Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Joseph 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 Franklin 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, 1900,1 the Territorial Governor was 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.” 2 In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding until February 1946,3 the Court, speaking by Justice Hugo 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.” 4

The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Harlan Stone concurred in the result. “I assume also,” he said, “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,” 5 but added that the military authorities themselves had failed to show justifying facts in this instance.6 Justice Harold Burton, speaking for himself and Justice Felix Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion.7 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.” 8

Footnotes

1

Pub. L. No. 56-339, § 67, 31 Stat. 141, 153 (1900).

2

Id. at 141–142.

3

Duncan v. Kahanamoku, 327 U.S. 304 (1946).

4

Id. at 324.

5

Id. at 336 (Stone, C.J., concurring in the result).

6

Id. at 337.

7

Id. at 344 (Burton, J., dissenting).

8

Id. at 343.