![]() Duncan was charged with violating one of these orders, paragraph 8.01, Title 8, of General Order No. 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. There were important exceptions, however. Courts had been authorized to 'exercise their normal functions.' They were once more summoning jurors and witnesses and conducting criminal trials. Schools, bars and motion picture theatres had been reopened. By the time of his arrest the military had to some extent eased the stringency of military rule. He was arrested by the military authorities. 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. 14, was a civilian shipfitter employed in the Navy Yard at Honolulu. Later the sentence was reduced to four years.ĭuncan, the petitioner in No. The tribunal sentenced him to five years imprisonment. On August 25th he was tried and convicted. His attorney asked for additional time to prepare the case. He objected to the tribunal's jurisdiction but the objection was overruled. On August 22nd, White was brought before a military tribunal designated as a 'Provost Court.' The 'Court' orally informed him of the charge. 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. The charge against him was embezzling stock belonging to another civilian in violation of Chapter 183 of the Revised Laws of Hawaii. On August 20, 1942, more than eight months after the Pearl Harbor attack, the military police arrested him. Neither he nor his business was connected with the armed forces. Military tribunals could punish violators of these orders by fine, imprisonment or death. ![]() 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. 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. The military tribunals interpreted the very orders promulgated by the military authorities and proceeded to punish violators. ![]() 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. In imposing penalties the military 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. ![]() Rules of evidence and procedure of courts of law were not to control the military trials. 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. ![]() The Commanding General established military tribunals to take the place of the courts. On December 8th, both civil and criminal courts were forbidden to summon jurors and witnesses and to try cases. Pursuant to this authorization the Commanding General immediately proclaimed himself Military Governor and undertook the defense of the Territory and the maintenance of order. 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.' § 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. 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. The following events led to the military tribunals' exercise of jurisdiction over the petitioners. ![]()
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