Martial Law, Are We There Yet?

I have written several articles law enforcement. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on Law Enforcement.

Martial law in the United States refers to times in United States history in which in a region, state, city, or the whole United States was placed under the control of a military body. On a national level, both the US President and the US Congress have the power to impose martial law since both can be in charge of the militia. In each state, the governor has the right to impose martial law within the borders of the state. In the United States, martial law has been used in a limited number of circumstances, such as New Orleans during the Battle of New Orleans; after major disasters, such as the Great Chicago Fire of 1871, the 1906 San Francisco earthquake, or during riots, such as the Omaha race riot of 1919 or the 1920 Lexington riots; local leaders declared martial law to protect themselves from mob violence, such as Nauvoo, Illinois, during the Illinois Mormon War, or Utah during the Utah War; or in response to chaos associated with protests and rioting, such as the 1934 West Coast waterfront strike, in Hawaii after the Japanese attack on Pearl Harbor, and during the Civil Rights Movement in response to the Cambridge riot of 1963.

The martial law concept in the United States is closely tied with the right of habeas corpus, which is, in essence, the right to a hearing and trial on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. The ability to suspend habeas corpus is related to the imposition of martial law. Article 1, Section 9 of the US Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” There have been many instances of the use of the military within the borders of the United States, such as during the Whiskey Rebellion and in the South during the Civil Rights Movement, but those acts are not tantamount to a declaration of martial law. The distinction must be made as clear as that between martial law and military justice. Deployment of troops does not necessarily mean that the civil courts cannot function, which is one of the keys, as the US Supreme Court noted, to martial law. In United States law, martial law is limited by several court decisions that were handed down between the American Civil War and World War II. In 1878, Congress passed the Posse Comitatus Act, which forbids US military involvement in domestic law enforcement without congressional approval. Typically, the imposition of martial law accompanies curfews; the suspension of civil lawcivil rights, and habeas corpus; and the application or extension of military law or military justice to civilians. Civilians defying martial law may be subjected to military tribunal (court-martial).

Throughout its history the United States underwent several examples of the imposition of martial law, aside from during the American Civil War.

American Revolution: As a result of the Boston Tea PartyParliament passed the Massachusetts Government Act, one of the Intolerable Acts, which suppressed town meetings and assemblies, and imposed appointed government, tantamount to martial law.

New Orleans in War of 1812: During the War of 1812US General Andrew Jackson imposed martial law in New OrleansLouisiana, before repulsing the British in the Battle of New Orleans. Martial law was also imposed in a four-mile radius around the vicinity. When word came of the end of the war, Jackson maintained martial law, contending that he had not gotten official word of the peace. A judge demanded habeas corpus for a man arrested for sedition. Rather than comply with the writ, Jackson had the judge arrested.

Nauvoo, Illinois, during the Illinois Mormon War: In 1843, Missouri sought to extradite Joseph Smith, the founder of Mormonism, for allegedly attempting to murder Missouri governor Lilburn Boggs. He escaped arrest with the help of members of his church, and was discharged on a writ of habeas corpus in the Municipal Court of Nauvoo, where he was mayor, even though it was outside the court’s jurisdiction. People in the neighboring town of Carthage, Illinois, felt that Smith was abusing his position in order to avoid arrest. They requested that Governor Ford call out the militia to take Smith into custody, to which Governor Ford declined. Governor Ford arrived in Carthage and sent word to Smith that if he did not surrender, Ford would call out the militia. On June 18, Smith declared martial law in Nauvoo and called out the Nauvoo Legion, an organized city militia of about 5,000 men, to protect Nauvoo from outside violence.[12] Ford sent a group of men and abolished martial law. By this time, Smith had escaped into Iowa but was convinced by his supporters to return. He was arrested for treason against the state of Illinois for declaring martial law. While awaiting trial in Carthage Jail, Smith was murdered by a mob. In 1845, Nauvoo was stripped of its charter for abuse of authority. This led to a series of conflicts known as the Illinois Mormon War.

Utah during the Utah War: Tension between Utah territory and the federal government was strained in 1857 due to the influence of theodemocracy in the Governor Brigham Young’s semi-theocratic government, Utah’s rejection of federal appointees, and Utah’s acceptance of polygamy. In 1857, President James Buchanan sent U.S. forces to the Utah Territory in what became known as the Utah War. Eventually, Brigham Young was removed as governor and replaced by Alfred Cumming.

Exparte Milligan: On September 15, 1863, President Lincoln imposed Congressionally authorized martial law. The authorizing act allowed the President to suspend habeas corpus throughout the entire United States (which he had already done under his own authority on April 27, 1861). Lincoln imposed the suspension on “prisoners of war, spies, or aiders and abettors of the enemy,” as well as on other classes of people, such as draft dodgers.

The Great Chicago Fire: In response to the Great Chicago Fire of 1871, Chicago mayor Roswell B. Mason declared a state of martial law and placed General Philip Sheridan in charge of the city on October 9, 1871. After the fire was extinguished, there were no widespread disturbances and martial law was lifted within a few days.

Coeur d’dAlene, Idaho, 1892: In 1892, in Coeur d’Alene, Idaho, striking mine workers blew up a mill and shot at strike-breaking workers. The explosion leveled a four-story building and killed one person. The governor declared martial law.

San Francisco earthquake of 1906: Following the earthquake of 1906, the federal troops stationed in the Presidio were pressed into martial law service. They were posted throughout the city, and all dynamite was confiscated. The dynamite was used to destroy buildings in the path of fires, to prevent the fires from spreading.

Colorado Coalfield War: In 1914, the imposition of martial law climaxed during the Colorado Coalfield War.

West Virginia Coal Wars: During the events of the West Virginia Coal Wars (1920–1921), martial law was declared in the state of West Virginia. At the behest of Governor Cornwell, federal troops had been dispatched to Mingo County to deal with the striking miners.

Minneapolis, Minnesota, 1934: In 1934, Minnesota Governor Floyd B. Olson placed the city of Minneapolis under martial law and deployed the National Guardsmen of the 34th Infantry due to escalating violence during the Minneapolis general strike of 1934 after Bloody Friday when police opened fire on picketers.

San Francisco, California, 1934: In 1934, California Governor Frank Merriam placed the docks of San Francisco under martial law, citing “riots and tumult” resulting from a dock worker’s strike

The Territory of Hawaii: During World War II (1939 to 1945) what is now the State of Hawaii was held under martial law from December 7, 1941, to October 24, 1944, following the Japanese attack on Pearl Harbor.

Freedom Riders: On May 21, 1961, Governor Patterson of Alabama declared martial law “as a result of outside agitators coming into Alabama to violate our laws and customs” which had led to “outbreaks of lawlessness and mob action.”

John Warner National Defense Authorization Act for Fiscal Year 2007:  The John Warner National Defense Authorization Act for Fiscal Year 2007 was a bill passed in the United States Congress on September 29, 2006, and signed by President George W. Bush on October 17, 2006, becoming Public Law 109-364. In addition to allocating funding for the armed forces, it also gave the president the power to declare martial law and to take command of the National Guard units of each state without the consent of state governors. In 2006, Congress passed the 2007 National Defense Authorization Act, which gave the president the authority to mobilize National Guard units within the U.S. without the consent of state governors. But on April 2, 2007, US Senate held hearings about recent changes to the Insurrection Act of 1807.

Executive Directive 51: Executive Directive 51, also known as the National Security and Homeland Security Presidential Directive, was signed into law by President George W. Bush in May 2007. The directive, which was created in the wake of the September 11 attacks, allows the president to appoint a National Continuity Coordinator in order to maintain a continuity of government during a catastrophic emergency. As of 2020, the directive has not yet been invoked.

There are 68 times in our history that Martial Law was enforced. I left a few of the more esoteric ones out for the sake of brevity. There was a period between 1857 and 1945 when the declaration of martial law was fairly common. In most cases, a state governor imposed it on a city, county or group of counties. This was sometimes in response to violent civil unrest but more often to break strikes on behalf of business interests. These declarations lasted anywhere from days to years. Martial law was last declared in the United States in 1966, when the governor of California imposed it to suppress unrest in the Hunters Point neighborhood of San Francisco after a white police officer shot a black teenager. The federal government has declared martial law too, though far less frequently. Most recently, Hawaii was placed under martial law for the majority of World War II. As you can see I believe that we have met the criteria for martial law. What people don’t understand is that it can be for regions or areas, not the whole country. Now that we know that the State Governments have the power to order it, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.

The Supreme Court has addressed martial law in only a handful of cases and has offered little clear guidance about where the authority to declare it comes from. At the federal level, some scholars have argued that the president has inherent authority under the Constitution to declare martial law. The more persuasive view is that the president (or certain subordinates) can declare martial law only if Congress has authorized it. This was the case in Hawaii.

Because the power to declare martial law comes from Congress, Congress controls when, where and how it may be used. It can even take the power away. One limit Congress has placed on martial law — and on the domestic deployment of the military more broadly — is the Posse Comitatus Act. This law generally bars federal troops from participating in domestic law enforcement activities, such as arrests and detentions. It is not, however, an absolute prohibition on domestic military deployment.

The Posse Comitatus Act does not prevent federal troops from assisting civilian authorities in ways that do not involve law enforcement. Federal troops can help with a wide range of disaster response efforts without violating the act, such as when they were deployed to clean up debris and distribute relief supplies after Hurricane Katrina. More recently, they have been tasked with performing non-law enforcement duties in support of immigration enforcement at the southern border.

And several laws create exceptions to the Posse Comitatus Act’s general rule. The most important of these is the Insurrection Act. It allows the president, at the request of a state’s governor or legislature, to use federal troops to suppress an insurrection in that state. The president may also deploy troops without a state’s request if an “unlawful obstruction,” domestic violence or similar civil unrest is creating barriers to execution of the law. Troops may be used either to assist local law enforcement or, if necessary, to supplant them. In the latter case, the act authorizes a form of martial law, triggered by vague criteria and with few clear constraints on its use.

If violent riots were to break out across the United States due to panic over COVID-19, the president could deploy federal troops under the Insurrection Act to suppress them. But that seems unlikely. Even countries worst hit by the pandemic have not seen significant civil unrest. If mass riots were to take place, there would still be no need for federal troops to displace civilian authorities, as opposed to merely assisting them. In other words, there would be no legitimate reason to declare martial law.

So what happens when Civil Law Falls Apart?

“The basic idea is that when civil law can’t function, the military has to come in as expedient, to maintain order,” Geoffrey Corn, a professor at South Texas College of Law Houston and a former Army officer, explained via email in March.

If civil authorities can keep order, then the invocation of martial law would be invalid, and lots of constitutional rights would be violated, Corn said. “For example, if a military commander ordered confiscation of resources that would be a due process violation, because you would have been deprived of property without due process. An arrest similarly would violate the Fourth Amendment.”

The legal framework changes when one shifts to the state level. The Posse Comitatus Act does not apply to the states’ use of their own National Guard forces. Whether a state can use its militia to assist with civilian law enforcement and whether it can go further and declare martial law depends on what its own constitution and laws allow. Many states’ laws authorize much broader use of the military than is permitted under federal law.

That does not mean governors can do whatever they want. The U.S. Constitution still applies under martial law. The states must comply with its requirements and with the requirements in their own constitutions. Although the Supreme Court has said that courts cannot second-guess whether a state governor’s declaration of martial law is necessary, they can review whether the actions taken under that declaration are constitutionally permissible.

Under martial law, looters can be shot on site, no questions asked. That would certainly put an end to that activity. Unfortunately a lot of rights are suspended. The safest place to be is in house. Freedom of speech is problematic at best. While I believe we have met the criteria for its declaration, are sure we want to go down that path? Irregardless, individual states will most likely be the ones to initiate it. The chances of it getting authorized by the Federal government are slim and none.

Ok, so martial law will not likely be used any time soon, seeing most affected states are Democratic run. But that doesn’t mean that we can pass some tougher laws and actually enforce the laws in place. Also repealing no bail where it is present would be a good place to start. We could stop demonizing our police and actually provide support for them. Laws that should be passed, death penalty for cop killers, if found guilty of shooting children life without parole. These two laws would help reduce some of the shootings.

Lets play devil’s advocate, could history repeat now?

But Robert M. Chesney, a professor and associate dean at the University of Texas School of Law and a co-founder of the Lawfare blog, warned in an email in March that if an emergency ever did occur across the U.S that required military intervention, there’s also the danger that even a short-term military takeover might do permanent damage to democracy.

“That would depend on what, exactly, were to happen, Chesney wrote. “If there is some tragic circumstance that genuinely warranted martial law (say there is an invasion, or a disaster so massive that all civil authority is just gone), then yes, there would be impacts but presumably they would be outweighed in the circumstances. On the other hand, if martial law was applied without sufficient justification, then it is by definition harmful to liberty and the rule of law.”

Resources:

en.wikipedia.org, “Martial law in the United States,” By wikipedia editors; thehill.com, “Can the president declare martial law in response to coronavirus?”BY JOSEPH NUNN; people.howstuffworks.com, “Can the U.S. President Ever Declare Martial Law?, By Patrick J. Kiger;

Addendum:

Martial Law And National Guard Troops

Invoking martial law may involve the use of National Guard troops on American soil, but the presence of National Guard troops DOES NOT equal the use of martial law. Just because you see uniforms, military equipment, and other indicators that a Guard unit is setting up operations near you DOES NOT mean martial law has been declared.

Though the U.S. president can call up the National Guard for non-police uses within U.S. borders, it’s usually done in a particular state by the governor, who also functions as commander-in-chief of the state’s National Guard forces. In some instances that deployment is authorized by the president under Title 32, which means that although the forces stay under state command, the federal government pays for the expense.

In the U.S., the civilian-military relations might be strained at times, but “the military is totally committed to civilian control,” Zakheim said.

Generally that means that National Guard forces do things such as distribute food and medical supplies. For example, in Arkansas and several other states, guard members have been staffing the call centers for medical information lines and setting up local centers where sick people are being tested for COVID-19.

But there is a legal exception under which the National Guard can be deployed to enforce laws or maintain order. In 1807, Congress passed the Insurrection Act, which gave the president the authority to use military forces to suppress a revolt against the government. In 2006, as part of a defense authorization bill, Congress expanded the president’s powers, allowing him (or her) to send troops when he/she determines that “constituted authorities of the State or possession are incapable of maintaining public order.”

But it’s not clear how far that power really extends, as this 2018 Congressional Research Service report explains. Just two years after the law was amended, the George W. Bush Administration’s Office of Legal Counsel issued an opinion, saying that invoking Insurrection Act powers “would require the presence of an actual obstruction of the execution of federal law or a breakdown in the ability of state authorities to protect federal rights.”

Legal scholars are similarly skeptical. “The Insurrection Act may be invoked only following an invasion, insurrection or widespread domestic violence,” William C. Banks, a distinguished professor of law at Syracuse University and a widely regarded expert on national security law, explained via email in March. “Only if states attempt to leave the Union would state defiance enable Insurrection Act authority. Otherwise the states control their citizens’ health, welfare and safety.”

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