• Last updated on November 11, 2022

The Supreme Court held that the establishment of military tribunals to try civilians in a U.S. territory was illegal because it was not authorized by an act of Congress.

In 1941, just after the attack on Pearl Harbor, the governor of Hawaii suspended the writ of habeas corpus, placed the territory under martial law, suspended all functions of the civilian government, and delegated executive and judicial powers to the military authorities. General Walter Short proclaimed himself military governor of Hawaii and established military courts that were not subject to review by the regular courts. Military authorities claimed that the Hawaiian Organic Act of 1900 authorized the temporary military regime. Duncan and another person imprisoned by the regime petitioned for a habeas corpus review.Martial law;Duncan v. Kahanamoku[Duncan v. Kahanamoku]

By a 6-2 vote, the Supreme Court ordered the two prisoners released. Justice Hugo L. Black’sBlack, Hugo L.;Duncan v. Kahanamoku[Duncan v. Kahanamoku] majority opinion found that the Hawaiian Organic Act had not authorized a declaration of martial law except under conditions of actual invasion or rebellion. He pointed out that the 1900 statute had extended all the rights of the Constitution to the territory, and therefore, the civilians in Hawaii were entitled to all the constitutional guarantees of a fair trial. Although Black referred to the principles of Ex parte Milligan (1866), he carefully avoided any consideration of the constitutional limitations of Congress in the territories during time of war.

Military justice

Milligan, Ex parte

War powers

World War II

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