CONSTITUTIONAL LAW-TRIAL BY MILITARY COMMISSION OF ENEMY COMBATANT AFTER CESSATION OF HOSTILITIES-SCOPE OF INQUIRY IN HABEAS CORPUS PROCEEDINGS

Authors

L. B. Brody S.Ed., University of Michigan Law SchoolFollow

Abstract

Petitioner, the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands, surrendered to and became a prisoner of war of the United States Army Forces in Baguio, Philippine Islands on September 3, 1945. By order of respondent, petitioner was served, on September 25, with a charge setting forth a violation of the law of war. On October 8 petitioner, after pleading not guilty to the charge, was held for trial before a military commission of five Army officers appointed by General Styer, and a bill of particulars was filed by the prosecution specifying sixty-four items. On October 29, the day of commencement of trial, a supplemental bill of particulars was filed, containing fifty-nine additional specifications, a copy of which had been given to the defense three days earlier. On December 7, the commission pronounced petitioner guilty and sentenced him to death by hanging. Appeal was made to the Supreme Court of the United States for leave to file a petition for writs of habeas corpus and prohibition, and also a petition for certiorari to review an order of the Supreme Court of the Commonwealth of the Philippines denying petitioner's application to that court for writs of habeas corpus and prohibition. Petitioner claimed that his detention for trial by the military commission was without lawful authority or jurisdiction and raised the following questions: (1) whether the military commission was lawfully created, and whether such a tribunal could be convened after the cessation of hostilities to try him for a violation of the law of war; (2) whether the charge, that as commander he had failed to control the troops under his command by permitting them to commit atrocities, in fact stated a violation of the law of war; (3) whether he was denied a fair trial in violation of the due process clause of the Fifth Amendment because the order governing the procedure of the commission, which authorized the admission of certain types of evidence, was contrary to the Articles of War which prescribe the procedure before military tribunals, And violated the provisions of the Geneva Convention of 1929, which stipulate that a prisoner of war shall be entitled to trial 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; and (4) whether the commission was without jurisdiction because of the failure to give advance notice of his trial to the neutral power representing the interests of Japan as a belligerent, as required by the Geneva Convention of 1929. Held, both petitions denied, since it appeared that "the order convening the commission was a lawful order, that the commission was lawfully constituted, that petitioner was charged with a violation of the law of war, and that the commission had authority to proceed with the trial, and in doing so did not violate any military, statutory or constitutional ground" (Justices Murphy and Rutledge dissenting). Application of Yamashita, and Yamashita v. Styer, Commanding General, U.S. Army Forces, Western Pacific, (U.S. 1945) 66 S.Ct. 340.2

Recommended Citation

L. B. Brody S.Ed., CONSTITUTIONAL LAW-TRIAL BY MILITARY COMMISSION OF ENEMY COMBATANT AFTER CESSATION OF HOSTILITIES-SCOPE OF INQUIRY IN HABEAS CORPUS PROCEEDINGS, 44 Mich. L. Rev. 855 (1946).
Available at: https://repository.law.umich.edu/mlr/vol44/iss5/14