Tears in the Darkness (61 page)

On February 5, the day Homma was scheduled to testify, word reached the Philippines that the U.S. Supreme Court had denied General Yamashita's appeal, rejecting all the legal arguments Homma's defense team had hoped to use in its case as well.

In the majority (6–2) opinion written by Chief Justice Harlan F. Stone, the court ruled that the defendant could be tried by a military commission, a wartime court, because (absent a peace treaty) America and Japan technically were still at war. Since such a commission was legal, and since the Supreme Court lacked jurisdiction to review the findings of military commissions, the defendant in effect had no claim to protection under the Fifth Amendment. In plain terms, as an enemy combatant, he had no legal right to a “fair trial,” at least as that term was understood by most Americans and spelled out in the Constitution of the United States.

At the heart of the case, of course, was the issue of command responsibility. The majority held that the law of war “plainly imposed on petitioner . . . an affirmative duty to take such measures as were within his power and appropriate in the circumstances” to protect civilians and prisoners of war from harm. Thus, the court concluded, the defendant's “responsibility” was clear.
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Not to the two dissenting justices, however. Wiley B. Rutledge and Frank Murphy thought the majority's reasoning was rife with pettifoggery.

To Rutledge, the great issue, as he called it, was the Fifth Amendment with its “safeguards” for a fair trial, safeguards Yamashita had been denied. His trial, the justice wrote, was filled with “broad departures from the fundamentals of fair play,” fundamentals at the heart of American culture and society.

“I cannot believe in the face of this record that the petitioner has had the fair trial our Constitution and laws command.” Using italics to add emphasis, Rutledge wrote, “
no
person shall be deprived of life, liberty or property without due process of law.”
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Justice Murphy, a civil libertarian and former high commissioner in the Philippines, was even more pointed. Yamashita, he wrote, had been “rushed to trial under an improper charge, given insufficient time to
prepare an adequate defense, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged.”

The trial had thus undermined the very values so many Americans had given their lives to defend. At its heart, he said, was “an uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander.”

Such a spirit, he went on, was “unworthy of the traditions of our people” and “to conclude otherwise, is to admit that the enemy has lost the battle but has destroyed our ideals.”
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IF HOMMA STILL HOPED
for a reprieve, he did not say. But learning of the Court's decision the same day he was to take the witness stand likely deepened his dread.

At midmorning on Tuesday, February 5, lead defense counsel John Skeen started the direct examination of his client.

 

Q: How long did you serve in the Japanese Army?

A: I was with the Japanese Army about 38 years.

 

Then Skeen took him through that career, trying to turn his liabilities as a general into evidence to support the defense case—his affinity for Anglos, his liberal ideas, his disagreements with Tojo and the high command.

Skeen's next job was more difficult—to show the commission how a Japanese commander in chief could be isolated in the middle of his own army.

 

Q: Did you choose your own staff officers?

A: No, I did not choose my staff officers. I was almost the last [member of the 14th Army staff assigned to the Philippine invasion force].

Q: From where did the order come regarding appointments of staff officers in the Japanese Army?

A: From Imperial GHQ.

Q: Could you remove any staff officers or senior commander on your own authority?

A: No, I cannot.
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So he was surrounded by subordinates who owed their political loyalty, and army careers, to others, and those subordinates had an unusual amount of power and autonomy. They could keep him informed or not, and in doing so they could, in effect, manipulate his orders, a practice so common in the Imperial Army it even had a name,
gekokujo
, “the rule of the higher by the lower,” a reflection of the power of the junior officer corps, whose ranks were rife with political incendiaries, cunning zealots in key posts.
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AFTER LUNCH
, Skeen prepared to take his client through the most difficult part of his testimony.

Skeen asked him if he'd had occasion to be on the Old National Road during the movement of prisoners north.

Yes, Homma said, he had been on the roads of Bataan three times during that period.

 

Q: Did you see any signs of mistreatment of prisoners?

A: Oh, no, I did not.

Q: Did any one of your staff officers make an inspection of the march of prisoners from Bataan to San Fernando?

A: Yes, I think they did, on their own initiative . . . General Wachi, Colonel Takatsu, and Major Wada, they did.

Q: . . . Did you receive any reports from these officers as to mistreatment of prisoners on the march?

A: I did not receive any such report.

Q: Now, had they seen occurrences, would they have been reported to you?

A: Certainly they would.

Q: Did you receive reports from any officers, or anyone, as to mistreatment of prisoners on the march?

A: I did not receive any such reports.

Q: . . . What was the apparent physical condition of the prisoners [that you'd seen]?

A: They looked rather tired and haggard.

Q: . . . In your trip[s] did you see any bodies, dead bodies, along the road?

A: No, I did not see. From the testimony I heard in court it appeared
to me that there were many dead bodies lying along the roadside, but I do not see how it could be so, why I did not see any bodies lying on the road on my whole trip. However, I was not looking for them particularly, to find them.
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It was a risky strategy, born more of desperation than design. Skeen, Pelz, and company were pinning their case on their client's credibility. Homma was telling the court that he'd seen nothing untoward along the route of the march, a general in a staff car with his mind so fixed on finishing a battle that he could look out the window without noticing the trees. Maybe the judges, all generals themselves, men who also had experienced the myopia of command, would believe him.

 

ON CROSS-EXAMINATION
, Frank Meek, the chief prosecutor, tore away at each of the defendant's assertions.

 

Q: . . . You were reported to have said [in a newspaper interview in Tokyo after arrest] “I saw the death march, and it wasn't very bad.”

A: . . . I meant that I saw the march, which I related here.

Q: And what you did see of it, you didn't think it was very bad?

A: I stated here yesterday that I saw a few columns of the march, and nothing—I saw nothing extraordinary happen.

Q: . . . While you were in command in the Philippines, no report was ever made to you of any deaths in that march?

A: It may have been made, but I cannot state with any amount of certainty.

Q: . . . There were many atrocities . . . Prisoners were beaten, bayonetted and shot . . . Does that indicate to you that the plan for the kind of treatment of prisoners of war that you had issued prior to the invasion was being followed out?

A: I came to know for the first time in the court of such atrocities, and I am ashamed of myself should these atrocities have happened.
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At the end of his cross-examination, Meek focused on the main charge: Homma's overarching responsibility as commander in chief.

 

Q: You knew that your responsibility was to treat prisoners of war according to the terms of international law and the Geneva Convention?

A: I shouldn't call it a responsibility, but I knew that prisoners of war should be treated according to international law.

Q: You knew that was your responsibility, to see that was done, didn't you?

A: It should be observed.

Q: Is that the best answer you can give?

A: I have responsibility in the moral sense about everything that happened under my command.

Q: That includes the care, feeding, the furnishing of medicine to civilian internees, as well?

A: Everything what happened under my command, I said.
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THE LAST WITNESS
for the defense took the stand on the afternoon of February 7. As Bob Pelz described the scene, the witness was “completely undaunted” by the bright lights, the whirring gears of the movie cameras, the popping of flash bulbs.”

 

Q: What is your name?

A: Fujiko Homma.

 

She was dressed in a dark kimono with a white obi and wooden sandals, and her hair was pulled back in a bun. “We will probably never see a more dramatic spectacle in court,” Bob Pelz wrote that night. “Mrs. Homma almost gaily took the stand in defense of her husband.”

She had worked with defense lawyers for several days preparing her testimony. Skeen had tried to warn her to accept the “misfortune that awaits,” but she still hoped for a good result.
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Captain Frank Coder handled her questioning for the defense. As they had rehearsed, she told the court about her husband's political attitudes, his views on the war, his ostracism by the Imperial Army elite—a reprise of the defense's main themes.

Then Coder came at her with a question the two had not rehearsed.

 

Q: Can you tell us generally what kind of a man General Homma is?

 

She paused for a moment (“I have not really thought about this,” she told herself), then spoke into the microphone in front of her.

 

A: I have come from Tokyo to here, and I am proud of the fact that I am the wife of General Homma. I have one daughter, and my wish for her is that some day I wish that she will marry a man like my husband, Masaharu Homma. He is that kind of man.
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The gallery was quiet, the defendant wet eyed.

[
Pelz, Journal, February 7
] No one could help but feel a lump in their throat as this lovely woman quietly talked of her husband . . . I believe [judges] Valdes and Trudeau were most affected of the commission. Bowing as she walked out, Mrs. Homma received a slight bow and smile from Trudeau. Even Major Tisdelle [General King's aide, a former POW and a witness for the prosecution] said to me, “She is a lovely woman, but she does not really know her husband. I kept seeing the tortured bodies of my friends as she spoke.”

That day, Masaharu and Fujiko saw each other for the last time.

He was locked in his room on the second floor of the residence. She was allowed to speak to him through a small wire-mesh screen in the door. His voice, she thought, “has the calm of a man who has already settled himself to his fate.”

As the half hour approached, they waited for Captain Williams to appear and take her away, but the officer was nowhere in sight. After more than an hour, Williams finally arrived—drunk. (Fujiko later found out that her proctor had gone on a bender so she and her husband could be together, in her words, “for as long as possible for the last time on earth.”)
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Later, back at the nurses' quarters, Skeen came to see her.

“Missus, your part is over,” the defense attorney said. “It is best that you go home.”

“I would like to stay as long as I can,” she pleaded.

“No,” the attorney said. “Your husband does not want you to have to see him receive the verdict.”

She would be leaving in forty-eight hours, he told her. Lieutenant Pelz would fly to Tokyo with her and escort her home.

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THE NEXT DAY
, Saturday, February 9, Pelz joined George Ott, Frank Coder, and John Skeen to deliver the closing arguments for the defense.

“In order to find the accused guilty under the charge,” Skeen began, “the prosecution must prove beyond all reasonable doubt that he is connected with the atrocities which have been alleged.”
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Skeen went on to summarize Homma's troubles as a commander—the shortages of food and medicine, poorly trained troops, his lack of control over his staff. “In judging whether he ‘did unlawfully disregard and fail to control the operations of the members of his command,'” Skeen continued, “you must base your decision not on the control he should have had, not on the control he would have had as the commander of an army of the United States, but on the control he actually has as a lieutenant general of the Japanese Imperial Army . . . I cannot stress this point too strongly.”
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Then Skeen reviewed the shaky testimony of Homma's staff officers, evidence that had to be answered. “In no case did a staff officer testify that he had ever reported to the accused any case of an atrocity or laxity on the part of subordinate officers,” Skeen said. “Why were they not reported? In some cases because they did not believe maltreatment existed and in others because they did not want him to know about it. It should be obvious to the Commission after listening to the testimony of staff officers of the accused that they did not honestly inform him as to the actual conditions.”
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Then, all arguments exhausted, the defense attorney made a simple appeal.

Finally it should be pointed out that all of the evidence is not to be found within the printed pages of the record. In the short space of six weeks all members of his counsel have become thoroughly convinced of the sincerity and integrity of General Homma and are proud to have represented him . . . You have observed his manner on the witness stand . . . Can you say after talking with him that he is a cruel and heartless man that would have permitted his troops to commit atrocities had he known about them? . . . We therefore submit that after a careful analysis of all the evidence in the light of American justice this Commission should render a verdict of not guilty under the Charge.
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