WASHINGTON — Five months after the end of World War II, the U.S. Supreme Court, in a 6-2 decision, upheld the death sentence of a Japanese general who had commanded the final defense of the Philippine Islands.
The court's action greatly troubled a young Navy veteran, John Stevens, who a year later became a law clerk for one of the two dissenters in the case.
The "great divide between our enemies and ourselves," Justice Wiley B. Rutledge wrote in his 1946 dissent, was that "theirs was a philosophy of universal force" and "ours is one of universal law" -- for friends and foes.
The swift military trial of Gen. Tomoyuki Yamashita stemmed from Japanese troops' brutal attacks on Filipino civilians. Rutledge said it failed to meet basic standards of fairness because the general had been convicted of war crimes in the absence of any evidence he had done wrong.
"If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice," Rutledge's dissent said.
Rutledge died three years later of a heart attack, after just six years on the court, and his name faded from the public's memory. But his former clerk kept alive those dissenting words, writing in a 1956 book chapter that Rutledge's view on the importance of fairness in military trials would "be shared by others in years to come."
His prediction came true.
That onetime law clerk is Justice John Paul Stevens, who in June wrote the Supreme Court's ruling that accused war criminals must be tried, as the Geneva Convention requires, in "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
Stevens was speaking for the 5-3 majority in Hamdan vs. Rumsfeld, which rejected the Bush administration's special rules for military tribunals because, the court said, the rules did not offer defendants a fair trial.
The high court had agreed two years earlier that the government could hold so-called enemy combatants -- captured during conflict but not affiliated with a nation's military -- at a U.S. facility at Guantanamo Bay, Cuba. But this time it faced the question of whether some detainees could be tried as war criminals, and possibly executed, under evolving rules set by the White House alone.
