d 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 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 * * * 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,[84] the Territorial
Governor is 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,[85] 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."[86] The Court relied on the majority opinion in Ex
parte Milligan. Chief Justice Stone concurred in the result. "I assume
also," said he, "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";[87] 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."[88]

THE CASE OF THE NAZI SA