November 9, 2005
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
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
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
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
(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
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
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
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?
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 marymaxwell.us She hereby permits anyone to distribute this article as
long as it is unaltered and credits the author.
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