Ex parte ZIMMERMAN. ZIMMERMAN v. WALKER, Captain U. S. Army, Asst. Dist. Provost Marshal for Dist. of Hawaii, 132 F.2d 442

HEALY, Circuit Judge. The appeal is from a judgment of the United States District Court for the Territory of Hawaii denying a petition for a writ of habeas corpus. Appellant is the wife of Hans Zimmerman. On February 19, 1942, she filed the petition on Zimmerman’s behalf alleging that he is unlawfully detained and imprisoned by color of the authority of the United States in the custody of Captain Walker of the United States Army, Assistant Provost Marshal in Honolulu. The petition came on for hearing February 20, at which time the court declined to issue the writ.

The petitioner alleged that both she and Hans Zimmerman are citizens of the United States and residents of Honolulu; that “the cause or pretext” of the detention of Zimmerman “is a certain order or decision made and entered by an alleged Board of Officers and Civilians appointed by the authorities of the United States for the purpose of inquiring into the activities of persons resident within the United States to ascertain whether or not such activities are subversive to the best interests of the United States and as to their loyalty or disloyalty to the United States and to recommend the detention or parole after inquiry, of such persons; and your petitioner is informed and believes and therefore alleges the fact to be that by virtue of a decision or order of the alleged Board so appointed as aforesaid, the authorities of the United States, acting through the United States Army, are about to remove the interned beyond the jurisdiction of this Honorable Court and to take him to some other place on the Mainland of the United States unknown to your petitioner and to the said interned.” The petition alleged further that the detention is in violation of the constitution of the United States in that there is no legal cause for the removal of the interned from the jurisdiction; that the removal was ordered and the interned held in custody without authority of law in that the interned was denied the right of trial by jury and in that the Board predicated its decision and order “upon statements and testimony of an irrelevant and hearsay nature” taken in the absence of the interned, and that the testimony was wholly insufficient to warrant the Board’s decision; that the decision “is null and void in that said Board was not lawfully constituted, appointed and functioning for the purpose of depriving or with authority to deprive citizens of the United States of their constitutional rights of freedom and of being charged, tried and confronted by witnesses without the right to examine or cross-examine said witnesses as to the commission of any acts by such citizens subversive to the United States.” There are allegations to the effect that the interned was not permitted to cross-examine witnesses, was denied the right to see reports and statements which had been brought to the attention of the Board, and was permitted “only in a limited and unreasonable manner” to examine witnesses called on his own behalf; that he was without counsel at the hearing and was advised by Captain Walker that counsel was neither necessary nor desirable, when in fact the hearing was beyond the intelligent comprehension of any lay person.

At the hearing of the petition no evidence was taken and no return required or made. The judge stated that he had read the petition, that in his opinion it “was well grounded and justified the issuance of a writ,” but that he felt powerless to direct its issuance in view of Order No. 57 of the military governor, and that “the court is under duress by reason of the order.” He closed by stating that the writ was denied “upon the sole ground that the court is forbidden to issue a writ of habeas corpus.” Judgment was entered accordingly.

Apart from the reasoning of the judge, we may say at once that in our opinion the denial of the writ was proper. The averments of the petition plus facts of which the court has judicial knowledge required that action. On the morning of December 7, 1941, the Hawaiian Islands were attacked and invaded by the military and naval forces of Japan. In the forenoon of that day Governor Poindexter of the Territory, acting under authority of

Section 5(

a) of Act 24 of the Laws of the Special Session of the Territorial legislature of 1941, declared the existence of a defense period throughout the Territory. During the afternoon of the 7th, pursuant to

Section 67 of the Hawaiian Organic Act, 48 U.S.C.A. § 532, the governor issued a proclamation placing the Territory under martial law and suspending the privilege of the writ of habeas corpus until further notice. His action in this respect was immediately communicated to and approved by the President. The Governor’s proclamation called upon the commanding general of the Hawaiian Department (General Short) to prevent the invasion and to exercise all powers normally exercised by the civil governor.

It further authorized the commanding general “during the present emergency and until the danger of invasion is removed, to exercise the powers normally exercised by judicial officers and employees” of the Territory, and such other powers as the emergency might require. In compliance, General Short at once publicly assumed the position of military governor; and when, ten days later, General Short was relieved of his command, his successor, General Emmons, assumed the post of military governor and by proclamation confirmed the orders and other actions taken by his predecessor.

On December 7 the military governor had by General Orders No. 4 established a military commission and provost courts with power to try and determine cases involving offenses committed by civilians against the laws of the United States or of the Territory, or the regulations, orders, or policies of the military. All other courts had thereupon been closed by order of the commanding general.

As indicated in note 1 above, the civil courts were later authorized to resume their functions to a limited extent as agencies of the military governor; but otherwise the conditions of martial rule as well as the suspension of the writ continued without interruption. It is complained that Governor Poindexter entirely abdicated his functions, and there is criticism of the orders, including General Orders No. 57, suspending or continuing in part the suspension of the activities of the civil courts. But questions relating to these matters are not before us and in respect of them we express no opinion.

The inquiry here concerns only the legality of the suspension of the privilege of the writ of habeas corpus as related to this petitioner. The constitution of the United States (Art. I, Sec. 9, Cl. 2) provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Section 67 of the Act of Congress of April 30, 1900 (the Organic Act of Hawaii) authorizes the governor “in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it,” to suspend the privilege of the writ, or to place the Territory under martial law until communication can be had with the President and his decision made known. We note in passing that the constitution of the Republic of Hawaii (Sec. 31) had clothed the president of the Republic with these same powers. As has been observed, it is history that the Islands were invaded on December 7.

Such being the case, Governor Poindexter’s suspension “until further notice” of the privilege of the writ, with the approval of the President, was authorized by the constitution and by specific act of congress. The emergency inspiring the proclamation did not terminate with the attack on Pearl Harbor. The courts judicially know that the Islands, in common with the whole Pacific area of the United States, have continued in a state of the gravest emergency; and that the imminent threat of a resumption of the invasion persisted.

In the months following the 7th of December the mainland of the Pacific coast was subjected to attacks from the sea. Certain of the Aleutian Islands were invaded and occupied. And as late as the early summer of 1942 formidable air and naval forces of Japan were turned back at Midway from an enterprise which appeared to have Hawaii as its ultimate objective. But it is contended that the writ should have been issued and the respondent required to set forth in a return the military necessity for the action taken in order to establish the proper procedural basis for a decision.

Counsel argue that while the privilege of the writ may be suspended in appropriate circumstances, the writ itself may not. They rely in this respect on language of the court in Ex parte Milligan, 4 Wall. 2, 130, 131, 18 L.Ed. 281, to the effect that “the suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.

The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it.” It is little to the purpose to attempt here an analysis of distinctions between suspension of the privilege and suspension of the writ. Whether the writ will be awarded in any particular case depends on the showing made. The statute, 28 U.S. C.A. § 455, provides that the writ shall be awarded “unless it appears from the petition itself that the party is not entitled thereto.” And see Walker v.

Johnston, 312 U.S. 275, 283, 284, 61 S.Ct. 574, 85 L.Ed. 830; United States ex rel. Quirin v. Cox, October 29, 1942, 63 S.Ct. 2, 87 L.Ed. -. The writ ought not to be awarded if the court, upon examination of the petition, is satisfied that the petitioner would be remanded to custody. Ex parte Watkins, 3 Pet. 193, 201, 7 L.Ed. 650. In this case the petition and facts of which the court was required to take judicial cognizance were together to be considered as constituting the application, Walker v. Johnston, supra, 312 U.S. page 284, 61 S.Ct. 574, 85 L.Ed. 830.

It was not made to appear in the petition that Zimmerman had been charged with any crime or that sentence had been imposed upon him; rather, that he was being held or detained by the military authorities. The cause of his detention was alleged to be a decision of a Board of officers and civilians appointed by the authorities of the United States to recommend the detention or parole of persons resident within the United States, after inquiry to ascertain whether their activities are subversive to the best interests of the United States and whether they are loyal or disloyal.

The petition did not assert that the actual cause of the detention was unrelated to such an inquiry, or that the inquiry was undertaken or the decision made in bad faith, or that the authority of the Board was used to bring about the detention of the petitioner as a means of furthering private interest or personal spite. Had a showing of such sinister nature been made it appears to us that the respondent ought to have been.required to show cause for the detention in order that the court might be in position to determine whether the action was purely arbitrary, Sterling v.

Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 77 L.Ed. 375. But taken by its four corners the petition discloses that Zimmerman was being subjected to detention by the military authorities after an inquiry related in some way to the public safety, in an area where martial law was in force and the privilege of the writ had been lawfully suspended. The futility of further inquiry was apparent on the face of the petition.

The allegations that Zimmerman had been denied his constitutional right of trial by jury, of being confronted with the witnesses against him, and of having counsel to represent him, were purely argumentative and are without force. They tendered no material issue of fact. The same is true of the allegation that the Board was not lawfully constituted “for the purpose of depriving or with authority to deprive citizens of the United States of their constitutional rights,” etc.

This is not an averment that the Board was not regularly constituted for the purpose for which, as shown elsewhere in the petition, it had been set up by the military, namely, to recommend, after inquiry, the detention or parole of suspected persons. It is true that the averments of petitions for this great writ are not scrutinized with technical nicety; but neither are they taken as importing something other than what they say. The courts, in circumstances like the present, ought to be careful to avoid idle or captious interference.

The petition, then, was to be considered in its setting, and its sufficiency gauged in the light of the unprecedented conditions under which present day warfare is waged. It is common knowledge that the Hawaiian Islands, owing to their position and the inclusion in their population of so large an element presumptively alien in sympathy, are peculiarly exposed to fifth-column activities. In such an exigency, a prime purpose of the suspension of the writ is to enable the executive, as a precautionary measure, to detain without interference persons suspected of harboring designs harmful to the public safety.

The civil courts are ill adapted to cope with an emergency of this kind. As a rule they proceed only upon formal charges. Their province is to determine questions of guilt or innocence of crimes already committed. In this respect their functions are punitive, not preventive; whereas the purpose of the detention of suspected persons in critical military areas in time of war is to forestall injury and to prevent the commission of acts helpful to the enemy.

It is settled that the detention by the military authorities of persons engaged in disloyal conduct or suspected of disloyalty is lawful in areas where conditions warranting martial rule prevail. Measures like these are essential at times if our national life is to be preserved. Where taken in the genuine interest of the public safety they are not without, but within, the framework of the constitution. Affirmed. General Orders No. 57 of the military governor were issued January 27, 1942.

Among other things, these regulations authorized the limited resumption, of the operations of the civil courts in the Territory which had earlier been suspended pursuant to the proclamation of martial law. They continued in force, however, the prohibition of the issuance of the writ of habeas corpus. See Report of Roberts Commission, page 15, Senate Doc.

No. 159, 77th Cong., 2nd Sess. “Whenever there exists (1) any state of affairs or circumstances arising out of an invasion, attack, insurrection, rebellion, or lawless violence, or any danger or threat thereof, or (2) any state of affairs or circumstances making it advisable to protect the Territory and its inhabitants, of the existence of any of which the Governor shall be the sole judge, the Governor, by proclamation, may declare a defense period to exist.

A defense period may be declared for any one or more counties, or a part of a county, and when once declared shall continue until the Governor, by proclamation, shall declare the defense period at an end.

Such proclamations shall be promulgated by publication thereof, or by posting copies of the same in at least ten public places in each county, or part thereof, affected by any such defense period, or, when immediate promulgation is necessary in the opinion of the Governor, who shall be the sole judge thereof, by official announcement thereof by him by means of radio broadcast.” The proclamation declared that the armed forces of Japan “have this day attacked and invaded the shores of the Hawaiian Islands,” that “it has become necessary to repel such attack and invasion,” and that “the public safety requires” the action taken.

The executive order was published in the Federal Register.

As to the effect of such filing as notice, see Sec. 7 of the Federal Register Act of 1935, 44 U.S.C.A. § 307. “The governor shall be responsible for the faithful execution of the laws of the United States and of the Territory of Hawaii within the said Territory, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Territory of Hawaii, or summon the posse commitatus, or call out the militia of the Territory to prevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and he may, in ease 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.” 31 Stat. 153, § 67, 48 U.S.C.A. § 532.

See Archibald King, “The Legality of Martial Law in Hawaii,” 30 Cal.Law Rev. 371. Ex parte Milligan, 4 Wall. 2, 125, 126, 18 L.Ed. 281. Givens v. Zerhst, 255 U.S. 11, 18, 41 S.Ct. 227, 65 L.Ed. 475; United States v. Hamburg-Amerikanisehe, etc., Co., 239 U.S. 466, 475, 36 S.Ct. 212, 60 L.Ed. 387; Hamilton v. Dillin, 21 Wall. 73, 88 U.S. 73, 90, 22 L.Ed. 528. Ex parte Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; Craemer v. State, 168 U.S. 124, 18 S.Ct. 1, 42 L.Ed. 407. Ex parte Milligan, supra, 4 Wall. page 125, 18 L.Ed. 281; Moyer v. Peabody, 212 U.S. 78, 84, 85, 29 S.Ct. 235, 53 L.Ed. 410.

Consult Failman, The Law of Martial Rule and the National Emergency, Harvard Law Rev. Vol. LV, No. 8, page 1253.