In his Order granting approval for the International Association of Democratic Lawyers, the National Lawyers Guild and the Water Protector Legal Collective (IADL-NLG-WPLC) to file their amicus brief, Federal Magistrate Judge Rom Trader explained the role of an amicus. He stated:

When determining whether to grant leave to file an amicus brief, courts consider whether the briefing “supplement[s] the efforts of counsel, and draw[s] the court’s attention to law that escaped consideration.” The amicus may be either impartial or interested individuals, whose function is to advise or make suggestions to the court. “The district court has broad discretion to appoint amici curiae.”

In other words, Judge Trader accepts that the amicus brief “supplements” the Hawaiian Kingdom’s position that the Court is presently not lawful as an Article III Court and must, therefore, assume jurisdiction as an Article II Court because it is located outside of the United States. Article II and Article III Courts reflect the authority of federal courts under the U.S. constitution to preside over civil and criminal matters. By allowing the filing of the amicus Judge Trader acknowledges that IADL-NLG-WPLC amicus‘ “function is to advise or make suggestions to the court.”

Article II refers to the authority of the President as commander and chief of the armed forces where federal courts can be established in foreign territory that is being occupied by the United States. Article III refers to the judiciary of the United States federal government where Article III Courts exist within the States of the Federal Union. Article III Courts do not exist in the territory of foreign States. According to Justice Story, in Picquet v. Swan, “no sovereignty can extend its process beyond its territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority beyond this limit is a mere nullity.”

To put it another way, Judge Trader has explicitly admitted there is merit to the position taken by the Hawaiian Kingdom and the authors of the amicus brief that presently the Court is not lawful until it assumes jurisdiction as an Article II Court because it is not located in the State of Hawai‘i but rather in the Hawaiian Kingdom as an occupied State. The amicus opened with:

The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.

In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article IV, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress

The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.

In its conclusion, the amicus stated:

Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning. Recognition of the prolonged occupation of the Hawaiian Kingdom by the United States through Declaratory Judgment is not only a redressable claim, it is long overdue and would only be consistent with what is already known to the international community and clear under international law. Additionally, granting the Hawaiian Kingdom injunctive relief would acknowledge the Kingdom’s continuous sovereignty, mitigate the United States’ liability for its war crimes against the Hawaiian people, and apply local law as required of an occupying power by the international law of war. Acknowledging extraterritoriality and occupation would have the practical effect of applying the laws of the Hawaiian Kingdom but as was the case with prior occupation courts, this would not nullify any prior decisions of any of the courts currently operating in Hawai‘i, so long as they are not inconsistent with local law.

For the foregoing reasons, amici request that the Court consider U.S. obligations under international law, which forms part of U.S. law, in evaluating the long-standing occupation of the Hawaiian Kingdom.

In his Order granting permission to file the amicus brief, Judge Trader also stated that he granted permission after he “carefully reviewed the Motion and attached brief, records and files in this case, and the applicable law.” This would include the Hawaiian Kingdom’s amended complaint. In its amended complaint, the Hawaiian Kingdom addressed the subject of jurisdiction of the court:

3.  While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto Article II Court. According to Professor Bederman:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.

4. The authority for this Court to assume jurisdiction as a de facto Article II Court is fully elucidated in the Amicus Curiae brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus brief is instructional for the Court to transition to a de facto Article II Court.

5. An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “[a]ll offenses against the laws and usages of war[,] […] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.”

6. Like the Article II Court in Germany, this Court has Jurisdiction as a de facto Article II Court because this action arises under international humanitarian law—law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

7. The Court is authorized to award the requested declaratory and injunctive relief as a de facto Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.

8. Venue is proper because the events giving rise to this claim occurred in this District, and the Defendants are being sued in their official capacities.

By this action taken by Magistrate Judge Trader, the jurisdiction of the court is now front and center. If a court does not have jurisdiction over a case, which can be raised at any time throughout the proceedings, its decisions on any motion or even the complaint is void and without merit. This was explicitly stated by a federal court in Jalapeno Property Management, LLC v. Dukas, where a judgment is void only “if the court that rendered judgment lacked jurisdiction of the subject-matter, or of the parties, or acted in a manner inconsistent with due process.”

According to the rules, Judge Trader, as a Magistrate, is required to provide a report and recommendation to District Judge Leslie Kobayashi who serves as the trial Judge. It will be up to Judge Kobayashi to make a decision on transforming the Court from an Article III to an Article II Court. Prior to his report and recommendation, however, Judge Trader has the authority to appoint additional amicus briefs to be filed in order to address other matters not covered by the IADL-NLG-WPLC’s amicus.

This may be what Judge Trader is considering, because there are other matters that are related to Article II Courts such as procedural rules and appellate review of its decisions. Decisions by Article II Courts are not reviewable on appeal by Article III Appellate Circuit Courts as well as the U.S. Supreme Court. Article II Courts have their own procedural rules that are adopted and their own Appellate Courts that reside within the occupied territory.

In its amended complaint, the Hawaiian Kingdom brought this to the attention of the Court by referencing the establishment of Article II Courts in occupied Germany. The creation of these courts to include procedure and appeals stemmed from the Army War Department and published in the Federal Register on April 3, 1947 under Title 10. Judge Trader may very well consider asking for an amicus from the Staff Judge Advocate of the U.S. Indo-Pacific Command on how Article II Courts, similar to those established in Germany, can be established in Hawai‘i. The Commander of the U.S. Indo-Pacific Command is a named defendant in his official capacity.

Judge Trader has not provided any timeline for his report and recommendation to be completed.