In strict dictionary terms, martial law is the suspension of civil authority and the imposition of military authority. When we say a region or country is "under martial law," we mean to say that the military is in control of the area that it acts as the police, as the courts, as the legislature. The degree of control might vary - a nation may have a civilian legislature but have the courts administered by the military. Or the legislature and courts may operate under civilian control with a military ruler. In each case, martial law is in effect, even if it is not called "martial law."
Martial law should not be confused with military justice. In the United States, for example, each branch of the military has its own judicial structures in place. Members of the service are under the control of military law, and in some cases civilians working for or with the military may be subject to military law. But this is the normal course of business in the military. Martial law is the exception to the rule. In the United States, the military courts were created by the Congress, and cases can be appealed out of the military system to the Supreme Court in many cases. In addition, a civilian court can petition the military for habeas corpus.
Article 1, Section 9 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." Habeas corpus is a concept of law, in which a person may not be held by the government without a valid reason for being held. A writ of habeas corpus can be issued by a court upon a government agency (such as a police force or the military). Such a writ compels the agency to produce the individual to the court, and to convince the court that the person is being reasonably held. The suspension of habeas corpus allows an agency to hold a person without a charge. Suspension of habeas corpus is often equated with martial law.
Because of this connection of the two concepts, it is often argued that only Congress can declare martial law, because Congress alone is granted the power to suspend the writ. The President, however, is commander-in-chief of the military, and it has been argued that the President can take it upon himself to declare martial law. In these times, Congress may decide not to act, effectively accepting martial law by failing to stop it; Congress may agree to the declaration, putting the official stamp of approval on the declaration; or it can reject the President's imposition of martial law, which could set up a power struggle between the Congress and the Executive that only the Judiciary would be able to resolve. In the United States, there is precedent for martial law. Several times in the course of our history, martial law of varying degrees has been declared. The most obvious and often-cited example was when President Lincoln declared martial law during the Civil War. This instance provides us with most of the rules for martial law that we would use today, should the need arise.
ex parte Milligan
On September 15, 1863, Lincoln imposed Congressionally-authorized martial law. The authorizing act allowed the President to suspend habeas corpus throughout the entire United States. 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 President's proclamation was challenged in ex parte Milligan (71 US 2 [1866]). The Supreme Court ruled that Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional.
In arguments before the Court, the counsel for the United States spoke to the question of "what is martial law?" "Martial law," it was argued, "is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military chief, or supreme executive ruler." In other words, martial law is imposed by a local commander on the region he controls, on an as-needed basis. Further, it was argued, "The officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it; and whether or not it is infringed, and of the extent of the infraction, he alone can judge; and his sole order punishes or acquits the alleged offender."
In this case, Lambden Milligan, for whom the case is named, was arrested in Indiana as a Confederate sympathizer. Indiana, like the rest of the United States, was part of a military district set up to help conduct the war. Milligan was tried by military commission and sentenced to die by hanging. After his conviction, Milligan petitioned the Circuit Court for habeas corpus, arguing that his arrest, trial, and conviction were all unconstitutional. What the Supreme Court had to decide, it said, was "Had [the military commission] the legal power and authority to try and punish [Milligan]?"
Resoundingly, the Court said no. The Court stated what is almost painfully obvious: "Martial law ... destroys every guarantee of the Constitution." The Court reminded the reader that such actions were taken by the King of Great Britain, which caused, in part, the Revolution. "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish."
Did this mean that martial law could never be implemented? No, the Court said. The President can declare martial law when circumstances warrant it: When the civil authority cannot operate, then martial law is not only constitutional, but would be necessary: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."
Examples of Martial Law
Throughout United States history are several examples of the imposition of martial law, aside from that during the Civil War.
During the war of 1812, General Andrew Jackson imposed martial law within his encampment at New Orleans, which he had recently liberated. Martial law was also imposed in a four mile radius around the camp. 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. After the civil authority was restored, the judge fined Jackson $1,000, which he paid, and for which the Congress later reimbursed Jackson.
In 1892, at Coeur d'Alene, Idaho, rebellious mine workers blew up a mill and shot at strike-breaking workers. The explosion leveled a four-story building and killed one person. Mine owners asked the governor to declare martial law, which he did. At the same time, a request was made for federal troops to back guardsmen. Over 600 people were arrested. The list was whittled down to two dozen ring leaders who were tried in civil court. While in prison, the mine workers formed a new union, the Western Federation of Miners.
In 1914, imposition of martial law climaxed the so-called Coal Field Wars in Colorado. Dating back decades, the conflicts came to a head in Ludlow in 1913. The Colorado National Guard was called in to quell the strikers. For a time, the peace was kept, but it is reported that the make-up of the Guard stationed at the mines began to shift from impartial normal troops to companies of loyal mine guards. Clashes increased and the proclamation of martial law was made by the governor. President Wilson sent in federal troops, eventually ending the violence.
In 1934, California Governor Frank Merriam placed the docks of San Francisco under martial law, citing "riots and tumult" resulting from a dock workers strike. The Governor threatened to place the entire city under martial law. The National Guard was called in to open the docks, and a city-wide institution of martial law was averted when goods began to flow. The guardsmen were empowered to make arrests and to then try detainees or turn them over to the civil courts.
Martial law and San Francisco were no strangers - following the earthquake of 1906, the troops stationed in the Presidio were pressed into service. Guards 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. Troops were ordered to shoot looters. Though there was never an official declaration of martial law, the event is often cited as such. However, at all times it appears the troops took their orders indirectly from the civil authority.
Though not a state at the time, Hawaii was placed under martial law in 1941, following the Japanese attack on Pearl Harbor. Many of the residents of Hawaii were, and are, of Asian descent, and the loyalty of these people was called into question. After the war, the federal judge for the islands condemned the conduct of martial law, saying, "Gov. Poindexter declared lawfully martial law but the Army went beyond the governor and set up that which was lawful only in conquered enemy territory namely, military government which is not bound by the Constitution. And they ... threw the Constitution into the discard and set up a military dictatorship."
On 8/26/2005, in the wake of Hurricane Katrina, New Orleans was placed under martial law after widespread flooding rendered civil authority ineffective. The state of Louisiana does not have an actual legal construct called "martial law," but instead something quite like it: a state of public health emergency. The state of emergency allowed the governor can suspend laws, order evacuations, and limit the sales of items such as alcohol and firearms. The governor's order limited the state of emergency, to end on 9/25/2005, "unless terminated sooner."
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 crises, but these 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, and that is one of the keys, as the Supreme Court noted, to martial law.
See Also:
The Lieber Code of 1863 liebercode.htm
Leadership Center for the Air Force http://www.au.af.mil
Inside the Shadow Government Milit_Civil_Enforce_ITSG.html
A FOIA request turned up United States Army field manual 19-15, dated November 1985 and titled "Civil Disturbances." The introduction says that the purpose of the manual is to provide "guidance for the commander and his staff in preparing for and providing assistance to civil authorities in civil disturbance control operations" and notes, "the DA Civil Disturbance Plan, known as Garden Plot, provides guidance to all DOD components in planning civil disturbance missions."
Field manual 19-15 further states, "the president can employ armed federal troops to suppress insurrection, domestic violence, unlawful assemblies, and conspiracy if such acts deprive the people of their constitutional rights and a state's civil authorities cannot or will not provide adequate protection . . . federal intervention in civil disturbances begins with the issuance of a presidential proclamation to the citizens engaged in the disturbance."
Some of the most eye-opening sections of field manual 19-15 discuss actions the Army could take if ordered by the president to intervene in a civil disturbance. For example, "when at all possible, civil law enforcement agents are integrated with the military control force team making apprehensions," but "if police are not available, military personnel may search people incident to an apprehension." Further, "authorities must be prepared to detain large numbers of people. . . if there are more detainees than civil detention facilities can handle, civil authorities may ask the control forces to set up and operate temporary facilities. . . These temporary facilities are set up on the nearest military installation or on suitable property under federal control. . . supervised and controlled by MP officers and NCOs trained and experienced in Army correctional operations. Guards and support personnel under direct supervision and control of MP officers and NCOs need not be trained or experienced in Army correctional operations. But they must be specifically instructed and closely supervised in the proper use of force." The manual includes information on processing detainees and says, "release procedures must be coordinated with civil authorities and appropriate legal counsel." In an echo of Lincoln's suspension of the writ of habeas corpus during the Civil War, it further states that if a state court issues a writ of habeas corpus demanding a detainee be charged or released, the local Army commander should "respectfully reply that the prisoner is being held by authority of the United States." Concerning training for Operation Garden Plot the manual says that the objective is to "develop personnel who are able to perform distasteful and dangerous duties with discipline and objectivity. . . every member of the control force must be trained to use his weapon and special equipment, riot batons, riot control agent dispersers and CS grenades, grenade launchers, shotguns, sniper rifles, cameras, portable videotape recorders, portable public address systems, night illumination devices, firefighting apparatus, grappling hooks, ladders, ropes, bulldozers Army aircraft, armored personnel carriers, and roadblock and barricade materials."
Field manual 19-15 found at: fm/19-15 also touches on the uses of martial law. It says "martial rule is based on public necessity. Public necessity in this sense means public safety." The manual continues, "If the need for martial rule arises, the military commander at the scene must so inform the Army Chief of Staff and await instructions. If martial rule is imposed the civilian population must be informed of the restrictions and rules of conduct that the military can enforce." What are these "restrictions and rules of conduct"? According to the manual, "during a civil disturbance, it may be advisable to prevent people from assembling. Civil law can make it unlawful for people to meet to plan an act of violence, rioting, or civil disturbance. Prohibitions on assembly may forbid gatherings at any place and time. . . making hostile or inflammatory speeches advocating the overthrow of the lawful government and threats against public officials, if it endangered public safety, could violate such law."
That section of field manual 19-15 raises the question of what exactly constitutes martial law. Interestingly, there appear to be no federal statutes defining "martial law," so presumably we are left with its common law definition as control of a civilian population by military forces and the suspension of civil law in favor of direct military orders. The clearest statement about martial law in federal law is in the Code of Federal Regulations, Title 32 (National Defense), Subtitle A (Department of Defense), Chapter V (Department of the Army), Subchapter A (Aid of Civil Authorities and Public Relations), Part 501 (Employment of Troops in Aid of Civil Authorities). The relevant section is 501.4, and here it is in its entirety:
501.4 Martial Law
It is unlikely that situations requiring the commitment of Federal Armed Forces will necessitate the declaration of martial law. When Federal Armed Forces are committed in the event of civil disturbances, their proper role is to support, not supplant, civil authority. Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time. In most instances the decision to impose martial law is made by the President, who normally announces his decision by a proclamation, which usually contains his instructions concerning its exercise and limitations thereon. However, the decision to impose martial law may be made by the commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from higher authority (§ 501.2). Whether or not a proclamation exists, it is incumbent upon commanders concerned to weigh every proposed action against the threat to public order and safety it is designed to meet, in order that the necessity therefore may be ascertained. When Federal Armed Forces have been committed in an objective area in a martial law situation, the population of the affected area will be informed of the rules of conduct and other restrictive measures the military is authorized to enforce. These will normally be announced by proclamation or order and will be given the widest possible publicity by all available media. Federal Armed Forces ordinarily will exercise police powers previously inoperative in the affected area, restore and maintain order, insure the essential mechanics of distribution, transportation, and communication, and initiate necessary relief measures.
From the wording of 501.4, it seems that "martial law," like "national emergency," can mean almost anything the president wants it to mean.
...the Clinton administration showed a surprising willingness to expand the role of the military in civilian law enforcement. For example, during the 1993 siege of the Branch Davidian complex in Waco, Texas, the Bureau of Alcohol, Tobacco, and Firearms (BATF) requested military support, including tanks and training sessions by Green Berets, basing their request on a single drug charge pending against one of the Davidians. Military lawyers blocked the request on grounds that it would be a clear violation of the Posse Comitatus Act.
See Also:
Field Manual 19-15 - Civil Disturbances: fm-19-15-civil-disturbances
The Provost Marshal's Law and Order Purview: http://www.globalsecurity.org
Domestic Support Ops: http://www.dtic.mil