 Greetings from the National Archives. I'm David Ferriero, Archivist of the United States, and it's my pleasure to welcome you to this virtual book talk on Last Mission to Tokyo, the extraordinary story of the Doodler Raiders and their final flight, with Arthur Michel Paradis and Jack Goldsmith. Before we hear from our special guests, I want to tell you about two upcoming programs that you can see on the National Archives YouTube channel. On Thursday, October 22, at 1 p.m., we'll present a panel discussion on the 100th anniversary of women winning the vote. Reflections on the 2020 Centennial. Panelists will include former Senator from Maryland Barbara Mikulski, K. Coles James, President of the Heritage Foundation, Colleen Shogan, Senior Vice President of the White House Historical Association, and Susan Combs, former Assistant Secretary U.S. Department of the Interior. This program is presented in partnership with the Women's Suffrage Centennial Commission and the 2020 Women's Vote Centennial Initiative. And on Wednesday, October 26, at noon, data scientist Anthony Whitby will speak on his recent book, The Sum of the People, How the Census Has Shaped Nations, from the ancient world to the modern age. I hope you'll join us for these programs. In 1942, five months after the Japanese attack on Pearl Harbor, Lieutenant Colonel Jimmy Doolittle led 80 young men on a seemingly impossible mission across the Pacific to strike the mainland of Japan. In last mission to Tokyo, scholar and lawyer Michelle Paradis recounts the dramatic aftermath of the Doolittle mission, which involved two lost crews captured, tried, and tortured at the hands of the Japanese. The dramatic rescue of the survivors in the last weeks of the war and the international manhunt and war crimes trial that followed. Michelle Paradis is a leading scholar and lawyer of international law and human rights. He's won high-profile cases in courts around the globe and worked for over a decade with the U.S. Department of Defense, Military Commission's Defense Organization, where he led many of the landmark court cases to arise out of Guantanamo Bay. He's also a lecturer at the Columbia Law School, where he teaches on the military, the Constitution, and the law of war. He's appeared on or written for NPR, MSNBC, The New York Times, The Washington Post, The Wall Street Journal, and other publications. Joining Michelle Paradis is Jack Goldsmith, the Learnered Hand Professor of Law at Harvard Law School, a senior fellow at the Hoover Institution and co-founder of Lawfare. He teaches and writes about national security law, presidential power, cybersecurity, international law, internal law, foreign relations law, and conflicts of laws. Now let's hear from Michelle Paradis and Jack Goldsmith. Thank you for joining us today. So, Michelle, this is an amazing book. It's ostensibly, and it starts off with The Do Little Raid, which was the famous air raid by U.S. soldiers in Japan after Pearl Harbor. That event is pretty well known, but the after story you tell is not terribly well known, and it's so many things wrapped up into one. It's a legal thriller. It's a story about amazing personalities, about revenge and justice, and it's just a great book. But before we get to what the book is about, I think it's important because the book is all the much better because of who you are. So I think it's important for you to tell us, you know, what is your relationship to war crimes trials and how did you come to write the book? Sure. So fairly early on in my legal practice, I got an interest in doing international, what's now called international humanitarian law, sometimes people call it law of war. This was, you know, at the end of the 90s, early aughts. And so things like the International Criminal Tribunal for Yugoslavia and Rwanda were just up and going. And it was kind of amazing to me as a student of history to see war crimes trials and the law of war actually becoming a real kind of law, like something you actually did in court. It wasn't just something academics talked about as this thing that happened back in the 1940s. And so I got fascinated with it then. And pursued it. I worked on war crimes in international or human rights cases in a variety of countries, whether it was Sierra Leone or Guatemala. And then what I've probably worked on the most in my career are the Guantanamo military missions, these ostensible war crimes trials that have been kind of running in fits and starts but nevertheless running for about the best 15 years in Guantanamo, where I've represented a number of people at various levels of their prosecutions, whether that's the trial or the free trial on field. So to make clear, when you say you've represented a number of people, you've represented a number of alleged terrorists who are defended to our defendants in the military commissions. That's right. Yeah, so I've worked since 2007 in an office that the Department of Defense established, which is now called the Military Commissions Defense Organization, and what that is is basically kind of like the public defender for Guantanamo. We get assigned to represent detainees when they're charged before the military commissions. And that's been fascinating, challenging, dispiriting and rewarding work all at the same time. So it's been a real privilege. But that's ultimately what brought me to this episode that I read about the book as well. And so, but how did you come to write the book? Yeah, no, it's a good question. And it builds exactly what we were just talking about. So back in 2007, there was this ongoing debate that you might remember at the end of the Bush administration is waterboarding torture. And we had heard a rumor about a case from World War Two, what we had heard was that we prosecuted the Japanese for water. And so we sent a young Marine captain out to the National Archives to dig up this case. And she pulled out the record of trial, which I don't think had been seen probably in about that point 60 years, and brought a copy of it back to us. And I remember one rainy day reading it. And first of all, being blown away. It wasn't just about waterboarding. If anything, waterboarding was only a small part of it. But it was also about the Doolittle Raiders. Who are these? I mean, again, as a student of history, people had certainly known about whether or not it was Michael Bay's Pearl Harbor or, you know, going to air shows as a kid. And the more and more I read the story, the more and more I was blown away by not just the human drama, and there's actually just a lot of human drama that you can read right off the trial transcript. But also just how much the very questions we were confronting in the war on terrorism, or the kind of questions you confront in Sierra Leone or the Yugoslavia or Rwanda, these war crimes questions come up every time. And it's almost as if no one's ever thought about looking back and seeing how they were answered before. And so that was just a real shock to me. A lot of the answers that I was reading from this transcript from 1940 were not sitting well, and certainly with respect to what the United States was doing in 2007. But it was just a fascinating story. It was something I could relate to immediately just from my own personal experience doing these kinds of cases. Okay, so tell us about the Doolittle Raid, how it came about, what it was. Yeah, so the Doolittle Raid for People Who Don't Know is probably the single most heroic and celebrated moment of the Second World War, at least for the people who lived through it. You know, in 1942, the war is going badly. The Allies are on the retreat or on the defensive, whether or not it's in North Africa, in Russia, in the Pacific, the Japanese have not only pushed the Allies out of their colonial possessions in China. They've taken the Philippines, which is the largest American colony at the time, the baton death march is underway. Japan is actively bombing Australia. And there is this overwhelming feeling certainly in the United States that this is a war that we might lose, right? The United States is not taking any offensive action, the exception of some naval operations. Everything else is purely defensive and not going well at that. And so Roosevelt, in a sense, just needs a good news story. And here's about this idea that we can take bombers off of an aircraft carrier to attack Japan. The problem with this proposal though, you know, and this is as early as January of 1942, the problem with this proposal is that it's actually technically impossible. There's simply no technical means by which to do this. But the head of the Army Air Forces at the time, Pap Arnold, taps an aide who had come on to his staff, a stunt pilot by the name of Jimmy Doolittle, who was not a career military officer. He had served in World War I, but spent most of his career essentially as a stunt pilot. He was the first American to ever fly across the United States in a single day. And he would do these insane acrobatic stunts like flying while painting the windows of his plane black so he could fly blind. He ended up doing that on Long Island flying 14 miles in a circle overhead and landing right from where he had taken off. And so he was this kind of person who just had this aura of being able to do the impossible. And so he gets this impossible task. And what most people don't know about Doolittle, at least, or at least is sort of in the back of his reputation at the time, is he also has a PhD from MIT in what we would now call aeronautical engineering. He, you know, these crazy stunts are actually scientific experiments on Doolittle's part. And so when he gets this problem, he sees it as an engineering problem and kind of sticking to it with that sense of American ingenuity. He basically figures out how to turn these B-25, these fat B-25 army bombers into flying gas cans so that they can take off from an aircraft carrier with enough fuel to be able to bomb Japan. And then they have to land them somewhere. And the only option really is China. And China is, you know, deeply contested territory at this part. The Japan is occupying large spots of China. There are plenty of factions within the Chinese government at the time that are loyal to Japan. Chiang Kai-shek is our nominal ally. And Mao Zedong is our sort of enemies, enemies' friends. But these are by no means, this is by no means safe territory. And so everyone kind of assumes it's a one-way mission and that it might be a suicide motion. And so, but they do it anyway. They take off from an aircraft carrier on April 18, 1942, run bombing raids over Tokyo, Nagoya, and Kobe, fly on to China, and not a single plane is shot down. One ends up having to land in the Soviet Union, which causes a moving diplomatic incident. But all the 15 other planes make it to China, or at least to the off the coast of China. And then of those, all but 11 of Doolittle's men ultimately were returned home to safety. Three are killed in various plane crashes. But all of the rest, 80 men in total, who Doolittle takes on this mission, all but 11 of them live to go home. And so it's this miraculous moment in 1942, right, the darkest days of World War II. You have this miraculous operation where not only were we able to essentially strike back for Pearl Harbor, and there was a huge public appetite for that. But we did it with minimal loss of American life and in what became just a resounding success. And so it was to build the newspapers for days and days, newsreels for days and days, celebrating the success of the Doolittle raid. But it wasn't a total success in the sense that not everybody made it back. Tell us about the people that didn't make it back. And was that known at the time where they presumed dead or were they, was their fate publicly known in America? So the initial, so initially, the war department said everyone made it home safely, with the exception of this one plane that landed up in the Soviet Union. And that was a lot. Everyone knew that was a lot. Because there were eight Americans from two of the planes that Doolittle took off the aircraft carrier USS Hornet, who soon were captured by guerrillas sympathetic to the Japanese and then turned over to the Japanese occupying Shanghai and then Nanchang. They're taken into the custody of the Kempe Tai, which is Japan's basically secret police clandestine service operating in China, and subjected to really just shocking forms of torture and abuse. When I mentioned at the beginning, we had initially heard this was a case about waterboarding. That's true. The Japanese subjected the Doolittle Raiders to waterboarding, sleep deprivation, stress positions. They used to hang them from their hands overnight. They interrogated them day after day. On one occasion, one of the stories I used, one of the Doolittle Raiders who I kind of use as the focal point to try and tell some of these stories, in Utah and by the name of Chase Nielsen, who is dragged into an interrogation room in Shanghai pinned to the floor with a broom handle behind his knees and they stomp on his knees to essentially lever the knee joints apart. And just the raw brutality that the Doolittle Raiders faced when their first captured by the Kempe Tai is shocking, shocking even today. But then they're taken back to Tokyo where they're held in solitary confinement. Sorry, how many of them were there? There were eight, all together. Okay, good. From two of the planes, eight of them get captured and they get taken to Tokyo and then there's this real question inside the Japanese government. Like, what do we do with these people? You know, you have the doves, like people like Foreign Minister Shigunogore Itogo saying, you know, we've agreed to comply with the Geneva Conventions. We have to treat them as prisoners of war. But then you have hard lives. People like Hajime Sugiyama, who's the Chief of Staff of the Army, saying, let's execute them. Let's do it as publicly and spectacularly as possible to make sure nothing like this ever happens again. And, you know, there's a real division inside the Japanese government about what do we do with these guys? Now that we've caught these essentially most notorious Americans, what do we do with them? And I would have thought that, you know, especially the brutal way that they were treated upon capture, I think the expectation would have been that they would just be summarily killed after whatever information was extracted from them. But that didn't happen. Yeah, that didn't happen. That was a real fascinating part of the book to research for me. Because again, I came at this with all the traditional American assumptions and prejudices about Second World War. You know, the Japanese are essentially the Asian Nazis. And so like thinking about, like, I was like, oh, they didn't just execute them. Like I expected them to be tortured. But the idea that not only weren't they summarily executed, there was this real divisive debate over what to do with them. And it was interesting to see Japan through that lens, like to try and understand how this was all received in Japan, because there was this real tension between what had been in Japan essentially 60, 70 year period of enlightenment called the Meiji Restoration, where Japan really becomes one of the most liberal countries in the entire world. And they're the first country to sign the 1929 Geneva Conventions, although they don't ratify it. Primarily because there's this simultaneous cultural political lurch in the 1930s from a very hard-line militarist action. And there's this really, they just become extremely politically polarized society where you have primarily an urban professional elite on one side who has profited immensely from this liberalization, from the modernity that Japan was enjoying for the past 70 years. But then the kind of agrarian traditional parts of the society that overwhelmingly formed the power base of the army wanted to return Japan to kind of a prior samurai glory, this imagined past where Japan was truly great. And they fought bitterly over the 1930s. There's a coup in 1936 where the Prime Minister is only not killed because the assassin's mistake is his brother for him. And Japan's politics becomes extremely unstable, and this is still true throughout the war, which is one of the most fascinating sort of things for me to research as someone who didn't come to this as a Japan historian. And all of these tensions, all of this division over what kind of country Japan should be, comes to probably one of its most violent heads around the Google erratives. And what ultimately happens is Prime Minister and slash War Minister Tojo, Hideke Tojo, he needs to kind of come up with a compromise. I always try to, I kind of analogize him to John Boehner for people like this boring sort of bureaucrat politician whose primary job is to just keep everyone from killing each other. And so he goes to the War Ministry and he says, we need to find a legal way to kill the Google erratives. And the lawyers in the War Ministry come back with, you know, the answer that's obvious, which is, no, you can't do that. That's completely illegal. International law forbids the murder of prisoners. But then the message gets sent back down to the lawyers. They're like, no, no, no, you don't understand. We have to find a way to kill these guys. And if we don't, they can't pay tithes to do it. They're going to claim it was an accident. No one's going to believe that. It's going to be a diplomatic crisis. And so what the lawyers come up with is they say, well, if we try to do literators as war criminals, we can sentence them to death. And then it's another problem with that. For one, they don't have a law authorizing this. They end up having to enact the next post-factual law to essentially authorize the prosecution of the dual erratives as war criminals. And so that ends up being what they did in August of 1942. The Japanese in Shanghai conduct a war crimes trial of the dual erratives on essentially trumped up charges of attacking Japanese civilians. They're all convicted. The primary evidence against them, as you might expect, is the confessions they gave under torture. Just to be clear, you should explain. So they were charged with killing civilians. And we spoke earlier about the raid. So the raid, they tried to hit military targets. That's right. So their directions, they had two types of weapons. They had three types of weapons. So they had incendiary bombs. They had demolition bombs. And they had guns. And Doolittle was adamant in the selection of the bombing targets, that only clear military objectives be targeted. There was actually an episode on them as they were planning this operation on the deck of the Hornet, where the pilots all drew cards to see who got to bomb the Imperial Palace. And Doolittle was like, no, no, no, no, no. Don't do that. Don't do that. We don't want to give the Japanese an excuse to say that we did something wrong. And so the target selection was done very carefully. The problems, though, arose with primarily with the incendiary bombs. You know, incendiary bombs, I remember I interviewed Doolittle's co-pilot in researching this book. And I asked him, I was like, you know, tell me about the bombing. He's like, well, we had demolition bombs. We knew where to put those. But then he's like, but the incendiary bombs, they're like, it's like a softball. He's like, throw it out the window. Right. And so, you know, there was, you can't accurately fire or drop an incendiary bomb. It's an incendiary bomb. And so there was a lot of damage to civilian areas. Whether or not that could be construed as collateral damage or just fire damage, that's a different question. And in fact, we don't need to get too far down this line, but even that very question was hard to answer then because the nature of the precision of the laws of war and what it prohibited and the precision of the weapons was much different than today. So it's kind of even a little bit of anachronism to even really judge it through that standard. But getting back to the trial, so it was basically a show trial? It wasn't basically, it was a show trial. You know, the whole thing lasted about an hour. And that's the longest estimate I've found in any of the doctors was people said it ran about an hour. The, you know, the primary evidence against them as I mentioned before was these confessions that they had given to the Kempeitai. And when you read the confessions, they're almost like comical in how guilty they claim to be. You know, we were flying, everything was fine, but then we started getting fierce resistance from the brave Japanese army. And so we said, damn the Japs and decided to go to school. Right. And so there are these almost preposterously, in culpatory statements, but that becomes the evidence that's ultimately used against them. They're all convicted, they're all sentenced to death, which is the only permissible punishment under this expulsion of the law. The case is returns to Tokyo, where the emperor ultimately decides to commute the sentences of three of five of them, excuse me, and go forward with the death penalty against the two pilots and one of the gunners on who was captured. The rest are sentenced to life imprisonment with special conditions was the euphemism that basically meant solitary confinement. One dies of essentially a malnutrition disease called berry berry. Another is on the verge of death in August of 1945, but none of that is actually no, you know, to your question before, you know, the Japanese after they carry out the sentences they issue essentially a press release saying that the Doolerators have been sternly punished. And it just becomes common knowledge in the United States that the eight do lost Doolerators are essentially martyrs to the aid of Japanese. There's even a movie about it. The Hollywood movie 1944, where they met, which is essentially a courtroom drama, where they imagine the trial of the Doolerators. And it's actually a much fairer trial than the one they actually got to get a lawyer that goes on for days for witnesses call. And the truth was nothing like that. The truth is far more summary. Which leads to so that was what the world bought in the West and then comes Operation Magpie, I think. Yeah, Operation Magpie. So the Office of Strategic Services, the forerunner of the CIA, quickly converts from doing commando operations in China and the Pacific, generally, we can China to doing rescue operations, literally the day after the bombs are dropped on Nagasaki, the bombs dropped on Nagasaki. They get the new missions are all named after birds. And one commando team is essentially dropped to the POW camp one or two days after the war is over. They're what's called Operation Magpie. And they, it's late in the afternoon, they're approaching this camp, but all of a sudden they take fire from the camp. And they all hit the dirt and this lieutenant, this Japanese lieutenant comes out, this man arrests all of them and basically says, Who are you guys crazy? No one knows the war zone. Had you dropped any, had you dropped into our camp any later, you would have just been shot on site because the officers would have been in bed, all the enlisted think the war is still going. But nevertheless, over the next couple days, they liberate this prisoner of war camp outside of Beijing. They put all about 500 POWs up in the Grand Hotel de Wagon Lee, which is this converted geisha house in Beijing, which becomes this massive rat party basically, for all these liberated prisoners of war. And then a rumor starts circulating that the dual eras have been getting held at Feng Tai Feng Feng prison, which is, which is the one outside of Beijing but no one can find them right there they're not among the prisoners. But it turns out in secret there's a secret essentially portion of the prison of the prison camp, in which four of the little readers are being held. And the way one of them chase Nielsen, who I mentioned before described it as he kind of comes out. They freshly shave him, you know, down to the scalp. They put him in these overbilling uniforms because they're all basically 100 pounds at this point. And he walks out and he sees this American who has this like stern look on his face and all sun weathered and the American asked him his names and I'm chasing Nielsen I was a dual orator. The American kind of looks back and says, watch out for this guy is insane, because everyone assumed they're dead right this is this is Lazarus coming back from the dead. But it's true, right there they are. There's this kind of miraculous moment. This really optimistic moment at the end of August 1945, where again, all the dual orators back in the newspapers, because the dual orators at least some of them had turned up alive and safe and are on their way home. So then the Americans decide to have a trial. Yeah, so, so that same sort of spirit of pretty say sort of good feeling. It kind of also mixes with this real hard current for revenge. That's that exists, you know, if you look into the certainly into newspapers from 1945. It's almost a litany of Japanese process day after day, you know, all around the world, prisoners are recounting their stories after being liberated. New documents and new, you know, and sort of new atrocities are being discovered every day, not just in Japan, but also obviously in Europe. And the dual orators become kind of one of them, one of the sort of major examples of this. What on their way home, they basically stop over at the US headquarters in China, and sit down with a judge advocate by the name of ham young, who is the top lawyer in China, and had just created only a few months earlier the China war crimes. Because there's this idea that takes root in late 1945. Now we're going to start having war crimes trials. It had been kind of this academic idea. You have people like Hans Kelsen sort of writing justice through law and all these good things. The early part of the war, but to the extent any trials have gone forward, it's things like expert to hear it, right, which are not a special models of due process fair and you should explain what that is that also took place in 1942, I think. Right. The same years to do little. Right. And actually, possibly, you know, I mean, I could never, I could never draw 100% of a link, but seemed to have some effect on the Japanese. And so, you know, You should explain, you should explain what what the cure in case was about because it has some parallels. It does. So in, in June of 1942, some Nazi saboteurs come ashore in Long Island and in Florida, they essentially sail on from a submarine with instructions to commit saboteurs and industrial targets inside of the United States. One of them defects almost immediately and turns everybody else in. And there is initially an effort to try them for espionage in federal court but the defector is basically a lunatic as you know a Nazi defector is probably likely to be. And so this plan develops to try them in military commissions inside the United States now military commissions have a checkered history in the United States. They were used previous to 1942 the last time they had been used was in the Philippines to go after Philippine insurgents during the Spanish American war in the period of US occupation the Philippines immediately after they had been used to some extent during the Mexican war and the Civil War. But what they really offered for not only FDR Virginia Hoover, who had a real strong interest in, in keeping a lid on the fact that Nazi Nazis actually turned themselves in. He was claiming that he discovered them and stopped the great infiltration but in fact, he didn't know even though they were there. It's not even that so the main, the main guy guy named Dosh George Doss is this kind of total lunatic who's the head of Nazi saboteur party. He gets spooked on the beach because they run into a Cox way and they escape but they don't you know but he thinks the jig is up and so he ends up calling the FBI office in New York and saying hi I'm a Nazi saboteur I arrived on a submarine over the weekend I'd like to turn myself in. And then the other last either in the lines like okay and then files a report in the nut folder. So like you go to the folder where where George Josh's original report is included there's also one of Hitler's ice skating in Rockefeller Center and other similar He ultimately has to go to Washington in person and he walks into the office of a guy named Mickey Ladd who's like a deputy deputy deputy under Jen your Hoover. And he says look I'm a Nazi I'm a Nazi saboteur I'm trying to turn you know I want to turn myself in there are others amongst us. And then the guy's getting put off by one secretary after another until he gets into Mickey Ladd's office, and then he opens up a briefcase and dumps out $60,000 about almost a million dollars today in cash. And the way it's sort of described by Mickey Ladd is like he looks down the cash and looks over the door and says lock the door, because that's that's not these Nazis get caught. And it's a real desire to have secrecy as Hoover does not want it to be known and FDR doesn't want it to be known that it's this easy infiltrate and that we can do this flat. So they conduct this military commission in secret it's by no means a model of American justice, and the lawyers, the military lawyers representing the Nazis assigned represent the Nazis ultimately take the case, all the way to the Supreme Court challenging to be fundamentally on law for a variety of different sort of technical legal reasons, including its fairness. And this hits the papers in a big way all around the world, and including in Japan. And so, as they're getting ready to prosecute the dolarators this is July 1940 is the same exact time as they're getting ready to prosecute dolarators. All of a sudden everything stops at the end of July, and everyone's like everyone just gets in order stand out. Everything goes on pause and then a couple of about a week later the Supreme Court decision of holding the prosecution of the Nazi saboteurs, they're executed a few days after that. And then the order comes down. Okay, proceeding the dolarators. So there's this real clear sort of interplay there's there's clear signs of real interaction. Unfortunately, a lot of Japanese doctors destroyed so I was never able to find. That connection is amazing as is and we don't have to go down this path but the Karen precedent and the precedent and the Roosevelt order for that military commission ended up being the precedent and basis for the original order that created the military commissions that you're now representing defendants and but maybe we'll get back to that in the end. Let's go back to the end of the trial. Let's go back to the American trial of the American trial of those responsible for who was who was the trial against. So this was like a big problem actually, because you blame pretty blame right when you have so many people who you can try you go all the way down to like the campaign tag guys were carrying out the torture. You go all the way to hear a hero who was clearly personally involved in choosing who lives and who dies. It's a big deal because one of the first essentially promises that, you know, for war crimes tribes comes from Roosevelt in connection with the do little case in 1943 when Roosevelt reveals the fate of the do little raiders to the country. There's a real strong outcry to you know for revenge. It's probably one of the most galvanizing moments in sort of like American hostility towards the Japanese since Pearl Harbor. And you have congressmen actively saying we're no longer going to take Japanese prisoners because of what was done to the do little raiders. And you have Roosevelt in the War Department saying, No, no, no, let's let's calm this down we've we're upholding certain values here. And Roosevelt gives this speech where he says, and do not worry, we're going to hold the people who perpetrated this atrocity personally responsible. It's not all the Japanese it's the people it's the individual criminals. And this is early 1943 right this is not a time when using trials to you know to prosecute the enemies access powers was really high on anyone's priority list. Let me give you one kind of example of that Churchill writes about the Tehran Conference at the end of 1943 when Roosevelt Churchill and Stalin meet for the very first time and there's discussion about what to do with the Nazis won't be captured them. And at least according to Churchill there's some dispute about the authenticity of this but at least according to Churchill Stalin sort of casually proposes why don't we just create a list of 50,000 top Nazis and then execute them on site. And FDR is repeatedly to have said well wouldn't 49,000 be plenty, like 50 seems too much. And there is this real senior and in a way I don't mean to be glib about it but in a way Stalin's not wrong by historical standards right we didn't we didn't conduct a trial for Napoleon before sending him off to Elva right there's a. If you look back to history what happened prior to World War two executing your enemies treating them in some summary ways but certainly not. Certainly not a controversial thing quite the opposite was the expected thing to put Roosevelt and the Roosevelt administration particularly really just pushes pushes and pushes for this idea of conducting trials. Stalin comes around to the idea and in fact points the head of the Moscow purge trials designed as his judge at Nuremberg. But that's that's sort of the current in which all of this comes in 1945 is that the United States essentially insisted on this. And so it's so just can you explain Roosevelt in 42. He wants to have a military commission for the Nazi saboteurs because in lieu of a real criminal trial and he wants it, not because he's being generous but because he wants to be able to have a quick trial and dispose of them. By 1943 he's kind of not really the opposite argument but he's saying no we're going to have a trial instead of immediate execution which was the other option on the table. So did Roosevelt change or was just the context different. It's probably one of the most mercurial politicians in American history and legally trained as well. That's right. And so I think part of it was, you know, the whole episode with the Nazi saboteurs was was controversial at the time. And I think part of it can at least be written off, at least so just to give you the context to unless you think I'm sort of naive in my appreciation of Roosevelt, like in the context of the Nazi saboteurs case. He proposed half kidding, giving them over to Barnum and Bailey circus so that we could make money off displaying them publicly right so so so Roosevelt is not a bleeding heart by any nation. But I think probably for a combination of policy as well as, you know, practical reasons, I think Roosevelt understood that, you know, there were certain values at stake in the war, right that the United States is called claim to legitimacy to developing allies throughout the world in the cause of the Second World War, which was by no means a foregone conclusion in 1942 1943, even into 1944. Depended upon things like the Atlantic Charter depended on our claiming, you know, a certain ability to distinguish ourselves from the Axis powers. And so the idea that war crimes that we would sort of use our respect our values right respect our liberal values that we're preaching around the world when dealing with our enemies was in a way a really ostentatious demonstration. I think there's a real practical reason for it to. And, and this you can see in plenty of documents including dealing with the dual rate. And in the public reaction up to the dual rate, you know, Roosevelt's happy that from a sort of public outrage and for revenge as much as possible help sell war bonds and nothing else. But there is a simultaneous concern that this not be directed at the Japanese people. Like, both in Germany and in Japan, or in Europe, I should say in Asia, there was this idea that we have to separate the leadership against whom we are at war from the people in the countries, you know, fighting that war against us. And that was that a real important strategic uses as well right you can't, if you're going to implement something like the Morgan's law plan, which was a, you know, not unlike executing the top 50,000 Nazis. You know, a policy that was put in proposed in the Treasury Department by FDR zone Treasury Secretary to essentially agrarianize Germany, which would have resulted, you know, by the estimates at the time and half of the German population dying the family. You're going to make it really hard to get convinced people to surrender. You know, you can't have a sense you have to have a an option for people to give up without either being humiliated or being murdered, essentially. And so this, this political decision to draw a distinction between the people were fighting and the leadership who are going to hold criminally responsible had both I think real strong values behind it. I'm not saying it was entirely cynical, but it actually made a lot of sense practically as well. And so in this period in 1945 when you when we start having, you know, the do little raiders trial begin to get formulated in the, you know, the first months right after the war. It's, it's an expression of I think both of these, right this promise that we're going to have justice. But I think certainly someone like McArthur was keenly aware that attributing responsibility attributing culpability and shame and blame on the leadership of the Japanese are on particular individuals in Japan would give him a far more stable country to try and rebuild in Japan, right. You still have tens of millions of Japanese people who are now with just the identity and have to be given a reason to want to cooperate with their American occupiers. Yeah. So tell us. So, so the trial itself, who did they end up choosing his defendants what is your assessment of it. So, give us a brief summary of what happened. The interesting things that I spent really, really probably the preponderance of this book on is trying to put together how this trial comes together, because you start as I said, a few minutes ago, you know, with the universe, a completely expansive universe of potential people to find culpable for the torture and murder of the new little raiders. And through a lot of sort of bits and starts is one lawyer, a graduate of Harvard Law School, no less by the name of Robert Dwyer. He gets this assignment, runs himself ragged all over Asia trying to figure out how to square the circle and ultimately settles upon the lawyers, the lawyers and the judges. He basically see Japanese lawyers and Japanese lawyers. He basically sees the show trial in August of 1942 as the, the fulcrum of the entire mistreatment of the dual orators ready both laundered the torture that had been done to them, but also created the conditions necessary for them to be executed and for them to be held in solitary confinement to be starved where they were. And so basically he hunts down the judges and lawyers of the dual orators trial as well as a few military officers associated with that trial. And ultimately decides that they're the ones who bear the most responsibility they participated the most and have to be the other ones who should answer for the torture and mistreatment of the dual orators. And so in 1946 when this trial finally gets underway it's the fourth trial for the war crimes trial to be conducted by the United States and the Pacific. And so you end up having the trial of a trial. It's a really just kind of remarkable turnabout where you have the United States Army putting essentially their counterparts on trial in a war crimes trial conducted at least under sort of vague rules, certainly not the ordinary rules of due process in the United States. And then litigating in this very both high level and practical way. What is fairness, like what, what do we owe our enemies do it are their standards of international law or basic humanity that we can look to determine whether or not someone has, you know, essentially just engaged in the paperwork for murder, or has actually conducted a good faith criminal trial. It's like a really just fascinating human drama. I said this few times, you know, to people when they've asked me about this book like is it a happy ending or the comedy or the tragedy. Actually, I kind of take a lot of heart from this book. And from the debate you have because you have, you know, some American lawyers who get assigned quite unhappily frankly, to represent the Japanese, but ultimately see it as their duty to represent them to take on the whole thing fully. And then you have prosecutors like Robert Dwyer saying, look, there are international standards or values at stake here. And you have them both clash really just good faith claims to what is true what is just. And so it's actually like, it's especially after, you know, a lot of the politics we live through today just watching two people and two sides have a good faith debate over something important as important as values. It's just kind of refreshing. It's nothing else. Yeah. And so what, so what was the outcome of the trial? So the outcome of the trial is really shocking to everybody. Everyone's expecting, not unreasonably, for all of these guys to be executed. That's exactly what happened in the previous three war crimes prosecutions that the Army had engaged in. The Pacific Yamashita is the most famous of those but there were a couple others. And instead, they're all convicted, but the charges against them, but then they get acquitted essentially of the elements of the charge. And all of them are sentenced to relatively short terms of years. In fact, the only one who gets sentenced longer than five years is a sentence of nine years. For the one judge on the Google Raiders trial in 1942, who was actually a lawyer. And because he was a lawyer, the court basically said you should have known better. And, and gave him the stip of sentence but only of nine years. And it was a shock, it was a total shock to the system. You had politicians, letter writing campaigns demanding that the Google Raiders trial be done again, so that death sentences could be carried out. And so there is this sort of after story of, you know, these lawyers in China, back to him young the guy who initially sees this case in August of 1945 is, you know, potentially marquee case of the entire war. He has to sit down and figure out how to both assuage the public desire for blood, but also are again over, you know, basic conceptions of fairness and process things like double jeopardy, which kind of forms out rounds out the end of the book. So, you know, you referred to the human drama of the book and we just haven't had time to get into that and we're not going to but the characters are amazing and the kind of moral struggles in the midst of war and trying to figure out what's right and just and true. And, and there's so many interesting characters along the way. And so, I really want to commend you for that even though we can't really discuss it. So in wrapping up I want to ask you a couple of implications questions or legacy questions. What, what is the legacy of this trial say, both in I'm just interested in Japan and especially when you're an expert on international criminal law this was kind of at the dawn of the modern international criminal criminal movement. So just tell us what the, how is this trial come to be seen and, and is it seen any differently in light of what you've discovered. Um, so it's a great question I think there are a couple different legacies that it's had the most obvious one, in particular because it's like a forgotten trial. You know it didn't end up going to the US Supreme Court it wasn't controversial like in Los Angeles. And so prior to this book really had not been written about at all even in books about the new little raid. There's like this footnote that there was a trial sometime in 1946. So there was a you know it was a really untilled ground when I came to this. But one of the main reasons I think is that all the lessons all the, all the sort of lessons from that fight that I talked about, end up becoming the Geneva Conventions of 1940 now. You know the prohibition on torture the rights to, you know have your prisoner of war status evaluated in a neutral way as early as possible various procedural trial rates that you get. Right to have your country supervise any trial of you that an enemy might be as an enemy that might if you're if you're being prosecuted you have the right essentially to representation by your home country. And then most famously there's actually a provision of the Geneva Convention, which ends up becoming really quite important in, you know, many many years later and in some of the Guantanamo cases which is called common article three. And common article three forbids torture forbids murder any number of things but it has a very peculiar provision that forbids the carrying out of sentences except upon the regular trial, except upon a trial by a regularly constituted court, affording all the judicial guarantees recognized as indispensable people and is indispensable by civilized people. And, and that's actually in a sense what this whole dual raid trial is about is what are the judicial guarantees recognized as indispensable by civilized people. So that's one major legacy is that, you know, we have since don't look much back to this trial I think in large part because every lesson you take from it is now the black letter law. But I think another lesson to that was really relevant at the time is it was probably the first, like fair trial war crimes trial, where the results surprised me. And I don't think you can have a trial. If the result is predictable that's I think almost the definition of a show is that you're having, you know, literally the word trial is a test. And, you know, the emotion trial which I mentioned before MacArthur kind of rams that through your master, I should say as guilty as sin, my right about the book. But his trial is a total sham to the point where MacArthur sees to it that he's convicted and sentenced to death on December 7, 1945, right, like four year anniversary of the tackle for Harvard's debt, right, there's no question that this is politicized justice. But here in the dual raid trial you have, you know, again, a surprise ending. And when you have a surprise that is a measure of fairness that we end up seeing in things like Nuremberg, right, the Justice Jackson famously said that the test of whether or not these trials be fairs is not the convictions it's the acquittals. And that's ultimately I think you're probably one of the greater lessons is that it is actually possible to have a fair trial of your enemy and work on, but you have to really commit to doing it you have to commit to a certain amount of unpredictability. Okay, so this brings me to my last question and I'm going to end sort of where we began. You just alluded to the fact that you're involved in the military commissions where the United States before a form of military tribunal quite different but still a form of military tribunal is seeking to try, among other people those are allegedly responsible for 911. And so I'm just wondering, you know, and it's really remarkable that you went back and kind of dug up the free history to these trials in a way I mean, both the do little raid trials for the reason you just said we talked about Karen which is a direct successor of these trials. So much has changed obviously in the last 70 or 80 years. But I'm just wondering, you know, how long I don't know how long you took you to write the book but did what lessons did it teach you or either either you about what you're doing or about what America is doing in these military commission trials. I mean, what are the larger lessons for that. Okay, so I'll give you two that come to me on the top of my head. One is like the personal lessons from me, especially since I've, you know, primarily been assigned to representing what I'm going to do. I can tell you, you know, they vary. They're diverse people as all people are. Some of them do not like even though I'm ostensibly there to help. And I have to sort of swallow my pride and commit to my role as their advocate, even though they're not, we're never going to be friends, and we're never going to come to that piece. And I think working on this book particularly like studying how the defense lawyers for the Japanese end up having to do their job and really put they end their military careers in the course of representing the Japanese who are literally some of the most hated people in the world at that point. And that kind of just put a certain weight on me to know that even though I'm certainly going to do things that I either don't like or unpleasant, because, you know, I'm doing it for people who, you know, I live in New York I was here on that 11. I have very specific personal feelings about that. And so, you know, dealing with a lot of my clients has always been something of a, it's a complex relationship. And so but knowing that not only is it like history going to be looking at me the way I was looking at these defense lawyers but, you know, that I know the lesson. I have to kind of hold myself to the standard of actually, you know, representing them to the best of my ability because that's my job, and that's my duty and if I don't do it, it's definitely going to be unfair, because I think the main reason why the trial, the dual trial was fair was the defense lawyers actually took their jobs really seriously and in fact all the people took their job seriously and argued really in good faith. So that's one big lesson that I certainly take is that, you know, even irrespective of what you think of your client it's your job worth presenting no matter the personal or professional reputation costs that might come along with it. The other sort of disturbing lesson is kind of what we were talking about before I think when I when I started digging into Japan, and trying to understand why they did this stuff. To the little raiders, particularly especially again with the prejudice of like well why didn't they just execute, like that seems like something the Japanese have done. I started seeing this really dark mirror of how the United States reacted in a lot of ways in the war on terror. And for a lot of the same reasons, right, Japan, the do little raid is the first time Japan has attacked in all of recorded history at least the mainland of Japan has attacked in all of its recorded history they had a sense of invulnerability of what you might call exceptionalism. And so when the do little raid happens, it shocks the country to its very core, and they all of a sudden start compromising values that they seem to think they took quite seriously only a few months before in in the cause of fear in the cause of the desire for revenge, and whether or not that's the embrace of things like that close back the laws and summary trials, but also torture rate torture, despite, again, my prejudice, I'll say, was deeply forbidden in Japan was actually a major part of their Democratic Revolution. In the end of the 1900s was the abolition of torture, it was almost this marquee moment when Japan finally abolish this torture as its moment to enter the world as an equal power along with the United States. It's immediately after that that the United States actually essentially normalizes relationship, normalizes relationship with Japan. And so how it could go back on something as foundational to its own identity as the prohibition on torture, which the United States did for the very same reasons. And that that was just disturbing. It was a disturbing lesson that these norms that we think govern society, even laws that we think govern our behavior are much more fragile when under stress, then we tend to want to believe they are. And that's kind of a darker lesson. I should have started with that one. That's a dark but perhaps poignant place to stop. Thanks so much. It's a truly great book. Congratulations. Yeah, thank you so much. It was great conversation.