I agree, Bob, that you raise issues worthy of additional exploration with regard to independently-commanded ‘irregulars’ – issues that are very much at issue today under the law of armed conflict, as America’s mistreatment of its (allegedly) opposing-force prisoners has only served to highlight.

In that regard, Mary’s comment at 24 touches on a fundamental fact of “armed conflict” that America’s political elite seem unwilling to acknowledge or accept, at least for our present conflicts with the inhabitants of majority-Muslim nations: In contrast to the pursuit of alleged mass-murderer criminals, when a nation declares itself – or simply chooses to be – a participant in an armed conflict, its opponent(s) have the ‘legal’ right to fight back, so long as they comply with the law of armed conflict. That means, with regard to how we responded to 9/11, that instead of a police and detective/intelligence force tracking down criminal culprits, Congress volunteered to put the troops of our Armed Forces at risk instead, in an armed conflict in which they could be ‘legally’ murdered by their opponent(s). At, obviously, a greatly-increased monetary cost to the taxpayers, to boot.

Congressional and presidential refusal to recognize the legitimacy of our armed conflict opponents, in turn, helps expose the dirty little secret of the law of armed conflict and other international law: it goes effectively unenforced except by the ‘enlightened self-interest’ of semi-equal foes – which means, in the real world, that the strong may dominate the weak without repercussion, as America has done with impunity in Iraq and Afghanistan since 2001. Never mind the United Nations, never mind the Hague, never mind the power of the organized church, never mind the nations of Europe that should have learned a lesson or two from watching, within living memory, a heavily-armed aggressor nation throw its weight around the neighborhood unchallenged.

Thus, for example, so long as we don’t have troops in the possession of the enemy whose safety and treatment we need to worry about, we have no incentive, other than common decency, to treat as formal Prisoners of War, with attendant POW privileges, foreign “combatants” we capture. And so, in the absence of even common decency from Bush and Cheney or a silent Congress, we didn’t. And still don’t. Years later a little bit of finger-wagging from some courts is about all the formal penalty that such venal and officially-unsanctioned behavior has elicited from the rest of the world.

Which just helps demonstrate that it was, after all, the powerful nations of the world that could and would veto international treaties that served to put them at any sort of serious disadvantage – or, in our case lately, that would simply decide to openly disregard humanitarian treaties we had pledged to observe, because we could, without meaningful challenge. Here’s a comment I wrote at Glenn’s that briefly summarizes the main tenets of armed conflict combatant immunity – with footnoted links for more detailed information – that, I think, helps demonstrate that power imbalance.

Lastly, recognizing your Hawaiian ties, I thought you (and others) might be interested in this further (lengthy) excerpt from Louis Fisher’s CRS report, that gives a chilling description of how martial law, and its accompanying military tribunals, quickly descended upon Hawaii following Pearl Harbor:

After the December 7, 1941 attack on Pearl Harbor by Japan, Governor Joseph B. Poindexter issued a proclamation transferring all governmental functions (including judicial) to the Commanding General of the Hawaiian Department. He called upon the Commanding General to prevent an invasion and to suspend the privilege of the writ of habeas corpus.315 On that same day, the Commanding General assumed the role of “Military Governor” and created two forms of military tribunal to try any case involving an offense against federal law, Hawaiian law, “or the rules, regulations, orders or policies of the military authorities.” These military courts included provost courts, which were authorized to impose fines up to $5,000 and imprisonment for up to five years, and a military tribunal empowered to decide more severe sentences, including the death penalty.316 The Commanding General cabled President Roosevelt about the declaration of martial law and the suspension of the writ of habeas corpus and received Roosevelt’s approval.317

Several challenges to martial law and the suspension of habeas corpus reached the federal courts. One involved a petition for a writ filed on February 19, 1942, by Clara Zimmerman, who claimed that her husband, Hans, had been unlawfully detained and imprisoned by military authorities. Both were U.S. citizens. District Judge Delbert E. Metzger denied the writ on the ground that military orders had forbade its issuance: “I feel that the court is under duress by reason of the order and not free to carry on the functions of the court in a manner in which the court conceives to be its duty.”318

On December 14, 1942, the Ninth Circuit affirmed the denial of the petition, holding that the Governor of Hawaii was authorized to suspend until further notice the privilege of the writ of habeas corpus. The court relied on Section 67 of the Hawaiian Organic Act.319 Although no charges had been filed against Zimmerman, the military kept him in prison. The Ninth Circuit said that civil courts, “in circumstances like the present, ought to be careful to avoid idle or captious interference.”320 Civil courts “are ill adapted to cope with an emergency of this kind. As a rule they proceed only upon formal charges.” Under this reasoning, so long as the government pressed no charges, it could hold Zimmerman indefinitely, or at least to the end of martial law.

In a dissent to the Ninth Circuit ruling, Judge Bert Emory Haney said that military government “is not expressly recognized in the Constitution and is wholly and entirely contrary to the form of government provided for therein.”321 Government by a commanding officer, he noted, “is of course not government by executive, legislative and judicial branches, the kind of government provided for in the Constitution.”322 To the extent that a military government could exist by reason of “necessity,” the question of whether a particular military action was necessary represented a “question of fact” that courts were competent to judge, “depending on the existence of facts in the territory.”323 Later, the Supreme Court denied review on the ground that the case was moot, “it appearing that Hans Zimmerman . . . has been released from the respondent’s custody.”324

In August 1942, Ingram M. Stainback replaced Poindexter as Governor. The United States had carried off the very successful Battle of Midway in June 1942, inflicting such heavy damage on the Japanese fleet that it was commonly understood that the danger of a land invasion of Hawaii no longer existed. Stainback was intent on shifting political power from martial law to civilian authority.325 Shortly after his inauguration, military authorities issued a general order on August 31, returning to the Hawaiian courts “criminal prosecutions and civil litigation to the extent that war conditions permit.” The privilege of habeas corpus remained suspended, however, and martial law still prevailed. The general order specified the type of criminal proceeding and civil suit that would remain within the jurisdiction of the military.326 A compromise worked out between the Interior and Justice Departments shifted a number of functions to the civil government.327

Proclamations on February 8, 1943, signed by both the Governor and the Commanding General, restored much of civil authority to Hawaii. With regard to violations of territorial law and federal law, trial by jury and indictment by grand jury in the civil courts replaced the provost courts and military tribunals. Nevertheless, Stainback’s proclamation included language that “a state of martial law remains in effect and the privilege of the writ of habeas corpus remains suspended.”328 Judicial proceedings were restored, both criminal and civil, except (1) criminal prosecutions against members of the armed forces, (2) civil suits against members of the armed forces, and (3) criminal prosecutions for violations of military orders. The Commanding General could waive the last exception for a particular prosecution or suit.329

[…]

On February 12, 1945, the Supreme Court granted cert to hear the Duncan and White cases.349 It did not issue a decision until a year later, after the war was over. Thus, the wartime legal scrutiny of martial law in Hawaii functioned entirely at the level of district courts and the Ninth Circuit.

In 1946, the Supreme Court held that Section 67 of the Organic Act authorized the Governor of Hawaii, with the approval of the President, to “invoke military aid under certain circumstances,” but Congress “did not specifically state to what extent the army could be used or what power it could exercise. It certainly did not explicitly declare that the Governor in conjunction with the military could for days, months or years close all the courts and supplant them with military tribunals.”350 The term
martial law in Section 67 “carries no precise meaning.”351 The Court rejected the argument of the Justice Department that the legislative history of Section 67 revealed congressional intent “to give the armed forces extraordinarily broad powers to try civilians before military tribunals.”352 Military trials of civilians charged with crimes, “especially when not made subject to judicial review, are so obviously contrary to our political traditions and our institution of jury trials in courts of law, that the tenuous circumstances offered by the Government can hardly suffice to persuade us that Congress was willing to enact a Hawaiian supreme court decision [from 1895] permitting such a radical departure from our steadfast beliefs.”353

In reviewing the development of government institutions in America, the Court pressed home the fundamental principle that courts “and their procedural safeguards are indispensable to our system of government,” and that the framers “were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws.”354