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 *42of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become toó 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 *43consideration 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 lgft 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;1 or in language not sufficient to inform him of the nature of the offense or to enable him to make defense.2 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 *44prevent 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;3 *3 in capital or other serious crimes to convict, on “official documents . affidavits; . . . documents or translations thereof; diaries . . ., photographs, motion picture films, and. . . newspapers” 4 or on hearsay, once, twice or thrice removed,5 6more 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.6
Our tradition does not allow conviction by tribunals both authorized and bound7 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 cred*45ibility, 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 *46belligerent 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 wé 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, consist*47ently with universal constitutional commands or outside their restricting effects. In this sense I think thé 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.
*48II.
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.8 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 § 16, set forth below,9 is crucial.
*49Section 16, as will be noted, permits reception of documents, 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,10 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 *50by 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.11
The findings reflect the character of the proof and the charge. The statement quoted above12 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,13 in the further statement that “the Prose*51cution presented evidence to show that the crimes were so extensive and widespread, both as to time and area,14 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.15 (Emphasis added.) Indeed the commission’s ultimate findings16 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 *52the 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,17 the case has been *53presented 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.18
Moreover counsel assert in the brief, and this also is not denied, that the sole proof made of certain of the specifi*54cations 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,19 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 fla*55grant,20 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.21
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 *56of 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 défense, 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 hot 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.
III.
Denial of Opportunity to Prepare Defense.
Petitioner surrendered September .3, 1945, and was in- . temed as a prisoner of war in conformity with Article 9 *57of the Geneva Convention of July 27, 1929.22- 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.23 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 par*58ticulars, containing 59 more specifications of the same general character, involving perhaps as many incidents occurring over an equally wide area.24 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.25
But what is more important is that defense counsel; as they felt was their duty, at once moved for a continuance.26 The application was denied. However the commission indicated that if, at the end of the prosecution’s presenta*59tion 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 [sic] 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.
*60Four days later the commission announced it' would grant a continuance “only for the most urgent and unavoidable reasons.” 27
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, *61was 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.
IY.
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 § 16,28 was squarely in conflict with Articles 25 and 38 of the Articles of War29 and therefore was void.
*62Article 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 bé adduced for the defense in capital cases." (Emphasis added.) 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 *63district 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 w;ould 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 *64covering 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,30 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 15.31 To effectuate the second purpose, Arti*66cles 25 and 38 and several others were proposed.32 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.
*67This 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,33 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 legis*68lation, 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, //hich 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. (Emphasis added.)
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 *69this 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 above34 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 *70the 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.35
*71Finally, 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 coürts-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 uni*72form 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 § 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.36 It relies on other *73arguments 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.
*74The 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,37 I think it equally invalid here.
*76Neither Article 60 nor Article 63 contains such a restriction of meaning as the Court reads into them.38 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 triabas Article 60 requires it to do, although the supplemental bill charges the same failure to peti*77tioner in Item 89.39 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 Articlé 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 *78States 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.40 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 *79accept or to understand the Court’s ruling concerning the applicability of the due process clause of the Fif th 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 *80trial 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 restraint41
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 *81what 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 N42Mr. Justice Murphy joins in this opinion.
. Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U. S. 221.
Armour Packing Co. v. United States, 209 U. S. 56, 83-84; United States v. Cohen Grocery Co., 255 U. S. 81; cf. Screws v. United States, 325 U. S. 91. See note 17 and text.
Hawk v. Olson, 326 U. S. 271; Snyder v. Massachusetts, 291 U. S. 97, 105: “What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it.” See Part III.
The. commission’s findings state: “We have received for analysis and evaluation 423 exhibits consisting of official documents of the 'United States Army, The United States State Department, and the Commonwealth of the Philippines; affidavits; captured enemy documents or translations thereof; diaries taken from Japanese personnel, photographs, motion picture films, and Manila newspapers.” See notes 19 and 20.
Concerning the specific nature of these elements in the proof, the issues to which they were directed, and their prejudicial effects, see text infra and notes in Part II.
Queen v. Hepburn, 7 Cranch 290; Donnelly v. United States, 228 U.S. 243, 273. See Part II; note 21.
Motes v. United States, 178 U. S. 458; Paoni v. United States, 281 F. 801. See Parts II and III.
See Part II at notes 10, 19; Part III.
The line of authorization within the military hierarchy extended from the President, through the Joint Chiefs of Staff and General MacArthur, to General Styer, whose order of September 25th and others were made pursuant to and in conformity with General MacArthur’s directive. The charge was prepared by the Judge Advocate General’s Department of the Army. There is no dispute concerning these facts or that the directive was binding on General Styer and the commission, though it is argued his own authority- as area commanding general was independently sufficient to sustain what was done.
“16. Evidence. — a. The commission shall admit such evidence as in its opinion would be of assistance in proving or disproving the charge, or such as in the commission’s opinion would have probative value in the mind of a reasonable man. In particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted:
(1) Any document which appears to the commission to have been signed or issued officially by any officer, department, agency, or member of the armed forces of any government, without proof of the signature or of the issuance of the document.
(2) Any report which appears to the commission to have been signed or issued by the International Red Cross or a member thereof, or by a medical doctor or any medical service personnel, or by an investigator or intelligence officer, or by any other person whom the commission finds to have been acting in the course of Ms duty when making the report.
(3) Affidavits, depositions, or other statements taken by an officer detailed for that purpose by military authority.
(4) Any diary, letter or other document appearing to the commission to contain information relatmg to the charge.
(5) A copy of any document or other secondary evidence of its contents, if the commission believes that the original is not available or cannot be produced without undue delay. . . .”
In one instance the president of the commission said: “The rules and regulations which guide this Commission are binding upon the Commission and agencies provided to assist the Commission. . . . We have been authorized to receive and weigh such evidence as we can consider to have probative value, and further comments by the Defense on the right which we have to accept this evidence is decidedly out of order.” But see note 19.
Cf. text infra at note 19 concerning the prejudicial character of the evidence.
Note 4.
Namely, “(1) Starvation, execution or massacre without trial and maladministration generally of civilian internees and prisoners of war; (2) Torture, rape, murder and mass execution of very large numbers of residents of the Philippines, including women and children and members of religious orders, by starvation, beheading, bayoneting, clubbing, hanging, burning alive, and destruction by explosives; .(3) Burning and demolition without adequate military necessity of large numbers of homes, places of business, places of religious worship, hospitals, public buildings, and educational "institutions. In point of time, the offenses extended throughout the period the Accused was in command of Japanese troops in the Philippines. In'point of area, the crimes extended throughout the Philippine Archipelago, although by far the most of the incredible acts occurred on Luzon.”
Cf. note 13.
In addition the findings set forth that captured orders of subordinate officers gave proof that “they, at least,” ordered acts “leading directly to” atrocities; that “the proof offered to the Commission alleged criminal neglect ... as well as complete failure by the higher echelons of command to detect and prevent cruel and inhuman treatment accorded by local commanders and guards”; and that, although the “Defense established the difficulties faced by the Accused” with special reference among other things to the discipline and morale of his troops under the “swift and overpowering advance of American forces,” and notwithstanding he had stoutly maintained his complete ignorance of the crimes, still he was an officer of long experience; his assignment was one of broad responsibility; it was his duty “to discover and control” crimes by his troops, if widespread, and therefore
“The Commission concludes: (1) That a series of atrocities and other high crimes have been committed by members of the Japanese armed forces under your command against people of the United States, their allies and dependencies throughout the Philippine Islands; that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and noncommissioned officers; (2) That during the period in question you failed to provide effective control of your troops as was required by the circumstances.
“Accordingly upon secret written ballot, two-thirds or more of the members concurring, the Commission finds you guilty as charged and sentences you to death by hanging.” (Emphasis added.)
See note 15.
The charge, set forth at the end of this note, is consistent with either theory — or both — and thus ambiguous, as were the findings. See note 15. The only word implying knowledge was “permitting.” If “wilfully” is essential to constitute a crime or charge of one, otherwise subject to the objection of “vagueness,” cf. Screws v. United States, 325 U. S. 91, it would seem that “permitting” alone would hardly be sufficient to charge “wilful and intentional” action or omission; and, if taken to be sufficient to charge knowledge, it would follow necessarily that the charge itself was not drawn to state and was insufficient to support a finding of mere failure to detect or discover the criminal conduct of others.
At the most, “permitting” could charge knowledge only by inference or implication. And reasonably the word could be taken in the context of the charge to mean “allowing” or “not preventing,” a meaning consistent with absence of knowledge and mere failure to discover. In capital cases such ambiguity is wholly out of place. The proof was equally ambiguous in the same respect, so far as we have been informed, and so, to repeat, were the findings. The use of “wilfully,” even qualified by a “must have,” one time only in the findings hardly can supply the absence of that or an equivalent word or language in the charge or in the proof to support that essential element in the crime.
The charge was as follows: “Tomoyuki Yamashita, General Imperial Japanese Army, between 9 October 1944 and 2 September 1945, at Manila and at other places in the Philippine Islands, while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed .to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he, General Tomoyuki Yamashita, thereby violated the laws of war.”
Cf. text infra Part IV.
On November 1, early in the trial, the president of the commission stated: “I think the Prosecution should consider the desirability of striking certain items. The Commission feels that there must be witnesses introduced on each of the specifications or items. It has no objection to considering affidavits, but it is unwilling to form an opinion of a particular item based solely on an affidavit. Therefore, until evidence is introduced, these particular exhibits are rejected.” (Emphasis added.)
Later evidence of the excluded type was offered, to introduction of which the defense objected on various grounds including the prior ruling. At the prosecution’s urging the commission withdrew to deliberate. Later it announced that “after further consideration, the Commission reverses that ruling [of November 1] and affirms its prerogative of receiving and considering affidavits or depositions, if it chooses to do so, for whatever probative value the Commission believes they may have, without regard to the presentation of some partially corroborative oral testimony.” It then added: “The Commission directs the Prosecution again to introduce the affidavits or depositions then in question, and other documents of a similar nature which the Prosecution stated had been prepared for introduction.” (Emphasis added.)
Thereafter this type of evidence was consistently received and again, by the undisputed statement of counsel, as the sole proof of many of the specifications of the bills, a procedure which they characterize correctly in my view as having “in effect, stripped the proceeding of all semblance of a trial and converted it into an ex parte investigation.”
This perhaps consisted in the showing of the so-called “propaganda” film, “Orders from Tokyo,” portraying scenes of battle destruction in Manila, which counsel say “was not in itself seriously objectionable.” Highly objectionable, inflammatory and prejudicial, however, was the accompanying sound track with comment that the film was “evidence which will convict,” mentioning petitioner specifically by name.
Innumerable instances of hearsay, once or several times removed, relating to all manner of incidents, rumors, reports, etc., were among these. Many instances, too, are shown of the use of opinion evidence and conclusions of guilt, including reports made after ex parte investigations by the War Crimes Branch of the Judge Advocate General’s Department, which it was and is urged had the effect of “putting the prosecution on the witness stand” and of usurping the commission’s function as judge of the law and the facts. It is said also that some of the reports were received as the sole proof of. some of the specifications.
Also with Paragraph 82 of the Rules of Land Warfare.
Typical of the items are allegations that members of the armed forces of Japan under the command of the accused ■ committed the acts “During the months of October, November and December 1944 [of] brutally mistreating and torturing numerous unarmed noncombatant civilians at the Japanese Military Police Headquarters located at Cortabitarte and Mabini Streets, Manila” and “On about 19 February 1945, in the Town of Cuenca, Batangas Province, brutally mistreating, massacring and killing Jose M. Laguo, Esteban Magsamdol, Jose Lanbo, Felisa Apuntar, Elfidio Lunar, Victoriana Ramo, and 978 other persons, all unarmed noncombatant civilians,. pillaging and unnecessary [sic], deliberately and wantonly devastating, burning and destroying large areas of that town.”
The supplemental bill contains allegations similar to those set out in the original bill. See note 23. For example, it charged that members of the armed forces of Japan under the command of the accused “during the period from 9 October 1944 to about 1 February 1945, at Cavite City, Imus, and elsewhere in Cavite Province,” were permitted to commit the acts of “brutally mistreating, torturing, and killing or attempting to kill, without cause or trial, unarmed noücombatant civilians.”
See note 39 and text, Part V.
In support of the motion counsel indicated surprise by saying that, though it was assumed two or three new specifications might be added, there had been no expectation of 59 “about entirely different persons and times.” The statement continued:
“We have worked earnestly seven days a week in order to prepare the defense on 64 specifications. And when I say ‘prepare the defense,’ sir, I do not mean merely an affirmative defense, but to acquaint ourselves with the facts so that we could properly cross examine the Prosecution’s witnesses.
“. . . ‘In advance of trial’ means: Sufficient time to allow the Defense a chance to prepare its defense.
"We earnestly state that we must have this time in order to adequately prepare a defense. I might add, sir, we think that this is important to the Accused, but far more important than any fights of this Accused, we believe, is the proposition that this Commission should not deviate from a fundamental American concept of fairness . . .”
The commission went on to question the need for all of the six oificers representing the defense to be present during presentation of all the case, suggested one or two would be adequate and others “should be out of the courtroom” engaged in other matters and strongly-suggested bringing in additional counsel in the midst of the trial, all to the end that “need to request a continuance may not arise.”
See note 9.
Article 25 is as follows: “A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go beyond the State, Territory, or district in which the court, commission, or board is ordered to sit, or beyond the distance of one hundred miles *62from the place of trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprisonment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases.” (Emphasis added.) 10 U. S. C. § 1496.
Article 38 reads: “The President may, by regulations, which he may modify from time to time, prescribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals, which regulations shall insofar as he shall deem practicable, applv the rules of evidence generally recognized in the trial pf criminal casés in the district courts of the United States: -provided, That nothing contrary to or inconsistent with these articles shall be so prescribed: Provided further, That all rules made in pursuance of this article shall be laid before the Congress annually.” (Emphasis added.) 10 U. S. C. § 1509.
Another revision of the Articles of War took place in 1920. At this time Article 15 was slightly amended. ■
In 1916 Article 15 was enacted to read: “The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals.” (Emphasis added.)
The 1920 amendment put in the Words “by statute or” before the words “by the law of war” and omitted the word “lawfully.”
Speaking at the Hearings before the Committee on Military Affairs, House of Representatives, 62d Cong., 2d Sess., printed as an Appendix to S. Rep. 229,63d Cong., 2d Sess., General Crowder said:
“The next article, No. 15, is entirely new, and the reasons for its insertion in the code are these: In our War with Mexico two war courts were brought into existence by orders of Gen. Scott, viz, the military commission and the council of war. By the military commission Gen. Scott tried cases cognizable in time of peace by civil courts, and by the council of war he tried offenses against the laws of war. The council of war did not survive the Mexican War period, and in our subsequent wars its jurisdiction has been taken over by the military commission, which during the Civil War period tried more than 2,000 cases. While the military commission has not been formally authorized by statute, its jurisdiction as a war court has been upheld by the Supreme *65Court of the United States. It is an institution of the greatest importance in a period of war and should be preserved. In the new code the jurisdiction of courts-martial has been somewhat amplified by the introduction of the phrase ‘Persons subject to military law.’ There will be more instances in the future than in the past when the jurisdiction of courts-martial will overlap that of the war courts, and the question would arise whether Congress having vested jurisdiction by statute the common law of war jurisdiction was not ousted. I wish to make it perfectly plain by the new article that in such cases the jurisdiction of the war court is concurrent.” S. Rep. No. 229, 63d Cong., 2d Sess., p. 53. (Emphasis added.)
And later, in 1916, speaking before the Subcommittee on Military Affairs of the Senate at their Hearings on S. 3191, a project for the revision of the Articles of War, 64th Cong., 1st Sess., printed as an Appendix to S. Rep. 130, 64th Cong., 1st Sess., General Crowder explained at greater length:
“Article 15 is new. We have included in article 2 as subject to military law a number of persons who are also subject to trial by military commission. A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law. As long as the articles embraced them in the designation 'persons subject to military law,’ and provided that they might be tried by court-martial, I was afraid that, having made a special provision for their trial by court-martial, it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced . . .
“It just saves to these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with courts-martial, 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. Both classes of courts have the same procedure. For the information of the committee and in explanation of these war courts to which I have referred I insert here an explanation from Winthrop’s Military Law and Precedents—
“ 'The military commission — a war court — had its origin in G. O. 20, Headquarters of the Army at Tampico, February 19, 1847 (Gen. Scott). Its jurisdiction was confined mainly to criminal offenses of the class cognizable by civil courts in time of peace committed by inhabitants of the theater of hostilities. A further war court was originated by_ Gen. Scott at the same time, called “council of war,” with jurisdiction to try the same classes of persons for violations of the laws of war, mainly guerrillas. These two jurisdictions were united in the later war court of the Civil War and Spanish War periods, for which the general designation 'of “military commission” was retained. The military commission was given statutory recognition in section 30, act of *66March 3,1863, and in various other statutes of that period. The United States Supreme Court has acknowledged the validity of its judgments (Ex parte Vallandi'gham, 1 Wall., 243, and Coleman. v. Tennessee, 97 U. S., 509). It tried more than 2,000 cases during the Civil War and reconstruction period. Its composition, constitution, and procedure follows the analogy of courts-martial. Another war court is the provost court, an inferior court with jurisdiction assimilated to that of justices of the peace and police courts; and other war courts variously designated “courts of conciliation,” “arbitrators,” “military tribunals,” have been convened by military commanders in the exercise of the war power as occasion and necessity dictated.’
“Yet, as I have, said, these war courts never have been formally authorized by statute.
. “Senator Colt. They grew out of usage and necessity?
“Gen. Crowder. Out of usage and necessity. I thought it was just as well, as inquiries would arise, to put this information in the record.” S. Rep. No. 130, 64th Cong., 1st Sess. (1916) p. 40. (Emphasis added.)
Article 15 was also explained in the “Report of a committee on the proposed revision of the articles of war, pursuant to instructions of the Chief of Staff, March 10, 1915,” included in Revision of the Articles of War, Comparative Prints, etc., 1904-1920, J. A. G. O., as follows:
“A number of articles ... of the. revision have the effect of. giving courts-martial jurisdiction over certain offenders and of-' fenses which, under the law of war or by statute, are also triable by military commissions, provost courts, etc. Article 15 is in-' troduced for the purpose of making clear that in such cases a court-martial has only a concurrent jurisdiction with such war tribunals.”
Of course, Articles 25 and 38, at the same time that they gave protection to defendants before military, commissions, also provided for the application by such tribunals of modem rules of procedure and evidence.
Winthrop, speaking of military commissions at the time he was writing, 1896, says: “The offences cognizable by military commissions may thus be classed as follows: (1) Crimes and statutory offences cognizable by State or U. S. courts, and which would properly be tried by such courts if open and acting; (2) Violations of the laws and usages of war cognizable by military tribunals only; (3) Breaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war.’’ (Emphasis added.) Winthrop, at *1309. And cf. Fairman, The Law of Martial Rule (2d ed. 1943): “Military commissions take cognizance of three categories of criminal cases: offenses against the laws of war, breaches of military regulations, and civil crimes which, where the ordinary courts have ceased to function, cannot be tried normally.” (Emphasis added.) Fairman, 265-266. See also Davis, A Treatise on the Military Law of the United States (1915) 309-310.
Note 31.
In addition to the statements of General Crowder with relation to Article 15, set out in note 31 supra, see the following statements made with reference to Article 25, in 1912 at a hearing before the Committee on Military Affairs of the House: “We come now to article 25, which relates to the admissibility of depositions. ... It will be noted further that the application of the old article has been broadened to include military commissions, courts of inquiry, and military boards.
“Mr. Sweet. Please explain what you mean by military commission.
“Gen. Crowder. That is our common law of war court, and was referred to by me in a prior hearing. [The reference is to the discussion' of Article 15.] This war court came into existence during the Mexican War, and was created by orders of Gen. Scott. It had'jurisdiction to'try all cases usually cognizable in time of peace by civil courts. Gen. Scott created another war court, called the 'council of war/ with jurisdiction to try offenses against the laws of war. The constitution, composition, and jurisdiction of these courts have never been regulated by statute. The council of war did not survive .the Mexican War period, since which its jurisdiction has been taken over by the military commission. The military commission received express recognition in the reconstruction acts, and its jurisdiction has been affirmed and supported by all our courts. It was extensively employed during the *71Civil War period and also during the Spanish-American War. It is highly desirable that this important war court should be continued to be governed as heretofore, by the laws of war rather than by statute.” S. Rep. No. 229, 63d Cong., 2d Sess., 59; cf. S. Rep. 130, 64th Cong., 1st Sess., 54r-55. (Emphasis added.) See also Hearings before the Subcommittee of the Committee on Military Affairs of the Senate on Establishment of Military Justice, 66th Cong., 1st Sess., 1182-1183.
Further evidence that prQcedural provisions of the Articles were intended to apply to all forms of military tribunal is given by Article 24, 10 U. S. C. § 1495, which provides against compulsory self-incrimination “before a military court, commission, court of inquiry, or board, or before an officer conducting an investigation.” This article was drafted so that “The prohibition should reach all witnesses, irrespective of the class of military tribunal before which they appear . . .” (Emphasis added.) Comparative Print showing S. 3191 with the Present Articles of War and other Related Statutes, and Explanatory Notes, Printed for use of the Senate Committee on Military Affairs, 64th Cong., 1st Sess., 17, included in Revision of the Articles of War, Comparative Prints, Etc., 1904^1920, J. A. G. O.
We are informed that Japan has not ratified the Geneva Convention. See discussion of Article 82 in the paragraphs below. We are also informed, however — and the record shows this at least as to Japan — that at the beginning of the war both the United States and Japan announced their intention to adhere to the provisions of that treaty. The force of that understanding continues, perhaps with greater reason if not effect, despite the end of hostilities. See note 40 and text.
Article 82 provides:
“The provisions of the present Convention must be respected by the High Contracting Parties under all circumstances.
“In case, in time of war,'one of the belligerents is not a party to the Convention, its provisions shall nevertheless remain in force as between the belligerents who are parties thereto.”
It is not clear whether the Article means that during a war, when one of the belligerents is not a party to the Convention, the provisions must nevertheless be applied by all the other belligerents to the prisoners of war not only of one another but also of the power that was *73not a party thereto or whether it means that they need not be applied to soldiers of the nonpartieipating party who have been captured. If the latter meaning is accepted, the first paragraph would seem to contradict the second.
“Legislative history” here is of some, if little, aid. A suggested draft of a convention on war prisoners drawn up in advance of the Geneva meeting by the International Committee of the Red Cross (Actes de la Conference Diplomatique de Geneve, edited by Des Gouttes, pp. 21-34) provided in Article 92 that the provisions of the Convention “ne eesseront d’etre obligatories qu’au cas oü l’un des Etats belligerents participant á la Convention se trouve avoir á combatiré les forces armées d’un autre Etat que n’y serait par partie et á l’égard de cet Etat seulement.” See Rasmussen, Code des Prisonniers de Guerre (1931) -70. The fact that this suggested article was not included in the Geneva, Convention would indicate that the nations in attendance were avoiding a decision on this problem. But I think it shows more, that is, it manifests an intention not to foreclose a future holding that under the terms of the Convention a state is bound to apply the provisions to prisoners of war of nonpartieipating states. And not to foreclose such a holding is to invite one. We should, in my opinion, so hold, for reasons of security to members of our own armed forces taken prisoner, if for no others.
Moreover, if this view is wrong and the Geneva Convention is not strictly binding upon the United States as a treaty, it is strong evidence of and should be held binding as representing what have become the civilized rules of international warfare. Yamashita is as much entitled to the benefit of such rules as to the benefit of a binding treaty which codifies them. See U. S. War Dept., Basic Field Manual, Rules of Land Warfare (1940), par. 5-6.
Title III of the Convention, which comprises Articles 7 to 67, is called “Captivity.” It contains § I, “Evacuation of Prisoners of War” (Articles 7-8); § II, “Prisoners-of-War Camps” (Articles 9-26); § III, “Labor of Prisoners of War” (Articles 27-34); § IV, “External Relations of Prisoners of War” (Articles 35-41); and § V, “Prisoners’ Relations with the Authorities” (Articles 42-67). Thus Title III regulates all the various incidents of a prisoner of war’s life while in captivity.
Section V, with which we are immediately concerned, is divided into three chapters. Chapter 1 (Article 42) gives a prisoner of war the right to complain of his condition of captivity. Chapter 2 (Articles 43-44) gives prisoners of war the right to appoint agents to represent them. Chapter 3 is divided into three subsections and is termed “Penalties Applicable to Prisoners of War.” Subsection 1 (Articles 45-53) contains various miscellaneous articles to be considered in detail later. Subsection 2 (Articles 54r-59) contains provisions with respect to disciplinary punishments. And subsection 3 (Articles 60-67), which is termed “Judicial Suits,” contains various provisions for protection of a prisoner’s rights in judicial proceedings instituted against him.
Thus, subsection 3, which contains Articles 60 and 63, as opposed to subsection 2, of Chapter 3, is concerned not with mere problems of discipline, as is the latter, but with the more serious matters of trial leading to imprisonment or possible sentence of death; cf. Brereton, The Administration of Justice Among Prisoners of War by Military Courts (1935) 1 Proc. Australian & New Zealand Society of International Law 143,153. The Court, however, would have the distinction *75between subsection 2 and subsection 3 one between minor disciplinary action against a prisoner of war for acts committed while a prisoner and major judicial action against a prisoner of war for acts committed while a prisoner. This narrow view not only is highly strained, confusing the different situations, and problems treated by the two subdivisions. It defeats the most important protections subsection 3 was intended to secure, for our own as well as for enemy captive military personnel. . .
At the most, there would be logic in the Court’s construction if it could be said that all of Chapter 3 deals with acts committed while a prisoner of war. Of course, subsection 2 does, because of the very nature of its subject-matter. Disciplinary action will be taken by a captor power against prisoners of war only for acts committed by prisoners after capture.
But it is said that subsection 1 deals exclusively with acts committed by a prisoner of war after having become a prisoner, and this indicates subsection 3 is limited similarly. This ignores the fact that some of the articles in subsection 1 appear, on their face, to apply to all judicial proceedings for whatever purpose instituted. Article 46, for example, provides in part:
“Punishments other than those provided for the same acts for soldiers of the national armies may not be imposed upon prisoners of war by the military authorities and courts of the detaining Power.”
This seems to refer to war crimes as well as to other offenses; for surely a country cannot punish soldiers of another army for offenses against the laws of war, when it would not punish its own soldiers for the same offenses. Similarly, Article 47 in subsection 1 appears to refer to war crimes as well as to crimes committed by a prisoner after his capture. It reads in part:
“Judicial proceedings against prisoners of war shall be conducted as rapidly as the circumstances permit; preventive imprisonment shall be limited as much as possible.”
Thus, at the most, subsection 1 contains, in some of its articles, the same ambiguities and is open to the same problem that we are faced with in construing Articles 60 and 63. It cannot be said, therefore, that all of Chapter 3, and especially subsection 3, relate only to acts committed by prisoners of war after capture, for the meaning of subsection 3, in this argument, is related to the meaning of subsection 1; and subsection 1 is no more clearly restricted to punishments and proceedings in disciplinary matters than is subsection 3.
Article 60 pertinently is as follows: “At the opening of a judicial proceeding directed against a prisoner of war, the detaining Power shall advise the representative of the protecting Power thereof as soon as possible, and always before the date set for the opening of the trial.
“This advice shall contain the following information:
“a) Civil state and rank of prisoner;
“b) Place of sojourn or imprisonment;
“e) Specification of the [count] or counts of the indictment, giving the legal provisions applicable.
“If it is not possible to mention in that advice the court which will pass upon the matter, the date of opening the trial and the place where it will take place, this information must be furnished to the representative of the protecting Power' later, as soon as possible, and at all events, at least three weeks before the opening of the trial.”
Article 63 reads: “Sentence may be pronounced against a prisoner of war 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.”
Item 89 charged the armed forces of Japan with subjecting to trial certain named and other prisoners of war “without prior notice to a representative of the protecting power, without opportunity to defend, and without counsel; denying opportunity to appeal from the sentence rendered; failing to notify the protecting power of the sentence pronounced; and executing a death sentence without communicating to the representative of the protecting powejr the nature and circumstances of the offense charged.”
Nations adhere to international treaties regulating the conduct of war at least in part because of the fear of retaliation. Japan no longer has the means of retaliating.
There can be no limit either to the admissibility or the use of evidence if the only test to be applied concerns probative value and the only test of probative value, as the directive commanded and the commission followed out, lies “in the Commission’s opinion,” whether that be concerning the assistance the “evidence” tendered would give in proving or disproving the charge or as it might think would “have value in the mind of a reasonable man.” Nor is it enough to establish the semblance of a constitutional right that the commission declares, in receiving the evidence, that it comes in as having only such probative value, if any, as the commission decides to award it and this is accepted as conclusive.
2 The Complete Writings of Thomas Paine (edited by Foner, 1945) 588.