Koki Hirota v. General of the Army Arthur Kenju Dohihara v. General of the Army Arthur Koichi Kido v. General of the Army Arthur 248

• Citation: 93 L.Ed. 1902,338 U.S. 197,69 S.Ct. 197
• Decision Date: 20 December 1948
• Docket Number: Nos. 239,240,s. 239
• Parties: KOKI HIROTA v. GENERAL OF THE ARMY MacARTHUR et al. KENJU DOHIHARA v. GENERAL OF THE ARMY MacARTHUR et al. KOICHI KIDO et al. v. GENERAL OF THE ARMY MacARTHUR et al. , and 248, Misc
• Court: United States Supreme Court

338 U.S. 197

69 S.Ct. 197

93 L.Ed. 1902

KOKI HIROTA

v GENERAL OF THE ARMY MacARTHUR et al.

KENJU DOHIHARA

v. GENERAL OF THE ARMY MacARTHUR et al.

KOICHI KIDO et al.

v. GENERAL OF THE ARMY MacARTHUR et al.

Nos. 239, 240, and 248, Misc.

Argued on Motion to File Petition for Writ of Habeas Corpus Dec. 16, 17, 1948.

Decided Dec. 20, 1948.

Rehearing Denied Jan. 3, 1949.

See 335 U.S. 906, 69 S.Ct. 400.

Messrs. William Logan, Jr., of New York City, David F. Smith, of Washington, D.C., John G. Brannon, of Kansas City, Mo., and George Yamaoka and George A. Furness, both of New York City, pro hac vice for petitioners.

Mr. Philip B. Perlman, Sol. Gen., of Washington, D.C., for respondent.

PER CURIAM.

The petitioners, all residents and citizens of Japan, are being held in custody pursuant to the judgments of a military tribunal in Japan. Two of the petitioners have been sentenced to death, the others to terms of imprisonment. They filed motions in this Court for leave to file petitions for habeas corpus. We set all the motions for hearing on the question of our power to grant the relief prayed, 335 U.S. 876, 69 S.Ct. 157, and that issue has now neen fully presented and argued.

We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military t ibunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.

Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.

Mr. Justice DOUGLAS concurs in the result for reasons to be stated in an opinion.

See 338 U.S. 197, 69 S.Ct. 1238.

Mr. Justice MURPHY dissents.

Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time.

Mr. Justice JACKSON took no part in the final decision on these motions.

Mr. Justice DOUGLAS, concurring.*

* These motions were argued December 16 and 17, 1948 and the opinion of the Court handed down December 20, 1948, 338 U.S. 197, 69 S.Ct. 197. I was not able within that short time to reduce my views to writing. Hence I concurred in the result 'for reasons to be stated in an opinion.'

These cases present new, important and difficult problems.

Petitioners are citizens of Japan. They were all high officials of the Japanese Government or officers of the Japanese Army during World War II. They are held in custody pursuant to a judgment of the International Military Tribunal for the Far East. They were found guilty by that tribunal of various so-called war crimes against humanity.

Petitioners at the time of argument of these cases were confined in Tokyo, Japan, under the custody of respondent Walker, Commanding General of the United States Eighth Army who held them pursuant to the orders of respondent MacArthur, Supreme Commander for the Allied Powers. Other respondents are the Chief of Staff of the United States Army, the Secretary of the Department of the Army, and the Secretary of Defense.

First. There is an important question of jurisdiction that lies at the threshold of these cases. Respondents contend that the Court is without power to issue a writ of habeas corpus in these cases. It is argued that the Court has no original jurisdiction as defined in Art. III, § 2, Cl. 2 of the Constitution,¹ since these are not cases affecting an ambassador, public minister, or consul; nor is a State a party. And it is urged that appellate jurisdiction is absent (1) becasue military commissions do not exercise judicial power within the meaning of Art. III, § 2 of the Constitution and hence are not agencies whose judgments are subject to review by the Court; and (2) no court of the United States to which the potential appellate jurisdiction of this Court extends has jurisdiction over this cause.

It is to the latter contention alone that consideration need be given. I think it is plain that a District Court of the United States does have jurisdiction to entertain petitions for habeas corpus to examine into the cause of the restraint of liberty of the petitioners.

The question now presented was expressly reserved in Ahrens v. Clark, 335 U.S. 188, 192, note 4, 68 S.Ct. 1443, 1444, 92 L.Ed. 1898. In that case aliens detained at Ellis Island sought to challenge by habeas corpus the legality of their detention in the District Court for the District of Columbia. It was argued that that court had jurisdiction because the Attorney General who was responsible for their custody was present there. We rejected that view, holding that it was the District Court where petitioners were confined that had jurisdiction to issue the writ. It is now argued that no District Court can act in these cases because if in one case their jurisdiction under the habeas corpus statute² is limited to inquiries into the causes of restraints of liberty of those confined within the territorial jurisdictions of those courts, it is so limited in any other.

That result, however, does not follow. In Ahrens v. Clark, supra, we were dealing with the distribution of judicial power among the several District Courts. There was an explicit legislative history, indicating disapproval of a practice of moving prisoners from one district to another in order to grant them the hearings to which they are entitled. We held that the court at the place of confinement was the court to which application must be made. But it does not follow that where that place is not within the territorial jurisdiction of any District Court, judicial power to issue the writ is rendered impotent.

Habeas corpus is an historic writ and one of the basic safeguards of personal liberty. See Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 445, 83 L.Ed. 455. There is no room for niggardly restrictions when questions relating to its availability are raised. The statutes governing its use must be generously construed if the great office of the writ is not to be impaired. In Ahrens v. Clark, supra, denial of a remedy in one District Court was not a denial of a remedy in all of them. There was a District Court to which those petitioners could resort. But in these cases there is none if the jurisdiction of the District Court is in all respects restricted to cases of prisoners who are confined within their geographical boundaries.

Such a holding would have grave and alarming consequences. Today Japanese war lords appeal to the Court for application of American standards of justice. Tomorrow or next year an American citizen may stand condemned in Germany or Japan by a military court or commission.³ If no United States court can inquire into the lawfulness of his detention, the military have acquired, contrary to our traditions see Ex part Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499, a new and alarming hold on us.

I cannot agree to such a grave and starting result. It has never been deemed essential that the prisoner in every case be within the territorial limits of the district where he seeks relief by way of habeas corpus. In Ex parte Mitsuye Endo, 323 U.S. 283, 304-306, 65 S.Ct. 208, 219-220, 89 L.Ed. 243, a prisoner had been removed, pending an appeal, from the district where the petition had been filed. We held that the District Court might act if there was a respondent within reach of its process who had custody of the prisoner. The aim of the statute is the practical administration of justice. The allocation of jurisdiction among the District Courts, recognized in Ahrens v. Clark, is a problem of judicial administration not a method of contracting the authority of the courts so as to delimit their power to issue the historic writ.

The place to try the issues of this case is in the district where there is a respondent who is responsible for the custody of petitioners. That district is obviously the District of Columbia. That result was reached by the Court of Appeals for the District of Colubmia in Eisentrager v. Forrestal, D.C.Cir., 174 F.2d 961. It held, in the case of a German national confined in Germany in the custody of the United States Army, that the court having jurisdiction over those who have directive power over the jailer outside the United States could issue the writ. In my view that is the correct result. For we would have to conclude that the United States Generals who have custody of petitioners are bigger than our government to hold that the respondent-officials of the War Department have no control or command over them. That result would raise grave constitutional questions, as Eisentrager v. Forrestal, supra, suggests.

It is therefore clear to me that the District Court of the District of Columbia is the court to hear these motions. The appropriate course would be to remit the parties to it, reserving any further questions until the cases come here by certiorari. But the Court is unwilling to take that course, apparently because it deems the cases so pressing and the issues so unsubstantial that the motion should be summarily disposed of.

Second. The Court in denying leave to file states:

'We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.

'Under the foregoing circumstances the courts of the United States have no power or authority to...