Last Mission to Tokyo

greetings from the national archives i'm david fario archivist of the united states and it's my pleasure to welcome you to this virtual book talk on last mission to tokyo the extraordinary story of the doolittle raiders and their final flight with author michelle paradise and jack goldsmith before we hear from our special guests i want to tell you about two upcoming programs that you can see on the national archives youtube channel on thursday october 22nd at 1 pm we'll present a panel discussion on the 100th anniversary of women winning the vote reflections on the 2020 centennial panelists will include former senator from maryland barbara mikulski kay coles james president of the heritage foundation colleen shogun senior vice president of the white house historical association and susan combs former assistant secretary u.s department of the interior this program is presented in partnership with the women's suffrage centennial commission and the 2020 women's vote centennial initiative and on wednesday october 26th at noon data scientist anthony whitby will speak on his recent book the sum of the people how the census has shaped nations from the ancient world to the modern age i hope you will join us for these programs in 1942 five months after the japanese attack on pearl harbor lieutenant colonel jimmy doolittle led 80 young men on a seemingly impossible mission across the pacific to strike the mainland of japan in last mission to tokyo scholar and lawyer michelle paradise recounts the dramatic aftermath of the doolittle mission which involved two lost crews captured tried and tortured at the hands of the japanese the dramatic rescue of the survivors in the last weeks of the war and the international manhunt and war crimes trial that followed michelle paradise is a leading scholar and lawyer of international law and human rights he's won high profile cases in courts around the globe and worked for over a decade with the u.s department of defense military commission's defense organization where he led many of the landmark court cases to arise out of guantanamo bay he's also a lecturer at the columbia law school where he teaches on the military the constitution and the law of war he's appeared on or written for npr msnbc the new york times the washington post the wall street journal and other publications joining michelle paradis is jack goldsmith the learned hand professor of law at harvard law school a senior fellow at the hoover institution and co-founder of law fair he teaches and writes about national security law presidential power cyber security international law internal law foreign relations law and conflicts of laws now let's hear from michelle paradis and jack goldsmith thank you for joining us today so so michelle this is this is an amazing book it's uh ostensibly and it starts off with uh the doolittle raid which was the famous air raid of by u.s soldiers in japan after pearl harbor uh that event is pretty well known but the after story you tell is not terribly well known and it's it's so many things wrapped up into one it's a legal thriller it's a story about amazing personalities about uh revenge and justice and uh it's just a great book before we get to what the book is about i think it's important because the book is all the much better because of who you are so i think it's important for you to tell us you know what is your relationship to war crimes trials and how did you come to write the book sure uh so fairly early on in my legal practice i got an interest in doing um international what's now called international humanitarian law what sometimes people call the law of war um this was you know at the end of the 90s early bots and so things like the international criminal tribunal for yugoslavia and rwanda were just up and going and um it was kind of amazing to me as so as a student of history to see uh war crimes trials and the law of war actually becoming a real kind of law like something you actually did in court it wasn't just something academics talked about this thing that happened back in the 1940s and so i got fascinated with it then um and and pursued it um i worked on war crimes in international or human rights cases in a variety of countries whether it was sierra leone or guatemala and then uh what i probably worked on the most in my career are the guantanamo military commissions these uh ostensible war crimes trials that have been uh kind of running in fits and starts but nevertheless running for about the past 15 years in guantanamo where i've represented a number of people at various levels of their prosecutions whether or not it's the trial or the pre-trial uh on the field so to make clear when you when you say you've represented a number of people you've represented a number of alleged terrorists who are defendant two are defendants in these in the military commissions that's right yeah i i've worked since 2007 um in an office that the department of defense established uh which is now called the military commission's defense organization and what that is is is basically kind of like the public defender for guantanamo we get assigned to represent detainees when they're charged for the military commissions um and that's been fascinating challenging spiriting and rewarding work all at the same time and so it's been real privilege and but that's ultimately what brought me to this uh this episode that i read about the book as well and so but how did you come to write the book so so um yeah no it's a great question i mean it builds exactly what you were just talking about um so back in 2007 there was this ongoing debate that you might remember at the end of the bush administration um is waterboarding torture um and we had heard a rumor about a case from world war ii what we had heard was the jet we prosecuted and so we sent a young marine captain out the national archives to dig up this case and she pulled out the record of trial which i don't think had been seen probably in about that point 60 years and brought a copy of it back to us and i remember one rainy day reading it and first of all being blown away it wasn't just about waterboarding if anything waterboarding was only a small part of it um but it was also about the doolittle raiders who are these i mean again as a student of history people had certainly known about whether or not it was michael bay's pearl harbor or you know going to air shows as a kid um and the more and more i read the story the more and more i was just blown away by not just the human drama there's actually just a lot of human drama that you can read right off the trial transcript but also just how much the you know the very questions we were confronting in the war on terrorism or the kind of questions you confront in sierra leone or yugoslavia or rwanda these war crimes questions uh come up every time um and it's almost as if no one's ever thought about looking back and seeing how they were answered before and so that was just a real shock to me um a lot of the answers that i was reading from this transcript of 1940 were not sitting well uh in certainly with respect to what the united states was doing in 2007 um but it was just a fascinating story it was it was something i could relate to immediately just from my my own personal experience doing these kind of cases okay so tell us about the doodle little raid how it came about what it was yeah so the newer rate for people who don't know um is is probably the single most heroic and celebrated moment of the second world war at least for the people who lived through it um you know 1942 the war is going badly um the allies are on the retreat or on the defensive whether or not it's in north africa in russia in the pacific the japanese have not only pushed the allies out of their colonial possessions in china um they've taken uh the philippines which is the largest american colony at the time of the bataan death march is underway japan is actively bombing australia and there is this overwhelming feeling certainly in the united states that this is a war that we might lose right the united states is not taking any offensive action with the exception of some naval operations everything else is purely defensive and and not going well at that and um so roosevelt in essence just needs a good news story um and gets hears about this idea that we can take bombers off of an aircraft carrier to attack japan um the problem with this proposal though um you know this is as early as january of 1940 42 the problem with this proposal is that it's actually technically impossible uh there is simply no technical means by which to do this uh but the head of the army air force at the time cap arnold taps uh an abe who had come on to his staff a stunt pilot by the name of jimmy doolittle who was not a career military officer he had served in world war one but he spent most of his career essentially as a a stunt pilot uh he was the first american to ever fly across the united states in a single day um he he would do these insane acrobatic stunts like flying while painting the um the windows of his plane black so he could fly blind i ended up doing that on long island flying 14 miles in a circle overhead and landing uh right from where he had taken off um and so he was this kind of person who just had this aura of being able to do the impossible and so he gets this impossible task and what most people don't know about doolittle at least or at least is sort of in the back of his reputation at the time he also has a phd from mit and they're what we would now call aeronautical engineer um he you know these crazy stunts are actually scientific experiments uh on google's part and so when he gets this problem he sees it as an engineering problem and kind of sticking to it with that a sense of american ingenuity he basically figures out how to turn these b-25s back b-25 army bombers into flying gas cans uh so that they can take off from an aircraft carrier with enough fuel to be able to bomb japan um and then they have to land them somewhere and the only option really is china um in in china is you know deeply contested territory at this part of japan um his occupying large swaths of china there are plenty of factions within the chinese government at the time that are loyal to japan uh chiang kai-shek is our nominal ally uh and mao zedong is our sort of enemy's enemy's friend um but these are by no means this is by no means safe territory um and so everyone kind of assumes it's a one-way mission um and that it might be a suicide um and so but they do it anyway uh they take off from an aircraft carrier on april 18 1942 uh run bombing raids over tokyo nagoya and kobe um fly on to china and not a single plane is shot down uh one ends up having to land in the soviet union which causes a vivid diplomatic incident but all the 15 other planes make it to china or at least to the off the coast of china um and then of those all but 11 of doolittle's men ultimately were returned home to safety um three are killed in various plane crashes um but all of the rest 80 men in total um for who do little takes on this mission um all but 11 of them uh live to see to live to go home um and so it's this miraculous moment in 1942 right the darkest days of world war ii you have this miraculous operation where not only were we able to essentially strike back from pearl harbor and there was a huge public application but we did it with minimal loss of american life and in what became just a resounding success and so it was it just build the newspapers for days and days newsreels for days and days uh celebrating uh the success of the delivery but it wasn't uh a total success in the sense that not everybody made it back to tell us about the people that didn't make it back and was that known at the time were they presumed dead or were they did was their fate publicly known in america so the initial so initially um the war department said everyone made it home safely with the exception of this one plane that landed up in the soviet union and that and that was a lot everyone knew that was a lie um because there were eight americans uh from two of the planes that doolittle took off the aircraft carrier uss hornet who soon were captured by guerrillas uh sympathetic to the japanese and then turned over to the japanese occupying uh shanghai and then chang um they're taken into the custody of the kempei tai which is japan's basically secret police clandestine service operating in in china um and subjected to really just shocking forms of torture and abuse um you know when when i mentioned at the beginning we had initially heard this was the case about waterboarding that's true um the japanese subjected the dual writers to waterboarding uh sleep deprivation uh stress positions they used to hang them from their hands overnight they interrogated them day after day on one occasion one of the stories i used one of the doodle writers who i who i kind of use as the focal point to try and tell some of the stories a a utahn by the name of chase nielsen um who is dragged into an interrogation room in shanghai pinned to the floor with a broom handle behind his knees and they stomp on his knees to essentially lever the knee joints apart um and you know so the just the raw brutality uh that the doolittle raiders face when they're first captured by the kenpix high is you know shocking um shocking even today um but then they're taken back to tokyo um where they're held in solitary confinement and you know this sorry how many how many of them were there oh there were eight all together right okay good right from two of the planes uh eight of them get get captured um and they get taken to tokyo and then there's this real question inside the japanese government like what do we do with these people um you know you have the dubs like people like foreign saying you know we've agreed to comply with the geneva conventions we have to treat them as prisoners of war uh but then you have hardliners uh people like hajime sugiyama who's the chief of staff of the army saying let's execute them let's do it as publicly and spectacularly as possible to make sure nothing like this ever happens again um and you know it's a real there's a real division inside the japanese government about what do we do with these guys now that we've caught these essentially most notorious americans uh what do we do with them and i would have thought that you know especially the brutal way that they were treated upon capture i think the expectation would have been that they would just be somewhere summarily killed after that whatever information was got was extracted from them but that didn't happen yeah that didn't happen it was it was a real that was a real fascinating um part of the book to research for me uh because again i you know i came at this you know with all the traditional american assumptions and prejudices about second world war you know the the japanese are essentially the asian nazis and um and so like thinking about like i i was like oh they didn't just execute them i expected them to be tortured but the idea that not only uh weren't they summarily executed there was this real divisive debate over what to do with them and it was interesting to see japan through that lens like to try and understand how this was all received in japan because there was this real tension between what had been in in japan essentially 60 70 year uh in light period of enlightenment uh called the meiji restoration where japan really becomes one of the most liberal countries in the entire world um and they're the first country to sign the 1929 geneva conventions although they don't ratify it um and they don't ratify it primarily because there's this simultaneous cultural political lurch in the 1930s from a very hardline militarist faction and there's this really they just become an extremely politically polarized society where you have primarily uh an urban professional elite on one side who is has profited immensely from this liberalization from the modernity that japan was enjoying for the past 70 years um but then the kind of agrarian traditional um you know parts of the society that overwhelmingly formed the power base of the army um you know wanted to return japan to kind of a prior samurai glory this imagined past where japan was truly great and they fought bitterly over the 1930s there's a coup in 1936 where the prime minister is only not killed because the assassins mistake is his brother uh for him um and japan's politics becomes extremely unstable and this is still true throughout the war uh which is one of the most fascinating sort of things for me to research as someone who didn't come to this as a japan historian um and all of these tensions all of these all of this division over what kind of country japan should be comes to probably one of its most violent heads around the doodle raiders um and what ultimately happens is uh um prime minister and slash war minister toga tojo hideki tojo um he needs to kind of come up with a compromise i always try to i kind of analogizing to john boehner for people like this boring sort of bureaucrat politician whose primary job is to just keep everyone from killing the killing each other um and so he goes to the war ministry and he says we need to find a legal way to kill the new little raiders uh and the lawyers in the war ministry come back with you know the answer that's obvious which is no you can't do that that's completely illegal international law forbids the murder of prisoners um but then the message gets sent back down to the lawyers they're like no no no you don't understand we have to find a way to kill these guys and if we don't the campaign is just gonna do it they're gonna claim it was an accident no one's gonna believe that it's gonna be a diplomatic crisis um and so what the lawyers come up with is they say well uh if we try the new liberators as war criminals uh we can sentence them to death and then execute them um now there are problems with that for one they don't have a law authorizing these they end up having to enact an exposed factual law to essentially authorize the prosecution of the dueling raiders as war criminals um and so that's that ends up being what they do uh in august of 1942 uh the japanese in shanghai conduct a war crimes trial of the doolittle raiders um on essentially trumped up charges of attacking japanese civilians um they're all convicted uh they're the primary evidence against them as you might expect is the confessions they gave under torture um releasing just to be clear just to be clear you should explain so they were charged with killing civilians and we you spoke earlier about the raid so you should the raid they tried is they tried to hit military targets that's right so their direction so so their directions um they had two types of weapons they had uh three types of weapons so they had incendiary bombs they had demolition bombs and they had guns and uh doolittle was adamant uh in the selection of the bombing targets that only clear military objectives be targeted there was actually an episode on the as they were planning this operation on the declare hornet where the pilots all drew cards to see to see who got to bomb the imperial palace um and doolittle was like no no no don't do that don't do that that's uh you know we don't want to give the japanese an excuse uh to say that we did something wrong um and so the target selection was very done very carefully the problems though um arose with uh primarily with the incendiary bombs um you know incendiary bombs i remember i i interviewed uh doolittle's co-pilot uh in researching this book and i asked him i was like um you know tell me about the bombing he's like well we had the demolition bombs we knew where to put those but then he's like with the incendiary bombs they're like it's like a softball i just like throw it out the window right and so you know there was you can't accurately fire or drop an incendiary pump they're acquiring a shotgun um and so there was a lot of damage to civilian areas um whether or not that could be construed as collateral damage or justifiable damage that's that's a different question and in fact well i mean we don't need to go too far down this line but your even that very question was hard to answer then because the nature of the the precision of the laws of war and what it prohibited and the precision of the weapons was much different than today so it's kind of even a little bit of anachronism to even really judge it through that standard but getting but yeah correct yeah but getting back to the trial so there it was basically a show trial uh it wasn't basically it was a show you know the whole thing lasted about an hour um and that and that's the longest estimate i found in any of the documents was people said it ran about an hour um the you know the primary evidence against them as i mentioned before was these confessions uh they had given to the kempei thai and when you read the confessions they're almost like comical in how guilty they claim to be i mean that you know we were flying everything was fine but then we started getting fierce resistance from the brave japanese army and so we said damn the japs and decide to go to school right and so there are these almost preposterously um inculpatory statements um but that becomes the evidence that's ultimately used against them they're all convicted they're all sentenced to death which is the only permissible punishment under this exposed fact of the law um the case is returns to tokyo uh where the emperor ultimately decides uh to commute the sentences of three of five of them excuse me uh and go forward with the death penalty against the two pilots and one of the gunners uh who was captured uh the rest are sentenced the life imprisonment with special conditions was that was the euphemism um that basically meant solitary confinement one dies of um essentially a malnutrition disease called barry berry um another is on the verge of death uh in august of 1945 but none of that is actually known um you know to your question before you know the japanese after they carry out the sentences they issue essentially a press release saying that the writers have been sternly punished and it just becomes common knowledge in the united states that the eight lost dude literatures um are essentially martyrs to the hated japanese there's even a movie about it um the hollywood movie 1944 where they met which is essentially a courtroom drama uh where they imagined the trial of the doolittle raiders um and it's actually a much fairer trial than the one they actually got they get a lawyer that goes on for days their witness is called um and the truth was nothing like that the truth was far more summary than that which leads to so that was what the world thought in the in the west and then comes operation magpie i think yeah operation magpie um so the office of the tragic services um the forerunner of the cia um quickly converts from doing commando operations in china in the pacific generally in china um to doing rescue operations literally the day after the bombs are dropped on nagasar the bomb is dropped on nagasaki uh they get the new missions they're all named after burns and one commando team is essentially dropped at a pow camp one or two days after the war is over under what's called operation magpie and they it's late in the afternoon they're approaching this camp but also they take fire uh from the camp and they all hit the dirt and this lieutenant this japanese lieutenant comes out this man arrests all of them and basically says are you guys crazy no one knows the war is over like had you dropped any had you dropped into our camp any later you would have just been shot on site because the officers would have been in bed all the enlisteds think the war is still going um but nevertheless over the next couple days they liberate this prisoner of war camp um outside of beijing they put all about 500 pows up in the grand hotel de wagon elite which is this uh converted geisha house uh in beijing which becomes this massive brat party basically uh for all these liberated prisoners of war um and then a rumor starts circulating that the duality raiders have been getting held at feng tai i think prison which is um which is the one outside of beijing but no one can find them right they're not among the prisoners but it turns out in secret there's a secret essentially uh portion of the prison of the prison camp uh in which four of the little raiders are being held and um the way one of them chase nielsen uh who i mentioned before described it as he kind of comes out they freshly shave them you know down to the scalp they put them in these over billowing uniforms because they're all basically 100 pounds at this point and he walks out and he sees this american who has this like stern look on his face and all sun weathered and the american asked him his name he's like i'm chasing nielsen i was a jewish raider the american kind of looks back and says watch out for this guy he's insane uh because everyone assumed they're dead right this is this is lazarus coming back from the dead um but it's true right there there they are um there's this kind of miraculous moment um this really optimistic moment uh at the end of august 1940 uh end of august 1945 where again all the doula raid is back in the newspapers uh because the dueler raiders at least some of them had turned up alive and safe and are on their way home so then the americans decide to have a trial yeah so so that that same sort of spirit of uh could you say sort of good feeling um it kind of also mixes with this real hard current for revenge um that's that exists you know if you look into the certainly into the newspapers from 1945 um the end of 1945 it's almost a litany of japanese prophecies um day after day you know all around the world prisoners are recounting their stories after being liberated um new documents and new you know uh and sort of new atrocities are being discovered every day not just in japan but also obviously in europe and um the doodle raiders become kind of one of them one of the uh sort of major examples of this um on their way home they basically stop over at the u.s headquarters in china and sit down with a judge advocate by the name of ham young who is the top lawyer in china and had just created only a few months earlier the china war crimes office because there's this idea that takes root um in late 1945 that we're going to start having war crimes trials um it had been kind of this academic idea um you know you have people like hans kelson sort of writing justice through law and all these good things in the early part of the war but to the extent any trials have gone forward it's things like ex partake hearing right which are not a special models of due process fairness you should explain what that is that also took place in 1942 i think that's right the same years to do little raid and actually uh possibly you know i mean i could never i could never draw 100 of a link but that seemed to have some effect on the japanese and so um you know you should explain you should explain what what the kieran case was about because it has some parallels yeah it does um so in um in june of 1942 uh some nazi saboteurs come ashore in long island and in florida they essentially sail on from a submarine um with instructions to uh commit sabotage against industrial targets inside of the united states um one of them defects almost immediately and turns everybody else in and there is initially an effort to try them for espionage uh in federal court but the defector is is basically a lunatic um as you know a nazi defector is probably likely to be um and so this plan develops um to try them in military commissions inside the united states now military commissions have a checkered history in the united states um they were used previous to 1942 the last time they had been used was in the philippines uh to go after philippine insurgents during the spanish-american war in the period of the us occupation of the philippines immediately after um they had been used to some extent during the mexican war and the civil war um but what they really offered um for not only fdr but jagger hoover who had a real strong interest in in keeping a lid on the fact that the nazi nazis had actually turned themselves in they weren't just discovered yeah he was claiming that he discovered them and stopped the great infiltration but in fact he didn't know even though they were there right well actually it's not even that so the main um the main guy guy named um dash george doss uh is this kind of total lunatic uh who's the who's the head of the nazi saboteur party um he gets spooked on the beach because they run into a swing and they escape but they don't you know but he thinks the jig is up and so he ends up calling the fbi office in new york and saying hi i'm a nazi saboteur i arrived on the submarine over the weekend i'd like to turn myself in and the guy on the other last other end of the line's like okay and then files a report in the nut folder um so like if you go to the folder uh where george josh's original report is included there's also one of uh hitler's ice skating in rockefeller center and other similar conspiracies um he ultimately has to go to washington in person and he walks into uh the office of a guy named mickey ladd who's like a deputy deputy deputy under j edgar hoover and he says look i'm a nazi i'm a nazi saboteur i'm trying to turn you know i want to turn myself in there are others amongst us he keeps getting put off by one secretary after another until he gets into mickey lad's office and then he opens up a briefcase and dumps out 60 000 it's about almost a million dollars today in cash and the way it's sort of described by nikki ladd is like he looks down at the cash and looks over the door and says lock the door because you know that's that's how these nazis get caught um and so yeah there's a real desire to have secrecy because hoover does not want it to be known and fdr doesn't want to be known that it's this easy to infiltrate the united states um and that we can be this flat-footed so they conduct this military commission in secret it's um by no means a model of american justice and the lawyers uh the military lawyers representing the nazis assigned to represent the nazis ultimately take the case all the way to the supreme court challenging it is essentially fundamentally unlawful um for a variety of different sort of technical legal reasons um including experiments and this hits the papers in a big way all around the world and uh including in japan and so as they're getting ready to prosecute the new liberators this is july of 1940's the same exact time as they're getting ready to prosecute the raiders all of a sudden everything stops uh at the end of july and everyone's like everyone just gets an order stand down uh and so everything goes on pause and then a couple about a week later the supreme court issues decision upholding the prosecution of the nazi saboteurs they're executed a few days after that and then the order comes down okay proceed with the doula raiders um so there's this real clear um sort of interplay there's there's clear signs of real interaction unfortunately a lot of japanese documents got destroyed so i was never able to find so that connection is amazing as is and we don't have to go down this path but the kieran president and the president and the roosevelt order for that military commission ended up being the precedent and basis for the original order that created the military commissions that you're now representing defendants in but maybe we'll get back to that in the end let's go back to the end of the trial um sorry let's go back to the american trial of the american trial of those responsible for who who were who was the trial against so so this was like a big problem actually because you blame who do you play right when you have so many people who you could try you could go all the way down to like the campaign guys who are carrying out the torture you go all the way up to hirohito who is clearly personally involved in choosing who lives and who dies and this is a big deal because one of the first essentially promises that um you know four war crimes thrives um comes from roosevelt in connection with the doolittle case in 1943 when roosevelt reveals the uh fate of the doolittle raiders to the country um there's this real strong outcry to you know for revenge it's probably one of the most galvanizing moments um in sort of like american hostility towards the japanese since pearl harbor and you have congressmen actively saying we're no longer going to take japanese prisoners because of what was done to the doula raiders and you have roosevelt in the war department saying no no let's let's calm this down we've we're upholding certain values here and roosevelt gives this speech where he says and do not worry we're going to hold the people who perpetrated this atrocity personally responsible um it's not all the japanese it's the people it's the individual criminals um and this is early 1943 right this is not a time when using trials you know to prosecute the enemy's axis powers was really high on anyone's priority list um and just to give you one kind of example of that uh churchill writes about the tehran conference at the end of 1943 when roosevelt churchill and stalin meet for the very first time and there's discussion about what to do with the nazis once we've captured them and at least according to churchill there's some dispute about the authenticity of this but at least according to churchill stalin sort of casually proposes why don't we just create a list of 50 000 top nazis and then execute them on site and uh fdr is repeatedly to have said well wouldn't wouldn't 49 000 be plenty like 50 seems too much um and there is this real scene and in i don't mean to be glib about it but in a way stalin's not wrong by historical standards right we didn't we didn't conduct a trial for napoleon before sending him off to elba right there's a if you look back to history what happened prior to world war ii executing your enemies or treating them in summary ways was certainly not um certainly not a controversial thing quite the opposite it was the expected thing to do but roosevelt and the roosevelt administration particularly really just pushes pushes and pushes for this idea of conducting trials um stalin comes around to the idea and in fact appoints the head of the moscow purge trials to preside as his judge at nuremberg but that's that's sort of the current in which all of this comes in 1945 is that the united states essentially insisted on this and so it's so just can you explain roosevelt in 42 he wants to have a military commission for the nazi saboteurs because in lieu of a real criminal trial and he wants it not because he's being generous but because he wants to be able to have a quick trial and dispose of them by 1943 he's kind of it's not really the opposite argument but he's saying no we're going to have a trial instead of immediate execution which was the other option on the table so did roosevelt change or was it just the context different um you know roosevelt is probably one of the most mercurial politicians in american history um for ill so and legally trained as well that's right um and so i think part of it was you know the whole episode with the nazi saboteurs was was controversial at the time and um and i think part of it can at least be written off at least so just to give you the context dude unless you think i'm sort of naive in my appreciation of roosevelt like in the context of the nazi saboteurs case he actually proposed half kidding um giving them over to barnum bailey circus so that we could make money off displaying them publicly right so so roosevelt is not a bleeding heart by any imagination um but i think probably for a combination of policy as well as you know practical reasons i think roosevelt understood that you know there were certain values at stake in the war right that the united states is called claim to legitimacy it's claimed to developing allies throughout the world in the cause of the second world war which was by no means a foregone conclusion in 1942 1943 even into 1944 um depended upon things like the atlantic charter depended on our claiming you know a certain uh ability to distinguish ourselves from the acts as powers and so the idea that war crimes uh that we would sort of use our respect our values right respect our liberal values that we're preaching around the world when dealing with our enemies was in a way a really ostentatious demonstration of that i think there's a real practical reason for it too um and and this you can see in plenty of documents including dealing with the dual array um in in the public reaction up to the dual rate you know roosevelt's happy that foment sort of public outrage and for revenge as much as possible and help sell more bonds if nothing else um but there is a simultaneous concern that this not be directed at the japanese people right like both in germany and in japan or in europe i should say in asia there was this idea that we have to separate the leadership against whom we are at war from the people in the countries um you know fighting that war against us and that was that had real important strategic um uses as well right you can't if you're going to implement something like the morgan's law plan which was uh you know not unlike executing the top 50 000 nazis you know a policy that was put in proposed in the treasury department by fdr his own treasury secretary to essentially agrarianize germany which would have resulted you know by the estimates at the time and half of the german population dying of famine um you're going to make it really hard to get convince people to surrender um if you know you can't have a you have to have an a an option for people to give up without either being humiliated or being you know murdered essentially and so this this political decision to draw a distinction between the people we're fighting and the leadership who are going to hold criminally responsible um had both i think real strong values behind it i'm not saying it was entirely cynical but it actually made a lot of sense practically as well and so in this period in 1945 when you when we start having you know the doodle raiders trial begin to get formulated in the you know the first months right after the war um it's uh it's an expression of i think both of these things right this promise that we're going to have justice um but i think certainly someone like macarthur was keenly aware that attributing responsibility attributing culpability and shame and blame on the leadership of the japanese around particular individuals in japan would give him a far more stable country to try and rebuild um in japan right because you still have tens of millions of japanese people um who are now a defeated enemy and have to be given a reason to want to cooperate with their american occupiers um yeah so tell us um so so the trial itself who do they end up choosing as defendants what is your assessment of it so give us a brief summary of what happened yeah sure so like the the one of the interesting things that i spent really really probably the preponderance of this book on um is trying to put together how this trial comes together because you start as i said a few minutes ago you know the universe a completely expansive universe of potential people uh to find culpable for the torture and murder of the new little raiders um and through a lot of sort of fits and starts as one lawyer a graduate of harvard law school in the middle east by the name of robert dwyer he gets this assignment runs himself ragged all over asia trying to figure out how to square the circle and ultimately settles upon the lawyers the lawyers and the judges um he basically said japanese lawyers japanese lawyers yeah he basically seized this show trial in august of 1942 as the the fulcrum of the entire mistreatment of the doolittle raiders right it both laundered the torture that had been done to them but also created the conditions necessary for them to be executed and for them to be held in solitary confinement to be starved the way they were um and so basically he hunts down the judges and lawyers uh of the doolittle raiders trial as well as a few military officers associated with that trial um and ultimately decides that they're the ones who bear the most responsibility they participated the most and have to be are the ones who should answer uh for the torture and mistreatment of the good liberators um and so in 1946 when this trial finally gets underway it's the the fourth trial the fourth war crimes trial to be conducted by the united states in the pacific um you you end up having the trial of a trial uh it's a really just kind of remarkable turnabout where you have the united states army putting essentially their counterparts on trial in a war crimes trial uh conducted at least under sort of vague rules um certainly not the ordinary rules of due process in the united states um and litigating in this very both high level and practical way what is fairness like what what do we owe our enemies do are there standards of international law or basic humanity that we can look to to determine whether or not someone has you know essentially just engaged in the paperwork for murder or has actually conducted a good faith criminal trial um and so it's just it's like a really just fascinating human drama i i i've said this a few times um you know to people when they've asked me about this book like is it good happy ending or is it comedy or is it tragedy um it's actually i i kind of take a lot of heart from this book um and from the debate you have because you have you know some american lawyers who get assigned quite unhappily frankly to represent the japanese but ultimately see it as their duty to represent them um to take on the defense function fully and then you have prosecutors like robert dwyer saying look there are international standards or values at stake here and you have them both clash really just good faith claims um to what is true what is just um and so it's actually like it's especially after you know a lot of the politics we live through today just watching two people uh in two sides have a good faith debate uh over something important as important as values um it's just kind of refreshing it's nothing else yeah and so what so what was the outcome of the trial so the outcome was and then i want to get that sorry go ahead yeah no no so the outcome of the trial is really shocking to everybody um everyone's expecting not on not unreasonably um for all of these guys to be executed um that that's exactly what happened in the previous three warcraft's prosecutions that the army had engaged in the pacific himacha is the most famous of those but there were a couple others um and instead they're all convicted but the charges against them but then then they get acquitted essentially of the elements of the charge um and all of them are sentenced to relatively short terms of years in fact the only one who gets sentenced longer than five years uh is a sentence of nine years for the one judge on the doodle raiders trial in 1942 who was actually a lawyer uh and because he was a lawyer the the court basically said you should have known better um and and gave him the stiffest sentence but only of nine years and it was a shock it was a total shock for the system you had politicians letter writing campaigns demanding that the dueler raiders trial be done again so that death sentences could be carried out and so there is this sort of after story of you know these lawyers in china um back to ham young the guy who initially sees this case in august of 1945 is you know a potentially marquee case of the entire war uh he has to sit down and figure out how to both assuage the public desire for blood um but also again our you know basic conceptions of fairness can process things like double jeopardy um which kind of forms up rounds out the end of the book so you know you referred to the human drama of the book and we just haven't had time to get into that and we're not going to but the the characters are amazing and the kind of moral struggles in the midst of war and trying to figure out what's right and just and true it and and there's so many interesting characters along the way and so i i really want to commend you for that even though we can't really discuss it um so in wrapping up i want to ask you a couple of implications questions or legacy questions um so what what is the legacy of this trial say both in i'm just interested in japan and especially when you're an expert on international criminal law this was kind of at the dawn of the modern international criminal tribunal movement so just tell us what the how is this trial come to be seen and and is it seen any differently in light of what you've discovered um so it's a great question i think there are a couple different legacies that it had um the most obvious one in particular because it's like a forgotten trial um you know it didn't end up going to the us supreme court it wasn't controversial like your moshe was um and so prior to this book really had not been written about at all even in books about the google raid there's like this footnote that there was a trial sometime in in uh 1946 um so there was a you know it was a really until ground when i came to this um but one of the main reasons i think is that all the lessons all the all the sort of lessons from that fight that i talked about um end up becoming the geneva conventions of 1949 um uh you know the prohibition on torture the rights to you know have your prisoner of war status evaluated in a neutral way as early as possible um various procedural trial rates that you get um you know the right to have your country supervise any trial of you um that an enemy might as an enemy um that might if you're if you're being prosecuted you have the right essentially to representation by your home country and then most famously there's actually a provision of the geneva convention which ends up becoming really quite important in you know many many years later in some of the guantanamo cases which is called common article three and common article three forbids torture forbids murder or any number of things but it has a very peculiar provision that uh forbids the carrying out of sentences except upon the regular trial uh except upon a trial by a regularly constituted court affording all the judicial guarantees recognized as indispensable people and as is indispensable by civilized people and and that's actually in a sense what this whole dual-rate trial is about is what are the judicial guarantees recognized as indispensable by civilized people so that's one major legacy is that you know we in a sense don't look much back to this trial i think in large part because every lesson you take from it is now just black letter law um but i think another lesson two that was really relevant at the time is it was probably the first like fair war crimes trial um where the results surprised people and i don't think you can have a trial if the result is predictable that's i think almost the definition of a show trial is that you're having you know literally the word trial is a test um and you know the imagine trial which i mentioned before macarthur kind of rams that through you marshmallow i should say as guilty as sin i write about that in the book um but his child is a total sham uh to the point where macarthur sees to it that he's convicted and sentenced to death on december 7th 1945 right like four year anniversary of of the attack of royal harbor to the dead right there's no question that this is politicized it's justice at its highest level um but here in the doodle raid trial you have you know again a surprise ending and and when you have a surprise that is a measure of fairness um that we end up seeing in things like nuremberg um right the justice jackson famously said that the test of whether or not these trials be fair is is not the convictions it's the acquittals um and and that's ultimately i think probably one of the greater lessons is that it is actually possible to have a fair trial of your enemy and war time um but you have to really commit to doing it you have to commit to a certain amount of unpredictability okay so this brings me to my last question and i'm going to end sort of where we begin you just alluded to the fact that you're involved in the military commissions where um the united states before a form of military tribunal quite different but still a former military tribunal is seeking to try among other people those were allegedly responsible for 9 11. and so i'm just wondering you know and it's really remarkable that you went back and kind of dug up the prehistory to these trials in a way i mean both the doolittle ray trials for the reasons you just said we talked about kieran which is a direct predecessor of these trials so much has changed obviously in the last 70 or 80 years but i'm just wondering you know how long i don't know how long it took you to write the book but did what did lessons did it teach you or either either you about what you're doing or about what america is doing in these military commission trials i mean what are the larger lessons for that um i think okay so i'll give you two um that i that come up they come to me on the top of my head one is um like the personal lessons for me especially since i've you know primarily been assigned to representing guantanamo details who um i can tell you you know they vary they're diverse people as all people are some of them do not like me um even though i'm ostensibly there to help um and i have to sort of swallow my pride and commit to my role as their advocate even though um they're not we're never going to be friends um and we're never going to come to that piece and i think working on this book particularly like studying how the defense lawyers for the japanese end up having to do their job and really put they end their military careers in the course of representing the the japanese who are literally some of the most hated people in the world at that point um and that kind of just put a certain weight on me to know that even though i'm certainly going to do things that i i either don't like or unpleasant um because you know i'm doing it for people who you know i i'm i live in new york i was here on 911. i have very specific personal feelings um about about that and so you know dealing with a lot of my clients has always been something of a it's a complex relationship and so but knowing that not only is it like history going to be looking at me the way i was looking at these defense lawyers but you know that i know the lesson right i have to kind of hold myself to the standard of actually you know representing them to the best of my ability because that's my job and that's my duty and if i don't do it it's it's definitely going to be unfair because i think the main reason why the little rated trial to do a little trial was fair was the defense lawyers actually took their jobs really seriously and in fact all the people took their job seriously and argued really in good faith so that that's one big lesson that i i certainly take is that you know even irrespect irrespective of what you think of your client it's your job to represent them no matter the personal or professional reputation costs that might come along with them the other sort of disturbing lesson is kind of what we were talking about before i think when i when i started digging into japan um and trying to understand why they did this stuff uh to the new liberators especially again with the prejudices of like well why didn't they just execute like that seems like something the japanese have done um i i started seeing this really dark mirror um of how the united states reacted in a lot of ways in the war on terror um and for a lot of the same reasons right japan the doodle raid is the first time japan has attacked in all of recorded history at least the mainland of japan has attacked in all of its recorded history they had a sense of invulnerability of what we might call exceptionalism and so when the doolittle raid happens it shocks the country to its very core uh and they all of a sudden start compromising values that they seem to think they took quite seriously only a few months before um in in the cause of fear and the cause of the desire for revenge and whether or not that's the embrace of things like x factor laws and summary trials um but also torture right torture despite again my prejudices i'll say it was deeply forbidden in japan it was actually a major part of their democratic revolution um in the end of the 1900s was the abolition of torture it was almost this marquee moment when japan finally abolishes torture as its moment to enter the unit the world as a as an equal power along with the united states um it's immediately after that uh that the united states actually essentially normalizes relationship uh normalizes its relationship with japan um and so how it could go back on something as foundational to its own identity as the prohibition on torture uh which the united states did um for the very same reasons um and that that was just disturbing that was a disturbing lesson that these norms that we think govern society even laws that we think govern our behavior are much more fragile uh when under stress than we tend to want to believe they are um and that's kind of a darker lesson maybe i should have started with that one oh that's that's a dark but perhaps poignant place to stop thanks so much it's a truly great book congratulations yeah thank you so much it was great conversation you

Channel: US National Archives

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Keywords: US National Archives, NARA

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Length: 53min 41sec (3221 seconds)

Published: Thu Oct 22 2020