[327 U.S. 1, 4] Captain A. Frank Reel, JAGD, of Boston, Mass., Colonel Harry E. Clarke, JAGD, of Altoona, Pa., pro hac vice, by special leave of Court, and Captain Milton Sandberg, JAGD, of New York City, for petitioner.
Solicitor General J. Howard McGrath, and Assistant Solicitor General Harold Judson, both of Washington, D.C., for respondents.
Mr. Justice RUTLEDGE and Mr. Justice MURPHY dissenting.
Congress, by adoption of Article of War providing that jurisdiction conferred upon courts martial should not be construed as depriving military commissions, of concurrent jurisdiction of offenders which by law of war are triable by such commissions, adopted the system of military common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts and as further defined and supplemented by the Hague Convention. Articles of War, art. 15, 10 U.S.C.A . 1486
The trial and punishment of an enemy combatant who has committed violations of the law of war is not only a part of conduct of war, but also is an exercise of authority sanctioned by Congress to administer system of military justice recognized by law of war which sanction is without qualification as to exercise of authority so long as a state of war exists, form its declaration until peace is proclaimed. Articles of War, arts. 2, 15, 10 U.S.C.A. 1473, 1486; Proclamation July 2, 1942, No. 2561, 10 U.S.C.A. 1554 note; U.S.C.A. Const. art. 1, 8, cl. 10.
The war power, from which military commission derives its existence, is not limited to victories in the field, but carries with it inherent power to guard against immediate renewal of conflict and to remedy, at least in ways Congress has recognized, evils which military operations have produced. Articles of War, arts. 2, 15, 10 U.S.C.A. 1473, 1486; U. S.C.A. Const. art. 1, 8.
The mere fact that hostilities have ceased does not preclude the trial of offenders against the law of war before a military commission, at least until peace has been officially recognized by treaty or proclamation of the political branch of the government. Articles of War, art. 15, 10 U. S.C.A. 1486; U.S.C.A. Const. art. 1, 8, cl. 10.
Motion for leave to file petition for writ of habeas corpus and writ of prohibition and petition for writ of habeas corpus and writ of prohibition.
On petition for a writ of certiorari to the Supreme Court of the Commonwealth of the Philippines. [4-Continued.]
Mr. Chief Justice STONE delivered the opinion of the Court.
No. 61 Miscellaneous is an application for leave to file a petition for writs of habeas corpus and prohibition in this Court. No. 672 is a petition for certiorari to review an order of the Supreme Court of the Commonwealth of the Philippines (28 U.S.C. 349, 28 U.S.C.A. 349), denying petitioner's application to that court for writs of habeas corpus and prohibition. As both applications raise substantially like questions, and because of the importance and novelty of some of those presented, we set the two applications down for ral argument as one case. [327 U.S. 1, 5] From the petitions and supporting papers it appears that prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. On that date he surrendered to and became a prisoner of war of the United States Army Forces in Baguio, Philippine Islands. On September 25th, by order of respondent, Lieutenant General Wilhelm D. Styer, Commanding General of the United States Army Forces, Western Pacific, which command embraces the Philippine Islands, petitioner was served with a charge prepared by the Judge Advocate General's Department of the Army, purporting to charge petitioner with a violation of the law of war. On October 8, 1945, petitioner, after pleading not guilty to the charge, was held for trial before a military commission of five Army officers appointed by order of General Styer. The order appointed six Army officers, all lawyers, as defense counsel. Throughout the proceedings which followed, including those before this Court, defense counsel have demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged.
On the same date a bill of particulars was filed by the prosecution, and the commission heard a motion made in petitioner's behalf to dismiss the charge on the ground that it failed to state a violation of the law of war. On October 29th the commission was reconvened, a supplemental bill of particulars was filed, and the motion to dismiss was denied. The trial then proceeded until its conclusion on December 7, 1945, the commission hearing two hundred and eighty-six witnesses, who gave over three thousand pages of testimony. On that date petitioner was found guilty of the offense as charged and sentenced to death by hanging.
The petitions for habeas corpus set up that the detention of petitioner for the purpose of the trial was unlawful for [327 U.S. 1, 6] reasons which are now urged as showing that the military commission was without lawful authority or jurisdiction to place petitioner on trial, as follows:
(a) That the military commission which tried and convicted petitioner was not lawfully created, and that no military commission to try petitioner for violations of the law of war could lawfully be convened after the cessation of hostilities between the armed forces of the United States and Japan;
(b) that the charge preferred against petitioner fails to charge him with a violation of the law of war;
(c) that the commission was without authority and jurisdiction to try and convict petitioner because the order governing the procedure of the commission permitted the admission in evidence of depositions, affidavits and hearsay and opinion evidence, and because the commission's rulings admitting such evidence were in violation of the 25th and 38th Articles of War (10 U.S.C. 1496, 1509, 10 U.S.C.A. 1496, 1509) and the Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair trial in violation of the due process clause of the Fifth Amendment;
(d) that the commission was without authority and jurisdiction in the premises because of the failure to give advance notice of petitioner's trial to the neutral power representing the interests of Japan as a belligerent as required by Article 60 of the Geneva Convention, 47 Stat. 2021, 2051.
On the same grounds the petitions for writs of prohibition set up that the commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing argument, denied the petition for habeas corpus presented to it, on the ground, among others, that its jurisdiction was limited to an inquiry as to the jurisdiction of the commission to place petitioner on trial for the offense charged, and that the commission, being validly consti- [327 U.S. 1, 7] tuted by the order of General Styer, had jurisdiction over the person of petitioner and over the trial for the offense charged.
In E parte Quirin, 317 U.S. 1 , 63 S.Ct. 2, we had occasion to consider at length the sources and nature of the authority to create military commissions for the trial of enemy combatants for offenses against the law of war. We there pointed out that Congress, in the exercise of the power conferred upon it by Article I, 8, Cl. 10 of the Constitution to 'define and punish ... Offenses against the Law of Nations ...,' of which the law of war is a part, had by the Articles of War (10 U.S.C. 1471-1593, 10 U.S.C.A. 1471-1593) recognized the 'military commission' appointed by military command, as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war. Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders of offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals.' See a similar provision of the Espionage Act of 1917, 50 U.S.C . 38, 50 U.S.C.A. 38. Article 2 includes among those persons subject to the Articles of War the personnel of our own military establishment. But this, as Article 12 indicates, does not exclude from the class of persons subject to trial by military commissions 'any other person who by the law of war is subject to trial by military tribunals,' and who, under Article 12, may be tried by court martial, or under Article 15 by military commission.
We further pointed out that Congress, by sanctioning trial of enemy combatants for violations of the law of war by military commission, had not attempted to codify the law of war or to mark its precise boundaries. Instead, by Article 15 it had incorporated, by reference, as within the [327 U.S. 1, 8] preexisting jurisdiction of military commissions created by appropriate military command, all offenses which are defined as such by the law of war, and which may constitutionally be included within that jurisdiction. It thus adopted the system of military common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts, and as further defined and supplemented by the Hague Convention, to which the United States and the Axis powers were parties.
We also emphasized in Ex parte Quirin, as we do here, that on application for habeas corpus we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged. In the present cases it must be recognized throughout that the military tribunals which Congress has sanctioned by the Articles of War are not courts whose rulings and judgments are made subject to review by this Court. See Ex parte Vallandigham, 1 Wall. 243; In re Vidal, 179 U.S. 126 , 21 S.Ct. 48; cf. Ex parte Quirin, supra, 317 U.S. 39 , 63 S. Ct. 168 87 L.Ed. 3. They are tribunals whose determinations are reviewable by the military authorities either as provided in the military orders constituting such tribunals or as provided by the Articles of War. Congress conferred on the courts no power to review their determinations save only as it has granted judicial power 'to grant writs of habeas corpus for the purpose of an inquiry into the cause of the restraint of liberty.' 28 U.S.C. 451, 452, 28 U.S.C.A. 451, 452. The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions. See Dynes v. Hoover, 20 How. 5, 81; Runkle v. United States, 122 [327 U.S. 1, 9] U.S. 543, 555, 556, 7 S.Ct. 1141, 1145, 1146; Carter v. McClaughry, 183 U.S. 365 , 22 S.Ct. 181; Collins v. McDonald, 258 U.S. 416 , 42 S.Ct. 326. Cf. Matter of Moran, 203 U.S. 96, 105 , 27 S.Ct. 25, 26.
Finally, we held in Ex parte Quirin, supra, 317 U.S. 24, 25 , 63 S.Ct. 9, 10, as we hold now, that Congress by sanctioning trials of enemy aliens by military commission for offenses against the law of war had recognized the right of the accused to make a defense. Cf. Ex parte Kawato, 317 U.S. 69 , 63 S.Ct. 115. It has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.
With these governing principles in mind we turn to the consideration of the several contentions urged to establish want of authority in the commission. We are not here concerned with the power of military commissions to try civilians. See Ex parte Milligan, 4 Wall. 2, 132; Sterling v. Constantin, 287 U.S. 378 , 53 S.Ct. 190; Ex parte Quirin, supra, 317 U.S. 45 , 63 S.Ct. 19. The Government's contention is that General Styer's order creating the commission conferred authority on it only to try the purported charge of violation of the law of war committed by petitioner, an enemy belligerent, while in command of a hostile army occupying United States territory during time of war. Our first inquiry must therefore be whether the present commission was created by lawful military command and, if so, whether authority could thus be conferred on the commission to place petitioner on trial after the cessation of hostilities between the armed forces of the United States and Japan.
The authority to create the Commission. General Styer's order for the appointment of the commission was made by him as Commander of the United States Armed Forces, Western Pacific. His command includes, as part [327 U.S. 1, 10] of a vastly greater area, the Philippine Islands, where the alleged offenses were committed, where petitioner surrender as a prisoner of war, and where, at the time of the order convening the commission, he was detained as a prisoner in custody of the United States Army. The Congressional recognition of military commissions and its sanction of their use in trying offenses against the law of war to which we have referred, sanctioned their creation by military command in conformity to long established American precedents. Such a commission may be appointed by any field commander, or by any commander competent to appoint a general court martial, as was General Styer, who had been vested with that power by order of the President. 2 Winthrop, Military Law and Precedents, 2d Ed ., *1302; cf. Article of War 8.
Here the commission was not only created by a commander competent to appoint it, but his order conformed to the established policy of the Government and to higher military commands authorizing his action. In a proclamation of July 2, 1942 (56 Stat. 1964, 10 U.S.C.A. 1554 note), the President proclaimed that enemy belligerents who, during time of war, enter the United States, or any territory possession thereof, and who violate the law of war, should be subject to the law of war and to the jurisdiction of military tribunals. Paragraph 10 of the Declaration of Potsdam of July 6, 1945, declared that '... stern justice shall be meted out to all war criminals including those who have visited cruelties upon prisoners.' U.S. Dept. of State Bull., Vol. XIII, No. 318, pp. 137, 138. This Declaration was accepted by the Japanese government by its note of August 10, 1945. U.S. Dept. of State Bull., Vol. XIII, No. 320, p. 205.
By direction o the President, the Joint Chiefs of Staff of the American Military Forces, on September 12, 1945, instructed General MacArthur, Commander in Chief, United States Army Forces, Pacific, to proceed with the trial, be- [327 U.S. 1, 11] fore appropriate military tribunals, of such Japanese war criminals 'as have been or may be apprehended.' By order of General MacArthur of September 24, 1945, General Styer was specifically directed to proceed with the trial of petitioner upon the charge here involved. This order was accompanied by detailed rules and regulations which General MacArthur prescribed for the trial of war criminals. These regulations directed, among other things, that review of the sentence imposed by the commission should be by the officer convening it, with 'authority to approve, mitigate, remit, commute, suspend, reduce or otherwise alter the sentence imposed,' and directed that no sentence of death should be carried into effect until confirmed by the Commander in Chief, United States Army Forces, Pacific.
It thus appears that the order creating the commission for the trial of petitioner was authorized by military command, and was in complete conformity to the Act of Congress sanctioning the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants. And we turn to the question whether the authority to create the commission and direct the trial by military order continued after the cessation of hostilities.
An important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war. Ex parte Quirin, supra, 317 U.S. 28 , 63 S.Ct. 11. The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war. That sanction is without qualification as to the exercise of this authority so [327 U.S. 1, 12] long as a state of war exists-from its declaration until peace is proclaimed. See United States v. Anderson, 9 Wall. 56, 70; The Protector, 12 Wall. 700, 702; McElrath v. United States, 102 U.S. 426 , 438; Kahn v. Anderson, 255 U.S. 1, 9 , 10 S., 41 S. Ct. 224, 226. The war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has recognized, the evils which the military operations have produced. See Stewart v. Kahn, 11 Wall. 493, 507.
We cannot say that there is no authority to convene a commission after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace has been officially recognized by treaty or proclamation of the political branch of the Government. In fact, in most instances the practical administration of the system of military justice under the law of war would fail if such authority were thought to end with the cessation of hostilities. For only after their cessation could the greater number of offenders and the principal ones be apprehended and subjected to trial.
No writer on international law appears to have regarded the power of military tribunals, otherwise competent to try violations of the law of war, as terminating before the formal state of war has ended. 1 In our own military his- [327 U.S. 1, 13] tory there have been numerous instances in which offenders were tried by military commission after the cessation of hostilities and before the proclamation of peace, for offenses against the law of war c mmitted before the cessation of hostilities.