Koki Hirota v. General of the Army MacArthur
Distributed on Motions for Leave to File Nov. 29 and Dec. 2, 1948.

Dec. 6, 1948.

Messrs. David F. Smith (Mr. George Yamaoka, of counsel) for petitioner, Koki Hirota.

Mr. David F. Smith, for petitioner, Kenji Dohihara. At Messrs. John W. Crandall and Ben Bruce Blakeney, for petitioners Koichi Kido.

The Court desires to hear argument upon the questions presented by the motions for leave to file petitions for writs of habeas corpus. Action upon the motions for leave to file will be withheld meanwhile, and the motions are set down for oral argument on Thursday, December 16, 1948.

The CHIEF JUSTICE, Mr. Justice REED, Mr. Justice FRANKFURTER, and Mr. Justice BURTON are of the opinion that there is want of jurisdiction. U.S.C.onstitution, Article III, Sec. 2, Clause 2.

Mr. Justice JACKSON has filed a memorandum stating his views.

Mr. Justice JACKSON.

Four members of this Court feel that the Japanese convicted of war crimes should have some form of relief, at least tentative, from this Court. The votes of these are not enough to grant it but, if I refrain from voting, they constitute one-half of the sitting Court. As I understand it, these Justices do not commit themselves as to whether there is any constitutional power in this Court to entertain these proceedings but only feel that they would like to hear argument to enlighten them in reaching a determination of that issue. They feel it so strongly that they not only favored grant of relief in conference, but, having failed, announce their dissent to the public-an interested section of which consists of our late enemies and allies in the Orient. This perhaps is all that these Justices could do consistently with the course that they have already taken in several German cases.  This is their right, and I point it out not to question the right but as one of the facts which confronts me in deciding my own course.

On the other hand, four other Justices are convinced, from their study of the question, that there is no constitutional jurisdiction whatever in this Court over the subject matter. To interfere and assume to review it would in that view constitute an unwarranted interference with delicate affairs that are in no way committed to the jurisdiction of this Court. These four Justices having satisfied themselves that this Court is without lawful power, have consistently refused to take action which would usurp it, even tentatively, in the German cases. Of course, they could not consistently, with equal justice under law, apply a different jurisdictional rule to these cases than they have to those of the Germans. 

Notes
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