Martial Law and Constitutional Limitations
Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law;194 that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity.195 By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden196 that state declarations of martial law were conclusive and therefore not subject to judicial review.197 In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that State. The decision in the Prize Cases,198 while[p.457]not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.
The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case,199 reverting to the older doctrine, pronounced void President Lincoln’s action, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as “spies” and “abettors of the enemy.” The salient passage of the Court’s opinion bearing on this point is the following: “If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”200 Four Justices, speaking by Chief Justice Chase, while holding Milligan’s trial to have been void because violative of the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan’s trial. Said the Chief Justice: “Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President and Commander–in–Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions.
“. . . We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.
“Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to inva[p.458]sion, it is within the power of Congress to determine in what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.”201 In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.
At the turn of the century, however, the Court appears to have retreated from its stand in Milligan insofar as it held in Moyer v. Peabody202 that “the Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . The plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. . . . So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.”203 The “good faith” test of Moyer, however, was superseded by the “direct relation” test of Sterling v. Constantin,204 where the Court made it very clear that “[i]t does not follow . . . that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”205
Martial Law in Hawaii.--The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local[p.459]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 [Hawaii didn't become Republic State of the United States until 1959]. . . during the present emergency and until the danger of invasion is removed.” Two days later the Governor’s action was approved by President 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, 1900,206 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.” In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding till February 1946,207 the Court, speaking by Justice 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.”208
The Court relied on the majority opinion in Ex parte Milligan. Chief Justice 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,”209 but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. 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.”210
Articles of War: The Nazi Saboteurs.--The saboteurs were eight youths, seven Germans and one an American, who, following[p.460]a course of training in sabotage in Berlin, were brought to this country in June 1942 aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.
The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. “. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.”211 The second argument it disposed of by showing that petitioners’ case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre.212 The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,213 thereby, in effect, attributing to the latter the right to amend the Articles of War in a case of the kind before the Court ad libitum.
Footnotes
194 C. Fairman, The Law of Martial Rule (Chicago: 1930), 20–22; A. Dicey, Introduction to the Study of the Law of the Constitution (New York: 5th ed. 1923), 283, 290.
195 Id., 539–544.
196 7 How. (48 U.S.) 1 (1849). See also Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32–33 (1827).
197 7 How. (48 U.S.), 45.
198 2 Bl. (67 U.S.) 635 (1863).
199 Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866).
200 Id., 127.
201 Id., 139–140. In Ex parte Vallandigham, 1 Wall. (68 U.S.) 243 (1864), the Court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department.
202 212 U.S. 78 (1909).
203 Id., 83–85.
204 287 U.S. 378 (1932). “The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decision, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace” Id., 399–400.
205 Id., 400–401. This holding has been ignored by States on numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (1935); Hearon v. Calus, 178 S.C. 381, 183E.13 (1935); and Joyner v. Browning, 30 F. Supp. 512 (D.C.W.D. Tenn. 1939).
206 31 Stat. 141, 153 (1900).
207 Duncan v. Kahanamoku, 327 U.S. 304 (1946).
208 Id., 324.
209 Id., 336.
210 Id., 343.
211 Ex parte Quirin, 317 U.S. 1, 29–30, 35 (1942).
212 Id., 41–42.
213 Id., 28–29.
Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law;194 that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity.195 By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden196 that state declarations of martial law were conclusive and therefore not subject to judicial review.197 In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that State. The decision in the Prize Cases,198 while[p.457]not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.
The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case,199 reverting to the older doctrine, pronounced void President Lincoln’s action, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as “spies” and “abettors of the enemy.” The salient passage of the Court’s opinion bearing on this point is the following: “If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”200 Four Justices, speaking by Chief Justice Chase, while holding Milligan’s trial to have been void because violative of the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan’s trial. Said the Chief Justice: “Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President and Commander–in–Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions.
“. . . We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.
“Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to inva[p.458]sion, it is within the power of Congress to determine in what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.”201 In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.
At the turn of the century, however, the Court appears to have retreated from its stand in Milligan insofar as it held in Moyer v. Peabody202 that “the Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . The plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. . . . So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.”203 The “good faith” test of Moyer, however, was superseded by the “direct relation” test of Sterling v. Constantin,204 where the Court made it very clear that “[i]t does not follow . . . that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”205
Martial Law in Hawaii.--The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local[p.459]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 [Hawaii didn't become Republic State of the United States until 1959]. . . during the present emergency and until the danger of invasion is removed.” Two days later the Governor’s action was approved by President 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, 1900,206 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.” In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding till February 1946,207 the Court, speaking by Justice 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.”208
The Court relied on the majority opinion in Ex parte Milligan. Chief Justice 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,”209 but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. 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.”210
Articles of War: The Nazi Saboteurs.--The saboteurs were eight youths, seven Germans and one an American, who, following[p.460]a course of training in sabotage in Berlin, were brought to this country in June 1942 aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.
The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. “. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.”211 The second argument it disposed of by showing that petitioners’ case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre.212 The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,213 thereby, in effect, attributing to the latter the right to amend the Articles of War in a case of the kind before the Court ad libitum.
Footnotes
194 C. Fairman, The Law of Martial Rule (Chicago: 1930), 20–22; A. Dicey, Introduction to the Study of the Law of the Constitution (New York: 5th ed. 1923), 283, 290.
195 Id., 539–544.
196 7 How. (48 U.S.) 1 (1849). See also Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32–33 (1827).
197 7 How. (48 U.S.), 45.
198 2 Bl. (67 U.S.) 635 (1863).
199 Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866).
200 Id., 127.
201 Id., 139–140. In Ex parte Vallandigham, 1 Wall. (68 U.S.) 243 (1864), the Court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department.
202 212 U.S. 78 (1909).
203 Id., 83–85.
204 287 U.S. 378 (1932). “The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decision, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace” Id., 399–400.
205 Id., 400–401. This holding has been ignored by States on numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (1935); Hearon v. Calus, 178 S.C. 381, 183E.13 (1935); and Joyner v. Browning, 30 F. Supp. 512 (D.C.W.D. Tenn. 1939).
206 31 Stat. 141, 153 (1900).
207 Duncan v. Kahanamoku, 327 U.S. 304 (1946).
208 Id., 324.
209 Id., 336.
210 Id., 343.
211 Ex parte Quirin, 317 U.S. 1, 29–30, 35 (1942).
212 Id., 41–42.
213 Id., 28–29.