*2
General,
General,
jury,
a
jor
Judge Advocate
was
and sentenced
convicted
Jr., Lt.
Army,
Hughes,
imprisonment
years.
U.
of five
S.
and William
for a term
J.
Dept.,
Colonel, Judge
imposed
within
Advocate General’s
sentence
was
Eugene
prescribed
limits
Washington,
V.
both of
D. C. and
territorial statute.
Slattery,
Colonel, Judge
Lt.
Advocate Gen-
April 14, 1944,
peti-
his
On
White filed
Dept.
Edward
Army,
A.
eral’s
U. S.
tion in the court below for release on
Honolulu,
Towse,
Atty.,
Asst. U.
of
S.
both
corpus,
juris-
asserting
lack of
Demhitz,
Hawaii,
Burling,
L.
Nanette
John
provost
claiming
diction in the
court
Division,
Million, Attys.,
Elmer
War
deprived
rights
that he had been
C.,
Justice,
Washington,
Dept,
all
D.
of
guaranteed
and 6th Amend-
the 5th
appellants.
counsel),
for
ments. The
a
court
issued
show cause
Honolulu,
Anthony
Hawaii
Garner
order directed
warden of
Oahu
(Robertson,
Anthony,
ordered,
Castle &
Honolu-
stipula-
Prison.
tion,
on
was later
lu, Hawaii,
appellee
Steer,
counsel),
Dun-
for
that Colonel
Marshal
Provost
Area,
can.
and then
the Central Pacific
cus-
petitioner,
todian of the
be substituted as
Botts,
Patterson and
both
Fred
E. J.
respondent in lieu
the warden. The
Honolulu, Hawaii,
Chamberlin
and Herbert
Provost
filed
answer in which
Marshal
Francisco, Cal.,
appellee
of San
for
White.
admitted
he
stated
facts as
above but
Cades,
Ashford,
Marguerite
Russell
K.
J.
imprisonment
denied that
the trial
Heen,
Cass,
Marshall
Phil
William H.
B.
were unlawful. The answer contained
Henshaw, Harry
Hewitt, Livingston
R.
matter, alleging among
affirmative
other
Jenks,
Kai,
Lee,
Ernest K.
K.'H.
Herbert
things,
Porteus,
Parsons,
F.
Charles
D. Hebden
writ,
the declaration of martial
Sutton,
Wrenn,
E.
of
L.
all
White
Heaton
August
as of
of an
existence
Honolulu, Hawaii,
Bar Association
emergency necessitating the trial
civil-
Hawaii,
amicus curiae.
provided
by provost
ians
court as
Collins,
Wayne
Francisco,
M.
of San
subsisting
then
the commanding
orders of
(Osmond
Cal.
Fraenkel and Arthur
K.
general;
was asserted that
Hays,
City,
York
Garfield
both of New
petitioner
offense which the
had been
Cal.,
Wirin,
Angeles,
A.
Los
L.
coun-
cognizable
convicted was not
the civil-
sel),
Union,
American Civil Liberties
ian courts because of the terms of the
curiae.
amicus
Governor’s
December
WILBUR, GARRECHT,
Before
DEN- 1941.
MAN,
STEPHENS,
MATHEWS,
traverse,
petitioner, by
put
in issue
HEALY,
Judges.
Circuit
allegations
Thereupon
of the answer.
issued,
petitioner
the writ was
was
HEALY,
Judge.
Circuit
produced
stip-
and evidence
taken.
was
appeal
each
of these
cases
from ulated that
the return
order to
a judgment of the United States District
cause
show
be considered
return corpus,
sustain-
Court
the writ of habeas
and that the
ing
petition
for a
of habeas
traverse
return
the show
cause
ordering
discharge
petition-
be
order
considered the traverse to the re-
er.
Being
turn to
writ.
that the
provost
authority
court was
lawful
without
10,774
In case No.
the essential facts are
try the charge,
peti-
the court ordered
Appellee Harry
as follows:
E. White is
custody.
release
tioner’s
a citizen
Territory
States and of
August 20,
of Hawaii. On
10,763
facts in
case No.
are these:
engaged
while
in Honolulu as a Appellee Lloyd
Duncan is
citizen
C.
brokerage
civilian
and investment
temporarily
living
the United States
in the
was in the
business, he
brought
was arrested and
Hawaii,
where he
Major Murrell, judge
pro-
before
Navy
employ
Department
civilian
Pearl Harbor. On
court, who
vost
him that
informed
he was
February 24, on
before that court
a charge
tried
while within the limits
the naval
reser-
growing
employed,
of embezzlement
out
the con-
where he
vation
was
he as-
business,
Chap-
duct of his
in violation of
and struck with his fists
saulted
corps
two marine
Revised
duty
ter
He
Laws of
on
gate.
sentries
at the main
August
appear
tried
he was
the Later
summoned to
before
provost
charge,
charge
court
provost
court
assault
petitioner
in error
holding
sentries
intent
obstruct the
whether,
duties,
(2)
unlawfully imprisoned, and
performance
lawful
contrary
official
any event,
was foreclosed
of General
paragraph 8.01
*3
Governor,
de-
the
Military
inquiring
legality
from
into the
Orders
2No.
of the
the
suspension of
10,
by the tention because of the
dated March
provost
was tried
1943. He
are dis-
privilege
points
the writ. The
jury,
was found
court without
named.
order
to cussed
the briefs
the
sentenced
charge
of the
and was
guilty
point
However,
considering the first
was
before
jail
He
serve a
term six months.
briefly
custody
appel- it will
outset
be convenient at the
then
lant,
delivered into the
county of
to notice the
city and
second.
the sheriff of the
Honolulu,
by the latter
confined
was
jail.
the writ.
Availability
1.
of
132 F.2d
Petition for
the Honolulu
was filed March
442,
Zimmerman,
parte
we
Ex
1944,
14,
an order to
writ of habeas
held
of the
that the
appellant
same
show
served
the
cause
suspended
Ter
lawfully
was
day.
ritory by
proclamation the Governor’s
admitting
a return
sheriff made
7,
approval
1941,
December
issued
charge and conviction.
the fact of the
thought
the
It was
President.
substance,
public
the
alleged,
return
safety
suspension
court that
was sub
the
7,
December
has at all times since
by proclamation of
sequently terminated
1941, required
existence of
the continued
ap
the
Presidential
Governor issued with
suspension of
martial
the
law
the
8,
proval
February
1943.
proclaimed by
Governor
the
as
the
agree.
going into
We do not
Without
re-
Territory;
General Orders
pur-
present
in detail it
the matter
to, respecting
establishment and
ferred
authority
say
procla-
poses enough to
later
that the
courts,
necessary
provost
were
terminate
mation was
intended
war;
prosecution
successful
for the
suspension
However,
effect.
have that
did not
punishing
military action
and that the
.in
conclusion
view
engaged in the
persons assaulting sentries
respect
legality
have reached
duty, with
performance of their
intent
case,
imprisonment in each
is un-
performance, was not unrea-
hinder such
necessary
emerg-
whether the
to consider
arbitrary.
sonable
ency existing
as
Territory
case,
allegations
As in
the White
filing
petitions
was
time of the
formally put in
issue
return
suspension
to warrant
the then
hearing argument
After
traverse.
reason,
Nor,
for the same
writ.
pro-
sheriff
issued the writ
court
inquire
appli-
essential
into
stipulated that
petitioner.
duced the
par-
cability
to these
return
the order to
government’s
Quirin,
Compare
parte
Ex
ticular cases.
return to
should stand
show cause
L.Ed.
S.Ct.
There
a trial at which
followed
the writ.
purpose
For
decision we
3.
bearing upon
testimony
was taken
assume,
deciding,
the court
developed
situation as
in the
conclusion the
truth of
entertaining
from
was not disabled
pleadings. At
several
petitions.
judgment discharging the
court entered
custody.
grounds
petitioner
imprisonment.
Legality
discharge were
given
proclamation of
Governor’s
December
prevail
Territory
did not
writ,
suspending
in addition
provost
was without author-
court
that the
Territory
placed
under martial
law.
petitioner.
ity
try
step,
first,
less
than the
The latter
express language
of 67
appear,
are substantial authorized
later
§
As will
cases;
Organic
Hawaiian
Act
as is de
between these
but under-
differences
length
parte
Ex
veloped
merman, supra.1
Zim
ques-
fundamental
more at
are the same
lying each
step,
said,
as there
namely, (1) whether the court was
tions
pertinent,
as here
na
far
the commanders
So
provides:
gov
Organic
the United States
“The
val forces
Act
* * *
pre
responsible
faith
ernor shall
suppress
violence,
lawless
inva
of the laws of
vent
ful execution
insurrection,
sion,
or rebellion
said
of Hawaii
States
may,
Territory,
Territory,
re
and he
case of
and whenever
the said
within
danger
invasion,
may
upon
or imminent
he
call
bellion
it becomes
Supreme
Territory, and the
approval
the Presi-
had the immediate
Court of said
justices thereof,
courts, circuit
dent.
the circuit
judges
chambers,
court, juvenile
land
By
Gover-
terms
court,
appeal
district
tax
nor
command-
called
Poindexter
magistrates
authorized,
hereby
ing general,
present emergency
“during the
Governor,
agents
exer
Military
and until the
invasion is re-
respective
according to
cise their
functions
moved,
normally
powers
to exercise all the
immediately prior to the
as it existed
exercised me as
He further
Governor.”
law,” subject
declaration
of martial
commanding
“and
general,
authorized the
Among these were
numerous restrictions.
prohibitions
personnel
those
subordinate
*4
juris
against
the exercise
may
authority,
delegate
whom he
diction
em
of criminal cases and the
during
present emergency and until
paneling
grand
petit juries.
or
danger
removed,
of invasion is
powers normally
judicial
exercise the
exercised
indicated
Order
status
by judicial
employees
appears
persisted
57
officers and
of this No.
Territory
thereon,
March,
and
change
and cities
It would
the counties
material
until
1943.
powers
perversion
say
and such other
be
and further
of the truth to
emergency
require.”
as the
may
“open”
period
The the
during
courts were
this
people
Territory
—certainly they
of the
were admonished to
did
function as a
obey
independent
and such rules and coordinate or
branch
commanding general
government.
orders as the
issue.
might
they
per-
So far as
were
Responding
proclamation,
operate
they
agents
mitted
the
did so “as
post
General Short
Military
once assumed the
existing
Governor.” Like
Governor,
Military
and
cessor,
title
civil
grades throughout
his suc-
officials of all
Emmons,
Territory,
General
did likewise.
were
courts
mere instru-
commanding general.
ments of the
More-
military power
Invocation of the
could
over,
prohibition against
because of the
hardly
complete.
have been more
As in-
assembling
empaneling
juries
or
terpreted by
by
applied
and as
executive
wholly
trying
disabled from
criminal
commanding generals,
the term
cases in .the constitutional sense.
“martial law”
accepted
was here
as mean-
ing nothing
military govern-
less than total
We intimate no criticism of what
ment. From that
time forward until was done. Without doubt Governor Poin
1943,
10,
Territory
March
app'ears
to dexter,
President,
generals
have continued
under exclusive
proceeded
command
in the bona fide belief
rule.
complete
that the
establishment of
by necessity.
rule was
course dictated
By
4,
Orders
General
No.
issued Decem
Nor
the courts entitled
them
7,
to set
1941,
ber
up
set
Short
up
strategy
selves
judge,
boards
provost
commissions
power
courts with
event,
after the
whether the belief was
try
any
“to
determine
involving
case
warranted
emergency.3 Certainly
against
offense committed
the laws they may inquire no further than
con
States,
the United
the laws
Territory
proceeded
sider whether the executive
rules,
of Hawaii or
regulations,
orders
grounds.4
reasonable
policies
authorities.” All
civil courts were
General Orders No.
By
closed at that time.
briefly
We need comment
but
57,2
27,
issued January
dangers inherent
the Hawaiian situation
1942, the local courts were authorized “to
military importance
or on the
ex-
powers
certain
exercise
normally posed
key
area. The Islands form the
out-
existence,
by them during
exercised
post
nation’s
Western bastion of
known,
government.”
regulation pro
This
As
defense.
attack on Pearl Harbor
now
surprise
“the
vided
that
for
States
District
was so devastating
Court
wrought
nearly
destruction
so
com-
thereof,
public safety requires
2
supplemented
when the
This order
General Or-
suspend
it,
29,
No.
ders
issued December
1941.
corpus,
place
Hirabayashi
Kiyoshi
of habeas
ry
the Territo
v. United
any
part
thereof,
under martial
320 U.S.
S.Ct.
87 L.
until communication can
be had with
Ed. 1774.
4 Sterling
Constantin,
the President
his decision thereon
287 U.S.
made known.” SI Stat.
§
armed general mem (2) against civil suits any bers of coordinate respect were intended to as a the armed forces function civil government the command branch of the which Con- omission act or certified gress Territory. duty; provided had ing general to line of open. They (3) prosecutions for violations Thenceforward were criminal possession in full to em- orders. panel grand petit juries and were pertinent purposes, the For immediate proceeding in the terms disabled from resumption by exception to any manner traditional to the trial powers the one of full courts criminal criminal offense denounced Hawaiian prosecutions for relating to “criminal laws. procla- violations mation, orders.” terms, became according to point is that the The first to be noticed date 1943. On March proscribed effective commanding by paragraph 8.01 conduct issued Richardson General beyond scope Orders the General 2,14 paragraph Orders No. one affects civilians the in of War.15 It Articles part provost provided in way connected with no should commissions forces, normally courts naval therefore try case jurisdiction power to discipline. Again, amenable to involving a civilian of the violation Congress specific act of au *7 rules, proclamations, orders regulations, or thorizing promulgation regula authorities, the laws or of confirming validity by making of the tion or war. a of such order the violation criminal offense. a authority Congressional pro- orders Paragraph 8.01 of these provision in only can be looked for substance, person vided, no shall in that authorizing Organic to Act resort bat- “an or an assault and commit assault law. martial military police tery” of the any member on personnel, “with or naval other or respect that in It to be recalled is hinder, resist, prevent, obstruct or to intent Japanese control resident perform- discharge, execution or in him the Coast, ap Congress felt Pacific it specific as such.” No ance of duties his denounce propriate as a misdemeanor to for a prescribed violation penalty was pertinent any infraction except elsewhere in that prohibition relating to re their control and orders provost is stated order moval; subject were made and offenders not the of the guided, but bound will be exclusively civil in the courts. to trial prescribed by the laws penalties 1942, 173, March 56 Stat. Act of See under Territory in cases. It was like Kiyoshi 97a; cf. 18 U.S.C.A. § Hiraba yashi Duncan in was tried 8.01 paragraph States, 320 U.S. 63 S.Ct. United v. February of the fol- provost court the lowing true that 1774. It is martial L.Ed. year. proclaimed formally been not had law area; qualified a state of but affected provision of General this Whether nevertheless existed there more applied as to civil- martial was valid No. Orders important in his about passing, testified back it is to note In powers “nothing were restored. provision the effect that 95% intended as a revision operate were These to in shall * * * general previous to conform orders any ail which conviction validate changed legal prior situation. the thir shall occur occurred 1471-1593. day §§ 15 10 U.S.C.A. hereafter.” tieth the trial below Governor Stain- belief expressed the that Richardson drastic, aspects, than certain of its extent continuance period during the prevailing' in Hawaii Territory, it was then in the However, later effect question. now in safety necessary only for the necessary- pointed out, think nation. Islands the defense policy but for consequence congressional Governor appro- That the President manifested in instance by the evidenced opinion is of the same priate affecting civilians military orders which, as provision of proclamation, one express legis- absence of invalid seen, contemplated the continued has been lative sanction. those military courts prosecution in the offense of The law of defines th.e military orders. accused of the violation battery penal- prescribes assault and Hirabayashi Kiyoshi In a ter- ties its violation.16 There page 63 S.Ct. supra, 320 imposing heavier ritorial statute much Court ob- page 87 L.Ed. “an assault penalty for the commission of national power war served battery public an assault every matter government extends to officer, judicial, intent civil or substantially activity to war as related so resist, prevent, him hinder or obstruct “The progress. to affect its conduct duty his discharge or execution of restricted power,” Court, said the “is however, no statute such.”17 There field and winning of victories battery aggravated punishing of that enemy embraces repulse forces. personnel nature committed defense, includ- every phase of national line of acting in forces while armed ing protection of war materials duty; offense that it was the latter from in- armed forces the members proscribed by regulation under attend dangers from the jury which Duncan was tried. rise, progress war. prosecution, civil courts were clear that [citing com- Since the Constitution cases] jurisdiction try one accused Congress and to mits to Executive unknown, character, as it offense of this all vicis- exercise war was, law. In the absence Hawaiian warfare, and conditions of it has situdes enabling legislation powers ex necessarily scope given them wide try tended farther those ac than judgment exercise and discretion cused offenses denounced statute. determining the nature extent of sum, prohi absence even injury and in the threatened procla bition contained the Governor’s selection of it. resisting the means mation, competent try they were not Where, here, [citing did cases] offense with which he was Duncan for the call the exercise of conditions *8 charged. to her'e becomes thus judgment and discretion and for the choice whether the were com consider by branches of those of the Govern- means petent to define such conduct as an offense placed which ment on the Constitution has proceed punishment the trial and of responsibility war-making, of it is not the it. one accused of any to sit in for review of the wis- judg- dom of action or substitute its emergency existing condition in The of ment for theirs.” already Islands been the has noted. It was emergencies arising In of war General Richardson and out total testified pre- fields in which civilian Nimitz that these conditions are conduct Admiral necessarily upon by April impinged regula- as March is vailed of as late opinion military, in responsible even 1944. of these tions of the areas which part regarded attack are not as of theatre commanders and in- vasion, pressing if less serious and actual warfare. this we have had dur- than Of existing emergency many before, They ing continued familiar still imminent. regulations examples, concerning Hawaiian as an such characterized the area blackouts, dimouts, curfews, part of integral the theatre the like of actual recognized military operations in them —all of essential Pacific. General [17] Revised Laws of Hawaii $1,000 Revised §§ or Laws of imprisonment 5659. penalty prescribed for not 1935. is a c. more fine O. not more than not more than six pie than one the statute assault year. relating thereto,* $100 battery, months. or penalty imprisonment prescribed by is a fine of sim- . 58á punish appellees in security. power the conclusion that regulations custody this should be returned infractions of type respective necessity appellants. must somewhere. reside municipal has legislation If not it We also in conclusion stated concur ordinary delegated ordinance been HEALY, in Judge authority subject courts or made to the proclamations hereinafter referred were per- must police, power of the civil suspension not intended to the that effect. changed the and terminate force arm exist in the not writ did government through acting medium of further We hold that commissions like tribunals. had occurred conditions as right Paragraph Orders 8.01 did restore the to the seen, corpus. type. it regulation As writ habeas This is a conclusion this require of the on counterpart no this matter would had Territory. in the statutes also custody appellees 'or ordi- be restored Nor there statute from was making which were taken under writ nance existence the infraction corpus discharging an offense the courts. and the orders triable from, custody them hardly provision can be reversed. be doubted deem are not We desirable state this was a measure. We ad- reasonable ground say that, able to shown ditional for reversal the orders under conditions area, upon of the assault trial court because the undetermined to exist vital police sentry nature and effect martial law whether or a member of by virtue the necessities of discharge in the exercised with intent to of his him obstruct authorization, express war or duty, little under con- was an of so’ con- offense security statutory, a matter sequence public it stitutional is applied great sought doubt when to be punishment called or that its all instances, punishment as in the cases bar. simple individual The courts as suspend right privilege of adequate battery needs meet corpus directly of habeas is derived offense was writ the hour. That Duncan’s Constitution States. aggravated nature the record does suspension Such is also authorized admit of doubt. Hawaii, organic law of the Whether, prevailing in the situation sought broadened to be 1943, military the Islands March since to situations where there competent punish are to define and ordi- danger of invasion as well as imminent punishable nary civilian as of offenses invasion, phrases although the two actual civilian courts course significance probably when identical before us. reasonably interpreted. showing nothing made There ap- rights We now consider the would war- either of these cases pellees with reference to the grounds rant release on habeas corpus. of habeas writ having to with the fairness do feeling judge, himself bound provosL Nor did the trials courts. finding previous of the United States of unfairness decisions court below make Territory of Court for District trials. writs the conduct privilege of discharged peti- announced that the been should have *9 suspended corpus custody. was the habeas remanded to tioners application. appellees’ the This time of in both cases are re- judgments upon proposition the conclusion was based versed. suspending privilege that the order the by had been aside sub- of the writ sequent orders, set GARRECHT, Judge (concur- Circuit presently will stated. be ring). subject discussion of the shortened Our is opinion of Judge in the I concur by already fact considered the that we have HEALY. Zimmerman, decided, parte Ex and 442, question as to the whether or F.2d WILBUR, Judge (concurring). Circuit privilege the of the writ of habeas suspended say corpus I was in Hawaii from and Judge authorized that am 7, so, 1941, if joins opinion. in this December and the effect me We after MATHEWS concur suspension. held, Judge Judge opinion of HEALY of We such the Healy writing opinion, the concerning existence that effect of the suspension pre- of that Territory Hawaii reason the writ of the
martial law the proclamation law the power- and it claimed that action, eluded such the also, effect, legal re-established of custody a citizen less release from corpus, habeas military privilege of of the United detained States specifically although declared. Territory. The Hawaiian authorities in 8, stating: proclamation February after procla- of various with relation to the facts law remains “Whereas, martial privi- suspending the state and orders mations lege privilege of the writ opinion effect and the in that writ are out set pro- corpus suspended”, habeas remains repeated. Suffice here and need not be ceeds to agencies civilian officers and restore that was there held say it federal territorial by the Territory invaded Hawaii was 7, “respective governments local morning December Japanese on the jurisdictions, powers” con- 1941; proclamation the Govern- functions that the pro- things “judicial Hawaii, cerning, among approved other Territory of or of the civil”, with States, ceedings both law- criminal United the President of the present exceptions certain which are not privilege of the writ fully suspended the Stainback, Organic concern. who issued Governor section 67 authorized as Law Hawaii, proclamation, his Territory passed the testified per cent 153, restored least 1900, U.S.C.A. April Stat. proclamation authority. That of civil the United Constitution suspension effect the was not intended to the I, pro- clause States, section Article corpus privilege habeas Privilege of the Writ of “The vides: preceded, clear from contemporaneous suspended, what what un- Corpus shall Habeas not be with, proclamation of or Invasion less when Cases of Rebellion proclamation resulted Governor. require public Safety may it.” We Washington, from a conference D. held proposition heretofore then with start determined C., in Governor of the court, procla- which the Interior, Secretary suspending the mation of Governor Secretary War, Attorney Gen- corpus and writ of habeas eral, joined agreements in discussions and law, approved by declaring martial leading approval by the President was valid President of proposed proclamation February privi- binding on the courts. If 8, 1943, promulgation. to its suspended, lege then of the writ still joint January letter to the President parte in Ex Zimmer- under our decision man, supra, submitting agreement him the action of the trial court to, above referred it was said: “Pursuant appellees re- and the must reversed agreement Governor of Hawaii custody appellant manded Commanding and the issue will placed been where he had proclamations. simultaneous Their effect authorities. unchanged is to leave the state of martial appellees’ .privilege claim law and the writ of longer is no writ of habeas corpus, restore civil suspended Hawaii government majority functions propositions: based distinct two hitherto exercised authori- First, officially by ap- it was ended ties, provide emergency powers and to propriate February 8, military government.” second, and, even if there was of the President dated Febru- The letter formal restoration such as a matter of no Secretary addressed to the ary War, acknowledged for martial law necessity and the fact receipt pro- and, suspension of the writ ceased has posed proclamation to be issued concur- therefore, by changed reason of con- rently by Commanding General longer exists and ditions approved Governor *10 suspension longer the writ is no effec- of same, stating: “In an area of such stra- tive. We shall first consider the contention importance Hawaiian tegic as the Islands with reference to the restoration of the Pacific, in in time of active war the I a privilege by proclamation the of appreciate difficulty readily in de- the can fining February 8, 1943. exactly boundaries between the I military functions. think the form- On date the Governor of the Ter- proclamation applies ritory proclamation a Hawaii issued ula this meets which declaring partial suspension present the needs." the martial When to point Governor returned As to to effect Stainback as the second Hawaii he proclamation changed conditions, in ac- issued the the trial court having cordance with refer- agreement privilege above of the concluded published red a says: and concurrently corpus writ of habeas therewith was restored which, among things, proclamation, statement other was directed attention question changed to the of the the effect upon declaring proclamation conditions rep- among “After numerous conferences only martial law which had been revoked War, Justice, resentatives Interior of the ’ part by proclamation February Departments myself, agreed proclama- part 1943. to the As that martial law should be continued tion purporting a to continue force existing Hawaii but control part law, of martial argument is that large a should be modified restore to invasion, longer as is no danger of extent civilian civilian matters. control of. otherwise, necessity imminent or My proclamation agree- this the result of authority martial Territory has ment. passed; consequently, the need no court Congress “Under the Govern- ofAct longer recognize authority of the mili- faithful execution ‘responsible for the or is tary appellee custody, detain and of the United States laws merely which was an incident of the neces- Territory. Territory’ On within the sity argument (This martial law. of Hawaii Governor December Supreme based decision proclamation placing the Terri- a issued tory parte in Ex Milligan, Court 71 U.S. proclamation martial under 281.) Wall. 18 L.Ed. No case is cited Sep- subsequently me on modified none is found in which it is held that 2nd, is- This tember change of alone result in condition would today martial law and continues sued suspension privilege restoration of the privilege writ of corpus. writ of habeas But even if such prior corpus modified those but were true the record does not disclose restoring the civil au- proclamations by justify ap- such a situation as respective jurisdiction in their thorities plication rule, of such if A exists. except for cer- affairs civilian over fields great testimony deal of the was directed primarily subjects which are specified tain situation in the concern.” time trial and trial court perfectly the Govern- clear seems fact found that “while the Island de- or, the suspend is vested with who may Oahu been on March privi- law and martial clare lege day, subject pos- and thereafter this corpus of habeas under war, sible attack enemies at it was 67, supra, no intention of had section' then, now, nor is it imminent privilege writ. restoring the forces, invasion hostile neither was wheth- undetermined of doubt and a matter is it in rebellion.” The trial writ, having er government fact that the civil found and thus approved President been operation.1 inwas efficient act of President made support necessity of the claimed unapproved restored could be partial maintenance of continued martial necessary It is not the Governor. action of law, Lieut. Richardson the reason determine Army, in United States command of that proclamation of clear that the it is that the statement, area, and Admiral Nimitz of the United Governor, accompanying Navy, charge opera- States the naval had no intention he shows that Pacific, through tions each suspended testified order which vacating the his continuance far conclude that so- We privilege. law was February 3, is con- proclamation cerned, protection of the ter- the writ of habeas of ritory and of the United States. suspended. remains operation fully ther efficient ca- the evidence that all find from “I operation pable year all its during branch- and contin- times ordinary departments day, and was es uing were such conditions equipped, capable sufficiently willing principal islands throughout all *11 perform regu- all functions for which it was that government created.” larly was ei- constituted their, area, testi- their and that also have opinions but we judge, notwithstanding this habeas danger mony under in oath orders, was no that concluded there C. Robert General necessity proceeding. for Lieutenant continued of invasion and no following Richardson, response to the appellee re- in and ordered the following op- question answer: diametrically gave the leased. We thus have posed by the General Richardson, views of the situation Now, based “Q. responsible defense and Admiral for your situa- upon tion, appraisal Territory, and the Hawaiian also your opinion as to you will state and defense of judge United danger is imminent whether or not therefor. responsibility who had no Japa- Territory by the of invasion of this question is Under such circumstances not from a enemy? A. I shall nese state solution, been for it has difficult reality point actual soldier’s view Moyer Supreme by our Court held situation, attempting to Peabody, 212 U.S. 29 S.Ct. argue academic definition or define the that 53 L.Ed. decided danger We know ‘imminent invasion.’ jurisdiction an federal court had no that, that, quite at we certain least feel imprisonment against the action for false Japanese totally incapable of com- are who of Colorado Governor of State large land- ing to islands with a these plaintiff imprisoned the had seized and seizing purpose based force for the days suspended had Moyer for capturing it. do think that We not said: the writ. capability within time their all. admitted, be, as must that “It And, therefore, past. if that that is of in- governor’s a declaration state that interpretation paramount in the mind of of that surrection existed is conclusive layman, may the you be eliminated. But that the fact. It seems to be admitted also must as remember necessarily have alone would arrest given professions, other branches and other times * * * . right bring a this suit. developments. change. new There are many But it is a detention for so said that written, phrase When that was ‘imminent cause, days, alleged probable to be without invasion,’ danger nor [neither] open, time when courts were a submarine, istence, airplane nor ex- attempt plaintiff bring an without before they nor were ever dreamed of. them, makes he a case weapons These war new have two * * * pass. right jury to have has a they potentialities, and have in- enormous good long are So as such arrests made troduced into warfare the element of stealth, they belief that faith and honest surprise, element of to head insurrection needed order And, therefore, speed. capital- element of off, governor subjected judge final and can- is the warfare, izing new on these elements of action he to an after enemy, Japanese, our his has at dis- office, ground he had out of force, today strong posal destroy- carrier ground for his reasonable belief. ers, cruisers, battleships, airplanes, * * * danger warrants the sub- Public submarines, all of which combine those judicial process executive stitution of stealth, surprise speed. elements of process.” “Therefore, they capability have the still attack, launching an invasion decision, from seem clear by undersea, air, an against invasion these principle, that the decision well as as only And islands. have not continued sus- whether as to not the itself; capability always it is impending, pension long exists, capability entirely authorities, for the executive one danger impends is immi- faith an honest good made if nent.” question examine shall belief. We a moment. Nimitz, Admiral Chester W. Navy, an executive States Commander-in-Chief situation Pacific Was areas, say Pacific Ocean the continued Fleet and testified could privilege of the writ of habeas cor- as follows: necessary? pus was you state, “Q. Nimitz, Admiral Will way strategic position only general Considering we not part your public general in evidence the acts and decla- this com- .A. The Hawaiian mand? area Governor consti- rations Nimitz, charge only for the Navy who are base tutes Admiral *12 I present bridgehead, numbers no. to seize have in Pacific Ocean probable. to importance consider But neither nor greatest imminent time. the It has the it submarine, stealth, operations by by Army invasion and to- fleet raids, in- I espionage parties, is con- Anything that commando to jurious westward. only probable our sider it not imminent. prejudicial to area but to this is constantly impending. is conduct war. Nimitz, “Q. your “Q. believe, And what view on invasion you Admiral is Do matter, by I that a naval carrier-borne aircraft? A. cited or as matter military previous answer, possible, in if might could is Japanese enemy that that attack these islands? A. It risk; Japanese they Yes, they could. wish to take planes make have capability carriers and sufficient sufficient is within their still front, spite to make an similiar attack on islands carrier these attacks behind they December make. We the one that made on daily we searches that 7th, ceased, 7th. December have never since which think search the from areas danger surprise In considering re likely come. Until those attacks are by ferred both the General destroyed, Japanese is * * that the last carrier Admiral, should noted the testi be that * capability will exist. mony advantage few shows of a that may in modern Nimitz, minutes decisive warf “Q. be addition Admiral are.2 possibility of an carrier-based attack factors, military planes, parte Mil Supreme are there other Ex Court major determin- factors be considered 18 L.Ed. ligan, 4 Wall. by the ing Japanese possibility of an attack dealing a situation in which Territory? suspen- A. Yes. provided Congress had that raiders, Japanese can land commando sion the writ should be effective parties, spite reason- espionage where indict the there was a failure to And preventive able efforts we make. petitioner that within fixed statute. a time might possibly they therefore, case, the information that dealt not with my be—in suspension obtain would but! effect of the writ —could they if injurious than try petitioner to our cause right rather with more a by period islands and established during came to these tribunal The informa- of them. beachhead one he was authori- held prospective might as to they Supreme tion held that ties. The Court fleet, presence of our juris- movements of our authorities without waters, absence, the in these try petitioner fleet diction and that the from the might be made deductions information decision of the void court was up pick mingling with reason, holding that the court situ- very community might Japanese application justify ation did not operations in expressed some our well cause martial law violation of the here, west, contrary. un- Congress westward of to be far will to the far question in that case divided successful. Congress, words, you Well, agree of whether or under the “Q. do in other Constitution, testimony could authorize trials other Richardson’s with General by jury circumstances, than operations under the dis- Naval protection of these premature closed in record. This decision will disclosure is a from westward importance operations? weighing the effect your It be of A. factor vital judgment provost importance, court in this and the secur- utmost is of the case, activity which we hold espionage in these is- be- ity against importance. utmost fore us. lands Nimitz, Assuming purpose having in mind as we do for “Q. Admiral responsibility, opinion, deciding, your here and and this you your duties situation, ignore an order study suspending can court privilege your not, your opinion, whether state persons custody held in of invasion the Ter- imminent Japanese? A. when such In- authorities ritory so arbitrary, capricious troops in sufficient unreasonable sea-borne vasion Navy Department report Pearl Harbor were action within minutes after the attack at states that all the seven 7:55 December guns m. vessels a. of the naval anti-aircraft
589 appellees the part return on the court directed to of fraud justify an inference to appellants. respective authorities, custody in to the the military hold the war in global aof the existence view of DENMAN, Judge. from Circuit involved nation is the court the shown in evidence facts discharge the I concur in the orders below, say decision of the the courts cannot deciding the writs but the dissent the Governor military or of the authorities jurisdiction question the constitutional suspension is such of Hawaii to continue the writs. or issue of the court to arbitrary, fraudulent capricious or so writs petitions for the This is because the the action ignoring justify to the courts petitioners on their fail show the faces to ordering authorities the to belong persons entitled to class of the custody. persons release writ privilege of the the constitutional based The decision the trial is, alleging corpus those habeas —that necessity independent judgment of its own clearly These imprisonment.1 their illegal priv- suspension continued applied the cases should be in which corpus, while ilege of habeas of the writ be that, possible, a case must principle if number supported direct evidence of a constitutional decided on other than Stainback, including Governor of witnesses grounds. enough its go sustain not far to does presented in question The constitutional opinion ignores the order because it appellants’ appeal in both points contrary to authorities cases is as follows: stated justifying find its order. does facts consisting pleadings2 “I. The implied fraud on the finding of Without a part writ, show petition to cause order for a of the Governor issue, why the return writ should not be authorities the decision cannot sus- petition, order show answer tained. return, traverse cause and to the appellees claim that even if the also the writ of privilege of disclose that corpus writ of habeas has been and now is- lawfully suspended and suspended within pursuant existed lawfully suspension apply type such does proclamations public the Governor appellee. of offense committed pursuant issued of Hawaii appellees that: “The contend Constitu- Territory; Act Organic contemplates priv- tion * * *» only ilege persons cases of writ engaged aiding in- rebellion opinion Judge In the con- WILBUR’S provides vasion.” The Constitution question presented so as to stitutional such limitation and we see no reason for legally whether orders de- application. interpretation Such an appellees prived the open Constitution leave only is not entertained but question in every case as to whether or appellants. decided in favor of persons the conduct detained opinion HEALY’S Judge assumed that authorities came within constitutional decided ad- exception. versely appellants. If his excellent holding could be construed as decisions be reversed and the should joins 1 28 writ which here issue U.S.C.A. 455. “Allowance petition. judge court, justice, Tomlinson, Whitten v. direction. The 160 231, 242, application 16 S.Ct. 40 whom made shall U.S. L.Ed. Huff, App.D. 406. Hammerer 71 habeas cor Cf. v. forthwith award a writ of pus, 113, 114, appears peti P.2d from the C. 110 A sim- unless it stipulation party ilar made White tion itself is not entitled case, the return to the where writ also shall directed thereto. The writ be expressly allegations party custody person admits some of in whose others, par- petition and denies is detained.” ticularly petitions suggested that no its assertion become In no sense invasion existed. could it functus officio on the issue of writs. petition stipulated became said that functus in the Duncan case It was of the writ. I officio on the issuance do the return to the order show Clise, Barth v. 12 Wall. not believe 402, issued made writ was cause before does, If it so holds. L.Ed. the writ be deemed a return to shall v. Tomlin- Whitten is overruled the issue is fixed In such situation son, supra. petition the return question entirely ignored, constitutional I Olsen, 43 S.Ct. would concur in 839; it. L.Ed. Blair *14 v. United 273, 279, 979; U.S. 468, 39 S.Ct. 63 L. Ed. my petitions view on their that the Plymouth Pennsylvania, Coal Co. 232 v. faces, judi- taken in with facts connection 531, 545, 713; U.S. 359, 34 58 S.Ct. L.Ed. cially noticed, invoking to be show no facts Municipal Birmingham, v. Investors Ass’n jurisdiction power District 153, 316 155, 975, U.S. 86 62 S.Ct. L.Ed. writs; Court to issue the the court proceeded should have to than no further power; determine that had such it no petition White’s a cause state to fails proceed error in both cases to the issuance the writ. White’s hearings on the to show cause petition orders alleges that he was convicted —all the more so to decide or assume the the Marshal’s court of Provost the crime question decision of the existence of embezzlement and sentenced five to right respective petitioners to years’ imprisonment Prison, in Oahu where privilege constitutional of the writ. custody appellant, he confined in respondent Briefly stated, below. The conviction was on fatal defects of the August 25, petitions 1942, they within three months of in both on cases are that rest Midway, the Battle assertions, engage- considered, fully later more ment large Japanese two or danger actually more fleets of no of invasion existed war vessels any pertinent steaming the Hawaiian toward warranting the times sus- pension Islands were writ, defeated the Island there is near whereas no of. Midway. allegation It could not be contended sole to fact Japanese there was petitions, Navy no namely, sustain the for a at none left attempt pertinent second military to the Hawaiian times au- did the invade Islands. thorities grounds have reasonable to believe danger. the existence of such As alleged It is further that on December discussed, military later could have 7, 1941, the Governor of Hawaii had de- though such a danger belief no such clared law and authorized the Com- Incidentally, though fact existed. it seems manding depart- General of the Hawaiian irrelevant, petitioners did not mend their ment and his subordinates exercise to pleading. allegation holds later No powers normally judicial exercised appears in the traverses to returns to Territory. officers of the is not con- the orders show cause. tended that order was invalid when Merely persons imprisoned because made, parte Zimmerman, 443, Ex 132 F.2d prima give right does them the facie but mere conclusion of law is stated power judge of the court or invoke “that said martial legal- law ceased to exist corpus habeas issue writs of in their ly in Territory prior August 25, to said 24, parte Quirin, behalf. Ex U.S. 63 317 S. 1942, when he was tried as aforesaid 2, persons 87 Ct. L.Ed. 3. class of to before said Provost Court.” privilege whom the constitutional is ex- petition does not and could not “unlawfully tended consists of those de- allege open the civil courts were prived liberty.”3 petitions their functioning at the trial time of and sen- proceedings which the instant on rest on tence, alleges but no more than that petitioners their faces show the are im- ready perform were able and judgments prisoned on in char- normal functions and showing duties. As acter, unlawful when made nor since supporting legal the fact conclusion petitions unlawful. become no more that “martial ceased to exist [had] petitioners belonging show to the class legally,” alleged further that no “such legal having interests entitling them danger enemy imminent invasion raise orders existed as to or justify force warrant denying privi- them their constitutional petitioner denial trial and hear- writ, litigants many lege of the than ing proper before the courts and of the brought cases themselves within Territory of Hawaii.” legal having entitling class interests them stated, ques- petition other a decision of constitutional As what makes the fatal- City any of Trade of ly tions. Board the absence of Chicago allega- defective4 is McNally Hill, Warden, ly, unlawful, stated As restraint which is 131, 138, 27, may 55 S.Ct. writ not be used.” liberty, parte Zimmerman, “Without L.Ed. restraint Ex This * * * Equal- involving will writ issue. F.2d case no writ ground con- issuance tion that the time of dis- have been 25, 1942, au- should of habeas August viction on ground missed an- on that alone. ground to thorities had reasonable ticipate there was believe that grounds state petition Duncan’s fails necessity re- of invasion or other invoke judicial quiring exercise of all on corpus. convicted Duncan was powers by denial assaulted, having March judicial the exercise of gate main sentries at February the civil authorities. Reservation, while of the Pearl Harbor *15 agreement I am Reservation. Here alleged All in the after- is Healy’s In addi- Judge with statement. months wisdom nineteen of March in time judicial notice is taken that tion later, or mili danger such invasion no military requires necessity of war mili tary necessity by the for the exercise respect to all soldiers fullest be shown nonmilitary tary judicial power over performance mili- uniform in the 25, 1942, August offenses in existed on fact duties, tary the Marine sen- possible entirely history will show fortiori guarding Pearl Har- tries entrance to petitions filed long before the subject pos- bor with its fortifications Japanese military regarded authorities the the Equally mili- sabotage. sible clear Islands as invasion of the Hawaiian tary necessity prompt punishment for impossible it at and never entertained itself for maintenance pertinent of the the issues times discipline self-respect its and the petitions. that re- members and for command of However, allegations, no such after-wise spect by civilians. facts, even if can assumed state petition allegations Duncan’s contains satisfy requirement allegation petition similar con- to those of White’s ground in the absence of reasonable cerning the absence of invasion ap- mind commander military necessity for such exer- prehend pre- need likelihood military. judicial cise pare to resist and to such an invasion resist allegations required Nowhere are judicial of the need such control apprehension in- absence of reasonable preparation during such and resistance. vasion or the of reasonable belief absence Kiyoshi Hirabayashi v. military necessity ad- for 81, 94, 1774; S.Ct. L.Ed. judication assaulting such offense Constantin, 378, 399, Sterling 287 U.S. stated, here sentries as committed. As 77 L.Ed. S.Ct. affirmatively appears that such Concerning the absence of written no- necessity existed. embezzlement, charge of I tice of am petition should have agreement Judge with state- HEALY’S stating been dismissed because no cause prejudice In ment. addition no is shown granting claimed consti- and, us, the evidence since before privilege. pro- tutional error may petitioner assume that the himself beyond permit plead- ceed warranting facts testified to his conviction. proof ings and of the writ issuance Likewise, agreement I am with Judge discharged been which should have regarding HEALY’S statement the ab- other reason than that last above stated. jury sence the character of martial distinguished STEPHENS, Judge, par- law of civil Circuit did not petition ticipate its face decision of White’s these courts. shows cases. question, holding peti- product er unskilled but the same empowering to state failed facts of able members Honolulu tion bar. opinion, writ, my to issue the stated reason for the district ab- “ * * * any allegation that, August It is true that the rule as sence of petitions great averments could reasona- bly pos- scrutinized technical entertained the idea of a are they they nicety; taken as neither invasion for must but sible guard, something importing prepared bring other than what and on and thus Hirabayashi say. courts, case, petition circumstances within the responsible ought present, infra, to be careful to is because mem- like captious allegation bar such an idle inference.” knew avoid bers inartificially petition is not an be untrue. prepared by petition- document drawn