Source: flite (Federal Legal Information Through Electronics)
Case Name: IN RE YAMASHITA, 327 U.S. 1 
Part III
 
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 UNIVERSALLY
PROTECTIVE AGAINST UNBRIDLED POWER THAN DUE PROCESS OF LAW IN THE TRIAL
AND PUNISHMENT OF MEN, THAT IS, OF ALL MEN, WHETHER CITIZENS, ALIENS,
ALIEN ENEMIES OR ENEMY BELLIGERENTS.  IT CAN BECOME TOO LATE. 
THIS LONG-HELD ATTACHMENT MARKS THE GREAT DIVIDE BETWEEN OUR ENEMIES
AND OURSELVES.  THEIRS WAS A PHILOSOPHY OF UNIVERSAL FORCE.  OURS IS
ONE OF UNIVERSAL LAW, ALBEIT IMPERFECTLY MADE FLESH OF OUR SYSTEM AND
SO DWELLING 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 ALL 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 BEFORE 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 CONDEMNED 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
SURRENDERED.  MOREOVER, SO FAR AS THE TIME PERMITTED FOR OUR
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 FORWARD 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
ADMINISTERING 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 CRIMINAL, HAS TAKEN PLACE;
FN1  OR IN LANGUAGE NOT SUFFICIENT TO INFORM HIM OF THE NATURE OF THE
OFFENSE OR TO ENABLE HIM TO MAKE DEFENSE.  FN2  MASS GUILT WE DO NOT
IMPUTE TO INDIVIDUALS, PERHAPS IN ANY CASE BUT CERTAINLY IN NONE WHERE
THE PERSON IS NOT CHARGED OR SHOWN ACTIVELY TO HAVE PARTICIPATED IN OR
KNOWINGLY TO HAVE FAILED IN TAKING ACTION TO 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; FN3  IN CAPITAL OR OTHER
SERIOUS CRIMES TO CONVICT ON "OFFICIAL DOCUMENTS ...; AFFIDAVITS; ...
DOCUMENTS OR TRANSLATIONS THEREOF; DIARIES  ..., PHOTOGRAPHS, MOTION
PICTURE FILMS, AND  ...  NEWSPAPERS"  FN4  OR ON HEARSAY, ONCE, TWICE
OR THRICE REMOVED,  FN5 MORE PARTICULARLY WHEN THE DOCUMENTARY EVIDENCE
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 CONFRONTATION OF WITNESSES AND CROSS
EXAMINATION.  FN6    OUR TRADITION DOES NOT ALLOW CONVICTION BY
TRIBUNALS BOTH AUTHORIZED AND BOUND  FN7  BY THE INSTRUMENT OF THEIR
CREATION TO RECEIVE AND CONSIDER EVIDENCE WHICH IS EXPRESSLY EXCLUDED
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 CREDIBILITY, PROBATIVE VALUE AND ADMISSIBILITY
OF WHATEVER MAY BE TENDERED AS EVIDENCE. 
THE MATTER IS NOT ONE MERELY OF THE CHARACTER AND ADMISSIBILITY OF
EVIDENCE.  IT GOES TO THE VERY COMPETENCY OF THE TRIBUNAL TO TRY AND
PUNISH CONSISTENTLY WITH THE CONSTITUTION, 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 COMMISSION, 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 DEPRIVED 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, PETITIONER 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
CONSTITUTION 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 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 MILITARY
EFFECTIVE DURING ACTIVE HOSTILITIES IN THEATRES OF COMBAT 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 PRESIDENT AS COMMANDER-IN-CHIEF
AND HIS MILITARY SUBORDINATES TO TAKE IN WARDING OFF MILITARY DANGER
AND SUBJECT TO NO JUDICIAL RESTRAINT ON ANY ACCOUNT, ALTHOUGH SOMEWHAT
INCONSISTENTLY IT IS SAID THIS COURT MAY "EXAMINE" THE PROCEEDINGS
GENERALLY. 
AS I UNDERSTAND THE COURT, THIS IS IN SUBSTANCE THE EFFECT 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 ARMISTICE.  MILITARY NECESSITY
DOES NOT DEMAND THE SAME MEASURES.  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 PROTECTIONS 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, CONSISTENTLY WITH UNIVERSAL CONSTITUTIONAL
COMMANDS OR OUTSIDE THEIR RESTRICTING EFFECTS.  IN THIS SENSE I THINK
THE CONSTITUTION 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 ABOUT 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 HOSTILITIES 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 RESPECT 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 PROVE 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, ALTHOUGH 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
EXCLUDED 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.  FN8
THE DIRECTIVE WAS ACCOMPANIED BY ELABORATE AND DETAILED RULES AND
REGULATIONS PRESCRIBING THE PROCEDURE AND RULES OF EVIDENCE TO BE
FOLLOWED, OF WHICH FOR PRESENT PURPOSES SEC. 16, SET FORTH BELOW,  FN9
IS CRUCIAL. 
REPORTS, AFFIDAVITS, DEPOSITIONS, DIARIES, LETTERS, COPIES 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,"
WITHOUT 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 ADMISSIBILITY AND PROBATIVE VALUE OF EVIDENCE WAS CONCERNED, THE
DIRECTIVE MADE THE COMMISSION A LAW UNTO ITSELF. 
IT ACTED ACCORDINGLY.  AS AGAINST INSISTENT AND PERSISTENT 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,  FN10  REPRIMANDED COUNSEL FOR CONTINUING 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 PROSECUTION OFFERED.  EVERY CONCEIVABLE KIND OF STATEMENT,
RUMOR, 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 BY TROOPS UNDER
PETITIONER'S COMMAND THROUGHOUT THE SEVERAL THOUSAND ISLANDS OF THE
PHILIPPINE ARCHIPELAGO DURING THE PERIOD OF ACTIVE HOSTILITIES COVERED
BY THE AMERICAN FORCES' RETURN TO AND RECAPTURE OF THE PHILIPPINES. 
FN11 
THE FINDINGS REFLECT THE CHARACTER OF THE PROOF AND THE CHARGE.  THE
STATEMENT QUOTED ABOVE FN12  GIVES ONLY A NUMERICAL 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 PETITIONER
PERSONALLY PARTICIPATED IN, WAS PRESENT AT THE OCCURRENCE OF, OR
ORDERED ANY OF THESE INCIDENTS, WITH THE EXCEPTION 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,  FN13  IN THE
FURTHER STATEMENT THAT "THE PROSECUTION PRESENTED EVIDENCE TO SHOW THAT
THE CRIMES WERE SO EXTENSIVE AND WIDESPREAD, BOTH AS TO TIME AND AREA,
FN14 THAT THEY MUST EITHER HAVE BEEN WILFULLY PERMITTED BY THE ACCUSED,
OR SECRETLY ORDERED BY" HIM; AND IN THE CONCLUSION OF GUILT AND THE
SENTENCE.  FN15  INDEED THE COMMISSION'S ULTIMATE FINDINGS FN16  DRAW
NO EXPRESS CONCLUSION OF KNOWLEDGE, BUT STATE ONLY TWO THINGS:  (1) THE
FACT OF WIDESPREAD ATROCITIES AND CRIMES; (2) THAT PETITIONER "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 THE VERY GIST OF THE OFFENSE, WHETHER
THAT WAS WILFUL, INFORMED 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,  FN17  THE CASE HAS BEEN 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
CONTROL, ALTHOUGH THE COURT'S OPINION NOWHERE EXPRESSLY DECLARES 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 UNTRUSTWORTHY, 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 INTRODUCED 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 STATEMENT IN THIS
RESPECT.  BUT THE GOVERNMENT HAS NOT DISPUTED IT; AND IT HAS MAINTAINED
THAT WE HAVE NO RIGHT TO EXAMINE THE RECORD UPON ANY QUESTION "OF
EVIDENCE."  ACCORDINGLY, 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.  FN18 
MOREOVER COUNSEL ASSERT IN THE BRIEF, AND THIS ALSO IS NOT DENIED,
THAT THE SOLE PROOF MADE OF CERTAIN OF THE SPECIFICATIONS 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,
FN19  A FACT IN ITSELF CONCLUSIVE DEMONSTRATION OF THE NECESSITY TO THE
PROSECUTION'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
FLAGRANT 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.  FN21 
PETITIONER ASSERTS, AND THERE CAN BE NO REASON TO DOUBT, THAT BY THE
USE OF ALL THIS FORBIDDEN EVIDENCE HE WAS DEPRIVED 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 COMMITTED 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 ISOLATED ACTS OF INDIVIDUAL SOLDIERS OR WERE MILITARY
ACTS COMMITTED 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 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 FORBIDDEN BY THE VALID ACTS OF
CONGRESS, TREATIES AND THE CONSTITUTION, 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.
Part I  Part II   Part III  Part IV  Part V
Stuart.Stein@uwe.ac.uk
Last Updated 06/11/01 08:19:24
S D Stein
 
Faculty of Economics and Social Science