Pelz's Point

Since the Pentagon official excoriated law firms two weeks ago for offering to defend Guantanamo Bay detainees pro bono, no prominent voices have rallied to his side, not even Attorney General Gonzales.

This should not be surprising. After all, it was John Adams who defended the British soldiers accused in the Boston Massacre. And it was Thomas Paine who said, “He that would make his own liberty secure must guard even his enemies from oppression.”

The discussion that followed the remarks of the deputy assistant secretary of defense for detainee affairs, Charles Stimson, reminded me of an encounter I once had with an attorney and veteran of World War II. He had proudly served on the defense team for a military war crimes tribunal following the war.

As a young public television researcher, I was asked to help develop a dramatization of an obscure aspect of the war crimes trials that followed WWII — those of the Japanese in the Pacific theater. The script, not yet produced, focused on General Masaharu Homma. On the surface, Homma was, in his day, not much more attractive a figure than Osama bin Laden. Called “Beast of Bataan,” the general was in command of Japanese troops who led American prisoners of war on an infamous “death march” across the Philippines. Thousands of soldiers died on a forced march with little food or water, and stragglers were shot.

This was to be a public television production and thus there was something of a liberal revisionist agenda at work, questioning whether General Douglas MacArthur had the right to convene a war crimes trial for the Japanese general who had once defeated him in the Philippines. I wasn’t particularly enthusiastic about that aspect of the program. But what did interest me was the story of that general’s defense team — a band of GI’s stationed in the Philippines who hailed from cities across America. Just because they had law degrees and despite their lack of courtroom experience they were ordered to mount General Homma’s defense.

The one I met in 1994 in the course of my research continued to take pride in that spirited, if unpopular, effort. He is Robert Pelz, a New Yorker now in his late 80s. Mr. Pelz, a graduate of Columbia Law School, after the war became a partner at Loeb & Loeb.

He had kept a diary of the trial — and decades later retained vivid memories of it. “It is obvious that we are not expected to put up a gigantic defense,” Mr. Pelz wrote in December 1945. Yet despite those expectations and letters from home wishing they were prosecuting, not defending, General Homma, the GIs came to find the case — and even the defendant — to be compelling.

Mr. Pelz wrote, “Then came the dramatic moment when the General was led into our office. Bowing graciously to each of us he sat down and read a little speech he had written in English in which he thanked us for our impartiality in assuming his defense and expressed his gratitude to the United States Army for providing us.”

The GIs found that, over the weeks and months, their “professional pride” — in effect their internalized American sense of what constitutes the form and substance of justice — would lead them to mount an energetic defense of the “Jap general.” Mr. Pelz wrote in his diary on December 30, “The whole tradition of Anglo-American law is to get justice and a fair trial for the individual.”

Over time, they grew close to the accused. Homma had studied in England, loved “Gone with the Wind,” and had questions about the war. Ultimately, the lawyers would count as a moral victory the fact that Homma was allowed a military man’s execution — by a firing squad — rather than an ignominious hanging. It was a terribly moving story: a group of soldiers who, in the American spirit of fair play, surprised themselves by their capacity to like someone whom the country justifiably reviled.

One desperately wants to think that this is the precedent we should honor in Guantanamo, notwithstanding Defense Department qualms. Still, one can’t help but notice crucial differences in the two situations — between the open-ended struggle in which we find now ourselves compared to a war where unconditional surrender made magnanimity so much easier and between a struggle where the enemy is an amorphous conspiracy and a war which involved sovereign powers. Such differences must have preoccupied Justice Department attorneys who were asked to recommend interrogation techniques to the White House.

And such differences must have led the Defense Department to have its qualms about effective defenses like the one the GIs gave General Homma.

As even Mr. Pelz, reflecting on his wartime experience, said to me, “I’m not sure that you can have a war crimes trial that would meet all the niceties of a criminal case in the United States. ... And I don’t want war criminals to go free.”

This piece originally appeared in The New York Sun

This piece originally appeared in The New York Sun