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67 Dep't of Just. J. Fed. L. & Prac. 183 (2019)
Higher Ground

handle is hein.journals/usab67 and id is 462 raw text is: Higher Ground Paul Farley Assistant United States Attorney District of Colorado Wiley Blount Rutledge, Jr.'s tenure on the United States Supreme Court was fairly brief-only about six and a half years. Accordingly, his jurisprudential legacy is limited: although he joined the majority in the notorious Korematsu decision,' he also authored a notable dissent in In re Yamashita.2 The latter case involved the commanding general of the Japanese Imperial Army in the Philippines during the last year of World War II. Convicted of war crimes and sentenced to death by a military commission, Yamashita filed a habeas corpus petition arguing that he was not subject to the jurisdiction of the military commission. The Supreme Court denied the petition, but Rutledge took issue in soaring terms: More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law. In this stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the Second Inaugural, to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late.3 After detailing the manifold deficiencies in Yamashita's trial,4 Rutledge concluded by quoting Thomas Paine: He that would make 1 Korematsu v. United States, 323 U.S. 214 (1944), abrogation recognized by Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018). 2 327 U.S. 1 (1946). 3 Id. at 41-42 (Rutledge, J., dissenting). 4 Trial commenced just three weeks after arraignment. Id. at 57. '[T]he prosecution presented evidence to show that the crimes were so extensive DOJ Journal of Federal Law and Practice April 2019 183

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