Greg Robinson


On his book A Tragedy of Democracy: Japanese Confinement in North America

Cover Interview of November 06, 2009

A close-up

If I had to select at random a section to commend to a reader, I think I would choose the section of Chapter 5 that deals with the history of the martial law regime in Hawaii.  I think this is my most original contribution, because it tells a story that most Americans are not aware of, yet has direct parallels with the present.

After Pearl Harbor the U.S. Army commander pushed through a declaration of martial law in what was then the Territory of Hawaii, suspended the U.S. Constitution, dismissed the elected government, and declared himself military governor.  The Army meanwhile threw the judges out of the courts and created instead a set of military tribunals to judge all criminal cases, even those involving American civilians.  Defendants had no due process or legal protections.  Virtually all those accused were found guilty, and often given harsh or arbitrary sentences (for instance, they could reduce their felony sentences by agreeing to donate blood).

Eventually these military tribunals were challenged in court.  The Army and the Justice Department, knowing that they had no possible chance to prove that there was any real military emergency or threat of imminent invasion from Tokyo, instead based their case for martial law on the threat of Japanese Americans. Eventually the case went all the way to the U.S. Supreme Court as Duncan v. Kahanamoku (1946).  In a landmark ruling, the Supreme Court said clearly that military tribunals to judge civilians are unconstitutional, and the opinion of the Court contained some very strong language denouncing the Army’s action as tyrannical.

So the events in Hawaii not only present an interesting counterpoint to what happened to Japanese Americans on the mainland, but they also tell a kind of prehistory that we should be thinking about when we look today at Guantanamo and the military tribunals there.  Yet the story of martial law and Duncan v. Kahanamoku is really absent, not just from popular discussion but also from law and American studies classes, the study of constitutional law, and legal briefs.  It deserves to be looked at much more closely.