Martial law in Hawaii
On only a few occasions in the history of the United States have American citizens been placed for a substantial period of time under a rule of martial law—the imposition of military rule by military authorities—with the suspension of constitutional rights that military control of civilian life entails. In Hawai'i, martial law was declared within hours of the Japanese attack on Pearl Harbor on December 7, 1941 , and it lasted, with some modifications, for nearly three years, until October 24, 1944. The army's commanding general of the Hawaiian Department became the military governor of Hawai'i, assuming comprehensive executive, legislative, and judicial powers. The martial law regime affected every resident of the Territory of Hawaii, citizen and alien alike. Never before or after in American history were U.S. citizens kept under martial law in such numbers or for so long a time.
The actual administration of military government had some uniquely harsh consequences for Hawai'i's residents of Japanese ancestry—both the 37,000 alien residents (the Issei ) who were ineligible for citizenship, and the 121,000 Japanese-American citizens (the Nisei and Sansei ). Together, the ethnic Japanese comprised 37 percent of the population of Hawai'i. Both their large numbers and doubts about their loyalty in the event of a war with Japan became the primary justification, in the eyes of the military and of President Franklin D. Roosevelt himself, for martial law. Those same large numbers, however, made wholesale mass removal from Hawai'i impractical; Japanese labor was essential to the Hawaiian economy and defense industries, and shipping was unavailable. In marked contrast, therefore, to the drastic policy of forcibly evacuating and then incarcerating the 110,000 Japanese American residents of California, Washington, Oregon, and Arizona, the army instituted a policy of "selective internment" in Hawai'i, leaving most Japanese Americans free to continue their lives in their own homes (and in most cases, their prewar employment) as best they could—but, like the rest of Hawai'i's civilian population, under army rule.
When Congress established Hawai'i as a territory of the United States in 1900, the Organic Act provided that the territorial governor "may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, 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."  In the decades leading up to World War II, as tensions grew between the United States and Japan, military planners in Washington, D.C. regarded martial law as the solution to what was called, in the political and military discussions of the day, the "Japanese problem" in Hawai'i—the presence of a large ethnic Japanese population that might side with the enemy if an invasion became imminent. Once welcomed as a source of inexpensive labor for the sugar plantations , the Japanese immigrants and their American-born children increasingly were viewed by the white power structure and the military as a social, economic, political and, above all, security threat, especially as Pearl Harbor became the focus of defense plans against a growing Japanese fleet. Indeed, Hawai'i's military leaders seemed more concerned with sabotage than with an air attack.
As early as 1921, following a crippling labor strike by Japanese and Filipino plantation workers, the FBI , the Office of Naval Intelligence and the Army's Military Intelligence Division began to work together to keep lists of potentially dangerous Japanese Americans. These efforts were significantly increased starting in 1939. Meanwhile, the U.S. War Plans of 1921 and 1923 presaged the martial law that was actually imposed in 1941, including the internment of aliens and civilians. Refined over the years, these plans called for interning primarily the leaders of the Japanese population: the language teachers, the Shinto and Buddhist priests, consular agents, and the persons on their surveillance lists .
As war clouds gathered in 1941, the Hawaiian legislature passed the Hawaiian Defense Act of 1941 (also know as the M-Day or Mobilization Day Act), which gave the governor extraordinary, virtually dictatorial wartime powers but kept control of the Islands in civilian hands. Nevertheless, when the bombs fell on Pearl Harbor, Commanding General Walter Short, fearing an imminent invasion, convinced Governor Joseph Poindexter that martial law was essential. Poindexter telephoned President Roosevelt, who immediately authorized martial law. At 3:30 p.m., Poindexter, citing the Hawai'i Organic Act, placed the territory under martial law, suspended the writ of habeas corpus, and asked the commanding general to exercise all the powers normally exercised by the governor and "by judicial officers and employees" of the territory. In a simultaneous proclamation, Short assumed the title of Military Governor and verbally designated Colonel Thomas Green as his "Executive" in carrying out those functions.
Civilians under Military Rule
Thus was the entire population of the Hawaiian Islands placed under martial law. Hundreds of general orders were issued under the name of the commanding general, affecting virtually every aspect of civilian life.
Among the most intrusive incursions on freedom were a curfew and blackout that were instituted on the evening of December 7. The army censored the press (and temporarily closed Japanese language newspapers), radio broadcasts and transmissions, long-distance telephone calls and cables, and all civilian mail. The army permanently closed all Japanese language schools and temporarily closed the public schools, allowing them to reopen two months later with a four-day week so children could work in plantation fields. Hospitals and emergency facilities were under direct army control, as were food and liquor sales, parking and traffic, and prostitution. All civilians except very small children were registered and fingerprinted, and they were required to carry identification cards at all times.
The Office of the Military Governor also assumed control of the "alphabet agencies" that on the mainland regulated war production, labor, and price administration. The army's control of labor, including wages, working conditions, and allocations of workers to industries and firms, was particularly resented and led to blatant inequities; nearly half the workers were frozen in their jobs, with stiff penalties for absenteeism or switching jobs without permission.
Additional restrictions were placed on enemy aliens, mainly Japanese. They were restricted from traveling or changing residences without permission. They could not meet in groups of more than ten or be outside during the blackout. They were ordered to turn in all firearms, flashlights, portable radios, cameras, and other items that could be used in espionage, and these prohibitions were extended even to citizens of Japanese, German and Italian ancestry early in 1942. Certain areas of O'ahu were ruled off-limits to Japanese aliens, and many farmers suffered heavy losses when they had to evacuate their property. Japanese fishermen were forbidden to go to sea lest they commit espionage, and many Japanese Americans lost their jobs. Japanese Americans were also soon excluded from the Hawai'i Territorial Guard (although they then volunteered on construction and other projects), and Nisei already serving in the army were segregated and shipped to the mainland.
Violations of military orders, as well as other crimes, were tried before military courts, which replaced civil courts and became one of the most egregious features of the martial law regime. Although the civil courts were permitted to reopen early in 1942 with very limited functions, such as divorce and property claims, the army forbade jury trials, asserting that multiracial juries could not be impartial, and the writ of habeas corpus remained suspended until 1944. Civilians brought before the provost courts were denied virtually all of the basic constitutional guarantees of due process, such as warrants for arrest or for search and seizure of evidence. A single armed officer presided over the trial, which lasted on average less than five minutes. There were no written charges, and legal counsel was discouraged. It was common for an individual to be arrested, tried, and sentenced in the same day. The provost courts tried an estimated 55,000 civilian cases during the war, with traffic violations, curfew and blackout violations, and absenteeism accounting for most of them. Ninety-nine percent of the trials in Honolulu in 1942-43 resulted in guilty verdicts. Violators were punished by fine (up to $5,000) or imprisonment (up to five years) or both, with sentences generally harsher than in civil courts. Prisoners accused of capital crimes, sabotage, or offenses that were punishable by a fine of more than $5,000 or by imprisonment of five years or more were brought before a seven-member military commission, which tried a total of eight cases. In all, the military courts collected more than $1 million in fines during the war and imprisoned hundreds of civilians.
Internment, Incarceration, and Evacuation
Imprisonment of a different kind affected nearly 2,000 aliens and citizens of enemy ancestry in Hawai'i, mainly Japanese, many of whom were held in internment camps or camps run by the War Relocation Authority for the duration of the war with no real evidence against them. Both military and civilian security officers were particularly concerned with the possibility of fifth column activities and sabotage. In Hawai'i as on the mainland, within hours of the Pearl Harbor attack, without presenting any charges (and often with no warrants), the army, FBI, and local police moved quickly to round up aliens and other individuals—mainly leaders of the Japanese community—who previously had been investigated and were suspected of being disloyal or dangerous in a war situation. These individuals were usually told they would be gone a few hours, but many of them were detained for the entire war.
In addition, President Roosevelt immediately ordered the arrest and detainment of all enemy aliens deemed dangerous to the security of the United States; in Hawai'i, the military and FBI interpreted this to include dual citizens. These measures, however, did not go far enough for President Roosevelt, Secretary of the Navy Frank Knox , and some of the white power elite in Hawai'i, who advocated removal of all ethnic Japanese and their placement in concentration camps on Moloka'i or the mainland. Although the president authorized Secretary of War Henry Stimson and Secretary Knox to proceed with mass removal of the Japanese from O'ahu, the military governor, General Delos Emmons , who had replaced the disgraced General Short, stalled. He and the local FBI director believed that the vast majority of Nisei were loyal, and that the Issei, deprived of their leaders, would not be actively involved in sabotage. Faced with shortages of manpower and shipping, and concerned about the effect of a large-scale evacuation on civilian morale, Emmons agreed only to selective "evacuation"—the removal of those who were potentially dangerous in the event of a crisis and a few hundred who were considered to be contributing nothing to the war effort, including families of some who had been interned.
Persons of Japanese descent, and to a far lesser degree of German and Italian descent, were investigated, arrested, interned or incarcerated, paroled, and released throughout the war. After being arrested, the detainees were given hearings by a civilian hearing board (although an armed member of the military served as recorder). The hearing board's recommendation was then reviewed by a military intelligence review board, whose recommendations in turn were forwarded to the Military Governor's Reviewing Board and ultimately to the commanding general. The Military Governor's Reviewing Board also constantly reviewed the cases of those who had already been detained, granting rehearings after 1943. At the hearings, the detainee was not informed of the specific charges against him, and protestations of loyalty to the United States were often disregarded. The Kibei —U.S. citizens who had received some or most of their education in Japan—were regarded with particular suspicion and were incarcerated at a much higher rate than other elements of the Nisei population. 
Most of those arrested in the first weeks of the war were Issei, now designated legally as "enemy aliens"; they were taken into custody in accordance with legislation dating back to 1798 . A total of 712 Issei were interned during the war, most of them in Department of Justice camps on the mainland. However, the army only had the legal power to intern citizens or dual citizens in Hawai'i under martial law; on the mainland, citizens could sue for habeas corpus. Consequently, the army returned the 19 Nisei included in the first wave of removals from the mainland to Hawai'i in August 1942, and thereafter, Nisei were incarcerated in Hawai'i, first at Sand Island and then at Honouliuli .  However, Nisei detainees continued to be transferred to the mainland, technically "released" from "internment" in Hawai'i into the custody of the War Relocation Authority (WRA). They were incarcerated nonetheless. Internees requesting repatriation to Japan were subsequently transferred to the Tule Lake camp, which, in 1943, the WRA designated a " segregation center " for those inmates it considered "disloyal."
These removals from Hawai'i took place in several phases. The first shipments to the mainland, from February to May 1942, included nearly 450 Issei and Nisei, along with more than two dozen German and Italian aliens and citizens, who had been detained in the early months of the war.  The second group to be removed, in August 1942, were wives and children of aliens who were already interned and wished to be repatriated to Japan. A third group was sent to WRA camps between November 1942 and March 1943. This group included those who were considered a drain on the economy (including fishermen who had lost their livelihood, and some families of internees) or who were thought to be potentially dangerous in Hawai'i but not on the mainland. A fourth group of 73 Nisei citizens was technically "excluded" from Hawai'i and sent to the mainland after Roosevelt signed Executive Order 9489 on October 24, 1944, which ended martial law but gave to the Hawaiian Command the same authority that Executive Order 9066 had given to the Western Defense Command and that had resulted in the mass removals of the ethnic Japanese population from the West Coast.
During the period of martial law, approximately 10,000 Japanese American residents in the Islands, including all Kibei, were identified and investigated. Hundreds of them were then picked up for interrogation and loyalty assessments by the military authorities.  Nearly 2,000 were incarcerated in internment or relocation camps, of whom roughly one-third were American citizens, mostly Kibei. Somewhat less than half of the persons taken into custody were held by the army as internees, under authority of martial law, losing their freedom for the duration of the war; others were evacuated to mainland "relocation centers" and/or internment camps in the formal status of "evacuees" or "excludees" rather than "internees." All of them lived behind barbed wire fences, patrolled by armed guards and under surveillance from guard towers, in tents or in barracks with few comforts. They were deprived of liberty, privacy, their normal livelihoods, and often unification with their families. 
Less than one percent of the ethnic Japanese in Hawai'i were ever interned or removed to the mainland during the war on suspicion of disloyalty or as "potentially dangerous." The policy of selective detention, however, which continued throughout the war, had a chilling effect on the others, who lived in constant fear of searches, investigations, arrests, interrogations, and incarceration. Combined with the more general restrictions of martial law, this policy became an effective instrument of control of the population of Japanese ancestry.
With the exception of Otto Kuehn, a German immigrant who was convicted of espionage, not a single one of the internees or detainees was found guilty of overt acts against U.S. laws, no one was investigated for sabotage, and only a few were suspected of espionage. Rather, according to a U.S. Congressional investigation following the war, the internees were judged "on personalities and their utterances, criminal and credit records, and probably nationalistic sympathies." 
Partial Restoration of Civilian Government
As long as the threat of a Japanese invasion still loomed, martial law was supported by the vast majority of the people of Hawai'i as a military necessity. By mid-1942, however, and especially after the U.S. victory in the Battle of Midway in June of that year, opposition to martial law began to grow. The new governor, Ingram Stainback, the delegate to Congress, the editor of the Honolulu Star Bulletin , and a group of liberal lawyers sought at least a partial restoration of civilian control over the government and the judiciary in Hawai'i. Within the Roosevelt Administration, they were supported by the Department of the Interior, responsible for Hawai'i in peacetime, and the Department of Justice. The Office of the Military Governor (that is, the commanding general) in Hawai'i, backed by Secretary of War Stimson and Assistant Secretary of War John McCloy , stoutly resisted all such efforts, invoking "military necessity" and the continued presence of large numbers of Japanese to legitimate continued martial law.
A compromise was reached after protracted negotiations in Washington, and on March 10, 1943, most functions of the civilian government—with the notable exception of the control of labor—were returned to civilian agencies. Trial by jury was restored for violations of territorial and federal laws, although violations of general orders continued to be prosecuted in provost courts. Nevertheless, martial law, including the suspension of habeas corpus, remained legally in effect, under the direction of Emmons' successor, General Robert Richardson, after July 1943.  Nisei or others suspected of disloyalty continued to be arrested, and as late as 1945, the army was still holding nearly a score of Kibei in the Honouliuli camp in O'ahu.
The End of Martial Law
Although the Office of Military Governor changed its name to the Office of Internal Security in July 1944, it was not until October 24, 1944, that martial law was finally ended and habeas corpus restored by Presidential Proclamation No. 2627, which designated the Territory of Hawaii a "military area." A series of cases testing the validity of martial law and the authority of the military to detain citizens without charges had been filed starting in 1942, only two months after martial law went into effect. Interestingly, none of these cases was brought by a Japanese American. The Issei, not being citizens, had no possibility of relief from the courts; the Nisei citizens, including the Kibei, were entitled to petition for habeas once the federal courts were reopened, but none of them ever sought legal redress against the army in the war years in Hawai'i.
It was only after the war, in the case of Duncan v. Kahanamoku ,  in March 1946, that the U.S. Supreme Court ruled on the issue. Basing their decision on narrow statutory grounds rather than on constitutional principles, the Court held, in a divided opinion, that the Organic Act did not justify the replacement of civilian courts with military tribunals and provost courts, and that this extreme exercise of powers under martial law had been invalid. The army's measures that had been directed at the Japanese ethnic citizenry were given no attention in either the arguments before the Court or the Justices' opinions.
For More Information
Allen, Gwenfread. Hawaii's War Years , 1941-1945. Honolulu: University of Hawai'i Press, 1950.
Anthony, J. Garner. Hawaii Under Army Rule . Stanford, CA: Stanford University Press, 1955.
Commission on Wartime Relocation and Internment of Civilians. Personal Justice Denied . Washington, D.C.: U.S. Government Printing Office, 1982, Ch. 11 (available on the web at http://www.nps.gov/history/history/online_books/personal_justice_denied/chap11.htm ).
Kashima, Tetsuden. Judgment Without Trial: Japanese American Imprisonment during World War II . Seattle: University of Washington Press, 2003.
Okihiro, Gary. Cane Fires: The Anti-Japanese Movement in Hawaii, 1865-1945 . New York: Columbia University Press, 1992.
Robinson, Greg. A Tragedy of Democracy: Japanese Confinement in North America . New York: Columbia University Press, 2009.
Scheiber, Harry N., and Jane L. "Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawai'i, 1941-46." University of Hawai'i Law Review 19 (1997): 476-647.
Scheiber, Harry N., Jane L. Scheiber and Benjamin Jones. "Hawai'i's Kibei under Martial Law: A Hidden Chapter in the History of World War II Internments." Western Legal History 22 (2009): 1-102.
Scheiber, Harry N., and Jane L. Scheiber. Bayonets in Paradise: Martial Law and Civil Liberties in Hawaii, 1941–46 . Book in preparation, 2012.
Soga, Yasutaro [Keiho]. Life behind Barbed Wire: The World War II Internment Memoirs of a Hawai'i Issei . Translated by Kihei Hirai. Introduction by Tetsuden Kashima. Honolulu: University of Hawai'i Press, 2008.
- Organic Act, Ch. 339, 31 Stat. 141, § 67 (1900).
- See Harry N. Scheiber, Jane L. Scheiber, and Benjamin Jones, "Hawai'i's Kibei under Martial Law: A Hidden Chapter in the History of World War II Internments," Western Legal History 22 (2009).
- Col. B. M. Bryan, Chief, Aliens Division, Office of the Provost Marshal General, to Commanding General, Western Defense Command, July 29, 1942, copy in Japanese Internment and Relocation Files: The Hawai'i Experience 1942-1982, Hamilton Library, University of Hawai'i; Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (Washington, D.C.: U.S. Government Printing Office, 1982), Ch. 11 (available on the web at http://www.nps.gov/history/history/online_books/personal_justice_denied/chap11.htm ).
- Provost Marshal General to Chief of Staff, War Dept., Feb. 28, 1942, U.S. Army, Records of the Provost Marshal General's Office, RG 407, National Archives; Tetsuden Kashima, Judgment without Trial: Japanese American Imprisonment during World War II (Seattle: University of Washington Press, 2003), 78; Yasutaro Soga, Life Behind Barbed Wire: The World War II Internment Memoirs of a Hawai'i Issei (Honolulu: University of Hawai'i Press, 2008), 226.
- Since nearly 50,000 of the Japanese Americans were children under 16 years of age, more than one in eleven ethnic Japanese adults was involved as the subject of security operations. Estimates of number of children are from Samuel W. King article, Honolulu Advertiser , March 23, 1941.
- The length of detention varied; some were incarcerated for the duration of the war, while others were released following hearings in 1943 and 1944. Some were permitted to leave the mainland centers in "released" status and to take up jobs and residence outside the western U.S. area under control of the Western Defense Command, where the army had conducted the mass exclusion program. Even those so released were kept under control of the WRA and the Hawai'i Army Command, and they were not permitted to return to Hawai'i until after the war's end.
- U.S. Congress, Joint Committee on the Investigation of the Pearl Harbor Attack," 79th Cong., 1st and 2d sess., 1946, part 35, p. 570, quoted in Gwenfread Allen, Hawaii's War Years , 1941–1945 (Honolulu: University of Hawai'i Press),134.
- Federal District Court Judge Metzger did, in fact, open his court to habeas petitions in 1943, but he was challenged by the Army in a confrontation that served to hasten the end of martial law.
- 327 U.S. 304 (1946).