1. Section 67 of the Hawaiian Organic Act, 31 Stat. 141, 153,
authorizing the Territorial Governor, in case of rebellion or
invasion, or imminent danger thereof, when the public safety
requires it, to suspend the privilege of the writ of habeas corpus
or "place the Territory . . . under martial law," did not give the
armed forces, during a period of martial law, power to supplant all
civilian laws and to substitute military for judicial trials of
civilians not charged with violations of the law of war, in
territory of the United States not recently regained from an enemy
at a time when the dangers apprehended by the military are not
sufficient to cause them to require civilians to evacuate the area
and it is not impossible for the civilian government and the courts
to function. Pp.
327 U. S. 313,
327 U. S.
324.
(a) Although part of the language of § 67 of the Organic Act is
identical with a part of the language of the original Constitution
of Hawaii, Congress did not intend to adopt the decision of the
Supreme Court of Hawaii in
In re Kalanianaole, 10 Hawaii
29, sustaining military trials of civilians in Hawaii without
adequate court review during periods of insurrection. P.
327 U. S.
316.
Page 327 U. S. 305
(b) When the Organic Act is read as a whole and in the light of
its legislative history, it is clear that Congress intended that
civilians in Hawaii should be entitled to constitutional
protection, including the guarantee of a fair trial, to the same
extent as those who live in any other part of our country. Pp.
327 U. S.
316-319.
(c) Our system of government is the antithesis of total military
rule, and its founders are not likely to have contemplated complete
military dominance within the limits of a territory made a part of
this country and not recently taken from an enemy. P.
327 U. S.
322.
(d) When Congress passed the Organic Act and authorized the
establishment of "martial law," it had in mind, and did not wish to
exceed, the boundaries between military and civilian power in which
our people have always believed, which responsible military and
executive officers had heeded, and which had become part of our
political philosophy and institutions. Pp. 319-324.
(e) The phrase "martial law," as employed in that Act, while
intended to authorize the military to act vigorously for the
maintenance of an orderly civil government and for the defense of
the islands against actual or threatened rebellion or invasion, was
not intended to authorize the supplanting of courts by military
tribunals. Pp.
327 U. S.
319-324.
2. Petitioners, two civilians who were unlawfully tried,
convicted and imprisoned by military tribunals in Hawaii during a
period of martial law when the privilege of the writ of habeas
corpus had been suspended, are entitled to their freedom on writs
of habeas corpus -- at least after the privilege of the writ had
been restored. Pp. 312,
n 5,
327 U. S.
324.
146 F.2d 576, reversed.
No. 14. Petitioner, a civilian shipfitter employed in the Navy
Yard at Honolulu, was arrested by military authorities and tried
and sentenced to imprisonment by a military tribunal for assaulting
two Marine sentries on duty at the Navy Yard in violation of a
military order more than two years after the attack on Pearl
Harbor. At that time, schools, bars, and motion picture theaters
had been reopened, and the courts had been authorized to exercise
their normal functions, with certain exceptions, one being that
only military tribunals were permitted to try criminal prosecutions
for violations of military orders.
Page 327 U. S. 306
No. 15. Petitioner, a civilian stockbroker in Honolulu having no
connection with the armed forces, was arrested by military police
more than eight months after the attack on Pearl Harbor on a charge
of embezzling stock belonging to another civilian in violation of
the laws of Hawaii. He was tried, convicted, and sentenced to
imprisonment by a military tribunal at a time when the courts were
open and functioning to a limited extent "as agents of the Military
Governor."
Both petitioned the district court for writs of habeas corpus,
challenging the validity of their trials and convictions by
military tribunals under a state of "martial law" which had been
declared on the day of the attack on Pearl Harbor. After separate
trials, the district court found that the courts had always been
able to function, but for military orders closing them, and that
there was no military necessity for the trial of petitioners by
military tribunals, rather than by regular courts. It held the
trials void and ordered the release of petitioners. The circuit
court of appeals reversed. 146 F.2d 476. This Court granted
certiorari. 324 U.S. 833.
Reversed, p.
327 U. S.
324.
Page 327 U. S. 307
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioners in these cases were sentenced to prison by
military tribunals in Hawaii. Both are civilians. The question
before us is whether the military tribunals had power to do this.
The United States District Court for Hawaii, in habeas corpus
proceedings, held that the military tribunals had no such power,
and ordered that they be set free. The Circuit Court of Appeals
reversed, and ordered that the petitioners be returned to prison.
146 F.2d 576. Both cases thus involve the rights of individuals
charged with crime and not connected with the armed forces to have
their guilt or innocence determined in courts to law which provide
established procedural safeguards, rather than by military
tribunals which fail to afford many of these safeguards. Since
these judicial safeguards are prized privileges of our system of
government we granted certiorari. 324 U.S. 833.
The following events led to the military tribunals' exercise of
jurisdiction over the petitioners. On December 7, 1941, immediately
following the surprise air attack by the Japanese on Pearl Harbor,
the Governor of Hawaii by proclamation undertook to suspend the
privilege of the writ of habeas corpus and to place the Territory
under "martial law." Section 67 of the Hawaiian Organic Act, 31
Stat. 141, 153 [
Footnote 1]
authorizes the Territorial Governor to
Page 327 U. S. 308
take this action "in case of rebellion or invasion, or imminent
danger thereof, when the public safety requires it." His action was
to remain in effect only "until communication can be had with the
President and his decision thereon made known." The President
approved the Governor's action on December 9th. [
Footnote 2] The Governor's proclamation also
authorized and requested the Commanding General, "during . . . the
emergency and until danger of invasion is removed, to exercise all
the powers normally exercised" by the Governor and by "the judicial
officers and employees of the Territory."
Pursuant to this authorization, the Commanding General
immediately proclaimed himself Military Governor and undertook the
defense of the Territory and the maintenance of order. On December
8th, both civil and criminal courts were forbidden to summon jurors
and witnesses and to try cases. The Commanding General established
military tribunals to take the place of the courts. These were to
try civilians charged with violating the laws of the United States
and of the Territory, and rules, regulations, orders or policies of
the Military Government. Rules of evidence and procedure of courts
of law were not to control the military trials. In imposing
penalties the military
Page 327 U. S. 309
tribunals were to be
"guided by, but not limited to the penalties authorized by the
court martial manual, the laws of the United States, the Territory
of Hawaii, the District of Columbia, and the customs of war in like
cases."
The rule announced was simply that punishment was "to be
commensurate with the offense committed," and that the death
penalty might be imposed "in appropriate cases." Thus, the military
authorities took over the government of Hawaii. They could and did,
by simply promulgating orders, govern the day-to-day activities of
civilians who lived, worked, or were merely passing through there.
The military tribunals interpreted the very orders promulgated by
the military authorities, and proceeded to punish violators. The
sentences imposed were not subject to direct appellate court
review, since it had long been established that military tribunals
are not part of our judicial system.
Ex parte
Vallandingham, 1 Wall. 243. The military
undoubtedly assumed that its rule was not subject to any judicial
control whatever, for, by orders issued on August 25, 1943, it
prohibited even accepting of a petition for writ of habeas corpus
by a judge or judicial employee or the filing of such a petition by
a prisoner or his attorney. Military tribunals could punish
violators of these orders by fine, imprisonment, or death.
White, the petitioner in No. 15, was a stockbroker in Honolulu.
Neither he nor his business was connected with the armed forces. On
August 20, 1942, more than eight months after the Pearl Harbor
attack, the military police arrested him. The charge against him
was embezzling stock belonging to another civilian in violation of
Chapter 183 of the Revised Laws of Hawaii. Though by the time of
White's arrest the courts were permitted "as agents of the Military
Governor" to dispose of some nonjury civil cases, they were still
forbidden to summon jurors and to exercise criminal jurisdiction.
On August
Page 327 U. S. 310
22nd, White was brought before a military tribunal designated as
a "Provost Court." The "Court" orally informed him of the charge.
He objected to the tribunal's jurisdiction but the objection was
overruled. He demanded to be tried by a jury. This request was
denied. His attorney asked for additional time to prepare the case.
This was refused. On August 25th, he was tried and convicted. The
tribunal sentenced him to five years' imprisonment. Later, the
sentence was reduced to four years.
Duncan, the petitioner in No. 14, was a civilian shipfitter
employed in the Navy Yard at Honolulu. On February 24th, 1944, more
than two years and two months after the Pearl Harbor attack, he
engaged in a brawl with two armed Marine sentries at the yard. He
was arrested by the military authorities. By the time of his
arrest, the military had to some extent eased the stringency of
military rule. Schools, bars, and motion picture theaters had been
reopened. Courts had been authorized to "exercise their normal
functions." They were once more summoning jurors and witnesses and
conducting criminal trials. There were important exceptions,
however. One of these was that only military tribunals were to try
"Criminal Prosecutions for violations of military orders."
[
Footnote 3] As the record
shows, these military orders still covered a wide range of
day-to-day civilian conduct. Duncan was charged with violating one
of these orders, paragraph 8.01, Title 8, of General Order No. 2,
which prohibited assault on military or naval personnel with intent
to resist or hinder them in
Page 327 U. S. 311
the discharge of their duty. He was therefore tried by a
military tribunal, rather than the Territorial Court, although the
general laws of Hawaii made assault a crime. Revised L.H.1935, ch.
166. A conviction followed, and Duncan was sentenced to six months'
imprisonment.
Both White and Duncan challenged the power of the military
tribunals to try them by petitions for writs of habeas corpus filed
in the District Court for Hawaii on March 14 and April 14, 1944,
respectively. Their petitions urged both statutory and
Constitutional grounds. The court issued orders to show cause.
Returns to these orders contended that Hawaii had become part of an
active theater of war constantly threatened by invasion from
without; that the writ of habeas corpus had therefore properly been
suspended and martial law had validly been established in
accordance with the provisions of the Organic Act; that,
consequently, the District Court did not have jurisdiction to issue
the writ, and that the trials of petitioners by military tribunals
pursuant to orders by the Military Governor issued because of
military necessity were valid. Each petitioner filed a traverse to
the returns, which traverse challenged, among other things, the
suspension of habeas corpus, the establishment of martial law, and
the validity of the Military Governor's orders, asserting that such
action could not be taken except when required by military
necessity due to actual or threatened invasion, which, even if it
did exist on December 7, 1941, did not exist when the petitioners
were tried, and that, whatever the necessity for martial law, there
was no justification for trying them in military tribunals, rather
than the regular courts of law. The District Court, after separate
trials, found in each case, among other things, that the courts had
always been able to function but for the military orders closing
them, and that, consequently, there was no military necessity for
the trial of petitioners by military tribunals, rather than
regular
Page 327 U. S. 312
courts. [
Footnote 4] It
accordingly held the trials void, and ordered the release of the
petitioners.
The Circuit Court of Appeals, assuming without deciding that the
District Court had jurisdiction to entertain the petitions, held
the military trials valid and reversed the ruling of the District
Court, 146 F.2d 576. It held that the military orders providing for
military trials were fully authorized by Section 67 of the Organic
Act and the Governor's actions taken under it. The Court relied on
that part of the section which, as we have indicated, authorizes
the Governor, with the approval of the President, to proclaim
"martial law" whenever the public safety requires it. The Circuit
Court thought that the term "martial law" as used in the Act
denotes, among other things, the establishment of a "total military
government" completely displacing or subordinating the regular
courts, that the decision of the executive as to what the public
safety requires must be sustained so long as that decision is based
on reasonable grounds, and that such reasonable grounds did
exist.
In presenting its argument before this Court, the government.
for reasons set out in the margin, [
Footnote 5] abandons its contention as to the suspension
of the writ of habeas corpus and advances the argument employed by
the Circuit Court for sustaining the trials and convictions of the
petitioners by military tribunals. The petitioners contend that
"martial law," as provided for by § 67, did not authorize the
military to try and punish civilians such as petitioners, and urge
further that, if such authority should
Page 327 U. S. 313
be inferred from the Organic Act, it would be unconstitutional.
We need decide the Constitutional question only if we agree with
the government that Congress did authorize what was done here.
Did the Organic Act, during the period of martial law, give the
armed forces power to supplant all civilian laws and to substitute
military for judicial trials under the conditions that existed in
Hawaii at the time these petitioners were tried? The relevant
conditions, for our purposes, were the same when both petitioners
were tried. The answer to the question depends on a correct
interpretation of the Act. But we need not construe the Act insofar
as the power of the military might be used to meet other and
different conditions and situations. The boundaries of the
situation with reference to which we do interpret the scope of the
Act can be more sharply defined by stating at this point some
different conditions which either would or might conceivably have
affected to a greater or lesser extent the scope of the authorized
military power. We note first that, at the time the alleged
offenses were committed, the dangers apprehended by the military
were not sufficiently imminent to cause them to require civilians
to evacuate the area, or even to evacuate any of the buildings
necessary to carry on the business of the courts. In fact, the
buildings had long been open and actually in use for certain kinds
of trials. Our question does not involve the well established power
of the military to exercise jurisdiction over members of the armed
forces, [
Footnote 6] those
directly connected with such forces, [
Footnote 7] or enemy belligerents, prisoners of war, or
others charged
Page 327 U. S. 314
with violating the laws of war. [
Footnote 8] We are not concerned with the recognized power
of the military to try civilians in tribunals established as a part
of a temporary military government over occupied enemy territory or
territory regained from an enemy where civilian government cannot
and does not function. [
Footnote
9] For Hawaii, since annexation, has been held by and loyal to
the United States. Nor need we here consider the power of the
military simply to arrest and detain civilians interfering with a
necessary military function at a time of turbulence and danger from
insurrection or war. [
Footnote
10] And finally, there was no specialized effort of the
military, here, to enforce orders which related only to military
functions, such as, for illustration, curfew rules or blackouts.
For these petitioners were tried before tribunals set up under a
military program which took over all government and superseded all
civil laws and courts. If the Organic Act, properly interpreted,
did not give the armed forces this awesome power, both petitioners
are entitled to their freedom.
I
In interpreting the Act, we must first look to its language.
Section 67 makes it plain that Congress did intend
Page 327 U. S. 315
the Governor of Hawaii, with the approval of the President, to
invoke military aid under certain circumstances. But Congress did
not specifically state to what extent the army could be used, or
what power it could exercise. It certainly did not explicitly
declare that the Governor, in conjunction with the military, could
for days, months, or years close all the courts and supplant them
with military tribunals.
Cf. Coleman v. Tennessee,
97 U. S. 509,
97 U. S. 514.
If a power thus to obliterate the judicial system of Hawaii can be
found at all in the Organic Act, it must be inferred from § 67's
provision for placing the Territory under "martial law." But the
term "martial law" carries no precise meaning. The Constitution
does not refer to "martial law" at all, and no Act of Congress has
defined the term. It has been employed in various ways by different
people and at different times. By some, it has been identified as
"military law" limited to members of, and those connected with, the
armed forces. Others have said that the term does not imply a
system of established rules, but denotes simply some kind of
day-to-day expression of a General's will dictated by what he
considers the imperious necessity of the moment.
See United
States v. Diekelman, 92 U. S. 520,
92 U. S. 526.
In 1857, the confusion as to the meaning of the phrase was so great
that the Attorney General, in an official opinion, had this to say
about it:
"The Common Law authorities and commentators afford no clue to
what martial law, as understood in England, really is. . . . In
this country, it is still worse."
8 Op.Atty.Gen. 365, 367. What was true in 1857 remains true
today. [
Footnote 11] The
language of § 67
Page 327 U. S. 316
thus fails to define adequately the scope of the power given to
the military and to show whether the Organic Act provides that
courts of law be supplanted by military tribunals.
II
Since the Act's language does not provide a satisfactory answer,
we look to the legislative history for possible further aid in
interpreting the term "martial law" as used in the statute. The
government contends that the legislative history shows that
Congress intended to give the armed forces extraordinarily broad
powers to try civilians before military tribunals. Its argument is
as follows: that portion of the language of § 67 which prescribes
the prerequisites to declaring martial law is identical with a part
of the language of the original Constitution of Hawaii. Before
Congress enacted the Organic Act, the Supreme Court of Hawaii had
construed that language as giving the Hawaiian President power to
authorize military tribunals to try civilians charged with crime
whenever the public safety required it.
In re
Kalanianaole, 10 Hawaii, 29. When Congress passed the Organic
Act, it simply enacted the applicable language of the Hawaiian
Constitution, and, with it, the interpretation of that language by
the Hawaiian Supreme Court.
In disposing of this argument, we wish to point out at the
outset that, even had Congress intended the decision in the
Kalaniaole case to become part of the Organic Act, that
case did not go so far as to authorize military trials of the
petitioners for these reasons. There, the defendants were
insurrectionists taking part in the very uprising which the
military were to suppress, while here, the petitioners had no
connection with any organized resistance to the armed forces or the
established government. If, on the other hand, we should take the
Kalanianaole case to authorize the complete supplanting of
courts by military
Page 327 U. S. 317
tribunals, we are certain that Congress did not wish to make
that case part of the Organic Act. For that case did not merely
uphold military trials of civilians, but also held that courts were
to interfere only when there was an obvious abuse of discretion
which resulted in cruel and inhuman practices or the establishment
of military rule for the personal gain of the President and the
armed forces. But courts were not to review whether the President's
action, no matter how unjustifiable, was necessary for the public
safety. As we shall indicate later, military trials of civilians
charged with crime, especially when not made subject to judicial
review, are so obviously contrary to our political traditions and
our institution of jury trials in courts of law that the tenuous
circumstance offered by the government can hardly suffice to
persuade us that Congress was willing to enact a Hawaiian Supreme
Court decision permitting such a radical departure from our
steadfast beliefs. [
Footnote
12]
Partly in order to meet this objection, the government further
contends that Congress, in enacting the
Kalanianaole case,
not only authorized military trials of civilians in Hawaii, but
also could and intended to provide that "martial law" in Hawaii
should not be limited by the United States Constitution or by
established Constitutional practice. But, when the Organic Act is
read as a whole and in the light of its legislative history, it
becomes clear that Congress did not intend the Constitution to have
a limited application to Hawaii. Along with § 67, Congress enacted
§ 5 of the Organic Act, which provides "that the Constitution . . .
shall have the same force and effect within the said Territory as
elsewhere in the United States." 31 Stat. 141. Even when Hawaii
Page 327 U. S. 318
was first annexed, Congress had provided that the Territory's
existing laws should remain in effect unless contrary to the
Constitution. 30 Stat. 750. And the House Committee Report in
explaining § 5 of the Organic Act stated:
"Probably the same result would obtain without this provision
under Section 1891, chapter 1, Title XXIII, of the Revised
Statutes, but,
to prevent possible question, the section
is inserted in the bill. [
Footnote 13]"
(Italics supplied). Congress thus expressed a strong desire to
apply the Constitution without qualification.
It follows that civilians in Hawaii are entitled to the
Constitutional guarantee of a fair trial to the same extent as
those who live in any other part of our country. We are aware that
conditions peculiar to Hawaii might imperatively demand
extraordinarily speedy and effective measures in the event of
actual or threatened invasion. But this also holds true for other
parts of the United States. Extraordinary measures in Hawaii,
however necessary, are not supportable on the mistaken premise that
Hawaiian inhabitants are less entitled to Constitutional protection
than others. For here, Congress did not, in the Organic Act,
exercise whatever power it might have
Page 327 U. S. 319
had to limit the application of the Constitution.
Cf. Hawaii
v. Mankichi, 190 U. S. 197. The
people of Hawaii are therefore entitled to Constitutional
protection to the same extent as the inhabitants of the 48 States.
And Congress did not enact the Hawaiian Supreme Court's decision in
the
Kalanianaole case, and thus authorize the military
trials of petitioners. Whatever power the Organic Act gave the
Hawaiian military authorities, such power must therefore be
construed in the same way as a grant of power to troops stationed
in any one of the states.
III
Since both the language of the Organic Act and its legislative
history fail to indicate that the scope of "martial law" in Hawaii
includes the supplanting of courts by military tribunals, we must
look to other sources in order to interpret that term. We think the
answer may be found in the birth, development, and growth of our
governmental institutions up to the time Congress passed the
Organic Act. Have the principles and practices developed during the
birth and growth of our political institutions been such as to
persuade us that Congress intended that loyal civilians in loyal
territory should have their daily conduct governed by military
orders substituted for criminal laws, and that such civilians
should be tried and punished by military tribunals? Let us examine
what those principles and practices have been with respect to the
position of civilian government and the courts, and compare that
with the standing of military tribunals throughout our history.
People of many ages and countries have feared and unflinchingly
opposed the kind of subordination of executive, legislative, and
judicial authorities to complete military rule which according to
the government Congress has authorized here. In this country, that
fear has become part of our cultural and political institutions.
The story of that development is well known, and we see no
Page 327 U. S. 320
need to retell it all. But we might mention a few pertinent
incidents. As early as the 17th Century, our British ancestors took
political action against aggressive military rule. When James I and
Charles I authorized martial law for purposes of speedily punishing
all types of crimes committed by civilians, the protest led to the
historic Petition of Right, [
Footnote 14] which, in uncompromising terms, objected to
this arbitrary procedure and prayed that it be stopped and never
repeated. [
Footnote 15] When
later the American colonies declared their independence, one of the
grievances listed by Jefferson was that the King had endeavored to
render the military superior to the civil power. The executive and
military officials who later found it necessary to utilize the
armed forces to keep order in a young and turbulent nation did not
lose sight of the philosophy embodied in the Petition of Right and
the Declaration of Independence that existing civilian government,
and especially the courts, were not to be interfered with by the
exercise of military power. In 1787, the year in which the
Constitution was formulated, the Governor of Massachusetts colony
used the militia to cope with Shay's rebellion. In his instructions
to the Commander of the troops, the Governor listed the "great
objects" of the mission. The troops were to "protect the judicial
courts . . . ," "to assist the civil magistrates in executing the
laws . . . ," and to "aid them in apprehending the disturbers of
the public peace. . . ." The Commander was to consider himself
"constantly as under the direction of the civil officer, saving
where any armed force shall appear and oppose . . . [his] . . .
marching to execute these orders." [
Footnote 16] President Washington's instructions
Page 327 U. S. 321
to the Commander of the troops sent into Pennsylvania to
suppress the Whiskey Rebellion of 1794 were to the same effect. The
troops were to see to it that the laws were enforced, and were to
deliver the leaders of armed insurgents to the regular courts for
trial. The President admonished the Commanding General "that the
judge cannot be controlled in his functions." [
Footnote 17] In the many instances of the use of
troops to control the activities of civilians that followed, the
troops were generally again employed merely to aid, and not to
supplant, the civilian authorities. [
Footnote 18] The last noteworthy incident before the
enactment of the Organic Act was the rioting that occurred in the
Summer of 1892 at the Coeur-d'Alene mines of Shoshone County,
Idaho. The President ordered the regular troops to report to the
Governor for instructions and to support the civil authorities in
preserving the peace. Later, the State Auditor, as agent of
Page 327 U. S. 322
the Governor, and not the Commanding General, ordered the troops
to detain citizens without trial and to aid the Auditor in doing
all he thought necessary to stop the riot. [
Footnote 19] Once more, the military authorities
did not undertake to supplant the courts and to establish military
tribunals to try and punish ordinary civilian offenders. [
Footnote 20]
Courts and their procedural safeguards are indispensable to our
system of government. They were set up by our founders to protect
the liberties they valued.
Ex part Quirin, 317 U. S.
1,
317 U. S. 19. Our
system of government clearly is the antithesis of total military
rule, and the founders of this country are not likely to have
contemplated complete military dominance within the limits of a
Territory made part of this country and not recently taken from an
enemy. They were opposed to governments that placed in the hands of
one man the power to make, interpret, and enforce the laws. Their
philosophy has been the people's throughout our history. For that
reason, we have maintained legislatures chosen by citizens or their
representatives and courts and juries to try those who violate
legislative enactments. We have always been especially concerned
about the potential evils of summary criminal trials, and have
guarded against them by provisions embodied in the constitution
itself.
See Ex parte
Milligan, 4 Wall. 2;
Chambers v. Florida,
309 U. S. 227.
Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government.
Military tribunals have no such standing. For as this Court has
said before:
". . . the military should always
Page 327 U. S. 323
be kept in subjection to the laws of the country to which it
belongs, and that he is no friend to the Republic who advocates the
contrary. The established principle of every free people is that
the law shall alone govern, and to it the military must always
yield."
Dow v. Johnson, 100 U. S. 158,
100 U. S. 169.
Congress, prior to the time of the enactment of the Organic Act,
had only once authorized the supplanting of the courts by military
tribunals. Legislation to that effect was enacted immediately after
the South's unsuccessful attempt to secede from the Union. Insofar
as that legislation applied to the Southern States after the war
was at an end, it was challenged by a series of Presidential vetoes
as vigorous as any in the country's history. [
Footnote 21] And, in order to prevent this Court
from passing on the constitutionality of this legislation, Congress
found it necessary
Page 327 U. S. 324
to curtail our appellate jurisdiction. [
Footnote 22] Indeed, prior to the Organic Act,
the only time this Court had ever discussed the supplanting of
courts by military tribunals in a situation other than that
involving the establishment of a military government over recently
occupied enemy territory, it had emphatically declared that "civil
liberty and this kind of martial law cannot endure together; the
antagonism is irreconcilable, and, in the conflict, one or the
other must perish."
Ex parte
Milligan, 4 Wall. 2,
71 U. S.
124-125.
We believe that, when Congress passed the Hawaiian Organic Act
and authorized the establishment of "martial law," it had in mind
and did not wish to exceed the boundaries between military and
civilian power in which our people have always believed, which
responsible military and executive officers had heeded, and which
had become part of our political philosophy and institutions prior
to the time Congress passed the Organic Act. The phrase "martial
law," as employed in that Act, therefore, while intended to
authorize the military to act vigorously for the maintenance of an
orderly civil government and for the defense of the island against
actual or threatened rebellion or invasion, was not intended to
authorize the supplanting of courts by military tribunals. Yet the
government seeks to justify the punishment of both White and Duncan
on the ground of such supposed Congressional authorization. We hold
that both petitioners are now entitled to be released from
custody.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of these cases.
* Together with No. 15,
White v. Steer, Provost
Marshal, on certiorari to the same court, argued and decided
on the same dates.
[
Footnote 1]
"That the governor shall be responsible for the faithful
execution of the laws of the United States and of the Territory of
Hawaii within the said Territory, and, whenever it becomes
necessary, he may call upon the commanders of the military and
naval forces of the United States in the Territory of Hawaii, or
summon the posse commitatus, or call out the militia of the
Territory to prevent or suppress lawless violence, invasion,
insurrection, or rebellion in said Territory, and he may, in case
of rebellion or invasion, or imminent danger thereof, when the
public safety requires it, suspend the privilege of the writ of
habeas corpus, or place the Territory or any part thereof, under
martial law until communication can be had with the President and
his decision thereon made known."
[
Footnote 2]
The District Court heard much evidence, and from it found as
follows on this subject:
"By radio, the Governor of Hawaii, on December 7, 1941, notified
the President of the United States simply that he had placed the
Territory under martial law and suspended the writ. The President's
approval was requested, and it was granted by radio on December 8,
1941. Not until 1943 was the text of the Governor's December 7
proclamation furnished Washington officials, and it is still
doubtful if it has yet been seen by the President."
[
Footnote 3]
In addition, § 3 of a Proclamation of February 8, 1943, which
returned some power to the civil authorities, had reserved a right
in the Military Governor to resume any or all of the powers
returned to the civilian government. In approving this
Proclamation, the President had expressed his confidence that the
Military would "refrain from exercising . . . authority over . . .
normally civil functions" and his hope that there would "be a
further restoration of civil authority as and when the situation
permits."
[
Footnote 4]
We do not set out the other grounds of challenge, since, under
the view we take, we do not reach them.
[
Footnote 5]
The Government points out that, since the privilege of the writ
was restored and martial law terminated by Presidential
proclamation on October 24, 1944, No. 2627, petitioners are
entitled to their liberty if the military tribunals were without
jurisdiction to try them. We therefore do not pass upon the
validity of the order suspending the privilege of habeas corpus or
the power of the military to detain persons under other
circumstances and conditions.
[
Footnote 6]
Wilkes v.
Dinsman, 7 How. 89;
Ex parte Reed,
100 U. S. 13;
Martin v. Mott,
12 Wheat. 19;
In re Grimley, 137 U.
S. 147;
Johnson v. Sayre, 158 U.
S. 109;
Carter v. McClaughry, 183 U.
S. 365.
[
Footnote 7]
Ex parte Gerlach, 247 F. 616;
Ex parte Falls,
251 F. 415;
Ex parte Jochen, 257 F. 200;
Hines v.
Mikell, 259 F. 28.
See cases and statutes collected
and discussed in Underhill,
supra, 12 Cal.L.Rev.
81-98.
[
Footnote 8]
Ex parte Quirin, 317 U. S. 1;
In
re Yamashita, 327 U. S. 1.
See 10 U.S.C. §§ 1553, 1554.
See also cases and
statutes collected and discussed in Underhill,
infra,
note 11 12 Cal.L.Rev.
81-98.
[
Footnote 9]
Cross v.
Harrison, 16 How. 164;
Leitensdorfer v.
Webb, 20 How. 176;
The Prize
Cases, 2 Black 635;
In re Mrs.
Alexander's Cotton, 2 Wall. 404;
Ford v.
Surget, 97 U. S. 594,
97 U. S. 604;
New Orleans v. Steamship
Co., 20 Wall. 387,
87 U. S. 393,
22 L. Ed. 354 Dow v. Johnson,
100 U. S. 158,
100 U. S. 166;
The Grapeshot,
9 Wall. 129;
Mechanics' & Traders' Bank
v. Union Bank, 22 Wall. 276. Nor is this a case
where violators of military orders are to be tried by regular
courts.
Cf. Hirabayashi v. United States, 320 U. S.
81.
[
Footnote 10]
Moyer v. Peabody, 212 U. S. 78;
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 125-126;
Luther v.
Borden, 7 How. 1,
48 U. S. 45-46;
see Sterling v. Constantin, 287 U.
S. 378,
287 U. S. 400;
Fairman, The Law of Martial Rule, Chicago 1943, 209-218.
[
Footnote 11]
For discussions of the great contrast of views,
see the
following writings: Fairman,
supra, Ch. II; Wiener, A
Practical Manual of Martial Law, Harrisburg 1940, Ch. 1; Military
Aid to the Civil Power, Fort Leavenworth 1925, pp. 230-232;
Underhill, Jurisdiction of Military Tribunals in the United States
over Civilians, (1924) 12 Cal.L.Rev. 75, 163-178; Ballentine,
Qualified Martial Law (1915) 14 Mich.L.Rev. 102, 203, 204; Max
Radin, Martial Law and the Siege (1942) 30 Cal.L.Rev. 634.
[
Footnote 12]
We point out in this connection that, by Section 83 of the
Organic Act, Congress provided how juries should be constituted and
provided for the drawing of grand juries and for unanimous jury
verdicts in criminal cases. 31 Stat. 141, 157.
[
Footnote 13]
Government for the Territory of Hawaii, H.Rep. No.305,
56th Cong., 1st Sess., p. 10. In the House, Representative Knox,
the Republican leader for the bill, stated:
"This bill, in so many words, extends the Constitution to
Hawaii, so that there has not been practically a moment of time
since the Hawaiian Islands were annexed to the United States that
the Constitution has not been the standard by which all the laws of
that country must be measured. . . .
The decisions of the
Supreme Court of the United States will be equally operative in
Hawaii as in any portion of the United States as to any
constitutional rights which he possesses."
33 Cong.Rec. 3800 (1900).
See the following decisions
of this Court relating to the applicability of the Constitution to
United States Territories.
Hawaii v. Mankichi,
190 U. S. 197;
Rassmussen v. United States, 197 U.
S. 516;
Farrington v. Tokushige, 273 U.
S. 284.
See also Frank,
Ex Parte
Milligan v. The Five Companies: Martial Law in Hawaii (1944)
44 Col.L.Rev. 639, 658-660.
[
Footnote 14]
3 Chas. 1, c. 1.
[
Footnote 15]
Hallam, Constitutional History, c. 3.
See also
discussions in dissent in
Luther v.
Borden, 7 How. 1,
48 U. S. 48,
48 U. S. 63;
In re McDonald, 49 Mont. 454, 468, 143 P. 947.
[
Footnote 16]
Federal Aid in Domestic Disturbances, Senate Document No. 263,
67th Cong., 2d Sess., 10.
[
Footnote 17]
Id. pp. 31, 32.
See also, on the same subject,
the dissent in
Luther v. Borden, supra, 7 How. at
48 U. S.
77-81.
[
Footnote 18]
This appears from the facts related throughout Senate Document
No. 263, 67th Cong., 2d Sess.,
supra.
After the passing of the Organic Act, disturbances in the coal
fields of West Virginia, a longshoremen's strike in Galveston, and
a packers' strike in Nebraska City all led to criminal trials of
civilians by military tribunals which were upheld by decisions of
state and lower federal courts.
State ex rel. Mays v.
Brown, 71 W.Va. 519, 77 S.E. 243;
Ex parte Jones, 71
W.Va. 567, 77 S.E. 1029;
United States ex rel. McMasters v.
Wolters, 268 F. 69;
United States ex rel. Seymour v.
Fischer, 280 F. 208.
But cf. In re McDonald, supra,
49 Mont. 454, 143 P. 947. All these cases rested on the ground that
the governor's determination of the existence of insurrection
conclusively established that all the governor had done was legal.
The basis of these decisions was definitely held erroneous in
Sterling v. Constantin, 287 U. S. 378,
where this Court said:
"What are the allowable limits of military discretion, and
whether or not they have been overstepped in a particular case, are
judicial questions."
287 U.S. at
287 U. S. 401.
As one commentator puts it, this Court "has knocked out the prop"
on which these aforementioned cases rested. Wiener, A Practical
Manual of Martial Law, 1940, p. 116.
[
Footnote 19]
Senate Document No. 263, 67th Cong., 2d Sess., 190 ff.
[
Footnote 20]
Even as late as 1937, when the War Department promulgated
regulations concerning the employment of troops in aid of civil
authorities, it was aware of this tradition. A.R. 500-50, � 7e
stated:
". . . Persons not normally subject to military law, taken into
custody by the military forces incident to the use of troops
contemplated by these regulations, should be turned over to the
civil authorities. Punishment in such cases belongs to the courts
of justice, and not to the armed forces."
But cf. A.R. 500-50, � 8.
[
Footnote 21]
In one of these vetoes, President Johnson said:
"The trials having their origin under this bill are to take
place without the intervention of a jury and without any fixed
rules of law or evidence. The rules on which offenses are to be
'heard and determined' by the numerous agents are such rules and
regulations as the President, through the War Department, shall
prescribe. No previous presentment is required, nor any indictment
charging the commission of a crime against the laws, but the trial
must proceed on charges and specifications. The punishment will be
not what the law declares, but such as a court-martial may think
proper, and from these arbitrary tribunals there lies no appeal, no
writ of error to any of the courts in which the Constitution of the
United States vests exclusively the judicial power of the
country."
Messages and Papers of the Presidents, Richardson, Vol. VI, 399.
In another, he said:
"It is plain that the authority here given to the military
officer amounts to absolute despotism. But, to make it still more
unendurable, the bill provides that it may be delegated to as many
subordinates as he chooses to appoint, for it declares that he
shall 'punish or cause to be punished.' Such a power has not been
wielded by any monarch in England for more than five hundred years.
. . . This broad principle limits all our functions, and applies to
all subjects. It protects not only the citizens of States which are
within the Union, but it shields every human being who comes or is
brought under our jurisdiction. We have no right to do in one place
more than in another that which the Constitution says we shall not
do at all."
Id. pp. 502-503.
[
Footnote 22]
In re
McCardle, 6 Wall. 318.
See also Warren,
The Supreme Court in United States History, Vol. 2, 464, 484.
MR. JUSTICE MURPHY, concurring.
The Court's opinion, in which I join, makes clear that the
military trials in these cases were unjustified by the
Page 327 U. S. 325
martial law provisions of the Hawaiian Organic Act. Equally
obvious, as I see it, is the fact that these trials were forbidden
by the Bill of Rights of the Constitution of the United States,
which applies in both spirit and letter to Hawaii. Indeed, the
unconstitutionality of the usurpation of civil power by the
military is so great in this instance as to warrant this Court's
complete and outright repudiation of the action.
Abhorrence of military rule is ingrained in our form of
government. Those who founded this nation knew full well that the
arbitrary power of conviction and punishment for pretended offenses
is the hallmark of despotism.
See The Federalist, No. 83.
History had demonstrated that fact to them time and again. They
shed their blood to win independence from a ruler who they alleged
was attempting to render the "military independent of and superior
to the civil power" and who was "depriving us of the benefits of
trial by jury." In the earliest state constitutions, they inserted
definite provisions placing the military under "strict
subordination" to the civil power at all times and in all cases.
And, in framing the Bill of Rights of the Federal Constitution,
they were careful to make sure that the power to punish would rest
primarily with the civil authorities at all times. They believed
that a trial by an established court, with an impartial jury, was
the only certain way to protect an individual against oppression.
The Bill of Rights translated that belief into reality by
guaranteeing the observance of jury trials and other basic
procedural rights foreign to military proceedings. This supremacy
of the civil over the military is one of our great heritages. It
has made possible the attainment of a high degree of liberty
regulated by law, rather than by caprice. Our duty is to give
effect to that heritage at all times, that it may be handed down
untarnished to future generations.
Such considerations led this Court, in
Ex parte
Milligan, 4 Wall. 2, to lay down the rule that the
military lacks
Page 327 U. S. 326
any constitutional power in war or in peace to substitute its
tribunals for civil courts that are open and operating in the
proper and unobstructed exercise of their jurisdiction. Only when a
foreign invasion or civil war actually closes the courts and
renders it impossible for them to administer criminal justice can
martial law validly be invoked to suspend their functions. Even the
suspension of power under those conditions is of a most temporary
character.
"As necessity creates the rule, so it limits its duration, for,
if this government is continued
after the courts are
reinstated, it is a gross usurpation of power."
Id., 71 U. S. 127.
Tested by the
Milligan rule, the military proceedings
in issue plainly lacked constitutional sanction. Petitioner White
was arrested for embezzlement on August 20, 1942, by the provost
marshal. Two days later, he was orally informed of the charges
against him. Various motions, including a request for a jury trial
and for time to prepare a defense, were overruled. On August 25 he
was convicted and sentenced to five years in prison. Petitioner
Duncan was accorded similar streamlined treatment by the military.
On February 20, 1944, he engaged in a fight with two armed sentries
at the Navy Yard at Honolulu. He was promptly tried without a jury
in the provost court on March 2 and sentenced to six months at hard
labor, despite his plea of self-defense. Both the petitioners were
civilians entitled to the full protection of the Bill of Rights,
including the right to jury trial.
It is undenied that the territorial courts of Hawaii were open
and functioning during the period when the foregoing events took
place. Martial law was proclaimed on December 7, 1941, immediately
after the attack on Pearl Harbor; provost courts and military
commissions were immediately established for the trial of civilians
accused of crime. General Orders No. 4. On the next day, December
8, the territorial courts were closed by military
Page 327 U. S. 327
order. Thereafter, criminal cases of all description, whether
involving offenses against federal or territorial law or violations
of military orders, were handled in the provost courts and military
commissions. Eight days later, however, the military permitted the
reopening of the courts for the trial of limited classes of cases
not requiring juries or the subpoenaing of witnesses. General
Orders No. 29. On January 27, 1942, further power was restored to
the courts by designating them "as agents of the Military Governor"
to dispose of civil cases except those involving jury trials,
habeas corpus, and other specified matters, and to exercise
criminal jurisdiction in limited types of already pending cases.
General Orders No. 57. Protests led to the issuance of General
Orders No. 133 on August 31, 1942, expanding the jurisdiction of
civil courts to cover certain types of jury trials. But General
Orders No. 135, issued on September 4, 1942, continued military
jurisdiction over offenses directed against the Government or
related to the war effort. Proclamations on February 8, 1943,
provided that the jurisdiction of the courts was to be
reestablished in full except in cases of criminal and civil suits
against persons in the armed forces and except for "criminal
prosecutions for violations of military orders." These
proclamations became effective on March 10, together with a revised
code of military orders. Martial law was finally lifted from Hawaii
on October 24, 1944.
There can be no question but that, when petitioners White and
Duncan were subjected to military trials on August 25, 1942, and
March 2, 1944, respectively, the territorial courts of Hawaii were
perfectly capable of exercising their normal criminal jurisdiction
had the military allowed them to do so. The Chief Justice of the
Supreme Court of Hawaii stated that, after the month of April,
1942, he knew of "no sound reason for denial of trial by jury to
civilians charged with criminal offense under the
Page 327 U. S. 328
laws of the Territory." The Governor of the Territory also
testified that the trial of civilians before military courts for
offenses against the laws of the Territory was unnecessary and
unjustified by the conditions in the Territory when petitioner
White was charged with embezzlement in August, 1942. In short, the
Bill of Rights disappeared by military fiat, rather than by
military necessity.
Moreover, there is no question here as to the loyalty of the
Hawaiian judiciary or as to the desire and ability of the judges to
cooperate fully with military requirements. There is no evidence of
disorder in the community which might have prevented the courts
from conducting jury trials. As was said in the
Milligan
case, p.
71 U. S. 127,
"It is difficult to see how the safety of the country required
martial law in Indiana [Hawaii]. If any of her citizens were
plotting treason, the power of arrest could secure them until the
government was prepared for their trial when the courts were open
and ready to try them. It was as easy to protect witnesses before a
civil as a military tribunal, and, as there could be no wish to
convict except on sufficient legal evidence, surely an ordained and
established court was better able to judge of this than a military
tribunal composed of gentlemen not trained to the profession of the
law."
Thus, since the courts were open and able to function, the
military trials of the petitioners were in violation of the
Constitution. Whether, if the courts had been closed by necessity,
the military could have tried the petitioners or merely could have
held them until the courts reopened is a constitutional issue
absent from these cases.
The so-called "open court" rule of the
Milligan case,
to be sure, has been the subject of severe criticism, especially by
military commentators. That criticism is repeated by the Government
in these cases. It is said that the fact that courts are open is
but one of many factors relevant to determining the necessity, and
hence the constitutionality,
Page 327 U. S. 329
of military trials of civilians. The argument is made that
however adequate the "open court" rule may have been in 1628 or
1864, it is distinctly unsuited to modern warfare conditions where
all of the territories of a warring nation may be in combat zones
or imminently threatened with long-range attack even while civil
courts are operating. Hence, if a military commander, on the basis
of his conception of military necessity, requires all civilians
accused of crime to be tried summarily before martial law
tribunals, the Bill of Rights must bow humbly to his judgment
despite the unquestioned ability of the civil courts to exercise
their criminal jurisdiction.
The argument thus advanced is as untenable today as it was when
cast in the language of the Plantagenets, the Tudors, and the
Stuarts. It is a rank appeal to abandon the fate of all our
liberties to the reasonableness of the judgment of those who are
trained primarily for war. It seeks to justify military usurpation
of civilian authority to punish crime without regard to the potency
of the Bill of Rights. It deserves repudiation.
The untenable basis of this proposed reversion back to unlimited
military rule is revealed by the reasons advanced in support of the
reasonableness of the military judgment that it was necessary, even
though the civil courts were open and fully able to perform their
functions, to impose military trials on all persons accused of
crime in Hawaii at the time when the petitioners were tried and
convicted:
First. According to the testimony of Admiral Nimitz and
General Richardson, Hawaii was in the actual theater of war from
December 7, 1941, through the period in question. They stated that
there was at all times a danger of invasion, at least in the nature
of commando raids or submarine attacks, and that public safety
required the imposition of martial law. For present purposes, it is
unnecessary to dispute any of such testimony. We may
Page 327 U. S. 330
assume that the threat to Hawaii was a real one; we may also
take it for granted that the general declaration of martial law was
justified. But it does not follow from these assumptions that the
military was free under the Constitution to close the civil courts
or to strip them of their criminal jurisdiction, especially after
the initial shock of the sudden Japanese attack had been
dissipated.
From time immemorial, despots have used real or imagined threats
to the public welfare as an excuse for needlessly abrogating human
rights. That excuse is no less unworthy of our traditions when used
in this day of atomic warfare or at a future time when some other
type of warfare may be devised. The right to jury trial and the
other constitutional rights of an accused individual are too
fundamental to be sacrificed merely through a reasonable fear of
military assault. There must be some overpowering factor that makes
a recognition of those rights incompatible with the public safety
before we should consent to their temporary suspension. If those
rights may safely be respected in the face of a threatened
invasion, no valid reason exists for disregarding them. In other
words, the civil courts must be utterly incapable of trying
criminals or of dispensing justice in their usual manner before the
Bill of Rights may be temporarily suspended.
"Martial law [in relation to closing the courts] cannot arise
from a threatened invasion. The necessity must be actual and
present; the invasion real, such as effectually closes the courts
and deposes the civil administration."
Ex parte Milligan, supra, 71 U. S. 127.
Second. Delays in the civil courts and slowness in
their procedure are also cited as an excuse for shearing away their
criminal jurisdiction, although lack of knowledge of any undue
delays in the Hawaiian courts is admitted. It is said that the
military
"cannot brook a delay,' and that 'the punishment must be swift;
there is an element of time in it, and we cannot afford to let the
trial linger
Page 327 U. S. 331
and be protracted."
This military attitude toward constitutional processes is not
novel. Civil liberties and military expediency are often
irreconcilable. It does take time to secure a grand jury
indictment, to allow the accused to procure and confer with
counsel, to permit the preparation of a defense, to form a petit
jury, to respect the elementary rules of procedure and evidence,
and to judge guilt or innocence according to accepted rules of law.
But experience has demonstrated that such time is well spent. It is
the only method we have of insuring the protection of
constitutional rights and of guarding against oppression. The swift
trial and punishment which the military desires is precisely what
the Bill of Rights outlaws. We would be false to our trust if we
allowed the time it takes to give effect to constitutional rights
to be used as the very reason for taking away those rights. It is
our duty, as well as that of the military, to make sure that such
rights are respected whenever possible, even though time may be
consumed.
Third. It is further said that the issuance of military
orders relating to civilians required that the military have at its
disposal some sort of tribunal to enforce those regulations. Any
failure to civil courts to convict violators of such regulations
would diminish the authority and ability to discharge military
responsibilities. This is the ultimate and most vicious of the
arguments used to justify military trials. It assumes without proof
that civil courts are incompetent, and are prone to free those who
are plainly guilty. It assumes further that, because the military
may have the valid power to issue regulations, there must be an
accompanying power to punish the violations of those regulations;
the implicit and final assumption is then made that the military
must have power to punish violations of all other statutes and
regulations. Nothing is more inconsistent with our form of
government, with its distinction between the power to promulgate
law and the power
Page 327 U. S. 332
to punish violations of the law. Application of this doctrine
could soon lead to the complete elimination of civil jurisdiction
over crime.
Moreover, the mere fact that it may be more expedient and
convenient for the military to try violators of its own orders
before its own tribunals does not and should not furnish a
constitutional basis for the jurisdiction of such tribunals when
civil courts are in fact functioning or are capable of functioning.
Constitutional rights are rooted deeper than the wishes and desires
of the military.
Fourth. Much is made of the assertion that the civil
courts in Hawaii had no jurisdiction over violations of military
orders by civilians, and the military courts were therefore
necessary. Aside from the fact that the civil courts were ordered
not to attempt to exercise such jurisdiction, it is sufficient to
note that Congress, on March 21, 1942, vested in the federal courts
jurisdiction to enforce military orders with criminal penalties. 56
Stat. 173. It is undisputed that the federal court in Hawaii was
open at all times in issue, and was capable of exercising criminal
jurisdiction. That the military refrained from using the statutory
framework which Congress erected affords no constitutional
justification for the creation of military tribunals to try such
violators.
Fifth. Objection is made to the enforcement in civil
courts of military orders on the ground that it would subject the
military to "all sorts of influences, political and otherwise, as
happened in the cases on the east coast in both Philadelphia and
Boston," and that "it is inconceivable that the military commander
should be subjected for the enforcement of his orders to the
control of other agents." This is merely a military criticism of
the proposition that, in this nation, the military is subordinate
to the civil authority. It does not qualify as a recognizable
reason for closing the civil courts to criminal cases.
Page 327 U. S. 333
Sixth. Further objection is made that the holding of
civil trials might interrupt vital work through the attendance as
jurors of war workers. This also is too unmeritorious to warrant
serious or lengthy discussion. War workers could easily have been
excused from jury duty by military order, if necessary.
Seventh. The final reason advanced relates to the
testimony of military leaders that Hawaii is said to have a
"heterogeneous population, with all sorts of affinities and
loyalties which are alien, in many cases, to the philosophy of life
of the American Government,"
one-third of the civilian population being of Japanese descent.
The Court below observed, 146 F.2d 576, 580, that
"Governmental and military problems alike were complicated by
the presence in the Territory of tens of thousands of citizens of
Japanese ancestry, besides large numbers of aliens of the same
race. Obviously the presence of so many inhabitants of doubtful
loyalty posed a continuing threat to the public security. Among
these people the personnel of clandestine landing parties might
mingle freely, without detection. Thus was afforded ideal cover for
the activities of the saboteur and the spy. . . . To function in
criminal matters, the civilian courts must assemble juries, and
citizens of Japanese extraction could not lawfully be excluded from
jury panels on the score of race -- even in cases of offenses
involving the military security of the Territory. Indeed, the mere
assembling of juries and the carrying on of protracted criminal
trials might well constitute an invitation to disorder, as well as
interference with the vital business of the moment."
The Government adds that many of the military personnel
stationed in Hawaii were unaccustomed to living in such a
community, and that "potential problems" created in Hawaii by
racially mixed juries in criminal cases have heretofore been
recognized, "although, on the whole, it has been found that members
of such mixed juries have not acted on a racial basis."
Page 327 U. S. 334
The implication apparently is that persons of Japanese descent,
including those of American background and training, are of such
doubtful loyalty as a group as to constitute a menace justifying
the denial of the procedural rights of all accused persons in
Hawaii. It is also implied that persons of Japanese descent are
unfit for jury duty in Hawaii, and that the problems arising when
they serve on juries are so great as to warrant dispensing with the
entire jury system in Hawaii if the military so desires. The lack
of any factual or logical basis for such implications is clear. It
is a known fact that there have been no recorded acts of sabotage,
espionage, or fifth column activities by persons of Japanese
descent in Hawaii either on or subsequent to December 7, 1941.
There was thus no security reason for excluding them from juries,
even making the false assumption that it was impossible to separate
the loyal from the disloyal. And if there were problems arising
from the use of racially mixed juries, elimination of all jury
trials was hardly a reasonable or sensible answer to those
problems. Especially deplorable, however, is this use of the
iniquitous doctrine of racism to justify the imposition of military
trials. Racism has no place whatever in our civilization. The
Constitution as well as the conscience of mankind disclaims its use
for any purpose, military or otherwise. It can only result, as it
does in this instance, in striking down individual rights and in
aggravating, rather than solving the problems toward which it is
directed. It renders impotent the ideal of the dignity of the human
personality, destroying something of what is noble in our way of
life. We must therefore reject it completely whenever it arises in
the course of a legal proceeding.
The reasons here advanced for abandoning the "open court" rule
of the
Milligan case are without substance. To retreat
from that rule is to open the door to rampant militarism and the
glorification of war, which have destroyed
Page 327 U. S. 335
so many nations in history. There is a very necessary part in
our national life for the military; it has defended this country
well in its darkest hours of trial. But militarism is not our way
of life. It is to be used only in the most extreme circumstances.
Moreover, we must be on constant guard against an excessive use of
any power, military or otherwise, that results in the needless
destruction of our rights and liberties. There must be a careful
balancing of interests. And we must ever keep in mind that
"[t]he Constitution of the United States is a law for rulers and
people, equally in war and in peace, and covers with the shield of
its protection all classes of men at all times, and under all
circumstances."
Ex parte Milligan, supra, 71 U. S.
120-121.
MR. CHIEF JUSTICE STONE, concurring.
I concur in the result.
I do not think that "martial law," as used in § 67 of the
Hawaiian Organic Act, is devoid of meaning. This Court has had
occasion to consider its scope, and has pointed out that martial
law is the exercise of the power which resides in the executive
branch of the government to preserve order and insure the public
safety in times of emergency, when other branches of the government
are unable to function, or their functioning would itself threaten
the public safety.
Luther v.
Borden, 7 How. 1,
48 U. S. 45. It is
a law of necessity to be prescribed and administered by the
executive power. Its object, the preservation of the public safety
and good order, defines its scope, which will vary with the
circumstances and necessities of the case. The exercise of the
power may not extend beyond what is required by the exigency which
calls it forth.
54 U. S.
Harmony, 13 How. 115,
54 U. S. 133;
United States v.
Russell, 13 Wall. 623,
80 U. S. 628;
Raymond v. Thomas, 91 U. S. 712,
91 U. S. 716;
Sterling v. Constantin, 287 U. S. 378,
287 U. S.
400-401. Any doubts that might be entertained
Page 327 U. S. 336
that such is the true limit of martial law in this case are put
at rest by § 67 of the Hawaiian Organic Act, which, "in case of
rebellion or invasion, or imminent danger thereof," authorizes
martial law only "when the public safety requires it."
The Executive has broad discretion in determining when the
public emergency is such as to give rise to the necessity of
martial law, and in adapting it to the need.
Cf. Hirabayashi v.
United States, 320 U. S. 81. But
executive action is not proof of its own necessity, and the
military's judgment here is not conclusive that every action taken
pursuant to the declaration of martial law was justified by the
exigency. In the substitution of martial law controls for the
ordinary civil processes, "what are the allowable limits of
military discretion, and whether or not they have been overstepped
in a particular case, are judicial questions."
Sterling v.
Constantin, supra, 287 U. S.
401.
I take it that the Japanese attack on Hawaii on December 7,
1941, was an "invasion" within the meaning of § 67. But it began
and ended long before these petitioners were tried by military
tribunals in August, 1942, and February, 1944. I assume that there
was danger of further invasion of Hawaii at the times of those
trials. I assume also that there could be circumstances in which
the public safety requires, and the Constitution permits,
substitution of trials by military tribunals for trials in the
civil courts. But the record here discloses no such conditions in
Hawaii, at least during the period after February, 1942, and the
trial court so found. After closing places of amusement, and after
closing the civil courts on December 8, 1941, the military
authorities, on December 24, 1941, ordered places of amusement to
be opened. On January 27, 1942, they permitted the courts to
exercise their normal functions except as to jury trials and the
issuance of writs of habeas corpus. On February 4, 1942, they
authorized the sale of liquor at bars.
Page 327 U. S. 337
The full record in this case shows the conditions prevailing in
Hawaii throughout 1942 and 1943. It demonstrates that, from
February, 1942, on, the civil courts were capable of functioning,
and that trials of petitioners in the civil courts no more
endangered the public safety than the gathering of the populace in
saloons and places of amusement, which was authorized by military
order. I find nothing in the entire record which would fairly
suggest that the civil courts were unable to function with their
usual efficiency at the times these petitioners were tried, or that
their trial by jury in a civil court would have endangered good
order or the public safety. The Governor of Hawaii and the Chief
Justice of the Hawaiian Supreme Court testified to the contrary.
The military authorities themselves testified, and advanced no
reason which has any bearing on public safety or good order for
closing the civil courts to the trial of these petitioners, or for
trying them in military courts. I can only conclude that the trials
and the convictions upon which petitioners are now detained, were
unauthorized by the statute, and without lawful authority.
We have no occasion to consider whether the arrest and detention
of petitioners by the military authorities, pending their delivery
to the civil authorities for trial, would have been lawful. The
judgment of the Circuit Court of Appeals should be reversed, and
the petitioners discharged from custody forthwith.
MR. JUSTICE BURTON, with whom MR. JUSTICE FRANKFURTER concurs,
dissenting.
With the rest of this Court, I subscribe unreservedly to the
Bill of Rights. I recognize the importance of the civil courts in
protecting individual rights guaranteed by the Constitution. I
prefer civil to military control of civilian life, and I agree
that, in war, our Constitution contemplates the preservation of the
individual rights of all
Page 327 U. S. 338
of our people in accordance with a plan of constitutional
procedure fitted to the needs of a self-governing republic at
war.
Our Constitution expressly provides for waging war, and it is
with the constitutional instruments for the successful conduct of
war that I am concerned. I recognize here, as elsewhere, the
constitutional direction that our respective branches of the
Government do not exceed their allotted shares of authority. The
courts, as well as our other agencies of the Government,
accordingly owe a constitutional obligation not to invade the
fields reserved either to the people, the states, or the other
coordinate branches of the Government. The courts have an
obligation to help define and protect the discretion with which the
people have invested their legislative and executive
representatives. Within their proper spheres, the robust strength
and freedom of action allowed to the policymaking and policy
executing agencies of our Government are as vital to the success of
our great experiment in securing "the blessings of liberty to
ourselves and our posterity" as are the checks and balances which
have been imposed upon our representatives. It is in the
application of these views to the cases before us that I am obliged
to dissent from the majority of this Court, and to sound a note of
warning against the dangers of over-expansion of judicial control
into the fields allotted by the Constitution to agencies of
legislative and executive action.
The controlling facts in the cases before us are the
extraordinary conditions created by the surprise Japanese invasion
by air of Pearl Harbor on December 7, 1941. Visualizing the
devastating success of that attack and the desperate conditions
resulting from it, the primary question is what discretionary
action by the executive branch of our Government, including the
Army and Navy, was permissible on that day and in the period
following it.
Page 327 U. S. 339
Pearl Harbor and the Hawaiian Islands were the key to America's
defenses in the Pacific. The attack of December 7th destroyed more
of America's naval forces than our Government felt it safe to
announce. America's first line of defense was pierced. The attack
demonstrated that it was part of a carefully planned major military
operation against not only Hawaii, but the United States.
Presumably it would be pressed further. It might well be followed
by a land invasion of the Islands and by aerial attacks upon their
centers of population. [
Footnote
2/1]
Page 327 U. S. 340
Handicapped by major losses of air and sea power, the commander
of this isolated outpost was faced with imminent danger of further
invasions under conditions calling for a desperate defense of the
Islands. The Islands suddenly had become the focal point of a major
action which converted them into an outpost of critical military
importance to the world in general and to the United States in
particular. Their invasion and possible capture overshadowed every
other consideration. The Islands were a white-hot center of war
ready to burst into flames.
Military attack by air, sea, and land was to be expected. The
complete disregard of international law evidenced
Page 327 U. S. 341
by the first attack and the possible presence on the Islands of
many Japanese collaborators gave warning that the enemy's next move
might take the form of disastrous sabotage and terrorism among
civilians. The extraordinary breach of international law evidenced
by the attack made it essential to take extraordinary steps to
protect the Islands against subversive action that might spring
from deeply laid plans as secret, well aimed, and destructive as
the original attack.
On December 7 and in the period immediately following, every
inch of the Territory of Hawaii was like a frontier stockade under
savage attack with notice that such attack would not be restrained
by the laws of civilized
Page 327 U. S. 342
nations. [
Footnote 2/2] Measures
of defense had to be taken on the basis that anything could happen.
The relation of the Constitution of the United States to such a
situation is important. Of course, the Constitution is not put
aside. It was written by a generation fresh from war. The people
established a more perfect union, in part, so that they might the
better defend themselves from military attack. In doing so, they
centralized far more military power and responsibility in the Chief
Executive than previously had been done. The Constitution was built
for rough as well as smooth roads. In time of war, the nation
simply changes gears and takes the harder going under the same
power.
The conduct of war under the Constitution is largely an
executive function. Within the field of military action in time of
war, the executive is allowed wide discretion. While, even in the
conduct of war, there are many lines of jurisdiction to draw
between the proper spheres of legislative, executive, and judicial
action, it seems clear that, at least on an active battlefield, the
executive discretion to determine policy is there intended by the
Constitution to be supreme. The question then arises: what is a
battlefield and how long does it remain one after the first
barrage?
It is well that the outer limits of the jurisdiction of our
military authorities is subject to review by our courts even under
such extreme circumstances as those of the battlefield. This,
however, requires the courts to put themselves as nearly as
possible in the place of those who had the
Page 327 U. S. 343
constitutional responsibility for immediate executive action.
For a court to recreate a complete picture of the emergency is
impossible. That impossibility demonstrates the need for a zone of
executive discretion within which courts must guard themselves with
special care against judging past military action too closely by
the inapplicable standards of judicial, or even military,
hindsight. The nature of judicial authority is largely negative, as
contrasted with the generally positive nature of executive
authority, and it is essential that the opportunity for well
directed positive action be preserved and vigorously used if the
Government is to serve the best interests of the people.
For this Court to intrude its judgment into spheres of
constitutional discretion that are reserved either to the Congress
or to the Chief Executive is to invite disregard of that judgment
by the Congress or by executive agencies under a claim of
constitutional right to do so. On the other hand, this Court can
contribute much to the orderly conduct of government if it will
outline reasonable boundaries for the discretion of the respective
departments of the Government, with full regard for the limitations
and also for the responsibilities imposed upon them by the
Constitution.
It is important to approach the present cases with a full
appreciation of the responsibility of the executive branch of the
Government in Hawaii under the invasion which occurred on December
7, 1941. The question is not shall the Constitution apply under
such circumstances? The question is with what authority has the
Constitution and laws of this country vested the official
representatives of the people upon whom are placed the
responsibilities of leadership under those extraordinary
circumstances?
The vital distinction is between conditions in "the theater of
actual military operations" and outside of that
Page 327 U. S. 344
theater. [
Footnote 2/3] In this
case, Hawaii was not only in the theater of operations, it was
under fire. If the Territory of Hawaii, on that date and during the
immediately succeeding period, is recognized as the battlefield it
was, then under such circumstances of invasion and threat of
immediate further invasion, the actions taken by the Governor of
Hawaii and by the Commanding General of the Hawaiian Department,
supported by the President of the United States, in suspending the
writ of habeas corpus, declaring martial law, and vesting in such
Commanding General for those first several days the powers normally
exercised by the Governor and by the judicial officers and
employees of the Territory (at least to the extent
Page 327 U. S. 345
that would be involved in the present cases if they had arisen
at that time), were within the executive discretion of the
officials who authorized the action. The actual presence of battle
in a community creates a substantially different condition from
that which exists in other parts of a nation at war. That
conditions of war and the means of meeting its emergencies were
within the contemplation of the Constitution of the United States
is shown by the broad authority vested in the President of the
United States as Chief Executive and as Commander in Chief of the
Army and Navy, and in the war powers of the Congress and the Chief
Executive to preserve the safety of
Page 327 U. S. 346
the nation in time of war. The present cases arose in a
Territory of the United States, directly under the care and
jurisdiction of the Federal Government. That conditions of actual
invasion were contemplated by Congress in the Organic Act of Hawaii
is seen from the provision quoted in the majority opinion to the
effect that the Governor,
"whenever it becomes necessary, [the Governor] may call upon the
commanders of the military and naval forces of the United States in
the Territory of Hawaii, or summon the posse commitatus, or call
out the militia of the Territory to prevent or suppress lawless
violence, invasion, insurrection, or rebellion in said Territory,
and he may,
in case of rebellion or invasion, or imminent
danger thereof, when the public safety requires it, suspend the
privilege of the writ of habeas corpus, or place the Territory or
any part thereof, under martial law until communication can be had
with the President and his decision thereon made known."
§ 67 of the Hawaiian Organic Act, 31 Stat. 153, 48 U.S.C. § 532.
(Italics supplied.)
The Governor's proclamation demonstrates that, insofar as the
discretion lay in him, he recognized in those days that a condition
had arisen calling for the exercise of these powers. The
proclamation of December 7, 1941, in its every word is the best
evidence of the exercise of this discretion and speaks for
itself:
"Whereas, it is provided by Section 67 of the Organic Act of the
Territory of Hawaii, approved April 30, 1900, that, whenever it
becomes necessary, the Governor of that territory may call upon the
commander of the military forces of the United States in that
territory to prevent invasion; and"
"Whereas, it is further provided by the said section that the
governor may in case of invasion or imminent danger thereof, when
the public safety requires it, suspend the privilege of the writ of
habeas corpus and place the territory under martial law; and "
Page 327 U. S. 347
"Whereas, the armed forces of the Empire of Japan have this day
attacked and invaded the shores of the Hawaiian Islands; and"
"Whereas, it has become necessary to repel such attack and
invasion; and"
"Whereas, the public safety requires;"
"Now, Therefore, I, J. B. Poindexter, Governor of the Territory
of Hawaii, do hereby announce that, pursuant to said section, I
have called upon the Commanding General, Hawaiian Department, to
prevent such invasion;"
"And, pursuant to the same section, I do hereby suspend the
privilege of the writ of habeas corpus until further notice;"
"And, pursuant to the same section, I do hereby place the said
territory under martial law;"
"And, I do hereby authorize and request the Commanding General,
Hawaiian Department, during the present emergency and until the
danger of invasion is removed, to exercise all the powers normally
exercised by me as Governor;"
"And I do further authorize and request the said Commanding
General, Hawaiian Department, and those subordinate military
personnel to whom he may delegate such authority, during the
present emergency and until the danger of invasion is removed, to
exercise the powers normally exercised by judicial officers and
employees of this territory and of the counties and cities therein,
and such other and further powers as the emergency may
require;"
"And I do require all good citizens of the United States and all
other persons within the Territory of Hawaii to obey promptly and
fully, in letter and in spirit, such proclamations, rules,
regulations and orders as the Commanding General, Hawaiian
Department, or his subordinates, may issue during the present
emergency."
This action was communicated by him to the President and the
President's decision upon his action was made known in accordance
with the Organic Act of Hawaii in the following messages:
Page 327 U. S. 348
"Dec. 7, 1941"
"The President the White House"
"Washington D.C."
"I Have Today Declared Martial Law Throughout the Territory of
Hawaii and Have Suspended the Privilege of the Writ of Habeas
Corpus Period Your Attention Is Called to Section Sixty Seven of
the Hawaiian Organic Act for Your Decision on My Action"
"POINDEXTER"
"December 9, 1941"
"Honorable Joseph B. Poindexter,"
"Governor, Territory of Hawaii,"
"Honolulu, Hawaii,"
Your Telegram of December Seventh Received and Your Action in
Suspending the Writ of Habeas Corpus and Placing the Territory of
Hawaii Under Martial Law in Accordance with U.S.C. Title 48,
Section 532 Has My Approval.
"FRANKLIN D. ROOSEVELT"
The discretion to determine within reasonable limits the
existence of the emergency of war contemplated by the Organic Act
must be an executive discretion. Under the circumstances now
generally known as to what took place at Pearl Harbor on December 7
and the seriousness of the threat which that attack carried with
it, not only to the people in the Territory of Hawaii but to the
United States of America, I am unable to find that, on that day the
President and the Governor exceeded their constitutional authority
in taking the steps evidenced by the foregoing declaration of
policy, or that the Commanding General exceeded his authority in
carrying out those instructions through the issuance of his
proclamation pursuant thereto on December 7, 1941. [
Footnote 2/4]
Page 327 U. S. 349
The findings of fact, express and implicit in these prompt and
forthright expressions of executive leadership,
Page 327 U. S. 350
leave no room for doubt as to the genuineness of the emergency
and of the conscientious determination of these officials to act so
as to meet it. At the same time, the appreciation felt by the
Commanding General of his responsibility to the civilians on the
Islands is shown in his three concluding paragraphs. Starting with
the propriety of that battlefield regulation in the presence of
disastrous invasion, the question resolves itself solely to one of
when and to what extent the constitutional executive discretion to
continue these orders can or should be held by this Court to have
been exceeded. Once the Islands are visualized as a battlefield
under actual invasion, threatened with further invasion, and
invaluable to the enemy as a base from which to attack the
continental United States, the situation is completely changed from
that of an ordinary civilian community. Under conditions likely to
disregard even the laws of civilized warfare, the island population
was threatened with immediate destruction. It thus became necessary
to organize and protect that population against imminent danger
from bombing, fire, disruption of water and food supply, disease
and all the other incidents of modern warfare. The limited area,
limited garrison, and great isolation of the Islands put a premium
on the efficiency of its civilian defense and on the integration of
it with the military defense. All activity was subordinated to
executive control as the best constitutional safeguard of the
civilian, as well as the military, life.
That, in such a case, there must be restoration of civilian
control is clear. It is equally clear that there must be limits to
the extent to which the executive discretion constitutionally may
delay such restoration. In the first instance, however, there is a
period, bearing a reasonable relation to the original emergency,
during which it must be within the discretion of the executive
agencies of the Government to decide when and how to restore the
battlefield to its peace time controls.
Page 327 U. S. 351
In view of the responsibility placed upon the executive branch
of the Government, and especially upon its armed forces in time to
invasion and threatened invasion, it is essential that that branch
of the Government have freedom of action equal to its needs. At the
center of invasion, military control is the proper control to be
applied, subject to provisions of the Constitution, treaties, and
laws of the United States applicable to a battlefield. On December
7, 1941, I believe that the facts of the invasion and threatened
further invasion amply established such a condition, and justified
at the time the military control established on that basis
throughout the Islands.
Whether or not, from the vantage post of the present, this Court
may disagree with the judgment exercised by the military
authorities in their schedule of relaxation of control is not
material unless this Court finds that the schedule was so delayed
as to exceed the range of discretion which such conditions properly
vest in the military authorities.
It is all too easy in this postwar period to assume that the
success which our forces attained was inevitable, and that military
control should have been relaxed on a schedule based upon such
actual developments. In fact, however, even now, our Chief of
Staff, in his report to the Secretary of War as of June 30, 1945,
reminds us that, in
"the black days of 1942, when the Japanese conquered all of
Malaysia, occupied Burma, and threatened India while the German
armies approached the Volga and the Suez . . . , Germany and Japan
came so close to complete domination of the world that we do not
yet realize how thin the thread of Allied survival had been
stretched."
Biennial Report of the Chief of Staff of the United States Army
(1945) 1. [
Footnote 2/5] Those were
critical days when the
Page 327 U. S. 352
United States could afford no military mistakes and when the
safety and control of the Hawaiian key to the Pacific was
essential. It was the responsibility of our military commanders not
only to do the right thing in the interests of safety, but to take
no chances of error or surprise. It was the obligation of our
military commanders to insure safety, rather than to risk it.
Acting as they were in the "fog of war," they were entitled to a
wide range of discretion if they were to meet the obligations
imposed upon them. It is not justifiable to tear Hawaii out from
the context of the war as a whole. Our military policy there, as
elsewhere, had to be guided by its relation to the global war.
Under these circumstances, it is conceivable that the military
authorities might have tried to continue complete military control
in effect for a substantial period with a view to later relaxation
of all such control when conditions made it obvious that there was
no longer a need for any control. Such a course was not attempted
here. The Commanding General of the Hawaii Department followed from
the beginning the policy foreshadowed in his original proclamation.
He restored civilian control of civilian activities wherever and
whenever he felt that a partial restoration of it was in the public
interest. In the meantime, he had the primary duty of maintaining
law and order and of fostering civilian activities as much as
possible. Perhaps he could have arrested and detained individuals
charged with violation of laws or regulations, and held them for
later trial by civilian courts. However, in view of the size of the
population and the necessarily limited facilities for large scale
detentions, he owed an equal duty to dispose promptly of violations
of the law.
Page 327 U. S. 353
To this end, law and order was enforced and justice was
administered in the first instance through military tribunals. With
evident care and with substantial rapidity, the military control
was relaxed gradually, in instance after instance, until the
administration of justice over civilians was restore completely to
civilian administration when, on October 19, 1944, the President
issued a proclamation effective October 24, terminating martial law
and directing the Governor to issue a proclamation accordingly.
There is set forth in the margin [
Footnote 2/6] a summary of the steps by which this
relaxation was accomplished. As early
Page 327 U. S. 354
as December 16, 1941, the courts were reopened insofar as they
applied to civil matters not involving jury trials. On January 27,
1942, the restrictions on court procedure were further modified. On
August 31, 1942, a general order extended the jurisdiction of the
courts to jury trials. Further relaxation occurred from time to
time in 1942 and 1943.
It was on August 20, 1942, that the petitioner White was
arrested for embezzlement in violation of Chapter 183 of the
Revised Laws of Hawaii. On August 25, he was tried and convicted
before a provost court, and sentenced
Page 327 U. S. 355
to five years' imprisonment, later reduced to four. Insofar as
the issue relates to his case, and in the light of the evident
consideration that the Commanding General was giving to the
restoration of civil control to the courts, I am unable to hold as
a matter of law that, through not acting more quickly and less
cautiously, he violated his constitutional discretion when, on
December 16, 1941, he authorized the civil courts to open to a
limited extent for the trial of limited classes of cases not
requiring jury trials or the subpoenaing of witnesses, or when, on
January 27, 1942, he authorized the civil courts, as agents of the
Military
Page 327 U. S. 356
Government, to exercise their normal functions except for jury
trials, writs of habeas corpus and other specified classes of
cases, and when, on August 31, 1942, he extended their jurisdiction
to jury trials such as would have applied to the petitioner White.
Even on that date, in General Orders No. 133, [
Footnote 2/7] he found expressly that "martial law
has been declared, and the emergency which called it forth still
prevails."
The petitioner Duncan was convicted on March 2, 1944, of
maliciously assaulting and beating two marines on February 24,
1944, with intent to prevent their performance of their duties as
sentries at the main gate of the Pearl Harbor Navy Yard. For this
offense, he was sentenced to six months in jail. At this time,
civilian agencies had resumed most of their peacetime jurisdiction,
including criminal and civil proceedings, except for criminal
proceedings against members of the armed forces, civil suits
against them for acts or omissions in line of duty, and criminal
prosecutions of violations of military orders. The close
relationship of these items to the military functions of the armed
forces on the Islands indicates the reasonableness of their
exception. Even these exceptions were removed in October, 1944,
when martial law was terminated. I find it impossible under these
circumstances to hold that the President and the military
authorities violated the discretion vested in them to insure the
safety of the Islands in time of war, invasion, and threatened
invasion, in that they failed to terminate martial law so
completely before March 2, 1944, that a civilian, who attacked
marines on duty as sentries at the main gate of the Pearl Harbor
Navy Yard could insist upon a trial in the local criminal courts,
as distinguished from the local provost court which had exercised
jurisdiction over such cases throughout the Japanese war which was
still actively in progress.
Page 327 U. S. 357
Now that the war has been won and the safety of the Islands has
been again assured, there is opportunity, in the calm light of
peace, for the readjustment of sentences imposed upon civilians and
military personnel during the emergency of war and which have not
yet expired. It is important, however, that in reviewing the
constitutionality of the conduct of our agencies of government in
time of war, invasion and threatened invasion, we do not now make
precedents which in other emergencies may handicap the executive
branch of the Government in the performance of duties allotted to
it by the Constitution and by the exercise of which it successfully
defended the nation against the greatest attack ever made upon
it.
One way to test the soundness of a decision today that the trial
of petitioner White on August 25, 1942, before a provost court on a
charge of embezzlement, and the trial of petitioner Duncan on March
2, 1944, before a similar court on a charge of maliciously
assaulting marine sentries were unconstitutional procedures is to
ask ourselves whether or not on those dates, with the war against
Japan in full swing, this Court would have, or should have, granted
a writ of habeas corpus, an injunction, or a writ of prohibition to
release the petitioners or otherwise to oust the provost courts of
their claimed jurisdiction. Such a test emphasizes the issue. I
believe that this Court would not have been justified in granting
the relief suggested at such times. Also, I believe that this Court
might well have found itself embarrassed had it ordered such relief
and then had attempted to enforce its order in the theater of
military operations at a time when the area was under martial law
and the writ of habeas corpus was still suspended, all in
accordance with the orders of the President of the United States
and the Governor of Hawaii issued under their interpretation of the
discretion and responsibility vested in them by the Constitution of
the United States and by the Organic Act of Hawaii enacted by
Congress.
Page 327 U. S. 358
In order to recognize the full strength of our Constitution,
both in time of peace and in time of war, it is necessary to
protect the authority of our legislative and executive officials,
as well as that of our courts, in the performance of their
respective obligations to help to
"establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity."
[
Footnote 2/1]
Admiral Chester W. Nimitz, Commander in Chief of the Pacific
Fleet, who assumed naval command in the Territory of Hawaii
December 18, 1941, testified that the Hawaiian area constituted the
only base for the Navy in the Pacific ocean at that time, and that,
throughout the war until the last Japanese carrier was destroyed, a
Japanese surprise carrier attack on the Islands was within the
enemy's capabilities. While invasion by seaborne troops in
sufficient number to seize a beach head was not probable, invasion
by submarine commando raiders and espionage parties was imminent
and constantly impending. Lieutenant General Robert C. Richardson,
Jr., Commanding General of the Central Pacific Area, who assumed
command of the Hawaiian Department on June 1, 1943, testified that
the Islands were within the theater of operations of the Pacific
ocean area, and that the Islands were the keystone of the defense
of the western coast of our country. He testified that the Japanese
fleet, in April, 1944, was still capable of making a surprise
attack upon Oahu by the use of air or undersea craft, and that
Pearl Harbor was the most attractive target for the enemy, because
it was the base of the Pacific fleet. He said that it was likely
that Japan would take the risk of launching an attack because of
the attractiveness of the target and the considerable damage that
might be inflicted. He pointed out that the probability of night
attacks through the use of submarines and parties sent ashore to
attack important installations was increased by the presence of
disloyal individuals among the population of the Islands. The
successes of our fleet had not removed the imminent danger of
invasion, because these successes made it more imperative for the
enemy to repeat its former invasion of the Islands. He further
testified that the discharge of his responsibility for military
security required a method of enforcement of military security
regulations which was prompt and subject to his immediate control
and authority, and that, under martial law, the provost courts
provided such a method of enforcement. He testified that a military
trial for such an offense as that of Duncan in attacking the Pearl
Harbor Navy Yard sentries was necessary in order to uphold the
authority of military sentries charged with important military
duties. He also gave as his opinion that military necessity
required trial of White's offense in a military tribunal in August
of 1942, at which time the Japanese successful military offensive
still continued. In addition to the occupation of Hong Kong, the
Malay Peninsula, Singapore, the Dutch East Indies, and bases in New
Guinea, the Japanese had successfully occupied our own territories
of Guam and Wake, which, with Midway, constituted the Island chain
connecting Hawaii with the Philippines, which themselves were soon
occupied. The enemy's occupation of the Solomon Islands, including
Tulagi and Guadalcanal, gave the enemy advance air and naval bases
for offensive operations against our South Pacific supply line and
the north coast of Australia. Biennial Report of the Chief of Staff
of the United States Army to the Secretary of War (1943) 14 (House
Doc. 288, 78th Cong., 1st Sess.); McInnis, The War, Third Year
(1942) 238.
Early in May, 1942, one Japanese attempt to extend enemy control
southeastward along the borders of the Coral Sea, with the ultimate
objective of an attack on Australia, was repulsed in the Battle of
the Coral Sea. The Japanese offensive, however, continued. In early
June, the Japanese attempt to occupy Midway Island preliminary to
an invasion of Hawaii was thwarted in the Battle of Midway. At the
same time, however, Japanese forces occupied our territory of Attu,
Agattu, and Kiska in the Aleutian Islands. Biennial Report,
supra, p. 30. (These islands were not recovered until May,
1943. Biennial Report,
supra, p. 31). Japanese advances in
New Guinea continued during the summer of 1942, and by September,
1942, had forced Allied ground forces back to within 30 miles of
Port Moresby, a gateway to Australia. Biennial Report,
supra, p. 14. On August 7, a landing was made on
Guadalcanal by United States forces. For a time, it did not appear
that the effort to wrest this crucial island from the Japanese
could succeed. A strong Japanese attempt to recapture Guadalcanal
was beaten off as late as November 16, 1942. Not until early in
1943 was enemy resistance on Guadalcanal overcome.
Ibid.
Even then, our forces had only succeeded in checking the enemy's
offensive, and had not launched their own offensives or ousted the
enemy from any American territory. The American offensive in the
Central Pacific did not begin until a year later with the invasion
of the Gilbert Islands in November, 1943, followed by invasion of
the Marshall Islands in January, 1944, and the invasion of the
Mariana Islands in July, 1944. Biennial Report of the Chief of
Staff of the United States Army to the Secretary of War (1945) 69.
Our forces landed on Guam on July 21, and resistance ceased on
August 10. By that time, our forces in the Southwest Pacific under
General MacArthur had reduced or bypassed the enemy's footholds in
New Guinea, and the way was prepared for the Battle of the
Philippines, which began with the landing on Leyte on October 20,
1944.
Id., p. 75
et seq. The "Battle of the
Bulge," in the Ardennes, was fought and won at high cost in
December and January, 1944-45.
Id., p. 44.
[
Footnote 2/2]
"Hawaii constitutes the main Pacific outpost of the United
States, and accordingly must be regarded as a fortress to whose
defense the entire population of the Islands is committed. Its
manpower and its economic resources must be subject to a single
ultimate control."
General Orders No. 133, by order of the Military Governor of the
Territory of Hawaii, August 31, 1942.
[
Footnote 2/3]
"Again, in the place where actual military operations are being
conducted, the ordinary rights of citizens must yield to paramount
military necessity. This was conceded in
Milligan's
Case [4 Wall. 2,
71 U. S.
127], where it was said in the prevailing opinion: "
" If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theater of actual military
operations, where war really prevails, there is a necessity to
furnish a substitute for the civil authority thus overthrown, to
preserve the safety of the army and society, and, as no power is
left but the military, it is allowed to govern by martial rule
until the laws can have their free course."
Address by Hon. Charles E. Hughes, War Powers Under the
Constitution (1917) XLII Reports of American Bar Association 232,
244.
In the present cases, the records have incorporated the
following testimony of Lt.Gen. Robert C. Richardson, Jr., U.S.A.
Commanding General of the Central Pacific Area:
"A. . . . this whole area under the command of the
Commander-in-Chief of the Pacific Ocean Area, Admiral Nimitz, is an
active theater of war, and within that theater of war is the
theater of operations, of which the Hawaiian Department is a
part."
"Q. Will you explain what you mean, from the military viewpoint,
by the terms 'active theater of war' and 'theater of
operations?'"
"A. Well, an active theater of war is that area which is or may
become actively involved in the conduct of the war. A theater of
operations is that part of an active war theater which is needed
for the operations either offensively or defensively, according to
the missions assigned or a combination of the missions, and it
includes also the administrative agencies which are necessary for
the conduct of those operations."
"
* * * *"
"Q. Is there any military parlance that indicates that portion
of the earth's surface where the fighting actually takes
place?"
"A. Yes."
"Q. What is that called?"
"A. Combat zone."
"Q. You would not call Hawaii a combat zone?"
"A. Yes, I would, because the theater of operations or the
combat zone also includes that part assigned to your mission,
whether it be offensive or defensive. We are on the defensive
mission here in Oahu, whereas the fleet operates offensively from
here, and some of our troops which are based here operate
offensively from this base. But concurrently with its mission as an
offensive base, we have a very decided mission here as a defensive
base, and that defensive mission designates or characterizes it as
a part of the combat zone."
"Q. Then a combat zone can be an area where no shooting is going
on at all?"
"A. Oh, yes; oh, yes."
"Q. No real destruction of life or property."
"A. Absolutely. . . ."
"Q. Well, do you have any term, military term, that precisely
fits the place where life and property is actually being destroyed
as a result of organized warfare"
"A. Yes, the battle."
[
Footnote 2/4]
"To the People of Hawaii:"
"The military and naval forces of the Empire of Japan have
attacked and attempted to invade these islands."
"Pursuant to section 67 of the Organic Act of the Territory of
Hawaii, approved April 30, 1900, the Governor of Hawaii has called
upon me, as commander of the military forces of the United States
in Hawaii, to prevent such invasion; has suspended the privilege of
the writ of habeas corpus; has placed the Territory under martial
law; has authorized and requested me and my subordinates to
exercise the powers normally exercised by the governor and by
subordinate civil officers, and has required all persons within the
Territory to obey such proclamations, orders, and regulations as I
may issue during the present emergency."
"I announce to the people of Hawaii, that, in compliance with
the above requests of the Governor of Hawaii, I have this day
assumed the position of military governor of Hawaii, and have taken
charge of the government of the Territory, of the preservation of
order therein, and of putting these islands in a proper state of
defense."
"All persons within the Territory of Hawaii, whether residents
thereof or not whether citizens of the United States or not, of no
matter what race or nationality, are warned that, by reason of
their presence here, they owe during their stay at least a
temporary duty of obedience to the United States, and that they are
bound to refrain from giving, by word or deed, any aid or comfort
to the enemies of the United States. Any violation of this duty is
treason, and will be punished by the severest penalties."
"The troops under my command, in putting down any disorder or
rebellion and in preventing any aid to the invader, will act with
such firmness and vigor and will use such arms as the
accomplishment of their tasks may require."
"The imminence of attack by the enemy and the possibility of
invasion make necessary a stricter control of your actions than
would be necessary or proper at other times. I shall therefore
shortly publish ordinances governing the conduct of the people of
the Territory with respect to the showing of lights, circulation,
meetings, censorship, possession of arms, ammunition, and
explosives, the sale of intoxicating liquors, and other
subjects."
"In order to assist in repelling the threatened invasion of our
island home, good citizens will cheerfully obey this proclamation
and the ordinances to be published; others will be required to do
so.
Offenders will be severely punished by military tribunals
or will be held in custody until such time as the civil courts are
able to function."
"Pending further instructions from this headquarters, the Hawaii
Defense Act and the Proclamations of the Governor of Hawaii
heretofore issued thereunder shall continue in full force and
effect."
(Italics supplied.)
[
Footnote 2/5]
See also the letters of General George C. Marshall,
Chief of Staff of September 25 and 27, 1944, to Governor Thomas E.
Dewey, emphasizing the tragic military consequences which at that
date would follow disclosure that the United States had "broken"
the Japanese secret message code. Hearings before Joint Committee
of Congress to Investigate the Pearl Harbor Attack, 79th Cong., 2d
Sess., Part III, 1128-1133.
[
Footnote 2/6]
Dec. 7, 1941. Governor Poindexter invoked Section 67 of the
Hawaiian Organic Act and by proclamation placed the Territory under
martial law; suspended the privilege of the writ of habeas corpus,
and delegated to the Commanding General of the Hawaiian Department
of the United States Army not only all of his powers as Governor,
but also all of the "powers normally exercised by judicial officers
. . . of this territory . . . during the present emergency and
until the danger of invasion is removed."
Dec. 7, 1941. By radio, the Governor of Hawaii notified the
President of the United States that he had placed the Territory
under martial law and suspended the writ of habeas corpus.
Dec. 7, 1941. The Commanding General, Walter C. Short, referring
specifically to Governor Poindexter's proclamation of the same
date, himself issued a proclamation notifying the people of Hawaii
that he had assumed the position of "Military Governor of Hawaii"
and had taken over the government of Hawaii.
Dec. 7, 1941. The Military Governor of Hawaii issued General
Orders No. 4 by which he set up a system of military courts to try
civilians for violations of the laws of the United States, the laws
of the Territory, and "rules, regulations, orders, or policies" of
the military authorities. The procedure prescribed for these
military courts was that of special and summary courts martial.
Dec. 8, 1941. The courts of the Territory were closed by the
Chief Justice of the Supreme Court of Hawaii under the direction of
the Commanding General.
Dec. 9, 1941. The President approved by radio the action of the
Governor suspending the writ and placing the Territory under
martial law in accordance with the Organic Act of Hawaii.
Dec. 16, 1941. By General Orders No. 29 the complete closing of
the courts was partly relaxed. The relaxation affected only matters
not involving jury trials.
Dec. 17, 1941. General Short transferred to General Emmons his
powers as Military Governor of Hawaii.
Jan. 27, 1942. The Military Governor, by General Orders No. 57,
modified further the restrictions on court proceedings. By this
order, the courts of the Territory were authorized to exercise
certain of the powers normally exercised by them during the
existence of civil government. With certain exceptions, the courts
were restored to their respective functions prior to martial law,
"as agents of the Military Governor." The criminal courts could
not, under the order, summon a grand jury, and neither the criminal
nor civil courts could grant a jury trial, or at any time grant a
writ of habeas corpus.
Aug. 31, 1942. General Orders No. 133 extended the jurisdiction
of the courts to jury trials. This order stated in Sec. I:
". . . Martial law has been declared, and the emergency which
called it forth still prevails. . . . It is to be understood that
the relaxation herein specified is intended to return to the courts
criminal prosecutions and civil litigation to the extent that war
conditions permit. However, this action is experimental in nature,
and the Military Governor reserves the right further to limit the
jurisdiction of the courts or to close them entirely if that course
shall be necessary."
Sept. 4, 1942. General Orders No. 135 enumerated the criminal
offenses involving crimes against the Government or related to the
war effort in respect to which the courts were not authorized to
exercise jurisdiction.
Feb. 8, 1943. Governor Stainback, who succeeded Governor
Poindexter, issued a public proclamation providing that, although
martial law and suspension of the privilege of the writ of habeas
corpus were to remain in effect, the Governor and other civil
agencies would resume their respective jurisdictions, including
criminal and civil proceedings, except for criminal proceedings
against members of the armed forces and civil suits against them
for acts or omissions in the line of duty and criminal prosecutions
for violations of military orders, except as these exceptions might
be waived by the Commanding General in any particular case or class
of cases.
Feb. 8, 1943. General Emmons, the Military Governor, issued a
public proclamation relinquishing to the Governor and other
civilian officers of the Territory the functions set forth in the
Governor's proclamation.
Mar. 10, 1943. General Emmons issued a revised set of General
Orders Nos. 1 to 14, and rescinded General Orders Nos. 1 to 181,
issued under prior proclamations. General Orders No. 2 vested
provost courts and military commissions with jurisdiction to try
any case involving violations by a civilian of
"rules, regulations, proclamations, or Orders of the Military or
Naval authorities, or of the Military Governor of the Territory of
Hawaii, or of the laws of war,"
and to impose a fine, imprisonment or both. Maximum punishment
was to be confinement at hard labor for five years, or a fine of
five thousand dollars or both.
Oct.19, 1944. The President issued Proclamation No. 2627
providing that, effective Oct. 24, 1944, the privilege of the writ
of habeas corpus was restored and martial law terminated, and
directing the Governor to issue a proclamation accordingly.
Oct. 24, 1944. The Governor issued a proclamation which
proclaimed that "the privilege of the writ of habeas corpus is
restored, and that martial law is terminated in the Territory of
Hawaii."
[
Footnote 2/7]
See Footnotes
327
U.S. 304fn2/2|>2 and
327
U.S. 304fn2/6|>6.