It was 1945, and Japan had just surrendered to the United States.
In the Philippines, a subordinate of Gen. Douglas MacArthur ordered Col. Harry Clarke - a lawyer from Altoona - to defend the Japanese military commander of those islands against charges of war crimes.
It was a job Clarke didn't want.
Mirror photo illustration by Tom Worthington II/courtesy photos
Col. Harry Clarke (inset) of Altoona led the defense for Gen. Tomoyuki Yamashita, who was found guilty and hanged for war atrocities in the Philippines during World War II.
This photo from Col. Harry Clarke’s albums shows an image from the arraignment of Japanese Gen. Tomoyuki Yamashita after World War II.
Japanese Gen. Tomoyuki Yamashita gave this tea set to Col. Harry Clarke of Altoona, who defended him in a trial after World War II. Yamashita was found guilty and hanged in 1946. The set was passed down to Barbara Clarke of Harrisburg, who displays it on her mantel.
The prosecution alleged that Gen. Tomoyuki Yamashita was responsible for war crimes in three categories, according to the Law Reports of the Trials of War Criminals, Selected and Prepared by the U.S. War Crimes Commission.
These crimes occurred during the time Yamashita was in command of the Japanese military in the Philippines and they occurred throughout the islands - although most of the atrocities happened on Luzon, according to the prosecution.
The prosecution in the trial of Gen. Tomoyuki Yamashita alleged the defendant didn't do enough to prevent troops under his control in the Philippines from inflicting:
(1) Starvation, execution or massacre without trial and maladministration generally of civilian internees and prisoners of war;
(2) Torture, rape, murder and mass execution of very large numbers of residents of the Philippines, including women and children and members of religious orders, by starvation, beheading, bayoneting, clubbing, hanging, burning alive, and destruction by explosives;
(3) Burning and demolition without adequate military necessity of large numbers of homes, places of business, places of religious worship, hospitals, public buildings, and educational institutions.
In an album provided by Clarke's grandson, Chip Clarke of Roaring Spring, labeled "prosecution exhibits trial of Tomoyuki Yamashita," there are photographs of bodies. One shows what appears to be charred corpses in an otherwise empty room with blackened walls and a portrait hung at the far end.
Another shows a view through a doorway into a darkened room, bodies inside heaped like trash. Another shows what appears to be the lower half of a person cut off above the navel, sprawled in what appears to be a farmyard.
A second album, also of trial exhibits, shows a group photo of what appear to be priests in a group photo, probably on graduation from seminary, each priest's image numbered, with 15 of them noted below the photo as "killed." Other photos show commercial and industrial buildings toppled as from an earthquake. There are roofless buildings, enormous piles of rubble and walls pockmarked with projectiles, blackened by fire.
In trigonometry class at Altoona High School, a teacher, having received the news about Clarke's appointment to defend the general who was in charge of the Japanese servicemen who had perpetrated these atrocities, asked Clarke's niece Thelma Clarke, "Hey, Clarke, how do you feel about your uncle being a traitor?"
Thinking her teacher was saying "trader," she asked her father that evening what her teacher meant. When he enlightened her, she was upset, said Thelma Clarke (now known as Brigit Clarke-Smith) in a recent phone conversation.
Her father was, too.
The teacher's disapproval was like the scorn that might have come down on an attorney assigned to defend Osama bin Laden, if U.S. troops had captured instead of killing him, Chip Clarke said.
"The team members were fully aware of the antagonism they faced," said Lawrence Taylor - author of "A Trial of Generals: Homma, Yamashita, MacArthur" - in an email.
The pleadings before the commission did not allege that Yamashita ordered, authorized or had knowledge of the commission of any of the alleged atrocities or war crimes, states the U.N. report.
Rather, it alleged that he had failed to control his troops, according to the report.
There was no question the atrocities had occurred.
So "it was perfectly obvious" he was guilty as charged, "because the crimes they committed were horrific," said Allan Ryan, author of "Yamashita's Ghost: War Crimes, MacArthur's Justice and Command Accountability," speaking by phone from Manila, where he is working on a PBS documentary about the trial.
The crimes were "so notorious and so flagrant and so enormous, both as to the scope of their operation and as to the inhumanity, the bestiality involved, that they must have been known to the accused if he were making any effort whatever to meet the responsibilities of his command or his position; and that if he did not know of those acts, notorious, widespread, repeated, constant as they were, it was simply because he took affirmative action not to know," the prosecution argued in its opening statement.
Initially, the prosecution filed 64 charges, then during a recess for the defense to prepare its case, the prosecution filed 59 more. The commission - which consisted of five officers, none of them lawyers - denied the defense motion for more time to deal with those additional charges.
The defense also objected to the lack of specifics in the complaint, to little avail, according to the U.N. report.
With one exception, the prosecution team members were all former assistant district attorneys, Ryan said.
Setting aside Clarke, none of the defense team members had trial experience, Ryan said.
"You would say, 'This is the junior varsity,'" he said.
When he gave the order for the trial, MacArthur said, according to family lore, "We're going to give this man a fair trial, and then we're going to hang him," said Barbara Clarke, now of Harrisburg, widow of Clarke's son, Harry Jr., longtime football coach at Central High School and Chip's father.
Was defeat for Yamashita's defense team a foregone conclusion?
"Probably," Ryan said.
None of the team members volunteered, Ryan said.
"A couple were quite resentful," he said.
A. Frank Reel, who wrote a book about the trial, told a superior he didn't want the job, Ryan said. The superior said he understood, but put Reel's name down for it anyway, Ryan said.
One appointee - a judge from Alabama - was furious and demanded to be released from the order, according to Reel, Ryan said.
He got his wish, Ryan said.
"I believe most of the team [members'] attitude was, 'I'd rather prosecute the bastards,'" Taylor wrote in an email.
But it's not clear what Clarke thought, according to Ryan.
"My understanding is that it wasn't something he welcomed," said Terry Clarke of Massachusetts, the colonel's nephew.
But it was an order, and he wouldn't have tried to shirk it, because "he was a good soldier," Terry Clarke said.
Clarke had been active in the Republican Party at home and may have had political ambitions - which the appointment could ultimately have damaged or enhanced, Terry Clarke said.
The colonel likely thought the appointment an honor, according to Barbara Clarke.
But did he realize the assignment was a lost cause?
"Yes and no," Ryan said.
Clarke and the defense team members may have been reluctant at first.
But once committed, Clarke didn't hold back, according to Terry Clarke, who said his uncle lived by a family motto quoted by his son Harry in a 1962 book about football: "No matter what you do, try to do it better than anyone."
"The defense did a real defense," said Lea Walker Wood of Montpelier, Vt., a secretary who worked with Clarke in the Philippines. "Not a paper defense."
It didn't take long for the team to realize Yamashita "was being railroaded," Terry Clarke said.
Moreover, the team members grew to like and respect Yamashita, who, though "inscrutable," "seemed like a genuine person," Wood said.
They discovered that Yamashita wasn't a military zealot and wasn't one with the Japanese military elite, according to Terry Clarke.
"You begin to believe in your client," said Ryan, a lawyer with trial experience.
At some point, the team actually thought it might win, Ryan thinks.
The defense opened by laying out its plan to "show that the accused never ordered the commission of any crime or atrocity; that the accused never gave permission to anyone to commit any crimes or atrocities; that the accused had no knowledge of the commission of the alleged crimes or atrocities; that the accused had no actual control of the perpetrators of the atrocities at any time that they occurred, and that the accused did not then and does not now condone, excuse or justify any atrocities or violation of the laws of war," according to the U.N. report.
The team didn't deny the atrocities.
But the perpetrators were naval troops in Manila, who disobeyed orders to leave and were out of communication with Yamashita - who was in the hills, beset by American forces, according to the defense's closing statement.
"We see only wild, unaccountable looting, murder and rape. If there be an explanation of the Manila story, we believe it lies in this: Trapped in the doomed city, knowing that they had only a few days at best to live, the Japanese went berserk, unloosed their pent-up fears and passions in one last orgy of abandon," the defense stated, according to the U.N. report.
"[T]here had been no testimony that General Yamashita ever ordered or permitted or condoned or justified or excused in any way these atrocities," the defense stated.
In closing, the prosecution argued that in "the Laws of War," there's no "distinction between criminal responsibility and administrative responsibility."
Because Yamashita was essentially "military governor of the Philippine Islands" after fall 1944 until the end of the war, he was responsible, the prosecution said.
"[S]ince there had existed in the Philippines a widespread pattern of atrocities there must have been a failure on the part of the ultimate commander," the prosecution argued.
"It was his duty to know what was being done by his troops under his orders," the prosecution stated. "He did not make an adequate effort to find out."
The commission agreed:
"[W]here murder and rape and vicious, revengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible," the commission ruled.
It sentenced him to hang.
It wasn't quite over, as the defense appealed to the high court in the Philippines and then the U.S. Supreme Court.
"No one expected them to do that," Woods said.
He led a team to the Supreme Court despite not having an undergraduate college degree.
"The facts are a bit fuzzy," Chip Clarke said in an email. "He graduated from Altoona High School in 1915, enlisted in the Army a short time later, served in World War I, was wounded (don't know the facts re: how, where [or] when on that) and [was] discharged; got married in 1920, had my father in 1921 and graduated from Dickinson [Law School] in 1922. I guess his 'college' was life in wartime."
There was a "GI-Bill-esque" program that helped his grandfather make the leap, Chip Clarke said. "I don't know whether it included a scholarship," he said. Without such a scholarship, however, the future colonel's father - a dispatcher for the Pennsylvania Railroad - might not have been able to send him to Dickinson, Chip Clarke said, speculatively.
The Supreme Court denied the appeal, upholding the legality of the commission to hear the charge, even after the end of the war, and to admit evidence that would be inadmissible in civilian courts.
Such trials are necessary "to protect civilian populations and prisoners of war from brutality," the court stated. Otherwise, "the commander of an invading army could with impunity neglect to take reasonable measures for [those groups'] protection," the court stated.
MacArthur had directed that the commission should admit such evidence "as in its opinion would be of assistance in proving or disproving the charge, or such as in the commission's opinion would have probative value in the mind of a reasonable man."
The court dismissed the defense argument that the Articles of War should protect enemy combatants from that kind of "hearsay" and "opinion," because the Articles are for protection of "members of our Army," according to the court.
Nor do enemy combatants enjoy the right to Fifth Amendment due process, according to the court.
Likewise, Yamashita didn't enjoy the Geneva Convention protection of prisoners of war for actions that occurred before he became a prisoner, according to the court.
And only after a war is over can the victorious nation bring malefactors to justice, in many cases, because only after a war is over do the victors have access to such malefactors, according to the court.
Two justices dissented.
The commission's condemnation of Yamashita was "clearly without precedent in international law," wrote Justice Frank Murphy.
It convicted Yamashita "of a crime in which knowledge is an essential element, with no proof of knowledge - other than what would be inadmissible in any other capital case or proceeding under our system, civil or military," wrote Justice Wiley Rutledge.
The commission allowed "Every conceivable kind of statement, rumor, report, at first, second, third or further hand, written, printed, or oral, and one 'propaganda' film" Rutledge wrote.
"The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield," Murphy wrote. "Such is the universal and indestructible nature of [these] rights."
The unjust punishment of Yamashita - reflecting "primitive impulses of vengeance" - "breeds resentment and fresh tension," Murphy wrote. "Thus does the spiral of cruelty and hatred grow."
Quoting Thomas Paine, Rutledge wrote: "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself." After the Supreme Court ruling and a failed clemency plea to President Harry Truman, Yamashita was hanged in February 1946, five months after the Japanese surrender.
Justice Rutledge himself complimented the defense team on its work.
"[Yamashita] has been represented by able counsel, officers of the army he fought," Rutledge wrote in his dissent. "Their difficult assignment has been done with extraordinary fidelity, not only to the accused, but to their high conception of military justice, always to be administered in subordination to the Constitution and consistent Acts of Congress and treaties."
"They did a terrific job," Ryan said. "Determined and very proficient and dedicated."
"[The defense] performed in heroic fashion - in the face of insurmountable odds, unfair proceedings and at constant risk from the wrath of MacArthur and the presiding generals," and their "kangaroo court," Taylor wrote in an email.
Yamashita grew to appreciate it.
Through a translator, before he died, he said: "When I have been investigated in Manila court, I have had a good treatment, kindful attitude from your good natured officers who all the time protect me."
He gave away belongings to defense team members before his death. Clarke got the tea set he'd carried through Manchuria, China, Malaya, Japan and the Philippines, according to the World War II database article.
The Clarke family prizes the gratitude: except at Christmas, Barbara Clarke keeps the tea set on her mantel.
It also honors Clarke himself: asked by a Mirror reporter to provide a piece of information during research for this story, Chip Clarke consulted his grandfather's dog tag - by pulling them off his neck.
Ironically, the significance of Clarke and his colleagues in history may be larger than it would be otherwise because of their failure to scotch MacArthur's attempt to make command responsibility absolute.
The Yamashita trial remains a precedent - an unfortunate one, according to Ryan. Fortunately, it has not been applied universally, he said.
If it had, it could have implicated, for example, Gen. William Westmoreland, American forces commander in Vietnam, after the massacre by American soldiers at My Lai, he said.
When that kind of idea is floated, people are "horrified," he said.
Yet it "has never been completely repudiated," he said. Instead, it has "hovered over the law," he said.
It has influenced the International Tribunal in its ongoing deliberations on war crimes in Yugoslavia, he said.
It has come down to an insistence on the commander's state of mind - because ultimately, the Yamashita commission explained its verdict by claiming that the crimes that occurred in the Philippines were so widespread and horrific that Yamashita must have known.
Based on the Yamashita precedent, the tribunal on Yugoslavia has insisted on trying to ferret out the states of mind of commanders accused of war crimes, he said.
It's "unworkable and impractical," and it doesn't do much to separate responsible from irresponsible commanders, he said.
Better to look at the record - whether commanders trained their troops not to cause unnecessary harm to civilians, whether they punished offenders, he said.
If the tribunal adopts such a practical standard, then a commander who does what he can doesn't need to worry, while one who does not can expect punishment, if his troops go awry, according to Ryan.
"We've struggled with this legacy - this ghost - far too long," he said.
Mirror Staff Writer William Kibler is at 949-7038.