Yamashita Yamashita v. Styer

Decision Date04 February 1946
Docket NumberNo. 61,No. 672,61,672
Citation90 L.Ed. 499,327 U.S. 1,66 S.Ct. 340
PartiesApplication of YAMASHITA. YAMASHITA v. STYER, Commanding General, U.S. Army Forces, Western Pacific. Misc. and
CourtU.S. Supreme Court

Mr. Justice RUTLEDGE and Mr. Justice MURPHY dissenting.

Congress, by adoption of Article of War providing that jurisdiction conferred upon courts martial should not be construed as depriving military commissions, of concurrent jurisdiction of offenders which by law of war are triable by such commissions, 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. Articles of War, art. 15, 10 U.S.C.A. § 1486.

The trial and punishment of an enemy combatant who has committed violations of the law of war is not only a part of conduct of war, but also is an exercise of authority sanctioned by Congress to administer system of military justice recognized by law of war which sanction is without qualification as to exercise of authority so long as a state of war exists, form its declaration until peace is proclaimed. Articles of War, arts. 2, 15, 10 U.S.C.A. §§ 1473, 1486; Proclamation July 2, 1942, No. 2561, 10 U.S.C.A. § 1554 note; U.S.C.A. Const. art. 1, § 8, cl. 10.

The war power, from which military commission derives its existence, is not limited to victories in the field, but carries with it inherent power to guard against immediate renewal of conflict and to remedy, at least in ways Congress has recognized, evils which military operations have produced. Articles of War, arts. 2, 15, 10 U.S.C.A. §§ 1473, 1486; U.S.C.A. Const. art. 1, § 8.

The mere fact that hostilities have ceased does not preclude the trial of offenders against the law of war before a military commission, at least until peace has been officially recognized by treaty or proclamation of the political branch of the government. Articles of War, art. 15, 10 U.S.C.A. § 1486; U.S.C.A. Const. art. 1, § 8, cl. 10.

Motion for leave to file petition for writ of habeas corpus and writ of prohibition and petition for writ of habeas corpus and writ of prohibition.

On petition for a writ of certiorari to the Supreme Court of the Commonwealth of the Philippines.

Page 4-Continued.

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, 28 U.S.C.A. § 349), denying petitioner's application 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 ral argument as one case.

From the petitions and supporting papers it appears that 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 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 General Wilhelm D. Styer, Commanding General of the United States Army Forces, Western Pacific, which command embraces the Philippine Islands, petitioner was served with a charge prepared by the Judge Advocate General's Department 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 appointed 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 demonstrated 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 denied. 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 corpus set up that the detention of petitioner for the purpose of the trial was unlawful for 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 convicted petitioner was not lawfully created, and that no military 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 jurisdiction to try and convict petitioner because the order governing the procedure of the commission permitted the admission in evidence of depositions, affidavits and hearsay 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, 10 U.S.C.A. §§ 1496, 1509) and the Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair trial in violation of the due process clause of the Fifth Amendment;

(d) that the commission was without authority and jurisdiction 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 required by Article 60 of the Geneva Convention, 47 Stat. 2021, 2051.

On the same grounds the petitions for writs of prohibition set up that the commission is without authority to proceed with the trial.

The Supreme Court of the Philippine Islands, after hearing argument, denied the petition for habeas corpus presented to it, on the ground, among others, that its jurisdiction 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- tuted by the order of General Styer, had jurisdiction over the person of petitioner and over the trial for the offense charged.

In E parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3, we had occasion to consider at length the sources and nature of the authority to create military commissions for the trial of enemy combatants 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 * * * Offenses against the Law of Nations * * *,' of which the law of war is a part, had by the Articles of War (10 U.S.C. §§ 1471—1593, 10 U.S.C.A. §§ 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 concurrent jurisdiction in respect of offenders of offenses that by statute or by the law of war may be triable by such military commissions * * * or other military tribunals.' See a similar provision of the Espionage Act of 1917, 50 U.S.C. § 38, 50 U.S.C.A. § 38. Article 2 includes among those persons subject to the Articles of War the personnel of our own military establishment. But this, as Article 12 indicates, does not exclude from the class of persons subject to trial by military commissions '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 military 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 preexisting jurisdiction of military commissions created by appropriate military command, all offenses which are defined as such by the law of war, and which may constitutionally 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 consider here only the lawful power of the commission to try the petitioner for the offense...

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