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Commentary Last Updated: Jan 4th, 2007 - 01:08:31

Martial Law in a Nutshell--15 Questions
By Mary Maxwell, Ph.D.
Online Journal Contributing Writer

Nov 9, 2005, 00:21

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1. Q: Is it likely that martial law is imminent in the U.S.?

A: Yes. The way has been partially cleared for it legally by the Homeland Security Act, that 'grandfathered in' the whole of a secret 1979 executive order dealing with emergency rule. One legal hurdle to martial law still remains, namely, the Posse Comitatus Act of 1878, which explicitly forbids soldiers to participate in domestic law enforcement. However, Congress could easily annul the Posse Comitatus Act, and is being pressured by the attorney general and the Pentagon to do just that.

2. Q: What is martial law?

A: In popular usage, martial law means that some or all civil liberties are suspended. For example, there could be a curfew, which would prevent people from exercising their normal liberty to walk around after 9 p.m. Legally, martial 'law' means that military commanders are assigned to carry out law and order among civilians. Hence, soldiers can determine what the rules are, can arrest civilians for breaking them, and can subject them to summary justice. A person could not turn to the courts for help.

3. Q: Have any democratic countries experienced martial law?

A: Yes, many. For example, Prime Minister Trudeau of Canada declared martial law over Montreal in 1970 in response to kidnappings by Quebec separatists. In the Philippines, martial law under President Marcos lasted from 1972 to 1981. Greece endured 'the rule of the Colonels' from 1967 to 1974.

4. Q: At the moment, while the Posse Comitatus Act is still in effect, does it offer good protection?

A: No. Posse Comitatus was substantially weakened by amendments in 1981 and 1991 that gave the Defense Department a role in the enforcement of drug laws. Since then, many American cities have acquired joint task forces composed of military and local police (who can be temporarily deputized as federal officers). A drug dealer, or an innocent person, may have his door broken down--legally--and his home entered by soldiers and police with guns drawn.

5. Q: What does the Constitution of the U.S. say about martial law?

A: The term 'martial law' never appears in the Constitution. However, the idea of it is conveyed in two sections of Article I as follows: Section 8 says The Congress shall have the Power . . . (15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. Section 9 (2) says The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety will require it.

6. Q: Does the Constitution tell us which branch of government has the right to declare martial law?

A: Yes, the legislative branch has the right. Currently, there are 'White House radicals,' particularly in the Office of Legal Counsel to the President, advocating the position that the Constitution can be interpreted to support almost unlimited executive power. However, even they must acknowledge that the above-quoted sections (Sections 8 and 9) appear in Article I of the Constitution, which is the article that allocates specific powers to the legislature! Indisputably, this means that Congress can suspend our right to habeas corpus. One looks in vain for any similar authority for the president. Article II, which lays out the prerogatives of the executive branch, is silent on these matters.

7. Q: Has martial law ever been declared in the U.S.?

A: Yes. President Lincoln declared it during the Civil War. but this was overruled by the Supreme Court, after the war ended, in the case of Ex Parte Mulligan (1866). Mr. Mulligan was a civilian in Indiana who was allegedly aiding the enemy, i.e., the Confederacy. He was arrested and tried by the military. The Supreme Court ruled that there was no justification for martial law since the ordinary courts had functioned throughout the Civil War, and thus Mr. Mulligan should not have been deprived of his right to habeas corpus. One of the Justices said, "No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people . . ."

8. Q: Then what about Jose Padilla, who has been held in a military brig since 2001, uncharged, even though he is an American civilian? Isn't the deprivation of his rights a grave matter?

A: Not according to the US Court of Appeals, which has taken the pro-executive position that the president requires scope to fight the war on terror.

(Note: the Latin 'habeas corpus' literally means "Produce the body" i.e., bring the accused before a judge.)

9. Q: Will we ever see Army tanks roll onto the streets in our country?

A: This has already happened. Tanks rolled out in Los Angeles during the Watts riots in 1965. It happened again in that city in 1992, when rioting followed the verdict of 'not guilty' in the case of four white police officers who had severely beaten an African-American, Rodney King.

10. Q: Is it likely that race riots will be the thing that triggers martial law?

A: In many countries, ethnic minority repression leads to outbursts that are quelled by military force. Since Americans are conditioned to see racial conflict as a frightening possibility, our government may be able to 'sell' the idea of martial law. An alternative scenario, which cannot be ruled out, is that someone would kidnap or assassinate a high official of the American government with an eye to bringing about martial law.

11. Q: What is the first assignment for soldiers when martial law is declared?

A: If the actual intent of the government is to establish illegitimate dictatorial rule, one of the first things it must do is remove oppositional leaders and popular figures--be they poets, physicians, priests, or judges. When General Augusto Pinochet seized power in Chile in 1973, his soldiers immediately arrested hundreds of dissidents and corralled them in a stadium. They were subsequently tortured and many were 'disappeared.' Now, three decades later, technological advances such as stun guns and remote-control pain delivery make it even easier to arrest huge groups of people.

12. Q: Is it conceivable that mercenaries would be used domestically?

A: It is more than conceivable; it has already happened. Following Hurricane Katrina, the Blackwater USA (and perhaps other mercenary units) were assigned to duty in Louisiana by the Federal Emergency Management Agency (FEMA).

13. Q: Where does FEMA get its authority?

A: As above mentioned, the Homeland Security Act established it legislatively. Section 502 of that act says" . . . there shall be transferred to the Secretary [of the new Homeland Security Department] the functions, personnel, assets, and liabilities of . . . the Federal Emergency Management Agency."

14. Q: Didn't FEMA have an unsavory history during the Reagan administration when it helped to run a secret government inside the White House, doing deals that became known as the Iran-Contra affair?

A: Yes.

15. Q: How is it that the controversial powers of FEMA did not get resolved in the past 20 years?

A: Perhaps because there have been too many distractions. Fortunately for us, however, Professor Harold Koh, Dean of Law at Yale, provides excellent recommendations for reform in his 1990 book The National Security Constitution. Koh calls for a return to the proper balance of power among the three branches of government, even in times when foreign crises--or domestic terrorism--work to unbalance those powers.


Mary Maxwell, Ph.D., P.O. Box 4307, Ann Arbor, MI, 48106, USA, is a political scientist. You can email her as 'mary' at her website She hereby permits anyone to distribute this article as long as it is unaltered and credits the author.

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