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May|June 2003
Lights, Camera, Lockdown By Dashka Slater
Taking Liberties By Harry N. Scheiber and Jane L. Scheiber

Taking Liberties

When the American military seized power in Hawaii after Pearl Harbor, government lawyers were forced to choose between the Army and the Constitution.

By Harry N. Scheiber and Jane L. Scheiber

ON DECEMBER 7, 1941, WITH RESCUE WORKERS and firefighters still frantically at work following the Japanese attack on Pearl Harbor, the governor of the Territory of Hawaii and the commanding general of the U.S. Army in the Hawaiian islands jointly imposed martial law. The Army declared that, because of the "danger of invasion," the 43,000 troops stationed there were taking control of the territory's entire civil government and its 465,000 civilians. One-third of the population was of Japanese birth or Japanese-American descent. However, the Army did not seek a presidential order for mass internment as it did on the mainland, where the government removed 110,000 Japanese-Americans from the West Coast out of fear that they might cooperate with the enemy. But it closed all of Hawaii's civilian courts and suspended the writ of habeas corpus. It also imposed military censorship over the press and all mail.

To seize power, the military needed to issue legal orders. On his own initiative, the Army's chief legal officer in Hawaii, Lt. Col. Thomas Green, who would soon be appointed a general, had drafted such orders before the Pearl Harbor attack. But did Green strike the right balance between wartime imperatives and the requirements of the Constitution?

Two lawyers in Washington were responsible for overseeing and defending Green's choices. As assistant secretary of war, John McCloy had to monitor martial law in Hawaii from afar. In this capacity, he zealously promoted the assumed powers of the military regime. A litigator at the Justice Department, Edward Ennis, had to defend Green's actions in court. Unlike McCloy, however, he remained focused on his function as an "officer of the court" and committed to restraining the military as he believed the law required. At a time when the United States has again curtailed civil liberties in the name of war, it is instructive to evaluate how these lawyers responded to the exigencies of their time.

THE MILITARY ASSUMED ABSOLUTE CONTROL OF HAWAII. To justify this action, it relied on the federal statute that turned the islands into a U.S. territory, the Organic Act of 1900. (The islands did not become a state until 1959.) The act provided that the governor "may in case of rebellion or invasion or imminent danger thereof . . . 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." The Army reopened the territorial courts after a few months but limited them to civil disputes and forbade jury trials, believing that multiracial Hawaiian juries could not be impartial. It restored limited civil government in March 1943.

While Green was quickly organizing the Army regime following the Pearl Harbor attack, the FBI and the military picked up several hundred alien residents and foreign-born citizens who had been identified as possible security risks. These people were initially placed in military custody in primitive camp facilities on Sand Island, a small island near Pearl Harbor, following hastily convened hearings under Army supervision. At the hearings, the detainees were not informed of the specific charges against them. They also had no right to examine the evidence against them and had limited access to legal counsel. By the time the war ended in 1945, some 10,000 persons had been subjected to security investigations or loyalty hearings in Hawaii. Of that number, 1,569—1,466 of Japanese descent—were interned.

The Army also imposed blackout and curfew regulations in all civilian areas, and it kept these regulations in effect for more than three years. Particularly onerous to the population was the Army's detailed control of labor relations. The Army made criminal offenses of job switching and unauthorized absenteeism from work, with violators tried in military provost courts. These courts considered cases ranging from the most serious criminal cases to dog-leash violations. They conducted some 50,000 trials of civilians throughout the islands during the war, with a 99 percent conviction rate in the 22,000 cases on the island of Oahu in 1942 and 1943. The average trial lasted five minutes, and legal counsel was seldom at hand once it became common knowledge that the presence of a defense lawyer would ensure a harsh sentence. In response to every inquiry from Washington, however, the Army command in Hawaii insisted that the provost courts were acting fairly and with a rough kind of due process. When asked by some local lawyers to seek the U.S. attorney general's approval for the Army's procedures, Green refused, reportedly declaring, "A commanding general is always right."

The record of military rule in wartime Hawaii is without precedent in American history. It far exceeded in duration a similar exercise of authority over civilians during the Civil War, when President Lincoln declared martial law in sections of the North for brief periods. It also differed from the internment of Japanese-Americans because it involved a complete suspension of constitutional liberties for an entire civilian population. There is abundant evidence that civilians from all ethnic groups were subjected to arbitrary and humiliating treatment. "While fighting for democracy on a dozen fronts," the Interior Department solicitor wrote in December 1942, "we have dictatorship, quite needlessly—almost by accident, in one vital part of the United States of America." That sentiment was echoed in a confidential 1946 investigation of Hawaii's wartime military courts, in which a Justice Department counsel concluded without qualification: "It's a very, very nasty unpleasant picture, and you just cannot justify it in any way."

THE FINAL AUTHORITY ABOUT WHETHER TO IMPOSE MARTIAL LAW rested with President Franklin Delano Roosevelt. But the president was reluctant to deny the Army what its commanding officers wanted, especially in an exposed outpost of American territory that had already once been badly damaged by the Japanese air force. The president was determined that the goal of winning the war prevail over all else. He said of Hawaii, "I do not worry about the constitutional question. . . . The whole matter is one of immediate and present war emergency."

Roosevelt's belief—that the military should be granted virtually untrammeled authority—was shared by Secretary of War Henry Stimson and by Assistant Secretary McCloy. Stimson had brought the 46-year-old lawyer to the War Department from a Wall Street law firm in 1941. A graduate of Harvard Law School, McCloy had won fame as counsel on a successful civil claim against Germany for sabatoging a New Jersey munitions factory in 1916. (After World War II, McCloy would oversee the occupation of West Germany, serve as president of the World Bank, and later act as an adviser on international affairs to several presidents.) During the war, McCloy supervised from Washington the commanding generals who assumed the title of "Military Governor" of Hawaii. He had little sympathy for those who wanted civilian government restored. (In this, he was similar to Green, who parlayed his position as Hawaii's chief legal officer into a virtual czardom, moving into the attorney general's Iolani Palace office in Honolulu.)

In a case involving a death sentence imposed on a civilian by an Army tribunal in Hawaii early in the war, McCloy responded to those who demanded an administrative review of the decision that "the very essence of martial law [is] that military courts do impose anything from a fine to a death sentence without reviewing." He dismissed all complaints about injustices by military courts. He asserted that in wartime the commander on the ground must have the final word in assessing risks and deciding on priorities.

McCloy wrote privately in September 1942 that placing the Japanese-Americans in internment camps offered the Army "a great opportunity" to learn how to deal with "the Japanese problem in this country." Holding them in the camps, McCloy said, "afford[ed] a means of sampling their opinion and studying their customs and habits." Such a man was not likely to quarrel with the Army's premise that the very existence of the Japanese-American population in Hawaii constituted a potential security threat.

In only one extreme case did McCloy rein in the military. In 1943, a brace of habeas cases was heard in federal district court in Honolulu. Two German-American internees who were held for being "suspect" challenged the constitutionality of their imprisonment. The Army's then-commander in Hawaii, General Robert Richardson, issued an order stating that if Judge Delbert Metzger entertained the habeas petitions, Metzger would be subject to prosecution before a military tribunal and a sentence of five years at hard labor. McCloy convinced the Army to back down from this harsh position. But despite his important rank in the chain of command, which reflected America's vaunted tradition of civilian control over the military, he did so in letters that still expressed a sense of deference to the Army. McCloy told the Justice Department that he would have to oppose any legal position that threatened to "impair the position and prestige of the commanding general."

McCloy's approach was generally that of an advocate helping his clients get whatever they said they needed. To limit the military to its strictly confined jurisdiction and to restore fuller civilian authority, he averred, would introduce "an undesirable and dangerous inflexibility" in a situation that demanded broad discretionary power. "General principles may certainly be outlined," he conceded, "but you can't draft the Magna Carta for the Hawaiian Islands in time of war in the Pacific."

EDWARD ENNIS WAS A GRADUATE OF COLUMBIA LAW SCHOOL, and he joined the Justice Department in 1932. When war broke out, he served as a litigator under direction of the solicitor general, Charles Fahy. (After World War II, Ennis would serve from 1955 to 1977 as general counsel, and later president, of the American Civil Liberties Union, where he became a prominent opponent of the Vietnam War and oversaw the legal defense of numerous war resisters.) In 1941, the 33-year-old Ennis was put in charge of the "Alien Enemy Control Unit." In that capacity, he became convinced that the Army was wrong in its legal stance.

During the war, there were six efforts by internees or prisoners to exercise the writ of habeas corpus in the federal district court in Honolulu. When the first internee case was appealed to the U.S. Court of Appeals for the Ninth Circuit in San Francisco in 1942, the court upheld the Army's position that "military necessity" justified imposing military rule and suspending the writ. Despite this favorable finding, government lawyers released the petitioners, all allegedly "suspect" German-American citizens, in this case and three others to avoid what they feared would be an adverse result if the cases went to the Supreme Court. Privately, Army lawyers revealed that they hoped to go to the Supreme Court only when they had a case involving a Japanese-American. But remarkably, not a single internee or provost court prisoner of Japanese descent stepped forward to seek a habeas hearing.

When Ennis reviewed the Army and FBI records of the habeas petitioners, his concerns deepened. He thought that the factual foundations of the cases against the three German-American internees were deficient. The remaining cases arose in 1944 and involved two American-born prisoners. One, a laborer named Lloyd Duncan who worked on ships, had been found guilty of assault and battery; the other, a stock broker named Harry White, was convicted of embezzlement. Military lawyers considered releasing Duncan to prevent his case, Duncan v. Kahanamoku, from reaching the Supreme Court. Eager to give the high court a case that would test the validity of the "military necessity" rationale, Ennis opposed the release. "I thought martial law was entirely wrong in Hawaii after the first year," he recalled in 1972. "[I] took those cases [Duncan and the companion case, White v. Steer] to the Supreme Court and argued them and lost them, I am glad to say. I thought they [the Army] were wrong at the time. I made no secret of my views."

Ennis assured the Army commander that he would represent the Army's position in court as best he could, even though he believed its course was misguided. He pursued the Army's interests within the framework of the legal process, resisting the Army's efforts to evade review by the federal courts and ultimately the Supreme Court. In this, he was seconded by Fahy, who worked with Ennis as the government's appeal strategy was being developed. They sought to ensure that the courts would have the final word on the important legal and constitutional questions involved. To the Army lawyers' dismay, Fahy and Ennis included in their brief to the court an invitation for the justices to rule on whether the Army or the federal courts should be the final authority with respect to "military necessity."

While representing the Army, Ennis also made what they called "informal suggestion[s]" about procedure to ACLU lawyers during appeals in a habeas case out of Hawaii. In a similar vein, Ennis had earlier intervened to protect the reputation of an outspoken attorney, J. Garner Anthony, who represented the habeas petitioner in the Duncan case. During the 1944 trial of that case in Honolulu, General Richardson accused Anthony in open court of harming the American cause in the war. Even though he was there as counsel to Richardson, Ennis responded immediately, praising Anthony for giving his client the kind of representation that reflected the American concept of constitutional justice.

To Ennis, his first loyalty was to the Constitution, not to the generals. After Richardson issued his threat to Metzger, Ennis urged the general in a confidential memorandum to set aside the counsel he had received from Army lawyers in Hawaii. To confront a federal judge in this manner, Ennis warned Richardson, was to go far beyond the scope of "a narrow technical, legal problem in which the commanding General might [be] . . . justified in relying on technical legal advice alone." Ennis cautioned the general that if his order were not rescinded, it could produce a "situation in which it would not be possible [for the Justice Department] to represent the military."

IT WAS NOT UNTIL DECEMBER 7, 1945—the fourth anniversary of the Pearl Harbor attack—that the Supreme Court heard arguments in Duncan and White, the first appeals challenging the Army's wartime regime in the islands to reach the highest court. The court's decision, which came down three months later (with two justices dissenting), was a startling repudiation of the Army's legal position. The court declared the regime to have been manifestly illegal in terms of statutory authority. The majority opinion, written by Justice Hugo Black, was cast in broad language that conveyed the view that the Army's actions had been contrary to the country's fundamental traditions of liberty. "We believe that when Congress passed the Hawaiian Organic Act and authorized the establishment of 'martial law' it had in mind and did not wish to exceed the boundaries between military and civilian power," Black wrote.

A few internees and provost prisoners in Hawaii tried to sue the government for civil damages after the war. But not a single one of the hundreds of Japanese-Americans interned in Hawaii, nor any of their families on their behalf, sought redress in the courts either during or immediately after the war. The Japanese-American community feared that challenging the Army's authority would lead to even more severe measures against them and possibly even a general internment program during the war.

The Duncan decision came too late for the civilians whose lives had been so deeply affected by the Army regulation, and especially for the hundreds who had been sentenced to months or years in prison without the rudiments of a fair trial. The record of civil liberties under Army rule in Hawaii confirms all too well the words of the late constitutional scholar John Frank. He wrote that "the dominant lesson of our history" about the relationship of the judiciary to repression is that "courts love liberty most when it is under pressure least."

Harry N. Scheiber is the Riesenfeld Professor of Law and History and Jane L. Scheiber an assistant dean in the College of Chemistry at the University of California, Berkeley.

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