[continued from previous message] 
  
 in June, 1945, argued that "the indiscriminate bombings had killed 20,000 
 people and wounded 30,000 in his territory, most of whom were noncombatants, 
 and, therefore, the thought of the disposition of 27 airmen was a small 
 incident compared with these facts," records say.  "The criminal code and 
 international law were secondary matters when compared with military 
 operations of the supreme command." 
  
 Defense lawyers argued that offering full-blown trials for American flyers 
 was impossible in the war's waning months, as Japan suffered under 
 relentless U.S. attacks.  Besides, such procedures "would not have given the 
 crew members any greater rights or protections than they received under the 
 abridged procedure, and that it constituted a trial under international 
 law." In any event, defense lawyers argued, the "crew members had no rights 
 as they were not prisoners of war." 
  
 Perhaps surprisingly, U.S. Army reviewers concluded in 1949 that "a Japanese 
 tribunal could have reasonably found there was indiscriminate bombing" and 
 that "in the course of a legal trial might well have found the [American] 
 crew members guilty." Moreover, they acknowledged that Japanese legal 
 procedures, although based on inquisitorial judges rather than the 
 adversarial system used in the U.S., cannot be considered "automatically 
 illegal." 
  
 But the abridged procedures employed as the war wore down violated the 
 flyers rights, the U.S. found. "These men were not informed they were being 
 charged with indiscriminate bombing and, except in the intelligence 
 investigation, where they might reasonably be expected to give as little 
 information as possible, they were not given a chance to make a statement." 
 The flyers weren't permitted to attend the hearings where they were 
 convicted and sentenced, the Army reviewers found. 
  
 Col. Onishi was sentenced to life at hard labor, although, on review, the 
 sentence was recommended for reduction to 30 years. 
  
 Advocates for the Guantanamo prisoners acknowledge that procedures the 
 Japanese used against American flyers were far less fair than the Bush 
 administration has issued for its current trials of enemy prisoners. But 
 they argue that the point of U.S. trials of the Japanese was that enemy 
 prisoners can't be tried according to lower standards of fairness than 
 America's own soldiers are entitled to. 
  
 Lt. Cmdr. Charles Swift, a Navy lawyer assigned to defend Mr. Hamdan, says 
 that the U.S. is railroading his client the same way the Japanese unfairly 
 prosecuted Americans during World War II. "One cannot help but be struck by 
 the insincerity of a prosecution that purports to enforce the law of war by 
 violating it," says Lt. Cmdr. Charles Swift, a Navy lawyer assigned to 
 defend before the Guantanamo military commission. 
  
 A Pentagon spokesman, Air Force Maj. Michael Shavers, declined to comment on 
 the World War II precedents, but said the new military commissions 
 established by President Bush "provide a valid, more flexible way in which 
 to hold those who violate international laws of war accountable while 
 providing them their day in court and preserving national security." 
  
 ~                                 *** 
  
 Part 2: 
  
 What War Captives Faced In Japanese Prison Camps, And How the U.S. Responded 
  
 After his B-24 Liberator crashed into the Pacific Ocean in May 1943, U.S. 
 Army Capt.  Louis Zamperini spent 47 days on a life raft before being 
 rescued by a Japanese patrol boat. Then his ordeal really began. 
  
 Shipped through a succession of prison camps, he finally arrived at Japan's 
 secret Ofuna interrogation center. There, prisoners thought to hold critical 
 intelligence were placed under a strict regimen designed to make them break. 
 Solitary confinement, blindfolding and compulsory calisthenics were routine. 
 Prisoners were shaved and stripped, forbidden from speaking to each other 
 and made to stand at attention or assume uncomfortable positions for 
 interrogations. Cooperate, and treatment might improve.  Violate the rules 
 and you might be slapped or beaten -- or worse. 
  
 "There was no such thing as international law, just Japanese law," says Mr. 
 Zamperini, now 88 years old. Japan had never ratified the Geneva 
 Conventions, and Ofuna inmates were told they had no treaty protections -- 
 such as the right to reveal nothing but name, rank and serial number. 
  
 Upon Tokyo's surrender, however, the U.S. declared that international law 
 did apply and held accountable much of the Japanese hierarchy, from prison 
 guards to cabinet ministers. U.S. military prosecutors brought hundreds of 
 cases for mistreatment of captured Americans, failure to classify them as 
 prisoners of war and hiding them from delegations of the International 
 Committee of the Red Cross. Offenses as minor as failing to post camp rules 
 or holding up a prisoner's meal were considered war crimes. A single count 
 could bring a year at hard labor. 
  
 "The defendants in these cases, as you would expect in most contexts of war, 
 believed that the circumstances justified what they were doing," says Prof. 
 David Cohen of the University of California, Berkeley, who has been 
 collecting trial records from around the world for a War Crimes Studies 
 Center1 he founded in 2000. 
  
 Summary Executions 
  
 Although Nuremberg and other postwar tribunals largely are remembered for 
 prosecuting the Nazi leadership for crimes against humanity, the trials 
 originated in the mistreatment of prisoners of war. It was the German 
 practice of summarily executing downed Allied flyers that in 1944 led 
 Washington to begin planning for war-crimes prosecutions. 
  
 Ofuna prison camp, where American prisoners were interrogated during World 
 War II.  Image courtesy "Devil at My Heels," the memoir of POW Louis 
 Zamperini. 
  
 Other than the flyers, Prof. Cohen says, American and British soldiers 
 captured by the Germans usually received adequate treatment. (Russian POWs 
 fared far worse, under Nazi racial policies that considered Slavs subhuman.) 
  
 Prisoners of the Japanese, however, faced grueling treatment across the 
 board. Forced labor, meager rations and poor medical care were the rule, 
 along with occasional beheadings by samurai sword and even incidents of 
 cannibalism. 
  
 But as the U.S. saw it, mistreatment didn't have to rise to the level of 
 torture to merit punishment. For conditions that fell short of torture, 
 prosecutors brought charges under the sweeping Geneva provision that barred 
 "any unpleasant or disadvantageous treatment of any kind." 
  
 Along with routine beatings, Japanese interrogators had used solitary 
 confinement, sleep deprivation, blindfolding, head shaving, restricting 
 meals, uncomfortable positions and other techniques to make prisoners talk. 
 Japan failed to register some prisoners or facilities with the Red Cross, 
 delayed delivering their mail or Red Cross packages and denied some 
 Americans POW privileges without full-blown judicial proceedings. 
  
 Japanese regulations required that prisoners of war "be humanely treated and 
 in no case shall any insult or maltreatment be inflicted." In a February 
 1942 diplomatic note, Tokyo told Washington that while Japan held "no 
 obligations" under the Geneva Conventions, it nevertheless intended to apply 
 "corresponding similar stipulations of the treaty" to captured Americans. 
 When complaints arrived from the foreign governments or the Red Cross, which 
 then as now was the only independent group allowed to visit prisoners, 
  
 [continued in next message] 
  
 --- SoupGate-Win32 v1.05 
  * Origin: you cannot sedate... all the things you hate (1:229/2)