The foregoing establishes the pattern of the conduct or rather misconduct of the troops under Yamashita's command. Not isolated instances these but a paroxysm of debauchery and brutal depravity infecting many units in many places over a long period of time. To pretend that they were unknown to the commander is to trifle with common sense. To contend that the commander lacked the power of control in the discipline unto death which characterized the Japanese fighting unit is to speak the mind either of a fool or a knave.

The author likewise passes with scarce comment the voluminous evidence before the military commission pointing to full knowledge by the high command of this reign of terror instituted against non-combatants and prisoners over a wide area. In discussing this phase of the trial record the Judge Advocate's Board (attached Appendix C) has this to say:

"During the period 9 October 1944 to 3 September 1945, General Tomoyuki Yamashita was the Japanese Supreme Commander in the Philippines, under Count Terauchi, the Supreme Southern Commander (R 930, 1013, 2695, 3520). He was the Commanding General of the Japanese 14th Army Group (also referred to as the 14th Area Army) and, in addition, had command of all the Kempei Tai (military police) in the Philippines (R 105, 2255, 2272, 3593). The prisoner of war and civilian interment camps were under his control through the commanding general of war prisoners (B 3588; Ex 7).

"At first there were a number of Japanese forces in the Philippines which were not under his command, such as the 4th Air Army, the 3rd Maritime Transport Command, 30,000 troops directly under Imperial headquarters and the Southern Command, and the naval forces (R 3521, 3525, 3589) but these later were consolidated under him. About the first of December 1944, the 30,000 Imperial headquarters and Southern Army troops were assigned to him (R 3525). The 4th Air Army came under his control on 1 January 1945 (R 2676, 3525, 3589). By the middle of February, the 3rd Maritime Transport Command came under Yamashita (R 3525).

"The army forces in Manila and southern Luzon were formed into the Shimbu (mixed) group about 26 December 1944 and command of this group given to Lt. Gen. Shizuo Yokoyama (R 2664, 3621). The group consisted of 45,000 troops (R 2664), including the Fuji Heidan of 6,000 troops in Batangas and part of Laguna, under the immediate command of Col. Masatoshi Fujishige (R 2810, 2811).

"On 6 January 1945, about 20,000 naval land forces in the Manila area were assigned to the army for tactical command only during land fighting (B 2535, 2536, 2538, 3526, 3588). These naval forces included marines and Noguchi units from the Kobayashi group, and were under the inmediate command of Rear Admiral Iwabuchi (R 2538, 2543, 2673). Disciplinary power over these forces remained in the naval commander, Admiral Okoochi, and was exercised through Iwabuchi (R 2545). The army actually began to exercise command over these naval forces about 1 February (R 2668, 2671, 2672). Yamashita commanded these naval troops through Yokoyama's Shimbu group (R 2676).

"The prosecution introduced the following evidence on the issue of the direct responsibility of accused as distinguished from that incident to mere command. Accused testified that he had ordered the suppression or 'mopping up' of guerrillas (R 2811, 3545, 3547, 3678; Ex 353). About the middle of December 1944, Colonel Nishiharu, the Judge Advocate and police officer of the 14th Army Group, told Yamashita -that there was a large number of guerrillas in custody and there was not sufficient time to try them and said that the Kempei Tai would 'punish those who were to be punished.' To this Yamashita merely nodded in apparent approval (R 3762, 3763, 3814, 3815). Under this summary procedure over 600 persons were executed as 'guerrillas' in Manila alone between 15 and 25 December 1944 (R 3763). In that same month, by a written order, Yamashita commended the Cortbitarte (Manila) Kempei Tai garrison for their fine work in 'suppressing guerrilla activities' (R905, 906). The captured dairy of a Japanese warrant officer assigned to a unit operating in the Manila area contained an entry dated 1 December 1944, 'Received orders, on the mopping up of guerrillas last night * * * it seems that all the men are to be killed. * * * Our object is to wound and kill the men, to get information and to kill the women who run away.' (R 2882; Ex 385).

"Throughout the record, evidence was presented in the form of captured documents and statements of Japanese made in connection with the commission of atrocities, referring to instructions to kill civilians. During the Paco massacre in Manila 10 February 1945, a Japanese officer said to his intended victim, 'You very good man but you die,' and, 'Order from high officer kill you, all of you, ' (R 833). On 10 April 1945, during the murder of civilians near Samuyao, a Japanese soldier said, 'It was Yamashita's order to kill all civilians,' (R 2317). At Dy Pac Lumber Yard, Manila, on 2 February 1946, the Japanese captain in charge said that this killing was 'an order from above' (R 2174). At Calamba, Laguna, in February 1945, the killings were 'by order of the Army' because the people were 'anti-Japanese' (R 2893, 2894). On 19 February 1945, prior to the massacre at Los Banos, the Japanese garrison commander told the mayor of Los Banos that the Filipinos were double-crossers and deserved to be killed. The Japanese officer then told the mayor to prepare a list of 50 pro-Japanese civilians and all the other Filipinos would be killed (R 2396). A captured order to a machine gun company states, 'There will be many natives along our route from now on. All natives, both men and women, will be killed. ' (R 2895)

"Captured notes of instructions by Colonel Masatoshi Fujishige, commander of the Fuji Heidan, to officers and non-commissioned officers of a reconnaissance unit contained the following, 'Kill American troops cruelly. Do not kill them with one stroke. Shoot guerrillas. Kill all who oppose the Emperor, even women and children," (R 2812). Colonel Fujishige was under the command of Yamashita through General Yokoyama (B 2811).

"Evidence in the form of captured documents was introduced to show that before and during the battle of Manila the following orders were issued by the Japanese forces: An operations order of the Manila Navy Defense Force and Southwestern Area Fleet directed that when Filipinos are to be killed consideration must be given to saving ammunition and manpower and because disposal of dead bodies is troublesome they should be gathered into houses which are scheduled to be burned or destroyed (R 2909). An order of the Kobayashi Heidan group, 13 February 1945, directed that all people on the battlefield in or around Manila, except Japanese and Special Construction Units (Filipino collaborators) would be put to death (R 2905, 2906; Ex 404) (Note:t The Kobayashi group, which included the Manila Navy Defense Force, was commanded for land operations by Yamashita through General Yokoyama (R 2538, 2673, 3622). A 'top secret' order by Yamashita as Commanding General, Shobu Army Group, dated 15 February 1945, stated, 'The Army expects to induce and annihilate the enemy on the plains of Central Luzon and in Manila. The operation is proceeding satisfactorily.' (R 122; Ex 6). 'Shobu' was the code name of the 14th Amy Group (Ex 3, 4, 5).

"The prosecution introduced two witnesses, Narciso Lapus and Joaquin S. Galang, who were currently detained by the United States Government as suspected collaborators (R 912, 1058; Def Ex A-H). Both these men previously had offered to exchange information as to Japanese and Filipino collaborators in return for their freedom, but both swore that they had received no promise of reward for their testimony in this case (R 913, 1059).

"Lapus testified that from June 1942 to December 1944 he was private secretary to General Artemio Ricarte, an important Filipino puppet of the Japanese (R 917, 923). He further testified that one day in October 1944, Ricarte returned to his residence and told the witness that he, Ricarte, had just had a meeting with Yamashita who had said, 'We take the Filipinos 100 per cent as our enemies because all of them, directly or indirectly, are guerrillas or helping the guerrillas,' and, 'In a war with the enemies, we don't need to give quarters. The enemies should go, ' (R 938). Yamashita revealed his plan to allow the Americans to enter Manila, then counter-attack and destroy the Americans and also the Filipinos in Manila (R 939, 1023). He further said that he had instructions to destroy Manila, particularly the most populated and commercial district of the city (R 939). Ricarte stated that Yamashita had said he had ordered that when the population gave signs of pro-American movement or actions, the whole population of that place should be wiped out (R 940). Ricarte later told the witness that when Ricarte, in November 1944, asked him to revoke this order, Yamashita said, 'The order was given and could not be changed,' (R 947).

"The witness Galang testified that he was present and overheard a conversation between Yamashita and Ricarte, in December 1944 (R 1063, 1068, 1069). The conversation was interpreted by Ricarte's 12 year old grandson, Yamashita speaking Japanese which the witness did not understand (R 1065, 1068). When asked by Ricarte to revoke his order to kill all the Filipinos, Yamashita became angry and spoke in Japanese which was interpreted into Tagalog as, 'The order is my order. And because of that it should not be broken or disobeyed. It ought to be consumed, happen what may happen, ' (R 1069). (Note: The defense introduced Bislummo Romero, the 13 year old grand-son of Ricarte, who said he had never interpreted between his grandfather and Yamashita, and specifically denied interpreting the conversation testified to by Galang (R 2014, 2021).)"

From a legal point of view the judgment of the Supreme Court, delivered by Chief Justice Stone, after due hearing of the author and his defense colleagues, disposed of the legal issues and arguments now reiterated in the referenced book. Some psychological effort has, however, in addition been made to mold in the public mind a point of view which by our highest judicial process has been rejected.

The author thus now for the first time challenges the competence of the commission to hear and adjudge the Yamashita case on the ground that its members were all professional soldiers, who could therefore not be expected to offer serious resistance to the desires of superior officers "on whose favor their future well-being might depend;" none of whom was "a combat man who might be expected more readily and sympathetically" to understand Yamashita's military difficulties; and none of whom were lawyers. It is quite true, as alleged, that all members of the commission were professional soldiers--indeed, all had many years of distinguished military service--and 'that none were lawyers in the sense of being paid practitioners, but all had broad legal experience in that throughout their service they had participated on innumerable occasions in the trial of military offenders as prosecutor, counsel and member of the court. It is not true, as alleged that none of them had combat service. All saw service in operations against the Japanese in various of the Pacific campaigns. Nor is there the slightest support for the implication that the members of the commission were not free agents to hear and determine in accordance with conscience and the law the issues placed before them.To imply the contrary is but to prevaricate the truth.

General MacArthur's viewpoint and instructions were recently recalled by Captain J. J. Robinson, USNR, from the office of the Judge Advocate General of the Navy Department, in a letter dated 1 November 1949, wherein he stated:

"These attacks on the trial and on General MacArthur are a source of special resentment to me because, as you know, I was the senior member of the Washington war crimes group of four officers to whom General MacArthur gave instructions in regard to the Yamashita case and other war crimes cases on 12 September 1945 at his headquarters at Yokohama, concluding with the request that we go to Manila and help his officers there initiate proceedings there. I remember distinctly, and I recorded in my notes, the General's insistence on fairness and legality. I read the transcript and record of the trial and the General's review. I therefore know how unjust and inaccurate these widely advertised charges are."

The author must well know that these allegations of incompetency even at their face value would not operate to render the officers concerned ineligible to sit upon such a commission. Indeed, this is best reflected from his failure to interpose similar objections upon trial of the case. What then can be the purpose in now making this post-judicial challenge of competence, other than to create the illusion in the reader's mind that the injustice accorded Yamashita was so basic and so flagrant that even his judges lacked the professional competence, the integrity, and the experience in war essential to a fair and just adjudication of the issues.

Furthermore, it should be here recorded that apart from the five general officers who composed the military commission, the legal adequacy of ths record to sustain Yamashita's conviction and sentence was passed upon first by the Judge Advocate of General Styer's headquarters and thereafter by General Styer himself as the reviewing authority in the first instance. After his approval of the finding and sentence of the commission the record was sent to higher headquarters only because the death sentence was involved as a result of General Styer's review action. Thereafter the trial record was again subjected to meticulous review by a board of five senior officers of the Judge Advocate General's Department in General MacArthur's headquarters and subsequently referred to General MacArthur himself with the Board's recommendation that the sentence be approved. Corollary to these review proceedings the legal issues now raised by the author were argued before the nine Justices composing the Philippine Supreme Court and thereafter heard by, the eight members of the United States Supreme Bench. Of all of these men who intervened to hear and pass upon one phase or another of the issue of' Yamashita's guilt or innocence, the majority of them lawyers themselves, only two supported Yamashita's defense. It is solely upon the views expressed by this small minority of two of more than thirty, neither of whom is now here to correct any misinterpretation of his opinion, that the author at this late date seeks to resurrect the cause of Yamashita's innocence.

In his book he endeavors to palliate, if not actually to justify, the revolting atrocities committed by the Japanese upon non-combatants and our prisoners of war by claiming that Japanese perfidy found its inspiration in American example. In probably his most regrettable passage the author damns his own country by the allegation that, "The charges of brutality by Americans toward Americans that were leveled by both the North and the South after the Civil War do not make pleasant reading. Our callous extermination of American Indian women and children by flame and shot, often preceded by unconscionable betrayal, is part of an ugly picture. But probably the most telling analogy is to be found in American activity in these same Philippine Islands in the early part of the twentieth century. During the bloody 'Philippine Insurrection,' methods of torture were devised and used by Americans in the 'pacification' of the Filipinos that demonstrate that the cruel Japanese Kempeitai were essentially clever imitators ....." And he challenges our air bombardment policy in subduing Japan as "a violation of the letter of the laws of war," asking, "why must we judge our enemies by a different standard." A strange and shocking effort, indeed, to support the record of Japanese brutality, lust and outrage established on Yamashita's trial, and against which even the author takes no exception, at the expense of the American tradition of honor and decency and justice. Isolated instances may have occurred in American history wherein soldiers departed from the high standard of martial honor which has come down as one of our finest traditions, but certainly history points to no such a rampant and reckless abandonment of principle on the part of Americans to warrant the author's contention that the Japanese merely imitated the example Americans previously had set.

Highly questionable as much that the author has said may be, his right to say it is not here in issue. What is in issue is the translation of his book into the Japanese language and its dissemination among the Japanese people. The interest of the United States in the security of the American forces occupying the country render it so. To protect that interest and preserve that security it is essential to guard against inflammatory material designed to arouse irresponsible Japanese elements into active opposition. The book contains just such inflammatory material in its biased and shameless distortion and suppression of the facts in the effort to secure Yamashita's vindication in the minds of its readers. The common sense of the great majority of the Japanese people would reject the false concept it is intended to propagate as they have witnessed at first hand the spiritual qualities of the American soldier and the moral strength and righteousness of American justice. But it is of the irresponsible elements and opposition minorities with which we must concern ourselves. The trial of Yamashita and entire detail of the legal proceedings leading to his execution were widely carried at the time in the Japanese press without the slightest restriction hence there is no mere question of censorship involved. Far more than that is involved: the question of American prestige, American dignity, and American security.

We need not consider here the motive which has led to the publisher's contemptuous public references to the President of the United States and distinguished members of the Senate. Possibly they are intended as a propaganda weapon to arouse the public interest--possibly this view is far too charitable. Suffice it to point out that neither the President nor Senators have had the slightest responsibility to intervene either in the Yamashita trial or in the present efforts to propagate the author's views among the Japanese people.

This Memorandum would be incomplete did it close without mention of the public characterization of the Yamashita trial, conviction, and execution by the publisher as a "judicial lynching"., He draws again upon the minority opinion of the late Mr. Justice Murphy for such a startling appraisal. But Mr. Justice Murphy did not so characterize it. He merely warned that "tomorrow the precedent here established can be turned against others. A procession of judicial lynchings without due process of law may now follow." Chief Justice Stone and a majority of the Court had already adjudged that the concept of due process had not been violated, and had Mr. Justice Murphy intended to stigmatize that same proceeding on which the Supreme Court had just pronounced its judgment as a judicial lynching" the effect would have been to throw the blame of guilt upon that high tribunal, of which he was a member, as an accessory thereto. It is unbelievable that the learned Justice would have intended this connotation to flow from his remarks--unfortunate that he cannot defend his own dictum against so licentious a misrepresentation.

Together with the advertising material of the publisher, the book is calculated to arouse in the minds of the Japanese doubt as to the moral standards of the American people and to impugn the integrity of the judicial process leading to judgments rendered in the trials for war crimes. The best that can be said for this effort to propagate among the Japanese people the false concept that Yamashita was denied the protection of elementary justice is that it is based upon a profit native--the worst, that it is intended seriously to impair the American position in the Orient. Regardless, the end result would be the same. Passions of irresponsible elements would be aroused, minorities already in opposition would be strengthened, and American lives might well be the forfeit.

The better to insure that the book and the propaganda efforts of its publisher do not succeed in a perversion of the historical truth, inasmuch as no agency of the United States is official repository of the trial record, there is appended hereto as App. C the formal review thereof by a board of officers consisting of Col. C.M. Ollivetti, J.A.G.D., Col. H. F. Matoon, J.A.G.D., Col. S. F. Cohn, Inf., Lt. Col. Charles P. Muldoon, J.A.G.D., and Major John H. Finger, J.A.G.D., prepared just following the rendition of the commission's judgment.




Brigadier General, U.S. Army

Chief, Government Section