327 U.S. 304 (1945), Duncan v. Kahanamoku

Citation:327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688
Party Name:Duncan v. Kahanamoku
Case Date:February 25, 1946
Court:United States Supreme Court
 
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Page 304

327 U.S. 304 (1945)

66 S.Ct. 606, 90 L.Ed. 688

Duncan

v.

Kahanamoku

United States Supreme Court

Feb. 25, 1946

CERTIORARI TO THE CIRCUIT COURT OF APPEAL

FOR THE NINTH CIRCUIT

Syllabus

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. 313, 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. 316.

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(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. 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. 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. 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, 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.

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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. 324.

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BLACK, J., lead opinion

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 [66 S.Ct. 608] 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, 1531 authorizes the Territorial Governor to

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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.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

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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, [66 S.Ct. 609] 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

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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...

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