Four new gallows were built at Sugamo Prison, ready to be used any moment. With a news blackout from the jail, rumors flew around Tokyo that Tojo Hideki and the other six condemned men were already dead.[1]
After the death penalties were decreed, the doomed war criminals were moved into small, adjacent single cells in the same block at Sugamo. This block had more than fifty cells, but the seven men were the only ones held there. In their barred cells, the prisoners were watched constantly by a squad of eight guards. Every fifteen minutes, a medical aid man on suicide watch checked to see that they were still breathing and had not found a way to slit an artery.
The seven convicted men spent these macabre last days writing, reading, and playing cards. They got a supply of Japanese cigarettes, which had to be lit by a guard. They were allowed visits from their immediate family once a month. To make sure that their family members did not commit suicide, Japanese plainclothes police watched their houses.[2]
Meanwhile their defense counsel did everything they could to spare their clients from the rope. Their first hope, not a bright one, was General Douglas MacArthur. Under the Tokyo tribunal’s charter, the Allied supreme commander was to review the sentences; while he could not reverse the guilty verdicts, he could lessen the penalties. MacArthur was not obviously inclined to mercy, as shown in the vengeful hanging of General Yamashita Tomoyuki, but some Japanese hoped that the incipient Cold War would change his calculations. Lieutenant General Robert Eichelberger, a confidant of MacArthur, had recently speculated that in a future war against the Soviet Union, Japan would side with the United States.[3]
All twenty-five convicted Japanese leaders made formal appeals to MacArthur to review their sentences. Major Ben Bruce Blakeney filed an eloquent plea on behalf of his client Togo Shigenori, noting that three judges had dissented and the Dutch judge had acquitted him. “Americans in time to come are unlikely to be proud of this verdict,” he wrote.[4]
From Rome, Pope Pius XII urged Harry Truman to show “Christ-like mercy” by commuting the death sentences, particularly for Hirota Koki.[5] A fervent anti-Communist, the pope also called for clemency for Nazi war criminals in the early Cold War.[6] Truman refused him, leaving the matter up to MacArthur.[7]
MacArthur asked the Allied governments to share their views.[8] His desk was piled high with trial papers, as well as some ten thousand petitions signed by at least a hundred thousand Japanese. He was most troubled by the cases of Hirota and Shigemitsu Mamoru. A growing number of British grandees, led by the well-connected former cabinet secretary Maurice, Lord Hankey, beseeched him for clemency for Shigemitsu, calling him a true friend of Britain who had striven for peace.[9] Joseph Keenan tried to influence MacArthur by telling reporters that the prosecutors were “ashamed” of Shigemitsu’s seven-year sentence, letting slip that he was only charged at the insistence of the Soviets.[10]
The Indian political representative in Tokyo secretly cautioned that the court had been bitterly divided, that the Australian and French judges opposed the death penalty, and that the death sentences were imposed by a bare majority. He suggested asking that the death sentences for Tojo and the six others be commuted to life imprisonment.[11] Jawaharlal Nehru’s government agreed. In general, wrote K. P. S. Menon, now the foreign secretary, India opposed the death penalty, and there was such discord among the judges that executions would be improper.[12] Privately, Indian officials worried that Indian public opinion was sympathetic to the Japanese, with newspaper editorials and influential legislators pressing Nehru to get the sentences reduced.[13]
Still, Nehru would only go so far for the Japanese warlords he reviled. When the governor of Bengal, the volatile home state of Radhabinod Pal, suggested asking MacArthur for mercy, the prime minister slapped him down. After consulting with others in government, Nehru bluntly wrote, “We are unanimously of opinion that you should not (repeat NOT) send any telegram to General MacArthur.” He warned that “any such move on our part would associate us with Justice Pal’s dissenting judgment in Tokyo trials…. Any statement sent by you might well create great difficulties for us without doing much good to anyone else.”[14]
On November 22, 1948, MacArthur consulted with representatives of the eleven Allied countries in his office at the Dai-Ichi Building. Without any judges to hold back state power, it was all over in half an hour.
The British Foreign Office, while thinking the trial had been “a sorry affair,” believed it had been fair, and was not about to undermine its political and moral impact in Japan by second-guessing its sentences.[15] Arthur Comyns Carr, back in London, urged the British government to stand by Shigemitsu’s sentence, expressing surprise that the former foreign minister had been acquitted for aggressive war.[16] The British political representative in Tokyo personally hoped that MacArthur would show mercy to Shigemitsu but would not take the initiative.[17] The British government, authorized to speak on behalf of New Zealand as well, had its political representative support the sentences.[18]
“I have no changes to recommend,” said the U.S. representative loudly.[19] The Chinese delegate would not tinker with the decision of a majority of judges after a long, fair trial. New Zealand, Canada, and the Philippines followed suit. Although the Soviet Union had officially outlawed the death penalty, the Soviet delegate accepted all the sentences.[20] Sir William Webb had opposed the death sentences, but the Australian government snubbed him by leaving it up to MacArthur to decide. Two diplomats showed their personal discomfort, though. The French delegate said that his government agreed with the sentences but left MacArthur a voluminous document with his personal recommendation that the death penalties should be commuted to life imprisonment.[21] The Canadian representative sent MacArthur a personal letter asking him to slash the jail terms for Togo and Shigemitsu.[22]
Only the Dutch and Indian delegates spoke against the sentences, following the dissents of their judges. The Dutch representative wanted to spare the neck of Hirota—whom Bert Röling had voted to acquit—and lock him up for life instead, as well as reducing the jail terms of two foreign ministers, Togo and Shigemitsu, and two army men, Field Marshal Hata Shunroku and General Umezu Yoshijiro. (Except for Umezu, these tracked Röling’s dissent.) Togo’s intentions were “fundamentally peaceful” with no criminal intent.
The Indian delegate proposed that all seven war criminals sentenced to death, including Tojo Hideki, should get life imprisonment instead. Noting that countries were increasingly abolishing capital punishment, the Indian official warned presciently against fixing into international law a precedent for this extreme penalty. In some countries, he added, it took a unanimous jury to give the death penalty; since several of the Tokyo judges opposed the death sentences, the defendants ought to get the benefit of the doubt. MacArthur briefly sparred with the Indian representative, and then asked if anyone had anything else to say. No one did.[23]
On November 24, the supreme commander announced on the radio that all of the sentences would stand. His political adviser recalled that he had never seen his boss in such deep emotion.[24] “No duty I have ever been called upon to perform in a long public service replete with many bitter, lonely and forlorn assignments and responsibilities is so utterly repugnant to me as that of reviewing the sentences of the Japanese War Criminal defendants adjudged by the International Military Tribunal for the Far East,” he declared. The orotund prose clearly came straight from MacArthur himself: “No human decision is infallible but I can conceive of no judicial process where greater safeguard was made to evolve justice.” He added a prayer for the worldwide repudiation of war, while urging all Japanese to pray on the execution day “that the world keep the peace lest the human race perish.”[25]
Emperor Hirohito seized on MacArthur’s ruling as a chance to dispel the latest abdication rumors. He met with Keenan—the U.S. chief prosecutor who had absolved him—at the palace grounds, where the emperor expressed his hopes for world peace and Japanese democracy, saying nothing about the Tokyo trial or its death sentences.[26] A front-page editorial in the Yomiuri Shimbun, which was widely seen as either dictated or inspired by the Imperial Palace, declared that the monarch believed that he could better contribute to reconstructing a peaceful country by staying on the throne. He felt, the Yomiuri wrote, that he could do more to make amends for his war responsibility by not abdicating.[27]
The censored Japanese press accepted MacArthur’s decision quietly—in part because no one dared to criticize the supreme commander directly. The Asahi Shimbun editorialized of the “perfection both in reason and sentiment” of his announcement.[28] In private, many Japanese civilian officials remained sympathetic to Hirota. “Time will help all those who are in prison while nothing can help those condemned to death,” the governor of Hiroshima Prefecture told a British official.[29]
At Sugamo Prison, Doihara Kenji said that he would not begrudge the Chinese if they took satisfaction in his execution, while complaining that crimes were being committed in the name of democracy.[30] Shivering in the first cold snap of autumn, Hirota’s grown son and two daughters went to Sugamo Prison to bid farewell to their father, held in a cramped solitary cell. He smiled with composure at the news of MacArthur’s decision.[31] After they left, he was despondent, saying that everything ended in blankness.[32]
MacArthur personally ordered the commanding general of the U.S. Eighth Army to carry out the hangings soon.[33] Even the Indian government—still embarrassed by Pal’s dissent—decided not to press its case against the death penalties, refusing to raise the issue among the Allies in the Far Eastern Commission.[34] Reporters began a “death watch,” awaiting news of the executions at any minute.[35]
The defense lawyers cast about for a power superior to MacArthur. With nowhere else to go, they decided to pit the Supreme Court against the supreme commander.
The American defense lawyers had been mulling this last-ditch option for almost two years. At the start of the defense case, they had announced in court that they planned to challenge the legitimacy of the Tokyo trial in the United States federal courts in Washington. Annoyed at the impertinence, Webb had retorted, “It is a matter of sheer indifference to us whether you go to the federal court in Washington or to the federal court in Ottawa or to the federal court in Moscow or any other court. One has as much right to review as the other.”[36] The Soviet judge, Major General Ivan Zaryanov, had roared with laughter.[37]
Immediately after MacArthur upheld the sentences, American lawyers for Hirota and Doihara—both sentenced to death—filed a motion for leave to seek a writ of habeas corpus, as well as a motion for a stay of execution. So did lawyers for others facing jail terms, including Marquis Kido Koichi.[38] These motions named as respondents the U.S. secretary of defense, the secretary of the army, the commanding general of the Eighth Army, and MacArthur himself.[39] This was a terribly long shot, even if the Court had recently split in some cases about German war criminals, with several justices unsuccessfully seeking a hearing about the Court’s jurisdiction.[40] The motions challenged the convictions and sentences, and implicitly the legitimacy of the Tokyo court itself.
In his hasty petitions, Hirota’s lawyer rehashed his client’s declarations of innocence. Hirota had had nothing to do with the Pacific War; he had done nothing wrong during “the so-called ‘Rape of Nanking’ ”; the trial had been unfair. Even so, three of the Tokyo judges had voted to acquit him, and five had opposed the death penalty. The rushed lawyers strained to raise constitutional claims: only Congress could define and punish offenses against the law of nations; the executive branch could not punish the Japanese in a way that violated the Constitution’s ban on Congress passing ex post facto law; MacArthur had had no authority from Congress or the president to create the Tokyo tribunal. Still, the petitions did little to establish that the Supreme Court—which generally hears cases that were decided in lower U.S. courts first—had appellate jurisdiction over Hirota and the rest. Without jurisdiction, all the other objections were pointless.[41]
The army secretary ordered MacArthur to stay the executions until the Supreme Court acted.[42] Although grudgingly promising to act with “appropriate discretion,” MacArthur jeered that “that Court has no more jurisdiction in the premises than does the High Court of England or China or France or Russia, or any other of the Allied nations, none of which have the power of unilateral action.”[43] The supreme commander duly announced that he would postpone the hangings until the Court had decided.[44] When Tojo Hideki, meeting with his family for what could be the last time, heard about the delay, he said that he wanted to get it over with as early as possible. He was trying to avoid catching a cold, his wife said, the better “to die in a manly, warrior’s way.”[45]
At the Supreme Court, Justice Robert Jackson was keeping his head down.
He was a brilliant orator and an ambitious political operator, himself a former attorney general and solicitor general.[46] In his powerful dissent recoiling at the Court’s validation of “the principle of racial discrimination in criminal procedure” in Korematsu, he had worried about how wartime exigencies could distort the Constitution, as well as sympathizing with the deported and detained Japanese Americans: “here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.”[47]
He had only recently returned to the Court after a sensational tour as the United States’ chief prosecutor at Nuremberg.[48] That had drawn him worldwide acclaim, but the unprecedented stint had provoked grumbling among the other justices. His relationships with them were so strained that he had not been sure he would return.[49] “Jackson is away conducting his high-grade lynching party in Nuremberg,” Harlan Fiske Stone, then the chief justice, had written. “I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.”[50]
Jackson obviously had to recuse himself from voting on whether to hear the habeas corpus petitions. He was too embroiled with the war crimes trials to touch this case.
Yet the Court deadlocked in conference.[51] Ultimately, four justices voted they had no jurisdiction and four wanted to hear arguments. Leading the latter were Frank Murphy and Wiley Rutledge, anxious about the quashing of civil liberties in wartime, whose earlier bitter dissents in Yamashita indicated enduring concerns about American war crimes trials.[52] They were joined by Hugo Black and the famously liberal William O. Douglas. These four publicly announced their votes.[53]
Rutledge saw “serious challenges” to the Tokyo tribunal, which in turn raised “grave questions” about the Supreme Court’s jurisdiction, suggesting it might indeed be able to step in. These cases were different in important ways from the Court’s previous encounters with accused Japanese war criminals, General Yamashita Tomoyuki and Lieutenant General Homma Masaharu: they had been combatants fighting against the United States, while Hirota had served in civilian positions and had left government before Pearl Harbor. Rutledge wrote, “In the Yamashita and Homma cases determined, as I thought, that enemy belligerents have none of our constitutional protections, it does not follow that they held enemy civilians to occupy the same denuded status.” Nor had the Court yet decided that enemy civilians who had no access to a lower U.S. court should have no remedy for harmful decisions made by a U.S. military tribunal. These “are not for me either self-evident or frivolous matters,” he wrote.[54]
With the Court split, Jackson faced “a choice between evils,” as he explained in an agonized but silver-tongued statement. On the one hand, if he did nothing, the resulting executions would always be stained “in Oriental memory” as punishments that “half of this Court tells the world are on so doubtful a legal foundation that they favor some kind of provisional relief and fuller review.” The four votes against “would for all time be capitalized in the Orient, if not elsewhere, to impeach the good faith and to discredit the justice of this country.”
On the other hand, if he asserted jurisdiction, that would likewise embarrass the United States before Asians: “On American initiative, under direction of the President as Commander-in-Chief, this country invited our Pacific allies, on foreign soil, to coöperate in conducting a grand inquest into the alleged crimes, including the war guilt, of these defendants.” The Tokyo trial, he wrote, appeared as an international enterprise carried out under the president’s war powers and control of foreign affairs: “For this Court now to call up these cases for judicial review under exclusively American law can only be regarded as a warning to our associates in the trials that no commitment of the President or of the military authorities, even in such matters as these, has finality or validity under our form of government until it has the approval of this Court.” The great issue at stake, he thought, was not the outcome of the war crimes trial but whether the slow-moving judiciary could review the president’s conduct of foreign policy.
Jackson, savvy and well connected in the Democratic Party, must have known that hearing the case would infuriate Truman. While the president had championed the Nuremberg trial, he had no patience for showboating judges. As Truman once wrote privately, “when you have an organization of dissenters it won’t work. They all want to be Holmeses and Brandeises and you can’t run the Court that way.”[55]
Despite that, Jackson reluctantly stepped in to clear up the mess made by his divided colleagues. He wanly had to assert that his own prominent involvement—he had negotiated for the United States in drafting the Nuremberg charter, which the Tokyo charter largely copied—was somehow not disqualifying, any more than a justice ruling on a law he had helped to make in an earlier career in Congress. He voted to hear arguments about the condemned Hirota and Doihara in what he called “a tentative assertion of jurisdiction,” hoping that a fuller hearing would swing enough votes to deliver a more united affirmation of the Tokyo trial’s legitimacy. If he let the Japanese be executed now, he reasoned, their partisans would always point to the divided Court to accuse the United States of doing injustice. He hoped that a clear majority would emerge that would not require him to vote again.[56]
On December 6, Chief Justice Fred Vinson announced that the Court would hear arguments about the defense lawyers’ motions for leave to file petitions for writs of habeas corpus. Oral arguments would be held in ten days.[57]
In Japan, radio stations broke into their regular broadcasts to announce the thunderbolt, while the newspapers rushed out early-morning extras. The Japanese were startled, amazed, and confused by this latest display of Allied indecision about its own war crimes tribunal.[58]
“Tonight Japan’s sense of war guilt has been virtually erased,” declared a CBS correspondent. “The Supreme Court session appears to have undermined the whole moral value of the 2 ½ year trial.” Some Japanese reckoned that Americans were not sure that justice had been done and that Tojo Hideki was probably right after all. The Court, CBS reported, had left Tojo as a bigger hero now than he had been before he lost the battle for Saipan.[59]
To many Japanese, it looked like the guilt of the convicted men was not clearly established and that the Tokyo trial itself might be illegal.[60] The Asahi Shimbun, while lauding the Court for seeking perfect justice, warned that its intervention could allow Japanese to minimize the crimes of the convicted men.[61] “Most Japanese were simply bewildered by the legal mumbo jumbo of the inscrutable Occidentals,” sniffed Time magazine. “Many an American felt the same way.”[62] As an Indian diplomat reported, Japanese were buzzing that perhaps the Supreme Court would reduce the severe sentences of the Tokyo tribunal. Some Japanese murmured that the American government hoped to spare Tojo and the others in order to use them to fend off the Soviet Union.[63] Others said that since there was so much doubt in Allied minds about the guilt of the offenders, perhaps Japan’s war policies were partly justifiable.[64]
Other defense lawyers scrambled to file motions in Washington. Two more condemned generals petitioned for their lives, as well as Shigemitsu Mamoru and one general facing lifetime imprisonment. Tojo Hideki refused to ask for American mercy.[65]
The news quickly reached Sugamo Prison. Tojo thought that the Court was dragging things out to torment the doomed men. “I don’t like this dillydallying,” he snapped.[66] “It appears that the American Supreme Court has taken up our case,” said Matsui Iwane, sentenced to death for the Nanjing massacre. “It’s all the same thing, though. In my opinion, the quicker it’s over the better.” Having steeled himself to hang, he grumbled to a Buddhist priest, it would be “quite difficult” if the Court reduced his sentence to life imprisonment.[67]
MacArthur accepted the affront with bad grace. An army man who shrugged off orders from the president could hardly appreciate being bossed around by five justices. While complaining that the Court was driven by internal political reasons, he had General Headquarters announce that the seven death sentences would be put off until it had ruled. If the Court were to serve a writ of habeas corpus, he grumbled, he would ignore it and let the Far Eastern Commission handle it. In private, he was confident that the Court would swiftly reject the motions, since he claimed that he had created the court not as a U.S. officer but as an international official acting on behalf of eleven states.[68]
The Truman administration was aghast. The Court’s action embarrassingly insinuated that the Tokyo court had not been an international tribunal at all but really a blunt American instrument. At the Justice Department, the solicitor general—the official who handled the administration’s litigation at the Supreme Court—pressed the State Department into swiftly issuing a statement that the Tokyo court really was an international court.[69] In addition, the State Department’s legal advisers secretly asked the Allies, assembled in the Far Eastern Commission, to declare formally that the Tokyo tribunal had been an international court properly established under Allied authority. Since it would be too embarrassing for the U.S. delegation to introduce the proposal, they furtively fished around for another Allied country to do so.[70]
Jackson had written hopefully, “Our allies are more likely to understand and to forgive any assertion of excess jurisdiction against this background than our enemies would be to understand or condone any excess of scruple about jurisdiction to grant them a hearing.”[71] In fact, the other Allies were furious. Soviet state media immediately declared that the Supreme Court had acted unlawfully.[72] This intervention, Pravda wrote, served to “annul with a flourish of the pen all the work of the tribunal,” showing that American policy was really directed by monopolist “merchants of death.”[73] “It was the last thing I expected,” said the dissenting Röling.[74] Startled, the British and Dutch missions in Tokyo groused privately that the Supreme Court was clearly without jurisdiction, and had trashed the legal standing of the Tokyo court by implying that it was merely an American creation.[75]
Many Chinese rankled at the prospect that an American court would wipe away a judgment about Chinese suffering.[76] “I am utterly amazed by the Supreme Court’s decision,” an irate Mei Ruao told reporters. The Court was “committing a great mistake and creating a dangerous precedent.” The Tokyo tribunal’s jurisdiction, he said, came from eleven Allied nations, not from the United States alone. If one national court could wipe away a decision of an international tribunal, it would wreck future cooperation and mutual trust. “It is a great testing case in history and will have repercussions in future international dealings and mutual good faith,” he warned.[77] At the same time, the Chinese Communist Party took full advantage of the chance to embarrass both the Americans and the Nationalists. “MacArthur and the American judiciary are carrying out a shameless plot to delay execution and modify the original verdicts,” wrote the People’s Daily.[78]
Only the Indian government, while dumbfounded, was vaguely relieved: if the Supreme Court wiped out the Tokyo judgment, that would vindicate Pal’s dissent.[79] Still, Nehru’s top officials lined up against the Court’s action.[80] Menon agreed that the Tokyo tribunal was an international one, although established in a “peculiar” way, and was mostly anxious that the Supreme Court’s intervention “should not become a precedent for the future.” Although Menon noted that there was considerable public feeling in India against the death penalties, India’s government maintained its silence.[81]
Despite the State Department’s request, the British government shuddered at the notion of a formal Allied statement trying to shut up the Supreme Court. Britain initially instructed India, Australia, Canada, and New Zealand that any attempt to influence the Court would be unwise.[82] Still, when the U.S. solicitor general formally asked the Far Eastern Commission whether the Tokyo court had been international or American, the Allies had to say something.[83] The mortified British told the Commonwealth governments to allow an Allied statement that the Tokyo court had been an “international court, appointed and acting under international authority.”[84] Rushed by the Truman administration, the Allies got their statement out just before the Court heard arguments.[85]
Hirota’s defense lawyer scrambled to find the constitutional arguments and case law that might sway the Supreme Court. All too often, his brief instead fell back on general principles, quotations from the Federalist Papers, or loud exhortations. It would be “truly catastrophic” if no U.S. courts could issue a writ of habeas corpus for prisoners outside the territorial jurisdiction of the United States. MacArthur and other army officers were not beyond the reach of U.S. courts if they did unlawful and unconstitutional deeds, since “the Constitution of the United States follows the flag into the military occupied territory of Japan.”[86]
In a lengthy brief, the Truman administration’s formidable legal machine swatted such rhetoric away. Most importantly, the solicitor general of the United States argued that, unlike an ordinary case that had started out in lower U.S. courts, the decisions in Tokyo came from an international court which was simply beyond the Supreme Court’s jurisdiction. Therefore there was no need to address the petitioners’ various complaints about violations of the Constitution and international law. Even if the Supreme Court did somehow have appellate jurisdiction, no lower U.S. court could issue a writ of habeas corpus, since the Japanese petitioners were “foreigners in a foreign land” with no rights under the Constitution. They lived in a country governed not by the United States alone but by the Allies—a formalistic denial of who actually called the shots at General Headquarters. The president of the United States, argued his solicitor general, had “great powers” over foreign policy as commander in chief. He was not limited by U.S. domestic law against ex post facto law. American courts “should so act as not to embarrass the executive arm in its conduct of foreign affairs.”[87]
On December 10, the United Nations General Assembly adopted the Universal Declaration of Human Rights, and the next day unanimously affirmed the principles of the Nuremberg charter and judgment.[88] Five days later, the Supreme Court assembled for oral arguments.
Jackson uncomfortably joined his colleagues. The chamber was packed with spectators, including Joseph Keenan. Over two days of fierce debate, the Court was badly divided.[89]
William Logan Jr., the brash Tokyo defense lawyer speaking for the Japanese petitioners, was bombarded by skeptical questions from every justice except William O. Douglas. He argued that the power of the Tokyo court flowed from the executive authority of the United States, not from any treaty. When Logan said that there was “no other court to which we could go,” Chief Justice Fred Vinson, aware that eleven countries made up the Tokyo tribunal, cut him off: “May there not be ten others?” Soon after, Vinson told Logan that while the Supreme Court had original jurisdiction over international affairs, that was limited to cases about ambassadors and ministers, and those in which a state was a party. “In which of these does this case fall?” asked the chief justice of the United States. “None of them,” admitted Logan, arguing instead that the Constitution should be elastic enough to let the Court get involved. The president and U.S. military authorities, he said, had created new definitions of international crimes without congressional approval, usurping the legislative branch’s power to do that.
Justice Felix Frankfurter scathingly asked question after question. He interrupted Logan to say that “something may be illegal and yet international, and so be something over which this Court has no jurisdiction.” The Tokyo court was an international organization no matter how it was created: “It is a matter of no moment whether we initiated it or Great Britain or Iran.”
Speaking for the Truman administration, the solicitor general argued that the convicted Japanese war criminals had no rights under the Constitution: “Supreme dominion over Japan is held not by the United States or any single nation, but internationally and jointly by a group of powers.” He declared the executive branch’s “deep concern at any such threat to our power to engage in international activities.”[90]
On the second day of oral argument, Douglas, who had voted for hearings, pounced when the solicitor general said that MacArthur ultimately took his orders from the Far Eastern Commission, not the United States courts. “That is a rather startling statement,” said Douglas. “Why cannot General MacArthur release these Japanese when he, as their jailer, is an American citizen? So far as he acts as an American, can’t he be controlled by American courts?” The solicitor general flatly replied, “Your processes can’t reach him, as Supreme Commander. In that capacity he is not acting under any American law or under the U.S. Constitution.”
The Japanese petitioners’ lawyers recoiled at that. “So long as there was American participation in this trial, to the extent of that participation the safeguards of the Constitution must apply,” said George Yamaoka, a Japanese American attorney from New York City. “No American officer can act in contravention of those safeguards.” Another lawyer for the Japanese said, “We are not asking you to review what the international tribunal did. We are asking review of what an American citizen and an Army officer did.”
Summing up, the solicitor general scolded, “What we are faced with is an effort by enemies of this country to use processes of this court to get rights for themselves that never belonged to them and never could be granted. These motions are filed on behalf of the conspirators who planned the destruction of this government and were responsible for dropping the bombs on Pearl Harbor. Now at this late date they have the audacity and temerity to appear before this court.” Justice Hugo Black, who had voted for this hearing, interrupted him to ask about the Court’s jurisdiction over the Tokyo tribunal. “They have no rights of any kind in any court of this country,” retorted the solicitor general. “There is no reason why the Supreme Court should attempt to interfere.”[91]
The Supreme Court moves fast on motions for leave to file for habeas corpus. Three days later, the chief justice read aloud its ruling in Hirota v. MacArthur, General of the Army, et al., covering all the Japanese who had petitioned. Having roiled the Japanese occupation, creating a possible historic opportunity to assert judicial principles over the punishment of enemy war criminals of the highest rank, the justices of the Supreme Court now wanted no part of it.
In a show of unity, the Court issued a short, simple per curiam opinion—an unsigned judgment on behalf of the whole body. Their previous deadlock had vanished. Five justices joined in, including Black, who had voted to hear oral arguments. Douglas, who had done the same, would write a concurring opinion several months later. Even though Wiley Rutledge became convinced that the Tokyo court had been an international one after all, he said that he would announce his vote later—but died of an apparent cerebral hemorrhage at the age of fifty-five before doing so.[92] Only an emotional Frank Murphy dissented, although ill health kept him from writing the scorching opinion he had in mind. He too would die unexpectedly: just seven months later, fifty-nine years old, he suffered a fatal coronary occlusion.[93]
With a robust majority of six justices voting to let the executions proceed, Jackson could with relief sit this round out.[94]
“We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States,” the Court declared tersely. “The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.” Therefore “the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed.” The petitions for permission to file petitions for writs of habeas corpus were denied.[95]
MacArthur could do as he pleased. Hirota Koki and all the rest would hang.
The Court’s curt opinion barely explained its reasoning. Put in the worst light, it allowed the wartime executive to do whatever it wanted. In the best light, it was a minimalist statement of the Court’s own constitutional limits. The Supreme Court could only serve as an appellate court for cases coming up from lower U.S. courts, which might include the U.S. military commission that had doomed Yamashita, but not such an outlandish international creation as the Tokyo tribunal. Yet if that modest position was the right answer, then why had half the Court not been able to accept it at first?
There were plenty of other lingering questions. Could a U.S. general really act without judicial restraint so long as he claimed to be an Allied official? Would international tribunals always be beyond the reach of U.S. courts, even when Americans were creating and molding them? Would U.S. courts really defer to an international court that was punishing American citizens, rather than hated foreigners? How had the justices accepted the claim that MacArthur, who had for years scorned and defied the squabbling Far Eastern Commission, was nothing but its instrument? Why had the justices cast such doubt on the Tokyo judgment only to do nothing about it in the end? Truman, MacArthur, and all of Japan could only wonder.
In private, several of the justices had considered a broader critique of the Tokyo trial. Jackson had barely bothered with the question of whether the Supreme Court had appellate jurisdiction, seeing grander issues at stake. Rutledge had deep doubts about the Tokyo tribunal’s legitimacy. Murphy’s law clerks prodded him to write a sweeping dissent criticizing Truman’s war crimes policy, arguing that the Court could declare that the president had to follow some minimum standards of due process, such as a ban on ex post facto charges. There was a risk that the high courts of other Allied countries would rule that the convictions were valid, which a Murphy clerk accepted coolly: “if the Aussies want to take the petitioners out and shoot them, let them go ahead.”[96] Yet all these questions were silenced in the Court’s brusque per curiam ruling.
Only the progressive Douglas—one of three justices who had voted to hear oral arguments but then sided with the Truman administration—offered a proper explanation, giving a blistering critique of the Tokyo trial. Since it took him several months to write it, though, it had scant political impact in Japan. Arching an eyebrow at “the ‘crimes’ which came within the jurisdiction of the tribunal” and “various so-called war crimes against humanity,” he signaled his skepticism about the legality of those charges. His paper was clearly written as a dissent but then repurposed as a concurring opinion. On at least three points, he trashed the Court’s ruling, even though he had voted for it.
First, he insisted that U.S. courts had the authority to issue writs of habeas corpus regardless of where in the world a person was detained. “Today Japanese war lords appeal to the Court for application of American standards of justice,” he wrote. “Tomorrow or next year an American citizen may stand condemned in Germany or Japan by a military court or commission.” It would be “grave and startling” if U.S. courts could not reach them. If MacArthur was holding Japanese prisoners illegally, the writ of habeas corpus could free them, even if he was acting on behalf not just of the United States but also the Allies.
Second, it hardly mattered if the Tokyo tribunal was an international body. The Court’s opinion, he wrote, “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.” By declaring itself powerless to challenge international courts, the Supreme Court was sacrificing principle. “I cannot believe that we would adhere to that formula if these petitioners were American citizens,” he bluntly wrote.
Third, Douglas recoiled at the solicitor general’s claim that the Court had no authority over MacArthur. “If an American General holds a prisoner, our process can reach him wherever he is,” he wrote. “To that extent at least, the Constitution follows the flag. It is no defense for him to say that he acts for the Allied Powers. He is an American citizen who is performing functions for our government.” Although the Tokyo court was international, what mattered was that “the chain of command from the United States to the Supreme Commander is unbroken.”
Only on one point did Douglas side with the rest of the Court: that the president could do what he wanted to defeated wartime enemies.[97] That was enough to get him back on side. In a dazzling zigzag conclusion, he argued that Harry Truman was right because Radhabinod Pal was right. Since the Tokyo tribunal was not a real court, U.S. courts had no say over it.
The president of the United States, Douglas conceded, was the “sole organ” of foreign policy, especially during war. (Since a 1936 case, the executive branch has routinely pressed this “sole organ” language, although the Court has never adopted it as doctrine.)[98] War crimes prosecutions were part of the conduct of war. Truman could have done as he pleased with the Japanese war criminals, just like the victorious European powers banishing Napoléon Bonaparte without trial after Waterloo. Quoting admiringly from Pal’s dissent, Douglas saw the Tokyo court as fundamentally a political creature set up by the supreme commander: establishing its charter, setting its procedure, describing “the ‘crimes’ that came within the jurisdiction of the tribunal”—the quotation marks indicating that he, like Pal, did not see them as crimes at all.
“The Tokyo Tribunal acted as an instrument of military power of the Executive Branch of government,” wrote Douglas. “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.” As such, there was no constitutional objection to Truman’s political action: “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…had the final say.” Douglas, in short, upheld the president’s authority to set up a bogus noncourt.[99]
Whatever the legal merits, the Court had inflicted a political fiasco upon the Allied occupation of Japan. It had called into question the Tokyo judgment but then left it in place. In its ultimate acquiescence to wartime executive power, its actions confirmed what Oliver Wendell Holmes Jr., who had stepped down from the Supreme Court not long after Japan invaded Manchuria, had once written with clear-eyed realism: “The felt necessities of the time, the prevalent moral and political theories, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”[100]
As the days passed, more and more Japanese had dared to hope that the Supreme Court would overturn the verdicts. So the Court’s blunt ruling was met with weak-kneed relief among the Allied missions in Tokyo.[101]
At Sugamo Prison, the convicted men were not surprised. Hirota said, “The matter had been decided by the Allied Powers already.” “That’s considerate, isn’t it,” jeered Itagaki Seishiro. “I am grateful that America was thinking about us until the end.”[102]
This time Japanese newspapers did not rush out extra editions. Many Japanese received the news with a cynical shrug, not surprised to see the Court fall into line. If it had not, some Japanese opined, the United States would have lost all its Allied friends. Japanese liberals were alarmed that the Supreme Court had given credence to claims that the Tokyo trial had acted illegally, which in the future might be used by right-wing factions to make Tojo and other war criminals into martyrs.[103]
Nothing now stood between the seven condemned Japanese and the gallows.