History News Service

Following Bad Precedents for Deciding Military Justice

By Peter Maguire
History News Service

The recent capture in Pakistan of Khalid Shaikh Mohammed, the "suspected mastermind" of the Sept. 11 attacks, is a significant victory in President Bush's "war on terrorism." The subsequent legal treatment of the reputed al-Qaida leader will say a great deal about whether the administration respects international law.

Until now, the Bush administration has rejected the expanded legal jurisdiction of the United Nations. "Enemy combatants" captured in the "war on terrorism" are to be tried before U.S. military tribunals following precedents laid down by the U.S. Supreme Court in the Quirin (1942) and Yamashita (1946) cases. There is only one problem: these precedents are not worth following.

The 1945 Yamashita decision, a favorite of the Bush administration, is a classic example of primitive political justice. The case was a result of Japanese atrocities in the Philippines during World War II. Japanese Gen. Tomoyuki Yamashita, Japan's supreme commander in the Philippines, was tried for failing to exercise "command responsibility" over the Japanese sailors and marines who had ransacked Manila. During the pillage, Yamashita was 150 miles away and did not hear of the atrocities for a week.

The U.S. Supreme Court had been conspicuously silent on the question of war crimes since its 1942 decision in the Quirin case, another favored precedent of the administration. Eight German commandos had been captured in the United States in 1942 and tried by a U.S. military court. When the defendants appealed to the Supreme Court for writs of habeas corpus, the Court denied them.

When Yamashita's attorney appealed to the U.S. Supreme Court, a 6-2 majority followed the safe precedent of the Quirin case and avoided substantive legal questions by declaring that it would not evaluate the evidence behind the conviction. Chief Justice Harlan Fiske Stone wrote that the military tribunals were "not courts whose rulings and judgments are subject to review by this court." Not all members of the Supreme Court were willing to take such an easy out. Dissenting Justices Frank Murphy and Wiley B. Rutledge were outraged by the military tribunal's inability to demonstrate that Yamashita had committed or ordered war crimes. Murphy wrote of the Court's decision: "Our standards of judgment are whatever we wish to make them. Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander of a defeated force."

The Bush administration is presently invoking the Yamashita and Quirin precedents to justify its action in the "Dirty Bomber" case of Jose Padilla. Padilla, an American citizen, was arrested on U.S. soil and designated an "enemy combatant." Both President Bush and Attorney General John Ashcroft made big claims about Padilla's importance at the time of his capture. He has proved to be no Khalid Mohammed, but remains locked up in a military brig, unable to speak to a lawyer and with no charges filed against him. Punish him we should if guilty, but we should also be mindful that he also has constitutional rights as a U.S. citizen. No less an authority on war crimes than Marine Lt. Col. Gary Solis has raised a red flag over the Padilla case and made the important observation that "even a bad man has rights."

The Bush administration has made one firm decision -- to make up the rules as it goes along. In the process, it has managed to tarnish the already less than sterling reputation of military justice. Unfortunately, as it always has been, in times of war the law is silent and, like now, ignored.

Peter Maguire is the author of "Law and War: An American Story" (2002) and a writer for the History News Service.

[Peter Maguire, 35 W. 81st St., Apt. 2A, New York, NY 10024. Telephone: (212) 580-1918; e-mail: pm122964@aol.com]