NEW YORK — To choose the most bewildering action of George W. Bush since he became U.S. president in 2001 is tough. Is it starting a war without cause? Is it creating a dubious court and prosecuting a man for mass killings while committing even greater mass killings? Or is it concocting legislation that banishes habeas corpus, legalizes torture by Americans, and decriminalizes it retroactively?
This last, of course, is the Military Commissions Act, which Bush signed into law Oct. 17. It is an attempt to annul the Supreme Court’s first important rebuke to his conduct of war, Hamdan v. Rumsfeld, that found the military commission set up in Guantanamo Bay in violation of the Uniform Code of Military Justice and Common Article 3 of the Third Geneva Convention. That the majorities in Congress approved of such an act long after the torture and murders at Abu Ghraib came to light demonstrates the vacuity of the talk of America losing “the moral high ground” that became fashionable just about that time.
Not that the United States has had any such grounds for much of its 230-year history. What it has had are sparkling expressions of principles from time to time that continue to give us hope, however faint. Justice Paul Stevens, who wrote the main part of Hamdan v. Rumsfeld, has reminded us of this by bringing up Yamashita v. Styer. That Supreme Court decision 60 years ago is famous for affirming the constitutionality of a military commission trying and sentencing to death a Japanese general for “failing to prevent troops under his command from committing atrocities.” But it is equally famous for provoking, as Stevens put it, “an unusually long and vociferous critique” from two justices, Frank Murphy and Wiley Blount Rutledge. Reading those dissenters’ opinions brings us to a different world.
Yamashita was Tomoyuki Yamashita, the general assigned to defend the Philippines in the fall of 1944 when the prospects for turning back the onslaught of the U.S. forces had become nil. He may have had a quarter of a million troops under his command, but with America’s overwhelming forces tearing the islands apart, the “260,000 Japanese troops scattered over the Philippines . . . might as well have been on the other side of the world so far as (their commander’s) ability to shift them to meet the American thrusts was concerned,” said the Biennial Report of the Chief of Staff of the U.S. Army, July 1, 1943, to June 30, 1945. Yamashita, in short, was “in an impossible situation.”
Trying an enemy commander forced into such a position for his inability to control his troops was something that had never been done. “The recorded annals of warfare and the established principles of international law,” Murphy wrote, “afford not the slightest precedent for such a charge.”
Rutledge went further. “Never before have we tried and convicted an enemy general for action taken during hostilities or otherwise in the court of military operations or duty,” he insisted. “The novelty is not lessened by the trial’s having taken place after hostilities ended and the enemy . . . had surrendered.”
Justices Murphy and Rutledge had a strong chivalrous spirit, which many commanders in the U.S. military at the time shared, that you just don’t bring to court and prosecute “a fallen military commander of a conquered nation.” Murphy concluded his eloquent dissent by referring to U.S. President Abraham Lincoln’s second inaugural speech to point to “the noble ideal of malice toward none and charity for all.” Rutledge simply mentioned “Lincoln’s great spirit, best lighted in the Second Inaugural.”
But this did not mean that the two jurists had no legal grounds for objecting to the majority opinion. Far from it. “The grave issue raised” by the military commission that was set up in Manila, in the fall of 1945, and tried Yamashita and condemned him to death was whether the commission might disregard “the due process clause of the Fifth Amendment,” Murphy wrote. The answer was: absolutely not. Rutledge asserted that it was crucial “for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than the due process of law.” For him that principal was the “great absolute.”
The consequences of the majority opinion would be grave, Murphy famously warned. “No one in a position of command in an army, from sergeant to general, can escape those implications,” he predicted. “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.”
As we have since learned, neither the idealism of the two justices nor the crucial importance of the legal principle they stressed has had much effect on America’s military conduct or the government’s response to it. If anything, the U.S. Army’s ostentatious investigation of the My Lai massacre during the Vietnam War and its fatuous outcome amply demonstrated that. What’s new with Bush is his open advocacy of America’s right to torture and the easy congressional acquiescence to it.
Well, then, are all legal principles meaningless? Of course not.
Yamashita, as far as I know, is the only Japanese general who has left his name in a U.S. Supreme Court case as a result of the military tribunals set up following Japan’s defeat, but the one in Manila alone tried and sentenced to death two other generals: Lt. Gen. Shiyoku Ko and Lt. Gen. Masaharu Honma. If you take the position of Justices Murphy and Rutledge, their trials were as unjust as Yamashita’s. Ko, one of the few generals of Korean descent in the Japanese Army, was, as quartermaster general, unable to procure food even for his own troops, yet he was condemned for maltreatment of POWs. Honma, overwhelmed with a logistic nightmare when large numbers of U.S. soldiers and Filipinos surrendered, was condemned for a similar charge.
The three generals were nonetheless moved by the meticulous and fierce defense mounted by the counsel provided by the U.S. government. In his letter thanking his team and the witnesses they assembled for him, Honma called the arrangement and the spirit embodied in it “the strength of the United States, a feat the Japanese cannot hope to pull.” After all, Yamashita’s team even took his case up to the Supreme Court.
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