Rehearing Denied Jan. 3, 1949.
See 335 U.S. 906 .
Messrs. William Logan, Jr., of New York City, David F. Smith, of Washington, D.C., John G. Brannon, of Kansas City, Mo., and George Yamaoka and George A. Furness, both of New York City, pro hac vice for petitioners.
Mr. Philip B. Perlman, Sol. Gen., of Washington, D.C., for respondent. [ Koki Hirota v. General of the Army MacArthur 338 U.S. 197 (1948) ] [338 U.S. 197 , 198]
The petitioners, all residents and citizens of Japan, are being held in custody pursuant to the judgments of a military tribunal in Japan. Two of the petitioners have been sentenced to death, the others to terms of imprisonment. They filed motions in this Court for leave to file petitions for habeas corpus. We set all the motions for hearing on the question of our power to grant the relief prayed, 335 U.S. 876 , and that issue has now neen fully presented and argued.
We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military t ibunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.
Mr. Justice DOUGLAS concurs in the result for reasons to be stated in an opinion.
See 338 U.S. 197 .
Mr. Justice MURPHY dissents.
Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time. [338 U.S. 197 , 199] Mr. Justice JACKSON took no part in the final decision on these motions.
Mr. Justice DOUGLAS, concurring.*
* These motions were argued December 16 and 17, 1948 and the opinion of the Court handed down December 20, 1948, 338 U.S. 197 . I was not able within that short time to reduce my views to writing. Hence I concurred in the result 'for reasons to be stated in an opinion.'
These cases present new, important and difficult problems.
Petitioners are citizens of Japan. They were all high officials of the Japanese Government or officers of the Japanese Army during World War II. They are held in custody pursuant to a judgment of the International Military Tribunal for the Far East. They were found guilty by that tribunal of various so-called war crimes against humanity.
Petitioners at the time of argument of these cases were confined in Tokyo, Japan, under the custody of respondent Walker, Commanding General of the United States Eighth Army who held them pursuant to the orders of respondent MacArthur, Supreme Commander for the Allied Powers. Other respondents are the Chief of Staff of the United States Army, the Secretary of the Department of the Army, and the Secretary of Defense.
First. There is an important question of jurisdiction that lies at the threshold of these cases. Respondents contend that the Court is without power to issue a writ of habeas corpus in these cases. It is argued that the Court has no original jurisdiction as defined in Art. III , 2, Cl. 2 of the Constitution,1 since these are not cases [338 U.S. 197 , 200] affecting an ambassador, public minister, or consul; nor is a State a party. And it is urged that appellate jurisdiction is absent (1) becasue military commissions do not exercise judicial power within the meaning of Art. III, 2 of the Constitution and hence are not agencies whose judgments are subject to review by the Court; and (2) no court of the United States to which the potential appellate jurisdiction of this Court extends has jurisdiction over this cause.
It is to the latter contention alone that consideration need be given. I think it is plain that a District Court of the United States does have jurisdiction to entertain petitions for habeas corpus to examine into the cause of the restraint of liberty of the petitioners.
The question now presented was expressly reserved in Ahrens v. Clark, 335 U.S. 188 , 192, note 4, 1444. In that case aliens detained at Ellis Island sought to challenge by habeas corpus the legality of their detention in the District Court for the District of Columbia. It was argued that that court had jurisdiction because the Attorney General who was responsible for their custody was present there. We rejected that view, holding that it was the District Court where petitioners were confined that had jurisdiction to issue the writ. It is now argued that no District Court can act in these cases because if in one case their jurisdiction under the habeas corpus statute2 is limited to inquiries into the causes of restraints [338 U.S. 197 , 201] of liberty of those confined within the territorial jurisdictions of those courts, it is so limited in any other.
That result, however, does not follow. In Ahrens v. Clark, supra, we were dealing with the distribution of judicial power among the several District Courts. There was an explicit legislative history, indicating disapproval of a practice of moving prisoners from one district to another in order to grant them the hearings to which they are entitled. We held that the court at the place of confinement was the court to which application must be made. But it does not follow that where that place is not within the territorial jurisdiction of any District Court, judicial power to issue the writ is rendered impotent.
Habeas corpus is an historic writ and one of the basic safeguards of personal liberty. See Bowen v. Johnston, 306 U.S. 19, 26 , 445. There is no room for niggardly restrictions when questions relating to its availability are raised. The statutes governing its use must be generously construed if the great office of the writ is not to be impaired. In Ahrens v. Clark, supra, denial of a remedy in one District Court was not a denial of a remedy in all of them. There was a District Court to which those petitioners could resort. But in these cases there is none if the jurisdiction of the District Court is in all respects restricted to cases of prisoners who are confined within their geographical boundaries.
Such a holding would have grave and alarming consequences. Today Japanese war lords appeal to the Court for application of American standards of justice. Tomorrow or next year an American citizen may stand condemned in Germany or Japan by a military court or commission. 3 If no United States court can inquire into [338 U.S. 197 , 202] the lawfulness of his detention, the military have acquired, contrary to our traditions see Ex part Quirin, 317 U.S. 1 ; In re Yamashita, 327 U.S. 1 , a new and alarming hold on us.
I cannot agree to such a grave and starting result. It has never been deemed essential that the prisoner in every case be within the territorial limits of the district where he seeks relief by way of habeas corpus. In Ex parte Mitsuye Endo, 323 U.S. 283 , 304-306, 219-220, a prisoner had been removed, pending an appeal, from the district where the petition had been filed. We held that the District Court might act if there was a respondent within reach of its process who had custody of the prisoner. The aim of the statute is the practical administration of justice. The allocation of jurisdiction among the District Courts, recognized in Ahrens v. Clark, is a problem of judicial administration not a method of contracting the authority of the courts so as to delimit their power to issue the historic writ.
The place to try the issues of this case is in the district where there is a respondent who is responsible for the custody of petitioners. That district is obviously the District of Columbia. That result was reached by the Court of Appeals for the District of Colubmia in Eisentrager v. Forrestal, D.C.Cir., 174 F.2d 961. [338 U.S. 197 , 203] It held, in the case of a German national confined in Germany in the custody of the United States Army, that the court having jurisdiction over those who have directive power over the jailer outside the United States could issue the writ. In my view that is the correct result. For we would have to conclude that the United States Generals who have custody of petitioners are bigger than our government to hold that the respondent- officials of the War Department have no control or command over them. That result would raise grave constitutional questions, as Eisentrager v. Forrestal, supra, suggests.
It is therefore clear to me that the District Court of the District of Columbia is the court to hear these motions. The appropriate course would be to remit the parties to it, reserving any further questions until the cases come here by certiorari. But the Court is unwilling to take that course, apparently because it deems the cases so pressing and the issues so unsubstantial that the motion should be summarily disposed of.
Second. The Court in denying leave to file states:
But that statement does not in my opinion adequately analyze the problem. The formula which it evolves to dispose of the cases is indeed potentially dangerous. It [338 U.S. 197 , 204] leaves practically no room for judicial scrutiny of this new type of military tribunal which is evolving. It leaves the power of those tribunals absolute. Prisone held under its mandates may have appeal to the conscience or mercy of an executive; but they apparently have no appeal to law.
The fact that the tribunal has been set up by the Allied Powers should not of itself preclude our inquiry. Our inquiry is directed not to the conduct of the Allied Powers but to the conduct of our own officials. Our writ would run not to an orfficial of an Allied Power but to our own official. We would want to know not what authority our Allies had to do what they did but what authority our officials had.
If an American General holds a prisoner, our process can reach him wherever he is. To that extent at least the Constitution follows the flag. It is no defense for him to say that the acts for the Allied Powers. He is an American citizen who is performing functions for our government. It is our Constitution which he supports and defends. If there is evasion or violation of its obligations, it is no defense that he acts for another nation. There is at present no group or confederation to which an official of this Nation owes a higher obligation than he owes to us.
I assume that we have no authority to review the judgment of an international tribunal. But if as a result of unlawful action, one of our Generals holds a prisoner in his custody, the writ of habeas corpus can effect a release from that custody. It is the historic function of the writ to examine into the cause of restraint of liberty. We should not allow that inquiry to be thwarted merely because the jailer acts not only for the United States but for other nations as well.
Let me illustrate the gravity and seriousness of the conclusion of the Court. [338 U.S. 197 , 205] (1) Suppose an American citizen collaborated with petitioners in plotting a war against the United States. The laws of the United States provide severe penalties for such conduct. May that citizen be tried and convicted by an international tribunal and have no access to our courts to challenge the legality of the action of our representatives on it? May he, in the face of the safeguards which our Constitution provides even for traitors, have no protection against American action against him?
(2) Suppose an American citizen on a visit to Japan during the occupation commits murder, embezzlement, or the like. May he be tried by an international tribunal and have no recourse to our courts to challenge its jurisdiction over him?
(3) What about any other civilian so tried and convicted for such a crime committed during the occupation?
These are increasingly important questions as collaboration among nations at the international level continues. They pose questions for which there is no precedent. But we sacrifice principle when we stop our inquiry once we ascertain that the tribunal is international.
I cannot believe that we would adhere to that formula if these petitioners were American citizens. I cannot believe we would adhere to it if this tribunal or some other tribunal were trying American citizens for offenses committed either before or during the occupation. In those cases we would, I feel, look beyond the character of the tribunal to the persons being tried and the offenses with which they were charged. We would ascertain whether, so far as American participation is concerned, there was authority to try the defendants for the precise crimes with which they are charged. That is what we should do here.
(1) General Douglas MacArthur is the Supreme Commander for the Allied Powers. The Potsdam Declaration (July 26, 1945) provided for occupation of Japan [338 U.S. 197 , 206] by the Allies. The Instrument of Surrender (September 2, 1945) accepted the terms of the Potsdam Declaration. By the Moscow Agreement (December 27, 1945) the Supreme Commander was recognized as 'the sole executive authority for the Allied Powers in Japan.' It also established a Far Eastern Commission composed of representatives of eleven nations. It was vested with broad powers (a) to formulate policies, principles and standards y which Japan will fulfill its obligations under the Terms of Surrender and (b) to review directives issued to the Supreme Commander or any action taken by him involving policy decisions within its jurisdiction. All directives embodying policy decisions of the Commission are to be prepared by the United States and it transmits them to the Supreme Commander. 4 And the Commission is enjoined to respect 'the chain of command from the United States Government to the Supreme Commander and the Supreme Commander's command of occupation forces.'
The war crimes policy of the Allied Powers as respects Japan seems to have been first suggested in the Cairo Declaration5 (December 1, 1943). The Potsdam Declaration promised that 'stern justice' would be meted out 'to all war criminals.'
The Far Eastern Commission on April 3, 1946, adopted a policy decision which defined 'war crimes' as including 'Planning, preparation, initiation or waging of a war of [338 U.S. 197 , 207] aggression or a war in violation of international treaties, agreements and assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.' It provided that the Supreme Commander for the Allied Powers should have power to appoint special international military courts to try war criminals. Prior to this time the Supreme Commander had constituted a court for that purpose and had appointed judges from various nations to it. On receipt of the directive based on the Commission's war crimes policy decision he provided a new court-the one before which petitioners were tried. To this court the Supreme Commander appointed from names submitted by the respective nations eleven judges-one each from the United States, China, United Kingdom, Russia, Australia, Canada, France, The Netherlands, New Zealand, India, and the Philippines.
So I think there can be no serious doubt that, though the arrangement is in many respects amorphous and though the tribunal is dominated by American influence it is nonetheless international in character. But it should be noted that the chain of command from the United States to the Supreme Commander is unbroken. It is he who has custody of petitioners. It is through that chain of command that the writ of habeas corpus can reach the Supreme Commander.
(2) The Constitution gives Congress the power to define and punish 'Offenses against the Law of Nations * * *.' Art. I, 8, Cl. 10. It is argued that Congress here has not made aggressive war a crime nor provided individual punishment for waging it. It is therefore argued that these petitioners cannot be tried by United States officials for any such crime. We do not need to consider a case where the definition given by Congress conflicts with what a President does. There is no conflict here. The grant of power to the Congress does not necessarily preclude exercise of authority by the President. The Constitution [338 U.S. 197 , 208] makes the President the 'Commander in Chief of the Army and Navy of the United States * * *.' Art. II, 2. His power as such is vastly greater than that of troop commander. He not only has full power to repel and defeat the enemy; he has the power to occupy the conquered country, New Orleans v. Steamship Co., 20 Wall. 387, 394, and to punish those enemies who violated the law of war. Ex parte Quirin, supra, 317 U.S. at pages 28-29, 63 S.Ct. at pages 10-11; In re Yamashita, supra, 327 U.S. at pages 10-11, 66 S.Ct. at page 345. We need not consider to what extent, if any, the President, in providing that justice be meted out to a defeated enemy, would have to follow as he did in Ex parte Quirin, supra, and In re Yamashita, supra, the procedure that Congress had prescribed for such cases. Here the President did not utilize the conventional military tribunals provided for by the Articles of War. He did not act alone but only in conjunction with the Allied Powers. This tribunal was an international one arranged for through negotiation with the Allied Powers.
The President is the sole organ of the United States in the field of foreign relations. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 318 -321, 220-221. Agreements which he has made with our Allies in furtherance of our war efforts have been legion. Whether they are wise or unwise, necessary or improvident are political questions, not justiciable ones. That is particularly true of questions relating to the commencement and conduct of the war. Agreement with foreign nations for the punishment of war criminals, insofar as it involves aliens who are the officials of the enemy or members of its armed services, is a part of the prosecution of the war. It is a furtherance of the hostilities directed to a dilution of enemy power and involving retribution for wrongs done. It falls as clearly in the realm of political decisions as all other aspects of military alliances in furtherance of the common objective of victory. Cf. Georgia v. Stanton, 6 Wall, 50, 71. [338 U.S. 197 , 209] After the escape of Napoleon from Elba where he had voluntarily retired, he was by agreement among the Powers entrusted to the custody of Great Britain. Then followed his banishment to St. Helena. I have no doubt that our President could have done the same as respects these petitioners. Or he could have made arrangements with other nations for their custody and detention. When the President moves to make arrangements with other nations for their trial, he acts in a political role on a military matter. His discretion cannot be reviewed by the judiciary.
The political nature of the decision which brought these petitioners before the International Military Tribunal is emphasized by the rulings which that tribunal made. The Charter of the Tribunal was constituted by an order of the Supreme Commander. It established the tribunal, determined its procedure, and described its jurisdiction. It described the 'crimes' that came within the jurisdiction of the tribunal6 and the standard of responsibility of the accused. 7 [338 U.S. 197 , 210] Justice Pal of India who dissented from the judgments of conviction claimed that the Allied Powers as victors did not have the legal right under international law to treat petitioners as was criminals. He wrote at lenth, contending that the Pact of Paris,8 46 Stat. 2343, to which Japan was a signatory, did not affect the pre-existing [338 U.S. 197 , 211] legal position of war in international life. 9 He rejected the argument that international customary law had developed under the Pact,10 or that there was individual responsibility for the waging of aggressive war even assuming it to be a crime under international law. 11
He called on the Tribunal to rule on these questions. He stated:
But the Tribunal, though expressing disagreement with Justice Pal on the point,12 did not rule on the question. [338 U.S. 197 , 213] It ruled that 'the law of the Charter is decisive and binding' upon it. It said:
The President of the Tribunal, Sir William Flood Webb of Australia, in a separate opinion stated:
* * *
The conclusion is therefore plain that the Tokyo Tribunal acted as an instrument of military power of the Executive branch of government. It responded to the will of the Supreme Commander as expressed in the military order by which he constituted it. It took its law from its creator and did not act as a free and independent tribunal to adjudge the rights of petitioners under international law. As Justice Pal said, it did not therefore sit as a judicial tribunal. It was solely an instrument of political power. Insofar as American participation is concerned, there is no constitutional objection to that action. For the capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander-in-Chief, and as spokesman for the nation in foreign affairs, had the final say.
[ Footnote 1 ] Article III 2, Cl. 2 reads as follows:
[ Footnote 2 ] 28 U.S.C. 2241(a), 28 U.S.C.A. 2241(a), provides:
[ Footnote 3 ] Cases of this sort are beginning to appear. In the Matter of Bush, 336 U.S. 971 , is such a case. Petitioner was a civilian employee of the War Department from Feb. 19, 1946 to Dec. 28, 1947 and was stationed in Japan for most of that period. He terminated his employment and returned to this country. Thereafter, he was en route to Siam when his plane landed in Japan. He was arrested and tried by a General Provost Court sitting in Japan for trading American goods to a Japanese for certain emoluments. He was convicted and sentenced to one year imprisonment and fined 75,000 yen. On May 9, 1949, we denied his motion for leave to file a petition for habeas corpus 'without prejudice to the right to apply to any appropriate court that may have jurisdiction.'
For a sowewhat comparable case from Germany see Bird v. Johnson, 336 U.S. 950 , where we denied motions for leave to file petitions for writs of habeas corpus on April 18, 1949.
[ Footnote 4 ] The Moscow Agreement also provided:
[ Footnote 5 ] 'The Three Great Allies are fighting this war to restrain and punish the aggression of Japan.'
[ Footnote 6 ] Article 5 provided:
Petitioners Dohihara, Hirota, Kido, Oka, Sato, Shimada and Togo were found guilty of waging a war of aggression and of conspiring to do so. Petitioners Dohihara, Hirota and Togo were found guilty of conventional war crimes and crimes against humanity.
[ Footnote 7 ] Article 6 provided:
[ Footnote 8 ] This treaty provided in part:
[ Footnote * ] * *
See Miller, The Peace Pact of Paris (1928).
[ Footnote 9 ] For discussions pro and con on this issue see Glueck, War Criminals ( 1944); Glueck, The Nuremberg Trial and Aggressive War (1946).
[ Footnote 10 ] In this connection he said:
Some of the petitioners, notably Dohihara, Hirota, Kido and Togo were found guilty on charges which involved waging of aggressive was prior to Pearl Harbor, e. g., in connection with the Manchurian episode.
[ Footnote 11 ] He went so far as to say:
[ Footnote 12 ] It stated in this connection that it was in complete accord with the following passages from the opinion of the Nuremberg Tribunal, Nazi Conspiracy and Aggression (1947), pp. 48, 50, 53, 49, 53-54: 'The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation;
[ Footnote * ] * *
[ Footnote * ] * *
[ Footnote * ] * *
'* * * the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.
[ Footnote * ] * *
"The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.'
[ Footnote 13 ] He went on to state his view that the waging of aggressive war was a crime under international law and that individual responsibility attached thereto. Justice Jaranilla of the Philippines filed a separate concurring opinion to the same effect. Justice Bernard of France, though dissenting from the majority because of certain rulings on vicarious criminal responsibility and because he thought the trial was not fair, agreed that the waging of aggressive war was a crime.