WITHOUT THE LAW
397
Yamashita and sentenced him to death,'lE- the defense first appealed,
vainly, to the Philippine Supreme Court, then-over MacArthur's
strenuous opposition-got a stay of execution from the Secretary of
War, and finally succeeded in getting the Supreme Court to review
the case. On February 4, 1946, the Court upheld the conviction, 6 to
2, with Jackson disqualifying himself because
ot"
his connection with the
Nuremberg Trial. The majority decision, which is printed in full as
an appendix in the book, is a remarkable document. The defense con–
tended that the trial procedure had violated (a) the Fifth Amendment,
which provides that "no person . . . shall be deprived of life, liberty
or property without due process of law," and (b) the Articles of War,
which state that neither hearsay nor affidavits may be admitted in
evidence in capital cases. The majority decision revises the Fifth
Amendment to read: "No
American citizen
...
>J
thus giving a nar–
rowly nationalistic twist, in harmony with twentieth-century political
thought, to the broad human rights which the eighteenth-century Con–
stitutional fathers had intended. As for the Articles of War, the majority
held, in the same spirit, that enemy combatants are not protected by
their provisions, although they may be hanged by military commissions
deriving their authority from those same Articles. To compound con–
fusion, the majority defined "the precise issue" in the case as: "whether
the law of war imposes on an army commander a duty to take such
appropriate measures as are within his power to control the troops under
his command for the prevention of the specified acts which are violations
of the law of war."
If
this were indeed the "precise issue," then Yama–
shita was not guilty, since the troops committing the "specified acts"
were not under his command nor did he have "the power" to take
"appropriate measures" to control them.
But it is perhaps naive to analyze the majority decision: a reversal
would have meant a blow to MacArthur's prestige in occupied Japan;
this was politically unthinkable; the conviction, therefore, had to be
sustained, and Chief Justice Stone and his colleagues simply had to
make the best of a very bad job. It is notoriously difficult to make bricks
without straw.
The contrast between the majority decision and the dissents of
Justices Murphy and Rutledge (also printed in the book) is extreme.
While the former is confused, contradictory, turgid, and bristling with
*
Twelve American, British and Australian newspaper correspondents were
present at every session of the trial. One of them took a poll, by secret ballot,
on the question : "Having heard all the evidence, if you were on the commission,
would you vote to hang Yamashita?" The vote was 12 to 0: "No."
