Toland’s “Rising Sun” has a good brief treatment of Yamashita’s war crimes trial. Toland makes reference to Yamashita’s appeal of his conviction and sentence to the United States Supreme Court, the denial of the appeal and the dissents written by Justices Rutledge and Murphy. I first read “The Rising Sun” sometime during undergraduate school, and when I went to law school I looked up the Supreme Court opinion and read it. That was back in the old days, the dark times, before the internet, when you had to go to a law library to find such things. Fortunately today, you can find the full opinion online at this link:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=327&invol=1
It’s a long read, as most United States Supreme Court opinions are. It’s written in the Byzantine style of a professional legal opinion usually understood best by lawyers. But the opinion and dissent are very much worth the read for two reasons. One is the historical interest in the conduct of Yamashita’s war crimes trial. The other is a matter of current interest, and how we have miserably conducted the legal affairs around the terrorists held at Guantanamo.
Perhaps because of Toland, who was sympathetic to the Japanese (he had a Japanese wife), or being more liberal in my youth, I tended to incline to Justice Murphy’s dissent in the opinion. I don’t think Yamashita was treated fairly. I think it was MacArthur exacting a victor’s retribution.
Where I come down on the whole military tribunal is this:
1. In the application of war crimes, I tend to give a lot of leeway to the military. War is a crime in itself. The German generals and admirals who stood in the dock at Nuremberg had a point; “You did it too.” Doenitz was tried for prosecuting unrestricted submarine warfare, but offered as evidence Ernest King’s first command order on December 8, 1941: “Execute unrestricted air, naval and submarine warfare against Japan.” The Germans rounded up civilians in villages and shot them. We firebombed whole cities of them. This is an American tradition going back to William Tecumseh Sherman in Georgia and Phil Sheridan in the Shenandoah valley. Smokehouses and corncribs are military targets. War is hell. It is good that war is so terrible, lest we grow too fond of it.
2. I do think “I was just following orders” is a defense for a military officer. That’s what they are supposed to do. It’s actually a cornerstone of our Republic. The military is meant to be the servant of the lawfully constituted civilian command authority.
3. On the other hand, if the military leadership is culpable in the fomenting of war, or if the lines between the civilian and military leadership are “fuzzy” as they were in Japan and Germany, where the military was a part of the civilian government, then it’s a different matter. But I would need a “smoking gun,” that evidence showing the military was pushing for the war. That clearly existed in Japan. It was far less present in the case of Germany.
4. I have no objection whatsoever to the war crimes trials of that civilian political authority.
5. The farther you go down the chain of command, the less likely I am inclined to prosecute a soldier for war crimes.
6. Today’s issue: Terrorists. To me, they clearly fall outside of any form of international law or treaty respecting treatment of foreign powers or combatants. They are, quite simply, international criminals. And that’s where you get things a lot more confused today. Do you give them their full procedural rights as criminals? Once you get them on territory controlled by the United States, you probably do. And that’s where we screwed up in Afghanistan. As I told Mrs. Henkster the other day, “we should not have taken them as prisoners.” She asked “then what should we have done with them?” And my answer, made in a very cold tone of voice, that should leave no doubt what was meant, was “we should not have taken them as prisoners.” Under international law and treaty, by not wearing the uniform of a foreign nation, when they take up arms against the armed forces of the United States, they are not entitled to any protection of any kind whatsoever. Including the right to be taken prisoner.
There is institutionalized duplicity at work. The Germans who worked for Hitler against the Soviets as spies were brought into the OSS/OSI and then the CIA in '47. This was not publicized and was being done vigorously while the high profile Nazis were being tried and executed. We also brought Japanese researchers to the US to develop our NBC programs, and these devils were the ones who committed unspeakable atrocities on Chinese people. We also manned the rocket and space agenda with 'captured' German scientists. For America, duplicity is institutionalized.
I think it was MacArthur exacting a victor’s retribution.
An interesting story as I reread my source:
In 1944, Yamashita was promoted to the rank of general and was sent to the Philippines to command the 14th Area Army in what was called the Army’s decisive battle against the United States. He boasted to the Japanese public that “the only words I spoke to the British Commander during negotiations for the surrender of Singapore were, ‘All I want to hear from you is yes or no.’ I expect to put the same question to [Douglas] MacArthur.” MacArthur’s response to him, as written in MacArthur’s memoir, was that Yamashita was an able commander, but “he talked too much”.
“we should not have taken them as prisoners.” Under international law and treaty, by not wearing the uniform of a foreign nation, when they take up arms against the armed forces of the United States, they are not entitled to any protection of any kind whatsoever. Including the right to be taken prisoner.
Quite correct. Al Qaeda/ISIS type guerrillas should not be considered POW's or civil criminals. The Geneva Conventions apply to those captured in uniform with rank insignia. There may be intelligence reasons for capturing them alive. They should be tried by military commission and executed, with suitable exceptions for those who provide valuable intelligence.
Interestingly, Justice Murphy also dissented in Koramatsu, the case finding the Japanese internment constitutional.