Military Tribunal Research Articles

The Nuremberg Doctors’ Trial: Looking Back 70 Years Later

On 20 August 1947, the United States Military Tribunal condemned sixteen persons in Nuremberg for crimes committed in the name of science in several concentration camps. Moving away from a dichotomous stance delineating true science/false science, the judges were able to outline ten ethical and legal principles to regulate all clinical experiments, which were subsequently known as the Nuremberg Code. Where most of legal commentaries focus on the mere reading of these ten principles, this paper will highlight some of the steps in the legal journey of the American judges. We will see that, unfortunately, they failed to address one of the most difficult issues in clinical trials and human experimentation: the almost unavoidable context of exploitation of any situation where a person is used as an object for the good of others.

The Decaux Principles on the Administration of Justice by Military Tribunals and the Guantanamo Bay Trials

This chapter takes a close look at the practice of the U.S. military commissions criminal trials. It is co authored with Dr. Mitch Robinson, a defense international law specialist in the ongoing 9/11 trial taking place at Guantanamo Bau, Cuba, and it is largely based on a field research conducted in 2016. The first part of the chapter situates these military commissions within the general U.S. justice system and describes how U.S. federal judicial branch actively re-appropriated to itself a central role in reviewing issues related to the commissions' function. The second part of the chapter takes a close look from within the ongoing proceedings, and more specifically the 9/11 trial. Through the description of the legal framework and actual practice of military commission proceedings, it is empirically shown how 'The most important trial since Nuremberg' continues to be mishandled.

Pour nous servir en l’armée: Le gouvernement et le pardon des gens de guerre sous Charles le Téméraire, duc de Bourgogne (1467–1477), by Quentin Verreycken

Part of the implied contract by which European rulers extracted ever greater resources from their subjects for the maintenance of increasingly large and permanent armed forces seems to have been that those rulers would make serious efforts to regulate the conduct of their soldiers towards the civilian population. Charles the Bold, duke of Burgundy, was among the great elaborators of military institutions and military ordinances in his age—not that it did him much good, as his armies crumbled repeatedly before the Swiss and their allies. He also had a high view of his own judicial supremacy over the composite polity he ruled, so his efforts to control his soldiery tested him not only as a lord of war but also as a prince of justice. In the absence of archives of military tribunals, remission letters are the best means available to test the effectiveness of his regulatory efforts. A third of those surviving from his reign from the Chambre des Comptes at Lille concern war, one in five was issued to a past or present soldier, one in ten to someone serving in arms at the time of their offence, and one in fifty to civilians killing soldiers. In this book, Quentin Verreycken sets his analysis of these letters deftly in the context of a range of relevant models of the operation of law, violence and social regulation, drawing in Foucault, Elias and others without letting them entirely take the helm. He also relates it to the work of the numerous historians of later medieval and early modern France and its satellites who have found such letters a profitable source, though he does miss David Potter’s 1997 study of murder in Picardy, much of it among soldiers, in the period just after his own.

한국전쟁 초기 북한의 전시계엄과 군사재판

한국전쟁 초기 북한의 전시계엄과 군사재판

Meanings of Treason in a Colonial Context: Indian Challenges to the Charges of ‘Waging War against the King’ and ‘Crimes against Peace’

AbstractIn November 1945, the British colonial authorities convened a court martial of members of the Indian National Army, which had fought alongside the Japanese in the Asia-Pacific War. Three defendants were charged with ‘waging war against the King’ – the equivalent of treason, set out in Section 121 of the Indian Penal Code.At the heart of the case was the question of allegiance. The chief defence counsel, Bhulabhai Desai, had the task of presenting a legitimate – i.e., non-treasonable – exception to the duty of allegiance to a state during a war. Drawing on Hobbesian themes, Desai insisted that a specific event – the fall of Singapore – had convinced the surrendered Indian troops of the British Army that Britain was no longer capable of protecting their interests. Further, he questioned the very premise of the ‘waging war against the King’ charge, by arguing that during a war of liberation the justice of the challenger eclipsed the security of the challenged.Desai's approach influenced Radhabinod Pal, who would take these arguments to the International Military Tribunal for the Far East. Pal, like Desai, took as his starting point the differing interests of the powerful states and their colonies. He argued that the Allies’ motives for creating the new charge of ‘crimes against peace’ were highly suspect, considering their own history of violence towards the non-Western world. Would it not potentially immobilize the struggle against colonialism? And,paceHobbes, could not a colonized state's duty of allegiance to the society of states be relinquished?

A Mouthful of Crimes: Facing the Challenges of Culture-Specific Propaganda as Evidence in International War Crimes Trials

The concept of propaganda is an integral part of the vocabulary in all war crimes trials. It is, however, evident in both theory and practice that there is a multifaceted conceptual confusion in the interaction of propaganda, war crimes trials and international law. This contribution explores the significance of the propaganda-related evidence present in the culturally specific language and discourse identified in the records of the International Military Tribunal (IMT), International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY). The key to understanding the ontological and evidentiary intricacies of any propagandistic situation begins at its conceptual-linguistic foundations. Examples from the Nazi Germany propaganda lexicon include concepts such as arisieren (aryanize) and aufnorden (nordify), suggesting the purification of their ancestral blood, followed more than half a century later by the Rwandan concepts of Inyenzi, cockroaches, or Inkotanyi, a reference to the nineteenth century military forces in Rwanda, and strong derogatory terms such as Ustasha, Turk and Balija, used during the conflict in the former Yugoslavia. Given these instances, international criminal proceedings have seen the emergence of a new type of evidence: a culture-determined plural of the many manifestations of propaganda. As a result, propaganda can neither be interpreted nor understood without an advanced forensic approach to the language employed by the propagandist. Utilizing a cross-disciplinary combination of philology, philosophy, history, psychology, anthropology, political science, linguistics, literary studies and other relevant fields of research, including law, as an amalgamation of cognitive and social science research with the humanities, this contribution employs a novel hybrid method to criminal and legal analysis. Applying this approach to some of the major propaganda cases in international criminal justice demonstrates how and why this hybrid method should be introduced into the process of identification and prosecution of the guilty minds of the propagandists and the networks of their associates.

Bayonets in Paradise: Martial Law in Hawaii during World War II

Officials in Hawaii in 1942—with its 158,000 Nikkei (ethnic Japanese, both U.S. citizens and noncitizens)—have been applauded for avoiding the unconstitutional actions that were meted out to the 110,000 U.S. West Coast Nikkei, who were incarcerated en masse during World War II. Less has been noted, however, about the military regime imposed on the territory immediately after the bombing of Pearl Harbor. In response to the attack, the territorial governor Joseph Poindexter placed the islands under martial law, giving the U.S. Army control over island residents' juridical, economic, political, social, and personal lives. Examples of areas affected include curfew and blackout hours, censorship of mail, the schooling of children, the amount of cash people were allowed to hold, food production, restaurant hours, and the prices of goods. Civilian jobs, wages, and working conditions proved to be a contentious issue between labor unions and the military. The replacement of civilian courts by military tribunals also created sharp public disagreements between military officials and their critics.

LACONIA ORDER” AND THE RESPONSIBILITY OF ADMIRAL DÖNITZ BEFORE THE NUREMBERG MILITARY TRIBUNAL

The article concerns the theme related to the order of 17 September 1942 issued by Admiral Karl Dönitz, Commander-in Chief of the German submarine fleet during the World War II. In the German literature this order is known as the Laconia Befehl. It was issued in connection with the rescue operation after the sinking of the British ship ‘Laconia’, which was commenced by the crew of a German submarine. Not only weighty military and ethical, but also legal nature issues appear against the background, since in connection with the order issued Admiral Dönitz was charged before the Nuremberg Military Tribunal for war crimes.

Underground anti-Soviet activities of students of National University 'Lviv Politekhnika' over the first postwar years (1944-1953)

The author traces some forms of underground anti-Soviet activities of students of the Lviv Polytechnic Institute, currently the National University 'Lviv Politekhnika'. The rest of Lviv higher education establishments were also engaged in such activities. The research is based on scientific studies, recollections, archive materials and records of the Ukrainian Rebel Army, which cover the period of 1944-1953. The paper is timed to the bicentenary of the Lviv Politekhnika foundation and aims to demonstrate fortitude of Ukrainian spirit of young people who sought after their independent Ukrainian state. A list of Politekhnika students is given, who displayed their bravery in individual anti-Soviet actions, as well as some underground independent student organizations and representatives of the national underground which considered youth development its priority since 1948 are indicated. Anti-Soviet activities of the student milieu included the making of politically focused leaflets and their distribution among city-folk and at higher education establishments. Despite a small time of underground activities because of frequent arrests, Lviv students continued their work up to 1953. All detected members of clandestine organizations were sentenced by the Military Tribunal of the Ministry for State Security to the terms of 10 - 25 years in correctional labor camps of the GULAG. Some of the released returned to their native land and managed to get across their viewpoint and motivation of their actions over the above period to new generations.

Влияние международного правосудия на развитие права: значение Нюрнбергского процесса для формирования международно-правового института уголовной ответственности юридических лиц

The article draws attention to the significance of the Nuremberg Trials for the development of international criminal law, presents analysis of the provisions of the Charter of the International Military Tribunal and other documents of the Nuremberg Trials with the focus on approaches to the definition of criminal organizations, specified therein.

The Last of the Romans. Bonifatius—Warlord and Comes Africae by Jeroen W.P. Wijnendaele

Reviewed by: The Last of the Romans. Bonifatius—Warlord and Comes Africae by Jeroen W.P. Wijnendaele Ralph W. Mathisen The Last of the Romans. Bonifatius—Warlord and Comes Africae Jeroen W.P. Wijnendaele London: Bloomsbury Academic, 2015 Pp. xiii + 182, ISBN 9781780937175 The end of the Western Roman Empire in the fifth century ce was one of the marquee events of antiquity, and in this regard several individuals have been given the sobriquet "the last of the Romans." In antiquity, Procopius (Bell. Vand.1.3.14–15) suggested two candidates as Ῥωμαίων ὕστατος: the western generalissimo Fl. Aëtius, and the rather less well known Count Boniface, whose primary distinction is to be blamed for allowing the Vandals to cross from Africa to Spain in 429. Wijnendaele's objective is to correct the impression that "Bonifatius should not be included in the same list of people as Stilicho, Constantius (III), Aëtius, and Ricimer," (2) and to give Boniface a place at the table, so to speak, in discussions of the pre-eminent generals of the final fifty years of the western Roman Empire. "What is presented here," writes Wijnendaele, "will … re-examine the concept of late Roman warlords. This study will demonstrate that Bonifatius was the first successful one" (3). Given the lack of source material, one cannot write a detailed biography of Boniface. Disjecta membra must be quarried from disparate sources such as Olympiodorus and Prosper of Aquitaine, all cited only in translation. Wijnendaele deals with the massive lack of information about Boniface by resorting to equally massive speculation. Thus, in a single paragraph, "might have stayed … might have joined … might have had … would have been compatible … I suspect that … could have been …" (36). After a survey of imperial history (9–27), Wijnendaele suggests that "Bonifatius was … likely to have been of African or Romano-Punic stock" (29–30) and that in 413, "Boniface made his first known public appearance" when, according to Olympiodorus, he wounded king Athaulf during a failed Visigothic attack on Marseille. Observing that Boniface "was only a tribune when Augustine met him" in North Africa in 417, Wijnendaele suggests, "a fair guess would be that he was just a regular soldier at the time of his brawl with Athaulf" (31). Perhaps, but with some caveats. First of all, Olympiodorus refers to Boniface as "most noble" (gennaiotatos) something that might not apply to an "ordinary soldier" (31). Furthermore, the office of military tribune was far removed from a common soldier. Jerome indicates there were seven intervening ranks, nor was there any skipping ranks: Numquid ex tribuno statim fit tiro? Non (Jer. C. Ioh. [End Page 524] Hierosol. episc. 19 [PL 23.370]). Thus, Boniface was not a late antique version of Bernard Cornwell's Lieutenant Sharpe, rising from common soldier to mid-level officer in one fell swoop (cf. 119). This also may not have been Boniface's first appearance in history, especially if Wijnendaele is right about the African connection. The imperial officials present at the Council of Carthage in 411 included, in rank order, "The viri devotissimi Sebastian, Maximianus, and Petrus, protectores domestici; Ursus, Petronius and Libosus, ducenarii; and also Bonifatius and Evasius apparitores of illustrious and eminent powers" (Mansi, Collectio 4: 149). Officials typically described as being both "illustrious" and "eminent" included the Praetorian and Urban Prefects and the Master of Soldiers (CTh 6.8.1; NTh 24.3). In addition, the Proconsul of Achaea excepted, in the Notitia dignitatum only Masters of Soldiers have apparitores on their staff (Not. Dig. occ. 5, 6, 7; Not. Dig. or. 5, 6, 7, 8, 9). Thus, as an apparator of the newly appointed Master of Both Services, Constantius, young Boniface could have been posted to Carthage in 411 because of his North African connections. Then, still under Constantius and as rather more than a common soldier, he engaged in the "brawl" at Marseille two years later. Boniface is next attested in 417 (32) or 416/417 (37) on the Numidian frontier as a Military tribune commanding foederati. Five years later, he resurfaced in Italy: Prosper (s.a. 422) reports that the Master of soldiers Castinus rejected the participation of Boniface, whom Wijnendaele supposes...

Arendt in Asia: Responsibility and Judgment in Nanjing and Hiroshima

Political theorist Hannah Arendt (1906–1975) wrote little on Asia, but her 1963 Eichmann in Jerusalem: A Report on the Banality of Evil suggests how she might have evaluated responsibility for and judgment of war crimes in East Asia. I speculate first about how she might have regarded the 1946–1948 International Military Tribunal for the Far East, and I argue that she would have approved of the executions of those ruled culpable for the Rape of Nanjing while contesting much of the moral and legal thinking that led to them. Second, Arendt’s endorsement of the literary imagination as a tool for judgment allows us to read Hotta Yoshie’s 1963 A-bomb novel Judgment to explore how justice might have been served in the wake of the wartime use of nuclear weapons.

The Nature of Leadership in the Crime of Aggression: The ICC’s New Concern?

Since the Nuremberg trials, it has been accepted that only the highest echelon of state leadership can be responsible for the crime of aggression. The crime of aggression is distinguished from other core crimes under the International Criminal Court’s (icc) purview by, inter alia, its leadership nature. According to Articles 8bis(1) and 25(3bis) of the Rome Statute, only a person ‘in a position effectively to exercise control over or direct the political or military action of a State’ can be held responsible for aggression. The ‘control or direct’ standard was adopted at the first Review Conference of the Rome Statute in Kampala in 2010 and differs from the customary counterpart (‘shape or influence’) established by the Nuremberg Military Tribunal (nmt). This article will explore how the leadership clause has evolved and whether the new standard is more appropriate for the icc.

Cultural Property Protection and the Law of War Crimes

The article provides a brief account of the protection afforded to cultural property in armed conflict by the law of war crimes. Cases before the International Military Tribunal at Nuremberg, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Court are highlighted.

"Wir wollten was tun." Widerstand von Jugendlichen in Werder an der Havel 1949–1953 by Iris Bork-Goldfield

Reviewed by: "Wir wollten was tun." Widerstand von Jugendlichen in Werder an der Havel 1949–1953 by Iris Bork-Goldfield Phil Leask "Wir wollten was tun." Widerstand von Jugendlichen in Werder an der Havel 1949–1953. By Iris Bork-Goldfield. Berlin: Metropol, 2015. Pp. 196. Paper €19.00. ISBN 978-3863312473. Like all tales of torture and arbitrary punishment, Iris Bork-Goldfield's book is at times hard to read. Her concern is with a group of young people in Werder, west of Berlin, who actively resisted the authorities in the early years of the German Democratic Republic. Having seen the Nazi dictatorship defeated, they did not want it replaced by a communist dictatorship. At the heart of the group were Herbert Herrmann and the author's father, Werner Bork, born in 1932. Bork-Goldfield makes extensive use of an unpublished manuscript written in the 1990s by her father's journalist friend [End Page 452] Benno Kroll; this manuscript was based on interviews, personal knowledge, Kroll's research in the Stasi archive, and reports written by Bork in the early 1950s. Bork-Goldfield expands Kroll's work through conversations with her father and interviews with a number of his fellow resisters. She checks these interviews against the Stasi files in order to overcome the problem of the unreliability of participants' memories, while recognizing that the Stasi files are themselves unreliable (161). A scholar of literature and language, the author tells the story as if it were her father speaking, with effective personal touches. Her approach gives a sense of immediacy and energy, which tempts the reader not to question the authority of the narrator. Anticipating this problem, Bork-Goldfield seeks to justify her imagined narrative voice through extensive footnotes. In the early 1950s, Bork and his group distributed homemade leaflets. They later worked closely, and too trustingly, with the West Berlin organization Kampfgruppe gegen Unmenschlichkeit (Fighting Group against Inhumanity), which was infiltrated by the GDR's Ministry for State Security (the Stasi). Some of the resisters were arrested and tortured in order to extract—successfully—the names of others associated with Herrmann and Bork, then in West Berlin. What is puzzling is the naiveté and cognitive dissonance of the principal resisters. They believed both that their actions would make a difference and that they would have little effect. They also knew that active opposition put them in extreme danger (72, 74). Other accounts of early resistance confirm that it was widely known that young people were being arrested and sentenced to many years in prison by Soviet military tribunals, or that they were simply disappearing. Nevertheless, Bork and his group collaborated with committed Nazis and widened their activities to include espionage for Western intelligence services. No government or occupying power recognizes espionage as legitimate opposition but usually categorizes it as treason. The consequences were disastrous. A tense passage describes a Stasi attempt to trick Herrmann and Bork into returning to Werder, and the reader is relieved by their narrow escape. The Stasi, however, responded by arresting Herrmann's and Bork's friends in Werder. Some were sentenced to long terms in prison or in Soviet labor camps, whether they had been involved in resistance or not. Seven others, of whom two at least were apparently uninvolved, were taken secretly to Moscow and shot. After these arrests and a Stasi attempt to abduct Bork from West Berlin in early 1953, sporadic resistance continued. During the events of June 17, 1953, Bork and others went into East Berlin and sought to get involved. After the Soviet intervention, Bork left Germany, knowing that the Stasi would continue looking for him. He subsequently became a businessman with a family in West Berlin. Only in the 1990s did he discover that his friends had been shot forty years earlier, since such executions were not acknowledged until after the Soviet Union's dissolution (see Arsenij [End Page 453] Roginskij, "Erschossen in Moskau," 2008). Bork was horrified and fought to ensure there was a suitable memorial to them in Werder. There is no indication, however, that he felt any responsibility for their fate. Bork-Goldfield's book contributes to our detailed knowledge of early resistance in the...

HISTORIAN ASPECTS OF THE FORMATION AND ACTIVITY OF THE MILITARY TRIBAL TO THE LENINGRAD FRONT AND THE MILITARY TRIBUNALS SUBORDINATED TO IT DURING THE GREAT PATRIOTIC WAR

In general, the historical aspects of the construction and operation of the military-judicial system of the USSR are reflected in the scientific works "The Judicial Power of Russia" under the general editorship of V.М. Lebedev, O.E. Kutafin and V.M. Semigina and "The History of Military Courts of Russia" edited by N.A. Petukhova. However, the study period in these works paid little attention. Moreover, none of the printed publications reflects the activities of the Military Tribunal of the Leningrad Front itself during the Great Patriotic War. In many ways, this article is the first in its kind since 1945 to the present time, a purely historical study - a reflection of the activities not only of the Military Tribunal of the Leningrad Front in the period of the war, but also of the whole militaryjudicial system of the USSR. The main sources of the article are documentary materials kept by the Central Archive of the Ministry of Defense of the Russian Federation (here in after referred to as the CAMD Archive) and the archive of the Leningrad District Military Court (here in after - the Archive of the LDMC). There will also be references to the works of the above-mentioned scientists and the Gazette of the Supreme Soviet of the USSR.

On Jordan's <em>From Nuremberg to Hollywood: The Holocaust and the Courtroom in American Fictive Film</em>

On Jordan's From Nuremberg to Hollywood:The Holocaust and the Courtroom in American Fictive Film Lawrence Baron From Nuremberg to Hollywood: The Holocaust and the Courtroom in American Fictive Film. By James Jordan. London: Valentine Mitchell, 2016. 245 pp., ISBN-10: 0853038740 (hc), US $89.95. In From Nuremberg to Hollywood: The Holocaust and the Courtroom in American Fictive Film, his pioneering survey of American Holocaust courtroom dramas, James Jordan traces how these films evolved from a reliance on "the once shocking, then iconic, but eventually overused black-and-white footage of liberation to the representation of the Holocaust through the use of oral testimony delivered by Jewish survivors from the witness box" (9). He attributes this shift to the evidentiary strategies employed by the prosecution teams in the trials that inspired such films and the growing awareness of the Holocaust in American public memory. At the International Military Tribunal (IMT) held in Nuremberg (1945–1946), the United States introduced five documentaries consisting of newsreel clips about Hitler's rise to power, his regime, and footage of the appalling sights encountered by Allied troops when they liberated concentration, death, and labor camps. These documentaries served as proof that the Nazi leaders in the docket were guilty of conspiring to wage aggressive war, and of implementing policies that resulted in such calculated carnage and cruelty to civilian populations and captured enemy soldiers. The devastating impression left by the liberation footage overshadowed the voluminous dossiers of incriminating documents and sparse survivor testimony [End Page 236] entered as evidence of German transgressions. In accordance with the charges leveled against the German defendants at Nuremberg, the persecution and slaughter of European Jewry were subsumed under the categories of war crimes and crimes against humanity. Consequently, the use of newsreel and liberation footage as authentic evidence of the barbarism and belligerent intent of Hitler and his henchmen often reappeared in feature films about the trials of Nazi officials and their collaborators. Moreover, the first scripted motion pictures dealing with this subject matter followed the Nuremberg precedent of marginalizing the Holocaust and the testimony of Jewish survivors in favor of focusing on the villainy of the Nazi perpetrators. Jordan begins his analysis of individual films with André de Toth's None Shall Escape (USA, 1944). Since President Roosevelt had announced in 1942 that the United Nations would convene postwar trials of the Nazi leaders, de Toth imagined the content and look of such proceedings. None Shall Escape revolves around the testimony of three eyewitnesses regarding whether the "crimes of murder, unlawful detention, degenerate atrocities, and common theft" enumerated by the chief justice were committed by Wilhelm Grimm, an ethnic German who returned to his hometown in Poland as the head of the German occupation during World War II. The town's priest, Grimm's anti-Nazi brother, and Grimm's former girlfriend recall his anger over Germany's defeat in World War I and the inclusion of the town within Poland's interwar borders; his immigration to Germany and enlistment in the Nazi Party; his imprisonment of his brother for subversive activities; and his role in exploiting Polish labor, persecuting Jews, and ultimately ordering their massacre when the local rabbi incites them to resist deportation. Their accounts segue into realistic flashbacks that trace Grimm's metamorphosis from an innocuous teacher of German into a callous tyrant. While Jordan appreciates that None Shall Escape is unique among Hollywood wartime films in its emphasis on the plight of the Jews, he faults the picture for lacking a Jewish witness, even though this obviously reflects the fact that none of the town's Jewish inhabitants survived to tell the story. However, the rabbi's impassioned call to arms—which leftist screenwriter Lester Cole culled from a rousing speech delivered by the communist Dolores Ibárruri during the Spanish Civil War—admirably fills this void.1 In chapter 2 Jordan examines how American feature films produced from 1946 until 1961 interjected familiar scenes or referents from the Nuremberg documentaries to indict Nazi characters who were being hunted down and [End Page 237] tried for their crimes, or to collectively blame the German people for tacitly condoning their country's...

Forensic Investigations in the Nuremberg Trials

The authors present data on the forensic investigations conducted during the Nuremberg International Military Tribunal, as well as evaluation and use of expert testimony by the Tribunal, and characterize the main types of forensic investigations conducted both prior to the Tribunal and in the course of the trials. Certain procedural aspects of ordering and conducting forensic examinations are examined. The authors show how Nuremberg's forensic legacy provided an important contribution to the organization of forensic support for international and internationalized criminal courts and tribunals created in the post-1990s period.

The Desperate Diplomat Revisited

This article, an elaboration on The Desperate Diplomat (2016), reexamines Japanese Special Envoy Kurusu Saburo’s mission to the United States before Japan attacked Pearl Harbor on 7 December 1941, presenting a new “concurring opinion” in support of his innocence. The u.s. government firmly believed that Kurusu had been informed of the impending attack prior to coming to the United States and thus acted as a smoke screen. And so, the myth of the deceitful ambassador was born. Nevertheless, Kurusu insisted that he had no prior knowledge of Japan’s military action. Misunderstanding of his role in the Pearl Harbor attack and harsh remarks about it upset him. Utilizing Kurusu’s unpublished and previously unused materials in both Japanese and English housed in the National Diet Library in Tokyo, records from the International Military Tribunal for the Far East, and The Desperate Diplomat, based on his original memoir, this article helps Kurusu tell his side of the story to initiate scholarly debate on this insufficiently researched diplomat. This reassessment also presents excerpts from Kurusu’s unpublished personal correspondences with E. Stanley Jones, Bernard M. Baruch, and Joseph C. Grew.

The Law (?) of the Lincoln Assassination

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal?This Article III question has been debated in several of the nation’s major wars, yet remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, both because members of such enemy forces, who lack international law “combatant immunity,” often violate U.S. criminal laws, and because Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. In attempting to justify the constitutionality of such military trials, the government has, perhaps surprisingly, turned to the Lincoln assassination commission as a leading precedent, one that arguably helps to establish a longstanding political branch practice that should inform constitutional understandings. Such reliance on the Lincoln trial as legal authority is understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking — indeed, a significant constitutional embarrassment — to conclude that the trial and convictions of the Lincoln conspirators were unlawful.As I demonstrate in this article, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one knowledgeable observer wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.”This article offers the first comprehensive account of the ways in which the Article III question was contested during and immediately after the Civil War, with particular attention to the Lincoln assassination trial. The article also carefully examines the place of the Lincoln trial in the national constitutional discourse after 1868 — the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative thus can help inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution.