Duncan v. Kahanamoku, 327 U.S.
304 (1946)
Duncan v. Kahanamoku
Argued December 7, 1945
Decided February 25, 1946*
327 U.S. 304
Syllabus
1. Section 67 of the Hawaiian Organic Act, 31 Stat. 141, 153, authorizing the Territorial Governor, 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 . . . under martial law," did not give the armed forces, during a
period of martial law, power to supplant all civilian laws and to substitute military for judicial trials of civilians not
charged with violations of the law of war, in territory of the United States not recently regained from an enemy at
a time when the dangers apprehended by the military are not sufficient to cause them to require civilians to
evacuate the area and it is not impossible for the civilian government and the courts to function.
(a) Although part of the language of § 67 of the Organic Act is identical with a part of the language of the
original Constitution of Hawaii, Congress did not intend to adopt the decision of the Supreme Court of Hawaii
in In re Kalanianaole, 10 Hawaii 29, sustaining military trials of civilians in Hawaii without adequate court review
during periods of insurrection.
(b) When the Organic Act is read as a whole and in the light of its legislative history, it is clear that Congress
intended that civilians in Hawaii should be entitled to constitutional protection, including the guarantee of a fair
trial, to the same extent as those who live in any other part of our country.
(c) Our system of government is the antithesis of total military rule, and its founders are not likely to have
contemplated complete military dominance within the limits of a territory made a part of this country and not
recently taken from an enemy..
(d) When Congress passed the 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 in which our people have always
believed, which responsible military and executive officers had heeded, and which had become part of our
political philosophy and institutions..
(e) The phrase "martial law," as employed in that 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..
2. Petitioners, two civilians who were unlawfully tried, convicted and imprisoned by military tribunals in Hawaii
during a period of martial law when the privilege of the writ of habeas corpus had been suspended, are entitled
to their freedom on writs of habeas corpus -- at least after the privilege of the writ had been restored. 146 F.2d
576, reversed.
No. 14. Petitioner, a civilian shipfitter employed in the Navy Yard at Honolulu, was arrested by military
authorities and tried and sentenced to imprisonment by a military tribunal for assaulting two Marine sentries on
duty at the Navy Yard in violation of a military order more than two years after the attack on Pearl Harbor. At
that time, schools, bars, and motion picture theaters had been reopened, and the courts had been authorized to
exercise their normal functions, with certain exceptions, one being that only military tribunals were permitted to
try criminal prosecutions for violations of military orders.
No. 15. Petitioner, a civilian stockbroker in Honolulu having no connection with the armed forces, was arrested
by military police more than eight months after the attack on Pearl Harbor on a charge of embezzling stock
belonging to another civilian in violation of the laws of Hawaii. He was tried, convicted, and sentenced to
imprisonment by a military tribunal at a time when the courts were open and functioning to a limited extent "as
agents of the Military Governor."
Both petitioned the district court for writs of habeas corpus, challenging the validity of their trials and convictions
by military tribunals under a state of "martial law" which had been declared on the day of the attack on Pearl
Harbor. After separate trials, the district court found that the courts had always been able to function, but for
military orders closing them, and that there was no military necessity for the trial of petitioners by military
tribunals, rather than by regular courts. It held the trials void and ordered the release of petitioners. The circuit
court of appeals reversed. 146 F.2d 476. This Court granted certiorari. 324 U.S. 833. Reversed,
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