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Case Name: IN RE YAMASHITA, 327 U.S. 1
III.
DENIAL OF OPPORTUNITY TO PREPARE DEFENSE.
PETITIONER SURRENDERED SEPTEMBER 3, 1945, AND WAS INTERNED AS A
PRISONER OF WAR IN CONFORMITY WITH ARTICLE 9 OF THE GENEVA CONVENTION
OF JULY 27, 1929. FN22 HE WAS SERVED WITH THE CHARGE ON SEPTEMBER 25
AND PUT IN CONFINEMENT AS AN ACCUSED WAR CRIMINAL. ON OCTOBER 8 HE WAS
ARRAIGNED AND PLEADED NOT GUILTY. ON OCTOBER 29 THE TRIAL BEGAN AND IT
CONTINUED UNTIL DECEMBER 7, WHEN SENTENCE WAS PRONOUNCED, EXACTLY FOUR
YEARS ALMOST TO THE HOUR FROM THE ATTACK ON PEARL HARBOR.
ON THE DAY OF ARRAIGNMENT, OCTOBER 8, THREE WEEKS BEFORE THE TRIAL
BEGAN, PETITIONER WAS SERVED WITH A BILL OF PARTICULARS SPECIFYING 64
ITEMS SETTING FORTH A VAST NUMBER OF ATROCITIES AND CRIMES ALLEGEDLY
COMMITTED BY TROOPS UNDER HIS COMMAND. FN23 THE SIX OFFICERS
APPOINTED AS DEFENSE COUNSEL THUS HAD THREE WEEKS, IT IS TRUE AT THE
PROSECUTION'S SUGGESTION A WEEK LONGER THAN THEY SOUGHT AT FIRST, TO
INVESTIGATE AND PREPARE TO MEET ALL THESE ITEMS AND THE LARGE NUMBER OF
INCIDENTS THEY EMBODIED, MANY OF WHICH HAD OCCURRED IN DISTANT ISLANDS
OF THE ARCHIPELAGO. THERE IS SOME QUESTION WHETHER THEY THEN
ANTICIPATED THE FULL SCOPE AND CHARACTER OF THE CHARGE OR THE EVIDENCE
THEY WOULD HAVE TO MEET. BUT, AS WILL APPEAR, THEY WORKED NIGHT AND
DAY AT THE TASK. EVEN SO IT WOULD HAVE BEEN IMPOSSIBLE TO DO
THOROUGHLY, HAD NOTHING MORE OCCURRED.
BUT THERE WAS MORE. ON THE FIRST DAY OF THE TRIAL, OCTOBER 29, THE
PROSECUTION FILED A SUPPLEMENTAL BILL OF PARTICULARS, CONTAINING 59
MORE SPECIFICATIONS OF THE SAME GENERAL CHARACTER, INVOLVING PERHAPS AS
MANY INCIDENTS OCCURRING OVER AN EQUALLY WIDE AREA. FN24 A COPY HAD
BEEN GIVEN THE DEFENSE THREE DAYS EARLIER. ONE ITEM, NO. 89, CHARGED
THAT AMERICAN SOLDIERS, PRISONERS OF WAR, HAD BEEN TRIED AND EXECUTED
WITHOUT NOTICE HAVING BEEN GIVEN TO THE PROTECTING POWER OF THE UNITED
STATES IN ACCORDANCE WITH THE REQUIREMENTS OF THE GENEVA CONVENTION,
WHICH IT IS NOW ARGUED, STRANGELY, THE UNITED STATES WAS NOT REQUIRED
TO OBSERVE AS TO PETITIONER'S TRIAL. FN25
BUT WHAT IS MORE IMPORTANT IS THAT DEFENSE COUNSEL, AS THEY FELT WAS
THEIR DUTY, AT ONCE MOVED FOR A CONTINUANCE. FN26 THE APPLICATION WAS
DENIED. HOWEVER THE COMMISSION INDICATED THAT IF, AT THE END OF THE
PROSECUTION'S PRESENTATION CONCERNING THE ORIGINAL BILL, COUNSEL SHOULD
"BELIEVE THEY REQUIRE ADDITIONAL TIME ..., THE COMMISSION WILL
CONSIDER SUCH A MOTION AT THAT TIME," BEFORE TAKING UP THE ITEMS OF THE
SUPPLEMENTAL BILL. COUNSEL AGAIN INDICATED, WITHOUT OTHER RESULT, THAT
TIME WAS DESIRED AT ONCE "AS MUCH, IF NOT MORE" TO PREPARE FOR CROSS
EXAMINATION "AS THE PROSECUTION'S CASE GOES IN" AS TO PREPARE
AFFIRMATIVE DEFENSE.
ON THE NEXT DAY, OCTOBER 30, THE COMMISSION INTERRUPTED THE
PROSECUTOR TO SAY IT WOULD NOT THEN LISTEN TO TESTIMONY OR DISCUSSION
UPON THE SUPPLEMENTAL BILL. AFTER COLLOQUY IT ADHERED TO ITS PRIOR
RULING AND, IN RESPONSE TO INQUIRY FROM THE PROSECUTION, THE DEFENSE
INDICATED IT WOULD REQUIRE TWO WEEKS BEFORE IT COULD PROCEED ON THE
SUPPLEMENTAL BILL. ON NOVEMBER 1 THE COMMISSION RULED IT WOULD NOT
RECEIVE AFFIDAVITS WITHOUT CORROBORATION BY WITNESSES ON ANY
SPECIFICATION, A RULING REVERSED FOUR DAYS LATER.
ON NOVEMBER 2, AFTER THE COMMISSION HAD RECEIVED AN AFFIRMATIVE
ANSWER TO ITS INQUIRY WHETHER THE DEFENSE WAS PREPARED TO PROCEED WITH
AN ITEM IN THE SUPPLEMENTAL BILL WHICH THE PROSECUTION PROPOSED TO
PROVE, IT ANNOUNCED: "HEREAFTER, THEN, UNLESS THERE IS NO OBJECTION BY
THE DEFENSE, THE COMMISSION WILL ASSUME THAT YOU ARE PREPARED TO
PROCEED WITH ANY ITEMS IN THE SUPPLEMENTAL BILL." ON NOVEMBER 8, THE
QUESTION AROSE AGAIN UPON THE PROSECUTION'S INQUIRY AS TO WHEN THE
DEFENSE WOULD BE READY TO PROCEED ON THE SUPPLEMENTAL BILL, THE
PROSECUTOR ADDING: "FRANKLY, SIR, IT TOOK THE WAR CRIMES COMMISSION
SOME THREE MONTHS TO INVESTIGATE THESE MATTERS AND I CANNOT CONCEIVE OF
THE DEFENSE UNDERTAKING A SIMILAR INVESTIGATION WITH ANY LESS PERIOD OF
TIME." STATING IT REALIZED "THE TREMENDOUS TASK WHICH WE PLACED UPON
THE DEFENSE" AND ITS "DETERMINATION TO GIVE THEM THE TIME THEY
REQUIRE," THE COMMISSION AGAIN ADHERED TO ITS RULING OF OCTOBER 29.
FOUR DAYS LATER THE COMMISSION ANNOUNCED IT WOULD GRANT A CONTINUANCE
"ONLY FOR THE MOST URGENT AND UNAVOIDABLE REASONS." FN27
ON NOVEMBER 20, WHEN THE PROSECUTION RESTED, SENIOR DEFENSE COUNSEL
MOVED FOR A REASONABLE CONTINUANCE, RECALLING THE COMMISSION'S
INDICATION THAT IT WOULD THEN CONSIDER SUCH A MOTION AND STATING THAT
SINCE OCTOBER 29 THE DEFENSE HAD BEEN "WORKING DAY AND NIGHT," WITH "NO
TIME WHATSOEVER TO PREPARE ANY AFFIRMATIVE DEFENSE," SINCE COUNSEL HAD
BEEN FULLY OCCUPIED TRYING "TO KEEP UP WITH THAT NEW BILL OF
PARTICULARS."
THE COMMISSION THEREUPON RETIRED FOR DELIBERATION AND, ON RESUMING
ITS SESSIONS SHORTLY, DENIED THE MOTION. COUNSEL THEN ASKED FOR "A
SHORT RECESS OF A DAY." THE COMMISSION SUGGESTED A RECESS UNTIL 1:30
IN THE AFTERNOON. COUNSEL RESPONDED THIS WOULD NOT SUFFICE. THE
COMMISSION STATED IT FELT "THAT THE DEFENSE SHOULD BE PREPARED AT LEAST
ON ITS OPENING STATEMENT," TO WHICH SENIOR COUNSEL ANSWERED: "WE
HAVEN'T HAD TIME TO DO THAT, SIR." THE COMMISSION THEN RECESSED UNTIL
8:30 THE FOLLOWING MORNING.
FURTHER COMMENT IS HARDLY REQUIRED. OBVIOUSLY THE BURDEN PLACED UPON
THE DEFENSE, IN THE SHORT TIME ALLOWED FOR PREPARATION ON THE ORIGINAL
BILL, WAS NOT ONLY "TREMENDOUS." IN VIEW OF ALL THE FACTS, IT WAS AN
IMPOSSIBLE ONE, EVEN THOUGH THE TIME ALLOWED WAS A WEEK LONGER THAN
ASKED. BUT THE GROSSER VICE WAS LATER WHEN THE BURDEN WAS MORE THAN
DOUBLED BY SERVICE OF THE SUPPLEMENTAL BILL ON THE EVE OF TRIAL, A
PROCEDURE WHICH, TAKEN IN CONNECTION WITH THE CONSISTENT DENIALS OF
CONTINUANCE AND THE COMMISSION'S LATER REVERSAL OF ITS RULINGS
FAVORABLE TO THE DEFENSE, WAS WHOLLY ARBITRARY, CUTTING OFF THE LAST
VESTIGE OF ADEQUATE CHANCE TO PREPARE DEFENSE AND IMPOSING A BURDEN THE
MOST ABLE COUNSEL COULD NOT BEAR. THIS SORT OF THING HAS NO PLACE IN
OUR SYSTEM OF JUSTICE, CIVIL OR MILITARY. WITHOUT MORE, THIS WIDE
DEPARTURE FROM THE MOST ELEMENTARY PRINCIPLES OF FAIRNESS VITIATED THE
PROCEEDING. WHEN ADDED TO THE OTHER DENIALS OF FUNDAMENTAL RIGHT
SKETCHED ABOVE, IT DEPRIVED THE PROCEEDING OF ANY SEMBLANCE OF TRIAL AS
WE KNOW THAT INSTITUTION.
IV.
APPLICABILITY OF THE ARTICLES OF WAR.
THE COURT'S OPINION PUTS THE PROCEEDING AND THE PETITIONER, IN SO FAR
AS ANY RIGHTS RELATING TO HIS TRIAL AND CONVICTION ARE CONCERNED,
WHOLLY OUTSIDE THE ARTICLES OF WAR. IN VIEW OF WHAT HAS TAKEN PLACE, I
THINK THE DECISION'S NECESSARY EFFECT IS ALSO TO PLACE THEM ENTIRELY
BEYOND LIMITATION AND PROTECTION, RESPECTIVELY, BY THE CONSTITUTION. I
DISAGREE AS TO BOTH CONCLUSIONS OR EFFECTS.
THE COURT RULES THAT CONGRESS HAS NOT MADE ARTICLES 25 AND 38
APPLICABLE TO THIS PROCEEDING. I THINK IT HAS MADE THEM APPLICABLE TO
THIS AND ALL OTHER MILITARY COMMISSIONS OR TRIBUNALS. IF SO, THE
COMMISSION NOT ONLY LOST ALL POWER TO PUNISH PETITIONER BY WHAT
OCCURRED IN THE PROCEEDINGS. IT NEVER ACQUIRED JURISDICTION TO TRY
HIM. FOR THE DIRECTIVE BY WHICH IT WAS CONSTITUTED, IN THE PROVISIONS
OF SEC. 16, FN28 WAS SQUARELY IN CONFLICT WITH ARTICLES 25 AND 38 OF
THE ARTICLES OF WAR FN29 AND THEREFORE WAS VOID.
ARTICLE 25 ALLOWS READING OF DEPOSITIONS IN EVIDENCE, UNDER
PRESCRIBED CONDITIONS, IN THE PLAINEST TERMS "BEFORE ANY MILITARY COURT
OR COMMISSION IN ANY CASE NOT CAPITAL," PROVIDING, HOWEVER, THAT
"TESTIMONY BY DEPOSITION MAY BE ADDUCED FOR THE DEFENSE IN CAPITAL
CASES." THIS LANGUAGE CLEARLY AND BROADLY COVERS EVERY KIND OF
MILITARY TRIBUNAL, WHETHER "COURT" OR "COMMISSION." IT COVERS ALL
CAPITAL CASES. IT MAKES NO EXCEPTION OR DISTINCTION FOR ANY ACCUSED.
ARTICLE 38 AUTHORIZES THE PRESIDENT BY REGULATIONS TO PRESCRIBE
PROCEDURE, INCLUDING MODES OF PROOF, EVEN MORE ALL-INCLUSIVELY IF
POSSIBLE, "IN CASES BEFORE COURTS-MARTIAL, COURTS OF INQUIRY, MILITARY
COMMISSIONS, AND OTHER MILITARY TRIBUNALS." LANGUAGE COULD NOT BE MORE
BROADLY INCLUSIVE. NO EXCEPTIONS ARE MENTIONED OR SUGGESTED, WHETHER
OF TRIBUNALS OR OF ACCUSED PERSONS. EVERY KIND OF MILITARY BODY FOR
PERFORMING THE FUNCTION OF TRIAL IS COVERED. THAT IS CLEAR FROM THE
FACE OF THE ARTICLE.
ARTICLE 38 MOREOVER LIMITS THE PRESIDENT'S POWER. HE IS SO FAR AS
PRACTICABLE TO PRESCRIBE "THE RULES OF EVIDENCE GENERALLY RECOGNIZED IN
THE TRIAL OF CRIMINAL CASES IN THE DISTRICT COURTS OF THE UNITED
STATES," A CLEAR MANDATE THAT CONGRESS INTENDED ALL MILITARY TRIALS TO
CONFORM AS CLOSELY AS POSSIBLE TO OUR CUSTOMARY PROCEDURAL AND
EVIDENTIARY PROTECTIONS, CONSTITUTIONAL AND STATUTORY, FOR ACCUSED
PERSONS. BUT THERE ARE ALSO TWO UNQUALIFIED LIMITATIONS, ONE "THAT
NOTHING CONTRARY TO OR INCONSISTENT WITH THESE ARTICLES (SPECIFICALLY
HERE ARTICLE 25) SHALL BE SO PRESCRIBED"; THE OTHER "THAT ALL RULES
MADE IN PURSUANCE OF THIS ARTICLE SHALL BE LAID BEFORE THE CONGRESS
ANNUALLY."
NOTWITHSTANDING THESE BROAD TERMS THE COURT, RESTING CHIEFLY ON
ARTICLE 2, CONCLUDES THE PETITIONER WAS NOT AMONG THE PERSONS THERE
DECLARED TO BE SUBJECT TO THE ARTICLES OF WAR AND THEREFORE THE
COMMISSION WHICH TRIES HIM IS NOT SUBJECT TO THEM. THAT ARTICLE DOES
NOT COVER PRISONERS OF WAR OR WAR CRIMINALS. NEITHER DOES IT COVER
CIVILIANS IN OCCUPIED TERRITORIES, THEATRES OF MILITARY OPERATIONS OR
OTHER PLACES UNDER MILITARY JURISDICTION WITHIN OR WITHOUT THE UNITED
STATES OR TERRITORY SUBJECT TO ITS SOVEREIGNTY, WHETHER THEY BE
NEUTRALS OR ENEMY ALIENS, EVEN CITIZENS OF THE UNITED STATES, UNLESS
THEY ARE CONNECTED IN THE MANNER ARTICLE 2 PRESCRIBES WITH OUR ARMED
FORCES, EXCLUSIVE OF THE NAVY.
THE LOGIC WHICH EXCLUDES PETITIONER ON THE BASIS THAT PRISONERS OF
WAR ARE NOT MENTIONED IN ARTICLE 2 WOULD EXCLUDE ALL THESE. I STRONGLY
DOUBT THE COURT WOULD GO SO FAR, IF PRESENTED WITH A TRIAL LIKE THIS IN
SUCH INSTANCES. NOR DOES IT FOLLOW NECESSARILY THAT, BECAUSE SOME
PERSONS MAY NOT BE MENTIONED IN ARTICLE 2, THEY CAN BE TRIED WITHOUT
REGARD TO ANY OF THE LIMITATIONS PLACED BY ANY OF THE OTHER ARTICLES
UPON MILITARY TRIBUNALS.
ARTICLE 2 IN DEFINING PERSONS "SUBJECT TO THE ARTICLES OF WAR" WAS, I
THINK, SPECIFYING THOSE TO WHOM THE ARTICLES IN GENERAL WERE
APPLICABLE. AND THERE IS NO DISPUTE THAT MOST OF THE ARTICLES ARE NOT
APPLICABLE TO THE PETITIONER. IT DOES NOT FOLLOW, HOWEVER, AND ARTICLE
2 DOES NOT PROVIDE, THAT THERE MAY NOT BE IN THE ARTICLES SPECIFIC
PROVISIONS COVERING PERSONS OTHER THAN THOSE SPECIFIED IN ARTICLE 2.
HAD IT SO PROVIDED, ARTICLE 2 WOULD HAVE BEEN CONTRADICTORY NOT ONLY OF
ARTICLES 25 AND 38 BUT ALSO OF ARTICLE 15 AMONG OTHERS. IN 1916,
WHEN THE LAST GENERAL REVISION OF THE ARTICLES OF WAR TOOK PLACE, FN30
FOR THE FIRST TIME CERTAIN OF THE ARTICLES WERE SPECIFICALLY MADE
APPLICABLE TO MILITARY COMMISSIONS. UNTIL THEN THEY HAD APPLIED ONLY
TO COURTS-MARTIAL. THERE WERE TWO PURPOSES, THE FIRST TO GIVE
STATUTORY RECOGNITION TO THE MILITARY COMMISSION WITHOUT LOSS OF PRIOR
JURISDICTION AND THE SECOND TO GIVE THOSE TRIED BEFORE MILITARY
COMMISSIONS SOME OF THE MORE IMPORTANT PROTECTIONS AFFORDED PERSONS
TRIED BY COURTS-MARTIAL.
IN ORDER TO EFFECTUATE THE FIRST PURPOSE, THE ARMY PROPOSED ARTICLE
15. FN31 TO EFFECTUATE THE SECOND PURPOSE, ARTICLES 25 AND 38 AND
SEVERAL OTHERS WERE PROPOSED. FN32 BUT AS THE COURT NOW CONSTRUES THE
ARTICLES OF WAR, THEY HAVE NO APPLICATION TO MILITARY COMMISSIONS
BEFORE WHICH ALLEGED OFFENDERS AGAINST THE LAWS OF WAR ARE TRIED. WHAT
THE COURT HOLDS IN EFFECT IS THAT THERE ARE TWO TYPES OF MILITARY
COMMISSION, ONE TO TRY OFFENSES WHICH MIGHT BE COGNIZABLE BY A COURT
MARTIAL, THE OTHER TO TRY WAR CRIMES, AND THAT CONGRESS INTENDED THE
ARTICLES OF WAR REFERRING IN TERMS TO MILITARY COMMISSIONS WITHOUT
EXCEPTION TO BE APPLICABLE ONLY TO THE FIRST TYPE.
THIS MISCONCEIVES BOTH THE HISTORY OF MILITARY COMMISSIONS AND THE
LEGISLATIVE HISTORY OF THE ARTICLES OF WAR. THERE IS ONLY ONE KIND OF
MILITARY COMMISSION. IT IS TRUE, AS THE HISTORY NOTED SHOWS, THAT WHAT
IS NOW CALLED "THE MILITARY COMMISSION" AROSE FROM TWO SEPARATE
MILITARY COURTS INSTITUTED DURING THE MEXICAN WAR. THE FIRST MILITARY
COURT, CALLED BY GENERAL SCOTT A "MILITARY COMMISSION," WAS GIVEN
JURISDICTION IN MEXICO OVER CRIMINAL OFFENSES OF THE CLASS COGNIZABLE
BY CIVIL COURTS IN TIME OF PEACE. THE OTHER MILITARY COURT, CALLED A
"COUNCIL OF WAR," WAS GIVEN JURISDICTION OVER OFFENSES AGAINST THE LAWS
OF WAR. WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED., REPRINTED
1920)* 1298-1299. DURING THE CIVIL WAR "THE TWO JURISDICTIONS OF THE
EARLIER COMMISSION AND COUNCIL RESPECTIVELY ... (WERE) UNITED IN THE
... WAR-COURT, FOR WHICH THE GENERAL DESIGNATION OF 'MILITARY
COMMISSION' WAS RETAINED AS THE PREFERABLE ONE." WINTHROP, SUPRA, AT*
1299. SINCE THAT TIME THERE HAS BEEN ONLY ONE TYPE OF MILITARY
TRIBUNAL CALLED THE MILITARY COMMISSION, THOUGH IT MAY EXERCISE
DIFFERENT KINDS OF JURISDICTION, FN33 ACCORDING TO THE CIRCUMSTANCES
UNDER WHICH AND PURPOSES FOR WHICH IT IS CONVENED.
THE TESTIMONY OF GENERAL CROWDER IS PERHAPS THE MOST AUTHORITATIVE
EVIDENCE OF WHAT WAS INTENDED BY THE LEGISLATION, FOR HE WAS ITS MOST
ACTIVE OFFICIAL SPONSOR, SPENDING YEARS IN SECURING ITS ADOPTION AND
REVISION. ARTICLES 15, 25 AND 38 PARTICULARLY ARE TRACEABLE TO HIS
EFFORTS. HIS CONCERN TO SECURE STATUTORY RECOGNITION FOR MILITARY
COMMISSIONS WAS EQUALLED BY HIS CONCERN THAT THE STATUTORY PROVISIONS
GIVING THIS SHOULD NOT RESTRICT THEIR PREEXISTING JURISDICTION. HE DID
NOT WISH BY SECURING ADDITIONAL JURISDICTION, OVERLAPPING PARTIALLY
THAT OF THE COURT-MARTIAL, TO SURRENDER OTHER. HENCE ARTICLE 15. THAT
ARTICLE HAD ONE PURPOSE AND ONE ONLY. IT WAS TO MAKE SURE THAT THE
ACQUISITION OF PARTIALLY CONCURRENT JURISDICTION WITH COURTS-MARTIAL
SHOULD NOT CAUSE LOSS OF ANY OTHER. AND IT WAS JURISDICTION, NOT
PROCEDURE, WHICH WAS COVERED BY OTHER ARTICLES, WITH WHICH HE AND
CONGRESS WERE CONCERNED IN THAT ARTICLE. IT DISCLOSES NO PURPOSE TO
DEAL IN ANY WAY WITH PROCEDURE OR TO QUALIFY ARTICLES 25 AND 38. AND
IT IS CLEAR THAT GENERAL CROWDER AT ALL TIMES REGARDED ALL MILITARY
COMMISSIONS AS BEING GOVERNED BY THE IDENTICAL PROCEDURE. IN FACT, SO
FAR AS ARTICLES 25 AND 38 ARE CONCERNED, THIS SEEMS OBVIOUS FOR ALL
TYPES OF MILITARY TRIBUNALS. THE SAME WOULD APPEAR TO BE TRUE OF OTHER
ARTICLES ALSO, E.G., 24(PROHIBITING COMPULSORY SELF-INCRIMINATION), 26,
27, 32(CONTEMPTS), ALL EXCEPT THE LAST DEALING WITH PROCEDURAL
MATTERS.
ARTICLE 12 IS ESPECIALLY SIGNIFICANT. IT EMPOWERS GENERAL COURTS
MARTIAL TO TRY TWO CLASSES OF OFFENDERS: (1) "ANY PERSON SUBJECT TO
MILITARY LAW," UNDER THE DEFINITION OF ARTICLE 2, FOR ANY OFFENSE "MADE
PUNISHABLE BY THESE ARTICLES"; (2) "AND ANY OTHER PERSON WHO BY THE LAW
OF WAR IS SUBJECT TO TRIAL BY MILITARY TRIBUNALS," NOT COVERED BY THE
TERMS OF ARTICLE 2.
ARTICLE 12 THUS, IN CONFORMITY WITH ARTICLE 15, GIVES THE GENERAL
COURT-MARTIAL CONCURRENT JURISDICTION OF WAR CRIMES AND WAR CRIMINALS
WITH MILITARY COMMISSIONS. NEITHER IT NOR ANY OTHER ARTICLE STATES OR
INDICATES THERE ARE TO BE TWO KINDS OF GENERAL COURTS-MARTIAL FOR
TRYING WAR CRIMES; YET THIS IS THE NECESSARY RESULT OF THE COURT'S
DECISION, UNLESS IN THE ALTERNATIVE THAT WOULD BE TO IMPLY THAT IN
EXERCISING SUCH JURISDICTION THERE IS ONLY ONE KIND OF GENERAL COURT
MARTIAL, BUT THERE ARE TWO OR MORE KINDS OF MILITARY COMMISSION, WITH
WHOLLY DIFFERENT PROCEDURES AND WITH THE RESULT THAT "THE COMMANDER IN
THE FIELD" WILL NOT BE FREE TO DETERMINE WHETHER GENERAL COURT-MARTIAL
OR MILITARY COMMISSION SHALL BE USED AS THE CIRCUMSTANCES MAY DICTATE,
BUT MUST GOVERN HIS CHOICE BY THE KIND OF PROCEDURE HE WISHES TO HAVE
EMPLOYED.
THE ONLY REASONABLE AND, I THINK, POSSIBLE CONCLUSION TO DRAW FROM
THE ARTICLES IS THAT THE ARTICLES WHICH ARE IN TERMS APPLICABLE TO
MILITARY COMMISSIONS ARE SO UNIFORMLY AND THOSE APPLICABLE TO BOTH SUCH
COMMISSIONS AND TO COURTS-MARTIAL WHEN EXERCISING JURISDICTION OVER
OFFENDERS AGAINST THE LAWS OF WAR LIKEWISE ARE UNIFORMLY APPLICABLE.
AND NOT DIVERSELY ACCORDING TO THE PERSON OR OFFENSE BEING TRIED.
NOT ONLY THE FACE OF THE ARTICLES, BUT SPECIFIC STATEMENTS IN GENERAL
CROWDER'S TESTIMONY SUPPORT THIS VIEW. THUS IN THE PORTION QUOTED
ABOVE FN34 FROM HIS 1916 STATEMENT, AFTER STATING EXPRESSLY THE
PURPOSE OF ARTICLE 15 TO PRESERVE UNIMPAIRED THE MILITARY COMMISSION'S
JURISDICTION, AND TO MAKE IT CONCURRENT WITH THAT OF COURTS-MARTIAL IN
SO FAR AS THE TWO WOULD OVERLAP, "SO THAT THE MILITARY COMMANDER IN THE
FIELD IN TIME OF WAR WILL BE AT LIBERTY TO EMPLOY EITHER FORM OF COURT
THAT HAPPENS TO BE CONVENIENT," HE WENT ON TO SAY: "BOTH CLASSES OF
COURTS HAVE THE SAME PROCEDURE," A STATEMENT SO UNEQUIVOCAL AS TO LEAVE
NO ROOM FOR QUESTION. AND HIS QUOTATION FROM WINTHROP SUPPORTS HIS
STATEMENT, NAMELY: "ITS (I.E., THE MILITARY COMMISSION'S) COMPOSITION,
CONSTITUTION AND PROCEDURE FOLLOW THE ANALOGY OF COURTS-MARTIAL."
AT NO POINT IN THE TESTIMONY IS THERE SUGGESTION THAT THERE ARE TWO
TYPES OF MILITARY COMMISSION, ONE BOUND BY THE PROCEDURAL PROVISIONS OF
THE ARTICLES, THE OTHER WHOLLY FREE FROM THEIR RESTRAINTS OR, AS THE
COURT STRANGELY PUTS THE MATTER, THAT THERE IS ONLY ONE KIND OF
COMMISSION, BUT THAT IT IS BOUND OR NOT BOUND BY THE ARTICLES
APPLICABLE IN TERMS, DEPENDING UPON WHO IS BEING TRIED AND FOR WHAT
OFFENSE; FOR THAT VERY DIFFERENCE MAKES THE DIFFERENCE BETWEEN ONE AND
TWO. THE HISTORY AND THE DISCUSSION SHOW CONCLUSIVELY THAT GENERAL
CROWDER WISHED TO SECURE AND CONGRESS INTENDED TO GIVE STATUTORY
RECOGNITION TO ALL FORMS OF MILITARY TRIBUNALS; TO ENABLE COMMANDING
OFFICERS IN THE FIELD TO USE EITHER COURT-MARTIAL OR MILITARY
COMMISSION AS CONVENIENCE MIGHT DICTATE, THUS BROADENING TO THIS EXTENT
THE LATTER'S JURISDICTION AND UTILITY; BUT AT THE SAME TIME TO PRESERVE
ITS FULL PREEXISTING JURISDICTION; AND ALSO TO LAY DOWN IDENTICAL
PROVISIONS FOR GOVERNING OR PROVIDING FOR THE GOVERNMENT OF THE
PROCEDURE AND RULES OF EVIDENCE OF EVERY TYPE OF MILITARY TRIBUNAL,
WHEREVER AND HOWEVER CONSTITUTED. FN35
FINALLY, UNLESS CONGRESS WAS LEGISLATING WITH REGARD TO ALL MILITARY
COMMISSIONS, ARTICLE 38, WHICH GIVES THE PRESIDENT THE POWER TO
"PRESCRIBE THE PROCEDURE, INCLUDING MODES OF PROOF, IN CASES BEFORE
COURTS-MARTIAL, COURTS OF INQUIRY, MILITARY COMMISSIONS, AND OTHER
MILITARY TRIBUNALS," TAKES ON A RATHER SENSELESS MEANING; FOR THE
PRESIDENT WOULD HAVE SUCH POWER ONLY WITH RESPECT TO THOSE MILITARY
COMMISSIONS EXERCISING CONCURRENT JURISDICTION WITH COURTS-MARTIAL.
ALL THIS SEEMS SO OBVIOUS, UPON A MERE READING OF THE ARTICLES
THEMSELVES AND THE LEGISLATIVE HISTORY, AS NOT TO REQUIRE
DEMONSTRATION. AND ALL THIS CONGRESS KNEW, AS THAT HISTORY SHOWS. IN
THE FACE OF THAT SHOWING I CANNOT ACCEPT THE COURT'S HIGHLY STRAINED
CONSTRUCTION, FIRST, BECAUSE I THINK IT IS IN PLAIN CONTRADICTION OF
THE FACTS DISCLOSED BY THE HISTORY OF ARTICLES 15, 25 AND 38 AS WELL AS
THEIR LANGUAGE; AND ALSO BECAUSE THAT CONSTRUCTION DEFEATS AT LEAST TWO
OF THE ENDS GENERAL CROWDER HAD IN MIND, NAMELY, TO SECURE STATUTORY
RECOGNITION FOR EVERY FORM OF MILITARY TRIBUNAL AND TO PROVIDE FOR THEM
A BASIC UNIFORM MODE OF PROCEDURE OR METHOD OF PROVIDING FOR THEIR
PROCEDURE.
ACCORDINGLY, I THINK ARTICLES 25 AND 38 ARE APPLICABLE TO THIS
PROCEEDING; THAT THE PROVISIONS OF THE GOVERNING DIRECTIVE IN SEC. 16
ARE IN DIRECT CONFLICT WITH THOSE ARTICLES; AND FOR THAT REASON THE
COMMISSION WAS INVALIDLY CONSTITUTED, WAS WITHOUT JURISDICTION, AND ITS
SENTENCE IS THEREFORE VOID.
V.
THE GENEVA CONVENTION OF 1929.
IF THE PROVISIONS OF ARTICLES 25 AND 38 WERE NOT APPLICABLE TO THE
PROCEEDING BY THEIR OWN FORCE AS ACTS OF CONGRESS, I THINK THEY WOULD
STILL BE MADE APPLICABLE BY VIRTUE OF THE TERMS OF THE GENEVA
CONVENTION OF 1929, IN PARTICULAR ARTICLE 63. AND IN OTHER RESPECTS,
IN MY OPINION, THE PETITIONER'S TRIAL WAS NOT IN ACCORD WITH THAT
TREATY, NAMELY, WITH ARTICLE 60.
THE COURT DOES NOT HOLD THAT THE GENEVA CONVENTION IS NOT BINDING
UPON THE UNITED STATES AND NO SUCH CONTENTION HAS BEEN MADE IN THIS
CASE. FN36 IT RELIES ON OTHER ARGUMENTS TO SHOW THAT ARTICLE 60,
WHICH PROVIDES THAT THE PROTECTING POWER SHALL BE NOTIFIED IN ADVANCE
OF A JUDICIAL PROCEEDING DIRECTED AGAINST A PRISONER OF WAR, AND
ARTICLE 63, WHICH PROVIDES THAT A PRISONER OF WAR MAY BE TRIED ONLY BY
THE SAME COURTS AND ACCORDING TO THE SAME PROCEDURE AS IN THE CASE OF
PERSONS BELONGING TO THE ARMED FORCES OF THE DETAINING POWER, ARE NOT
PROPERLY INVOKED BY THE PETITIONER. BEFORE CONSIDERING THE COURT'S
VIEW THAT THESE ARTICLES ARE NOT APPLICABLE TO THIS PROCEEDING BY THEIR
TERMS, IT MAY BE NOTED THAT ON HIS SURRENDER PETITIONER WAS INTERNED IN
CONFORMITY WITH ARTICLE 9 OF THIS CONVENTION.
THE CHIEF ARGUMENT IS THAT ARTICLES 60 AND 63 HAVE REFERENCE ONLY TO
OFFENSES COMMITTED BY A PRISONER OF WAR WHILE A PRISONER OF WAR AND NOT
TO VIOLATIONS OF THE LAWS OF WAR COMMITTED WHILE A COMBATANT. THIS
CONCLUSION IS DERIVED FROM THE SETTING IN WHICH THESE ARTICLES ARE
PLACED. I DO NOT AGREE THAT THE CONTEXT GIVES ANY SUPPORT TO THIS
ARGUMENT. THE ARGUMENT IS IN ESSENCE OF THE SAME TYPE AS THE ARGUMENT
THE COURT EMPLOYS TO NULLIFY THE APPLICATION OF ARTICLES 25 AND 38 OF
THE ARTICLES OF WAR BY RESTRICTING THEIR OWN BROADER COVERAGE BY
REFERENCE TO ARTICLE 2. FOR REASONS SET FORTH IN THE MARGIN, FN37 I
THINK IT EQUALLY INVALID HERE.
NEITHER ARTICLE 60 NOR ARTICLE 63 CONTAINS SUCH A RESTRICTION OF
MEANING AS THE COURT READS INTO THEM. FN38 IN THE ABSENCE OF ANY SUCH
LIMITATION, IT WOULD SEEM THAT THEY WERE INTENDED TO COVER ALL JUDICIAL
PROCEEDINGS, WHETHER INSTITUTED FOR CRIMES ALLEGEDLY COMMITTED BEFORE
CAPTURE OR LATER. POLICY SUPPORTS THIS VIEW. FOR SUCH A CONSTRUCTION
IS REQUIRED FOR THE SECURITY OF OUR OWN SOLDIERS, TAKEN PRISONER, AS
MUCH AS FOR THAT OF PRISONERS WE TAKE. AND THE OPPOSITE ONE LEAVES
PRISONERS OF WAR OPEN TO ANY FORM OF TRIAL AND PUNISHMENT FOR OFFENSES
AGAINST THE LAWS OF WAR THEIR CAPTORS MAY WISH TO USE, WHILE
SAFEGUARDING THEM, TO THE EXTENT OF THE TREATY LIMITATIONS, IN CASES OF
DISCIPLINARY OFFENSE. THIS, IN MANY INSTANCES, WOULD BE TO MAKE THE
TREATY STRAIN AT A GNAT AND SWALLOW THE CAMEL.
THE UNITED STATES HAS COMPLIED WITH NEITHER OF THESE ARTICLES. IT
DID NOT NOTIFY THE PROTECTING POWER OF JAPAN IN ADVANCE OF TRIAL AS
ARTICLE 60 REQUIRES IT TO DO, ALTHOUGH THE SUPPLEMENTAL BILL CHARGES
THE SAME FAILURE TO PETITIONER IN ITEM 89. FN39 IT IS SAID THAT,
ALTHOUGH THIS MAY BE TRUE, THE PROCEEDING IS NOT THEREBY INVALIDATED.
THE ARGUMENT IS THAT OUR NONCOMPLIANCE MERELY GIVES JAPAN A RIGHT OF
INDEMNITY AGAINST US AND THAT ARTICLE 60 WAS NOT INTENDED TO GIVE
YAMASHITA ANY PERSONAL RIGHTS. I CANNOT AGREE. THE TREATIES MADE BY
THE UNITED STATES ARE BY THE CONSTITUTION MADE THE SUPREME LAW OF THE
LAND. IN THE ABSENCE OF SOMETHING IN THE TREATY INDICATING THAT ITS
PROVISIONS WERE NOT INTENDED TO BE ENFORCED, UPON BREACH, BY MORE THAN
SUBSEQUENT INDEMNIFICATION, IT IS, AS I CONCEIVE IT, THE DUTY OF THE
COURTS OF THIS COUNTRY TO INSURE THE NATION'S COMPLIANCE WITH SUCH
TREATIES, EXCEPT IN THE CASE OF POLITICAL QUESTIONS. THIS IS
ESPECIALLY TRUE WHERE THE TREATY HAS PROVISIONS - SUCH AS ARTICLE 60 -
FOR THE PROTECTION OF A MAN BEING TRIED FOR AN OFFENSE THE PUNISHMENT
FOR WHICH IS DEATH; FOR TO SAY THAT IT WAS INTENDED TO PROVIDE FOR
ENFORCEMENT OF SUCH PROVISIONS SOLELY BY CLAIM, AFTER BREACH, OF
INDEMNITY WOULD BE IN MANY INSTANCES, ESPECIALLY THOSE INVOLVING TRIAL
OF NATIONALS OF A DEFEATED NATION BY A CONQUERING ONE, TO DEPRIVE THE
ARTICLES OF ALL FORCE. EXECUTED MEN ARE NOT MUCH AIDED BY POSTWAR
CLAIMS FOR INDEMNITY. I DO NOT THINK THE ADHERING POWERS' PURPOSE WAS
TO PROVIDE ONLY FOR SUCH INEFFECTIVE RELIEF.
FINALLY, THE GOVERNMENT HAS ARGUED THAT ARTICLE 60 HAS NO APPLICATION
AFTER THE ACTUAL CESSATION OF HOSTILITIES, AS THERE IS NO LONGER ANY
NEED FOR AN INTERVENING POWER BETWEEN THE TWO BELLIGERENTS. THE
PREMISE IS THAT JAPAN NO LONGER NEEDS SWITZERLAND TO INTERVENE WITH THE
UNITED STATES TO PROTECT THE RIGHTS OF JAPANESE NATIONALS, SINCE JAPAN
IS NOW IN DIRECT COMMUNICATION WITH THIS GOVERNMENT. THIS OF COURSE IS
IN CONTRADICTION OF THE GOVERNMENT'S THEORY, IN OTHER CONNECTIONS, THAT
THE WAR IS NOT OVER AND MILITARY NECESSITY STILL REQUIRES USE OF ALL
THE POWER NECESSARY FOR ACTUAL COMBAT. FURTHERMORE THE PREMISE
OVERLOOKS ALL THE REALITIES OF THE SITUATION. JAPAN IS A DEFEATED
POWER, HAVING SURRENDERED, IF NOT UNCONDITIONALLY THEN UNDER THE MOST
SEVERE CONDITIONS. HER TERRITORY IS OCCUPIED BY AMERICAN MILITARY
FORCES. SHE IS SCARCELY IN A POSITION TO BARGAIN WITH US OR TO ASSERT
HER RIGHTS. NOR CAN HER NATIONALS. SHE NO LONGER HOLDS AMERICAN
PRISONERS OF WAR. FN40 CERTAINLY, IF THERE WAS THE NEED OF AN
INDEPENDENT NEUTRAL TO PROTECT HER NATIONALS DURING THE WAR, THERE IS
MORE NOW. IN MY OPINION THE FAILURE TO GIVE THE NOTICE REQUIRED BY
ARTICLE 60 IS ONLY ANOTHER INSTANCE OF THE COMMISSION'S FAILURE TO
OBSERVE THE OBLIGATIONS OF OUR LAW.
WHAT IS MORE IMPORTANT, THERE WAS NO COMPLIANCE WITH ARTICLE 63 OF
THE SAME CONVENTION. YAMASHITA WAS NOT TRIED "ACCORDING TO THE SAME
PROCEDURE AS IN THE CASE OF PERSONS BELONGING TO THE ARMED FORCES OF
THE DETAINING POWER." HAD ONE OF OUR SOLDIERS OR OFFICERS BEEN TRIED
FOR ALLEGED WAR CRIMES, HE WOULD HAVE BEEN ENTITLED TO THE BENEFITS OF
THE ARTICLES OF WAR. I THINK THAT YAMASHITA WAS EQUALLY ENTITLED TO
THE SAME PROTECTION. IN ANY EVENT, HE WAS ENTITLED TO THEIR BENEFITS
UNDER THE PROVISIONS OF ARTICLE 63 OF THE GENEVA CONVENTION. THOSE
BENEFITS HE DID NOT RECEIVE. ACCORDINGLY, HIS TRIAL WAS IN VIOLATION
OF THE CONVENTION.
VI.
THE FIFTH AMENDMENT.
WHOLLY APART FROM THE VIOLATION OF THE ARTICLES OF WAR AND OF THE
GENEVA CONVENTION, I AM COMPLETELY UNABLE TO ACCEPT OR TO UNDERSTAND
THE COURT'S RULING CONCERNING THE APPLICABILITY OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT TO THIS CASE. NOT HERETOFORE HAS IT BEEN
HELD THAT ANY HUMAN BEING IS BEYOND ITS UNIVERSALLY PROTECTING SPREAD
IN THE GUARANTY OF A FAIR TRIAL IN THE MOST FUNDAMENTAL SENSE. THAT
DOOR IS DANGEROUS TO OPEN. I WILL HAVE NO PART IN OPENING IT. FOR
ONCE IT IS AJAR, EVEN FOR ENEMY BELLIGERENTS, IT CAN BE PUSHED BACK
WIDER FOR OTHERS, PERHAPS ULTIMATELY FOR ALL.
THE COURT DOES NOT DECLARE EXPRESSLY THAT PETITIONER AS AN ENEMY
BELLIGERENT HAS NO CONSTITUTIONAL RIGHTS, A RULING I COULD UNDERSTAND
BUT NOT ACCEPT. NEITHER DOES IT AFFIRM THAT HE HAS SOME, IF BUT
LITTLE, CONSTITUTIONAL PROTECTION. NOR DOES THE COURT DEFEND WHAT WAS
DONE. I THINK THE EFFECT OF WHAT IT DOES IS IN SUBSTANCE TO DENY HIM
ALL SUCH SAFEGUARDS. AND THIS IS THE GREAT ISSUE IN THE CAUSE.
FOR IT IS EXACTLY HERE WE ENTER WHOLLY UNTRODDEN GROUND. THE SAFE
SIGNPOSTS TO THE REAR ARE NOT IN THE SUM OF PROTECTIONS SURROUNDING
JURY TRIALS OR ANY OTHER PROCEEDING KNOWN TO OUR LAW. NOR IS THE
ESSENCE OF THE FIFTH AMENDMENT'S ELEMENTARY PROTECTION COMPREHENDED IN
ANY SINGLE ONE OF OUR TIME-HONORED SPECIFIC CONSTITUTIONAL SAFEGUARDS
IN TRIAL, THOUGH THERE ARE SOME WITHOUT WHICH THE WORDS "FAIR TRIAL"
AND ALL THEY CONNOTE BECOME A MOCKERY.
APART FROM A TRIBUNAL CONCERNED THAT THE LAW AS APPLIED SHALL BE AN
INSTRUMENT OF JUSTICE, ALBEIT STERN IN MEASURE TO THE GUILT
ESTABLISHED, THE HEART OF THE SECURITY LIES IN TWO THINGS. ONE IS THAT
CONVICTION SHALL NOT REST IN ANY ESSENTIAL PART UPON UNCHECKED RUMOR,
REPORT, OR THE RESULTS OF THE PROSECUTION'S EX PARTE INVESTIGATIONS,
BUT SHALL STAND ON PROVEN FACT; THE OTHER, CORRELATIVE, LIES IN A FAIR
CHANCE TO DEFEND. THIS EMBRACES AT THE LEAST THE RIGHTS TO KNOW WITH
REASONABLE CLARITY IN ADVANCE OF THE TRIAL THE EXACT NATURE OF THE
OFFENSE WITH WHICH ONE IS TO BE CHARGED; TO HAVE REASONABLE TIME FOR
PREPARING TO MEET THE CHARGE AND TO HAVE THE AID OF COUNSEL IN DOING
SO, AS ALSO IN THE TRIAL ITSELF; AND IF, DURING ITS COURSE, ONE IS
TAKEN BY SURPRISE, THROUGH THE INJECTION OF NEW CHARGES OR REVERSAL OF
RULINGS WHICH BRINGS FORTH NEW MASSES OF EVIDENCE, THEN TO HAVE FURTHER
REASONABLE TIME FOR MEETING THE UNEXPECTED SHIFT.
SO FAR AS I KNOW, IT HAS NOT YET BEEN HELD THAT ANY TRIBUNAL IN OUR
SYSTEM, OF WHATEVER CHARACTER, IS FREE TO RECEIVE SUCH EVIDENCE "AS IN
ITS OPINION WOULD BE OF ASSISTANCE IN PROVING OR DISPROVING THE
CHARGE," OR, AGAIN AS IN ITS OPINION, "WOULD HAVE PROBATIVE VALUE IN
THE MIND OF A REASONABLE MAN"; AND, HAVING RECEIVED WHAT IN ITS
UNLIMITED DISCRETION IT REGARDS AS SUFFICIENT, IS ALSO FREE TO
DETERMINE WHAT WEIGHT MAY BE GIVEN TO THE EVIDENCE RECEIVED WITHOUT
RESTRAINT. FN41
WHEN TO THIS FATAL DEFECT IN THE DIRECTIVE, HOWEVER INNOCENTLY MADE,
ARE ADDED THE BROAD DEPARTURES FROM THE FUNDAMENTALS OF FAIR PLAY IN
THE PROOF AND IN THE RIGHT TO DEFEND WHICH OCCURRED THROUGHOUT THE
PROCEEDING, THERE CAN BE NO ACCOMMODATION WITH THE DUE PROCESS OF LAW
WHICH THE FIFTH AMENDMENT DEMANDS.
ALL THIS THE COURT PUTS TO ONE SIDE WITH THE SHORT ASSERTION THAT NO
QUESTION OF DUE PROCESS UNDER THE FIFTH AMENDMENT OR JURISDICTION
REVIEWABLE HERE IS PRESENTED. I DO NOT THINK THIS MEETS THE ISSUE,
STANDING ALONE OR IN CONJUNCTION WITH THE SUGGESTION WHICH FOLLOWS THAT
THE COURT GIVES NO INTIMATION ONE WAY OR THE OTHER CONCERNING WHAT
FIFTH AMENDMENT DUE PROCESS MIGHT REQUIRE IN OTHER SITUATIONS.
IT MAY BE APPROPRIATE TO ADD HERE THAT, ALTHOUGH WITHOUT DOUBT THE
DIRECTIVE WAS DRAWN IN GOOD FAITH IN THE BELIEF THAT IT WOULD EXPEDITE
THE TRIAL AND THAT ENEMY BELLIGERENTS IN PETITIONER'S POSITION WERE NOT
ENTITLED TO MORE, THAT STATE OF MIND AND PURPOSE CANNOT CURE THE
NULLIFICATION OF BASIC CONSTITUTIONAL STANDARDS WHICH HAS TAKEN PLACE.
IT IS NOT NECESSARY TO RECAPITULATE. THE DIFFERENCE BETWEEN THE
COURT'S VIEW OF THIS PROCEEDING AND MY OWN COMES DOWN IN THE END TO THE
VIEW, ON THE ONE HAND, THAT THERE IS NO LAW RESTRICTIVE UPON THESE
PROCEEDINGS OTHER THAN WHATEVER RULES AND REGULATIONS MAY BE PRESCRIBED
FOR THEIR GOVERNMENT BY THE EXECUTIVE AUTHORITY OR THE MILITARY AND, ON
THE OTHER HAND, THAT THE PROVISIONS OF THE ARTICLES OF WAR, OF THE
GENEVA CONVENTION AND THE FIFTH AMENDMENT APPLY.
I CANNOT ACCEPT THE VIEW THAT ANYWHERE IN OUR SYSTEM RESIDES OR LURKS
A POWER SO UNRESTRAINED TO DEAL WITH ANY HUMAN BEING THROUGH ANY
PROCESS OF TRIAL. WHAT MILITARY AGENCIES OR AUTHORITIES MAY DO WITH
OUR ENEMIES IN BATTLE OR INVASION, APART FROM PROCEEDINGS IN THE NATURE
OF TRIAL AND SOME SEMBLANCE OF JUDICIAL ACTION, IS BESIDE THE POINT.
NOR HAS ANY HUMAN BEING HERETOFORE BEEN HELD TO BE WHOLLY BEYOND
ELEMENTARY PROCEDURAL PROTECTION BY THE FIFTH AMENDMENT. I CANNOT
CONSENT TO EVEN IMPLIED DEPARTURE FROM THAT GREAT ABSOLUTE.
IT WAS A GREAT PATRIOT WHO SAID:
"HE THAT WOULD MAKE HIS OWN LIBERTY SECURE MUST GUARD EVEN HIS ENEMY
FROM OPPRESSION; FOR IF HE VIOLATES THIS DUTY HE ESTABLISHES A
PRECEDENT THAT WILL REACH TO HIMSELF." FN42
Part I Part II Part III Part IV Part V
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