Duncan v. Kahanamoku
Duncan v. Kahanamoku , 327 U.S. 304 (1946) was a U.S. Supreme Court decision regarding the constitutionality of the military tribunals established in the Territory of Hawai'i by the army under martial law during World War II. Although the two appellants who challenged their convictions by the military tribunals were both white, Japanese Americans represented a central element in the case, since the military justified its actions with the claim that the tribunals were needed to protect public security against them. Furthermore, inasmuch as Duncan examined the constitutionality of military authority to confine civilians in time of war, the case paralleled the legal challenges to Executive Order 9066 by American citizens of Japanese ancestry over the same period.
On December 7, 1941, even as the Japanese military launched a raid on Pearl Harbor, U.S Army Commander Walter Short pressured Hawaii Territorial Governor Joseph Poindexter into signing a declaration of martial law drafted by army lawyers. On the basis of this declaration, Short declared himself military governor and took over control of the territory. Under the direction of Colonel (later General) Thomas Green , military authorities suspended the U.S. Constitution and proceeded to issue a series of 181 General Orders, under which they ruled Hawai'i in the manner of a conquered province.
Perhaps most importantly, the military government assumed control of the judiciary. While civilian courts reopened a week after the Pearl Harbor attacks, they were restricted to civil cases. Conversely, all criminal cases were tried by a network of military commissions and provost courts established by the military governor's office, allegedly based on the model of military courts-martial. They operated without key constitutional safeguards of fair trials such as rules of evidence or presumption of innocence. Army officers, generally without legal training, served as judges. Juries were forbidden, and lawyers discouraged or formally excluded. Furthermore, the military government's suspension of habeas corpus meant that civilians could be held indefinitely without charge. The tribunals frequently issued severe sentences, including fines and imprisonment, for relatively trivial offenses, and the system had no machinery established for appeals. Instead, those convicted of offenses could reduce their sentences by such actions as donating blood. So seldom did the tribunals issue acquittals that defendants often chose to plead guilty, even when they had done nothing. Of the 22,480 trials conducted in provost court in Honolulu in 1942-43, 99 percent ended in convictions. One official who heard 819 cases where defendants pleaded not guilty issued convictions in all 819! While there were a few challenges to the military tribunals in federal court, notably that of Dr. Hans Zimmerman , they did not change the system in place.
In early 1943, with the support of President Franklin D. Roosevelt , a compromise was reached between the War Department, the Justice Department and the Interior Department, providing for a gradual restoration of authority to Hawai'i's civilian government, but only "when and as the military situation permits," and subject to reversal at any time. In March 1943, Hawai'i returned to partial civilian control, and the legislature was recalled. General Delos Emmons , the military governor, nonetheless announced that the "privilege" of habeas corpus remained suspended, and the martial law government continued to try civilians accused of offenses against military officials before military tribunals. Martial law would not be suspended, and full civilian rule restored, until late October 1944, shortly before that year's presidential election.
Lloyd Duncan's Arrest and Habeas Corpus Hearing
On February 24, 1944, Lloyd Duncan, a civilian working for the navy, was arrested for assaulting two Marine sentries at the gate of the Pearl Harbor naval base. Brought before a provost court, he was convicted and sentenced to six months in prison. Following his conviction, Duncan challenged the authority of military tribunals to try him. J. Garner Anthony , Hawai'i's civilian attorney general, agreed to represent him. In March 1944, Duncan submitted a habeas corpus petition before Judge Delbert Metzger. Both General Robert Richardson , by then military governor, and naval commander Admiral Chester Nimitz responded with sworn affidavits opposing the issuance of a writ. They insisted that Hawai'i was still in "imminent danger" of Japanese invasion, and that martial law and suspension of the writ of habeas corpus were essential because of the menace posed by the presence of 124,000 U.S. citizens of Japanese ancestry—67,000 of whom were dual citizens . Nevertheless, Metzger issued a writ and set the matter down for a full evidentiary hearing.
The Duncan hearing opened on April 5, 1944. Justice Department attorney Edward Ennis represented the army. During their testimony, Nimitz and Richardson attempted to present Hawai'i as vulnerable to invasion, with her safety dependent on military judgment. Under close questioning by Anthony, however, both commanders were forced to admit that any sizable Japanese invasion was very improbable. Given the weakness of the invasion threats, Ennis instead defended the provost courts by arguing that the loyalties of Japanese Americans could not be relied on or determined. Unlike in the Korematsu case, the Justice Department did not argue that army officials lacked time to make loyalty determinations in the wartime emergency. Instead, Ennis based his argument entirely on race-based hostility to Japanese Americans. Ennis called witnesses to testify regarding the dual nationality of the Nisei , while General Richardson testified that Hawai'i's population was an essential factor in "appraising the possibility" of attack and invasion:
[I]t would be naïve to assume that in a population of 160,000 that we did not find a group of potentially disloyal Japanese. As a matter of fact, we know that some of them are not loyal to America. They have so stated when they have been brought before the internment boards. And I have been forced to put them in internment camps for the security of these islands.
Anthony, though he argued repeatedly that the whole matter of Japanese Americans was irrelevant, felt obliged to respond by introducing evidence as to the loyalty of Hawai'i's Japanese community, notably the prewar efforts of Nisei to "expatriate" by renouncing their nominal Japanese citizenship. He countered what he called Ennis's "innuendo" by producing a magazine article published by General Richardson, stating that Japanese Americans had on "innumerable occasions" proven their loyalty to the United States.
On April 13, 1944, Judge Metzger ruled for Duncan. Finding that habeas corpus had been restored with the resumption of civilian government in March 1943, he declared that the military court had no authority to try Duncan, and overturned his conviction. Metzger likewise ordered the release of another prisoner, Harry E. White, who had been convicted of embezzlement by a military court in 1942, and had similarly challenged his conviction.
The Army Provost Marshal General's office immediately undertook an appeal of the Duncan and White rulings. In early July 1944, the appeals were heard by the Court of Appeals for the Ninth Circuit. Justice Department officials again centered their appeal on racial grounds. The government brief argued starkly that the reestablishment of civilian courts would lead to Japanese Americans of potentially doubtful loyalty being called for jury duty, since they could not be legally excluded from service. On November 1, 1944, a week after martial law in Hawai'i was completely suspended, the appellate court reversed Metzger's ruling, and reinstated the sentences of Duncan and White. In a split decision, the Court agreed that martial law was necessary to control potentially disloyal Japanese Americans:
Governmental and military problems alike were complicated by the presence in the Territory of tens of thousands of citizens of Japanese ancestry besides large numbers of aliens of the same race. Obviously the presence of so many inhabitants of doubtful loyalty posed a continuing threat to the public security. Among these people the personnel of clandestine landing parties might mingle freely, without detection. Thus was afforded ideal cover for the activities of the saboteur and the spy.
The Supreme Court Case
The Ninth Circuit's ruling, which came as a surprise to all of the parties, left the status of those already convicted by the military tribunals uncertain. In February 1945 the U.S. Supreme Court agreed to hear the cases (which were consolidated under the caption Duncan v. Kahanamoku —the famous surfing champion Duke Kahanamoku, employed as county sheriff, served as official respondent). The case attracted widespread attention, because of the clear connections between the Hawai'i martial law cases and the Hirabayashi and Korematsu cases, in which Nisei defendants were convicted of disobeying military orders. Opponents of the Court's decisions in these cases hoped that the Hawai'i cases would lead to a reversal.
Duncan was argued before the court on December 7, 1945. By this time, the war was over and most of the prisoners convicted by the military courts had already been released. J. Garner Anthony represented Duncan and ACLU lawyer Osmond Fraenkel represented White, while Edward Ennis again appeared for the military. On February 25, 1946, the Supreme Court announced its decision, striking down the convictions of Duncan and White by a 6-2 margin (Justice Robert Jackson, engaged in the Nuremberg trials, did not take part in the cases). The majority opinion, written by Justice Hugo Black, based its conclusion on statutory rather than constitutional grounds. The court asserted that the Organic Act of Hawai'i had not provided for convening military tribunals under martial law, and that Congress had not expressly authorized such actions. Black also denounced the imposition of military rule as an affront to liberty. While the Court's opinion did not deal with the question of Japanese Americans, Justice Frank Murphy issued a concurrence savaging the army's contention that military tribunals that denied basic rights to all citizens were essential to avert the menace to security posed by the presence of ethnic Japanese jurors:
There was thus no security reason for excluding [Japanese-Americans] from juries, even making the false assumption that it was impossible to separate the loyal from the disloyal. ...Especially deplorable, however, is this use of the iniquitous doctrine of racism to justify the imposition of military trials.
Because of the narrow grounds of the Supreme Court's ruling, the Duncan case remains largely unknown. It has not served as a significant precedent against the use of military tribunals on American soil. It likewise failed to lead the Court to a reconsideration of its judgments in the wartime Japanese American cases.
For More Information
Anthony, J. Garner. Hawaii Under Army Rule . Stanford, Calif.: Stanford University Press, 1955. Honolulu: University of Hawaii Press, 1975.
Robinson, Greg. A Tragedy of Democracy: Japanese Confinement in North America . New York: Columbia University Press, 2009.
Scheiber, Harry N., and Jane L. Scheiber. "Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawaii, 1941–46." University of Hawai'i Law Review 19 (1998): 477–648.
Last updated July 2, 2020, 6:09 p.m..