In a concurring opinion, however, Justice Murphy restated the principle expressed in the _Milligan_ case. Exalting civilian supremacy over the military, he reiterated the _Milligan_ rule that civilians may not be tried by the military when the courts are open and functioning. Not only did he agree with Justice Black that the acts of the military contravened statutory law, but he also was of the belief they were proscribed by the due process clause and therefore manifestly unconstitutional. Unlike the Civil War Justices, however, he suggested that until the courts were able to resume their functions the military might retain custody of its prisoners.[730] _Extra-Constitutional Sources of Emergency Power:_ Perhaps the most expansive argument for a constitutionally sanctioned, unqualified emergency power is that developed and expressed by Justice George Sutherland in a work published in 1919,[731] before his accession to the bench, and restated in his opinion for the Court in _United States_ v. _Curtiss-Wright Export Corporation_.[732] In _Constitutional Power and World Affairs_, he asserted: “As the highest duty of the nation is self-preservation, the rights of peace must then be held in subjection to the necessities of war. This does not result in a suspension of the Constitution, as some have petulantly suggested, but it may result in a suspension of constitutional rights of the individual because they conflict with the paramount powers of war.... “This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, of property and of life.”[733] The later Supreme Court opinion only removes the inconsistencies from these passages, and recognizes the war powers as extra-constitutional in nature: “It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality.”[734] Justice Jackson, dissenting in the Japanese relocation case, _Korematsu_ v. _United States_,[735] advocated complete judicial abnegation of any pretended power to review the necessity for emergency action. Favoring, however, a reversal of the judgment and a “discharge of the prisoner,” Jackson added that he couldn’t subscribe to the view that the existence of “reasonable military grounds” for such a wartime program made it constitutionally valid and subject to judicial enforcement.[736] The Court cannot “... require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be....