A PRIMER ON “MARTIAL LAW”
By Dr. Edwin Vieira, Jr., Ph.D., J.D.August 31, 2009
It is difficult these days not to come upon some pessimistic patriotic commentator expressing the fear that something called “martial law” may soon be imposed on this country, as the General Government’s response to a new “terrorist attack”, or to the economic and social chaos arising out of a collapse of the monetary and banking systems, or to some other dire event that frightens hapless Americans into trading a sure and certain loss of their liberties for a dollop of conjectural safety.
An optimistic patriot might scoff at such fears. But both pessimists and optimists typically share the same implicit first premise: namely, that the form of “martial law” they have in mind is legitimate. Most of the time, this is a rather glaring and dangerous error.
In legal analysis, definitions of terms make all the difference. And “martial law” can be defined in at least four ways:
·First, the term could denote the law that Congress may enact for governance of the Armed Forces and “the Militia of the several States”. This kind of “martial law” is plainly legitimate, because the Constitution delegates to Congress the powers “[t]o make Rules for the Government and Regulation of the land and naval Forces” and “[t]o provide * * * for governing such Part of the[ Militia of the several States] as may be employed in the Service of the United States, reserving to the States, respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”. [U.S. Const. art. I, § 8, cls. 14 and 16.] With respect to “the land and naval Forces” such “martial law” applies at all times. With respect to the Militia, it applies only when the latter have been “call[ed] forth * * * to execute the Laws of the Union, suppress Insurrections and repel Invasions”. [U.S. Const. art. I, § 8, cl. 15.] With respect to everyone else, though, it applies not at all. This absolute separation the Fifth Amendment confirms: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”. “Martial law” (in this first sense), which may (but need not necessarily) dispense with “Grand Jur[ies]”, applies only to “the land and naval forces” and to the Militia in time of “War” (“repel[ling] Invasions”) or “public danger” (“execut[ing] the Laws of the Union” and “suppress[ing] Insurrections”), and to no one else.
It would be clearer, though, not to describe these matters as involving “martial law, but instead to refer to them with particularity (as the Constitution does) as, say, “rules for the government and regulation of the land and naval forces” and “rules for governing part of the Militia under certain conditions”. Then their application only to individuals in the Armed Forces (at all times and everywhere) and in the Militia (when “call[ed] forth” for the three constitutional purposes)—and their inapplicability to anyone else at any time, anywhere, for any reason—would immediately and always be beyond cavil.
·Second, the term “martial law” may denote the direct control of civilians by military personnel operating in those territories where civilians are present, but no effective (or even any) civilian government exists. For example, during a war, in the front lines and rear echelons, as well as in places in the immediate vicinity where no actual fighting with the enemy may be going on, but the civilian authorities have been destroyed or driven out as a consequence of previous fighting. Or, after some huge natural disaster, mammoth industrial accident, or “terrorists’ strike”, across a wide area in which every important civilian administration has been rendered inoperative. The justification for “martial law” in these cases is that, if the enforcement of civilian law is well-nigh impossible, some other form of order must be set up for the benefit of the civilians themselves who cannot be evacuated. To be sure, in a zone of military operations, crimes such as espionage, sabotage, banditry, looting, and otherwise terrorizing civilians have to be detected, tried, and punished as quickly as possible. But in the case of many (and probably most) other crimes, civilian suspects could simply be arrested and be held for later trial in civilian courts, under civilian law. And military personnel could perform the essentially “police” functions of detection, apprehension, and detention in keeping with the procedures and safeguards of civilian law, too.
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