Duncan v. Kahanamoku Whit v. Steer

• Decision Date: 25 February 1946
• Docket Number: 15,Nos. 14,s. 14
• Parties: DUNCAN v. KAHANAMOKU, Sheriff. WHIT v. STEER
• Court: U.S. Supreme Court

327 U.S. 304

66 S.Ct. 606

90 L.Ed. 688

DUNCAN

v KAHANAMOKU, Sheriff. WHIT

v. STEER.

Nos. 14, 15.

Argued Dec. 7, 1945.

Decided Feb. 25, 1946.

[Syllabus from pages 304-306 intentionally omitted]

Mr.Osmond K. Fraenkel, of New York City, for Petitioner white.

Mr. J. Garner Anthony, of Honolulu, Hawaii, for Petitioner Duncan.

Mr. C. Nils Tavares, of Honolulu, Hawaii, for Territory of Hawaii, as amicus curiae, by special leave of Court.

Mr. Edward J. Ennis, of Washington, D.C., for respondents.

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. 9 Cir., 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, 65 S.Ct. 677.

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, 48 U.S.C.A. § 532,¹ authorizes the Territorial Governor to 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 mili- tary tribun ls 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 Vallandigham, 1 Wall. 243, 17 L.Ed. 589. 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 non-jury civil cases, they were still forbidden to summon jurors and to exercise criminal jurisdiction. On August 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 theatres 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.'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 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 theatre 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 regu- lar courts.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, 9 Cir., 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 margin⁵ abandons its contention as to the suspension of the writ of habeas corpus and advances the argument employed by the...