Article II, Section 2, Clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
As a matter of fact, in General Tomoyuki Yamashita’s case,1 which was brought after the termination of hostilities for alleged “war crimes,” the Court abandoned its restrictive conception altogether. In the words of Justice John Rutledge’s dissenting opinion in this case:
The difference between the Court’s view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply.2
And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under international law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws, nor did international law clearly forbid ex post facto laws.3
- In re Yamashita, 327 U.S. 1 (1946).
- 327 U.S. at 81.
- See Leo Gross, The Criminality of Aggressive War, 41 Am. Pol. Sci. Rev. 205 (1947).