Justice Frank Murphy once wrote that two aspects of World War II could only be forgotten at our peril. One was the indiscriminate incarceration of Japanese aliens and Japanese Americans. The other was 4 years of martial law in Hawai'i. We have cried “Never Again” to the first but forgotten the second. Therefore, it is at long last that the legal scholars Harry and Jane Scheiber have excavated why and how an unprecedented military rule occurred and how stubbornly it clung to power.

To refresh our collective memory of our constitutional rights, the introductory summary of rights denied under martial law is valuable in itself: “the First Amendment rights of freedom of religion, of speech, of press, and of assembly; the Fourth Amendment guarantee of freedom from unreasonable search and seizure; the Fifth Amendment's guarantee of due process; the Sixth and Seventh Amendments’ right to trial by jury, confrontation of witnesses, and right to counsel; and the Fourteenth Amendment's right to equal protection under the law” (4). To this might be added the Thirteenth Amendment, which prohibited involuntary servitude, as Hawai'i workers were frozen in their jobs and wages, even though their employers sometimes contracted them out at a profit.

As the Hawai'i martial law regulations were being written in the year before the war, the only potentially pertinent Supreme Court ruling was from the Civil War: ex parte Milligan. It provided that constitutional rights must be respected in wartime, barring an actual invasion and unless the civilian courts were closed and unable to function. Milligan was ignored. Martial law in Hawai'i became what the United States Army made of it. The United States Territory of Hawai'i became essentially lawless, with the powers of all three branches of democratic government invested in the single person of military governor: “a complete military dictatorship,” in the words of a visiting civilian official (229).

Bayonets extensively explores the labyrinth of regulatory general orders, prominently encompassing food production, price controls, prostitution, shipping, housing, and all forms of media including the mail. But as legal history, “drumhead justice” is the main narrative theme: the suspension of habeas corpus, the closing of civilian courts, and the substitution of provost marshal courts.

This is not a pretty story. As an army publication would explain: “[Under martial law] the military commander makes the laws, executes the laws, and punishes for violation of the laws” (100). Untrained military officers, acting as judges, placed their pistols on the bar of justice. Charges were often not in writing, and the proceedings were closed to the public. If a defendant brought a lawyer, that defendant was more likely to be convicted and given a stiffer sentence. “Approximately 95 percent of those charged with violations were prosecuted, and conviction was almost certain,” the authors write. “Of the 22,480 trials conducted in Honolulu provost court in 1942-1943, some 99 percent resulted in convictions” (109). Defendant statements were interrupted, and judgments were meted out in an average of 5 minutes. Particularly in the first year, punishments exceeded those traditionally given in civil courts. The count of cases over a 3 year span is an approximation: 55,000–60,000. Juveniles as young as 14 years of age were tried in these courts.

Conflict over modifying or ending martial law between late 1942 and 1945 turned on the fact that civilian courts were capable of functioning, which was the standard set by ex parte Milligan. On this ground, the United States Justice and Interior Departments mounted a campaign against the War Department to either lighten or end martial law. One year after the Pearl Harbor bombing, marathon negotiations resulted in a partial restoration of civilian courts. The army command in Hawai’i then circumvented the agreement by issuing new general orders. President Franklin Delano Roosevelt displayed his remarkable indifference to civil liberties in time of war, pottering above this unseemly brawl. Not until deep into 1944 did the president end martial law, and thereafter the army retrenched in an Office of Internal Security that retained extensive arbitrary powers.

Only late in the war was a court case developed on appeal around a shipyard worker, Lloyd Duncan, who had been sentenced harshly for fist fighting. This resulted in Duncan v. Kahanamoku. Just as the Supreme Court had ruled on Milligan after the Civil War was concluded, it ruled on Duncan in 1946. The majority opinion was written by Justice Hugo Black. It was limited to invalidating a martial law provision in the 1900 Organic Act by which the former Kingdom of Hawai'i was made a territory of the United States. This authorized the presidentially appointed territorial governor to declare martial law “in case of rebellion or invasion, or imminent danger thereof.” Accordingly, the court did not address the underlying constitutional issue of whether martial law could be imposed in a protracted war with a receding threat of invasion.

In a concurring opinion, Justice Murphy denounced the rationale of imagined threats of sabotage and espionage by Japanese-Americans or any other racial group: “Racism has no place whatever in our civilization. The constitution as well as the conscience of mankind disclaims its use for any purpose, military or otherwise.” The dissent of Justice Felix Frankfurter asked what the court would have ruled in 1941 with the fresh memory of Pearl Harbor: “If I can't say I wouldn't vote for not enjoining (the) military in ’42 I can't do it now” (318). The vote was 6–2, with Justice Robert Jackson away at the Nuremburg war trials.

Yes, there was panic, the authors note. Yes, there was fear of sabotage and espionage. Yet incrementally, a deeper cause emerges, illuminated by Interior Secretary Harold Ickes when he referred to “the American ‘conquered territory’ of Hawaii.” The Scheibers conclude that martial law resulted from the United States treating Hawai'i as an “outpost.” The generals were, in the Scheibers’ view, guarding a military perimeter without internalizing the fact that Hawai'i's people were United States citizens. It is a conclusion that lays the blame on the continuing effect of the United States imperial thrust into the Pacific during the 1898 Spanish–American War.

When martial law is recalled in Hawai'i today, a now-elderly person likely will bring up the blackout and the irritant of everyone carrying a gas mask. As an enduring reference, Bayonets in Paradise will give readers an understanding of the seriousness of the event, and the extent to which the people of Hawai'i were abused. It could also give pause to those who think of the military as a bulwark of democracy in a time of chaos. If the generals get power, they will not be inclined to quickly give it back.

Bayonets is a big book about a big and otherwise underdeveloped vein of American history. The authors cast about far and wide for material, much to their credit. They strike an open-minded tone; their only apparent prejudice is for democratic constitutional government.

Completion of their work now sets up a basis for comparing and contrasting the record of martial law against Murphy's other subject, the mass removal and incarceration of the entire Japanese-ancestry community of the Western states. The two histories are hardly binary. Both flow from the instinct of fear and repression. But frightening as martial law was, two things need to be said. Although there were anti-Japanese elements at work in Hawai'i, the dominant attitude was trusting and supportive. The martial law regime took operative cues from the community of Hawai'i; namely, to the effect that the Japanese-Americans were actively loyal and bursting to prove themselves, and that most of their alien parents were likewise loyal or otherwise silenced by concern for their children's American future. Although the Hawai'i internment is not to be dismissed lightly (and no longer is, thanks to recent research and activism), less than 1% of the Japanese community in Hawai'i was interned. The martial law regime agreed to the community proposition that the best way to foster loyalty was to include people in the war effort. The Japanese-American military units were formed from this proposition, and from them an important vein of civil rights history flowed.

The most striking similarity to the West Coast history is that the Western Defense Command likewise took its cues from the surrounding community, where a long-standing anti-Asian, anti-Japanese prejudice held sway. When the president signed Executive Order 9066, empowering area army commanders to do whatever they wanted, he facilitated a selective martial law aimed at one ethnic group without naming it as such. Further, the abandonment of constitutional rights in the Western states was far more destructive, hurtful, and vicious than anything that occurred in Hawai'i.