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NOTES ON THE DOOLITTLE FLYERS CASE
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Date: November 1, 2005
To: ASIL Forum
From: Evan Wallach

Subj: An Interesting Argument relating to John Yoo's Memo on Presidential Powers

Dear All,

Here's an interesting argument made by the prosecution in the case of GENERAL
SAWADA and others (THE DOOLITTLE FLYERS CASE). I find it noteworthy in light of
Prof. Yoo's White House Memo asserting Presidential powers under the
Constitution to make absolute determinations of the meaning and interpretation
of international law, binding on courts and subordinates.

The argument here was made in response to a defense offer of a statement by
former Japanese Prime Minsister Tojo in which, the defense would argue, he took
responsibility for the laws and orders which effectively mandated the finding of
guilt by the Japanese military tribunal which Sawada empaneled to try the
aircrews for alleged war crimes in 1942. The court, by the way, rejected the
argument and admitted the statement:

     "Now, OKADA, WAKO and SAWADA are being tried in this case for
      violations of the laws of war, a violation not only of the general
      rules of treatment of war prisoners but of International Law. It
      makes no difference in this case what law the Japanese Army may
      have promulgated for the prosecution of the fliers. That is not an
      issue in this case. If that is an issue...you might as well say
      that we will go back to the days of the whipping post and the old
      dipping system, when the fastened a fallow to the post and beat
      him or dipped him up and down until he confessed or died from the
      treatment. The issue is whether these two judges and Sawada gave
      these men a fair trial in 1942. The statement here purports to be
      that the War Ministry of the Imperial Headquarters gave authority
      to Sawada to try these men. That is not an issue in this case. It
      is purely an attempt by Tojo to assume responsibility here and
      cannot have any bearing as to the guilt or innocence of the men in
      this case by a law passed by the [Japanese]. You test their guilt
      or innocence in this case on the International Laws of War and
      therefore we object to this exhibit as being immaterial..."

Best regards,

Evan

*


Date: January 25, 2005 [?]
From: Charles Gittings
To:   ASIL Forum

Subj: Mitigation

Dear Friends,

I've decided to give Ian a more detailed response on Judge Leon's decision
dismissing Khalid v. Bush and Boumediene v. Bush, but first I have some comments
on Judge Wallach's latest post by way of preface -- this new research on Japan's
treatment of captured Doolittle Raiders affords some very illuminating contrasts
with Abu Ghraib (and Guantanamo Bay, etc) . . .

* The Bush detainee policies and legal arguments post-9/11 bear an obvious
resemblance of to the conduct of the Japanese here -- and they also exhibit
similarities to Alstoetter (the Nuremberg "Justice Case"), the Uchiyama case
(analyzed in detail by Judge Wallach's earlier article in Army Law., November
2003, at 18), and even the facts of the Yamashita case, 327 U.S. 1 (which DOJ so
fraudulently cites as precedent IRT Geneva 1949 while ignoring Justice Murphy's
damning dissent).

* The sentencing of the Japanese defendants by the tribunal reflects IMT art. 8:
"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 if the Tribunal determines that justice so requires."

* Compare the severity of the sentences given the Japanese subordinates for
complicity in the execution US airmen to the sentences in the Abu Ghraib trials,
and note a key difference in the prosecutions: the Tokyo (and Nuremberg) war
crimes trials began with the high command and went top down, while the Abu
Ghraib trials have started with the enlisted personnel while the administration
indulges in all out political damage control and tightly compartmentalized
"investigations" that are really cover-ups aimed at white washing the fact that
the abuses at Abu Ghraib were committed by policy under a false color of
authority in the PMO.

* NOTE ESPECIALLY that the defense in all of the Abu Ghraib trials has so far
been unable to subpoena any of the commanders or DoD officials up the chain of
command who are responsible for the policies or discover what the policies
actually are. I think that's absolutely outrageous given the undeniable facts we
do know, and that it's absolutely disgraceful the public, the press, the
Congress, and the Courts are still swallowing the patently dishonest and
fraudulent denials and rationalizations of the administration.

* It seems the courts in these cases have so far held that such evidence is not
relevant because it wouldn't constitute a defense for the crimes, but the
Doolittle Raiders case here shows plainly that such evidence IS relevant to
sentencing. Hence, even if the court won't allow the defense to subpoena DoD
officials and / or commanders to assert a defense, it could be argued that it
must still allow a subpoena in order to prove circumstances which might mitigate
the sentence -- and note that the Granier court martial was bifurcated: after
conviction he was allowed to testify in mitigation.

* I've thought about mitigation a lot over the last three years in the context
of my project, which I've approached as a criminal investigation into a
conspiracy to commit war crimes. This post resonates very strongly because as
stated in my In re Gitmo reply brief, the Bush administration has implicated the
White House, DoD, DOJ, State, and the intelligence agencies in a unified
conspiracy to commit war crimes by policy -- it's literally "one big crime
syndicate," and like any other crime syndicate, it runs from the top down. My
take: the laws are very complex, they are obscured by a mountain of fraudulent
administration political and legal propaganda, and most of the MP's,
interrogators, and low level commanders are just good soldiers trying to do
their duty. The real criminals are in the White House and the Pentagon.

* One last thought: I see the same pattern developing in the Abu Ghraib cases,
that I've watched in the habeas cases. Business as usual while the worst
criminal conspiracy in the history of this nation just grinds along because so
many people in this country think committing the crimes is just a good idea
politically and that allowing the President of the United States to commit any
crime he please against anyone he wants to is just a smart way to fight a war.

That isn't just wrong, it's IDIOTIC -- and it's also absolutely inconsistent
with the plain meaning of the US Constitution despite the all the dishonest hot
air and smoke the neo-fascists and Federalist Society types have been blowing
the past four years.

Next I'm going to try to look at some key points in the Khalid decision.

Regards,

Charly

- - - - - - - -


> Date: January 20, 2005
> From: Evan Wallach
> To:   ASIL Forum
>
> Subj: Intermediate War Criminals in the Chain of Command
>
> Dear All:
>
> The following is something I just put together for the
> Command Responsibility Chapter of the on-line text at
> lawofwar.org. I thought it mightprovide a timely reminder
> of several aspects of the law. I'm researching the case 
> further. -- Evan
>
>
> WHEN MERCY SEASONS JUSTICE: WHAT HAPPENS TO
> INTERMEDIATE ACTORS IN THE CHAIN OF COMMAND
>
> On 18 April, 1942 B-25 medium bombers launched from the
> U.S. Navy aircraft carrier hornet bombed several
> Japanese cities. Eight crew members from those planes
> were captured by Japanese forces in China. The raid,
> while it caused little substantive damages, greatly
> embarrassed the Japanese government.
>
> On 13 July, 1942, The Japanese Vice Minister of War
> issued Military Secret Order 2190:
>
>   An enemy warplane crew who did not violate
>   wartime international law, shall be treated as
>   prisoners of war, and one who acted against the
>   said law shall be punished as a wartime capital
>   crime.
>
> Following receipt of that Order, the Assistant Chief of
> Staff of Imperial Army Headquarters dispatched it to the
> Chief of Staff of the Japanese Expeditionary Force in
> China. He attached a Memorandum which stated:
>
>   In regard to Military Secret order No. 2190
>   concerning the disposition of the captured enemy
>   airmen, request that action be deferred
>   ...pending proclamation of the military law and
>   its official announcement, and the *scheduling
>   of the date of execution of the American
>   airmen.*
>
>   (Emphasis added).
>
> On 13 August, 1942, Shunroku Hoto, Supreme Commander of
> the Japanese Forces in China promulgated Military Order
> No. 4, which became known as the "Enemy Airmen's Act".
> That law, which was in part ex post facto, provided
> that:
>
>    Article I: This law shall apply to all enemy airmen
>    who raid the Japanese homeland, Manchukuo, and the
>    Japanese zones of military operations, and who come
>    within the areas under the jurisdiction of the China
>    Expeditionary Force.
>
>    Article II: Any individual who commits any or all of
>    the following shall be subject to military punishment:
>
>   Section 1: The bombing, strafing, and otherwise
>   attacking of civilians with the objective of
>   cowing, intimidating, killing or maiming them.
>
>   Section 2: The bombing, strafing or otherwise
>   attacking of private properties, whatsoever,
>   with the objectives of destroying or damaging
>   same.
>
>   Section 3. The bombing, strafing or otherwise
>   attacking of objectives, other than those of
>   military nature, except in those cases where
>   such an act is unavoidable.
>
>   Section 4. In addition to those acts covered in
>   the preceding three sections, all other acts
>   violating the provisions of International Law
>   governing warfare.
>
>    *        *        *        *        *        *
>
>    Article III: Military punishment shall be the death
>    penalty [or] life imprisonment, or a term of
>    imprisonment for not less than ten years.
>
>    *        *        *        *        *        *
>
>   *This military law shall be applicable to all
>   acts committed prior to the date of its
>   approval.*
>
>       (Emphasis added).
>
> The eight prisoners had signed confessions, written in
> Japanese, and untranslated into English. After trial
> without the benefit of independent counsel or a
> translator, all eight, were sentenced to death in a
> trial record which found that while attacking Japan they
> "suddenly exhibited cowardice when confronted with
> opposition in the air and on the ground, and with the
> intent of cowing, killing and wounding innocent
> civilians, and wrecking havoc on residences and other
> living quarters of no military significance whatsoever,
> together with other planes did carry on indiscriminate
> bombing and strafing, thereby causing the death and
> injury of about ten civilians and the destruction of
> numerous residences."
>
> The sentences of five of the prisoners were commuted to
> life imprisonment. On 14 October, 1942, the other three
> were executed.
>
> On 27 February, 1946 Lieutenant General Shigeru Sawada,
> 13th Army, Commanding General, Captain Ryuhei Okada, a
> member of the trial court, Lieutenant Yusei Wako, the
> prosecutor, and Captain Sotojiro Tatusta, the prisoner
> warden and official executioner were arraigned before a
> United states Military Commission. The defense, which
> included U.S. Army JAG appointed defense counsel, and
> three Japanese civilian lawyers, raised, inter alia, the
> same superior orders argument made and rejected at
> Nuremburg. The prosecution argued strenuously for the
> death penalty against all four defendants.
>
> On 12 April, 1946, the Commission issued its verdict:
>
>   The offenses of each of the accused resulted
>   largely from obedience to the laws and
>   instructions of their Government and their
>   military superiors. They executed no initiative
>   to any marked degree. The preponderance of
>   evidence shows beyond reasonable doubt that
>   other officers, including high governmental and
>   military officials, were responsible for the
>   enactment of the Ex Post Facto "Enemy Airmen's
>   Law" and the issuance of special instructions as
>   to how these American prisoners were to be
>   treated, tried, sentenced and punished.
>
>   The circumstances set forth above do not
>   entirely absolve the accused from guilt.
>   However, they do compel unusually strong
>   mitigating consideration, applicable to each
>   accused in various degrees.
>
> Sawada, Okada and Tatsuta were sentenced to five years,
> and Wako to nine years, confinement at hard labor. The
> penalties caused a firestorm of protest in the United
> States. Nevertheless, the verdicts were confirmed.
>
> Author's Note: At this time the sole source for the
> information discussed above is Carroll Glines, Four Came
> Home, Van Nostrand, Princeton (1966). The author is
> currently researching the trial record for a more
> extensive discussion.

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