the military commis-
sion which tried and convicted petitioner. Denied.
Colonel HarryE. Clarke, pro hac vice, CaptainA. Frank
Reel and Captain Milton Sandberg argued the cause for
petitioner. With them on the brief were Lt. Col. Walter
C. Hendrix,Lt. Col. James G. Feldhausand Major George
F. Guy.
Solicitor General McGrath and Assistant Solicitor Gen-
eral Judson argued the cause for respondent. With them
on the brief were The Judge Advocate General of the
Army, FrederickBernays Wiener, George Thomas Wash-
ington, David Reich, Irving Hill, Colonel William J.
Hughes, Jr. and CaptainD. C. Hill.
MR. CHIEF JUSTICE STONE delivered the opinion of the
Court.
No. 61 Miscellaneous is an application for leave to file a
petition for writs of habeas corpus and prohibition in this
Court. No. 672 is a petition for certiorari to review an
order of the Supreme Court of the Commonwealth of the
Philippines (28 U. S. C. § 349), denying petitioner's ap-
plication to that court for writs of habeas corpus and
prohibition. As both applications raise substantially like
questions, and because of the importance and novelty of
some of those presented, we set the two applications down
for oral argument as one case.
IN RE YAMASHITA.
Opinion of the Court.
From the petitions and supporting papers it appears that

prior to September 3, 1945, petitioner was the Command-
ing General of the Fourteenth Army Group of the Imperial
Japanese Army in the Philippine Islands. On that date he
surrendered to and became a prisoner of war of the United
States Army Forces in Baguio, Philippine Islands. On
September 25th, by order of respondent, Lieutenant Gen-
eral Wilhelm D. Styer, Commanding General of the United
States Army Forces, Western Pacific, which command em-
braces the Philippine Islands, petitioner was served with a
charge prepared by the Judge Advocate General's Depart-
ment of the Army, purporting to charge petitioner with ,a
violation of the law of war. On October 8, 1945, petitioner,
after pleading not guilty to the charge, was held for trial
before a military commission of five Army officers ap-
pointed by order of General Styer. The order appointed
six Army officers, all lawyers, as defense counsel.
Throughout the proceedings which followed, including
those before this Court, defense counsel have demon-
strated their professional skill and resourcefulness and
their proper zeal for the defense with which they were
charged.
On the same date a bill of particulars was filed by the
prosecution, and the commission heard a motion made in
petitioner's behalf to dismiss the charge on the ground that
it failed to state a violation of the law of war. On October
29th the commission was reconvened, a supplemental bill
of particulars was filed, and the motion to dismiss was de-
nied. The trial then proceeded until its conclusion on
December 7, 1945, the commission hearing two hundred
and eighty-six witnesses, who gave over three thousand
pages of testimony. On that date petitioner was found
guilty of the offense as charged and sentenced to death by
hanging.
The petitions for habeas qorpus set up that the detention
of petitioner for the purpose of the trial was unlawful for
OCTOBER TERM, 1945.
reasons which are now urged as showing that the military

commission was without lawful authority or jurisdiction to
place petitioner on trial, as follows:
(a) That the military commission which tried and con-
victed petitioner was not lawfully created, and that no mil-
itary commission to try petitioner for violations of the law
of war could lawfully be convened after the cessation of
hostilities between the armed forces of the United States
and Japan;
(b) That the charge preferred against petitioner fails
to charge him with a violation of the law of war;
(c) That the commission was without authority and ju-
risdiction to try and convict petitioner because the order
governing the procedure of the commission permitted the
admission in evidence of depositions, affidavits and hear-
say and opinion evidence, and because the commission's
rulings admitting such evidence were in violation of the
25th and 38th Articles of War (10 U. S. C. §§ 1496,
1509) and the Geneva Convention (47 Stat. 2021), and de-
prived petitioner of a fair trial in violation of the due
process clause of the Fifth Amendment;
(d) That the commission was without authority and ju-
risdiction in the premises because of'the failure to give
advance notice of petitioner's trial to the neutral power
representing the interests of Japan as a belligerent as re-
quired by Article 60 of the Geneva Convention, 47 Stat.
2021, 2051.
On the same grounds the petitions for writs of prohibi-
tion set up that the commission is without authority to
proceed with the trial.
The Supreme Court of the Philippine Islands, after hear-
ing argument, denied the petition for habeas corpus pre-
sented to it, on the ground, among others, that its juris-
diction was limited to an inquiry as to the jurisdiction of
the commission to place petitioner on trial for the offense
charged, and that the commission, being validly consti-
IN RE YAMASHITA.
1 Opinion of the Court.
tuted by the order of General Styer, had jurisdiction oyer

the person of petitioner and over the trial for the offense
charged.
In Ex parte Quirin,317 U. S. 1, we had occasion to con-
sider at length the sources and nature of the authority to
create military commissions for the trial of enemy combat-
ants for offenses against the law of war. We there pointed
out that Congress, in the exercise of the power conferred
upon it by Article I, § 8, Cl. 10 of the Constitution to
"define and punish . . . Offences against the Law of Na-
tions . . .," of which the law of war is a part, had by the
Articles of War (10 U. S. C. §§ 1471-1593) recognized the
"military commission" appointed by military command, as
it had previously existed in United States Army practice,
as an appropriate tribunal for the trial and punishment of
offenses against the law of war. Article 15 declares that the
"provisions of these articles conferring jurisdiction upon
courts martial shall not be construed as depriving military
commissions . . . or other military tribunals of concur-
rent jurisdiction in respect of offenders or offenses that by
statute or by the law of war may be triable by such military
commissions . . . or other military tribunals." See a sim-
ilar provision of the Espionage Act of 1917, 50 U. S. C. § 38.
Article 2 includes among those persons subject to the Ar-
ticles of War the personnel of our own military establish-
ment. But this, as Article 12 indicates, does not exclude
from the class of persons subject to trial by military com-
missions "any other person who by the law of war is subject
to trial by military tribunals," and who, under Article 12,
may be tried by court-martial, or under Article 15 by mili-
tary commission.
We further pointed out that Congress, by sanctioning
trial of enemy combatants for violations of the law of war
by military commission, had not attempted to codify the
law of war or to mark its precise boundaries. Instead, by
Article 15 it had incorporated, by reference, as within the
OCTOBER TERM, 1945.
preexisting jurisdiction of military commissions created by

appropriate military command, all offenses which are de-
fined as such by the law of war, and which may consti-
tutionally be included within that jurisdiction. It thus
adopted the system of military common law applied by
military tribunals so far as it should be recognized and
deemed applicable by the courts, and as further defined
and supplemented by the Hague Convention, to which the
United States and the Axis powers were parties.
We also emphasized in Ex parte Quirin, as we do here,
that on application for habeas corpus we are not concerned
with the guilt or innocence of the petitioners. We con-
sider here only the lawful power of the commission to try
the petitioner for the offense charged. In the present
cases it must be recognized throughout that the military
tribunals which Congress has sanctioned by the Articles of
War are not courts whose rulings and judgments are made
subject to review by this Court. See Ex parte Vallandig-
ham, 1 Wall. 243; In re Vidal, 179 U. S. 126; cf. Ex parte
Quirin, supra, 39. They are tribunals whose determina-
tions are reviewable by the military authorities either as
provided in the military orders constituting such tribunals
or as provided by the Articles of War. Congress conferred
on the courts no power to review their determinations save
only as it has granted judicial power "to grant writs of
habeas corpus for the purpose of an inquiry into the cause
of restraint of liberty." 28 U. S. C. §§ 451, 452. The
courts may inquire whether the detention complained of
is within the authority of those detaining the petitioner.
If the military tribunals have lawful authority to hear, de-
cide and condemn, their action is not subject to judicial
review merely because they have made a wrong decision
on disputed facts. Correction of their errors of decision
is not for the courts but for the military authorities which
are aloneauthorized to review their decisions. See Dynes
v. Hoover, 20 How. 65, 81; Runkle v. United States, 122
IN RE YAMASHITA.
U. S. 543, 555-556; Carter v. McClaughry, 183 U. S. 365;

Collinsv. McDonald,258 U. S. 416. Cf. Matter of Moran,
203 U. S. 96, 105.
Finally, we held in Ex parte Quirin,supra, 24, 25, as we
hold now, that Congress by sanctioning trials of enemy
aliens by military commission for offenses against the law
of war had recognized the right of the accused to make a
defense. Cf. Ex parte Kawato, 317 U. S. 69. It has not
foreclosed their right to contend that the Constitution or
laws of the United States withhold authority to proceed
with the trial. It has not withdrawn, and the Executive
branch of the Government could not, unless there was sus-
pension of the writ, withdraw from the courts the duty
and power to make such inquiry into the authority of the
commission as may be made by habeas corpus.
With these governing principles in mind we turn to the
consideration of the several contentions urged to establish
want of authority in the commission. We are not here
concerned with the power of military commissions to try
civilians. See Ex parte Milligan, 4 Wall. 2, 132; Sterling
v. Constantin,287 U. S. 378; Ex parte Quirin, supra, 45.
The Government's contention is that General Styer's order
creating the conmission conferred authority on it only to
try the purported charge of violation of the law of war com-
mitted by petitioner, an enemy belligerent, while in com-
mand of a hostile army occupying United States territory
during time of war. Our first inquiry must therefore be
whether the present commission was created by lawful mil-
itary command and, if so, whether authority could thus be
conferred on the commission to place petitioner on trial
after the cessation of hostilities between the armed forces
of the United States and Japan.
The authority to create the commission. General
Styer's order for the appointment of the commission was
made by him as Commander of the United States Army
Forces, Western Pacific. His command includes, as part
10 OCTOBER TERM, 1945.
of a vastly greater area, the Philippine Islands, where the

alleged offenses were committed, where petitioner surren-
dered as a prisoner of war, and where, at the time of the
order convening the commission, he was detained as a pris-
oner in custody of the United States Army. The congres-
sional recognition of military commissions and its sanction
of their use in trying offenses against the law of war to
which we have referred, sanctioned their creation by mili-
tary command in conformity to long-established American
precedents. Such a commission may be appointed by any
field commander, or by any commander competent to ap-
point a general court-martial, as was General Styer, who
had been vested with that power by order of the President.
2 Winthrop, Military Law and Precedents, 2d ed., *1302;
cf. Article of War 8.
Here the commission was not only created by a com-
mander competent to appoint it, but his order conformed
to the established policy of the Government and to higher
military commands authorizing his action. In a procla-
mation of July 2, 1942 (56 Stat. 1964), the President pro-
claimed that enemy belligerents who, during time of war,
enter the United States, or any territory or possession
thereof, and who violate the law of war, should be subject
to the law of war and to the jurisdiction of military tribu-
nals. Paragraph 10 of the Declaration of Potsdam of July
26, 1945, declared that ". . . stern justice shall be meted
out to all war criminals, including those who have visited
cruelties upon our prisoners." U. S. Dept. of State Bull.,
Vol. XIII, No. 318, pp. 137-138. This Declaration was
accepted by the Japanese government by its note of August
10, 1945. U. S. Dept. of State Bull., Vol. XIII, No. 320,
p. 205.
By direction of the President, the Joint Chiefs of Staff of
the American Military Forces, on September 12, 1945, in-
structed General MacArthur, Commander in Chief, United
States Army Forces, Pacific, to proceed with the trial, be-
IN RE YAMASHITA.
fore appropriate military tribunals, of such Japanese war

criminals "as have been or may be apprehended." By
order of General MacArthur of September 24, 1945, Gen-
eral Styer was specifically directed to proceed with the
trial of petitioner upon the charge here involved. This
order was accompanied by detailed rules and regulations
which General MacArthur prescribed for the trial of war
criminals. These regulations directed, among other things,
that review of the sentence imposed by the commission
should be by the officer convening it, with "authority to
approve, mitigate, remit, commute, suspend, reduce or
otherwise alter the sentence inposed," and directed that
no sentence of death should be carried into effect until con-
firmed by the Commander in Chief, United States Army
Forces, Pacific.
It thus appears that the order creating the commission
for the trial of petitioner was authorized by military com-
mand, and was in complete conformity to the Act of Con-
gress sanctioning the creation of such tribunals for the trial
of offenses against the law of war committed by enemy
combatants. And we turn to the question whether the
authority to create the commission and direct the trial by
military order continued after the cessation of hostilities.
An important incident to the conduct of war is the adop-
tion of measures by the military commander, not only to
repel and defeat the enemy, but to seize and subject to
disciplinary measures those enemies who, in their attempt
to thwart or impede our military effort, have violated the
law of war. Ex parte Quirin, supra, 28. The trial and
punishment of enemy combatants who have committed
violations of the law of war is thus not only a part of the
conduct of war operating as a preventive measure against
such violations, but is an exercise of the authority sanc-
tioned by Congress to administer the system of military
justice recognized by the law of war. That sanction is
without qualification as to the exercise of this authority so
OCTOBER TERM, 1945.
long as a state of war exists-from its declaration until

peace is proclaimed. See United States v. Anderson, 9
Wall. 56, 70; The Protector,12 Wall. 700, 702; McElrath
v. United States, 102 U. S. 426, 438; Kahn v. Anderson, 255
U. S. 1, 9-10. The war power, from which the commission
derives its existence, is not limited to victories in the field,
but carries with it the inherent power to guard against the
immediate renewal of the conflict, and to remedy, at least
in ways Congress has recognized, the evils which the mili-
tary operations have produced. See Stewart v. Kahn, 11
Wall. 493, 507.
We cannot say that there is no authority to convene a
commission after hostilities have ended to try violations
of the law of war committed before their cessation, at least
until peace has been officially recognized by treaty or proc-
lamation of the political branch of the Government. In
fact, in most instances the practical administration of the
system of military justice under the law of war would fail
if such authority were thought to end with the cessation of
,hostilities. For only after their cessation could the greater
number of offenders and the principal ones be apprehended
and subjected to trial.
No writer on international law appears to have regarded
the power of military tribunals, otherwise competent to
try violations of the law of war, as terminating before the
formal state of war has ended.' In our own military his-
'The Commission on the Responsibility of the Authors of the War
and on the Enforcement of Penalties of the Versailles Peace Confer-
ence, which met after cessation of hostilities in the First World War,
were of the view that violators of the law of war could be tried by
military tribunals. See Report of the Commission, March 9, 1919, 14
Am. J. Int. L. 95, 121. See also memorandum of American commis-
sioners concurring on this point, id., at p. 141. The treaties of peace
concluded after World War I recognized the right of the Allies and of
the United States to try such offenders before military tribunals. See
Art. 228 of Treaty of Versailles, June 28, 1919; Art. 173 of Treaty of
IN RE YAMASHITA.. 13
tory there have been numerous instances in which offend-

ers were tried by military commission after the cessation
of hostilities and before the proclamation of peace, for
offenses against the law of war committed before the
cessation of hostilities.'
The extent to which the power to prosecute violations of
the law of war shall be exercised before peace is declared
rests, not with the courts, but with, the political branch of
the Government, and may itself be governed by the terms
of an armistice or the treaty of peace. Here, peace has not
been agreed upon or proclaimed. Japan, by her accept-
ance of the Potsdam Declaration and her surrender, has
acquiesced in the trials of those guilty of violations of the
law of war. The conduct of the trial by the military com-
mission has been authorized by the political branch of the
Government, by military command, by international law
and usage, and by the terms of the surrender of the Jap-
anese government.
The charge. Neither congressional action nor the mil-
itary orders constituting the commission authorized it to
place petitioner on trial unless the charge preferred against
him is of a violation of the law bf war. The charge, so far
as now relevant, is that petitioner, between October 9, 1944
and September 2, 1945, in the Philippine Islands, "while
commander of armed forces of Japan at war with the
United States of America and its allies, unlawfully disre-
garded and failed to discharge his duty as commander to
St. Germain, Sept. 10, 1919; Art. 157 of Treaty of Trianon, June 4,
1920.
The terms of the agreement which ended hostilities in the Boer War
reserved the right to try, before military tribunals, enemy combatants
who had violated the law of war. 95 British and Foreign State Papers
(1901-1902) 160. See also trials cited in Colby, War Crimes, 23 Mich-
igan Law Rev. 482, 496-7.
2 See cases mentioned in Ex parte Quirin, supra, p. 32, note 10, and
in 2 Winthrop, supra, *1310-1311, n. 5; 14 Op. A. G. 249 (Modoc

Indian Prisoners).
OCTOBER TERM, 1945.
control the operations of the members of his command,

permitting them to commit brutal atrocities and other
highcrimes against people of the United States and of
its allies and dependencies, particularly the Philippines;
and he . . . thereby violated the laws of war."
Bills of particulars, filed by the prosecution by order of
the commission, allege a series of acts, one hundred and
twenty-three in number, committed by members of the
forces under petitioner's command during the period men-
tioned. The first item specifies the execution of "a delib-
erate plan and purpose to massacre and exterminate a large
part of the civilian population of Batangas Province, and
to devastate and destroy public, private and religious
property therein, as a result of which more than 25,000
men, women and children, all unarmed 'noncombatant
civilians, were brutally mistreated and killed, without
cause or trial, and entire settlements were devastated and
destroyed wantonly and without military necessity."
Other items specify acts of violence, cruelty and homicide
inflicted upon the civilian population and prisoners of war,
acts of wholesale pillage and the wanton destruction of
religious monuments.
It is not denied that such acts directed against the civil-
ian population of an occupied country and against pris-
oners of war are recognized in international law as viola-
tions of the law of war. Articles 4, 28, 46, and 47, Annex
to the Fourth Hague Convention, 1907, 36 Stat. 2277, 2296,
2303, 2306-7. But it is urged that the charge does not
allege that petitioner has either committed or directed the
commission of such acts, and consequently that no viola-
tion is charged as against him. But this overlooks the fact
that the gist of the charge is an unlawful breach of duty
by petitioner as an army commander to control the opera-
tions of the members of his command by "permitting them
to commit" the extensive and widespread atrocities speci-
fied. The question then is whether the law of war imposes
IN RE YAMASHITA.
on an army commander a duty to take such appropriate

measures as are within his power to control the troops
under his command for the prevention of the specified acts
which are violations of the law of war and which are likely
to attend the occupation of hostile territory by an uncon-
trolled soldiery, and whether he may be charged with per-
sonal responsibility for his failure to take such measures
when violations result. That this was the precise issue
to be tried was made clear by the statement of the prosecu-
tion at the opening of the trial.
It is evident that the conduct of military operations by
troops whose excesses are unrestrained by the orders or
efforts of their commander would almost certainly result
in violations which it is the purpose of the law of war to
prevent. Its purpose to protect civilian populations and
prisoners of war from brutality would largely be defeated
if the commander of an invading army could with im-
punity neglect to take reasonable measures for their pro-
tection. Hence the law of war presupposes that its viola-
tion is to be avoided through the control of the operations
of war by commanders who are to some extent responsible
for their subordinates.
This is recognized by the Annex to the Fourth Hague
Convention of 1907, respecting the laws and customs of
war on land. Article 1 lays down as a condition which an
armed force must fulfill in order to be accorded the rights
of lawful belligerents, that it must be "commanded by a
person responsible for his subordinates." 36 Stat. 2295.
Similarly Article 19 of the Tenth Hague Convention, relat-
ing to,bombardment by naval vessels, provides that com-
manders in chief of the belligerent vessels "must see that
the above Articles are properly carried out." 36 Stat.
2389. And Article 26 of the Geneva Red Cross Conven-
tion of 1929, 47 Stat. 2074, 2092, for the amelioration of the
condition of the wounded and sick in armies in the field,
makes it "the duty of the commanders-in-chief of the bel-
OCTOBER TERM, 1945.
ligerent armies to provide for the details of execution of the

foregoing articles, [of the convention] as well as for un-
foreseen cases . . ." And, finally, Article 43 of the Annex
of the Fourth Hague Convention, 36 Stat. 2306, requires
that the commander of a force occupying enemy territory,
as was petitioner, "shall take all the measures in his power
to restore, and ensure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the
laws in force in the country."
These provisions plainly imposed on petitioner, who at
the time specified was military governor of the Philippines,
as well as commander of the Japanese forces, 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. This duty of a com-
manding officer has heretofore been recognized, and its
breach penalized by our own military tribunals.' A like
principle has been applied so as to impose liability on the
United States in international arbitrations. Case of Jean-
naud, 3 Moore, International Arbitrations, 3000; Case of
The Zafiro, 5 Hackworth, Digest of International Law,
707.'
We do not make the laws of war but we respect them so
far as they do not conflict with the commands of Congress
or the Constitution. There is no contention that the pres-
ent charge, thus read, is without the support of evidence,
or that the commission held petitioner responsible for fail-
ing to take measures which were beyond his control or in-
appropriate for a commanding officer to take in the circum-
3 Failure of an officer to take measures to prevent murder of an in-
habitant of an occupied country committed in his presence. Gen.
Orders No. 221, Hq. Div. of the Philippines, August 17, 1901. And
in Gen. Orders No. 264, Hq. Div. of the Philippines, September 9,
1901, it was held that an officer could not be found guilty for failure to
prevent a murder unless it appeared that the accused had "the power
to prevent" it.
IN RE YAMASHITA.
stances.' We do not here appraise the evidence on which

petitioner was convicted. We do not consider what meas-
ures, if any, petitioner took to prevent the commission, by
the troops under his command, of the plain violations of
the law of war detailed in the bill of particulars, or whether
such measures as he may have taken were appropriate and
sufficient to discharge the duty imposed upon him. These
are questions within the peculiar competence of the mili-
tary officers composing the commission and were for it to
decide. See Smith v. Whitney, 116 U. S. 167, 178. It is
plain that the charge on which petitioner was tried charged
him with a breach of his duty to control the operations of
the members of his command, by permitting them to com-
mit the specified atrocities. This was enough to require
the commission to hear evidence tending to establish the
culpable failure of petitioner to perform the duty imposed
on him by the law of war and to pass upon its sufficiency to
establish guilt.
Obviously charges of violations of the law of war triable
before a military tribunal need not be stated with the pre-
cision of a common law indictment. Cf. Collins v. Mc-
Donald, supra,420. But we conclude that the allegations
of the charge, tested by any reasonable standard, ade-
quately allege a violation of the law of war and that the
4In its findings the commission took account of the difficulties "faced
by the Accused with respect not only to the swift and overpowering
advance of American forces, but also to the errors of his predecessors,
weaknesses in organization, equipment, supply . . ., training, com-
munication, discipline and morale of his troops," and the "tactical situ-
ation, the character, training and capacity of staff officers and subordi-
nate commanders as well as the traits of character .. of his troops."
It nonetheless found that petitioner had not taken such measures to
control his troops as were "required by the circumstances." We do
not weigh 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 petitioner guilty of such a
violation.
commission had authority to try and decide the issue which

it raised. Cf. Dealy v. United States, 152 U. S. 539; Wil-
liamson v. United States, 207 U. S. 425, 447; Glasser v.
United States, 315 U. S. 60, 66, and cases cited.
The proceedings before the commission. The regula-
tions prescribed by General MacArthur governing the
procedure for the trial of petitioner by the commission
directed that the commission should admit such evidence
"as in its opinion would be of assistance in proving or dis-
proving the charge, or such as in the commission's opinion
would h-ave probative value in the mind of a reasonable
man," and that in particular it might admit affidavits, dep-
ositions or other statements taken by officers detailed for
that purpose by military authority. The petitions in this
case charged that in the course of the trial the commission
received, over objection by petitioner's counsel, the deposi-
tion of a witness taken pursuant to military authority by a
United States Army captain. It also, over like objection,
admitted hearsay and opinion evidence tendered by the
prosecution. Petitioner argues, as ground for the writ of
habeas corpus, that Article 25 1 of the Articles of War pro-
hibited the reception in evidence by the commission of
depositions on behalf of the prosecution in a capital case,
and that Article 38 6 prohibited the reception of hearsay
and of opinion evidence.
5Article 25 provides: "A duly authenticated deposition taken upon
reasonable notice to the opposite party may be read in evidence before
any military court or commission in any case not capital, or in any pro-
ceeding before a court of inquiry or a military board, . . . Provided,
That testimony by deposition may be adduced for the defense in capi-
tal cases."
8 Article 38 provides: "The President may, by regulations, which he
may modify from time to time, prescribe the procedure, including

modes of proof, in cases before courts-martial, courts of inquiry, mili-
tary commissions, and other military tribunals, which regulations shall
insofar as he shall deem practicable, apply the rules of evidence gener-
ally recognized in the trial of criminal cases in the district courts of the
United States: Provided, That nothing contrary to or inconsistent with
these articles shall be so prescribed: . . ."
IN RE YAMASHITA.
We think that neither Article 25 nor Article 38 is ap-

plicable to the trial of an enemy combatant by a military
commission for violations of the law of war. Article 2 of
the Articles of War enumerates "the persons . . . subject
to these articles," who are denominated, for purposes of the
Articles, as "persons subject to military law." In general,
the persons so enumerated are members of our own Army
and of the personnel accompanying the Army. Enemy
combatants are not included among them. Articles 12,13
and 14, before the adoption of Article 15 in 1916, made all
"persons subject to military law" amenable to trial by
courts-martial for any offense made punishable by the
Articles of War. Article 12 makes triable by general court-
martial "any other person who by the law of war is subject
to trial by military tribunals." Since Article 2, in, its 1916
form, includes some persons who, by the law of war, were,
prior to 1916, triable by military commission, it was feared
by the proponents of the 1916 legislation that in the ab-
sence of a saving provision, the authority given by Articles
12, 13 and 14 to try such persons before courts-martial
might be construed to deprive the non-statutory military
commission of a portion of what was considered to be its
traditional jurisdiction. To avoid this, and to preserve
that jurisdiction intact, Article 15 was added to the Arti-
cles.7 It declared that "The provisions of these articles
7 General Crowder, the Judge Advocate General, who appeared be-
fore Congress as sponsor for the adoption of Article 15 and the ac-
companying amendment of Article 25, in explaining the purpose of
Article 15, said:
"Article 15 is new. We have included in article 2 as subject to
military law a number of persons who are also subject to trial by
military commission. A military commission is our common-law
war court. It has no statutory existence, though it is recognized
by statute law. As long as the articles embraced them in the des-
ignation 'persons subject to military law,' and provided that they
might be tried by court-martial, I was afraid that, having made
a special provision for their trial by court-martial, [Arts. 12, 13,
and 14] it might be held that the provision operated to exclude
trials by military commission and other war courts; so this new
article was introduced: . . ." (Sen. R. 130, 64th Cong., 1st Sess.,
p. 40.)
OCTOBER TERM, 1945.
conferring jurisdiction upon courts-martial shall not be

construed as depriving military commissions . . . of con-
current jurisdiction in respect of offenders or offenses
that . . . by the law of war may be triable by such mili-
tary commissions."
By thus recognizing military commissions in order to
preserve their traditional jurisdiction over enemy combat-
ants unimpaired by the Articles, Congress gave sanction, as
we held in Ex parte Quirin,to any use of the military com-
mission contemplated by the common law of war. But it
did not thereby make subject to the Articles of War persons
other than those defined by Article 2 as being subject to the
Articles, nor did it confer the benefits of the Articles upon
such persons. The Articles recognized but one kind of
military commission, not two. But they sanctioned the
use of that one for the trial of two classes of persons, to one
of which the Articles do, and to the other of which they do
not, apply in such trials. Being of this latter class, peti-
tioner cannot claim the benefits of the Articles, which are
applicable only to the members of the other class. Peti-
tioner, an enemy combatant, is therefore not a person made
subject to the Articles of War by Article 2, and the military
commission before which he was tried, though sanctioned,
and its jurisdiction saved, by Article 15, was not convened
by virtue of the Articles of War, but pursuant to the
common law of war. It follows that the Articles of War,
including Articles 25 and 38, were not applicable to peti-
tioner's trial and imposed no restrictions upon the proce-
dure to be followed. The Articles left the control over the
procedure in such a case where it had previously been, with
the military command.
Petitioner further urges that by virtue of Article 63 of
the Geneva Convention of 1929,47 Stat. 2052, he is entitled
to the benefits afforded by the 25th and 38th Articles of
War to members of our own forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war
IN RE YAMASHITA.
I Opinion of the Court.
only by the same courts and according to the same proce-

dure as in the case of persons belonging to the armed forces
of the detaining Power." Since petitioner is a prisoner
of war, and as the 25th and 38th Articles of War apply to
the trial of any person in our own armed forces, it is said
that Article 63 requires them to be applied in the trial of
petitioner. But we think examination of Article 63 in its
setting in the Convention plainly shows that it refers to
sentence "pronounced against a prisoner of war" for an
offense committed while a prisoner of war, and not for a
violation of the law of war committed while a combatant.
Article 63 of the Convention appears in part 3, entitled
"Judicial Suits," of Chapter 3, "Penalties Applicable to
Prisoners of War," of § V, "Prisoners' Relations with the
Authorities," one of the sections of Title III, "Cap-
tivity." All taken together relate only to the conduct
and control of prisoners of war while in captivity as such.
Chapter 1 of § V, Article 42 deals with complaints of pris-
oners of war because of the conditions of captivity. Chap-
ter 2, Articles 43 and 44, relates to those of their number
chosen by prisoners of war to represent them.
Chapter 3 of § V, Articles 45 through 67, is entitled "Pen-
alties Applicable to Prisoners of .War." Part 1 of that
chapter, Articles 45 through 53, indicate what acts of pris-
oners of war, committed while prisoners, shall be consid-
ered offenses, and defines to some extent the punishment
which the detaining power may impose on account of such
offenses? Punishment is of two kinds-"disciplinary" and
1Part 1 of Chapter 3, "General Provisions," provides in Articles 45
and 46 that prisoners of war are subject to the regulations in force in
the armies of the detaining power, that punishments other than those
provided "for the same acts for soldiers of the national armies" may
not be imposed on prisoners of war, and that "Collective punishment
for individual acts" is forbidden. Article 47 provides that "Acts consti-
tuting an offense against discipline, and particularly attempted escape,
shall be verified immediately; for all prisoners of war, commissioned
OCTOBER TERM, 1945.
"judicial," the latter being the more severe. Article 52

requires that leniency be exercised in deciding whether an
offense requires disciplinary or judicial punishment. Part
2 of Chapter 3 is entitled "Disciplinary Punishments," and
further defines the extent of such punishment, and the
mode in which it may be imposed. Part 3, entitled "Ju-
dicial Suits," in which Article 63 is found, describes the
procedure by which "judicial" punishment may be im-
posed. The three parts of Chapter 3, taken together, are
thus a comprehensive description of the substantive of-
fenses which prisoners of war may commit during their
imprisonment, of the penalties which may be imposed on
account of such offenses, and of the procedure by which
guilt may be adjudged and sentence pronounced.
We think it clear, from the context of these recited pro-
visions, that part 3, and Article 63, which it contains, apply
only to judicial proceedings directed against a prisoner of
war for offenses committed while a prisoner of war. Sec-
or not, preventive arrest shall be reduced to the absolute minimum.
Judicial proceedings against prisoners of war shall be conducted as
rapidly as the circumstances permit . . . In all cases, the duration
of preventive imprisonment shall be deducted from the disciplinary or
judicial punishment inflicted . .
Article 48 provides that prisoners of war, after having suffered "the
judicial or disciplinary punishment which has been imposed on them,"
are not to be treated differently from other prisoners, but provides that
"prisoners punished as a result of attempted escape may be subjected
to special surveillance." Article 49 recites that prisoners "given dis-
ciplinary punishment may not be deprived of the prerogatives attached
to their rank." Articles 50 and 51 deal with escaped prisoners who
have been retaken or prisoners who have attempted to escape. Article
52 provides: "Belligerents shall see that the competent authorities
exercise the greatest leniency in deciding the question of whether an
infraction committed by a prisoner of war should be punished by dis-
ciplinary or judicial measures. This shall be the case especially when
it is a question of deciding on acts in connection with escape or at-
tempted escape .... A prisoner may not be punished more than once
because of the same act or the same count."
IN RE YAMASHITA.
tion V gives no indication that this part was designed to

deal with offenses other than those referred to in parts 1
and 2 of Chapter 3.
We cannot say that the commission, in admitting evi-
dence to which objection is now made, violated any act of
Congress, treaty or military command defining the com-
mission's authority. For reasons already stated we hold
that the commission's rulings on evidence and on the mode
of conducting these proceedings against petitioner are not
reviewable by the courts, but only by the reviewing mili-
tary authorities. From this viewpoint it is unnecessary to
consider what, in other situations, the Fifth Amendment
might require, and as to that no intimation one way or the
other is to be implied. Nothing we have said is to be taken
as indicating any opinion on the question of the wisdom of
considering such evidence, or whether the action of a mili-
tary tribunal in admitting evidence, which Congress or
controlling military command has directed to be excluded,
may be drawn in question by petition for habeas corpus or
prohibition.
Effect of failure to give notice of the trialto the protect-
ing power. Article 60 of the Geneva Convention of July
27, 1929, 47 Stat. 2051, to which the United States and
Japan were signatories, provides that "At the opening of a
judicial proceeding directed against a prisoner of war, the
detaining Power shall advise the representative of the pro-
tecting Power thereof as soon as possible, and always be-
fore the date set for the opening of the trial." Petitioner
relies on the failure to give the prescribed notice to the
protecting power 1 to establish want of authority in the
commission to proceed with the trial.
9 Switzerland, at the time of the trial, was the power designated by

Japan for the protection of Japanese prisoners of war detained by the
United States, except in Hawaii. U. S. Dept. of State Bull., Vol. XIII,
No. 317, p. 125.
OCTOBER TERM, 1945.
For reasons already stated we conclude that Article 60 of

the Geneva Convention, which appears in part 3, Chapter
3, § V, Title III of the Geneva Convention, applies only to
persons who are subjected to judicial proceedings for
offenses committed while prisoners of war."
10 One of the items of the bill of particulars, in support of the charge
against petitioner, specifies that he permitted members of the armed
forces uder his command to try and execute three named and other
prisoners of war, "subjecting to trial without prior notice to a repre-
sentative of the protecting power, without opportunity to defend, and
without counsel; denying opportunity to appeal from the sentence
rendered; failing to hotify the protecting power of the sentence
pronounced; and executing a death sentence without communicating
to the representative of the protecting power the nature and circum-
stances of the offense charged." It might be suggested that if Article
60 is inapplicable to petitioner it is inapplicable in the cases specified,
and that hence he could not be lawfully held or convicted on a charge"
of failing to require the notice, provided for in Article 60, to be given.
As the Government insists, it does not appear from the charge and
specifications that the prisoners in question were not charged with of-
fenses committed by them as prisoners rather than with offenses against
the law of war committed by them as enemy combatants. But apart
from this consideration, independently of the notice requirements of the
Geneva Convention, it is a violation of the law of war, on which there
could be a conviction if supported by evidence, to inflict capital punish-
ment on prisoners of war without affording to them opportunity to
make a defense. 2 Winthrop, supra, *434-435, 1241; Article 84, Ox-
ford Manual, Laws and Customs of War on Land; U. S. War Dept.,
Basic Field Manual, Rules of Land Warfare (1940) par. 356; Lieber's
Code, G. 0. No. 100 (1863) Instructions for the Government of
Armies of the United States in the Field, par. 12; Spaight, War
Rights on Land, 462, n.
Further, the commission, in making its findings, summarized as fol-
lows the charges, on which it acted, in three classes, any one of which,
independently of the others if supported by evidence, would be suffi-
cient to. support the conviction: (1) execution or massacre without
trial and maladministration generally of civilian internees and prison-
ers of war; (2) brutalities committed upon the civilian population, and
(3) burning and demolition, without adequate military necessity, of a
IN RE YAMASHITA.
It thus appears that the order convening the commission

was a lawful order, that the commission was lawfully con-
stituted, that petitioner was charged with violation of the
law of war, and that the commission had authority to
proceed with the trial, and in doing so did not violate any
military, statutory or constitutional command. We have
considered, but find it unnecessary to discuss, other con-
tentions which we find to be without merit. We therefore
conclude that the detention of petitioner for trial and his
detention upon his conviction, subject to the prescribed
review by the military authorities, were lawful, and that
the petition for certiorari, and leave to file in this Court
large number of homes, places of business, places of religious worship,
hospitals, public buildings and educational institutions.
The commission concluded: "(1) That a series of atrocities and other
high crimes have been committed by members of the Japanese armed
forces" under command of petitioner "against people of the United
States, their allies and dependencies . . .; that they were not sporadic
in nature but in many cases were methodically supervised by Japanese
officers and noncommissioned officers"; (2) that during the period in
question petitioner "failed to provide effective control of . . . [his]
troops, as was required by the circumstances." The commission said:
". where murder and rape and vicious, revengeful actions are wide-
spread offenses, and there is no effective attempt by a commander to
discover and control the criminal acts, such a commander may be held
responsible, even criminally liable, for the lawless acts of his troops,
depending upon their nature and the circumstances surrounding
them."
The commission made no finding of non-compliance with the Geneva
Convention. Nothing has been brought to our attention from which
we could conclude that the alleged non-compliance with Article 60 of
the Geneva Convention had any relation to the commission's finding of
a series of atrocities committed by members of the forces under peti-
tioner's command, and that he failed to provide effective control of his
troops, as was required by the circumstances; or which could support
the petitions for habeas corpus on the ground that petitioner had been
charged with or convicted for failure to require the notice prescribed
by Article 60 to be given.
OCTOBER TERM, 1945.
MURPHY, J., dissenting. 327 U. S.
petitions for writs of habeas corpus and prohibition should

be, and they are
Denied.
MR. JUSTICE JACKSON took no part in the consideration
or decision of these cases.
MR. JUSTICE MURPHY, dissenting.
The significance of the issue facing the Court today
cannot be overemphasized. An American military com-
mission has been established to try a fallen military com-
mander of a conquered nation for an alleged war crime.
The authority for such action grows out of the exercise of
the power conferred upon Congress by Article I, § 8, Cl. 10
of the Constitution to "define and punish . . . Offences
against the Law of Nations . . ." The grave issue raised
by this case is whether a military commission so established
and so authorized may disregard the procedural rights of an
accused person as guaranteed by the Constitution, espe-
cially by the due process clause of the Fifth Amendment.
The answer is plain. The Fifth Amendment guarantee
of due process of law applies to "any person" who is ac-
cused of a crime by the Federal Government or any of its
agencies. No exception is made as to those who are
accused of war crimes or as to those who possess 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.
The immutable rights of the individual, including those
secured by the due process clause of the Fifth Amendment,
belong not alone to the members of those nations that excel
on the battlefield or that subscribe to the democratic ide-
ology. They belong to every person in the world,
victor
or vanquished, whatever may be his race, color or beliefs.
They rise above any status of belligerency or outlawry.
They survive any popular passion or frenzy of the moment.
No court or legislature or executive, not even the mightiest
IN RE YAMASHITA.
1 MURPHY, J., dissenting.
army in the world, can ever destroy them. Such is the uni-
versal and indestructible nature of the rights which the due
process clause of the Fifth Amendment recognizes and pro-
tects when life or liberty is threatened by virtue of the
authority of the United States.
The existence of these rights, unfortunately, is not al-
ways respected. They are often trampled under by those
who are motivated by hatred, aggression or fear. But in
this nation individual rights are recognized and protected,
at least in regard to governmental action. They cannot
be ignored by any branch of the Government, even the
military, except under the most extreme and urgent
circumstances.
The failure of the military commission to obey the dic-
tates of the due process requirements of the Fifth Amend-
ment is apparent in this case. The petitioner was the com-
mander of an army totally destroyed by the superior power
of this nation. While under heavy and destructive attack
by our forces, his troops committed many brutal atrocities
and other high crimes. Hostilities ceased and he volun-
tarily surrendered. At that point he was entitled, as an
individual protected by the due process clause of the Fifth
Amendment, to be treated fairly and justly according to the
accepted rules of law and procedure. He was also entitled
to a fair trial as to any alleged crimes and to be free from
charges of legally unrecognized crimes that would serve
only to permit his accusers to satisfy their desires for
revenge.
A military commission was appointed to try the peti-
ti6ner for an alleged war crime. The trial was ordered to
be held in territory over which the United States has com-
plete sovereignty. No military necessity or other emer-
gency demanded the suspension of the safeguards of due
process. Yet petitioner was rushed to trial under an im-
proper charge, given insufficient time to prepare an ade-
quate defense, deprived of the benefits of some of the most
OCTOBER TERM, 1945.
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 com-
mitted a recognized violation of the laws of war. He was
not charged with personally participating in the acts of
atrocity or with ordering or condoning their commission.
Not even knowledge of these crimes was attributed to him.
It was simply alleged that he unlawfully disregarded and
failed to discharge his duty as commander to control the
operations of the members of his command, permitting
them to commit the acts of atrocity. The recorded annals
of warfare and the established principles of international
law afford not the slightest precedent for such a charge.
This indictment in effect permitted the military commis-
sion to make the crime whatever it willed, dependent upon
its biased view as to petitioner's duties and his disregard
thereof, a practice reminiscent of that pursued in certain
less respected nations in recent years.
In my opinion, such a procedure is unworthy of the tra-
ditions of our people or of the immense sacrifices that they
have made to advance the common ideals of mankind.
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 the procedure
sanctioned today. No one in a position of command in an
army, from sergeant to general, can escape those implica-
tions. 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. But even
more significant will be the hatred and ill-will growing out
of the application of this unprecedented procedure. That
has been the inevitable effect of every method of punish-
ment disregarding the element of personal culpability.
The effect in this instance, unfortunately, will be magni-
fied infinitely, for here we are dealing with the rights of
man on an international level. To subject an enemy bel-
IN RE YAMASHITA.
ligerent to an unfair trial, to charge him with an unrecog-

nized crime, or to vent on him our retributive emotions
only antagonizes the enemy nation and hinders the recon-
ciliation necessary to a peaceful world.
That there were brutal atrocities inflicted upon the
helpless Filipino people, to whom tyranny is no stranger,
by Japanese armed forces under the petitioner's command
is undeniable. Starvation, execution or massacre without
trial, torture, rape, murder and wanton 'destruction of
property were foremost among the outright violations of
the laws of war and of the conscience of a civilized world.
That just punishment should be meted out to all those
responsible for criminal acts of this nature is also beyond
dispute. But these factors do not answer the problem in
this case. They do not justify the abandonment of our
devotion to justice in dealing with a fallen enemy com-
mander. To conclude otherwise is to admit that the
enemy has lost the battle but has destroyed our ideals.
War breeds atrocities. From the earliest conflicts of
recorded history to the global struggles of modern times
inhumanities, lust and pillage have been the inevitable
by-products of man's resort to force and arms. Unfortu-
nately, such despicable acts have a dangerous tendency to
call forth primitive impulses of vengeance and retaliation
among the victimized peoples. The satisfaction of such
impulses in turn breeds resentment and fresh tension.
Thus does the spiral of cruelty and hatred grow.
If we are ever to develop an orderly international com-
munity based upon a recognition of human dignity it is of
the utmost importance that the necessary punishment of
those guilty of atrocities be as free as possible from the
ugly stigma of revenge and vindictiveness. Justice must
be tempered by compassion rather than by vengeance. In
this, the first case involving this momentous problem ever
to reach this Court, our responsibility is both lofty and diffi-
cult. We must insist, within the confines of our proper
jurisdiction, that the highest standards of justice be applied

in this trial of an enemy commander conducted under the
authority of the United States. Otherwise stark retribu-
tion will be free to masquerade in a cloak of false legalism.
And the hatred and cynicism engendered by that retribu-
tion will supplant the great ideals to which this nation is
dedicated.
This Court fortunately has taken the first and most im-
portant step toward insuring the supremacy of law and
justice in the treatment of an enemy belligerent accused
of violating the laws of war. Jurisdiction properly has
been asserted to inquire "into the cause of restraint of lib-
erty" of such a person. 28 U. S. C. § 452. Thus the ob-
noxious doctrine asserted by the Government in this case,
to the effect that restraints of liberty resulting from mili-
tary trials of war criminals are political matters completely
outside the arena of judicial review, has been rejected fully
and unquestionably. This does not mean, of course, that
the foreign affairs and policies of the nation are proper sub-
jects of judicial inquiry. But when the liberty of any per-
son is restrained by reason of the authority of the United
States the writ of habeas corpus is available to test the
legality of that restraint, even though direct court review
of the restraint is prohibited. The conclusive presump-
tion must be made, in this country at least, that illegal
restraints are unauthorized and unjustified by any foreign
policy of the Government and that commonly accepted
juridical standards are to be recognized and enforced. On
that basis judicial inquiry into these matters may proceed
within its proper sphere.
The determination of the extent of review of war trials
calls for judicial statesmanship of the highest order. The
ultimate nature and scope of the writ of habeas corpus are
within the discretion of the judiciary unless validly circum-
scribed by Congress. Here we are confronted with a use
of the writ under circumstances novel in the history of the
IN RE YAMASHITA.
I MURPHY, J., dissenting.
Court. For my own part, I do not feel that we should be

confined by the traditional lines of review drawn in con-
nection with the use of the writ by ordinary criminals who
have direct access to the judiciary in the first instance.
Those held by the military lack any such access; conse-
quently the judicial review available by habeas corpus
must be wider than usual in order that proper standards of
justice may be enforceable.
But for the purposes of this case I accept the scope of
review recognized by the Court at this time. As I under-
stand it, the following issues in connection with war crim-
inal trials are reviewable through the use of the writ of
habeas corpus: (1) whether the military commission was
lawfully created and had authority to try and to convict
the accused of a war crime; (2) whether the charge against
the accused stated a violation of the laws of war; (3)
whether the commission, in admitting certain evidence,
violated any law or military command defining the com-
mission's authority in that respect; and (4) whether the
commission lacked jurisdiction because of a failure to give
advance notice to the protecting power as required by
treaty or convention.
The Court, in my judgment, demonstrates conclusively
that the military commission was lawfully created in this
instance and that petitioner could not object to its power
to try him for a recognized war crime. Without pausing
here to discuss the third and fourth issues, however, I find
it impossible to agree that the charge against the peti-
tioner stated a recognized violation of the laws of war.
It is important, in the first place, to appreciate the back-
ground of events preceding this trial. From October 9,
1944, to September 2, 1945, the petitioner was the Com-
manding General of the 14th Army Group of the Imperial
Japanese Army, with headquarters in the Philippines.
The reconquest of the Philippines by the armed forces of
the United States began approximately at the time when
OCTOBER TERM, 1945.
the petitioner assumed this command. Combined with a

great and decisive sea battle, an invasion was made on the
island of Leyte on October 20, 1944. "In the six days of
the great naval action the Japanese position in the Philip-
pines had become extremely critical. Most of the service-
able elements of the Japanese Navy had been committed
to the battle with disastrous results. The strike had mis-
carried, and General MacArthur's land wedge was firmly
implanted in the vulnerable flank of the enemy . . .
There were 260,000 Japanese troops scattered over the
Philippines but most of them might as well have been on
the other side of the world so far as the enemy's ability to
shift them to meet the American thrusts was concerned.
If General MacArthur succeeded in establishing himself in
the Visayas where he could stage, exploit, and spread un-
der cover of overwhelming naval and air superiority, noth-
ing could prevent him from overrunning the Philippines."
Biennial Report of the Chief of Staff of the United States
Army, July 1, 1943, to June 30, 1945, to the Secretary of
War, p. 74.
By the end of 1944 the island of Leyte was largely in
American hands. And on January 9, 1945, the island of
Luzon was invaded. "Yamashita's inability to cope with
General MacArthur's swift moves, his desired reaction to
the deception measures, the guerrillas, and General Ken-
ney's aircraft combined to plaqe the Japanese in an im-
possible situation. The enemy was forced into a piece-
meal commitment of his troops." Ibid., p. 78. It was at
this time and place that most of the alleged atrocities took
place. Organized resistance around Manila ceased on
February 23. Repeated land and air assaults pulverized
the enemy and within a few months there was little left
of petitioner's command except a few remnants which
had gathered for a last stand among the precipitous
mountains.
As the military commission here noted, "The Defense
established the difficulties faced by the Accused with re-
IN RE YAMASHITA.
spect not only to the swift and overpowering advance of

American forces, but also to the errors of his predecessors,
weaknesses in organization, equipment, supply with espe-"
cial reference to food and gasoline, training, communica-
tion, discipline and morale of his troops. It was alleged
that the sudden assignment of Naval and Air Forces to his
tactical command presented almost insurmountable diffi-
culties. This situation was followed, the Defense con-
tended, by failure to obey his orders to withdraw troops
from Manila, and the subsequent massacre of unarmed
civilians, particularly by Naval forces. Prior to the Luzon
Campaign, Naval forces had reported to a separate minis-
try in the Japanese Government and Naval Commanders
may not have been receptive or experienced in this in-
stance with respect to a joint land operation under a single
commander who was designated from the Army Service."
The day of final reckoning for the enemy arrived in Au-
gust, 1945. On September 3, the petitioner surrendered
to the United States Army at Baguio, Luzon. He imme-
diately became a prisoner of war and was interned in
prison in conformity with the rules of international law.
On September 25, approximately three weeks after sur-
rendering, he was served with the charge in issue in this
case. Upon service of the charge he was removed from
the status of a prisoner of war and placed in confinement
as an accused war criminal. Arraignment followed -on
October 8 before a military commission specially appointed
for the case. Petitioner pleaded not guilty. He was also
served on that day with a bill of particulars alleging 64
crimes by troops under his command. A supplemental
bill alleging 59 more crimes by his troops was filed on Oc-
tober 29, the same day that the trial began. No continu-
ance was allowed for preparation of a defense as to the
supplemental bill. The trial continued uninterrupted
until December 5, 1945. On December 7 petitioner was
found guilty as charged and was sentenced to be hanged.
The petitioner was accused of having "unlawfully dis-

regarded 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." The bills of particulars further alleged that
specific acts of atrocity were committed by "members of
the armed forces of Japan under the command of the
accused." Nowhere was it alleged that the petitioner per-
sonally committed any of the atrocities, or that he ordered
their commission, or that he had any knowledge of the
commission thereof by members of his command.
The findings of the military commission bear out this
absence of any direct personal charge against the peti-
tioner. The commission merely found that atrocities and
other high crimes "have been committed by members of
the Japanese armed forces under your command . . . that
they were not sporadic in nature but in many cases were
methodically supervised by Japanese officers and noncom-
missioned officers; . . . That during the period in ques-
tion you failed to provide effective control of your troops
as was required by the circumstances."
In other words, read against the background of military
events in the Philippines subsequent to October 9, 1944,
these charges amount to this: "We, the victorious Ameri-
can 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 atroc-
ities were committed by your disorganized troops, Be-
cause these atrocities were so widespread we will not
bother to charge or prove that you committed, ordered or
IN RE YAMASHITA.
condoned any. of them. We will assume that they must

have resulted from your inefficiency and negligence as a
commander. In short, we charge you with the crime of
inefficiency in controlling your troops. We will judge the
discharge of your duties by the disorganization which we
ourselves created in large part. Our standards of judg-
ment 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. To use the very ineffi-
ciency and disorganization created by the victorious
forces as the primary basis for condemning officers of the
defeated armies bears no resemblance to justice or to
military reality.
International law makes no attempt to define the duties
of a commander of an army under constant and over-
whelming assault; nor does it impose liability under such
circumstances for failure to meet the ordinary responsi-
bilities of command. The omission is understandable.
Duties, as well as ability to control troops, vary according
to the nature and intensity of the particular battle. To
find an unlawful deviation from duty under battle condi-
tions requires difficult and speculative calculations. Such
calculations become highly untrustworthy when they are
made by the victor in relation to the actions of a van-
quished commander. Objective and realistic norms of
conduct are then extremely unlikely to be used in forming
a judgment as to deviations from duty. The probability
that vengeance will form the major part of the victor's
judgment is an unfortunate but inescapable fact. So great
is that probability that international law refuses to recog-
nize such a judgment as a basis for a war crime, however
fair the judgment may be in a particular instance. It is
this consideration that undermines the charge against the
petitioner in this case. The indictment permits, indeed
compels, the military commission of a victorious nation to
sit in judgment upon the military strategy and actions of

the defeated enemy and to use its conclusions to determine
the criminal liability of an enemy commander. Life and
liberty are made to depend upon the biased will of the vic-
tor rather than upon objective standards of conduct.
The Court's reliance upon vague and indefinite refer-
ences in certain of the Hague Conventions and the Geneva
Red Cross Convention is misplaced. Thus the statement
in Article 1 of the Annex to Hague Convention No. IV of
October 18, 1907, 36 Stat. 2277, 2295, to the effect that the
laws, rights and duties of war apply to military and volun-
teer corps only if they are "commanded by a person re-
sponsible for his subordinates," has no bearing upon the
problem in this case. Even if it has, the clause "responsi-
ble for his subordinates" fails to state to whom the respon-
sibility is owed or to indicate the type of responsibility
contemplated. The phrase has received differing inter-
pretations by authorities on international law. In Op-
penheim, International Law (6th ed., rev. by Lauterpacht,
1940, vol. 2, p. 204, fn. 3) it is stated that "The meaning
of the word 'responsible' . . . is not clear. It probably
means 'responsible to some higher authority,' whether
the person is appointed from above or elected from be-
low; . . ." Another authority has stated that the word
"responsible" in this particular context means "presuma-
bly to a higher authority," or "Possibly it merely means
one who controls his subordinates and who therefore can
be called to account for their acts." Wheaton, Interna-
tional Law (7th ed., by Keith, London, 1944, p. 172, fn.
30). Still another authority, Westlake, International
Law (1907, Part II, p. 61), states that "Probably the re-
sponsibility intended is nothing more than a capacity of
exercising effective control." Finally, Edmonds and Op-
penheim, Land Warfare (1912, p. 19, par. 22) state that it
is enough "if the commander of the corps is regularly or
temporarily commissioned as an officer or is a person of
IN RE YAMASHITA.
1 MuRPHY, J., dissenting.
position and authority . . ." It seems apparent beyond

dispute that the word "responsible" was not used in this
particular Hague Convention to hold the commander of a
defeated army to any high standard of efficiency when he
is under destructive attack; nor was it used to impute to
him any criminal responsibility for war crimes committed
by troops under his command under such circumstances.
The provisions of the other conventions referred to by
the Court are on their face equally devoid of relevance
or significance to the situation here in issue. Neither
Article 19 of Hague Convention No. X, 36 Stat. 2371, 2389,
nor Article 26 of the Geneva Red Cross Convention of
1929, 47 Stat. 2074, 2092, refers to circumstances where
the troops of a commander commit atrocities while under
heavily adverse battle conditions. Reference is also made
to the requirement of Article 43 of the Annex to Hague
Convention No. IV, 36 Stat. 2295, 2306, that the com-
mander of a force occupying enemy territory "shall take
all the measures in his power to restore, and ensure, as
far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the coun-
try." But the petitioner was more than a commander
of a force occupying enemy territory. He was the leader
of an army under constant and devastating attacks by a
superior re-invading force. This provision is silent as to
the responsibilities of a commander under such conditions
as that.
Even the laws of war heretofore recognized by this na-
tion fail to impute responsibility to a fallen commander
for excesses committed by his disorganized troops while
under attack. Paragraph 347 of -the War Department
publication, Basic Field Manual, Rules of Land Warfare,
FM 27-10 (1940), states the principal offenses under the
laws of war recognized by the United States. This in-
cludes all of the atrocities which the Japanese troops were
alleged to have committed in this instance. Originally
MuRPHY, J., dissenting. 327 U. S.
this paragraph concluded with the statement that "The

commanders ordering the commission of such acts, or
under whose authority they are committed by their troops,
may be punished by the belligerent into whose hands they
may fall." The meaning of the phrase "under whose au-
thority they are committed" was not clear. On Novem-
ber 15, 1944, however, this sentence was deleted and a
new paragraph was added relating to the personal liability
of those who violate the laws of war. Change 1, FM
27-10. The new paragraph 345.1 states that "Individ-
uals and organizations who violate the accepted laws and
customs of war may be punished therefor. However, the
fact that the acts complained of were done pursuant to
order of a superior or government sanction may be taken
into consideration in determining culpability, either by
way of defense or in mitigation of punishment. The per-
son giving such orders may also be punished." 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 of-
fenses or who order or direct their commission. Such was
not the allegation here. Cf. Article 67 of the Articles of
War, 10 U. S. C. § 1539.
There are numerous instances, especially with reference
to the Philippine Insurrection in 1900 and 1901, where
commanding officers were found to have violated the laws
of war by specifically ordering members of their command
to commit atrocities and other war crimes. Francisco
Frani, G. 0. 143, Dec. 13, 1900, Hq. Div. Phil.; Eugenio
Fernandez and Juan Soriano, G. 0. 28, Feb. 6, 1901, Hq.
Div. Phil.; Ciriaco Cabungal, G. 0. 188, Jul. 22, 1901, Hq.
Div. Phil.; Natalio Valencia, G. 0. 221, Aug. 17, 1901, Hq.
Div. Phil.; Aniceta Angeles, G. 0. 246, Sept. 2, 1901, Hq.
Div. Phil.; Francisco Braganza, G. 0. 291, Sept. 26, 1901,
Hq. Div. Phil.; Lorenzo Andaya, G. 0. 328, Oct. 25, 1901,
Hq. Div. Phil. And in other cases officers have been held
IN RE YAMASHITA.
I MURPHY, J., dissenting.
liable where they knew that a crime was to be committed,

had the power to prevent it and failed to exercise that
power. Pedro Abad Santos, G. 0. 130, June 19, 1901, Hq.
Div. Phil. Cf. Pedro A. Cruz, G. 0. 264, Sept. 9,1901, Hq.
Div. Phil. In no recorded instance, however, has the mere
inability to control troops under fire or attack by superior
forces been made the basis of a charge of violating the laws
of war.
The Government claims that the principle that com-
manders in the field are bound to control their troops has
been applied so as to impose liability on the United States
in international arbitrations. Case of Jeannaud (1880),
3 Moore, International Arbitrations (1898) 3000; Case of
The Zafiro (1910), 5 Hackworth, Digest of International
Law (1943) 707. The difference between arbitrating
property rights and charging an individual with a crime
against the laws of war is too obvious to require elabora-
tion. But even more significant is the fact that even these
arbitration cases fail to establish any principle of liability
where troops are under constant assault and demoralizing
influences by attacking forces. The same observation ap-
plies to the common law and statutory doctrine, referred
to by the Government, that one who is under a legal duty
to take protective or preventive action is guilty of crimi-
nal homicide if he willfully or negligently omits to act and
death is proximately caused. State v. Harrison,107 N. J.
L. 213, 152 A. 867; State v. Irvine, 126 La. 434, 52 So.
567; Holmes, The Common Law, p. 278. No one denies
that inaction or negligence may give rise to liability, civil
or criminal. But it is quite another thing to say that the
inability to control troops under highly competitive and
disastrous battle conditions renders one guilty of a war
crime in the absence of personal culpability. Had there
been some element of knowledge or direct connection with
the atrocities the problem would be entirely different.
Moreover, it must be remembered that we are not dealing
OCTOBER TERM, 1945.
MuRPHY, J., dissenting. 327 U. S.
here with an ordinary tort or criminal action; precedents

in those fields are of little if any value. Rather we are
concerned with a proceeding involving an international
crime, the treatment of which may have untold effects
upon the future peace of the world. That fact must be
kept uppermost in our search for precedent.
The only conclusion I can draw is that the charge made
against the petitioner is clearly without precedent in in-
ternational law or in the annals of recorded military his-
tory. This is not to say that enemy commanders may
escape punishment for clear and unlawful failures to pre-
vent atrocities. But that punishment should be based
upon charges fairly drawn ,in light of established rules of
international law and recognized concepts of justice.
But the charge in this case, as previously noted, was
speedily drawn and filed but three weeks after the peti-
tioner surrendered. The trial proceeded with great dis-
patch without allowing the defense time to prepare an
adequate case. Petitioner's rights under the due process
clause of the Fifth Amendment were grossly and openly
violated without any justification. All of this was done
without any thorough investigation and prosecution of
those immediately responsible for the atrocities, out of
which might have come some proof or indication of per-
sonal culpability on petitioner's part. Instead the loose
charge was made that great numbers of atrocities had been
committed and that petitioner was the commanding offi-
cer; hence he must have been guilty of disregard of duty.
Under that charge the commission was free to establish
whatever standard of duty on petitioner's part that it de-
sired. By this flexible method a victorious nation may
convict and execute any or all leaders of a vanquished foe,
depending upon the prevailing degree of vengeance and
the absence of any objective judicial review.
At a time like this when emotions are understandably
high it is difficult to adopt a dispassionate attitude toward
IN RE YAMASHITA.
I RUTLEDGE, J., dissenting.
a case of this nature. Yet now is precisely the time when

that attitude is most essential. While peoples in other
lands may not share our beliefs as to due process and the
dignity of the individual, we are not free to give effect to
our emotions in reckless disregard of the rights of others.
We live under the Constitution, which is the embodiment
of all the high hopes and aspirations of the new world.
And it is applicable in both war and peace. We must act
accordingly. Indeed, an uncurbed spirit of revenge and
retribution, masked in formal legal procedure for pur-
poses of .dealing with a fallen enemy commander, can do
more lasting harm than all of the atrocities giving rise to
that spirit. The people's faith in the fairness and ob-
jectiveness of the law can be seriously undercut 'by that
spirit. The fires of nationalism can be further kindled.
And the hearts of all mankind can be embittered and filled
with hatred, leaving forlorn and impoverished the noble
ideal of malice toward none and charity to all. These are
the reasons that lead me to dissent in these terms.
MR. JUSTICE RUTLEDGE, dissenting.
Not with ease does one find his views at odds with the
Court's in a matter of this character and gravity. Only
the most deeply felt convictions could force one to differ.
That reason alone leads me to do so now, against strong
considerations for withholding dissent.
More is at stake than General Yamashita's fate. There
could be no possible sympathy for him if he is guilty of the
atrocities for which his death is sought. But there can be
and should be justice administered according to law. In
this stage of war's aftermath it is too early for Lincoln's
great spirit, best lighted in the Second Inaugural, to have
wide hold for the treatment of foes. It is not too early,
it is never too early, for the nation steadfastly to follow its
great constitutional traditions, none older or more univer-
sally protective against unbridled power than due process
OCTOBER TERM, 1945.
RUTLEDGE, J., dissenting. 327 U. S.
of law in the trial and punishment of men, that is, of all

men, whether citizens, aliens, alien enemies or enemy bel-
ligerents. It can become too late.
This long-held attachment marks the great divide be-
tween our enemies and ourselves. Theirs was a phi-
losophy of universal force. Ours is one of universal law,
albeit imperfectly made flesh of our system and so dwell-
ing among us. Every departure weakens the tradition,
whether it touches the high or the low, the powerful or the
weak, the triumphant or the conquered. If we need not
or cannot be magnanimous, we can keep our own law on
the plane from which it has not descended hitherto and to
which the defeated foes' never rose.
With ill deference to the opposing views of my brethren,
whose attachment to that tradition needless to say is no
less than my own, I cannot believe in the face of this record
that the petitioner has had the fair trial our Constitution
and laws command. Because I cannot reconcile what has
occurred with their measure, I am forced to speak. At
bottom my concern is that we shall not forsake in any case,
whether Yamashita's or another's, the basic standards of
trial which, among other guaranties, the nation fought to
keep; that our system of military justice shall not alone
among all our forms of judging be above or beyond the
fundamental law or the control of Congress within its orbit
of authority; and that this Court shall not fail in its part
under the Constitution to see that these things do not
happen.
This trial is unprecedented in our history. Never be-
fore have we tried and convicted an enemy general for
action taken during hostilities or otherwise in the course of
military operations or duty. Much less have we con-
demned one for failing to take action. The novelty is not
lessened by the trial's having taken place after hostilities
ended and the enemy, including the accused, had surren-
dered. Moreover, so far as the time permitted for our
IN RE YAMASHITA.
1 RUTLEDGE, J., dissenting.
consideration has given opportunity, I have not been able

to find precedent for the proceeding in the system of any
nation founded in the basic principles of our constitutional
democracy, in the laws of war or in other internationally
binding authority or usage.
The novelty is legal as well as historical. We are on
strange ground. Precedent is not all-controlling in law.
There must be room for growth, since every precedent has
an origin. But it is the essence of our tradition for judges,
when they stand at the end of the marked way, to go for-
ward with caution keeping sight, so far as they are able,
upon the great landmarks left behind and the direction
they point ahead. If, as may be hoped, we are now to
enter upon a new era of law in the world, it becomes more
important than ever before for the nations creating that
system to observe their greatest traditions of administer-
ing justice, including this one, both in their own judging
and in their new creation. The proceedings in this case
veer so far from some of our time-tested road signs that
I cannot take the large strides validating them would
demand.
I.
It is not in our tradition for anyone to be charged with

crime which is defined after his conduct, alleged to be crim-
inal, has taken place; ' or in language not sufficient to in-
form him of the nature of the offense or to enable him to
make defense.2 Mass guilt we do not impute to individ-
uals, perhaps in any case but certainly in none where the
person is not charged or shown actively to have partici-
pated in or knowingly to have failed in taking action to
Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U. S.
221.
2 Armour Packing Co. v. United States, 209 U. S. 56, 83-84; United
States v. Cohen Grocery Co., 255 U. S. 81; ef. Screws v. United States,
325 U. S. 91. See note 17 and text.
prevent the wrongs done by others, having both the duty

and the power to do so.
It is outside our basic scheme to condemn men without
giving reasonable opportunity for preparing defense; 1 in
capital or other serious crimes to convict on "official docu-
ments . . .; affidavits; . . . documents or translations
thereof; diaries . .. , photographs, motion picture films,
and. . . newspapers" ' or on hearsay, once, twice or thrice
removed,5 more particularly when the documentary evi-
dence or some of it is prepared ex parte by the prosecuting
authority and includes not only opinion but conclusions
of guilt. Nor in such cases do we deny the rights of con-
frontation of witnesses and cross-examination.'
Our tradition does not allow conviction by tribunals both
authorized and bound' by the instrument of their creation
to receive and consider evidence which is expressly ex-
cluded by Act of Congress or by treaty obligation; nor is it
in accord with our basic concepts to make the tribunal,
specially constituted for the particular trial, regardless of
those prohibitions the sole and exclusive judge of the cred-
1Hawk v. Olson, 326 U. S. 271; Snyder v. Massachusetts, 291 U. S.
97, 105: "What may not be taken away is notice of the charge and an
adequate opportunity to be heard in defense of it." See Part III.
4The commission's findings state: "We have received for analysis
and evaluation 423 exhibits consisting of official documents of the
United States Army, The United States State Department, and the
Commonwealth of the Philippines; affidavits; captured enemy docu-
ments or translations thereof; diaries taken from Japanese personnel,
photographs, motion picture films, and Manila newspapers." See
notes 19 and 20.
Concerning the specific nature of these elements in the proof, the
issues to which they were directed, and their prejudicial effects, see
text infra and notes in Part II.
5Queen v. Hepburn, 7 Cranch 290; Donnelly v. United States, 228
U. S. 243, 273. See Part II; note 21.
6
Motes v. United States, 178 U. S. 458; Paoniv. United States, 281
F. 801. See Parts II, and III.
See Part II at notes !.0, 19; Part III.
IN RE YAMASHITA.
ibility, probative value and admissibility of whatever may

be tendered as evidence.
The matter is not one merely of the character and ad-
missibility of evidence. It goes to the very competency of
the tribunal to try and punish consistently with the Con-
stitution, the laws of the United States made in pursuance
thereof, and treaties made under the nation's authority.
All these deviations from the fundamental law, and
others, occurred in the course of constituting the commis-
sion, the preparation for trial and defense, the trial itself,
and therefore, in effect, in the sentence imposed. Whether
taken singly in some instances as departures from specific
constitutional mandates or in totality as in violation of the
Fifth Amendment's command that no person shall be de-
prived of life, liberty or property without due process of
law, a trial so vitiated cannot withstand constitutional
scrutiny.
One basic protection of our system and one only, peti-
tioner has had. He has been represented by able counsel,
officers of the army he fought. Their difficult assignment
has been done with extraordinary fidelity, not only to the
accused, but to their high conception of military justice,
always to be administered in subordination to the Consti-
tution and consistent Acts of Congress and treaties. But,
as will appear, even this conceded shield was taken away in
much of its value, by denial of reasonable opportunity for
them to perform their function.
On this denial and the commission's invalid constitution
specifically, but also more generally upon the totality of
departures from constitutional norms inherent in the idea
of a fair trial, I rest my judgment that the commission was
without jurisdiction from the beginning to try or punish
the petitioner and that, if it had acquired jurisdiction then,
its power to proceed was lost in the course of what was done
before and during trial.
Only on one view, in my opinion, could either of these
conclusions be avoided. This would be that an enemy
OCTOBER TERM, 1945.
belligerent in petitioner's position is altogether beyond

the pale of constitutional protection, regardless of the fact
that hostilities had ended and he had surrendered with
his country. The Government has so argued, urging that
we are still at war with Japan and all the power of the mil-
itary effective during active hostilities in theatres of com-
bat continues in full force unaffected by the events of
August 14, 1945, and after.
In this view the action taken here is one of military
necessity, exclusively within the authority of the Presi-
dent as Commander-in-Chief and his military subordi-
nates to take in warding off military danger and subject
to no judicial restraint on any account, although some-
what inconsistently it is said this Court may "examine"
the proceedings generally.
As I understand the Court, this is in substance the ef-
fect of what has been done. For I cannot conceive any
instance of departure from our basic concepts of fair
trial, if the failures here are not sufficient to produce that
effect.
We are technically still at war, because peace has not
been negotiated finally or declared. But there is no longer
the danger which always exists before surrender and armi-
stice. Military necessity does not demand the same meas-
ures. The nation may be more secure now than at any
time after peace is officially concluded. In these facts is
one great difference from Ex parte Quirin, 317 U. S. 1.
Punitive action taken now can be effective only for the
next war, for purposes of military security. And enemy
aliens, including belligerents, need the attenuated protec-
tions our system extends to them more now than before
hostilities ceased or than they may after a treaty of peace
is signed. Ample power there is to punish them or others
for crimes, whether under the laws of war during its course
or later during occupation. There can be no question of
that. The only question is how it shall be done, consist-
IN RE YAMASHITA.
ently with universal constitutional commands or outside

their restricting effects. In this sense I think the Con-
stitution follows the flag.
The other thing to be mentioned in order to be put aside
is that we have no question here of what the military
might have done in a field of combat. There the maxim
ab6ut 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 hos-
tilities end.
I turn now to discuss some of the details of what has
taken place. My basic difference is with the Court's view
that provisions of the Articles of War and of treaties are
not made applicable to this proceeding and with its ruling
that, absent such applicable provisions, none of the things
done so vitiated the trial and sentence as to deprive the
commission of jurisdiction.
My brother MURPHY has discussed the charge with re-
spect to the substance of the crime. With his conclusions
in this respect I agree. My own primary concern will be
with the constitution of the commission and other matters
taking place in the course of the proceedings, relating
chiefly to the denial of reasonable opportunity to prepare
petitioner's defense and the sufficiency of the evidence,
together with serious questions of admissibility, to pr6ve
an offense, all going as I think to the commission's
jurisdiction.
Necessarily only a short sketch can be given concerning
each matter. And it may be stated at the start that, al-
though it was ruled in Ex parte Quirin, supra, that this
Court had no function to review the evidence, it was not
there or elsewhere determined that it could not ascertain
whether conviction is founded upon evidence expressly ex-
cluded-by Congress or treaty; nor does the Court purport
to do so now.
II.
Invalidity of the Commission's Constitution.
The fountainhead of the commission's authority was
General MacArthur's directive by which General Styer
was ordered to and pursuant to which he did proceed with
constituting the commission.8 The directive was acc6m-
panied by elaborate and detailed rules and regulations pre-
scribing the procedure and rules of evidence to be followed,
of which for present purposes § 16, set forth below,9 is
crucial.
8
The line of authorization within the military hierarchy extended
from the President, through the Joint Chiefs of Staff and General Mac-
Arthur, to General Styer, whose order of September 25th and others
were made pursuant to and in conformity with General MacArthur's
directive. The charge was prepared by the Judge Advocate General's
Department of the Army. There is no dispute concerning these facts
or that the directive was binding on General Styer and the commission,
though it is argued his own authority as area commanding general was
independently sufficient to sustain what was done.
9 "16. Evidence.-a. The commission shall admit such evidence as
in its opinion would be of assistance in proving or disproving the
charge, or such as in the commission's opinion would have probative
value in the mind of a reasonable man. In particular, and without
limiting in any way the scope of the foregoing general rules, the fol-
lowing evidence may be admitted:
(1) Any document which appears to the commission to have
been signed or issued officially by any officer, department, agency,
or member of the armed forces of any government, without proof
of the signature or of the issuance of the document.
(2) Any report which appears to the commission to have been
signed or issued by the International Red Cross or a member
thereof, or by a medical doctor or any medical service personnel,
or by an investigator or intelligence officer, or by any other person
whom the commission finds to have been acting inthe course of his
duty when making the report.
(3) Affidavits, depositions, or other statements taken by an
officer detailed for that purpose by military authority.
(4) Any diary, letter or other document appearing to the com-
mission to contain information relating to the charge.
(5) A copy of any document or other secondary evidence of its
contents, if the commission believes that the original is not avail-
able or cannot be produced without undue delay. ..."
IN RE YAMASHITA.
RUTLEDGE, J., dissenting.
Section 16, as will be noted, permits reception of docu-

ments, reports, affidavits, depositions, diaries, letters, cop-
ies of documents or other secondary evidence of their
contents, hearsay, opinion evidence and conclusions, in
fact of anything which in the commission's opinion "would
be of assistance in proving or disproving the charge," with-
out any of the usual modes of authentication.
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 admissibil-
ity and probative value of evidence was concerned, the
directive made the commission a law unto itself.
It acted accordingly. As against insistent and persist-
ent objection to the reception of all kinds of "evidence,"
oral, documentary and photographic, for nearly every kind
of defect under any of the usual prevailing standards for
admissibility and probative value, the commission not
only consistently ruled against the defense, but repeatedly
stated it was bound by the directive to receive the kinds
of evidence it specified,"0 reprimanded counsel for contin-
uing to make objection, declined to hear further objections,
and in more than one instance during the course of the
proceedings reversed its rulings favorable to the defense,
where initially it had declined to receive what the prose-
cution offered. Every conceivable kind of statement, ru-
mor, report, at first, second, third or further hand, written,
printed or oral, and one "propaganda" film were allowed
to come in, most of this relating to atrocities committed
10In one instance the president of the commission said: "The rules
and regulations which guide this Commission are binding upon the
Commission and agencies provided to assist the Commission. ...
We have been authorized to receive and weigh such evidence as we
can consider to have probative value, and further comments by the
Defense on the right which we have to accept this evidence is de-
cidedly out of order." But see note 19.
by troops under petitioner's command throughout the sev-

eral thousand islands of the Philippine Archipelago dur-
ing the period of active hostilities covered by the American
forces' return to and recapture of the Philippines."
The findings, reflect the character of the proof and the
charge. The statement quoted above 2 gives only a nu-
merical idea of the instances in which ordinary safeguards
in reception of written evidence were ignored. In addition
to these 423 "exhibits," the findings state the commission
"has heard 286 persons during the course of this trial, most
of whom have given eye-witness accounts of what they
endured or what they saw."
But there is not a suggestion in the findings that peti-
tioner personally participated in, was present at the occur-
rence of, or ordered any of these incidents, with the excep-
tion of the wholly inferential suggestion noted below. Nor
is there any express finding that he knew of any one of the
incidents in particular or of all taken together. The only
inferential findings that he had knowledge, or that the
commission so found, are in the statement that the "crimes
alleged to have been permitted by the Accused in violation
of the laws of war may be grouped into three categories"
set out below," in the further statement that "the Prose-
"Cf. text infra at note 19 concerning the prejudicial character of
the evidence.
12 Note 4.
13 Namely, "(1) Starvation, execution or massacre without trial

and maladministration generally of civilian internees and prisoners of
war; (2) Torture, rape, murder and mass execution of very large
numbers of residents of the Philippines, including women and children
and members of religious orders, by starvation, beheading, bayoneting,
clubbing, hanging, burning alive, and destruction by explosives; (3)
Burning and demolition without adequate military necessity of large
numbers of homes, places of business, places of religious worship,
hospitals, public buildings, and educational institutions. In point of
time, the offenses extended throughout the period the Accused was
in command of Japanese troops in the Philippines. In point of area,
the crimes extended throughout the Philippine Archipelago, although
by far the most of the incredible acts occurred on Luzon."
IN RE YAMASHITA. 51
cution presented evidence to show that the crimes were so

extensive and widespread, both as to time and area, 4 that
they must either have been wilfully permitted by the Ac-
cused, or secretly ordered by" him; and in the conclusion
of guilt and the sentence." (Emphasis added.) Indeed
the commission's ultimate findings 11 draw no express con-
clusion of knowledge, but state only two things: (1) the
fact of widespread atrocities and crimes; (2) that peti-
tioner "failed to provide effective control . . . as was
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. It affects
14 Cf. note 13.
15 In addition the findings set forth that captured orders of sub-
ordinate officers gave proof that "they, at least," ordered acts "leading
directly to" atrocities; that "the proof offered to the Commission
alleged criminal neglect . . . as well as complete failure by the higher
echelons of command to detect and prevent cruel and inhuman treat-
ment accorded by local commanders and guards"; and that, although
the "Defense established the difficulties faced by the Accused" with
special reference among other things to the discipline and morale of
his troops under the "swift and overpowering advance of American
forces," and notwithstanding he had stoutly maintained his complete
ignorance of the crimes, still he was an officer of long experience; his
assignment was one of broad responsibility; it was his duty "to dis-
cover and control" crimes by his troops, if widespread, and therefore
"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 Islands;
that they were not sporadic in nature but in many cases were methodi-
cally supervised by Japanese officers and noncommissioned 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." (Emphasis added.)
16 See note 15.
RUTLEDGE, J., dissenting. 327 U. S.,
the very gist of the offense, whether that was wilful, in-
formed and intentional omission to restrain and control
troops known by petitioner to be committing crimes or
was only a negligent failure on his part to discover this
and take whatever measures he then could to stop the
conduct.
Although it is impossible to determine from what is
before us whether petitioner in fact has been convicted of
one or the other or of both these things," the case has been
1 The charge, set forth at the end of this note, is consistent with
either theory--or both-and thus ambiguous, as were the findings.
See note 15. The only word implying knowledge was "permitting."
If "wilfully" is essential to constitute a crime or charge of one, other-
wise subject to the objection of "vagueness," cf. Screws v. United
States, 325 U. S. 91, it would seem that "permitting" alone would
hardly be sufficient to charge "wilful and intentional" action or omis-
sion; and, if taken to be sufficient to charge knowledge, it would follow
necessarily that the charge itself was not drawn to state and was in-
sufficient to support a finding of mere failure to detect or discover the
criminal conduct of others.
At the most, "permitting" could charge knowledge only by inference
or implication. And reasonably the word could be taken in the con-
text of the charge to mean "allowing" or "not preventing," a meaning
consistent with absence of knowledge and mere failure to discover. In
capital cases such ambiguity is wholly out of place. The proof was
equally ambiguous in the same respect, so far as we have been in-
formed, and so, to repeat, were the findings. The use of "wilfully,"
even qualified by a "must have," one time only in the findings hardly
can supply the absence of that or an equivalent word or language in
the charge or in the proof to support that essential element in the
crime.
The charge was as follows: "Tomoyuki Yamashita, General Impe-
rial Japanese Army, between 9 October 1944 and 2 September 1945, at
Manila and at other places in the Philippine Islands, while commander
of armed forces of Japan at war with the United States of America and
its allies, unlawfully disr'egarded 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."
IN RE YAMASHITA.
presented on the former basis and, unless as is noted below

there is fatal duplicity, it must be taken that the crime
charged and sought to be proved was only the failure, with
knowledge, to perform the commander's function of con-
trol, although the Court's opinion nowhere expressly de-
clares that knowledge was essential to guilt or necessary to
be set forth in the charge.
It is in respect to this feature especially, quite apart
from the reception of unverified rumor, report, etc., that
perhaps the greatest prejudice arose from the admission
of untrustworthf, unverified, unauthenticated evidence
which could not be probed by cross-examination or
other means of testing credibility, probative value or
authenticity.
Counsel for the defense have informed us in the brief
and at the argument that the sole proof of knowledge in-
troduced at the trial was in the form of ex parte affidavits
and depositions. Apart from what has been excerpted
from the record in the applications and the briefs, and such
portions of the record as I have been able to examine, it
has been impossible for me fully to verify counsel's state-
ment in this respect. But the Government has not dis-
puted it; and it has maintained that we have no right to
examine the record upon any question "of evidence." Ac-
cordingly, without concession to that view, the statement
of counsel is taken for the fact. And in that state of
things petitioner has been convicted of a crime in which
knowledge is an essential element, with no proof of
knowledge other than what would be inadmissible in any
other capital case or proceeding under our system, civil
or military, and which furthermore Congress has expressly
commanded shall not be received in such cases tried by
military commissions and other military tribunals. 8
Moreover counsel assert in the brief, and this also is not
denied, that the sole proof made of certain of the specifi-
8 Cf. text infra Part IV.
RuTLEDGm, J., dissenting. 327 U. S.
cations in the bills of particulars was by ex parte affidavits.

It was in relation to this also vital phase of the proof that
there occurred one of the commission's reversals of its
earlier rulings in favor of the defense,19 a fact in itself
conclusive demonstration of the necessity to the prosecu-
tion's case of the prohibited type of evidence and of its
prejudicial effects upon the defense.
These two basic elements in the proof, namely, proof of
knowledge of the crimes and proof of the specifications in
the bills, that is, of the atrocities themselves, constitute the
most important instances perhaps, if not the most fla-
19 On November 1, early in the trial, the president of the commis-
sion stated: "I think the Prosecution should consider the desirability
of striking certain items. The Commission feels that there must be
witnesses introduced on each of the specifications or items. It has no
objection to considering affidavits, but it is unwilling to form an opinion
of a particular item based solely on an affidavit. Therefore, until
evidence is introduced, these particular exhibits are rejected." (Em-
phasis added.)
Later evidence of the excluded type was offered, to introduction of
which the defense objected on various grounds including the prior
ruling. At the prosecution's urging the commission withdrew to de-
liberate. Later it announced that "after further consideration, the
Commission reverses that ruling [of November 1] and affirms its
prerogative of receiving and considering affidavits or depositions, if
it chooses to do so, for whatever probative value the Commission be-
lieves they may have, without regard to the presentation of some
partially corroborative oral testimony." It then added: "The Com-
mission directs the Prosecution again to introduce the affidavits or
depositions then in question, and other documents of a similar nature
which the Prosecution stated had been prepared for introduction."
(Emphasis added.)
Thereafter this type of evidence was consistently received and
again, by the undisputed statement of counsel, as the sole proof of
many of the specifications of the bills, a procedure which they char-
acterize correctly in my view as having "in effect, stripped the pro-
ceeding of all semblance of a trial and converted it into an ex parte
investigation."
IN RE YAMASHITA.
grant,2° of departure not only from the express command

of Congress against receiving such proof but from the
whole British-American tradition of the common law and
the Constitution. Many others occurred, which there is
neither time nor space to mention.2'
Petitioner asserts, and there can be no reason to doubt,
that by the use of all this forbidden evidence he was de-
prived 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 com-
mitted in fact by troops under his command or by naval
or air force troops not under his command at the time
alleged; to ascertain whether the crimes attested were iso-
lated acts of individual soldiers or were military acts com-
mitted by troop units acting under supervision of officers;
and, finally, whether "in short, there was such a 'pattern'
of" conduct as the prosecution alleged and its whole theory
of the crime and the evidence required to be made out.
He points out in this connection that the commission
based its decision on a finding as to the extent and number
20 This perhaps consisted in the showing of the so-called "propa-
ganda" film, "Orders from Tokyo," portraying scenes of battle de-
struction in Manila, which counsel say "was not in itself seriously
objectionable." Highly objectionable, inflammatory and prejudicial,
however, was the accompanying sound track with comment that the
film was "evidence which will convict," mentioning petitioner specifi-
cally by name.
21 Innumerable 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 made after ex parte investi-
gations by the War Crimes Branch of the Judge Advocate General's
Department, which it was and is urged had the effect of "putting the
prosecution on the witness stand" and of usurping the commission's
function as judge of the law and the facts. It is said also that some
of the reports were received as the sole proof of some of the speci-
fications.
OCTOBER TERM, 1945.
of the atrocities and that this of itself establishes the

prejudicial effect of the affidavits, etc., and of the denial
resulting from their reception of any means of probing the
evidence they contained, including all opportunity for
cross-examination. Yet it is said there is no sufficient
showing of prejudice. The effect could not have been
other than highly prejudicial. The matter is not one
merely of "rules of evidence." It goes, as will appear more
fully later, to the basic right of defense, including some fair
opportunity to test probative value.
Insufficient as this recital is to give a fair impression of
what was done, it is enough to show that this was no trial
in the traditions of the common law and the Constitution.
If the tribunal itself was not strange to them otherwise, it
was in its forms and modes of procedure, in the character
and substance of the evidence it received, in the denial of
all means to the accused and his counsel for testing the
evidence, in the brevity and ambiguity of its findings made
upon such a mass of material and, as will appear, in the
denial of any reasonable opportunity for preparation of
the defense. Because this last deprivation not only is
important in itself, but is closely related to the departures
from all limitations upon the character of and modes of
making the proof, it will be considered before turning to
the important legal questions relating to whether all these
violations of our traditions can be brushed aside as not for-
bidden by the valid Acts of Congress, treaties and the Con-
stitution, in that order. If all these traditions can be so
put away, then indeed will we have entered upon a new
but foreboding era of law.
III.
Denial of Opportunity to PrepareDefense.
Petitioner surrendered September 3, 1945, and was in-
terned as a prisoner of war in conformity with Article 9
IN RE YAMASHITA.
of the Geneva Convention of July 27, 1929.22 He was

served with the charge on September 25 and put in con-
finement as an accused war criminal. On October 8 he
was arraigned and pleaded not guilty. On October 29 the
trial began and it continued until December 7, when sen-
tence was pronounced, exactly four years almost to the
hour from the attack on Pearl Harbor.
On the day of arraignment, October 8, three weeks be-
fore the trial began, petitioner was served with a bill of
particulars specifying 64 items setting forth a vast number
of atrocities and crimes allegedly committed by troops
under his command." The six officers appointed as de-
fense counsel thus had three weeks, it is true at the prose-
cution's suggestion a week longer than they sought at first,
to investigate and prepare to meet all these items and the
large number of incidents they embodied, many of which
had occurred in distant islands of the archipelago. There
is some question whether they then anticipated the full
scope and character of the charge or the evidence they
would have to meet. But, as will appear, they worked
night and day at the task. Even so it would have
been impossible to do thoroughly, had nothing more
occurred.
But there was more. On the first day of the trial, Oc-
tober 29, the prosecution filed a supplemental bill of par-
22 Also with Paragraph 82 of the Rules of Land Warfare.
28 Typical of the items are allegations that members of the armed
forces of Japan under the command of the accused committed the

acts "During the months of October, November and December 1944
[of] brutally mistreating and torturing numerous unarmed noncom-
batant civilians at the Japanese Military Police Headquarters located
at Cortabitarte and Mabini Streets, Manila" and "On about 19 Feb-
ruary 1945, in the Town of Cuenca, Batangas Province, brutally mis-
treating, massacring and killing Jose M. Laguo, Esteban Magsamdol,
Jose Lanbo, Felisa Apuntar, Elfidio Lunar, Victoriana Ramo, and 978
other persons, all unarmed noncombatant civilians, pillaging and un-
necessary [sic], deliberately and wantonly devastating, burning and
destroying large areas of that town."
ticulars, containing 59 more specifications of the same

general character, involving perhaps as many incidents
occurring over an equally wide area.24 A copy had been
given the defense three days earlier. One item, No. 89,
charged that American soldiers, prisoners of war, had been
tried and executed without notice having been given to the
protecting power of the United States in accordance with
the requirements of the Geneva Convention, which it is
now argued, strangely, the United States was not required
to observe as to petitioner's trial.25
But what is more important is that defense counsel, as
28
they felt was their duty, at once moved for a continuance.
The application was denied. However the commission
indicated that if, at the end of the prosecution's presenta-
24 The supplemental bill contains allegations similar to those set out
in the original bill. See note 23. For example, it charged that mem-
bers of the armed forces of Japan under the command of the accused
"during the period from 9 October 1944 to about 1 February 1945, at
Cavite City, Imus, and elsewhere in Cavite Province," were permitted
to commit the acts of "brutally mistreating, torturing, and killing or
attempting to kill, without cause or trial, unarmed noncombatant
civilians."
25 See note 39 and text, Part V.
26 In support of the motion counsel indicated surprise by saying
that, though it was assumed two or three new specifications might be
added, there had been no expectation of 59 "about entirely different
persons and times." The statement continued:
"We have worked earnestly seven days a week in order to pre-
pare the defense on 64 specifications. And when I say 'prepare
the defense,' sir, I do not mean merely an affirmative defense, but
to acquaint ourselves with the facts so that we could properly
cross examine the Prosecution's witnesses.
"... 'In advance of trial' means: Sufficient time to allow the
Defense a chance to prepare its defense.
"We earnestly state that we must have this time in order to ade-
quately prepare a defense. I might add, sir, we think that this is
important to the Accused, but far more important than any rights
of this Accused, we believe, is the proposition that this Commis-
sion should not deviate from a fundamental American concept of
fairness .. "
IN RE YAMASHITA.
I RUTLEDGE, J.,. dissenting.
tion concerning the original bill, counsel should "believe

they require additional time . . ., the Commission will
consider such a motion at that time," before taking up the
items of the supplemental bill. Counsel again indicated,
without other result, that time was desired at once "as
much, if not more" to prepare for cross-examination "as
the Prosecution's case goes in" as to prepare affirmative
defense.
On the next day, October 30, the commission interrupted
the prosecutor to say it would not then listen to testimony
or discussion upon the supplemental bill. After colloquy
it adhered to its prior ruling and, in response to inquiry
from'the prosecution, the defense indicated it would re-
quire two weeks before it could proceed on the supple-
mental bill. On November 1 the commission ruled it
would not receive affidavits without corroboration by wit-
nesses on any specification, a ruling reversed four days
later.
On November 2, after the commission had received an
affirmative answer to its inquiry whether the defense was
prepared to proceed with an item in the supplemental bill
which the prosecution proposed to prove, it announced:
"Hereafter, then, unless there is no [sic] objection by the
Defense, the Commission will assume that you are pre-
pared to proceed with any items in the Supplemental
Bill." On November 8, the question arose again upon
the prosecution's inquiry as to when the defense would be
ready to proceed on the supplemental bill, the prosecutor
adding: "Frankly, sir, it took the War Crimes Commission
some three months to investigate these matters and I can-
not conceive of the Defense undertaking a similar investi-
gation with any less period of time." Stating it realized
"the tremendous task which we placed upon the Defense"
and its "determination to give them the time they require,"
the commission again adhered to its ruling of October 29.
Four days later the commission announced it would

grant a continuance "only for the most urgent and un-
avoidable reasons." 27
On November 20, when the prosecution rested, senior
defense counsel moved for a reasonable continuance, re-
calling the commission's indication that it would then con-
sider such a motion and stating that since October 29 the
defense had been "working day and night," with "no time
whatsoever to prepare any affirmative defense," since
counsel had been fully occupied trying "to keep up with
that new Bill of Particulars."
The commission thereupon retired for deliberation and,
on resuming its sessions shortly, denied the motion. Coun-
sel then asked for "a short recess of a day." The commis-
sion suggested a recess until 1: 30 in the afternoon. Coun-
sel responded this would not suffice. The commission
stated it felt "that the Defense should be prepared at least
on its opening statement," to which senior counsel an-
swered: "We haven't had time to do that, sir." The
commission then recessed until 8: 30 the following
morning.
Further comment is hardly required. Obviously the
burden placed upon the defense, in the short time allowed
for preparation on the original bill, was not only "tremen-
dous." In view of all the facts, it was an impossible one,
even though the time allowed was a week longer than
asked. But the grosser vice was later when the burden
was more than doubled by service of the supplemental bill
on the eve of trial, a procedure which, taken in connection
with the consistent denials of continuance and the commis-
sion's later reversal of its rulings favorable to the defense,
27The commission went on to question the need for all of the six
officers representing the defense to be present during presentation of
all the case, suggested one or two would be adequate and others
"should be out of the courtroom" engaged in other matters and strongly
suggested bringing in additional counsel in the midst of the trial, all
to the end that "need to request a continuance may not arise."
IN RE YAMASHITA.
was wholly arbitrary, cutting off the last vestige of ade-

quate chance to prepare defense and imposing a burden
the most able counsel could not bear. This sort of thing
has no place in our system of justice, civil or military.
Without more, this wide departure from the most elemen-
tary principles of fairness vitiated the proceeding. When
added to the other denials of fundamental right sketched
above, it deprived the proceeding of any semblance of trial
as we know that institution.
IV.
Applicability of the Articles of War.
The Court's opinion puts the proceeding and the peti-
tioner, in so far as any rights relating to his trial and con-
viction 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 limi-
tation and protection, respectively, by the Constitution.
I disagree as to both conclusions or effects.
The Court.rules that Congress has not made Articles 25
and 38 applicable to this proceeding. I 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. For the direc-
tive by which it was constituted, in the provisions of
§ 16,"8 was squarely in conflict with Articles 25 and 38 of
the Articles of War 29and therefore was void.
28 See note 9.
29 Article 25 is as follows: "A duly authenticated deposition taken
upon reasonable notice to the opposite party may be read in evidence
before any military court or commission in any case not capital, or in
any proceeding before a court of inquiry or a military board, if such
deposition be taken when the witness resides, is found, or is about to go
beyond the State, Territory, or district in which the court, commission,
or board is ordered to sit, or beyond the distance of one hundred miles
OCTOBER TERM, 1945.
Article 25 allows reading of depositions in evidence,

under prescribed conditions, in the plainest terms "before
any military court or commission in any case not capital,"
providing, however, that "testimony by deposition may
be adduced for the defense in capital cases." (Emphasis
added.) This language clearly and broadly covers every
kind of military tribunal, whether "court" or "commis-
sion." It covers all capital cases. It makes no exception
or distinction for any accused.
Article 38 authorizes the President by regulations to
prescribe procedure, including modes of proof, even more
all-inclusively if possible, "in cases before courts-martial,
courts of inquiry, military commissions, and other military
tribunals." Language could not be more broadly inclu-
sive. No exceptions are mentioned or suggested, whether
of tribunals or of accused persons. Every kind of mili-
tary body for performing the function of trial is covered.
That is clear from the face of the Article.
Article 38 moreover limits the President's power. He
is so far as practicable to prescribe "the rules of evidence
generally recognized in the trial of criminal cases in the
from the place of trial or hearing, or when it appears to the satisfac-
tion of the court, commission, board, or appointing authority that the
witness, by reason of age, sickness, bodily infirmity, imprisonment, or
other reasonable cause, is unable to appear and testify in person at the
place of trial or hearing: Provided,That testimony by deposition may
be adduced for the defense in capital cases." (Emphasis added.) 10
U. S. C. § 1496.
Article 38 reads: "The President may, by regulations, which he may
modify from time to time, prescribe the procedure, including modes of
proof, in cases before courts-martial,courts of inquiry, military com-
missions, and other military tribunals, which regulations shall insofar
as he shall deem practicable, apply the rules of evidence generally rec-
ognized in the trial of criminal cases in the district courts of the United
States: Provided, That nothing contrary to or inconsistent with these
articles shall be so prescribed:Provided further, That all rules made
in pursuance of this article shall be laid before the Congress annually."
(Emphasis added.) 10 U. S. C. § 1509.
IN RE YAMASHITA.
district courts of the United States," a clear mandate that

Congress intended all military trials to conform as closely
as possible to our customary procedural and evidentiary
protections, constitutional and statutory, for accused per-
sons. But there are also two unqualified limitations, one
"that nothing contrary to or inconsistent with these ar-
ticles [specifically here Article 25] shall be so prescribed";
the other "that all rules made in pursuance of this article
shall be laid before the Congress annually."
Notwithstanding these broad terms the Court, resting
chiefly on Article 2, concludes the petitioner was not
among the persons there declared to be subject to the
Articles of War and therefore the commission which tries
him is not subject to them. That Article does not cover
prisoners of war or war criminals. Neither does it cover
civilians in occupied territories, theatres of military op-
erations or other places under military jurisdiction within
or without the United States or territory subject to its
sovereignty, whether they be neutrals or enemy aliens,
even citizens of the United States, unless they are con-
nected in the manner Article 2 prescribes with our armed
forces, exclusive of the Navy.
The logic which excludes petitioner on the basis that
prisonersof war are not mentioned in Article 2 would ex-
clude all these. I strongly doubt the Court would go so
far, if presented with a trial like this in such instances.
Nor does it follow necessarily that, because some persons
may not be mentioned in Article 2, they can be tried with-
out regard to any of the limitations placed by any of the
other Articles upon military tribunals.
Article 2 in defining persons "subject to the articles of
war" was, I think, specifying those to whom the Articles
in general were applicable. And there is no dispute that
most of the Articles are not applicable to the petitioner.
It does not follow, however, and Article 2 does not provide,
that there may not be in the Articles specific provisions
covering persons other than those specified in Article 2.

Had it so provided, Article 2 would have been contradic-
tory not only of Articles 25 and 38 but also of Article 15
among others.
In 1916, when the last general revision of the Articles of
War took place, 0 for the first time certain of the Articles
were specifically made applicable to military commissions.
Until then they had applied only to courts-martial. There
were two purposes, the first to give statutory recognition to
the military commission without loss of prior jurisdiction
and the second to give those tried before military commis-
sions some of the more important protections afforded
persons tried by courts-martial.
In order to effectuate the first purpose, the Army pro-
posed Article 15.21 To effectuate the second purpose, Arti-
30 Another revision of the Articles of War took place in 1920. At
this time Article 15 was slightly amended.
In 1916 Article 15 was enacted to read: "The provisions of these
articles conferring jurisdiction upon courts-martial shall not be con-
strued as depriving military commissions, provost courts, or other mil-
itary tribunals of concurrent jurisdiction in respect of offenders or
offenses that by the law of war may be lawfully triable by such military
commissions, provost courts, or other military tribunals." (Em-
phasis added.)
The 1920 amendment put in the words "by statute or" before the
words "by the law of war" and omitted the word "lawfully."
8
"Speaking at the Hearings before the Committee on Military Af-
fairs, House of Representatives, 62d Cong., 2d Sess., printed as an
Appendix to S. Rep. 229, 63d Cong., 2d Sess., General Crowder said:
"The next article, No. 15, is entirely new, and the reasons for
its insertion in the code are these: In our War with Mexico two
war courts were brought into existence by orders of Gen. Scott,
viz, the military commission and the council of war. By the
military conmission Gen. Scott tried cases cognizable in time of
peace by civil courts, and by the council of war he tried offenses
against the laws of war. The council of war did not survive the
Mexican War period, and in our subsequent wars its jurisdiction
has been taken over by the military commission, which during the
Civil War period tried more than 2,000 cases. While the mili-
tary commission has not been formally authorized by statute, its
jurisdiction as a war court has been upheld by the Supreme
IN RE YAMASHITA. 65
Footnote 31--Continued.
Court of the United States. It is an institution of the greatest
importance in a period of war and should be preserved. In the
new code the jurisdiction of courts-martial has been somewhat
amplified by the introduction of the phrase 'Persons subject to
military law. There will be more instances in the future than in
the past when the jurisdiction of courts-martialwill overlap that
of the war courts, and the question would arise whether Congress
having vested jurisdiction by statute the common law of war
jurisdictionwas not ousted. I wish to make it perfectly plain by
the new article that in such cases the jurisdiction of the war court
is concurrent." S. Rep. No. 229, 63d Cong., 2d Sess., p. 53.
(Emphasis added.)
And later, in 1916, speaking before the Subcommittee on Military
Affairs of the Senate at their Hearings on S. 3191, a project for the
revision of-the Articles of War, 64th Cong., 1st Sess., printed as an
Appendix to S. Rep. 130, 64th Cong., 1st Sess., General Crowder ex-
plained at greater length:
"Article 15 is new. We have included in article 2 as subject
to military law a number of persons who are also subject to trial
by military commission. A military commission is our common-
law war court. It has no statutory existence, though it is recog-
nized by statute law. As long as the articles embraced them in
the designation 'persons subject to military law,' and provided
that they might be tried by court-martial, I was afraid that, hav-
ing made a special provision for their trial by court-martial, it
might be held that the provision operated to exclude trials by
military commission and other war courts; so this new article
was introduced .
"It just saves to these war courts the jurisdiction they now
have and makes it a concurrent jurisdiction with courts-martial,
so that the military commander in the field in time of war will be
at liberty to employ either form of court that happens to be con-
venient. Both classes of courts have the same procedure. For
the information of the committee and in explanation of these war
courts to which I have referred I insert here an explanation from
Winthrop's Military Law and Precedents-
"'The military commission-a war court-had its origin in
G. 0. 20, Headquarters of the Army at Tampico, February 19,
1847 (Gen. Scott). Its jurisdiction was confined mainly to crim-
inal offenses of the class cognizable by civil courts in time of
peace committed by inhabitants of the theater of hostilities. A
further war court was originated by Gen. Scott at the same time,
called "council of war," with jurisdiction to try the same classes
of persons for violations of the laws of war, mainly guerrillas.
These two jurisdictions were united in the later war court of the
Civil War and Spanish War periods, for which the general desig-
nation of "military commission" was retained. The military com-
mission was given statutory recognition in section 30, act of
cles 25 and 38 and several others were proposed. 2 But as

the Court now construes the Articles of War, they have no
application to military commissions before which alleged
offenders against the laws of war are tried. What the
Court holds in effect is that there are two types of military
commission, one to try offenses which might be cognizable
by a court-martial, the other to try war crimes, and that
Congress intended the Articles of War referring in terms
to military commissions without exception to be applica-
ble only to the first type.
March 3, 1863, and in various other statutes of that period. The
United States Supreme Court has acknowledged the validity of
its judgments (Ex parte Vallandigham, 1 Wall., 243, and Coleman
v. Tennessee, 97 U. S., 509). It tried more than 2,000 cases dur-
ing the Civil War and reconstruction period. Its composition,
constitution, and procedure follows the analogy of courts-martial.
Another war court is the provost court, an inferior court with ju-
risdiction assimilated to that of justices of the peace and police
courts; and other war courts variously designated "courts of con-
ciliation," "arbitrators," "military tribunals," have been convened
by military commanders in the exercise of the war power as
occasion and necessity dictated.'
"Yet, as I have. said, these war courts never have been formally
authorized by statute.
"Senator COLT. They grew out of usage and necessity?
"Gen. CROWDER. Out of usage and necessity. I thought it was
just as well, as inquiries would arise, to put this information in the
record." S. Rep. No. 130, 64th Cong., 1st Sess. (1916) p. 40.
(Emphasis added.)
Article 15 was also explained in the "Report of a committee on the
proposed revision of the articles of war, pursuant to instructions of
the Chief of Staff, March 10, 1915," included in Revision of the Ar-
ticles of War, Comparative Prints, etc., 1904-1920, J. A. G. 0., as
follows:
"A number of articles . . . of the revision have the effect of
gving courts-martial jurisdiction over certain offenders and of-
enses which, under the law of war or by statute, are also triable
by military commissions, provost courts, etc. Article 15 is in-
troduced for the purpose of making clear that in such cases a
court-martial has only a concurrent jurisdiction with such war
tribunals."
8A2Of course, Articles 25 and 38, at the same time that they gave
protection to defendants before military commissions, also provided
for the application by such tribunals of modem rules of procedure and
evidence.
IN RE YAMASHITA.
RuTLFmE, J., dissenting.
This misconceives both the history of military commis-

sions and the legislative history of the Articles of War.
There is only one kind of military commission. It is true,
as the history noted shows, that what is now called "the
military commission" arose from two separate military
courts instituted during the Mexican War. The first mil-
itary court, called by General Scott a "military commis-
sion," was given jurisdiction in Mexico over criminal
offenses of the class cognizable by civil courts in time of
peace. The other military court, called a "council of war,"
was given jurisdiction over offenses against the laws of war.
Winthrop, Military Law and Precedents (2d ed., reprinted
1920) *1298-1299. During the Civil War "the two juris-
dictions of the earlier commission and council respec-
tively ... [were] united in the ... war-court, for which
the general designation of 'military commission' was re-
tained as the preferable one." Winthrop, supra,at *1299.
Since that time there has been only one type of military
tribunal called the military commission, though it may
exercise different kinds of jurisdiction,3 3 according to the
circumstances under which and purposes for which it is
convened.
The testimony of General Crowder is perhaps the most
authoritative evidence of what was intended by the legis-
Winthrop, speaking of military commissions at the time he was
writing, 1896, says: "The offences cognizable by military commissions
may thus be classed as follows: (1) Crimes and statutory offences
cognizable by State or U. S. courts, and which would properly be tried
by such courts if open and acting; (2) Violations of the laws and
usages of war cognizable by military tribunals only; (3) Breaches of
military orders or regulations for which offenders are not legally triable
by court-martial under the Articles of war." (Emphasis added.)
Winthrop, at *1309. And cf. Fairman, The Law of Martial Rule (2d
ed. 1943): "Military commissions take cognizance of three categories
of criminal cases: offenses against the laws of war, breaches of mili-
tary regulations, and civil crimes which, where the ordinary courts
have ceased to function, cannot be tried normally." (Emphasis
added.) Fairman, 265-266. See also Davis, A Treatise on the Mili-
tary Law of the United States (1915) 309-310.
OCTOBER TERM, 1945.
lation, for he was its most active official sponsor, spending

years in securing its adoption and revision. Articles 15,
25 and 38 particularly are traceable to his efforts. His
concern to secure statutory recognition for military com-
missions was equalled by his concern that the statutory
provisions giving this should not restrict their preexisting
jurisdiction. He did not wish by securing additional juris-
diction, overlapping partially that of the court-martial, to
surrender other. Hence Article 15. That Article had one
purpose and one only. It was to make sure that the ac-
quisition of partially concurrent jurisdiction with courts-
martial should not cause loss of any other. And it was
jurisdiction, not procedure, ,.hich was covered by other
Articles, with which he and Congress were concerned in
that Article. It discloses no purpose to deal in any way
with procedure or to qualify Articles 25 and 38. And it is
clear that General Crowder at all times regarded all mili-
tary commissions as being governed by the identical pro-
cedure. In fact, so far as Articles 25 and 38 are concerned,
this seems obvious for all types of military tribunals. The
same would appear to be true of other Articles also, e. g.,
24 (prohibiting compulsory self-incrimination), 26, 27, 32
(contempts), all except the last dealing with procedural
matters.
Article 12 is especially significant. It empowers gen-
eral courts-martial to try two classes of offenders: (1)
"any person subject to military law," under the definition
of Article 2, for any offense "made punishable by these
articles"; (2) "and any other person who by the law of war
is subject to trial by military tribunals," not covered by
the terms of Article 2. (Emphasis added.) L
Article 12 thus, in conformity with Article 15, gives the
general court-martial concurrent jurisdiction of war crimes
and war criminals with military commissions. Neither it
nor any other Article states or indicates there are to be two
kinds of general courts-martial for trying war crimes; yet
IN RE YAMASHITA.
this is the necessary result of the Court's decision, unless

in the alternative that would be to imply that in exercis-
ing such jurisdiction there is only one kind of general
court-martial, but there are two or more kinds of military
commission, with wholly different procedures and with
the result that "the commander in the field" will not be
free to determine whether general court-martial or mili-
tary commission shall be used as the circumstances may
dictate, but must govern his choice by the kind of pro-
cedure he wishes to have employed.
The only reasonable and, I think, possible conclusion to
draw from the Articles is that the Articles which are in
terms applicable to military commissions are so uniformly
and those applicable to both such commissions and to
courts-martial when exercising jurisdiction over offenders
against the laws of war likewise are uniformly applicable.
and not diversely according to the person or offense being
tried.
Not only the face of the Articles, but specific statements
in General Crowder's testimony support this view. Thus
in the portion quoted above 34 from his 1916 statement,
after stating expressly the purpose of Article 15 to pre-
serve unimpaired the military commission's jurisdiction,
and to make it concurrent with that of courts-martial in
so far as the two would overlap, "so that the military com-
mander in the field in time of war will be at liberty to em-
ploy either form of court that happens to be convenient,"
he went on to say: "Both classes of courts have the same
procedure," a statement so unequivocal as to leave no
room for question. And his quotation from- Winthrop
supports his statement, namely: "Its [i. e., the military
commission's] composition, constitution and procedure
follow the analogy of courts-martial."
At no point in the testimony is there suggestion that
there are two types of military commission, one bound by
34 Note 31.
the procedural provisions of the Articles, the other wholly

free from their restraints or, as the Court strangely puts
the matter, that there is only one kind of commission, but
that it is bound or not bound by the Articles applicable in
terms, depending upon who is being tried and for what
offense; for that very difference makes the difference be-
tween one and two. The history and the discussion show
conclusively that General Crowder wished to secure and
Congress intended to give statutory recognition to all
forms of military tribunals; to enable commanding officers
in the field to use either court-martial or military commis-
sion as convenience might dictate, thus broadening to this
extent the latter's jurisdiction and utility; but at the same
time to preserve its full preexisting jurisdiction; and also
to lay down identical provisions for governing or providing
for the government of the procedure and rules of evidence
of every type of military tribunal, wherever and however
constituted."
5In addition to the statements of General Crowder with relation to
Article 15, set out in note 31 supra, see the following statements made
with reference to Article 25, in 1912 at a hearing before the Committee
on Military Affairs of the House: "We come now to article 25, which
relates to the admissibility of depositions. . . . It will be noted fur-
ther that the applicationof the old article has been broadened to in-
clude military commissions, courts of inquiry, and military boards.
"Mr. SWEET. Please explain what you mean by military com-
mission.
"Gen. CROWDER. That is our common law of war court, and was
referred to by me in a prior hearing. [The reference is to the
discussion of Article 15.] This war court came into existence
during the Mexican War, and was created by orders of Gen. Scott.
It had jurisdiction to try all cases usually cognizable in time of
peace by civil courts. Gen. Scott created another war court,
called the 'council of war,' with jurisdiction to try offenses against
the laws of war. The constitution, composition, and jurisdiction
of these courts have never been regulated by statute. The coun-
cil of war did not survive the Mexican War period, since which its
jurisdiction has been taken over by the military commission. The
military commission received express recognition in the recon-
struction acts, and its jurisdiction has been affirmed and sup-
ported by all our courts. It was extensively employed during the
IN RE YAMASHITA.
Finally, unless Congress was legislating with regard to

all military commissions, Article 38, which gives the Pres-
ident the power to "prescribe the procedure, including
modes of proof, in cases before courts-martial, courts of
inquiry, military commissions, and other military tribu-
nals," takes on a rather senseless meaning; for the Presi-
dent would have such power only with respect to those
military commissions exercising concurrent jurisdiction
with courts-martial.
All this seems so obvious, upon a mere reading of the
Articles themselves and the legislative history, as not to
require demonstration. And all this Congress knew, as
that history shows. In the face of that showing I cannot
accept the Court's highly strained construction, first, be-
cause I think it is in plain contradiction of the facts dis-
closed by the history of Articles 15, 25 and 38 as well as
their language; and also because that construction defeats
at least two of the ends General Crowder had in mind,
namely, to secure statutory recognition for every form of
military tribunal and to provide for them a basic uni-
Civil War period and also during the Spanish-American War. It
is highly desirable that this important war court should be con-
tinued to be governed as heretofore, by the laws of war rather
than by statute." S. Rep. No. 229, 63d Cong., 2d Sess., 59; cf. S.
Rep. 130, 64th Cong., 1st Sess., 54-55. (Emphasis added.) See
also Hearings before the Subcommittee of the Committee on Mil-
itary Affairs of the Senate on Establishment of Military Justice,
66th Cong., 1st Sess., 1182-1183.
Further evidence that procedural provisions of the Articles were in-
tended to apply to all forms of military tribunal is given by Article 24,
10 U. S. C. § 1495, which provides against compulsory self-incrimina-
tion "before a military court, commission, court of inquiry, or board,
or before an officer conducting an investigation." This article was
drafted so that "The prohibition should reach all witnesses, irrespec-
tive of the class of military tribunal before which they appear . .."
(Emphasis added.) Comparative Print showing S.3191 with the
Present Articles of War and other Related Statutes, and Explanatory
Notes, Printed for use of the Senate Committee on Military Affairs,
64th Cong., 1st Sess., 17, included in Revision of the Articles of War,
Comparative Prints, Etc., 1904-1920, J. A. G.0.
form mode of procedure or method of providing for their

procedure.
Accordingly, I think Articles 25 and 38 are applicable
to this proceeding; that the provisions of the governing
directive in § 16 are in direct conflict with. those Articles;
and for that reason the commission was invalidly con-
stituted, was without jurisdiction, and its sentence is
therefore void.
V.
The Geneva Convention of 1929.
If the provisions of Articles 25 and 38 were not ap-
plicable to the proceeding by their own force as Acts of
Congress, I think they would still be made applicable by
virtue of the terms of the Geneva Convention of 1929, in
particular Article 63. And in other respects, in my opin-
ion, the petitioner's trial was not in accord with that
treaty, namely, with Article 60.
The Court does not hold that the Geneva Convention
is not binding upon the United States and no such con-
tention has been made in this case. 6 It relies on other
36 We are informed that Japan has not ratified the Geneva Conven-
tion. See discussion of Article 82 in the paragraphs below. We are

also informed, however-and the record shows this at least as to
Japan-that at the beginning of the war both the United States and
Japan announced their intention to adhere to the provisions of that
treaty. The force of that understanding continues, perhaps with
greater reason if not effect, despite the end of hostilities. See note 40
and text.
Article 82 provides:
"The provisions of the present Convention must be respected
by the High Contracting Parties under all circumstances.
"In case, in time of war, one of the belligerents is not a party
to the Convention, its provisions shall nevertheless remain in
force as between the belligerents who are parties thereto."
It is not clear whether the Article means that during a war, when
one of the belligerents is not a party to the Convention, the provisions
must nevertheless be applied by all the other belligerents to the pris-
oners of war not only of one another but also of the power that was
IN RE YAMASHITA. 73
arguments to show that Article 60, which provides that

the protecting power shall be notified in advance of a ju-
dicial proceeding directed against a prisoner of war, and
Article 63, which provides that a prisoner of war may be
tried only by the same courts and according to the same
procedure as in the case of persons belonging to the armed
forces of the detaining power, are not properly invoked by
the petitioner. Before considering the Court's view that
these Articles are not applicable to this proceeding by
their terms, it may be noted that on his surrender peti-
tioner was interned in conformity with Article 9 of this
Convention.
not a party thereto or whether it means that they need not be applied
to soldiers of the nonparticipating party who have been captured.
If the latter meaning is accepted, the first paragraph would seem to
contradict the second.
"Legislative history" here is of some, if little, aid. A suggested
draft of a convention on war prisoners drawn up in advance of the
Geneva meeting by the International Committee of the Red Cross
(Actes de la Conf6rence Diplomatique de Geneve, edited by Des
Gouttes, pp. 21-34) provided in Article 92 that the provisions of the
Convention "ne cesseront d'6tre obligatories qu'au cas oi l'un des
Etats belligerents participant A la Convention se trouve avoir h com-
battre les forces armies d'un autre Etat que n'y serait par partie et
A l'6gard de cet Etat seulement." See Rasmussen, Code des Prison-
niers de Guerre (1931) 70. The fact that this suggested article was
not included in the Geneva, Convention would indicate that the na-
tions in attendance were avoiding a decision on this problem. But I
think it shows more, that is, it manifests an intention not to foreclose a
future holding that under the terms of the Convention a state is bound
to apply the provisions to prisoners of war of nonparticipating states.
And not to foreclose such a holding is to invite one. We should, in my
opinion, so hold, for reasons of security to members of our own armed
forces taken prisoner, if for no others.
Moreover, if this view is wrong and the Geneva Convention is not
strictly binding upon the United States as a treaty, it is strong evidence
of and should be held binding as representing what have becoma the
civilized rules of international warfare. Yamashita is as much en-
titled to the beneft of such rules as to the benefit of a binding treaty
which codifies them. See U. S. War Dept., Basic Field Manual, Rules
of Land Warfare (1940), par. 5-b.
The chief argument is that Articles 60 and 63 have ref-

erence only to offenses committed by a prisoner of war
while a prisoner of war and not to violations of the laws of
war committed while a combatant. This conclusion is
derived from the setting in which these Articles are placed.
I do not agree that the context gives any support to this
argument. The argument is in essence of the same type
as the argument the Court employs to nullify the applica-
tion of Articles 25 and 38 of the Articles of War by restrict-
ing their own broader coverage by reference to Article 2.
For reasons set forth in the margin," I think it equally
invalid here.
ST Title III of the Convention, which comprises Articles 7 to 67, is
called "Captivity." It contains § I, "Evacuation of Prisoners of
War" (Articles 7-8) ; § II, "Prisoners-of-War Camps" (Articles 9-26) ;
§ III, "Labor of Prisoners of War" (Articles 27-34); § IV, "External
Relations of Prisoners of War" (Articles 35-41); and § V, "Prisoners'
Relations with the Authorities" (Articles 42-67). Thus Title III
regulates all the various incidents of a prisoner of war's life while in
captivity.
Section V, with which we are immediately concerned, is divided into
three chapters. Chapter 1 (Article 42) gives a prisoner of war the
right to complain of his condition of captivity. Chapter 2 (Articles
43-44) gives prisoners of war the right to appoint agents to represent
them. Chapter 3 is divided into three subsections and is termed
"Penalties Applicable to Prisoners of War." Subsection 1 (Articles
45-53) contains various miscellaneous articles to be considered in detail
later. Subsection 2 (Articles 54-59) contains provisions with respect
to disciplinary punishments. And subsection 3 (Articles 60-67),
which is termed "Judicial Suits," contains various provisions for pro-
tection of a prisoner's rights in judicial proceedings instituted against
him.
Thus, subsection 3, which contains Articles 60 and 63, as opposed to
subsection 2, of Chapter 3, is concerned not with mere problems of
discipline, as is the latter, but with the more serious matters of trial
leading to imprisonment or possible sentence of death; cf. Brereton,
The Administration of Justice Among Prisoners of War by Military
Courts (1935) 1 Proc. Australian & New Zealand Society of Interna-
tional Law 143, 153. The Court, however, would have the distinction
IN RE YAMASHITA.
Footnote 37-Continued.
between subsection 2 and subsection 3 one between minor disciplinary
action against a prisoner of war for acts committed while a prisoner
and major judicial action against a prisoner of war for acts committed
while a prisoner. This narrow view not only is highly strained, con-
fusing the different situations 'nd problems treated by the two subdi-
visions. It defeats the most important protections subsection 3 was
intended to secure, for our own as well as for enemy captive military
personnel.
At the most, there would be logic in the Court's construction if it
could be said that all of Chapter 3 deals with acts committed while a
prisoner of war. Of course, subsection 2 does, because of the very
nature of its subject-matter. Disciplinary action will be taken by a
captor power against prisoners of war only for acts committed by
prisoners after capture.
But it is said that subsection 1 deals exclusively with acts committed
by a prisoner of war after having become a prisoner, and this indicates
subsection 3 is limited similarly. This ignores the fact that some of the
articles in subsection 1 appear, on their face, to apply to all judicial
proceedings for whatever purpose instituted. Article 46, for example,
provides in part:
"Punishments other than those provided for the same acts for
soldiers of the national armies may not be imposed upon prisoners
of war by the military authorities and courts of the detaining
Power."
This seems to refer to war crimes as well as to other offenses; for
surely a country cannot punish soldiers of another army for offenses
against the laws of war, when it would not punish its own soldiers for
the same offenses. Similarly, Article 47 in subsection 1 appears to
refer to war crimes as well as to crimes committed by a prisoner after
his capture. It reads in part:
"Judicial proceedings against prisoners of war shall be con-
ducted as rapidly as the circumstances permit; preventive im-
prisonment shall be limited as much as possible."
Thus, at the most, subsection 1 contains, in some of its articles, the
same ambiguities and is open to the same problem that we are faced
with in construing Articles 60 and 63. It cannot be said, therefore,
that all of Chapter 3, and especially subsection 3, relate only to acts
committed by prisoners of war after capture, for the meaning of sub-
section 3, in this argument, is related to the meaning of subsection 1;
and subsection 1 is no more clearly restricted to punishments and
proceedings in disciplinary matters than is subsection 3.
OCTOBER TERM, 1945.
Neither Article 60 nor Article 63 contains such a re-

striction of meaning as the Court reads into them.' In
the absence of any such limitation, it would seem that
they were intended to cover all judicial proceedings,
whether instituted for crimes allegedly committed before
capture or later. Policy supports this view. For such a
construction is required for the security of our own sol-
diers, taken prisoner, as much as for that of prisoners we
take. And the opposite one leaves prisoners of war open
to any form of trial and punishment for offenses against
the laws of war their captors may wish to use, while safe-
guarding them, to the extent of the treaty limitations, in
cases of disciplinary offense. This, in many instances,
would be to make the treaty strain at a gnat and'swallow
the camel.
The United States has complied with neither of these
Articles. It 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 peti-
38 Article 60 pertinently is as follows: "At the opening of a judicial
proceeding directed against a prisoner of war, the detaining Power
shall advise the representative of the protecting Power thereof as soon
as possible, and always before the date set for the opening of the
trial.
"This advice shall contain the following information:
"a) Civil state and rank of prisoner;
"b) Place of sojourn or imprisonment;
"c) Specification of the [count] or counts of the indictment,
giving the legal provisions applicable.
"If it is not possible to mention in that advice the court which
will pass upon the matter, the date of opening the trial and the
place where it will take place, this information must be furnished
to the representative of the protecting Power later, as soon as
possible, and at all events, at least three weeks before the opening
of the trial."
Article 63 reads: "Sentence may be pronounced against a prisoner
of war only by the same courts and according to the same procedure as
in the case of persons belonging to the armed forces of the detaining
Power."
IN RE YAMASHITA.
tioner in Item 89."8 It is said that, although this may be

true, the proceeding is not thereby invalidated. The
argument is that our noncompliance merely gives Japan
a right of indemnity against us and that Article 60 was not
intended to give Yamashita any personal rights. I can-
not agree. The treaties made by the United States are by
the Constitution made the, supreme law of the land. In
the absence of something in the treaty indicating that its
provisions were not intended to be enforced, upon breach,
by more than subsequent indemnification, it is, as I con-
ceive it, the duty of the courts of this country to insure
the nation's compliance with such treaties, except in the
case of political questions. This is especially true where
the treaty has provisions-such as Article 60-for the pro-
tection of a man being tried for an offense the punishment
for which is death; for to say that it was intended to pro-
vide for enforcement of such provisions solely by claim,
after breach, of indemnity would be in many instances,
especially those involving trial of nationals of a defeated
nation by a conquering one, to deprive the Articles of all
force. Executed men are not much aided by post-
war claims for indemnity. I do not think the adhering
powers' purpose was to provide only for such ineffective
relief.
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 be-
tween the two belligerents. The premise is that Japan
no longer needs Switzerland to intervene with the United
39 Item 89 charged the armed forces of Japan with subjecting to
trial certain named and other prisoners of war "without prior notice
to a representative of the protecting power, without opportunity to
defend, and without counsel; denying opportunity to appeal from
the sentence rendered; failing to notify the protecting power of the
sentence pronounced; and executing a death sentence without com-
municating to the representative of the protecting power the nature
and circumstances of the offense charged."
OCTOBER TERM, 1945.
States to protect the rights of Japanese nationals, since

Japan is now in direct communication with this Govern-
ment. This of course is in contradiction of the Govern-
ment'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 surren-
dered, if not unconditionally then under the most severe
conditions. Her territory is occupied by American mili-
tary forces. She is scarcely in a position to bargain with
us or to assert her rights. Nor can her nationals. She no
longer holds American prisoners of war.4" Certainly, if
there was the need of an independent neutral to protect
her nationals during the war, there is more now. In my
opinion the failure to give the notice required by Article 60
is only another instance of the commission's failure to
observe the obligations of our law.
What is more important, there was no compliance with
Article 63 of the same Convention. Yamashita was not
tried "according to the same procedure as in the case of
persons belonging to the armed forces of the detaining
Power." Had one of our soldiers or officers been tried for
alleged war crimes, he would have been entitled to the
benefits of the Articles of War. I think that Yamashita
was equally entitled to the same protection. In any event,
he was entitled to their benefits under the provisions of
Article 63 of the Geneva Convention. Those benefits he
did not receive. Accordingly, his trial was in violation of
the Convention.
VI.
The Fifth Amendment.
Wholly apart from the violation of the Articles of War
and of the Geneva Convention, I am completely unable to
40 Nations adhere to international treaties regulating the conduct
of war at least in part because of the fear of retaliation. Japan no

longer has the means of retaliating.
IN RE YAMASHITA.
accept or to understand the Court's ruling concerning the

applicability of the due process clause of the Fifth Amend-
ment 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 funda-
mental 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.
The Court does not declare expressly that petitioner as
an enemy belligerent has no constitutional rights, a ruling
I could understand but not accept. Neither does it affirm
that he has some, if but little, constitutional protection.
Nor does the Court defend what was done. I think the
effect of what it does is in substance to deny him all such
safeguards. And this is the great issue in the cause.
For it is exactly here we enter wholly untrodden ground.
The safe signposts to the rear are not in the sum of pro-
tections surrounding jury trials or any other proceeding
known to our law. Nor is the essence of the Fifth Amend-
ment's elementary protection comprehended in any single
one of our time-honored specific constitutional safeguards
in trial, though there are some without which the words
"fair trial" and all they connote become a mockery.
Apart from a tribunal concerned that the law as applied
shall be an instrument of justice, albeit stern in measure
to the guilt established, the heart of the security lies in
two things. One is that conviction shall not rest in any
essential part upon unchecked rumor, report, or the re-
sults of the prosecution's ex parte investigations, but shall
stand on proven fact; the other, correlative, lies in a fair
chance to defend. This embraces at the least the rights
to know with reasonable clarity in advance of the trial the
exact nature of the offense with which one is to be charged;
to have reasonable time for preparing to meet the charge
and to have the aid of counsel in doing so, as also in the
OCTOBER TERM, 1945.
trial itself; and if, during its course, one is taken by sur-
prise, through the injection of new charges or reversal of
rulings which brings forth new masses of evidence, then
to have further reasonable time for meeting the unex-
pected shift.
So far as I know, it has not yet been held that any tri-
bunal in our system, of whatever character, is free to re-
ceive such evidence "as in its opinionwould be of assistance
in proving or disproving the charge," or, again as in its
opinion, "would have probative value in the mind of a
reasonable man"; and, having received what in its un-
limited discretion it regards as sufficient, is also free to de-
termine what weight, may be given to the evidence received
41
without restraint.
When to this fatal defect in the directive, however in-
nocently made, are added the broad departures from the
fundamentals of fair play in the proof and in the right to
defend which occurred throughout the proceeding, there
can be no accommodation with the due process of law
which the Fifth Amendment demands.
All this the Court puts to one side with the short as-
sertion that no question of due process under the Fifth
Amendment or jurisdiction reviewable here is presented.
I do not think this meets the issue, standing alone or in
c6njunction with the suggestion which follows that the
Court gives no intimation one way or the other concerning
41 There can be no limit either to the admissibility or the use of
evidence if the only test to be applied concerns probative value and
the only test of probative value, as the directive commanded and the
commission followed out, lies "in the Commission's opinion," whether
that be concerning the assistance the "evidence" tendered would give
in proving or disproving the charge or as it might think would "have
value in the mind of a reasonable man." Nor is it enough to establish
the semblance of a constitutional right that the commission declares,
in receiving the evidence, that it comes in as having only such probative
value, if any, as the commission decides to award it and this is accepted
as conclusive.
IN RE YAMASHITA.
what Fifth Amendment due process might require in other

situations.
It may be appropriate to add here that, although with-
out doubt the directive was drawn in good faith in the
belief that it would expedite the trial and that enemy bel-
ligerents in petitioner's position were not entitled to more,
that state of mind and purpose cannot cure the nullifica-
tion of basic constitutional standards which has taken
place.
It is not necessary to recapitulate. The difference be-
tween the Court's view of this proceeding and my own
comes down in the end to the view, on the one hand, that
there is no law restrictive upon these proceedings other
than whatever rules and regulations may be prescribed for
their government by the executive authority or the mili-
tary and, on the other hand, that the provisions of the
Articles of War, of the Geneva Convention and the Fifth
Amendment apply.
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 vio-
lates this duty he 42establishes a precedent that will
reach to himself.'
MR. JUSTICE MURPHY joins in this opinion.
42 2 The Complete Writings of Thomas Paine (edited by Foner,
1945) 588.

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CASES ADJUDGED

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1945.

Argued January 7, 8, 1946.-Decided February 4, 1946.

No. 61, Misc. Application for leave to file a petition

From the petitions and supporting papers it appears that

reasons which are now urged as showing that the military

tuted by the order of General Styer, had jurisdiction oyer

preexisting jurisdiction of military commissions created by

U. S. 543, 555-556; Carter v. McClaughry, 183 U. S. 365;

of a vastly greater area, the Philippine Islands, where the

fore appropriate military tribunals, of such Japanese war

long as a state of war exists-from its declaration until

tory there have been numerous instances in which offend-

in 2 Winthrop, supra, *1310-1311, n. 5; 14 Op. A. G. 249 (Modoc

control the operations of the members of his command,

on an army commander a duty to take such appropriate

ligerent armies to provide for the details of execution of the

stances.' We do not here appraise the evidence on which

commission had authority to try and decide the issue which

may modify from time to time, prescribe the procedure, including

We think that neither Article 25 nor Article 38 is ap-

conferring jurisdiction upon courts-martial shall not be

only by the same courts and according to the same proce-

"judicial," the latter being the more severe. Article 52

tion V gives no indication that this part was designed to

9 Switzerland, at the time of the trial, was the power designated by

For reasons already stated we conclude that Article 60 of

It thus appears that the order convening the commission

petitions for writs of habeas corpus and prohibition should

elementary rules of evidence and summarily sentenced to

ligerent to an unfair trial, to charge him with an unrecog-

jurisdiction, that the highest standards of justice be applied

Court. For my own part, I do not feel that we should be

the petitioner assumed this command. Combined with a

spect not only to the swift and overpowering advance of

The petitioner was accused of having "unlawfully dis-

condoned any. of them. We will assume that they must

sit in judgment upon the military strategy and actions of

position and authority . . ." It seems apparent beyond

this paragraph concluded with the statement that "The

liable where they knew that a crime was to be committed,

here with an ordinary tort or criminal action; precedents

a case of this nature. Yet now is precisely the time when

of law in the trial and punishment of men, that is, of all

consideration has given opportunity, I have not been able

It is not in our tradition for anyone to be charged with

prevent the wrongs done by others, having both the duty

ibility, probative value and admissibility of whatever may

belligerent in petitioner's position is altogether beyond

ently with universal constitutional commands or outside

Section 16, as will be noted, permits reception of docu-

by troops under petitioner's command throughout the sev-

13 Namely, "(1) Starvation, execution or massacre without trial

cution presented evidence to show that the crimes were so

presented on the former basis and, unless as is noted below

cations in the bills of particulars was by ex parte affidavits.

grant,2° of departure not only from the express command

relating to all manner of incidents, rumors, reports, etc., were among