Another great report Bricker: What is Martial Law?
A brilliant piece, in the best Cecilian tradition, Bricker. As someone often at odds with Bricker in Great Debates, may I second his reference/recommendation of Chief Justice Rehnquist’s book. Though understandably somewhat written from the CJ’s jurisprudential philosophy, it addresses the “rule of law” issue and how martial law and habeas corpus interface with it in a superb manner.
Nice column, Bricker. My recollection of the Merryman case, though, is that while Chief Justice Taney denounced the President’s actions, the Supreme Court as a whole didn’t order Merryman’s release, and when Congress came back into session later that year, it approved of all of Lincoln’s wartime measures, including the suspension of habeas corpus. Have I misremembered?
Also, your article is dated May 1, 2007, but I read it on April 28.
We are technically still under martial law here, after the military coup that toppled the government last September 19. But day-to-day living actually improved following the coup! The bars even started staying open later.
The Thaksin Shinawatra government that was toppled was very bad. An elected government yes, but he’s a dollar billionaire – is on the same boards of some international comanies as George HW Bush – and literally bought the elections. The going price for a vote in the poorest region, the Northeast, is about $5 or $6, and no one had deeper pockets than he had. He was destroying press freedom; if he couldn’t throw a reporter in jail for even saying something questioning his policies or even making a snide remark about his family, he would initiate lawsuits for ridiculous amounts, like $1 billion or $2 billion, and if it was clear that he could not possibly win, then since so many judges owed their posts to him, they followed his orders and kept the proceedings going interminably, ruining a reporter or whomever just with the costs involved in a lengthy trial. International media-watch agencies were always decrying him. Human-rights organizations, too. He would have people murdered, his Cabinet members were involved in all sorts of corruption. Political tensions were such that anti-Thaksin activists were taking to the streets and often being met violently by his paid minions. He declared a War in Drugs a few years ago that just ended up giving local police throughout the country carte blanche to kill those they had a grudge against. Thousands who never had anything to do with drugs were declared traffickers and gunned down or disappeared by local police! Thai society ws on the verge of collapse before the military stepped in, with the king’s blessing.
The situation was a LOT more complicated than that, the above is a very brief overview, but martial law here has actually improved life. Professional people and resident farangs (Westerners) like me like the military junta just fine and don’t care if there ever is another election, given the villagers’ penchant for selling their votes. (Often it’s just the village headman who gets paid, and he keeps it all, simply ordering his villagers whom to vote for.) But there are some downsides, too. Investors are a bit skittish about Thailand these days, and this is playing hell with the economy. Thaksin, currently in exile – he owns luxury homes in London and Sydney and spends a lot of time in Beijing, too – stays in the spotlight and keeps trying to throw a monkey wrench into the works, and he has the money to do it.
The current prime minister is a good man but politically inexperienced. He has promised a new election in December (Thaksin will be banned from running, and his political party stands to be dissolved soon), but he’s promised reforms that he and his people don’t have the experience implementing, and they are finding it very tough going, especially with so many old Thaksin supporters keeping their posts in the civil service. For the sake of unity, there was no general purge of any but the highest of Thaksin’s officials. It’s looking like that was a mistake, they should have kicked them all out.
But martial law here has been met with general approval. It’s not always as bad as image that the term conjures up.
distinctly incomplete. Martial law includes any time the military is authorized by the government to exercise control in an area in place of the existing civil authorities. Within the US, this has happened numerous times.
The first is a bit ambiguous – George Washington declared martial law in 1794 to put down the Whiskey Rebellion, but moderated it by ordering the Army to turn over prisoners to civil authorities for trial. A clearer occasion arose 1814, when Andrew Jackson imposed martial law on the area within a four-mile radius of his military encampment at New Orleans. Jackson continued to maintain martial law after the news of the end of the war arrived, on the basis that he had not received word through official channels. When a judge issued a writ of habeas corpus, Jackson had the judge arrested. Jackson was later charged with disobeying a court order and fined $1000 for this infraction by the court; Congress later reimbursed him.
On September 24, 1862, President Lincoln declared martial law, not over a specific area but over all disloyal persons in the United States. The declaration covered “all rebels and insurgents, their aiders and abettors, within the United States, and persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States.” It was under authority of this declaration that the commander of the military district of Indiana arrested Lambdin Milligan, leading to the Supreme Court decision in ex parte Milligan. Later (July 5, 1864), Lincoln also expressly declared martial law over the State of Kentucky.
Several state governors have imposed martial law, usually over only limited parts of their states, and sometimes using their National Guard troops to enforce it; for instance, in 1892 in Idaho, to suppress violence by mine workers; in Colorado in 1914, to put down the “Coal Field Wars”; in Arizona in 1935, in order to oppose a Federal project on Federal land within the state; in San Francisco in 1934, to suppress the violence of a dock workers’ strike; and in Rhode Island in 1937, to enforce a prohibition on horse racing. In the 1914 incident, while the declaration of martial law was made by the governor, President Wilson eventually sent in federal troops to support it.
Use of martial law by the Federal Government is not unheard-of either. While not declaring martial law in so many words, Presidents Eisenhower, Kennedy, and Johnson all used either the active military or federalized National Guard troops to impose US law (including enforcement of the Civil Rights Act and court decisions under it) in direct opposition to the governors of Arkansas, Mississippi, and Alabama. On the other hand, Hawaii was officially placed under martial law in 1941, after the attack on Pearl Harbor, and remained so until 1945.
Most recently, the Mayor of New Orleans declared martial law after Hurricane Katrina. The official declaration did not use that term, because it is not supported by Louisiana law, but Ray Nagin’s declaration of a “public health emergency” included the effective suspension of civil laws at the whim of the governor. It is hard to see what this was if not martial law.
I addressed the fact that definitions of the term may vary in my report:
If your definition of the term is adopted, then I suppose the report is, indeed, “distinctly incomplete.” I believe that your definition is uselessly broad, but this is certainly something on which reasonable people may disagree.
Fair enough, to the extent that there is no single, unequivocal definition. I make the point, however, because whatever martial law is, the suspension of habeas corpus is really a different issue. It is is least technically possible to impose martial law without suspending habeas corpus, although it would be difficult to make it practical; but it is quite possible, both technically and practically, to suspend habeas corpus without imposing martial law.
That is, if one were to impose martial law without suspending habeas corpus, it would be pretty much ineffective – unless the declaration of martial law were written carefully (by Congress) to require civilian judges to apply special legal standards to petitions for the writ, properly taking account of military needs. That is, for instance, a judge could be permitted to issue the writ but required, when it is returned, to give deference to particular claims by the military. This is not impossible – it just hasn’t been done.
On the flip side, the mere suspension of habeas corpus implies nothing martial – that is, nothing about military involvement – at all. For instance, House Bill 3035 from the 109th Congress, the so-called “Streamlined Procedures Act of 2005” (which hasn’t been passed, at least so far), would expressly limit the right of habeas corpus in Federal courts from state prisoners, but has nothing at all to do with martial law.
For that matter, the very first time the writ of habeas corpus was suspended – admittedly in the UK, not here – was is 1689, and involved civilian, not military, arrest and incarceration of persons suspected of treason. I believe the same was true when William Pitt suspended it in 1793.
The reason the two concepts are usually linked is that in almost all notorious cases in the US, the suspension of habeas corpus has been an ancillary to the imposition of martial law. On the other hand, when President Grant suspended it in selected counties in South Carolina on October 17, 1871, as part of his struggle against the Ku Klux Klan, he did authorize arrests by the military, but no other elements of martial law – arrests were also made by US marshals, and the prisoners were placed in civil confinement for regular civilian prosecution by US attorneys. The civilian courts and legal structure remained in full control.
PS – My definition is broad, but I’m not sure how it can be “uselessly broad” when it is essentially the one used by dictionaries, legal and other. I paraphrased it for simplicity, but a standard definition from Black’s Law Dictionary, for instance, is: “The law by which during wartime the army, instead of civil authority, governs the country because of a perceived need for military security or public safety. The military assumes control purportedly until civil authority can be restored.”
Nice report, Bricker!
I also have learned from the posts in this thread - thanks, folks!
This is a long-recognized problem:
Essentially, the problem Mill was addressing is the long-term version of the same problem that is addressed by martial law in short-term situations: a breakdown (or non-existence in the first place) of the basic foundations of civilized society.
It was getting a bit off-the-wall here before the military intervened. We basically had Al Capone as prime minister, and there’s evidence he even had aspirations to take over the monarchy after the current king died, founding a new dynasty with himself as king! My wife seethes when she thinks about that.
Even I, an American who has never set foot in Asia, am inclined to seethe at that. The Chakri dynasty has been the most consistently brilliant royal line in the history of the world.
I don’t think anyone wants to declare “martial law” as such anymore. Theoretically, couldn’t people like Nagin be tried under a court martial? Politicians like federal money, but they sure as hell don’t want any accountability.
What was the reasoning given that only Congress has the power to declare martial law? Was it limited solely to the fact habeas corpus is mentioned only in the legislative Article I or are there other factors? And if martial law is not identical to habeas corpus, then who would be allowed to declare it?
No comment.
Again – it all comes down to what you mean by “martial law.”
The governor calls up the National Guard to patrol streets and arrest looters during a riot. Martial law? Yes, in that members of the military are enforcing law. But those arrested are processed through civilian courts, with charges heard by the same judges that would hear other ordinary criminal cases, and the penalties for their crimes are those set out in the ordinary law, passed by the civil legislature.
The President orders federal military assets to San Francisco to enforce a court order requiring Berkeley to admit a conservative student after the mayor vows that it will happen over his dead body. Martial law?
The point of my staff report was to suggest that while the use of state or federal military assets to enforce civil law comes close, we cannot truly be said to be under martial law (as opposed to martial enforcement of ordinary civilian law) until we lose the ability to challenge detentions under ordinary civilian law. That is best exemplified in our legal system by the Great Writ, habeas corpus. For that reason, in my view the only logical place to draw the “martial law” line is with the suspension of that right.
Yes, but that wasn’t my question. I was asking about the reasoning the Taney court used to put the national power solely into the hands of Congress.
It wasn’t Taney.
The Constitution, in Art. I, Sec. 9, says:
Since, as you indicate, Article I is the article establishing Congress (Art. I, Sec. 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,”) it seems safe to conclude that Article I, Section 9 is talking about a power that Congress has. No other mention of the power appears elsewhere.
So that’s why only Congress has the power to suspend the writ. I believe I’ve laid out my reasoning for equating the suspension of the writ with the imposition of martial law. If you’re working from another definition of martial law when you ask who can declare it, then … it depends on what your own definition is. A state governor can activate his own state’s National Guard to assist with tasks that may include enforcement of the laws. The President can order federal troops to act in ways that might constitute “martial law” if we’re merely talking military involvement of some kind with the enforcement of criminal law – drug trafficking interdiction of the nation’s borders, for example.
So – you tell me what you mean when you say “martial law,” and I’ll tell you who can declare it. If you’d like to stay with my definition, which is the most practical, definitive, and brilliantly crafted since the Magna Carta itself, then the answer remains: only Congress, and only during such times of rebellion or invasion the public safety may require it.
Hi Bricker,
Thanks for an interesting piece.
I am from Australia and I have always thought of the laws of the U.S. and those of Australia being very similar. Ours tend to find there authority from English common law and yours from the U.S. Constitution but in general the rights of an individual in both countries are almost identical.
In your piece however, the paragraph concerning Yaser Esam Hamdi is really beginning to disturb me.
The Supreme Court decided that a U.S. citizen couldn’t be held without meaningful judicial review, but why is being a U.S. citizen so emphasized? Would being a non-citizen have affected the verdict?
Surely the Law must apply equally to all people within its jurisdiction.
On TV lately, in practically every cop show, I have seen some threat to hold a suspect indefinitely by accusing them of being terrorists. In others, non-citizens are treated as though their rights are different or lesser than those of other people. Now I do not go to the TV to learn my lessons in the Law, but why is it that this attitude that law enforcement can do this so prevalent?
Surely a person’s rights cannot be removed simply by accusing them of one crime rather than another? Doesn’t that go completely against the presumption of innocence that both our countries hold so dear?
If I were a visitor to the U.S., would my rights different to someone who was born there?
I remember hearing horror stories about tourists in certain countries be held responsible road accidents they didn’t cause but were involved in because (through some thoroughly twisted logic) if they had not been there, the accident would not have occurred.
I am beginning to think, that by emphasizing the the rights of one group over others, that the U.S. is becoming one of those countries.
Please tell me I am wrong.
Regards,
Phil Harvey
P.S. Can I ask a standard Guantanamo question: How is it that people held under U.S. authority but not on U.S. soil not be seen as being under the jurisdiction of the U.S. courts?
I don’t get it.
It was the Constitution, directly, rather than Taney. That was the gist of the comment, anyway.