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Will Old Rulings Play a Role In Terror Cases?
In the annals of law, the case of Masatomo Kikuchi is all but forgotten.

The former Japanese prison guard was tried by the Allies after World War II for war crimes. In 1947, a U.S. military commission, citing the Geneva Conventions and customary international law, convicted him of compelling prisoners of war to practice saluting and other military exercises for as long as 30 minutes when they were tired. His sentence: 12 years of hard labor.

For decades, records of the Kikuchi case and hundreds of other postwar tribunals lay forgotten in archives and government offices around the world. But now they could assume new significance for one of the most contentious aspects of the war on terrorism: the U.S.'s treatment of prisoners.

Hundreds of suspected terrorists and enemy fighters have been captured since the fall of 2001 and housed at Guantanamo Bay, Cuba, and elsewhere. The Bush administration has determined these captives aren't protected by the Geneva Conventions. But the administration has faced a wave of legal challenges to that view, and suffered several defeats so far. Today, government lawyers will ask a federal appeals court in Washington to reverse a November ruling that found the Geneva Convention protects prisoners held at Guantanamo and ordered an immediate halt to military commission proceedings against detainees because they didn't comply with the treaty.

The legal battle is likely to end up at the Supreme Court, and, depending on its outcome, could compel the U.S. to devise a new road map for prisoner treatment. The rulings from the years immediately after World War II lay out the most complete picture available of the way the U.S. viewed treatment of prisoners of war back then, when modern international humanitarian law was laid down. The question is, do these cases apply today?

Critics of the Bush administration's policy on terror-related prisoners argue they do. "These are the foundational cases," the first to apply international law to questions of prisoner treatment during armed conflict, says David Cohen, a 56-year-old professor of classics and rhetoric at the University of California, Berkeley, who also teaches classes on war crimes. He has spent the last 10 years collecting the documents from archives and government offices, adding millions of pages to existing records and unearthing the case of Mr. Kikuchi.

The records make it clear that after World War II, U.S. military prosecutors and judges set out to establish a precedent barring any prisoner mistreatment, by aggressively pursuing and punishing even comparatively small offenses.

"These things of minor importance are the very things which caused the Allied prisoners of the Japanese so great discomfort," prosecutor Robert Neptune told a military commission in October 1948. Army judges agreed. One wrote, "Extreme brutality or serious injury to the victim is not a necessary element" for guilt....

...U.S. tribunals dismissed defense arguments that Japanese practices were necessary for disciplinary or interrogation reasons, that American prisoners were treated no worse than Japanese soldiers, that Japan hadn't ratified the Geneva Conventions and wasn't therefore bound by them and that, in any event, many American prisoners had forfeited POW status by bombing cities or committing acts of sabotage.

The U.S. also held senior officials accountable for actions of their underlings; the Tokyo tribunal, for instance, sentenced former Japanese foreign minister Mamoru Shigemitsu to seven years even though he was an acknowledged leader of the Japanese peace faction and had sought to investigate Allied complaints of prisoner mistreatment during the war. The tribunal found punishment warranted because "he should have pressed the matter, if necessary to the point of resigning."