MARTIAL LAW IN HAWAII
The question of the constitutional status of martial law was raised in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also "all of the powers normally exercised by the judicial officers * * * of this territory * * * during the present emergency and until the danger of invasion is removed." Two days later the Governor's action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.
By section 67 of the Organic Act of April 30, 1900,[84] the Territorial Governor is authorized "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, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known." By section 5 of the Organic Act, "the Constitution, * * *, shall have the same force and effect within the said Territory as elsewhere in the United States." In a brace of cases which reached it in February 1945 but which it contrived to postpone deciding till February 1946,[85] the Court, speaking by Justice Black, held that the term "martial law" as employed in the Organic 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."[86] The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result. "I assume also," said he, "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";[87] but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that "courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight."[88]
THE CASE OF THE NAZI SABOTEURS[89]
The saboteurs were eight youths, seven Germans and one an American, who, following a course of training in sabotage in Berlin, were brought to this country in June 1942 aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.
The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. "* * * those who during time of war pass surreptitiously from enemy territory into * * * [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission."[90] The second argument it disposed of by showing that petitioners' case was of a kind that was never deemed to be within the terms of Amendments V and VI, citing in confirmation of this position the trial of Major Andre.[91] The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,[92] thereby, in effect, attributing to the latter the right to amend the Articles of War in a case of the kind before the Court ad libitum.
The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President's purely martial powers as Commander in Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war they would have been subject under the statutes to restraint and other disciplinary action by the President without appeal to the courts.[93]
THE WAR CRIMES CASES
As a matter of fact, in General Yamashita's case,[94] which was brought after the termination of hostilities for alleged "war crimes," the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge's dissenting opinion in this case: "The difference between the Court's view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply."[95] And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under International Law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws; nor does International Law forbid ex post facto laws.[96]
THE PRESIDENT AS COMMANDER OF THE FORCES