Martial Law: What You Should Know About Martial Law & What It Is

Overview

In a broad sense, martial law is considered a last resort that a government uses to maintain control over a country. It is extremely rare and is only used when there is wide-spread chaos in a country. The United States Supreme Court has refused to acknowledge that martial has a strict meaning (Duncan v. Kahanamoku, 327 U.S. 304, 66 S. Ct. 606, [1946]). However, general declarations of martial law have the same characteristics even though they may have different levels of control. For instance, there may still be a legislature that is controlled by the people, but the courts may be controlled by the military. Nevertheless, whenever civilians are replaced by military personnel at any of the important government branches, martial law is in effect and the highest ranking military personnel in charge of such branch tends to become the head of the state. Martial law is not to be confused with the Supreme Law of the Land.

Protected Rights Are Suspended

When martial law is in effect there are a number of constitutionally protected freedoms that are no longer privileged. For instance, individual rights, protection from illegal certain and seizures, freedom of association, freedom of travel and other freedoms are suspended until otherwise noted.

Martial Law In The United States

In the United States, martial law goes hand in hand to something known in the legal world as habeas corpus. Habeas corpus gives courts the power to control the actions of law enforcement , thus, when habeas corpus is placed on the bench, martial law is enacted. In the United States martial law has only occurred on the federal level during the civil war.  In addition, Article 1 Section 9 of the Constitution indicates that Habeas Corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  For those not trained in legalese, a writ of habeas corpus is generally issued by a court to a government agency that an individual whom they charge with a crime must be reasonably held and must be produced at the court and then the agency must convince the court that the person can be reasonably held. Removing the habeas corpus doctrine enables an agency to hold a citizen without any charges or claims or evidence, aka martial law.

History of Martial Law In The United States

As aforementioned the U.S. has declared martial law before, once, during the civil war when President Lincoln, with the authority of Congress imposed the suspension of habeas corpus in regards to confederate spies, pow’s, friends of the enemy, and draft dodgers. The Presidents use of martial law was challenged in a case known as Ex Parte Milligan (1866). The Supreme Court ruled that the use of habeas corpus, or the suspension of it by the President was unconstitutional, however the use of martial law itself could be declared by the President in certain circumstances when civil authority could not operate. In such instances, martial law would not only be considered constitutional but also a necessary evil in order to maintain the sovereignty of the union. Thus, marital rule can only exists if the civilian courts are closed, if there is a time of war or an immediate threat, and the safety of citizens and the nation itself could be at risk.

 

Other Examples In The US:

  • War of 1812: General Jackson imposed martial law when his troops invaded New Orleans.
  • Hawaii 1941: After the Pearl Harbor attacks
  • City of San Francisco: After 1908 Earthquake

Other Examples Around The World

  • Generally any time after a coup, after a civil war, after a major world war.
  • Thailand, 2006 & 2014
  • Egypt 2013
  • China Tiananmen Protest 1989
  • Green Movement in Iran 2009
  • Poland in 1981
  • October Crisis in Canada in 1970
  • Brunei 1962
  • Ireland 1916
  • Pakistan 1958
  • World War II (reconstruction of Germany, Japan, Italy)

Who Can Issue Martial Law?

As a result with the relationship that martial law has with habeas corpus, there has been a debate among political scientists, attorneys, senators, and representatives about whether Congress can itself declare martial law. Since under habeas corpus, congress is granted the power to suspend it. However, as the commander-in-chief of the military and the highest ranking military official, the President alone, arguably can alone declare martial law. If the President decided to act congress could arguably veto the decision, accept the decision by not acting, or approve the decision. Of course some of these scenarios would place the executive and legislative branches at odds with each other, and the judiciary would have to step in to make a final ruling. This has not yet occurred so we can only hypothesize.

Martial Law Is Not Military Justice

Martial law does not have anything to do with military justice. In the United States there are separate courts for each branch of military service that hold personal jurisdiction over military service members. When serving in the military soldiers are judged under these courts and not civilian courts. In addition, civilians are generally not ruled upon in military courts unless of course martial law has been in effect.

 

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