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Hawaii Under Army Rule

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Besides his Olympic medals and his movie roles, surfing and swimming legend Duke Kahanamoku also figures as the losing defendant in the key Supreme Court decision on military tribunals.
Since President Bush announced his executive order on tribunals (later much revised), there has been a flood of commentary, almost all of it misinformed, and some of it hysterical, like Harvard Professor Alan Dershowitz's piece about how there were "mass roundups" for the military tribunals in Hawaii.
That's nonsense. But there were military tribunals in Hawaii, more than in all the rest of the country combined.
They were comical, frightening, unconstitutional, dangerous and embarrassing. But, despite what you have been told, they were not secret.
J. Garner Anthony, briefly attorney general of the Territory of Hawaii, led the civil government's ultimately successful -- after it no longer counted -- resistance to the tribunals. "Hawaii under Army Rule" was published in 1955 and has been largely forgotten.
The Army panicked after Pearl Harbor, and it flimflammed Gov. Joseph Poindexter into allowing it to declare martial law. Lt. Gen. Walter Short, the lamentably incompetent commander of the Hawaiian Department, closed the bars and the courts.
In a few months, his clownish successor, Lt. Gen. Delos Emmons, reopened the saloons but not the courts.
Probably because of a well-founded belief that his despotic behavior was illegal, he and his legal officer, Col. Thomas Green, took the precaution of making it a military crime to present or receive a writ of habeas corpus. Thus, prisoners of the MPs had no place to appeal.
Eventually, when the civilians caught their breath and counterattacked against the Army, Emmons found himself sneaking out of Iolani Palace to avoid a writ, while MPs threw the U.S. Marshal over the porch railings.
If anybody in the Executive Office of the President knows now about these buffoonish proceedings, you would not know it from what they are saying. But their opponents, both left and right, seem equally clueless.
The 1946 decision in Duncan v. Kahanamoku, if anyone had paid attention to it, would have saved a lot of pointless discussion over the past four years.
Not that Duke was an enemy of civil liberties. But he was sheriff of Honolulu and had custody of one Duncan, a Pearl Harbor shipfitter who beefed with two Marine sentries in February 1944. This was long after the Japanese presented any threat to the operation of the civil courts of the Territory. But the Army enjoyed its conquest of Hawaii, including bully power and hundreds of thousands of dollars in fines that stuck to its fingers.
It took a while, but eventually the U.S. Supreme Court ruled on the declaration of martial law, the tribunals and a host of lesser issues created by the Army's coup against the Territorial government.
Legally speaking, the decision was whether the military had the right to impose martial law under the Hawaii Organic Act, which made Hawaii part of the United States. The justices said the military did not.
And although it is a cliche that the court tries not to go beyond the narrowest conception of each issue brought before it, the justices let fly on this one.
Associate Justice Hugo Black, a strong defender of the Bill of Rights, wrote for the court, but three other justices also wanted to have their say.
The court said, among other things, "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."
And the justices made it pretty damn clear that when they talked about a "military assault," they didn't mean some vague threat in the indefinite future. They meant the civil courts should be left alone, even in a military emergency, unless the enemy had landed or the troop transports were standing offshore.
And, in a remark that goes right to the point of the current discussion, the court said, "From time immemorial despots have used real or imagined threats to the public welfare as an excuse for needlessly abrogating human rights."
And for those who have suggested that only citizens have constitutional rights through the civil courts or that the Territorial precedent somehow doesn't apply to States, Black wrote, "Civilians in Hawaii are entitled to the constitutional guarantees of a fair trial to the same extent as those who live in any other part of our country."
The court also referred back to a 1932 case (Sterling v. Constantin), which had ruled that "the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions."