Plan for tribunals recalls WWII era
U.S. generally had fair process in military cases, expert says
Published Friday, November 23, 2001
BY FRANK DAVIES
fdavies@herald.com
The legendary, chain-smoking Japanese general, his uniform stripped of its insignia, shuffled silently and expressionless toward the gallows of a Manila prison on Feb. 23, 1946.
Tomoyuki Yamashita ``was very stoic and accepted his fate,'' recalls Sig Meyers, a North Miami retiree who photographed the general's trial and execution as an Army combat cameraman in World War II.
After a 28-day military tribunal, one of hundreds in the Pacific, five U.S. generals had convicted Yamashita for allowing his soldiers to commit atrocities in the Philippines. They sentenced him to be hanged.
Military tribunals haven't been used since, but now President Bush has revived the idea as a way of meting out swift justice to terrorist suspects captured overseas or in the United States.
How such tribunals would be conducted and who would be brought before them is under intense debate in the Bush administration. The Yamashita case, which became a legal landmark, and other Pacific trials offer the most recent historical guide.
`HIGH MARKS'
Robert Barr Smith, a law professor and military lawyer of 20 years, said U.S. officials earned ``generally high marks for fairness and due process'' in about 2,000 trials, including some conducted by U.S. allies.
These were military trials, unlike the well-publicized international war crimes tribunals in Nuremberg, Germany, and Tokyo.
The trials were conducted in public, the rules of evidence were fair and appointed defense counsel generally offered a vigorous defense, said Smith, who researched the cases.
Of 5,600 Japanese defendants, 4,400 were convicted and about 1,200 acquitted. About 1,000 people were executed.
Smith, who teaches law at the University of Oklahoma, said he is confident that terrorist tribunals would be fair -- and perceived that way -- if most proceedings are open to demonstrate due process and the competence of counsel.
``Any trial runs better in the daylight,'' Smith said. ``I would expect this administration to do that with terrorist trials whenever possible, to show that this is fair.''
But Smith, from his perspective as a legal expert, and Meyers, the cameraman who sat 10 feet from the Japanese general during his trial, said they have serious doubts about fairness in the Yamashita case.
The general, known as the ``Tiger of Malaya'' and ``Japan's Rommel'' for successful campaigns early in the war, was cut off from men under his command in the waning days of the war in 1945.
As U.S. and Filipino forces closed in, Japanese military police went on a rampage in Manila, massacring thousands of civilians.
``It was just awful, as bad as anything the Germans did,'' said Meyers, who filmed the aftermath. ``They bayoneted babies and nuns.''
Yamashita said at trial he did not order or know about the atrocities. Prosecutors said he should have known, but they could not demonstrate a direct link. The tribunal cited ``command responsibility'' and found him guilty.
``What was different about Yamashita's case was responsibility -- to the death -- for murder tolerated, knowingly or not,'' wrote Smith in a 1996 article on the trials.
``I'm uncomfortable with the case and the way it was handled,'' Smith said.
None of the five generals on the tribunal had any legal training, and many trial observers thought the result was preordained under pressure from Gen. Douglas MacArthur, the Pacific commander.
CHANGED VIEW
Meyers was one such observer. After photographing the atrocities, he had ``a real hatred for the Japanese'' that extended to Yamashita when the trial began.
``But watching the trial changed my opinion of him,'' said Meyers, now 78, who also conducted a brief interview with Yamashita. ``By the end, many of us wondered if he was being railroaded.''
Yamashita's attorneys took the case to the U.S. Supreme Court, arguing that the Nuremburg principles of ``knowledge and participation'' used against Nazi leaders were not applied to their client.
The high court did not review the evidence, only the issue of jurisdiction. By a 6-2 majority, the justices agreed with the executive branch that only military authorities could review what the tribunal had done.
Bush's executive order to set up terrorist tribunals makes the same point: The military system is not subject to appeal or review in a civilian court.
Two Supreme Court justices issued blistering dissents in the Yamashita case. Frank Murphy wrote that there was not ``the slightest precedent for the charges,'' complaining of ``victor's vengeance.''
Wiley Rutledge wrote that the decision was ``the worst in the Supreme Court's history, not even barring Dred Scott,'' which held in 1857 that escaped slaves had no rights.
Murphy warned that a broad interpretation of command responsibility could one day haunt a U.S. commander.
Meyers, who was a CBS cameraman for 33 years, had a similar thought during the Vietnam War.
VIETNAM SLAUGHTER
``Under the same principle, should [Gen. William] Westmoreland be held responsible for the My Lai massacre?'' he said, recalling how an Army platoon slaughtered hundreds of civilians in 1968.
Smith, who has served as prosecutor, defense counsel or judge in dozens of courts-martial, said the Yamashita trial was ``aberrational.''
He said his research shows that the vast majority of military trials in the Pacific utilized military personnel with legal backgrounds and went ``to some lengths'' to assist the defense.
``Many Japanese, including some of the accused, later commented on the fairness of the trials,'' Smith said.
The law professor said he is optimistic that military tribunals could deal fairly with terrorist suspects: ``The whole world will be watching and I'd expect a high level of fairness.''
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