Martial law in the United States

[cheddarsnax]

A few questions on the subject.

1. Is it still possible for martial law to be declared in the United States?

2. If so, who decides this?

3. If martial law is declared, what rights does the government have the freedom to take away?

[BobT]

Not an expert here, but 10 USC 332 says:

Section 332. Use of militia and armed forces to enforce Federal authority

  Whenever the President considers that unlawful obstructions,
combinations, or assemblages, or rebellion against the authority of
the United States, make it impracticable to enforce the laws of the
United States in any State or Territory by the ordinary course of
judicial proceedings, he may call into Federal service such of the
militia of any State, and use such of the armed forces, as he
considers necessary to enforce those laws or to suppress the
rebellion.

A recent example of this would have been in Hawai’i during World War II. The Japanese-American community was not interned as those who lived on the mainland were, but essentially the islands became camps.

[Freddy_the_Pig]

States retain primary responsibility for law enforcement, so a complete answer to this question would require canvassing the constitutions and laws of all 50 states. In general, however, state or federal authorities can call out the National Guard (state) or Army (federal) to preserve civil order, and can suspend the privilege of habeas corpus and arrest and detain suspects without preferring formal charges defensible in court. This is what is generally meant by “martial law”, although the federal Constitution doesn’t use the phrase, and I suspect that most state constitutions don’t use it either.

[Julius_Henry]

Article I, section 9 of the Constitution reads (in part):

• 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.*

Since Article I deals with powers and duties of the Legislative Branch, I would assume that only Congress has the power to suspend the Writ of Habeas Corpus. I believe, however, that President Lincoln declared martial law at least once during the Civil War. And if you’re wondering if it could be done during the current crisis, it seems to me that declaring what’s going on now to be rebellion or invasion would be difficult, though hardly impossible considering some legal definitions I’ve heard over the years.

But then, constitutional law is rarely covered on Law & Order, so I could be wrong.

[BobT]

IANAL but one of the Supreme Court cases, you may wish to check would Ex parte Milligan which was a Civil War era case. It dealt with using military courts when civil courts were functioning at the same time.

[brianmelendez]

*Originally posted by Julius Henry *
Since Article I deals with powers and duties of the Legislative Branch, I would assume that only Congress has the power to suspend the Writ of Habeas Corpus. I believe, however, that President Lincoln declared martial law at least once during the Civil War. And if you’re wondering if it could be done during the current crisis, it seems to me that declaring what’s going on now to be rebellion or invasion would be difficult, though hardly impossible considering some legal definitions I’ve heard over the years.

Julius Henry, you are correct: the constitutional terms “rebellion” and “invasion” typically refer to domestic insurrection or foreign incursion in the homeland, not to war abroad. And President Lincoln did suspend the writ of habeas corpus during the Civil War, but the courts (long after the fact) cast serious doubt on whether he had acted constitutionally. As BobT points out, the leading case is Ex Parte Milligan, 71 U.S. (4 Wallace) 2 (1866).

[Hoops]

Hmmm . . . how closely does this resemble martial law?

[Captain_Amazing]

You also might want to look at (and I’m not sure if the act still has relevance, but I think it does) the Posse Comitatus Act, banning the military from civilian law enforcement. (It was passed in the 1870s, mostly by Democrats upset at the military’s role during Reconstruction)

[Captain_Amazing]

As a side note, the Posse Comitatus Act doesn’t mandate a complete ban. There are some exceptions .

[JRDelirious]

Hoops: more like a “state of emergency”. Add general (not only for those deemed “enemy combatants”) suspension of Habeas Corpus AND use of the National Guard or Regulars to maintain civil order, and you’d be there.

Notice that in the above-cited Section 332 it seems to imply that it would be a state-by-state decision and that if, for instance, New Jersey has things under control and squared away during the emergency, the Prez would not need to send in Federal troops to enforce laws or put down disorder.

In my “state”'s constitution, it’s a shared responsibility: the Gov can declare a state of emergency, call out the troops to take the streets and decree a curfew, but only the Legislature can suspend Habeas Corpus (and then only for a fixed length of time)

[Exapno_Mapcase]

Congress responded to Ex parte Milligan with the Reconstruction Act of 1867. This divided the south into five military districts and these were specifically subject to martial law if declared by the military commanders.

I can’t find any specific incidents of this coming into play, but Eric Foner in Reconstruction: America’s Unfinished Revolution 1863-1877 notes instances where the Klan was pursued through military action.

Gov. William G. Brownlow recruited a militia, manned largely by East Tennessee Unionists, and early in 1969 declared martial law in nine violence-plagued counties, a step which led to drastic curtailment of Klan activities.

[Gov. Powell Clayton of Arkansas] placed ten counties under martial law at the end of 1868… Scores of suspected Klansmen were arrested.

[In 1870 North Carolina Gov. William W. Holden] suspended the local courts (which the Klan controlled), ordered the prisoners tried before a military commission, and refused to honor a writ of habeas corpus issued by the state’s chief justice. (pp. 439-40)

There was at least one example of the government declaring martial law, although this was authorized under the later Enforcement Acts of 1870 and 1871:

Grant in October 1871 proclaimed a “condition of lawlessness” in nine upcountry counties [in South Carolina] and suspended the writ of habeas corpus. Federal troops occupied the region, making hundreds of arrests, and perhaps 2,000 Klansmen fled the state. (pp. 458-9)

[brianmelendez]

*Originally posted by Captain Amazing *
**You also might want to look at (and I’m not sure if the act still has relevance, but I think it does) the Posse Comitatus Act, banning the military from civilian law enforcement. (It was passed in the 1870s, mostly by Democrats upset at the military’s role during Reconstruction) **

The Posse Comitatus Act of 1878 is still around, dispersed through the United States Code in provisions such as 18 U.S.C. § 1385:

Sec. 1385. - Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The Department of Defense Authorization Act, 1982, enacted significant new provisions–basically exceptions to the original posse comitatus legislation–authorizing military support for civilian law-enforcement agencies. Those provisions are codified at 10 U.S.C. §§ 371-78.