Interposition
Exposing the “Pernicious Doctrine of ‘Partial Martial Law’” and Loss of Liberty
The Pernicious Doctrine exposed and condemned by the United States Supreme Court
United States v. Minoru Yasui, 48 F. Supp. 40 – Dist. Court, D. Oregon 1942
Dr. Wayne C. Sedlak
- What is the “Pernicious Doctrine of Partial Martial Law”
According to the long standing decision of the Supreme Court in United States v. Minoru Yasui, 48 F. Supp. 40 – Dist. Court, D. Oregon 1942… the Court adjudged a case of defendant Minoru Yasui, a man of Japanese descent, thereby exposing the Pernicious Doctrine of Partial Martial Law. The case was decided in the time immediately following Pearl Harbor when the civil liberties of Japanese citizens and immigrants were violated by Martial Law.
The Court identified Minoru Yasui:
Minoru Yasui, the defendant, is the son of an alien Japanese father and mother. He was indicted April 22, 1942, on the ground that he had violated the curfew provisions of this proclamation. He pleaded “Not Guilty”, waived a jury and was tried by the court…
Criminal Cases must establish material facts[1] AND an applicable legal basis for prosecution in all cases:
It is necessary for the United States in a criminal case, not only to establish the material facts beyond a reasonable doubt, but also to establish that there was an applicable legal basis for the prosecution.
Constitutionally, jurisdiction can never be waived by the Court in a prosecution, i.e., Jurisdiction MUST be proven and when challenged at any stage of court proceedings (as here):
This court, established under the Constitution of the United States, must determine jurisdiction at the threshold by pointing to an adequate and valid law, making punishable the acts done by defendant… The fact that the problem of the Japanese citizen and alien, resident in the states bordering the Pacific, has been solved by the army officers in charge, aided by the acquiescence of the vast majority of the American citizens of that race, does not relieve the court from the responsibility of determining the case as here presented…
Martial Law does NOT revoke the Constitution or its liberties in any unconditional manner. Even during the War of 1812 when United States territory was invaded, the liberties of the individuals were maintained.
“It must be remembered, however, when dealing with the claims made by writers who are not charged with the responsibility of maintaining the structure of the fundamental law and the guarantees of the liberty of the individual, that the perils which now encompass the nation, however imminent and immediate, are not more dreadful than those which surrounded the people who fought the Revolution and at whose demand shortly thereafter, the ten amendments containing the very guarantees now in issue were written into the Federal Constitution; nor those perils which threatened the country in the War of 1812, when its soil was in the hands of the invader and the Capitol itself was violated; nor those perils which engulfed the belligerents in the war between the states, when each was faced with disaffection and disloyalty in the territory in its control. Yet each maintained the liberty of the individual…
The Civil Authority is ALWAYS Supreme and Constitutionally Bounded…
The rationale of both the main and concurring opinions is that the civil power in this country is supreme. Neither directly nor indirectly can the military power become dominant. The Constitution, laws and treaties of the United States control. Nor is the situation changed by the incidence of war. This doctrine has been reaffirmed many times by the Supreme Court of the United States, citing the Milligan case…
“There is NO Disposition to Wear Away the Fundamental Guarantees of Liberty of the Individual in Peace or War…”
It is true that the modern tendency is to refuse to draw tight the circle of inviolability about rights of property under the due process clause and to change the emphasis in relations of labor and capital. But there is no indication either in peace or war of a disposition to wear away the fundamental guarantees of liberty of the individual…
“The Pernicious Doctrine of Partial Martial Law” developed by an ambitious governor… the very issue at stake nationally, and in Wisconsin now. The Court cited a long history of arbitrary power indicating a fear that State officials might in some future attempt further violations.
There is a pernicious doctrine known as “partial martial law”, which was developed by an ambitious governor as a method of dictating regulations to the people of a state uncontrolled by the Constitution or laws thereof. It constituted an expression of his arbitrary will. The long history within recent years of the use of arbitrary power in the guise of martial law by the executives of the states, sometimes upon the flimsiest pretext. and occasionally, with the unjustifiable support of the judiciary, state and federal, in subversion of the rights and personal liberty of the citizen, indicates that a fear that the state officials might in some future time attempt further violations is at least justifiable.
The Pernicious Doctrine is used by governors of states to satisfy personal need for uncontrolled power.
These perversions of martial rule used by governors of the states in industrial and social conflict to satisfy a personal need for uncontrolled power in given situations, wherein the civil rights of individuals were swept away by legislation or fiat dictated by an individual, indicate that in these trying days of war, limits must be set to military authority exercised in the name of necessity, lest we lose the liberties for which we fight.
“If a country is preserved at the sacrifice of the principles of liberty, the country is not worth the cost of preservation.”
But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Ex parte Milligan, supra, 4 Wall. 126, 18 L.Ed. 281.
The perversity of Partial Martial Law occurs when there is unregulated rule of military or public official without occupation by a foreign foe…”
The doctrine that there can be a partial martial law, unproclaimed and unregulated except by the rule of the military commander, expressed in orders or regulations proclaimed by him and enforced in the civil courts in a territory within the continental limits of the United States and at the time not occupied by any foreign foe, belongs in the category of such perversions,[29] and cannot be justified by any sound theory of civil, constitutional or military law.
Martial Law exists ONLY when the nation is in a “State of Siege”… But not exclusive of guarantees of personal liberties…
Its only justification lies in the doctrines of “state of siege” proclaimed by military commanders, generally speaking, in the governments of Europe. For a state of the United States or any portion thereof to be placed, in any essential function, or for citizens of the United States to be placed with regard to their fundamental rights, subject to the will of the commander alone, however well designed for their protection, without any of the preliminaries above suggested,[30] up to the time when utter necessity requires the abolition of all civil rule for the preservation of the government, would seem to be a complete surrender of the guarantees of individual liberties confirmed in the Constitution of the United States.
Martial Law declared in civil disturbances where the military is called upon to aid the civil power. Never as cessation of ALL liberties nationally, nor under just any situation of duress.
The confusion in the authorities seems to arise in a failure to differentiate between a case where martial law is properly declared in civil disturbances and a case where the military is called upon to aid the civil power. In the latter case no special attributes should be ascribed either to the soldier or the commander. Ordinary civil law is enforced by a greater power.
War may create an emergency but does not, in itself, automatically necessitate a state of Martial law. Nor does war power enactments remove constitutional limitations safeguarding essential liberties.
“Thus, the war power of the federal government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties.” Home Building & Loan Association v. Blaisdell, supra, 290 U.S. 426, 54 S.Ct. 235, 78 L.Ed. 413, 88 A.L.R. 1481…
The defendant is this instant case, was acting WITH the government of Japan in concert with that foreign power, not deemed a traitor for merely expressing opposition to the party politics of Congress, or a state (First Amendment right of speech and dissent).
The record shows that the father of the defendant was decorated by the Emperor of Japan. Within a few months after Yasui had been admitted to the Bar of the State of Oregon, he was, at the instigation of his father, employed by the Consulate General of Japan at Chicago…While so employed, Yasui followed the orders of the Consulate General of Japan and made speeches, setting forth the philosophy and purposes of the military caste of Japan as propaganda agent for the Emperor. While in this position, he was registered twice by the Consulate General as a propaganda agent for a foreign power, pursuant to the regulations issued by the State Department of the United States…Yasui remained as a propaganda agent until after the declaration of war by this country against Japan and after the treacherous attack by the armed forces of Japan upon territory of the United States in the Islands of the Pacific…
The court thus concludes from these evidences that defendant made an election and chose allegiance to the Emperor of Japan, rather than citizenship in the United States at his majority. The court concludes that he served the purposes and philosophy of the ruling caste of Japan as a propaganda agent because he could speak English, and only resigned when it seemed apparent that he could no longer serve the purposes of his sovereign in that office, but could do better execution in the event he could be commissioned an officer in the armed forces of the United States on active service…
Since Congress provided for the punishment of persons violating the proclamations of the commanding officers, and since Yasui is an alien who committed a violation of this act, which included by reference the regulations of the commander referring to aliens, the court finds him guilty.
[1] A material fact is a fact that a reasonable person would recognize as germane to a decision to be made, as distinguished from an insignificant, trivial, or unimportant detail. In other words, it is a fact, the suppression of which would reasonably result in a different decision. https://en.wikipedia.org/wiki/Material_fact:archived and recited by Dr. Wayne C. Sedlak 4/28/2020
