THE
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KIRK
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DAVIES
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Designed
using
Perform
Pro,
WHS/DIOR,
Oct
94
pa
"Necessity
hath
no
law.
Feigned
necessities,
imaginary
necessities
...
are
the
greatest
cozenage
that
men
can
put
upon
the
Providence
of
God,
and
make
pretenses
to
break
known
rules
by."
Oliver
Cromwell
September
12,1654
1
I.
Introduction
Imagine
the
following
frightening
scenario:
Members
of
an
American
militia
group
enter
a
major
metropolitan
airport
and
attach
small
aerosol-like
devices
in
several
restrooms
throughout
the
concourse.
These
devices
release
deadly
amounts
of
smallpox
bacteria
into
the
air,
infecting
hundreds
of
Americans
travelling
through
the
airport.
Within
days,
citizens
around
the
country
begin
to
display
the
horrific
symptoms
of
smallpox.
2
Soon
public
health
workers
determine
the
nature
of
the
epidemic
and
release
the
information
to
the
press.
Widespread
panic
results.
Civilian
public
health
agencies
attempt
to
educate
the
public
on
how
to
control
the
spread
of
the
disease.
But
despite
police
efforts
to
control
the
populace
by
establishing
quarantine
areas,
the
civilian
infrastructure
is
quickly
overwhelmed.
Chaos
1
JOHN
BARTLETT,
FAMILIAR
QUOTATIONS
247
(16
th
ed.
1992).
2
A
recent
Frontline
series
episode
discussed
in
detail
the
possibilities
and
ramifications
of
biological
warfare.
Plague
War
(PBS
television
broadcast,
Oct.
13,
1998).
In
conjunction
with
the
television
series,
PBS
maintains
a
comprehensive
web
site,
which
includes
a
transcript
of
the
broadcast,
Frequently
Asked
Questions,
texts
of
interviews
not
aired
on
the
broadcast,
and
other
resource
materials
(available
at
<http:
www.pbs.org/wgbh
/pages/frontline/
shows/plague)
[hereinafter
Frontline
Internet
Site].
The
site
offers
the
following
information
regarding
smallpox:
Smallpox
is
a
virus.
It
is
highly
contagious
transmits
through
the
atmosphere
very
easily
and
has
a
high
mortality
rate.
A
worldwide
vaccination
program
eliminated
smallpox
in
the
1970s.
Both
the
United
States
and
the
former
Soviet
Union
officially
maintained
small
quantities
of
the
virus
at
two
labs.
However,
there
is
the
suspicion
that
it
may
have
been
or
is
still
researched
and
developed
at
other
labs
either
within
Russia
or
in
other
countries,
thus
increasing
the
concern
of
smallpox
being
used
as
a
biological
weapon.
See
Frontline
Internet
Site
at
<http:
www.pbs.org/wgbh/pages/frontline/
shows/plague/etc/faqs.html>.
results.
Finally,
the
President
declares
martial
law
in
an
attempt
to
restore
order
in
the
nation.
This
unwelcome
scenario
is
but
one
example
of
a
crisis
that
could
quickly
rip
apart
America's
social
structure.
3
Even
though'civilian
disaster
relief
and
law
enforcement
agencies
regularly
prepare
for
emergencies,
Americans
as
individuals
and
as
a
society
are
woefully
unprepared
to
face
this
kind
of
serious
disaster.
4
Michael
Osterholm,
State
Epidemiologist
for
the
Minnesota
Department
of
Health,
and
Chair
of
the
Committee
on
Public
Health
and
the
Public
and
Scientific
Affairs
Board,
has
been
an
outspoken
advocate
of
developing
a
national
emergency
preparedness
program
for
biological
attack.
He
recently
stated:
Several
of
my
colleagues
and
I
have
tried
to
walk
though
these
[disaster]
scenarios
time
and
time
again.
We've
looked
at
them
as
we
would
handle
any
other
public
health
disaster,
as
we've
done
in
the
past.
Unfortunately,
each
and
every
time,
given
the
resources
we
have
now,
given
the
kinds
of
authorities
we
have
now,
we
come
down
to
basically
complete
chaos
and
panic.
In
many
instances,
the
only
thing
that
would
probably
prevail
is
martial
law.
I
don't
think
this
country
has
yet
prepared
to
realize
that
we
may
face
that
in
the
future.
3
Other
possible
scenarios
might
include
one,
or
more,
of
the
following
conditions:
wide-spread
terrorist
attacks
with
chemical
or
biological
weapons,
nuclear
attack,
cyber-attack
on
critical
national
computer
systems,
or
conventional
war
waged
within
our
own
borders.
The
purpose
of
this
article
is
not
to
explore
the
relative
likelihood
of
any
of
these
scenarios.
Instead,
the
author
uses
the
biological
attack
scenario
merely
as
a
tool
to
illustrate
the
possible
conditions
that
could
lead
to
martial
law.
4
This
paper
is
not
intended
as
an
analysis
of
the
American
civil
defense
program.
However,
a
layman's
comparison
of
current
U.S.
civil
defense
activities
with
those
of
the
Cold
War
era
when
Americans
regularly
participated
in
nuclear
attack
exercises
supports
this
conclusion.
Illustrative
of
the
past
attention
given
to
civil
preparedness
was
an
exercise
conducted
by
President
Dwight
D.
Eisenhower
in
1955.
OPERATION
ALERT,
1955
included
evacuation
of
government
buildings
in
Washington
D.C.
and
a
"proclamation"
of
martial
law
by
the
President.
See
N.Y.
TIMES,
June
16,
1955,
at
1.
It
is
difficult
to
image
the
federal
government
now
conducting
such
an
extensive
exercise.
5
Frontline
Internet
Site,
supra
note
2,
at
<
http:
www.pbs.org/wgbh/pages/frontline/
shows/plague/interviews/osterholm.html>.
Given
the
relative
easy
availability
of
biological
and
chemical
weapons,
and
considering
the
number
of
groups
6
who
would
conceivably
use
such
weapons,
it
really
is
not
difficult
to
imagine
a
disaster
scenario
where
the
President
would
feel
compelled
to
restore
order
by
imposing
martial
law.
The
term
"martial
law"
has
an
ominous
ring
to
it,
especially
in
a
country
founded
upon
notions
of
civil
liberties
and
individual
rights.
Considering
our
national
predilection
for
demanding
"our
rights,"
and
in
view
of
the
constitutional
separation
of
powers,
a
President
who
imposed
martial
law
would
certainly
face
strong
political
and
legal
opposition.
Even
if
our
population
faced
a
severe
disaster,
like
the
one
described
above,
it
is
entirely
predictable
that
many
Americans
would
rebel
against
a
President
who
took
such
drastic
action,
despite
the
President's
good
intentions.
It
seems
axiomatic
that
the
President,
as
the
chief
executive,
would
have
authority
to
respond
to
national
emergencies
outside
of
any
authorization
from
the
Congress.
The
extent
to
which
the
President
may
constitutionally
or
lawfully
employ
military
force
to
react
to
an
internal,
national
crisis
is
not
at
all
clear.
The
Constitution
does
not
explicitly
grant
any
emergency
powers
to
the
President.
Perhaps
the
clause
that
requires
the
President
to
"take
Care
that
the
Laws
be
faithfully
executed..
."
7
could
be
interpreted
to
allow
the
President
some
authority
to
respond
to
national
emergencies
or
crises.
But
relying
only
on
that
authority
to
employ
military
force
to
impose
martial
law
is
problematic
since
the
Constitution
6
International
terrorists
organizations,
militia
groups,
millennial
"dooms-day"
cults,
and
right-wing
hate
groups,
to
name
a
few.
7
U.S.
CONST,
art.
II,
§3.
grants
the
Congress
the
authority
to
"call[]
forth
the
Militia
to
execute
the
Laws
of
the
Union...."
8
The
trend
in
recent
years
has
seen
the
President
and
Congress
directing
the
military
into
more
and
more
operations
that
are
traditionally
civilian
in
nature.
9
Several
factors
could
combine
to
continue
this
trend.
First,
the
threats
against
national
security
have
become
more
complicated
and
diverse.
1
0
Second,
the
military
is
viewed
as
possessing
critical
expertise
for
responding
to
the
varied
threats
previously
mentioned.
1
1
Third,
the
military
is
the
only
governmental
organization
whose
members
are
not
only
trained
to
do
dangerous
jobs,
but
who
can
also
be
ordered
into
life-threatening
situations.
1
2
Finally,
as
federal
funds
remain
!
U.S.
CONST,
art.
I,
§
8,
cl.
15.
9
See
generally
Colonel
Charles
J.
Dunlap,
Welcome
to
the
Junta:
The
Erosion
of
Civilian
Control
of
the
U.S.
Military,
29
WAKE
FOREST
L.
REV.
341
(1994);
DAVID
JABLONSKY,
The
State
of
the
National
Security
States,
in
U.S.
NATIONAL
SECURITY,
36
(Jul.
26,
1997)
(citing
James
Dubik,
"The
New
Logic.
The
U.S.
Needs
Capability-Based,
Not
Threat
Based
Military
Forces,"
ARMED
FORCES
J.
INT.,
Jan.
1997,43;
WILLIAM
S.
COHEN,
ANNUAL
REPORT
TO
THE
PRESIDENT
AND
THE
CONGRESS,
5-11
(Apr.
1997).
10
For
example,
who
should
respond
to
an
attack
against
a
sophisticated
computer
system,
like
one
controlling
air
traffic
or
the
national
banking
system?
The
Federal
Bureau
of
Investigation
or
the
Department
of
Defense?
Who
is
best
suited
to
respond
to
terrorist-sponsored
chemical
weapon
attack?
The
Department
of
Justice,
who
is
authorized
to
do
so,
(see
infra
note
23
and
accompanying
text),
or
the
Department
of
Defense?
This
blurring
of
the
traditional
threat
could
lead
the
nation
to
continue
to
interject
the
military
into
roles
that
previously
were
handled
by
civilians.
See
Tom
Bowman,
Clinton
Suggests
Budget
Increase
to
Deal
With
Modern
Terrorism,
THE
BALT.
SUN,
Jan.
23,
1999,
at
3A
("We
must
be
ready;
ready
if
our
adversaries
try
to
use
computers
to
disable
power
grids,
banking,
police,
fire
and
health
services,
or
military
assets.")
11
Because
of
this
expertise,
the
military
has
been
tasked
with
training
groups
of
civilians
around
the
country
on
the
proper
response
to
chemical
and
biological
attacks.
See
generally
The
Threat
of
Chemical
and
Biological
Weapons,
Before
theSubcomm.
of
Tech.,
Terrorism
andGov't,
Information
Comm.
on
the
Judiciary,
and
Select
Comm.
on
Intelligence,
United
States
Senate
(1998),
1998
WL
11516695,
(statement
of
Janet
Reno,
Attorney
General);
Federal
Spending
on
Anti-Terrorism
Efforts,
Before
the
Subcommittee
on
National
Security,
Veterans
Affairs,
and
International
Relations,
Committee
on
Government
Reform,
House
of
Representatives
(1999),
1999
WL
8085480
(statement
of
Henry
L.
Hinton,
Jr.,
Assistant
Comptroller
General,
National
Security
and
International
Affairs
Division.)
Beyond
their
expertise
and
training
in
dealing
with
chemical
and
biological
weapons,
the
military
is
currently
under
an
anthrax
inoculation
program.
These
kinds
of
activities
make
the
military
the
obvious
best
choice
in
responding
to
the
scenarios
envisioned
by
this
article.
12
Recently
military
members
have
been
ordered
to
receive
the
anthrax
vaccination,
in
preparation
for
facing
future
threats.
Some
have
resisted
such
vaccinations,
but
their
resistance
has
been
met
with
direct
orders
and
threats
of
punishment.
See
Airman
in
Anthrax
Dispute,
AP
Online,
Jan.
21,
1999,
available
in
Westlaw,
1999
WL
0733650;
Charlie
Goodyear,
Trouble
in
Ranks
Over
Anthrax,
S.F.
CHRON.,
Jan.
22,
1999,
at
A17.
very
limited,
Congress
and
the
President
will
most
likely
wish
to
capitalize
on
the
money
they've
already
spent
on
military
training,
rather
than
expend
additional
dollars
on
civilian
training
and
supplies.
This
trend
to
grant
the
President
more
statutory
authorization
to
regularly
involve
the
military
in
civilian
law
enforcement
and
disaster
relief
roles
creates
serious
risks
for
the
military
and
the
nation.
For
purposes
of
this
paper,
the
risk
inherent
in
this
slow,
but
steady,
move
is
that
it
may
push
the
military
closer
to
fulfilling
a
role
not
envisioned
by
our
founding
fathers.
A
significant
offshoot
of
this
trend
is
whether
Congress
has
so
altered
the
role
of
the
military
that
they
have
granted
the
chief
executive
implied
authority
to
act
in
response
to
severe
emergency
crises,
even
in
the
absence
of
specific
authorization
from
either
the
Constitution
or
the
U.S.
Congress.
If
so,
the
leap
to
a
lawfully
imposed
condition
of
martial
law
is
not
so
far
as
otherwise
imagined.
Those
facing
the
risks
associated
with
declaring
martial
law
would
extend
beyond
the
President
and
his
close
circle
of
advisors.
Military
commanders
who
swear
to
uphold
the
Constitution
of
the
United
States
13
an
d
who
are
required
to
follow
the
President's
orders,
1
4
would
find
themselves
in
an
equally
challenging
predicament.
Under
declared
martial
law,
the
President
would
expect
military
commanders
to
follow
his
orders
and
execute
the
day-to-
day
duties
associated
with
martial
law.
But
in
a
commander's
mind,
the
President's
orders
may
appear
to
stand
in
direct
opposition
to
the
commander's
oath
to
uphold
and
defend
the
nation's
Constitution.
Under
normal
conditions,
following
the
commander-in-chief
s
orders
13
5
U.S.C.A.
§
3331
(West
1998).
See
also
Geoffrey
S.
Corn,
Presidential
War
Power:
Do
the
Courts
Offer
Any
Answers?,
157
MIL.
L.
REV.
180,
187
n.22
(1998).
14
U
CMJart.92(1998).
and
directives
do
not
usually
raise
these
kinds
of
constitutional
dilemmas.
Martial
law,
however,
would
be
anything
but
"normal."
Under
such
conditions,
commanders
would
unfortunately
be
placed
in
the
difficult
position
of
wondering
whether
their
actions
were
protected
under
the
law.
A.
A
Roadmap.
This
paper
addresses
in
the
issue
of
martial
law
in
the
following
manner:
First,
as
a
necessary
precondition
to
a
declaration
of
martial
law,
this
paper
presumes
that
America's
civilian
agencies
would
be
unable
to
adequately
respond
to
certain
crises.
Accordingly,
the
paper
looks
briefly
at
how
America's
civilian
agencies
may
respond
to
these
types
of
scenarios.
This
paper
then
looks
at
the
military's
role
in
America
and
how
that
role
has
developed
from
the
early
days
of
our
nation's
history
to
present-day.
It
also
considers
briefly
the
President's
authority
as
commander-in-chief
under
our
constitutional
scheme,
and
how
the
constitutionally
imposed
separation
of
powers
affects
the
military.
The
paper
then
addresses
how
various
statutes
and
regulations
impact
on
military
operations,
particularly
in
the
area
of
emergency
response
activities.
Next,
the
paper
explores
the
topic
of
martial
law
itself.
It
develops
a
definition
of
martial
and
discusses
whether
or
not
martial
law
can
ever
be
considered
lawful.
To
help
in
that
analysis,
the
paper
then
reviews
Supreme
Court
cases
in
two
areas:
those
that
address
the
issue
of
martial
law
and
those
that
address
the
extent
of
the
President's
emergency
authority.
The
paper
looks
briefly
at
how
a
military
commander
should
respond
to
the
unusual
order
to
execute
a
presidential
declaration
of
martial
law,
and
finally,
the
paper
integrates
the
various
statutes,
rules
and
case
law
and
develops
an
approach
for
analyzing
an
executive
proclamation
of
martial
law.
B.
The
Civilian
Agencies'
Response.
One
can
easily
construct
a
crisis
scenario
that
overwhelms
the
capabilities
of
civilian
law
enforcement
and
relief
agencies.
1
5
For
example,
during
the
1992
Los
Angeles
riots,
civilian
law
enforcement
agencies
were
unable
to
cope
with
the
widespread
rioting
and
relied
upon
National
Guard
and
Federal
troops
to
help
restore
order.
1
6
According
to
a
Department
of
Defense
(DOD)
directive,
"[t]he
primary
responsibility
for
protecting
life
and
property
and
maintaining
law
and
order
in
the
civilian
community
is
vested
in
the
State
and
local
government."
17
Within
the
federal
government,
the
Federal
Emergency
Management
Agency
(FEMA)
is
the
lead
federal
agency
for
domestic
disaster
relief.
Under
FEMA's
Federal
Response
Plan,
DOD
has
assigned
responsibilities
during
disaster
response
operations.
1
8
FEMA's
primary
responsibilities
lie
in
the
area
of
disaster
or
consequence
management.
As
an
agency,
they
are
neither
trained,
nor
manned,
to
handle
scenarios
involving
insurrection.
In
such
a
severe
crisis,
if
the
President
would
be
inclined
to
15
This
article
does
not
address
whether
or
not
the
military
would,
under
such
circumstances,
be
prepared
to
restore
law
and
order
within
the
community.
Although
the
military
may
be
better
prepared
to
handle
certain
situations,
it
may
also
be
seriously
unprepared
to
impose
and
administer
martial
law.
16
See
Kurt
Andrew
Schlichter,
Locked
and
Loaded:
Taking
Aim
at
the
Growing
Use
of
the
Military
in
Civilian
Law
Enforcement
Operations,
26
Loy.
L.A.
L.
Rev.
1291
(1993).
17
U.S.
DEP'T
OF
DEFENSE,
DIR.
Directive
3025.12,
para
D(l)(c),
MILITARY-ASSISTANCE
FOR
CIVIL
DISTURBANCES
(MACDIS)
(4
Feb
94)
[hereinafter
DOD
DIR.
3025.12].
18
Assignment
of
Emergency
Preparedness
Responsibilities,
Exec.
Order
No.
12656,
53
Fed.
Reg.
47,49
(1988).
streamline
the
operational
chains
of
command,
resulting
in
removing
FEMA
from
its
primary
role
in
consequence
management,
for
DOD
taking
over
the
process
under
a
proclamation
of
martial
law.
1
9
A
recent
Presidential
initiative
reflects
the
Administration's
belief
that
the
nation
is
9ft
poorly
prepared
to
respond
to
the
kinds
of
non-traditional
attacks
envisioned
in
this
article.
In
the
area
of
biological
attack,
FEMA
officials
maintain
they
have
inadequate
funding
21
to
19
As
the
country
pays
more
attention
these
issues,
it
is
obvious
the
military
will
play
a
central
role
in
whatever
course
the
nation
ultimately
takes.
For
example,
the
DOD
is
"stationing
10
Rapid
Assessment
and
Detection
Teams
(RADT),
each
composed
of
22
specially
trained
Air
Force
and
Army
National
Guard
personnel,
in
10
states
to
respond
to
chemical
and
biological
weapons
attacks."
Jim
Landers,
U.S.
Quietly
Upgrading
Homeland
Defense
Plan,
THE
DALLAS
MORNING
NEWS,
Feb.
9,
1999
at
1A.
Besides
the
military
taking
a
more
central
role,
some
factors
indicate
that
FEMA
is
not
prepared
to
properly
execute
its
statutorily
authorized
role
to
control
disasters.
One
author
states:
In
practice,
nobody
knows
who
would
do
what
if
American
city-dwellers
faced
a
lethal
cloud
of
anthrax
or
nerve
gas.
An
exercise
in
March,
designed
to
test
the
authorities'
response
to
a
genetically
engineered
virus
spread
by
terrorists
on
the
Mexican-American
border,
led
to
bitter
squabbling
among
rival
agencies.
"There
is
no
clear
demarcation
line
between
the
FEMA,
and
knowledge
about
disease
and
hazardous
materials
is
spread
over
a
broad
array
of
institutions,"
says
Zachary
Seiden,
a
germ-warfare
boffin.
"Somebody
is
needed
to
sit
on
top
of
these
operations."
The
National
Guard
in
a
Brave
New
World,
THE
ECONOMIST,
May
9,
1998,
at
25.
20
See
John
M.
Broder,
President
Steps
Up
War
On
New
Terrorism,
N.Y.
TIMES,
Jan.
23,
1999,
at
14.
(discussing
the
President
proposing
new
steps
to
defend
against
unconventional
warfare,
including
creation
of
25
"urban
medical
emergency
teams
to
respond
to
germ
weapons
attacks.")
See
also
Landers,
supra
note
19;
Paul
Mann,
White
House
Shed
Inertia
on
Germ
War,
AVIATION
WEEK
&
SPACE
TECH.,
May
4,1998,
at
36.
21
Mann,
supra
note
20.
Stephen
Sharro,
Acting
director
of
FEMA's
terrorism
coordination
unit,
said
his
agency
has
very
little
funding
for
WMD
or
terrorism
specifically.
Total
dedicated
funding
amounts
to
$6.8
million
...
Sharro
noted,
however,
that
"FEMA
is
not
the
responder,
it
is
the
coordinator
of
the
federal
response.
So
I
would
think
the
real
shortfall
[is
in]
agencies
like
Public
Health
Service
[and
the]
Health
and
Human
Services
[Dept],
who
are
struggling
mightily
to
deal
with
these
kinds
of
threats,
and
how
you
prepare
a
nation
this
size
for
this
new
threat."
For
additional
comments
regarding
the
federal
government's
failure
to
properly
allocate
funds
to
preparing
to
counteract
this
threat,
see
Osterholm
interview,
supra
note
5.
respond
to
these
types
of
emergencies,
even
though
in
recent
years
the
federal
government
has
initiated
large-scale
training
programs.
22
An
obvious
natural
response
to
severe
disasters
may
be
rioting,
insurrections,
or
other
serious
disturbances
that
would
hamper
efforts
to
counteract
the
effects
of
the
disaster.
The
authority
to
direct
the
federal
response
to
civil
disturbances
lies
with
the
Attorney
General
of
the
United
States.
23
The
federal
response
to
terrorist
attack
falls
under
the
direction
of
the
Department
of
Justice
and
the
Federal
Bureau
of
Investigation.
24
The
Department
of
Justice
can
enlist
the
support
of
DOD
when
conditions
warrant.
25
In
recognition
of
the
threat,
recent
22
The
1996
Defense
Against
Weapons
of
Mass
Destruction
Act
of
1996,
known
as
Nunn-Lugar,
see
National
Defense
Authorization
Act
For
Fiscal
Year
1996,
Pub.
L.
No.
104-106,
§
1201,
110
Stat.
186,
469
(1996)
has
provided
millions
of
dollars
(funded
through
DOD)
to
train
local
communities
on
how
to
respond
to
nuclear
and
biological
attacks.
DOD
trainers
are
an
integral
part
of
the
program.
Under
this
legislation,
DOD
and
other
federal
agencies
have
established
teams
who
teach
local
forces
how
to
deal
with
explosives,
as
well
as
nuclear,
chemical
and
biological
attacks.
See
Federal
Response
to
Terrorist
Incidents
Involving
Weapons
of
Mass
Destruction:
Status
of
Department
of
Defense
Support
Program.Before
the
Subcomm.on
Research
and
Development
of
the
House
Comm.
On
Nat'l
Security,!^
Cong.,
1997
WL
697573
(1997)
(statement
of
Mr.
James
Q.
Roberts,
Principal
Director
to
the
Deputy
Assistant
Secretary
of
Defense
(Policy
and
Missions),
Office
of
the
Assistant
Secretary
of
Defense
(Special
Operations/Low-Intensity
Conflict).
See
also
Skip
Thurman,
Cities
Learn
How
to
Handle
Terrorists'
Chemical
Attacks,
THE
CHRISTIAN
SCIENCE
MONITOR,
Aug.
26,
1997,
at
3;
Karen
Ann
Coburn,
Rehearsal
for
Terror,
GOVERNING
MAGAZINE,
Feb.
1998,
at
22;
Otto
Kreisher,
Pentagon
to
Create
More
Chemical-bio
Response
Teams,
COPLEY
NEWS
SERVICE,
Mar.
17,
1998;
and
Frontline
interview
with
William
S.
Cohen,
United
States
Secretary
of
Defense,
Frontline
Internet
Site,
supra
note
5,
at
<http://www.pbs.org/wgbh/pages/frontline/shows/plague/
interviews/cohen.html>.
23
See
U.S.
DEP'T
OF
DEFENSE,
DIR.,
3025.1,
MILITARY
SUPPORT
TO
CIVIL
AUTHORITIES
(MSCA)
(15
Jan.
1993),
para
D(l)(d),
[hereinafter
DOD
DIR.
3025.1].
24
See
DOD
DIR.
3025.12,
supra
note
17,
para
D(8)(a)(l-2).
25
It
is
hard
to
predict
how
the
President
would
react
in
a
severe
national
crisis
like
the
ones
considered
in
this
article.
But
it
is
not
entirely
unpredictable
that
the
prescribed
method
of
response
would
not
be
followed,
for
a
variety
of
reasons.
Realistic
training
scenarios
increase
the
likelihood
that
these
kinds
of
last
minute
changes
would
not
take
place.
We
do
not
want
to
be
in
a
posture
where
the
only
thing
which
you
can
do
at
that
time
is
turn
it
into
martial
law
because
we
haven't
done
the
process
of
.
.
.working
out
those
standing
arrangements
with
FBI
and
working
it
out
with
local
civil
defense
people
and
emergency
preparedness
people.
If
none
of
that
takes
place
.
.
.
that
is
far
more
likely
to
lead
to
an
unacceptable
role
of
the
military
in
our
society.
Jonathan
S.
Landay,
Delicate
Task
of
Rallying
Public
About
Threat
of
Terrorism,
THE
CHRISTIAN
SCIENCE
MONITOR,
Feb.
3,
1999,
at
2
(quoting
a
senior
Pentagon
official).
years
have
seen
an
increased
attention
to
funding
and
training,
on
a
nation-wide
basis.
DOD
plays
a
critical
role
in
this
training.
26
It
is
this
very
funding
and
training
that
causes
civil
rights
activists
to
be
alarmed
about
the
likelihood
that
the
President
will
eventually
use
the
military,
equipped
with
this
training
and
resources,
in
a
way
that
violates
American's
civil
and
Constitutional
rights.
In
other
words,
martial
law.
II.
The
Military's
Role
in
America
The
U.S.
Armed
Forces
currently
enjoy
a
relatively
high
level
of
respect
within
our
country.
27
Along
with
this
increased
popularity,
the
American
military
establishment
has
become
increasingly
involved
in
domestic
affairs.
28
Despite
these
recent
trends
to
the
contrary,
Americans
have
historically
shown
a
strong
aversion
to
military
involvement
in
civil
affairs.
29
Given
this
traditional
distaste
for
military
involvement
in
civil
affairs,
it
is
likely
that
Americans
would
not
merely
grumble
about
the
rigors
of
living
under
martial
law.
Instead,
it
is
quite
possible
that
citizens
would
actively
resist
the
President's
and
the
military's
action
under
a
martial
law
regime,
regardless
of
the
stated
purpose
or
intended
outcome.
26
See
generally
statement
of
Mr.
James
Q.
Roberts,
supra
note
22,
the
Nunn-Lugar-Domenici
legislation
and
subsequent
counter-terrorism
actions).
27
See
Rowan
Scarborough,
Poll
Gives
Military
Its
Top
Rating,
Sex
Scandals,
Accidents
Fail
to
Lessen
Public
Confidence,
THE
WASH.
TIMES,
Feb.
17,
1998.
28
See
generally
Dunlap,
supra
note
9,
at
n.
121.
29
See
Duncan
v,
Kahanamoku,
327
U.S.
304,
320
(1946).
10
A.
Traditional
Views
The
traditional
American
dislike
for
a
strong
military
role
in
society
has
its
genesis
in
the
American
Revolution.
The
Declaration
of
Independence,
which
set
out
a
multitude
of
the
colonists'
grievances
against
the
King
of
Great
Britain,
listed
several
complaints
against
his
use
of
the
military,
including:
He
has
erected
a
multitude
of
New
Offices,
and
sent
hither
swarms
of
Officers
to
harass
our
people,
and
eat
out
their
substance.
He
has
kept
among
us,
in
times
of
peace,
Standing
Armies,
without
the
consent
of
our
legislatures.
He
has
affected
to
render
the
Military
independent
of
and
superior
to
the
Civil
30
power.
One
renowned
commentator
has
noted
that
"[ajntimilitarism
arose
in
colonial
America
for
two
primary
reasons:
first,
the
belief
that
professional
soldiers
were
the
agents
of
oppression
and,
second,
the
loathsome
reputation
of
the
soldiers
themselves."
31
According
to
some
national
opinion
polls,
the
U.S.
military
has
by
and
large
cast
off
this
negative
reputation.
32
After
U.S.
Armed
Forces
displayed
their
new,
improved
military
skills
30
THE
DECLARATION
OF
INDEPENDENCE
para.
15-17
(U.S.
1776)
(available
at
<http://www.law.indiana.edu/
uslawdocs/declaration.html>.
31
See
Dunlap,
supra
note
9,
at
344
(citing
generally
RICHARD
H.
KOH,
EAGLE
AND
SWORD:
THE
BEGINNINGS
OF
THE
MILITARY
ESTABLISHMENT
IN
AMERICA,
1783-1802,
at
3-9
(1975)).
32
According
to
a
recent
poll
on
the
amount
of
confidence
individuals
held
for
14
public
and
private
entities,
"[t]he
military
scored
the
highest
ranking,
44
percent,
for
the
category
of
'a
great
deal
of
confidence,'
outpolling
medicine,
the
Supreme
Court,
colleges,
the
media
and
other
well-known
institutions.
See
Scarborough,
supra
note
27.
See
also
Dunlap,
supra
note
9,
at
354.
"The
American
public
no
longer
views
the
armed
forces
with
the
fear
and
loathing
that
produced
the
antimilitarism
that
provided
the
intellectual
infrastructure
for
civilian
control
of
the
military
in
this
country.
In
1993
the
steadily
climbing
approval
rating
for
the
military
reached
a
11
during
the
Persian
Gulf
war,
the
President
and
Congress
rewarded
them
by
assigning
them
a
host
of
new
responsibilities.
33
These
non-traditional
roles
include
enforcing
peace
in
such
places
as
Bosnia
and
Haiti
and
conducting
counter-narcotics
operations
in
Central
and
South
America.
34
These
typically
non-military
operations
have
earned
the
military
a
new
reputation
as
a
sort
of
"go-to"
guy
for
the
United
States.
Thus,
the
military's
improved
reputation
probably
has
less
to
do
with
the
an
increased
appreciation
for
the
role
of
the
military
in
contemporary
society
and
more
to
do
with
the
common
perception
that
when
asked,
the
military
gets
the
job
done.
twenty-seven-year
high."
(citing
Public
Confident
About
Military,
SOLDIERS,
June
1993,
at
5
(reporting
results
from
a
Harris
poll)).
33
See
generally
FY2000
Appropriations,
the
Air
Force
Posture,
Before
the
Comm.
on
Appropriations,
Subcomm.
on
Defense,
United
States
Senate,
1999
WL
8085693
(1999)
(statement
of
F.
Whitten
Peters,
Secretary
of
the
Air
Force
and
General
Michael
E.
Ryan,
Chief
of
Staff):
In
1998,
the
Air
Force
flew
more
than
2,200
missions
in
the
Balkans,
27,000
missions
over
Southwest
Asia,
and
30,000
airlift
missions.
During
this
same
period,
Air
Force
members
participated
in
over
1,600
exercises
in
35
countries,
and
conducted
almost
300
military-to-
military
contact
visits
in
Europe
and
the
Pacific.
Additionally,
Air
Force
airlifters
conducted
almost
100
Denton
Amendment
humanitarian
relief
missions
to
30
countries,
and
supported
numerous
joint
force
deployments
throughout
the
year.
See
also
Brian
Mitchell,
Air
Force
Heads
for
Bumpy
Ride,
INVESTOR'S
BUSINESS
DAILY,
Sept.
25,
1998,
at
Al
(noting
the
recent
high
number
of
mission
requirements
for
the
Air
Force).
Even
though
the
Air
Force
is
specifically
referenced
in
this
article,
presumably
similar
facts
could
be
produced
for
the
other
Services.
34
John
Yoo,
War
Powers:
Where
Have
All
the
Liberals
Gone?,
THE
WALL
ST.
J.,
Mar.
15,
1999:
When
it
comes
to
the
use
of
American
military,
no
president
has
a
quicker
trigger
finger
than
Mr.
Clinton.
Since
December
1995,
some
20,000
American
troops
have
implemented
the
peace
accords
in
Bosnia,
American
planes
and
missiles
attack
Iraq
on
an
almost
daily
basis,
as
well
as
enforce
a
no-fly
zone.
Last
summer,
Mr.
Clinton
used
cruise
missiles
to
bomb
terrorist
targets
in
Sudan
and
Afghanistan.
In
1994,
he
ordered
16,000
troops
into
Haiti
to
enforce
its
transition
to
civilian
government.
In
1993,
Mr.
Clinton
expanded
the
goals
of
the
28,000
American
troops
in
Somalia,
originally
deployed
by
Mr.
Bush
for
humanitarian
reasons,
but
then
withdrew
them
after
the
deaths
of
soldiers
in
combats.
On
Mr.
Clinton's
watch
American
troops
have
participated
in
U.S.
peacekeeping
mission
in
dangerous
places
such
as
Macedonia
and
Rwanda.
12
Despite
an
improved
reputation
in
society,
many
institutions
in
America
ardently
object
to
any
notion
that
the
military
should
further
increase
its
involvement
in
traditional
civilian
functions.
While
Americans
may
recognize
and
appreciate
the
military's
ability
to
competently
respond
to
a
variety
of
national
and
international
crises,
there
remains
a
strong
distrust
of
the
military
crossing
too
far
into
the
traditionally
taboo
territory
of
civilian
law
enforcement.
This
attitude
was
evident
in
the
response
to
President
Clinton's
recent
announcement
regarding
increased
Federal
funding
to
fight
biological,
chemical
and
computer
attacks
where
many
groups
decried
the
President's
move
to
increase
the
military's
role
in
civil
law
enforcement.
35
Americans
may
now
applaud
the
military's
entering
into
such
popular
battles
like
the
fight
against
illegal
drugs,
but
once
the
"enemy"
becomes
the
average
American
under
strict
conditions
of
martial
law,
that
applause
would
likely
be
quickly
silenced.
B.
Constitutional
Roles
When
the
founders
drafted
the
Constitution,
they
weakened
the
possibility
of
a
military
with
a
dominant
role
in
society
by
subordinating
the
military
to
civilian
control.
The
Id.
at
A19.
See
also
Christopher
Walker,
Long-Term
Solution
Needed
in
Kosovo,
NEWSDAY,
Mar.
3,
1999,
at
A39
(noting
that
7,000
American
troops
still
remain
in
Bosnia).
35
"The
danger
is
in
the
inevitable
expansion
ofthat
authority
so
the
military
gets
involved
in
things
like
arresting
people
and
investigating
crimes...
.It's
hard
to
believe
that
a
soldier
with
a
suspect
in
the
sights
of
his
M-l
tank
is
well
positioned
to
protect
that
person's
civil
liberties."
Dith
Miller,
Pentagon
Seeks
Anti-Terrorism
Role,
PORTLAND
OREGONIAN,
Jan.
30,
1999,
at
A14
(quoting
Gregory
Nojeim,
legislative
counsel
on
national
security
for
the
American
Civil
Liberties
Union,
Washington
D.C.)
See
Mr.
Nojeim's
further
comment
in
Landay,
supra
note
25,
at
2
("The
best
way
to
convince
the
public
that
the
military
isn't
crossing
the
line
into
civilian
law
enforcement
is
to
draw
the
line
darker
and
heavier,
not
to
blur
it
as
the
administration
proposes
yet
again.")
See
also
Bradley
Graham,
Pentagon
Plans
Domestic
Terrorism
Team,
THE
WASH.
POST,
Feb.
1,
1999,
at
2.
13
Constitution
placed
the
military
subordinate
to
a
civilian
President,
who
serves
as
the
Commander-in-Chief
of
the
Armed
Forces.
But
clearly
under
our
constitutional
scheme,
the
President's
title
as
commander-in-chief
does
not
accord
him
full
authority
over
the
military
and
its
operations.
In
fact,
the
Constitution
ensures
civilian
control
of
the
military,
not
only
through
appointing
the
President
as
its
civilian
head,
but
by
allowing
the
other
two
branches
of
the
government
to
exercise
control
or
influence
over
the
armed
forces.
Of
the
other
two
branches
of
government,
Congress
has
the
most
practical
authority
to
exercise
influence
over
the
military.
37
Interestingly,
the
Framers
gave
Congress,
not
the
President,
the
authority
to
declare
war.
38
Congress
also
has
the
authority
to
raise
and
support
an
Army
39
and
a
Navy.
40
The
Congress
may
make
rules
and
regulations
for
the
military
41
and
call
forth
the
militia.
42
Congress
must
provide
advice
and
consent
to
the
President's
appointment
of
officers.
43
Perhaps
most
significant,
is
the
constitutional
requirement
that
Congress
"raise
and
support
Armies,
but
no
Appropriation
of
Money
to
that
use
shall
be
for
a
longer
Term
than
two
Years."
44
This
limitation
on
long-term
military
funding
ensures
that
•
U.S.
CONST,
art.
II,
§
2.
37
See
United
States
v.
Weiss,
36
M.J.
224,236
(C.M.A.
1992),
aff
d.
114
S.
Ct.
752
(1994)
(quoting
Lawrence
Tribe,
American
Constitutional
Law
353-56
(2d
ed.
1988))
("Because
of
national
security
interests
and
concern
for
unforeseen
military
exigencies,
it
was
the
intent
of
the
framers
to
vest
very
great
authority
over
these
matters
in
Congress.")
38
U.S.
CONST,
art.
I,
§
8,
cl.
11.
39
Id.
atcl.
12.
40
M
atcl.
13.
41
Id.
at
cl.
14.
42
I
d.
atcl.
15.
43
U.S.
CONST,
art.
II,
§
2,
cl.
2.
44
U.S.
CONST,
art.
I,
§
8.
14
the
Congress
maintains
an
active,
regular
role
in
regulating
the
affairs
of
the
military.
45
Clearly,
the
Constitution
envisions
a
strong,
regular
involvement
by
the
Congress
in
military
affairs.
46
Under
our
Constitutional
scheme
the
executive
branch's
conduct
through
the
military
is
subject
to
judicial
oversight.
47
But
traditionally,
the
Court
has
deferred
to
the
military's
judgment,
either
calling
the
military
a
"separate
society"
that
merits
at
times
more
relaxed
scrutiny
when
it
comes
to
judicial
review,
or
by
refusing
to
interject
itself
into
matters
that
45
See
generally
Elia
V.
Pirozzi,
The
War
Power
and
a
Career-Minded
Congress:
Making
the
Case
of
Legislative
Reform,
Congressional
Term
Limits,
and
Renewed
Respect
for
the
Intent
of
the
Framers,
27
Sw.
U.L.
REV.
185(1997).
46
But
see
Corn,
supra
note
13
at
183
(noting
that
even
though
the
Constitution
envisions
"congressional
predominance"
over
the
war
power,
"primary
authority
over
the
war
power
has
shifted
from
that
representative
body
to
the
executive
branch.")
47
A
complete
discussion
of
the
history
of
the
Supreme
Court's
exercise
of
judicial
review
of
the
executive
branch
is
beyond
the
scope
of
this
paper.
The
precedent
for
such
a
practice
was
established
in
the
historic
case
Marbury
v.
Madison,
5
U.S.
(1
Cranch)
137
(1803).
Numerous
authors
have
discussed
the
Marbury
decision,
resulting
in
a
diverse
body
of
opinion
on
the
meaning
of
the
case.
See
generally
Orrin
G.
Hatch,
Modern
Marbury
Myths,
57
U.
ClN.
L.
REV.
891
(1989);
Dean
Alfange,
Jr.,
Marbury
v.
Madison
and
Original
Understandings
of
Judicial
Review:
In
Defense
of
Traditional
Wisdom,
SUP.
CT.
REV.
329
(1993);
Michael
Stokes
Paulsen,
The
Most
Dangerous
Branch:
Executive
Power
to
Say
What
the
Law
Is.,
83
GEO.
LJ.
217
(1994).
48
Parker
v.
Levy,
417
U.S.
733
(1974)
(holding
that
a
lower
expectation
of
privacy
existed
in
the
military,
a
separate
society
with
unique
needs).
See
also
Able
v.
United
States,
155
F.3d.
628
(1998).
Deference
by
the
courts
to
military-related
judgments
by
Congress
and
the
Executive
is
deeply
recurrent
in
Supreme
Court
caselaw
and
repeatedly
has
been
the
basis
for
rejections
to
a
variety
of
challenges
to
Congressional
and
Executive
decisions
in
the
military
domain.
For
example,
the
Supreme
Court
has
upheld
Congress's
delegation
of
authority
to
the
President
to
define
factors
for
the
death
penalty
in
military
capital
cases;
Congress's
authority
to
order
members
of
the
National
Guard
into
active
federal
duty
for
training
outside
the
United
States;
the
President's
authority
as
Commander
in
Chief
to
"control
access
to
information
bearing
on
national
security;"
Congress's
decision
to
authorize
registration
only
of
males
for
the
draft;
Congress's
regulation
of
the
conduct
of
military
personnel
under
the
Uniform
Code
of
Military
Justice;
and
the
President's
discretion
as
Commander
in
Chief
to
commission
all
Army
officers.
Id.
at
633
(citations
omitted).
15
the
Court
does
not
believe
are
best
decided
by
the
judicial
branch.
49
Justice
Frankfurter
reflected
this
attitude
when
he
stated
that
the
Framers
"did
not
make
the
judiciary
the
overseer
of
our
government."
50
Despite
the
fact
the
Court
has
granted
deference
to
the
President
in
some
situations,
the
Court's
repeated
willingness
to
review
actions
taken
by
the
President
presumably
indicates
a
belief
and
willingness
not
only
to
review,
but
even
to
overturn,
executive
and
military
action
when
constitutionally
required.
C.
Statutes
and
Regulations
Covering
the
Military's
Involvement
in
Civilian
Affairs
An
intricate
array
of
statutes,
directives
and
regulations
govern
the
military's
activities
in
the
civilian
arena—whether
acting
in
law
enforcement
activities
or
in
disaster
relief
roles.
Even
though
some
of
these
rules
attempt
to
limit
certain
types
of
military
activity,
taken
as
a
whole,
they
show
that
the
President
and
military
commanders
have
substantial
authority
to
involve
our
armed
forces
in
a
wide
array
of
civilian
activities.
1.
Posse
Comitatus
In
1878,
the
U.S.
Congress
enacted
the
Posse
Comitatus
Act.
52
Congress
passed
this
Act
"[i]n
response
to
the
military
presence
in
the
Southern
States
during
the
Reconstruction
49
See
infra
note
182
and
accompanying
text.
50
Youngstown
Sheet
&
Tube
v.
Sawyer,
343
U.S.
579,
594
(1952).
51
This
article
is
not
intended
as
a
comprehensive
treatise
on
all
of
these
rules.
They
are
presented
merely
as
support
for
the
article's
overall
proposition
that
Congress
has,
in
recent
years,
given
explicit
and
implicit
endorsement
to
the
military's
increased
involvement
into
non-traditional
rules.
52
Army
Appropriations
Act,
ch.
263,
15,20
Stat.
145,
152
(1878)
(codified
as
amended
at
18
U.S.C.A.
§
1385
(West
1999)).
16
Era"
53
and
the
perceived
abuses
of
involving
the
military
in
various
civilian
responsibilities.
The
Act's
primary
purpose
is
to
forbid
military
personnel
from
executing
the
laws
or
having
any
direct
involvement
in
civilian
law
enforcement
activities.
The
Act
states:
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.
54
Determining
when
the
military
is
in
violation
of
the
Act
can
be
difficult.
55
However,
considering
the
Act's
punitive
provisions,
commanders
have
an
obvious
interest
in
ensuring
they
do
not
disobey
it.
56
Over
time,
Congress
has
authorized
relatively
significant
exceptions
to
the
Act's
sweeping
prohibitions.
None
of
the
exceptions
has
specifically
granted
the
military
a
domestic
law
enforcement
role,
but
arguably
the
obvious
pattern
is
to
accord
the
military
an
greater
role
in
civilian
affairs
than
that
previously
envisioned.
53
Matthew
Carlton
Hammond,
The
Posse
Comitatus
Act:
A
Principle
in
Need
of
Renewal,
IS
WASH.
U.
L.
Q.
953
(1997).
See
also
Colonel
Paul
Jackson
Rice,
New
Laws
and
Insights
Encircle
the
Posse
Comitatus
Act,
104
MIL.
LAW
REV.
109
(1984).
54
18
U.S.C.A.
§
1385
(West
1999).
55
In
reviewing
the
military's
actions
under
the
Act,
Courts
have
developed
three
tests
for
determining
whether
the
military
has
violated
the
Act.
The
first
test
asks
whether
the
military's
actions
were
"active"
or
"passive."
See
United
States
v.
Rasheed,
802
F.
Supp.
312
(D.
Hawaii
1992);
United
States
v.
Yunis,
681
F.
Supp.
891,
892
(D.D.C.
1988);
United
States
v.
Red
Feather,
392
F.
Supp.
916,921
(W.D.S.D.
1975).
The
second
test
asks
whether
the
use
of
the
armed
forces
"pervaded"
the
activity
of
civilian
law
enforcement
officials.
See
Hayes
v.
Hawes,
921
F.2d
100
(7
th
Cir.
1990);
United
States
v.
Hartley,
678
F.2d
961,
978
(11
th
Cir.
1982)
cert,
denied,
459
U.S.
1170
(1983).
The
third
test,
and
perhaps
the
most
common
test,
looks
at
whether
citizens
were
subject
to
military
power
that
was
either
regulatory,
prescriptive
or
compulsory.
See
United
States
v.
Kahn,
35
F.3d
426
(9
th
Cir.
1994);
United
States
v.
Casper,
541
F.2d.
1274
(8*
Cir.
1975),
cert,
denied,
30
U.S.
970
(1977).
56
18
U.S.C.A.
§
1385
(West
1999).
17
a.
Law
Enforcement
Congress
has
granted
the
Department
of
Defense
(DOD)
some
authority
to
support
civilian
law
enforcement
activities.
Military
support
to
civilian
law
enforcement
agencies
is
governed
by
several
different
regulations,
the
application
of
which
depends
upon
the
CO
nature
of
the
crisis
involved.
These
exceptions
to
the
Posse
Comitatus
Act
allow
the
military
to
provide
support
to
civilian
law
enforcement
agencies
by
sharing
information,
59
loaning
equipment,
60
and
by
providing
expert
advice
and
training.
61
Perhaps
the
broadest
exception
to
the
Posse
Comitatus
Act
is
Congress's
relatively
recent
move
to
direct
the
military
to
join
civilian
law
enforcement
agencies
in
the
fight
against
illegal
drugs.
62
Under
a
variety
of
statutes,
directives,
and
regulations
the
Department
of
Defense's
counter
drug
mission
primarily
includes
"detection
and
monitoring
of
aerial
and
maritime
transit
of
illegal
drugs
into
the
U.S."
The
use
of
the
military
in
these
diverse
roles
57
10
U.S.C.
§§
371-382
(West
1999).
58
DOD
DIR.
3025.1,
supra
note
23,
is
the
umbrella
directive
for
dealing
with
civil
emergencies
and
attacks
and
governs
all
of
DOD's
planning
an
response
for
civil
defense
or
other
support
to
civil
authorities,
except,
military
support
to
law
enforcement.
U.S.
DEP'T
OF
DEFENSE,
DIR.,
3025.15,
MILITARY
ASSISTANCE
TO
CIVIL
AUTHORITIES,
(18
Feb.
1997)
[hereinafter
DOD
DIR.
3025.15.],
governs
military
support
to
law
enforcement.
U.S.
DEP'T
OF
DEFENSE,
DIR.,
5525.5,
DOD
COOPERATION
WITH
CIVILIAN
LAW
ENFORCEMENT
OFFICIALS,
(15
Jan.
1986)
[hereinafter
DOD
DIR.
5525.5],
provides
additional
guidance
in
this
area.
Note
also,
that
law
enforcement
scenarios
involving
other
federal
agencies
may
implicate
the
Economy
Act,
31
U.S.C.A.
§
1535
(West
1999)
if
the
request
calls
for
sharing
goods
and
services.
See
generally
Winthrop,
infra
note
78,
at
14.
59
1
0
U.S.C.A.
§
371
(West
1999).
60
Id.
§
372.
61
Id.
§373.
62
10
U.S.C.A
§
124
and
10
U.S.C.
§
371-382
(West
1999),
also
known
as
the
Defense
Drug
Interdiction
Assistance
Act,
Pub.
L.
No.
99-570,
Title
III,
Subtitle
A,
§
3051,
100
Stat.
3207-74,
(1986).
63
THE
JUDGE
ADVOCATE
GENERAL'S
SCHOOL,
U.S.
ARMY,
OPERATIONAL
LAW
HANDBOOK,
Chapter
19,
p.
13
(1998
ed.).
18
has
been
the
subject
of
a
fair
amount
of
criticism,
yet
despite
the
concerns,
the
Congress
and
the
President
appear
to
remain
committed
to
them.
b.
Civil
Disturbances
Congress
has
also
granted
the
President
specific
statutory
authority
to
use
federal
troops
in
a
law
enforcement
role
in
the
case
of
national
emergency
involving
civil
disturbances,
even
though
responsibility
for
quelling
such
rebellions
lies
primarily
with
State
and
local
•
governments.
65
These
statutory
exceptions
to
the
Posse
Comitatus
Act
include
insurrections
within
a
state
(upon
the
Governor's
request);
66
rebellions
which
makes
it
impracticable
to
enforce
federal
laws;
67
or
any
insurrection
or
violence
which
impedes
the
state's
ability
to
protect
citizens
of
their
constitutional
rights,
and
the
state
is
unable
or
unwilling
to
protect
those
rights.
68
Perhaps
the
President
already
has
the
authority
to
act
in
situations
involving
maintenance
of
public
order,
even
without
congressional
authorization.
According
to
the
Code
of
Federal
Regulations,
"[t]he
Constitution
and
Acts
of
Congress
establish
six
exceptions,
69
generally
applicable
within
the
entire
territory
of
the
United
States,
to
which
the
Posse
Comitatus
Act
64
10
U.S.C.A.
§§
331-334
(West
1999).
See
also
DOD
DIR.
3025.12,
supra
note
17.
65
See
32
C.F.R.
215.4(a).
66
10
U.S.C.A.
§
331
(West
1999).
67
1
0
U
.S.C.A.
§
332
(West
1999).
68
1
0
U.S.C.A.
§
333
(West
1999).
For
a
detailed
discussion
of
DOD's
rules
relating
to
this
topic,
see
DOD
DIR.
5525.5,
supra
note
58
and
THE
JUDGE
ADVOCATE
GENERAL'S
SCHOOL,
U.S.
ARMY,
OPERATIONAL
LAW
HANDBOOK,
Chapter
19
(1998
ed.).
69
Besides
the
two
constitutional
exceptions,
the
Code
of
Federal
Regulations
lists
the
statutory
exceptions
to
the
Posse
Comitatus
Act.
They
include
three
statutory
exceptions
found
in
10
U.S.C.A.
§§
331-333,
previously
19
70
prohibition
does
not
apply."
The
Code
cites
two
constitutional
exceptions.
The
first
is
an
emergency
authority
to
prevent
lost
of
life
or
property
during
serious
disturbances
or
calamities.
71
The
second
authority
exists
to
allow
the
use
of
military
forces
to
protect
Federal
property
and
governmental
functions.
Obviously,
the
Code
of
Federal
Regulations
are
not
the
source
of
the
President's
emergency
response
authority.
73
However,
when
considering
whether
Congress
has
granted
discussed,
and
another
for
assisting
the
Secret
Service
in
providing
protection
to
governmental
officials
and
political
candidates.
32
C.F.R.
§
215.4(c)(2)(i)(a-d).
70
32
CFR§
215.4(c).
71
32
C.F.R.
§
215.4(c)(l)(i)
states:
The
emergency
authority.
Authorizes
prompt
and
vigorous
Federal
action,
including
use
of
military
forces
to
prevent
loss
of
life
or
wanton
destruction
of
property
and
to
restore
governmental
functioning
and
public
order
when
sudden
and
unexpected
civil
disturbances,
disasters,
or
calamities
seriously
endanger
life
and
property
and
disrupt
normal
governmental
functions
to
such
an
extent
that
duly
constituted
local
authorities
are
unable
to
control
the
situations.
72
32
C.F.R.
§
215.4(c)(l)(ii)
states:
Protection
of
Federal
property
and
functions.
Authorizes
Federal
action,
including
the
use
of
military
forces,
to
protect
Federal
property
and
Federal
governmental
functions
when
the
need
for
protection
exists
and
duly
constituted
local
authorities
are
unable
or
decline
to
provide
adequate
protections.
73
It
is
interesting
to
note
that
the
Code
of
Federal
Regulations
also
define
martial
law.
See
32
C.F.R.
§
501.4.
It
states,
in
relevant
part:
Martial
law
depends
for
its
justification
upon
public
necessity.
Necessity
gives
rise
to
its
creation;
necessity
justifies
its
exercise;
and
necessity
limits
its
duration...In
most
instances
the
decision
to
impose
martial
law
is
made
by
the
President,
who
normally
announces
his
decision
by
a
proclamation,
which
usually
contains
his
instructions
concerning
its
exercise
and
any
limitations
thereon...When
Federal
Armed
Forces
have
been
committed
in
an
objective
area
in
a
martial
law
situation,
the
population
of
the
affected
area
will
be
informed
of
the
rules
of
conduct
and
other
restrictive
measures
the
military
is
authorized
to
enforce...Federal
Armed
Forces
ordinarily
will
exercise
police
powers
previously
inoperative
in
the
affected
area,
restore
and
maintain
order,
insure
the
essential
mechanics
of
distribution,
transportation,
and
communication,
and
initiate
necessary
relief
measures.
20
the
President
either
"express
or
implied"
74
authority
to
use
military
troops
in
a
domestic
crisis,
evidence
of
a
federal
regulation
that
recognizes
such
a
constitutional
basis
for
authority
is
extremely
relevant,
especially
if
Congress
takes
no
action
to
modify
or
interpret
the
language
of
the
code.
2.
Disaster
Relief
Under
the
Stafford
Act,
75
the
President
may
commit
federal
troops
to
assist
state
governments
in
their
disaster
relief
operations.
76
Under
this
Act,
the
President
may
use
77
military
troops
to
perform
work
"essential
for
the
preservation
of
life
and
property."
It
should
be
noted,
however,
that
the
Stafford
Act
is
not
an
exception
to
the
Posse
Comitatus
Act,
primarily
because
activities
under
the
Act
should
not
involve
law
enforcement
activities.
Preconditions
to
federal
support
under
the
Act's
various
sections
include
a
natural
catastrophe
or
major
disaster,
a
request
from
the
state's
governor
to
provide
support,
and
a
finding
that
the
state
needs
additional
help
beyond
what
it
is
able
to
provide.
78
74
Youngstown
Sheet
&
Tube
Co.
v.
Sawyer,
343
U.S.
579,
635
(1952).
75
42
U.S.C.A.
§§5121,
et
seq.
(West
1999).
76
42
U.S.C.A.
§
5121,
et
seq.,
as
amended
(West
1999).
See
also
DOD
DIR.
3025.1,
supra
note
23,
and
DOD
DIR.
3025.15,
supra
note
58.
77
42
U.S.C.A.
§
5170b(c)
(West
1999).
78
For
a
more
detailed
discussion
of
the
Stafford
Act,
see
generally
Commander
Jim
Winthrop,
The
Oklahoma
City
Bombing:
Immediate
Response
Authority
and
Other
Military
Assistance
to
Civil
Authority
(MACA),
ARMY
LAW.,
July
1997.
21
3.
The
Military's
Inherent
Emergency
Response
Authority
In
recent
years,
Department
of
Defense
personnel
have
taken
some
civilian-related
actions
in
emergency
situations
without
any
specific
statutory
authorization.
They
have
done
so
under
a
theory
of
"emergency
response
authority."
79
An
example
of
the
military
acting
under
this
immediate
response
authority
occurred
in
Oklahoma
City
after
a
bomb
explosion
practically
destroyed
the
Alfred
P.
Murrah
federal
building.
80
In
that
case,
local
authorities
asked
military
troops
to
provide
support
to
the
investigation
in
the
form
of
bomb
detection
dogs,
medical
transportation,
and
"various
military
personnel."
81
This
support
was
provided
under
the
theory
of
the
commander's
"immediate
response
authority."
82
As
mentioned,
the
immediate
response
authority
is
mentioned
in
two
Department
of
Defense
Directives,
one
relating
to
disaster
relief
support
to
civil
authorities,
83
and
the
other
relating
to
support
for
civilian
agencies
during
civil
disturbances.
84
Under
these
provisions,
commanders,
without
prior
authorization
from
the
President,
may
take
necessary
action
to
79
This
authority
does
not
technically
fall
under
any
of
the
categories
previously
discussed
although
it
is
mentioned
in
of
all
the
main
DOD
Directives
that
cover
support
to
civilian
authorities.
These
Directives
recognize
the
authority
in
the
context
of
the
scenarios
they
cover.
See
DOD
DIR.
3025.1,
supra
note
23,
para
D5(a);
DOD
DIR.
3025.12
D2(b),
supra
note
17;
DOD
DIR.
5525.5,
supra
note
58,
Restrictions
on
Participation
of
DOD
Personnel
in
Civilian
Law
Enforcement
Activities,
para
A2(c).
80
See
generally
Winthrop,
supra
note
78.
81
Mat
4.
%1
l
d.
83
DOD
DIR.
3
025.1,
supra
note
23,
para
D5.
Under
this
directive,
the
military
must
first
receive
a
request
for
support
from
civil
authorities
before
providing
any
emergency
support.
84
DOD
DIR.
3025.12,
supra
note
17,
para
D2(b).
This
directive
states
no
requirement
to
first
receive
a
request
for
support
from
civilian
authorities.
22
prevent
human
suffering,
save
lives,
or
mitigate
great
property
damage.
The
necessary
precondition
appears
to
be
an
emergency
that
"overwhelms
the
capabilities
of
local
authorities."
86
The
"most
commonly
cited
rationale
to
support
Immediate
Response
actions
is
the
common
law
principle
of
necessity."
From
a
humanitarian,
common
sense
perspective,
it
seems
obvious
that
a
military
commander
ought
to
be
able
to
quickly
use
available
resources
to
alleviate
human
suffering,
without
first
requiring
a
bureaucratic
permission
slip.
Arguably,
that
is
why
Department
of
Defense
directives
articulate
the
authority.
Interestingly,
even
though
Congress
undoubtedly
is
aware
of
the
military's
actions
under
the
Department
of
Defense
directives
governing
such
actions,
congressional
leaders
have
taken
no
action
to
limit
a
commander's
authority
to
act
in
these
types
of
scenarios.
D.
Summary
It
appears
that
the
traditional
bias
against
military
involvement
in
civil
affairs
may
be
on
the
decline.
The
evidence
ofthat
decline
is
manifest
in
Congress's
willingness
to
create
exceptions
to
the
Posse
Comitatus
rules,
88
broader
rules
allowing
for
military
support
during
of
law
enforcement
activities,
89
and
the
President's
continued
use
of
the
armed
forces
in
85
Under
these
authorities,
military
commanders
receive
some
guidance
on
the
types
of
actions
they
can
take.
For
example,
under
DOD
DIR.
3025.12,
supra
note
17,
commanders
are
limited
to
providing
support
in
the
form
of
emergency
medical
care,
clearance
of
debris,
and
recovery
and
identification
of
the
dead.
However,
the
list
also
includes
taking
actions
to
safeguard,
collect
and
distribute
food,
and
"facilitating
the
reestablishment
of
civil
government
functions."
DOD
DIR.
3025.12,
supra
note
17,
para
D5(d).
86
Winthrop,
supra
note
78
at
6.
See
also,
e.g.,
DOD
DIR.
3025.12,
supra
note
17,
para
D2(b)(l).
87
Winthrop,
supra
note
78
at
6.
88
See
discussion
supra
Part
II.C.
1.
89
See
discussion
supra
Part
II.C.
1
.a.
23
these
roles.
90
Whatever
the
reason,
it
seems
increasingly
clear
that
Congress,
whether
directly
or
by
implication,
has
allowed
the
military
increasing
authority
in
the
civilian
domain
and
Presidents
have
not
hesitated
to
use
that
authority.
91
As
will
be
discussed,
this
trend
has
serious
implications
for
the
legality
of
the
President's
actions
under
a
proclamation
of
martial
law.
90
See
21
s
'
Century
Security
Threats
Before
the
Senate
Armed
Services
Committee,
Hearing
on
Transnational
Threats,
United
States
Senate,
1998
WL
11515924
(1998)
(statement
of
Walter
B.
Slocombe,
Under
Secretary
of
Defense
for
Policy)
(discussing
the
involvement
of
military
personnel
in
domestic
anti-terrorism
training
programs):
The
Department
of
Defense
has
prepared
to
play
a.
significant
role
in
supporting
other
government
agencies
like
the
Federal
Bureau
of
Investigation
for
crisis
response
and
the
Federal
Emergency
Management
Agency
for
consequence
management.
DOD
possesses
significant
assets,
including
active
forces,
National
Guard
and
other
reserve
components,
that,
at
the
onset
of
a
domestic
NBC
terrorism
incident,
can
be
integrated
into
a
coordinated
Federal
response.
[T]he
Department
is
also
implementing
the
Domestic
Terrorism
Preparedness
Program
to
train
and
exercise
local
first
responders,
including
firemen,
law
enforcement
officials,
and
medical
personnel.
Two
parallel
efforts
are
ongoing:
first,
training
responders
in
the
nation's
largest
120
cities;
second,
developing
training
modules
and
establishing
mechanisms
to
provide
federal
expertise
to
every
community
in
the
nation,
using
mass
media
formats
such
as
the
Internet,
video
and
CD-ROM.
Id.
at
Part
C5.
91
Jill
Elaine
Hasday,
Civil
War
as
Paradigm:
Reestablishing
the
Rule
of
Law
at
the
End
of
the
Cold
War,
5
KAN.
J.L.
&
PUB.
POL'Y
129
(1996).
While
Clinton
has
had
great
difficulty
controlling
a
military
made
powerful
and
enormous
by
the
Cold
War,
he
too
is
attracted
to
the
ease
and
efficiency
of
emergency
procedures.
In
the
wake
of
the
April
19,
1995
terrorist
attack
on
the
Alfred
P.
Murrah
Federal
Building
in
Oklahoma
City,
the
most
lethal
act
of
terrorism
in
the
nation's
history,
Clinton
has
advocated
amending
the
Posse
Comitatus
Act,
whose
enactment
finally
ended
Civil
War
crisis
government.
Clinton's
proposed
amendment
would
allow
military
personnel
and
equipment
to
be
used
to
help
civilian
authorities
investigate
crimes
involving
"weapons
of
mass
destruction,"
such
as
chemical
or
biological
weapons.
This
exemption
may
be
narrowly
drawn
and
reasonable,
but
there
are
good
reasons
for
concern
about
such
a
mingling
of
civil
and
military
police
responsibilities.
Beyond
the
possibility
of
military
usurpation
of
civilian
authority,
servicemen
are
unfamiliar
with
the
constitutional
rights
which
guide
domestic
police
work.
Perhaps
more
significantly,
delegating
domestic
functions
to
the
military
appears
to
be
an
implicit
acceptance
of
the
current
size,
power,
and
resources
of
the
military,
all
of
which
are
products
of
the
Cold
War.
Id.
at
142.
24
III.
Martial
Law
Ideally,
the
President
will
never
have
to
declare
martial
law
in
response
to
a
severe
national
crisis.
92
The
best
scenario
envisions
the
nation
responding
to
such
a
crisis
with
civilian
agencies
in
the
forefront
and
the
Department
of
Defense
in
its
traditional
support
role.
However,
should
civilian
agencies
become
overwhelmed
in
an
environment
of
chaos
and
panic,
one
of
the
President's
obvious
options
for
restoring
order
would
be
to
declare
martial
law.
Such
a
response
lies
at
the
extreme
end
of
the
spectrum
of
the
President's
available
options,
well
beyond
what
is
contemplated
under
statutes
relating
to
disaster
response
actions
or
limited
military
support
to
civilian
law
enforcement
authorities.
A.
What
is
Martial
Law?
Martial
law
has
been
federally
proclaimed
in
our
country
on
only
a
few
occasions.
Some
scholars
suggest
that
martial
law
is
not
really
law
at
all.
Blackstone
described
martial
law
as:
92
It
is
important
to
note
that
the
President
clearly
has
the
authority
to
respond
with
force
to
an
armed
attack
upon
the
United
States.
"An
early
draft
of
the
Constitution
vested
in
Congress
the
power
to
'make'
war
rather
than
the
power
to
'declare'
war.
The
change
from
"make"
to
"declare"
was
intended
to
authorize
the
President
the
power
to
repel
sudden
attacks
and
to
manage,
as
Commander-in-Chief
any
war
declared
by
Congress."
Commonwealth
of
Massachusetts
v.
Laird,
400
U.S.
886,
893
(1970)
(Justice
Douglas,
dissenting).
See
also
Jane
E.
Stromseth,
Collective
Force
and
Constitutional
Responsibility,
50
U.
MIAMI
L.
REV.
145,
158
(1995)
("To
be
sure,
the
President
as
Commander
in
Chief
clearly
has
the
authority
under
the
Constitution
(and
under
Article
51
of
the
U.N.
Charter)
to
repel
sudden
attacks
against
the
United
States
and
its
forces.")
For
purposes
of
this
article,
it
is
assumed
the
President's
authority
to
respond
to
civil
disorder
or
crisis,
either
as
a
response
to
external
attack
(by
a
terrorist
or
nation
state)
or
an
internal
attack
(as
in
a
biological
or
chemical
agent)
is
not
an
offshoot
of
this
"repel"
authority.
93
Martial
law
has
been
imposed
on
the
state
level
on
numerous
occasions,
generally
in
the
context
of
"labor
strikes
or
other
civil
turmoil."
Harry
N.
Scheiber
and
Jane
L.
Scheiber,
Bayonets
in
Paradise:
A
Half-Century
Retrospect
on
Martial
Law
in
Hawai'i,
19
U.
HAW,
L,
REV.
480,
(1997)
(citing
Charles
Fairman,
The
Law
of
Martial
Rule
and
the
National
Emergency,
55
HARV.
L.
REV.
1253
(1942)).
25
[Temporary
excrescences
bred
out
of
the
distemper
of
the
state,
and
not
any
part
of
the
permanent
and
perpetual
laws
of
the
kingdom.
For
martial
law,
which
is
built
upon
no
settled
principles,
but
is
entirely
arbitrary
in
its
decisions,
is
.
.
.
in
truth
and
reality
no
law,
but
something
indulged
rather
than
allowed
as
a
law.
94
Some
scholars
prefer
to
use
the
term
"martial
rule,"
avoiding
the
use
of
the
term
"law"
in
this
context.
95
In
fact,
Fairman,
one
of
the
most
noted
authors
on
the
subject
of
martial
law,
insists
on
referring
to
it
a
martial
rule,
thus
eliminating
the
possibility
of
inferring
the
condition
is
in
fact
lawful.
96
He
states:
Martial
law
[in
the
sense
we
are
using
it]
is
more
accurately
described
as
martial
rule,
which
obtain
in
a
domestic
community
when
the
military
authority
carries
on
the
government,
or
at
least
some
of
its
functions.
Martial
rule
may
exist
de
facto;
the
term
is
noncommittal
as
to
its
legality.
Martial
law,
as
can
be
expected,
has
been
defined
in
various
manners.
Essentially,
it
is
"the
rule
which
is
established
when
civil
authority
in
the
community
is
made
subordinate
to
military,
either
in
repelling
invasions
or
when
the
ordinary
administration
of
the
laws
fail
to
94
2
W.
Blackstone,
Commentaries
413
(quoted
in
DYCUS
ET
AL.,
NATIONAL
SECURITY
LAW,
398
(1990)).
95
For
some,
the
distinction
between
"martial
rule"
and
"martial
law"
may
be
a
distinction
without
a
difference,
however,
for
others
the
terminology
is
important
because
of
the
underlying
message
sent
by
each
term.
People
imagine,
when
they
hear
the
expression
martial
law,
that
there
is
a
system
of
law
known
by
that
name,
which
can
upon
occasion
be
substituted
for
the
ordinary
system;
and
there
is
a
prevalent
notion
that
under
certain
circumstances
a
military
commander
may,
by
issuing
a
proclamation,
displace
one
system,
the
civil
law,
and
substitute
another,
the
martial.
..
Let
us
call
the
thing
by
its
right
name;
it
is
not
martial
law,
but
martial
rule.
CHARLES
FAIRMAN,
THE
LAW
OF
MARTIAL
RULE
28
(2
ed.
1943)
(quoting
David
Dudley
Field
in
his
argument
before
the
Supreme
Court
in
Exporte
Milligan,
4
Wall.
2,
35
(1866)).
96
For
purposes
of
this
article,
the
author
prefers
to
use
the
more
common
term,
"martial
law,"
in
order
to
avoid
confusion.
However,
he
agrees
that
"martial
rule"
is
a
more
desirable
term
for
describing
the
condition
of
military
imposed
rule.
97
FAIRMAN,
supra
note
95,
at
30.
See
also
ROBERT
S.
RANKIN,
WHEN
CIVIL
LAW
FAILS,
174
(1939).
26
secure
the
proper
objectives
of
the
government."
98
The
Supreme
Court
has
defined
martial
law
as
"the
law
of
military
necessity
in
the
actual
presence
of
war.
It
is
administered
by
the
general
of
the
army,
and
is
in
fact
his
will.
Of
necessity
it
is
arbitrary,
but
it
must
be
obeyed."
99
Scholars
consistently
agree
that
necessity
is
a
mandatory
precondition
to
imposing
the
state
of
martial
law.
Martial
law
is
the
public
law
of
necessity.
Necessity
calls
it
forth,
necessity
justifies
its
exercise,
and
necessity
measures
the
extent
and
degree
to
which
it
may
be
employed.
That
necessity
is
no
formal,
artificial,
legalistic
concept
but
an
actual
and
factual
one:
it
is
the
necessity
of
taking
action
to
safeguard
the
state
against
insurrection,
riot,
disorder,
or
public
calamity.
What
constitutes
necessity
is
a
question
of
fact
in
each
case.
The
Code
of
Federal
Regulations
practically
mirrors
this
definition
of
martial
law.
In
pertinent
part,
they
state:
"Martial
law
depends
for
its
justification
upon
public
necessity.
Necessity
gives
rise
to
its
creation;
necessity
justifies
its
exercise;
and
necessity
limits
its
duration."
1
0
1
In
comparison
to
the
civil
disorder
statutes,
which
allow
the
President
restricted
authority
under
limited
circumstances,
martial
law
grants
the
executive
broad
emergency
powers.
The
civil
response
statutes
put
some
restrictions
oh
the
President
that
he
must
meet
before
he
can
98
Charles
Warren,
Spies,
and
the
Power
of
Congress
to
Subject
Certain
Classes
of
Civilians
to
Trial
by
Military
Tribunal,
THE
AM.
L.
REV.,
LIII
(March-April,
1919),
201-202,
quoted
in
Rankin,
supra
note
97,
at
173.
99
United
States
v.
Diekelman,
92
U.S.
520,
526
(1876).
100
FREDERICK
BERNAYS
WIENER,
A
PRACTICAL
MANUAL
OF
MARTIAL
LAW
16
(1940).
See
also
Fairman,
supra
note
95,
at
22;
Rankin,
supra
note
97,
at
191.
101
32
C.F.R.
501.4.
27
commit
federal
troops
to
any
given
crisis.
1
02
On
the
other
hand,
practically
the
only
limitation
on
the
actions
a
commander
can
take
under
martial
law
is
the
continued
state
of
necessity
that
prompted
its
imposition
in
the
first
place.
1
03
The
declaration
of
martial
law
allows
the
military
broad
authority
to
"do
all
acts
which
are
reasonably
necessary
for
the
purpose
of
restoring
and
maintaining
public
order."
1
0
4
These
acts
include
taking
actions
over
individuals
to
restrict
their
movement,
impose
punishment
through
military
trials,
and
to
suspend
other
fundamental
rights.
1
05
B.
Is
It
Lawful?
Regardless
of
the
phraseology
used,
it
seems
logical
that
to
preserve
the
nation
a
President
should
be
justified
in
imposing
martial
law,
even
if
not
constitutionally
mandated.
President
Lincoln
echoed
this
sentiment
when
he
asked,
"Are
all
the
laws,
but
one,
to
go
unexecuted,
and
the
government
itself
to
go
to
pieces,
lest
that
one
be
violated?"
Indeed,
the
President
in
his
oath
of
office
states:
I
do
solemnly
swear
(or
affirm)
that
I
will
faithfully
execute
the
Office
of
President
of
the
United
States,
and
will
to
the
best
of
my
Ability,
'
See
discussion
infra
Part
II.C.
103
Of
course
an
obvious
exception
to
this
general
rule
is
that
federal
troops
may
not,
even
in
the
name
of
national
emergency,
take
extreme
actions,
like
torture,
murder
and
rape,
that
would
violate
Americans'
human
rights.
See
discussion
infra
n.
190.
104
53
Am.
Jur.
2d,
Military
and
Civil
Defense
§
441
(1996).
But
see
Wiener,
supra
note
100,
at
15
("[T]he
purpose
of
martial
law
is
not
to
replace
the
civil
administration
of
law
but
to
support
it
by
brushing
aside
the
disorders
which
obstruct
its
normal
operation.")
105
This
article
is
not
intended
to
explore
the
scope
of
a
commander's
authority
while
operating
under
a
proclamation
of
martial
law.
But
for
a
thorough
discussion
of
what
a
commander
may
do
under
such
circumstance,
see
generally
FAIRMAN,
supra
note
95,
RANKIN,
supra
note
97,
and
WIENER,
supra
note
100.
106
President
Abraham
Lincoln,
July
4,
1861,
to
a
special
session
of
Congress
(quoted
in
WILLIAM
H.
REHNQUIST,
ALL
THE
LAWS
BUT
ONE
(1998)).
28
preserve,
protect
and
defend
the
Constitution
of
the
United
States.
In
addition,
the
Constitution
requires
the
President
take
care
to
ensure
that
the
laws
are
faithfully
executed.
Accordingly,
it
seems
the
President
should
have
the
inherent
authority,
in
fact
the
responsibility,
to
preserve
the
nation,
even
if
it
means
taking
extreme
actions
not
specified
in
the
Constitution.
A
review
of
the
prevailing
views
on
this
topic
during
the
18th
century
may
provide
some
insight
into
why
the
Constitution
does
not
more
explicitly
define
the
President's
emergency
powers.
Some
scholars
suggest
that
the
executive
may
be
justified
in
acting
outside
the
Constitution's
explicit
authority,
when
required
by
the
nation's
best
interests.
1
09
This
type
of
power
(as
opposed
to
authority)
was
apparently
accepted
by
classical
thinkers
in
the
18th
Century.
*
Classical
liberal
theory
thus
divides
executive
action
into
two
spheres:
normal
constitutionals
conduct,
inhabited
by
law,
universal
rules
and
reasoned
discourse;
and
a
realm
where
universal
rules
are
inadequate
to
meet
the
particular
emergency
situation
and
where
law
much
be
replaced
by
discretion
and
politics
....
liberalism
seeks
to
separate
emergency
rule
from
the
normal
constitutional
order,
thereby
preserving
the
Constitution
in
its
pristine
form
107
Available
at
<http://www.whitehouse.govAVH/kids/inside/html/spring97-2.html#lang>.
108
U.S.
CONST,
art.
II,
§
3.
109
William
C.
Banks
and
Alejandro
D.
Carrio,
Presidential
Systems
in
Stress:
Emergency
Powers
in
Argentina
and
the
United
States,
15
MICH.
J.
INT'LL.
1
(1993).
[L]iberal
constitutional
thought
in
the
18
th
century
separated
lawful
from
lawless
government
by
simply
positing
a
boundary
line:
"separate
spheres
of
emergency
versus
non-emergency
governance."
.
.
.
Through
the
doctrine
of
prerogative,
[John]
Locke's
version
of
executive
emergency
powers
was
their
extra-legal
character.
The
prerogative
was
to
act
"according
to
discretion,
for
the
publick
[sic]
good,
without
the
prescription
of
the
law,
and
sometimes
even
against
it."
Id.
at
10.
29
while
providing
the
executive
with
the
power,
but
not
legal
authority,
to
act
in
an
emergency.
10
Accordingly,
if
acting
under
this
justification
the
executive
has
not
violated
the
Constitution,
even
though
acting
outside
its
express
language.
President
Abraham
Lincoln
also
embraced
this
theory
when
he
stated:
[M]y
oath
to
preserve
the
Constitution
to
the
best
of
my
ability,
imposed
upon
me
the
duty
of
preserving,
by
every
indispensable
means,
that
government—
that
nation—of
which
the
Constitution
was
the
organic
law.
Was
it
possible
to
lose
the
nation,
and
yet
preserve
the
Constitution?
By
general
law
life
and
limb
must
be
protected;
yet
often
a
limb
must
be
amputated
to
save
a
life;
but
a
life
is
never
wisely
given
to
save
a
limb.
I
felt
that
measures
otherwise
unconstitutional,
might
become
lawful,
by
becoming
indispensable
to
the
preservation
of
the
constitution,
through
the
preservation
of
the
nation.
1
1
1
It
seems
evident
that
the
President
does
have
some
inherent
powers
to
preserve
the
nation,
although
that
subject
has
been
the
topic
of
vigorous
scholarly
debate.
The
110
Jules
Lobel,
Emergency
Power
and
the
Decline
of
Liberalism,
98
YALE
L.J.
1385,
1390,
(1989).
111
Letter
to
A.
Hodges
(April
4,
1864),
in
VII
Collected
Works
281
(R.
Basler
ed.
1953-1955)
(quoted
in,
DYCUS,
supra
note
68,
at
83).
112
Regardless
of
the
lack
of
explicit
Constitutional
authority,
society
appears
to
recognize
the
fact
that
the
chief
executive
possesses
some
authority
to
preserve
the
nation
during
a
time
of
crisis.
Interestingly,
among
all
of
the
Supreme
Court
cases
(see
discussion
infra
Part
IV)
that
have
addressed
martial
law,
none
have
stated
that
it
is
completely
unlawful
for
the
President
to
declare
it.
Instead,
they
focus
on
the
preconditions
necessary
for
its
imposition.
Alexander
Hamilton
stated:
[I]t
is
impossible
to
foresee
or
define
the
extent
and
variety
of
national
exigencies,
or
the
corresponding
extent
and
variety
of
means
which
may
be
necessary
to
satisfy
national
exigencies,
or
the
corresponding
extent
and
variety
of
the
means
which
may
be
necessary
to
satisfy
them.
The
circumstances
that
endanger
the
safety
of
nations
are
infinite,
and
for
this
reason
no
constitutional
shackles
can
wisely
be
imposed
on
the
power
to
which
the
care
of
it
is
committed.
THE
FEDERALIST,
No.
23,
at
153
(Alexander
Hamilton)
(quoted
in
Oren
Gross,
"Once
More
Unto
the
Breach":
The
Systemic
Failure
of
Applying
the
European
Convention
on
Human
Rights
to
Entrenched
Emergencies,
23
Yale
J.
Int'l
L.
437,439
(1998)).
But
cf.
Henry
Paul
Monaghan,
The
Protective
Power
of
the
Presidency,
93
COLUM.
L.
REV.
1
(1993).
30
difficulty
comes
in
determining
when
the
President
may
wield
that
power,
as
in
the
case
of
martial
law,
to
deprive
citizens
of
their
constitutional
rights.
Fairman
has
stated:
Our
constitutional
system
contains
within
itself
all
that
is
essential
to
its
own
preservation.
It
is
adequate
to
all
the
exigencies
which
may
arise.
When
force
becomes
necessary
to
repress
illegal
force
and
preserve
the
commonwealth,
it
may
lawfully
be
exerted.
Martial
rule
depends
for
its
justification
upon
this
public
necessity.
It
is
not
a
thing
absolute
in
its
nature,
a
matter
of
all
or
nothing.
On
the
contrary,
it
is
measured
by
the
needs
of
the
occasion.
What
appeared
reasonably
necessary
under
the
circumstances
will
be
justified
upon
the
great
first
principle
that
the
nation
has
power
to
maintain
its
own
integrity.
The
reason
of
the
law,
as
the
judges
often
said,
is
compressed
in
the
maxim
Quod
enim
necessitas
cogit,
defendit.
Perhaps
the
more
difficult
question,
at
least
for
a
military
commander
who
is
executing
the
President's
orders,
comes
in
determining
whether
the
President
is
properly
operating
within
his
"power"
even
though
technically
beyond
his
"legal
authority."
1
1
4
A
review
of
Supreme
Court
case
law
provides
some
useful
guidance.
IV.
The
Supreme
Court
and
Martial
Law.
In
the
United
States,
martial
law
has
been
federally
imposed
only
a
few
times.
11
5
As
a
result,
developing
helpful
rules
to
follow
or
legal
standards
to
apply
under
martial
law
is
extremely
difficult
because
the
United
States
Supreme
Court
has
issued
very
few
decisions
on
the
subject.
Perhaps
the
best
way
to
predict
how
the
Court
would
deal
with
a
case
of
martial
law
is
to
analyze
the
few
existing
martial
law
cases,
along
with
some
Court
decisions
relating
to
the
issue
of
executive
power.
Even
here,
though,
the
"decisions
of
the
Court...
113
FAIRMAN,
supra
note
95,
at
47.
(Translation:
That
which,
in
fact,
you
know
you
need,
defend.)
114
Lobel,
supra
note
110,
at
1390.
115
Scheiber
and
Scheiber,
supra
note
93,
at
478.
31
have
been
rare,
episodic,
and
afford
little
precedential
value
for
subsequent
cases."
116
Taken
together,
the
Supreme
Court
cases
that
deal
with
martial
law
and
executive
power
reveal
some
important
principles.
First,
even
though
the
Court
has
held
unconstitutional
certain
activities
that
took
place
under
the
umbrella
of
declared
martial
law,
it
has
never
held
that
martial
law
itself
is
per
se
unconstitutional
or
unlawful.
Second,
the
Court
has
held
that
martial
law
is
allowable
under
only
the
most
extreme
circumstances.
Finally,
the
Court
has
recognized
that
the
President
may
possess
powers
beyond
those
specifically
enumerated
in
the
Constitution.
How
and
when
the
President
may
lawfully
exercise
those
powers
will
be
discussed
below.
A.
Youngstown
Sheet
&
Tube
Co.
v.
Sawyer
117
Youngstown
Sheet
&
Tube
is
likely
the
most
important
Supreme
Court
declaration
on
the
principle
of
the
Constitution
and
executive
power.
The
case
arose
in
the
context
of
a
threatened
nation-wide
strike
in
the
national
steel
industry
during
the
Korean
War.
President
Harry
Truman,
concerned
that
the
"proposed
work
stoppage
would
immediately
jeopardize"
1
1
8
national
defense,
issued
an
Executive
Order
directing
the
"Secretary
of
Commerce
to
take
possession
of
most
of
the
steel
mills
and
keep
them
running."
119
The
steel
116
Dames
&
Moore
v.
Regan,
453
U.S.
652,
661
(1981).
117
Youngstown
Sheet
&
Tube
Co.
v.
Sawyer,
343
U.S.
579
(1952).
118
Mat
583.
119
Id.
32
companies
protested
the
Secretary's
actions
and
brought
"proceedings
against
him
in
District
Court."
120
Against
this
backdrop,
the
mill
owners
argued
that
"the
President's
order
amounted]
to
lawmaking,
a
legislative
function
which
the
Constitution
has
expressly
confided
to
the
Congress
and
not
to
the
President."
1
21
The
government
argued
that
a
steel
strike
would
"endanger
the
well-being
and
safety
of
the
Nation
that
the
President
had
'inherent
power'
to
do
what
he
had
done—power
supported
by
the
Constitution,
by
historical
precedent,
and
by
court
decisions'"
1
22
and
that
the
order
was
necessary
to
"avert
a
national
catastrophe
which
would
inevitably
result
from
a
stoppage
of
steel
production."
123
The
Court
rejected
the
Government's
position,
holding
that
under
the
Constitution,
the
President
did
not
hold
such
broad
authority.
1
24
120
Id.
121
Id.
at
582.
122
Mat
584.
123
Id.
at
582.
124
Central
to
the
majority
opinion,
and
indeed
to
the
concurring
opinions,
was
the
fact
the
Congress
had
specifically
refused
to
grant
the
President
seizure
authority.
[T]he
use
of
the
seizure
technique
to
solve
labor
disputes
in
order
to
prevent
work
stoppages
was
not
only
unauthorized
by
any
congressional
enactment;
prior
to
this
controversy,
Congress
had
refused
to
adopt
that
method
of
settling
labor
disputes.
When
the
Taft-Hartley
Act
was
under
consideration
in
1947,
Congress
rejected
an
amendment
which
would
have
authorized
such
governmental
seizures
in
cases
of
emergency.
Apparently
it
was
though
that
the
technique
of
seizure,
like
that
of
compulsory
arbitration,
would
interfere
with
the
process
of
collective
bargaining.
Consequently,
the
plan
Congress
adopted
in
the
Act
did
not
provide
for
seizure
under
any
circumstances.
Id
at
586
(citations
omitted).
33
1
je
Unfortunately,
the
Court
did
not
speak
with
a
unified
voice.
Justice
Black,
who
wrote
the
opinion
of
the
Court,
viewed
the
issue
in
quite
simplistic
terms:
if
the
President
had
authority
to
take
such
an
action,
it
was
derived
either
from
an
act
of
Congress
or
the
Constitution
itself.
1
26
Justice
Black
found
no
legislation
granting
the
President
seizure
authority.
He
also
rejected
the
argument
that
the
President
enjoyed
any
powers
that
could
be
"implied
from
the
aggregate
of
his
powers
under
the
Constitution."
Obviously,
a
majority
of
the
Court
joined
Justice
Black
in
his
belief
that
the
President's
actions
were
unconstitutional.
But
the
other
justices
who
comprised
the
majority
must
have
also
agreed
in
principle
with
Justice
Frankfurter
who
stated
that
the
"considerations
relevant
to
the
legal
enforcement
of
the
principle
of
separation
of
powers
...
more
complicated
and
flexible"
128
than
what
Justice
Black
had
expressed
in
his
opinion.
As
a
result,
the
Court
issued
numerous
concurring
opinions,
opinions
which
provide
important
guidance
to
a
discussion
of
martial
law.
1
29
Of
all
of
these
concurring
opinions,
Justice
Jackson's
provides
the
most
useful,
pragmatic,
approach
to
analyzing
these
issues.
125
Besides
Justice
Black's
opinion,
the
case
includes
five
concurring
opinions
and
a
dissent
signed
by
three
members.
126
Wat
585.
127
Mat
587.
128
Id.
at
588.
129
At
least
six
members
of
the
Court
(including
the
three
dissenters),
would
agree
that
the
President
does
enjoy
some
inherent
emergency
powers.
Even
though
concurring
with
the
majority,
Justices
Frankfurter,
Burton
and
Clark,
all
expressed
opinions
that
gave
credence
to
the
position
that
the
President,
as
the
chief
executive,
enjoys
emergency
powers
not
expressed
in
the
Constitution.
Justice
Frankfurter
stated:
In
short,
a
systematic,
unbroken,
executive
practice,
long
pursued
to
the
knowledge
of
Congress
and
never
before
questioned,
engaged
in
by
Presidents
who
have
also
•
sworn
to
uphold
the
Constitution,
making
as
it
were
such
exercise
of
power
part
of
the
structure
of
our
government,
may
be
treated
as
a
gloss
on
'executive
Power'
vested
in
the
President
by
sec.
1
of
Art.
II.
34
Justice
Jackson
established
a
three-tiered
approach
to
analyzing
executive
power
under
our
Constitutional
scheme.
First,
"[w]hen
the
President
acts
pursuant
to
an
express
or
111
implied
authorization
of
Congress,
his
authority
is
at
its
maximum."
Second,
"[w]hen
the
President
acts
in
absence
of
either
a
congressional
grant
or
denial
of
authority,
he
can
only
rely
upon
his
on
independent
powers,
but
there
is
a
zone
of
twilight
in
which
he
and
Congress
may
have
concurrent
authority,
or
in
which
its
distribution
is
uncertain."
132
Finally,
Id.
at
610
(Frankfurter,
J.,
concurring).
Justice
Burton
stated:
The
present
situation
is
not
comparable
to
that
of
an
imminent
invasion
or
threatened
attack.
We
do
not
face
the
issue
of
what
might
be
the
President's
constitutional
power
to
meet
such
catastrophic
situations.
id.
at
659
(Burton,
J.,
concurring).
Justice
Clark
also
stated:
In
my
view—taught
me
not
only
by
the
decision
of
Chief
Justice
Marshall
in
Little
v.
Barreme,
but
also
by
a
score
of
other
pronouncements
of
distinguished
members
of
this
bench—the
Constitution
does
grant
to
the
President
extensive
authority
in
times
of
grave
and
imperative
national
emergency.
In
fact,
to
my
thinking,
such
a
grant
may
well
be
necessary
to
the
very
existence
of
the
Constitution
itself.
As
Lincoln
aptly
said,
"(is)
it
possible
to
lose
the
nation
and
yet
preserve
the
Constitution?"
In
describing
this
authority
I
care
not
whether
one
calls
it
"residual,"
"inherent,"
"moral,"
"implied,"
"aggregate,"
"emergency,"
or
otherwise.
I
am
of
the
conviction
that
those
who
have
had
the
gratifying
experience
of
being
the
President's
lawyer
have
used
one
or
more
of
these
adjectives
only
with
the
utmost
of
sincerity
and
the
highest
of
purpose.
Id.
at
661
(Clark,
J.,
concurring)
(citations
omitted).
130
Justice
Rehrtquist
notes
that
"Justice
Jackson
in
his
concurring
opinion
in
Youngstown...
brings
together
as
much
combination
of
analysis
and
common
sense
as
there
is
in
this
area...."
Dames
&
Moore
v.
Regan,
453
U.S.
654,
661
(1981).
131
Youngstown,
343
U.S.at635.
132
Id.
at
637.
Jackson
goes
on
to
note
the
important
aspect
that
congressional
action
may
have
on
such
a
determination.
Therefore,
congressional
inertia,
indifference
or
quiescence
may
sometimes,
at
least
as
a
practical
matter,
enable,
if
not
invite,
measures
on
independent
presidential
responsibility.
In
this
area,
any
actual
test
of
power
is
likely
to
depend
on
the
imperatives
of
events
and
contemporary
imponderables
rather
than
on
abstract
theories
of
law.
Id.
35
"[w]hen
the
President
takes
measures
incompatible
with
the
expressed
or
implied
will
of
Congress,
his
power
is
at
its
lowest
ebb,
for
then
he
can
rely
only
upon
his
own
constitutional
powers,
minus
any
constitutional
powers
of
Congress
over
the
matter."
Justice
Jackson
was
careful
to
emphasize
his
view
that
the
President's
emergency
powers
are
derived
from
the
Constitution,
134
and
are
essentially
shared
with
the
Congress:
"Presidential
powers
are
not
fixed
but
fluctuate,
depending
upon
their
disjunction
or
conjunction
with
those
of
Congress
...
."
135
And
even
though
Jackson
was
willing
to
give
these
powers
broad
interpretation,
1
36
he
was
unwilling
to
go
so
far
as
to
declare
the
Executive
possesses
an
inherent
emergency
power.
1
37
133
id
134
Justice
Jackson
stated:
In
the
practical
working
of
our
Government
we
already
have
evolved
a
technique
within
the
framework
of
the
Constitution
by
which
normal
executive
powers
may
be
considerably
expanded
to
meet
an
emergency.
Congress
may
and
has
granted
extraordinary
authorities
which
lie
dormant
in
normal
times
but
may
be
called
into
play
by
the
Executive
in
war
or
upon
proclamation
of
national
emergency.
Id
at
652.
(Jackson,
J.,
concurring).
135
Id.
at
635.
(Jackson,
J.,
concurring).
136
"However,
because
the
President
does
not
enjoy
unmentioned
powers
does
not
mean
that
the
mentioned
ones
should
be
narrowed
by
a
niggardly
construction.
Some
clauses
could
be
made
almost
unworkable,
as
well
as
immutable,
by
refusal
to
indulge
some
latitude
of
interpretation
for
changing
times."
Id.
at
640
(Jackson,
J.,
concurring).
137
He
stated:
The
appeal,
however,
that
we
declare
the
existence
of
inherent
powers
ex
necissatate
to
meet
an
emergency
asks
us
to
do
what
many
think
would
be
wise,
although
it
is
something
the
forefathers
omitted.
They
knew
what
emergencies
were,
knew
the
pressures
they
engender
for
authoritative
action,
knew,
too,
how
they
afford
a
ready
pretext
for
usurpation.
We
may
also
suspect
that
they
suspected
that
emergency
powers
would
tend
to
kindle
emergencies
.
.
.
.
I
do
not
think
we
rightfully
may
so
amend
their
work,
and,
if
we
could,
I
am
not
convinced
it
would
be
wise
to
do
so....
Id
649-650
(Jackson,
J.,
concurring).
36
Key
to
Justice
Jackson's
analysis
is
how
Congress's
action
or
inaction
affects
Presidential
no
.
,
.
authority.
On
that
point,
Dames
&
Moore
v.
Regan,
is
an
important
companion
case
to
Youngstown,
because
it
provides
some
guidance
on
how
to
apply
the
Youngstown
test.
In
Dames
&
Moore,
Justice
Rehnquist
noted:
Justice
Jackson
himself
recognized
that
his
three
categories
represented
"a
somewhat
over-simplified
grouping,"
and
it
is
doubtless
the
case
that
executive
action
in
any
particular
instance
falls,
not
neatly
in
one
of
three
pigeonholes,
but
rather
at
some
point
along
a
spectrum
running
from
explicit
congressional
authorization
to
explicit
congressional
prohibition.
1
39
This
analysis
is
complicated
by
the
difficult
in
ascertaining
whether
a
particular
statute
should
be
viewed
as
a
specific
or
implied
grant
of
authority
to
the
President,
or
whether
Congress
intended
the
law
to
limit
the
President's
actions
within
certain
boundaries.
Dames
&
Moore
assists
the
practitioner
in
making
that
determination:
As
we
have
noted,
Congress
cannot
anticipate
and
legislate
with
regard
to
every
possible
action
the
President
may
find
it
necessary
to
take
or
every
possible
situation
in
which
he
might
act.
Such
failure
of
Congress
specifically
to
delegate
authority
does
not,
"especially
...
in
the
areas
of
foreign
policy
and
national
security,"
imply
"congressional
disapproval
of
action
taken
by
the
Executive."
On
the
contrary,
the
enactment
of
legislation
closely
related
to
the
question
of
the
President's
authority
in
a
particular
case
which
evinces
legislative
intent
to
accord
the
President
broad
discretion
may
be
considered
to
"invite"
"measures
on
independent
presidential
responsibility."
At
least
this
is
so
where
there
is
no
contrary
indication
of
legislative
intent
and
when,
as
here,
there
is
a
history
of
congressional
acquiescence
in
conduct
of
the
sort
engaged
in
by
the
President.
1
40
138
Dames
&
Moore
v.
Regan,
453
U.S.
654
(1981).
139
Id.
at
669
(citations
omitted).
140
Mat
653-654.
37
Under
this
analysis,
Congress,
either
through
legislative
action,
or
indeed,
inaction,
may
inadvertently
grant
the
President
broader
authority
to
proclaim
and
execute
martial
law.
The
Yourigstown
opinion,
read
together
with
Dames
&
Moore,
provides
important
guidance
to
any
analysis
of
the
President's
authority
to
declare
martial
law.
First,
in
dicta
Justice
Jackson
specifically
excludes
martial
law
from
his
analysis
of
executive
emergency
powers.
141
Even
though
martial
law
was
not
at
issue
in
the
Youngstown
case,
any
Supreme
Court
recognition,
albeit
in
dicta,
that
implicitly
recognizes
the
validity
of
martial
law,
adds
some
strength
to
the
argument
that
the
President
may
lawfully
impose
it.
Second,
in
addition
to
Justice
Jackson's
implicit
expression
that
the
President
may
have
the
authority
to
impose
martial
law,
his
three-tiered
analysis
is
extremely
useful
in
any
analysis
of
how
and
when
that
authority
may
be
exercised.
Since
martial
law
is
clearly
at
the
extreme
end
of
the
President's
emergency
powers
and
considering
the
paucity
of
opinions
relating
directing
to
martial
law,
any
guidance
on
the
exercise
of
executive
authority
is
very
useful,
even
if
that
guidance
is
not
directly
on
point.
Finally,
even
if
the
President
does
have
authority
to
declare
martial
law,
the
Youngstown
opinion
shows
that
exercise
of
any
emergency
authority
must
be
assessed
in
light
of
several
factors,
including,
Congressional
action
(or
inaction),
the
Constitution,
and
the
prevailing
circumstances
at
the
time.
141
Justice
Jackson
mentioned
that
"[a]side
from
the
suspension
of
the
privilege
of
habeas
corpus"
the
framers
made
"no
express
provision
for
exercise
of
extraordinary
authority
because
of
a
crisis."
Youngstown,
343
U.S.
at
650.
In
a
footnote
to
that
comment,
he
wrote:
"I
exclude,
as
in
a
very
limited
category
by
itself,
the
establishment
of
martial
law."
Id.
(citing
Exporte
Milligan,
and
Duncan
v.
Kahanamoku)
(citations
omitted)
discussed
infra
Parts
IV.B
and
IV.C).
38
B.
Exporte
Milligan
In
July
1862,
President
Lincoln's
Secretary
of
War,
Edwin
M.
Stanton
issued
an
order
under
the
President's
authority,
suspending
the
writ
of
habeas
corpus
for
"persons
arrested
for
disloyal
practices."
1
43
Another
order,
issued
the
same
day,
directed
U.S.
marshals
to
arrest
disloyal
persons
and
stated
that
military
commissions
would
try
such
persons.
In
September,
1862,
President
Lincoln
issued
another
proclamation
which
provided
authority
to
subject
to
martial
law
and
punishment
by
courts-martial
or
military
commissions
those
individuals
who
were
found
"discouraging
volunteer
enlistments,
resisting
militia
drafts,
or
guilty
of
any
disloyal
practice
affording
aid
and
comfort
to
rebels."
1
44
In
March,
1863,
Congress
added
to
the
proclamation
by
"[p]assing
a
law
which
authorized
the
President
to
suspend
the
writ
whenever
he
thought
necessary
and
to
detail
those
persons
under
arrest
by
the
military
authorities
without
interference
by
the
civil
courts."
1
45
But
Congress
specified
that
in
jurisdictions
where
the
civil
courts
were
still
open,
the
names
of
those
Who
violated
these
laws
should
be
provided
to
the
federal
courts
for
presentation
to
a
grand
jury
for
indictment.
If
this
procedure
was
not
followed,
the
person
142
Exporte
Milligan,
71
U.S.
(4
Wall.)
2
(1866).
143
REHNQUIST,
supra
note
106,
at
60
(citations
omitted).
See
generally
Hasday,
supra
note
91,
for
a
discussion
of
President
Lincoln's
actions
relating
to
the
suspension
of
the
writ
of
habeas
corpus
during
the
Civil
War.
144
REHNQUIST,
supra
note
106,
at
60.
For
a
complete
text
of
the
proclamation,
see
RANKIN,
supra
note
97,
at
55-56.
145
RANKIN,
supra
note
97,
at
56
(noting
that
the
President
then
issued
another
proclamation
on
Sept.
15,
1863,
suspending
the
writ).
39
should
be
discharged.
This
aspect
of
Congress's
rule
was
important
to
the
Court's
ultimate
holding
in
the
Milligan
case.
1
46
Lambdin
P.
Milligan,
a
lawyer
from
Huntington,
Indiana,
had
been
active
in
Democratic
politics
and
was
sympathetic
to
the
confederate
cause.
1
47
Milligan,
along
with
several
other
defendants,
was
tried
for
treason
by
a
military
commission
in
1864.
The
Commission
found
Milligan
guilty
and
sentenced
him
to
be
hanged.
Milligan
appealed
his
conviction
to
the
Circuit
Court
of
Indiana
who
certified
the
case
to
the
Supreme
Court.
1
49
At
the
Supreme
Court,
Milligan
argued
that
the
military
commission
did
not
have
jurisdiction
over
him
as
he
was
not
a
member
of
the
armed
forces.
1
5
0
The
government
146
See
generally
Milligan,
71
U.S.
at
115-118.
147
REHNQUIST,
supra
note
106,
at
89.
148
Milligan
and
the
other
defendants
were
suspected
of
making
plans
to
"stage
an
uprising
and
free
the
eight
thousand
Confederate
prisoners
at
nearby
Camp
Douglas."
Id.
at
83.
149
RANKIN,
supra
note
97,
at
54.
150
According
to
Chief
Justice
Rehnquist,
a
defendant
tried
before
a
military
commission
would
lose
some
procedural
protections
that
he
would
have
otherwise
enjoyed
in
the
civil
courts:
[A]
defendant
before
a
military
court
at
this
time
was
not
accorded
some
of
the
important
procedural
rights
possessed
by
a
defendant
in
a
civil
court.
But
if
a
military
commission
could
simply
decide
for
itself
what
acts
were
criminal,
and
what
sentence
was
appropriate
upon
conviction,
a
defendant
before
such
a
commission
suffered
an
additional
and
equally
serious
deprivation,
compared
with
his
counter
part
in
a
civil
court.
REHNQUIST,
supra
note
106,
at
85-86.
Not
only
did
the
defendant
receive
fewer
procedural
protections
at
a
trial
by
military
commission,
he
was
also
subject
to
greater
potential
punishment.
After
a
review
of
the
then-existing
federal
treason
statutes,
Rehnquist
states:
The
charges
before
the
military
commission,
on
the
other
hand,
included
offenses
covered
by
these
statues
but
swept
more
broadly
in
several
instances.
But
the
greatest
contrast
was
not
in
the
acts
that
were
proscribed
but
in
the
maximum
penalties
authorized.
Both
of
the
statutes
quoted
above
set
maximum
imprisonment
terms
at
ten
years
and
six
years,
respectively.
But,
as
mentioned,
the
military
was
authorized
by
a
two-thirds
majority
to
impose
a
sentence
of
death.
Id.
at
88.
40
argued
that
as
a
result
of
the
necessities
of
war,
the
President
and
the
Congress
had
suspended
the
writ
of
habeas
corpus.
They
argued
that
the
declaration
of
martial
law
justified
the
government's
use
of
the
military
commission
in
the
Milligan
case.
The
Court
rejected
this
argument,
stating:
The
Constitution
of
the
United
States
is
a
law
for
rulers
and
people,
equally
in
war
and
in
peace,
and
covers
with
the
shield
of
its
protection
all
classes
of
men,
at
all
times,
and
under
all
circumstances.
No
doctrine,
involving
more
pernicious
consequences,
was
ever
invented
by
the
wit
of
man
than
that
any
of
its
provisions
can
be
suspended
during
any
of
the
great
exigencies
of
government.
Such
a
doctrine
leads
directly
to
anarchy
or
despotism,
but
the
theory
of
necessity
on
which
it
is
based
is
false;
for
the
government,
within
the
Constitution,
has
all
the
powers
granted
to
it,
which
are
necessary
to
preserve
its
existence;
as
has
been
happily
proved
by
the
result
of
the
great
effort
to
throw
off
its
just
authority.
1
5
1
In
overturning
Milligan's
conviction,
the
Court
rejected
the
government's
argument
that
the
laws
of
war
justified
the
use
of
military
commissions
under
the
circumstances
present
in
Milligan's
case.
1
5
2
The
Court
seemed
to
base
its
logic
around
the
fact
that
the
civil
courts
151
Milligan,
71
U.S.
at
120-121.
152
In
a
later
case,
exparte
Quirin,
317
U.S.
1
(1942),
the
Supreme
Court
"cut
back
on
some
of
the
extravagant
dicta
favorable
to
civil
liberty
in
Milligan."
REHNQUIST,
supra
note
106,
at
221.
In
that
case
the
Court
upheld
the
conviction
by
a
military
commission
of
seven
men,
six
of
which
were
German
citizens,
who
were
apprehended
during
a
failed
secret
attack
mission
against
the
United
States.
Citing
Milligan,
the
defendants
contended
that
since
the
civil
courts
were
open,
and
since
there
had
been
no
invasion
of
the
country,
the
military
commission
was
without
jurisdiction.
In
response,
the
Court
found
that
Milligan
was
limited
to
its
facts,
holding
that:
The
Court's
opinion
is
inapplicable
to
the
case
presented
by
the
present
record.
We
have
no
occasion
to
define
with
meticulous
care
the
ultimate
boundaries
of
the
jurisdiction
of
military
tribunals
to
try
persons
according
to
the
law
of
war.
It
is
enough
that
petitioners
here,
upon
the
conceded
facts,
were
plainly
within
those
boundaries.
ßM/W«,317U.S.at221.
This
judicial
attitude
seems
more
consistent
with
Court's
later
attitude
in
the
Japanese
cases,
where
they
refused
to
interject
themselves
into
the
area
of
war-making,
and
analyzed
the
presidential
and
Congressional
actions
by
a
reasonableness
standard.
See
discussion
infra
Part
IV.D.
In
fact,
the
Quirin
Court
had
no
trouble
accepting
the
Government's
argument
that
one
of
the
defendants,
arguably
a
U.S.
citizen,
had
abandoned
his
American
citizenship
and
was,
therefor,
subject
to
the
laws
of
war.
It
appears
the
atmosphere
of
war-time
crisis
that
prevailed
in
the
nation
at
the
time
influenced
the
Court's
opinion.
41
had
remained
open,
despite
the
suspension
of
the
writ
of
habeas
corpus
and
the
proclamation
of
martial
law.
Further,
the
Court
was
plainly
concerned
that
in
Milligan's
case,
the
authorities
had
not
followed
the
Congressionally
mandated
procedures
for
suspending
the
writ.
They
stated:
This
court
has
judicial
knowledge
that
in
Indiana
the
Federal
authority
was
always
unopposed,
and
its
courts
always
open
to
hear
criminal
accusations
and
redress
grievances;
and
no
usage
of
war
could
sanction
a
military
trial
there
for
any
offense
whatever
of
a
citizen
in
civil
life,
in
nowise
connected
with
the
military
service
.
.
.
One
of
the
plainest
constitutional
provisions
was,
therefore,
infringed
when
Milligan
was
tried
by
a
court
not
ordained
and
established
by
Congress.
1
5
3
Since
Congress
had
established
procedures
for
suspension
of
the
writ,
Milligan's
conviction
by
military
commission
was
clearly
in
direct
opposition
with
Congress's
stated
intention.
1
54
If
we
applied
these
facts
to
Justice
Jackson's
three-tier
approach
in
Youngs
town,
the
President's
actions
would
likely
fall
into
the
third
tier.
By
trying
Milligan
at
a
military
commission,
without
following
the
procedures
established
by
Congress,
the
President
was
taking
"measures
incompatible
with
the
expressed
or
implied
will
of
Congress."
155
Under
a
Perhaps
even
more
meaningful
to
a
discussion
of
martial
law
was
the
Court's
acceptance
that
under
certain
narrow
circumstances
a
non-belligerent
would
be
subject
to
the
law
of
war.
Those
circumstances
would
be
"constitutionally
established"
martial
law.
Quirin,
317
U.S.
at
45.
thus
the
Court
recognizes
that
martial
law
may
be
not
only
legally
supportable,
but
also
goes
so
far
as
to
suggest
that
it
may
even
be
constitutional.
153
Milligan,
71
U.S.
at
122.
154
"p
r
j
v
ii
e
g
e
0
f
the
Writ
of
Habeas
Corpus
shall
not
be
suspended,
unless
when
in
Cases
of
Rebellion
or
Invasion
the
public
safety
require
it."
U.S.
CONST,
art.
I,
§
9,
cl.
2.
The
Constitution
does
not
explicitly
grant
Congress
the
authority
to
suspend
the
writ.
But
since
the
authority
is
found
in
Article
I,
the
legislative
section,
presumably,
the
Framers
intended
Congress
to
exercise
that
power.
During
the
civil
war,
Congress
had
delegated
the
authority
to
the
President,
but
pursuant
to
the
procedural
restrictions
mentioned
above.
155
Youngstown,
343
U.S.
at
635.
42
Youngstown
analysis,
then,
the
President's
actions
must
be
supportable
under
"his
own
constitutional
powers,
minus
any
constitutional
powers
of
Congress
over
the
matter."
1
5
6
So,
even
under
Justice
Jackson's
theory
in
Youngstown,
Milligan's
conviction
would
likely
have
t
en
been
overturned.
In
the
Milligan
decision,
the
Court
also
provided
guidance,
albeit
in
dicta,
for
determining
when,
if
ever,
martial
law
would
be
justified.
1
5
8
The
Court
noted
that
the
Constitution
only
provides
for
the
suspension
of
one
enumerated
right—the
writ
of
habeas
corpus}
59
Beyond
this
constitutional
grant
of
authority
to
suspend
rights,
the
Court
implicitly
recognized
that
there
may
be
situations
where
martial
law
would
be
needed.
But
156
Mat
637.
157
The
Court
in
Milligan
was
not
only
concerned
that
Milligan's
trial
was
in
contravention
of
Congress's
will,
but
they
were
also
concerned
that
Milligan's
conviction
violated
some
of
his
most
basic
constitutional
rights,
like
a
trial
by
jury.
Milligan,
71
U.S.
at
122-123.
158
Actually,
the
Court
seems
to
indicate
at
one
point
that
martial
law
is
unconstitutional.
It
is
claimed
that
martial
law
covers
with
its
broad
mantle
the
proceedings
of
this
military
commission
....
The
statement
of
this
proposition
shows
its
importance;
for,
if
true,
republican
government
is
a
failure,
and
there
is
an
end
of
liberty
regulated
by
law.
Martial
law,
established
on
such
a
basis,
destroys
every
guarantee
of
the
Constitution,
and
effectually
renders
the
"military
independent
of
and
superior
to
the
civil
power"-
the
attempt
to
do
which
by
the
King
of
Great
Britain
was
deemed
by
our
fathers
such
an
offence,
that
they
assigned
it
to
the
world
as
one
of
the
causes
which
impelled
them
to
declare
their
independence.
Civil
liberty
and
this
kind
of
martial
law
cannot
endure
together;
the
antagonism
is
irreconcilable;
and
in
conflict,
one
or
the
other
must
perish.
Milligan,
71
U.S.
at
124.
159
In
Ex
parte
Merryman,
17
F.
Cas.
144
(CCD.
Md.
1861
(No.
9487),
Chief
Justice
Taney,
sitting
as
a
circuit
judge,
held
that
only
Congress
had
the
authority
to
suspend
the
writ
of
habeas
corpus.
In
that
case
Merryman
had
been
seized
after
President
Lincoln
had
signed
an
order
suspending
the
writ.
Interestingly,
Lincoln
ignored
Taney's
opinion
and
Merriman
remained
in
prison.
43
even
as
the
Court
stated
that
necessity
is
a
prerequisite
for
martial
law
they
repeated
their
earlier
assertion
that
in
order
to
declare
martial
law,
the
courts
must
be
closed.
1
60
According
to
the
Milligan
Court,
"proper"
martial
law
can
only
be
allowed
under
narrow
circumstances,
i.e.,
under
a)
strict
conditions
of
necessity,
b)
during
war
(foreign
invasions
or
civil
war),
c)
when
the
courts
are
closed,
1
61
and
c)
only
in
the
area
of
the
"actual
war."
162
Perhaps
the
most
important
point
to
be
learned
from
Milligan,
though,
is
that
any
exercise
of
emergency
power
by
the
President
must
be
viewed
in
conjunction
with
congressional
will.
The
Court
did
not
declare
unlawful
the
President's
proclamation
of
martial
law.
It
was
the
160
The
Court
focused
on
necessity
and
the
Courts
being
closed:
"Martial
law
cannot
arise
from
a
threatened
invasion.
The
necessity
must
be
actual
and
present;
the
invasion
real,
such
as
effectually
closes
the
courts
and
deposes
the
civil
administration."
Milligan,
71
U.S.
at
127.
161
According
to
Rankin,
this
provision
of
the
Milligan
decision
has
been
routinely
misinterpreted.
He
states:
The
Milligan
case,
in
late
years,
has
been
called
upon
to
prove
that
when
the
civil
courts
are
open,
martial
law
cannot
be
used.
Such
an
interpretation
is
erroneous.
The
"open"
court
must
have
unobstructed
exercise
of
its
jurisdiction,
and
it
is
possible
that
the
court
might
be
open
and
yet
its
jurisdiction
be
obstructed.
Therefore,
to
make
the
broad
statement
that,
by
the
Milligan
case,
martial
law
cannot
be
established
when
the
civil
courts
are
open
is
incorrect,
for
the
courts
must
also
be
unobstructed
and
functioning
in
the
proper
manner.
RANKIN,
supra
note
97,
at
63.
162
The
Court
stated:
It
follows,
from
what
has
been
said
on
this
subject,
that
there
are
occasions
when
marital
rule
can
be
properly
applied.
If,
in
foreign
invasion
or
civil
war,
the
courts
are
actually
closed,
and
it
is
impossible
to
administer
criminal
justice
according
to
law,
then,
on
the
theatre
of
active
military
operations,
where
war
really
prevails,
there
is
a
necessity
to
furnish
a
substitute
for
the
civil
authority,
thus
overthrown,
to
preserve
the
safety
of
the
army
and
society;
and
as
no
power
is
left
but
the
military,
it
is
allowed
to
govern
by
martial
rule
until
the
laws
can
have
their
free
courts.
As
necessity
creates
the
rule,
so
it
limits
its
duration;
for
if
this
government
is
continued
after
the
courts
are
reinstated,
it
is
a
gross
usurpation
of
power.
Martial
rule
can
never
exist
where
the
courts
are
open,
and
in
the
proper
and
unobstructed
exercise
of
their
jurisdiction.
It
is
also
confined
to
the
locality
of
actual
war.
Milligan,
71
U.S.
at
127.
44
exercise
ofthat
power,
in
a
manner
contrary
to
Congressional
mandate,
that
caused
the
Court
to
opine
that
"[n]o
graver
question"
had
ever
been
considered
by
that
Court.
C.
Duncan
v.
Kahanamoku
Shortly
after
the
1941
Japanese
attack
on
Hawaii's
Pearl
Harbor,
the
Governor
of
Hawaii,
Joseph
B.
Poindexter,
declared
martial
law
and
suspended
the
writ
of
habeas
corpus.
1
65
Besides
declaring
martial
law,
Poindexter
authorized
the
commanding
general
of
the
Military
Department
of
Hawaii,
Lieutenant
General
Walter
Short,
to
"exercise
all
of
the
powers
normally
exercised
by
the
judicial
offers
and
employees"
of
the
territory.
1
66
Military
rule
lasted
in
Hawaii
for
nearly
three
years,
until
it
was
revoked
by
President
Franklin
D.
Roosevelt.
1
67
In
overruling
the
convictions
in
Duncan}**
Justice
Black,
like
his
later
opinion
in
Youngstown
169
,
looked
primarily
at
whether
Congress
had
authorized
the
trial
of
civilians
163
W
.atll8.
164
Duncan
v.
Kahanamoku,
327
U.S.
304
(1946).
165
See
generally
J.
GARNER
ANTHONY,
HAWAII
UNDER
ARMY
RULE,
(1955)
and
REHNQUIST,
supra
note
106,
at
212.
Governor
Poindexter
relied
on
the
authority
of
the
Hawaii
Organic
Act,
the
charter
of
the
territory,
enacted
by
Congress
in
1900.
Hawaii
Organic
Act
§67,
ch.
339,
31
Stat.
141,
153
(1900).
166
ANTHONY,
supra
note
165,
at
5-6
(citing
Ex
Parte
White,
66
F.
Supp.
982,
989,
990
(U.S.D.C.
Hawaii
1944).)
For
a
complete
text
of
the
Governor's
proclamation,
see
Appendix
A,
at
127.
167
See
REHNQUIST,
supra
note
106,
at
214.
168
Duncan
actually
involved
two
petitioners.
Petitioner
Duncan
was
arrested
for
and
convicted
of
assaulting
two
armed
marine
sentries
at
the
Honolulu
Navy
Yard
where
he
worked.
Petitioner
White,
a
civilian
stockbroker
having
not
connection
with
the
military,
was
arrested
and
convicted
for
embezzling
stocks
belonging
to
another
civilian.
169
See
discussion
supra
Part
IV.A.
45
171
by
military
commission
under
a
declaration
of
martial
law.
Justice
Black
noted
that
the
1
T
)
1
T\
Organic
Act
did
have
a
provision
for
placing
the
territory
under
martial
law.
But
since
the
Act
did
not
define
the
term
"martial
law,"
Justice
Black
looked
to
the
legislative
history
to
determine
whether
Congress
intended
to
grant
the
military
such
broad
authority.
1
7
4
17^
Finding
no
such
authority,
Justice
Black
looked
to
"other
sources"
to
determine
the
meaning
of
the
term
martial
law.
Justice
Black
did
not
clearly
articulate
a
constitutional
analysis
of
the
executive's
constitutional
authority
under
martial
law,
perhaps
since
the
Constitution
does
not
mention
martial
law,
1
76
he
found
that
question
irrelevant.
In
looking
at
the
other
"sources"
to
interpret
170
The
court
noted
that
at
the
time
Duncan
was
arrested,
"[c]ourts
had
been
authorized
to
'exercise
their
normal
jurisdiction.'
They
were
once
more
summoning
jurors
and
witnesses
and
conducting
criminal
trials."
However,
there
were
exceptions
for
cases
like
Duncan's,
which
involved
violations
of
military
orders.
See
generally
Duncan,
327
U.S.
at
310.
171
Like
Milligan,
critical
to
the
Court's
opinion
must
have
been
summary
manner
in
which
the
military
commissions
disposed
of
the
petitioner's
cases.
[T]he
military
proceedings
in
issue
plainly
lacked
constitutional
sanction.
Petitioner
White
was
arrested
for
embezzlement
on
August
20,
1942,
by
the
provost
marshal...On
August
25
he
was
convicted
and
sentenced
to
five
years
in
prison.
Petitioner
Duncan
was
accorded
similar
streamlined
treatment
by
the
military.
On
February
24,
1944,
he
engaged
in
a
fight
with
two
armed
sentries
at
the
Navy
Yard
at
Honolulu.
He
was
promptly
tried
without
a
jury
in
the
provost
court
on
March
2
and
was
sentenced
to
six
months
at
hard
labor,
despite
his
plea
of
self-defense.
Both
the
petitioners
were
civilians
entitled
to
the
full
protection
of
the
Bill
of
Rights,
including
the
right
to
jury
trial.
Duncan,
327
U.S.
at
326.
(Justice
Murphy,
concurring.)
172
Hawaii
Organic
Act
§67,
ch.
339,
31
Stat.
141,
153
(1900).
173
Recall
that
at
the
time
the
incidents
in
this
case
took
place,
Hawaii
was
still
a
territory,
not
a
State.
m
Duncan,
327
U.S.
at
316.
175
Mat
319.
176
Id.
at
315.
46
the
meaning
of
martial
law,
Justice
Black
stated
that
the
"answer
may
be
found
in
the
birth,
development
and
growth
of
our
governmental
institutions
up
to
the
time
Congress
passed
the
Organic
Act."
177
Justice
Black
ultimately
decided
that
under
these
other
authorities,
the
meaning
of
martial
law
did
not
include
the
trial
of
civilians
by
military
commission,
at
least
1
no
under
the
circumstances
described
in
Duncan.
The
Court
ultimately
held
that
even
though
the
Hawaii
Organic
Act
authorized
martial
law,
Congress
had
not
intended
to
replace
civilian
courts
with
military
jurisdiction.
We
believe
that
when
Congress
passed
the
Hawaiian
Organic
Act
and
authorized
the
establishment
of
"martial
law"
it
had
in
mind
and
did
not
wish
to
exceed
the
boundaries
between
military
and
civilian
power,
in
which
our
people
have
always
believed,
which
responsible
military
and
executive
officers
had
heeded,
and
which
had
become
part
of
our
political
philosophy
and
institutions
prior
to
the
time
Congress
passed
the
Organic
Act.
The
phrase
"martial
law"
as
employed
in
that
Act,
therefore,
while
intended
to
authorize
the
military
to
act
vigorously
for
the
maintenance
of
an
orderly
civil
government
and
for
the
defense
of
the
Islands
against
actual
or
threatened
rebellion
or
invasion,
was
not
intended
to
authorize
the
supplanting
of
courts
by
military
tribunals.
1
7
9
How
the
Duncan
case
would
fare
under
Justice
Jackson's
three-tier
approach
is
an
interesting
question.
Since
Congress
had
authorized
the
use
of
martial
law,
the
actions
taken
177
Mat
319.
Here,
Justice
Black
reviews
some
early
American
history
along
with
some
Supreme
Court
precedent
to
support
his
position
that
such
broad
authority
under
martial
law
is
unacceptable.
See
generally
iddt
319-324.
Justice
Black
does
make
some
brief
references
to
constitutional
authority
for
his
position.
See,
id
at
323,
especially
footnote
21,
discussing
President
Johnson's
post-civil
war
veto
of
legislation
that
would
have
supplanted
civil
courts
with
military
tribunals.
178
Accordingly,
the
Duncan
court
mirrored
the
Milligan
opinion,
holding
that
the
American
"system
of
government
clearly
is
the
antithesis
of
total
military
rule."
Duncan,
327
U.S.
at
322.
Further
the
Court
reemphasizes
the
necessary
preconditions
acting
under
martial
law,
holding
that
"martial
law"
is
only
intended
to
authorize
the
military
to
act
in
such
a
manner
in
the
cases
where
the
courts
are
closed
and
when
there
exists
an
"actual
or
threatened
rebellion
or
invasion."
Mat
110.
179
Mat
324.
47
would
arguably
fall
into
the
first
tier.
1
8
0
In
addition,
besides
passing
the
Organic
Act,
Congress
was
arguably
aware
that
Hawaii
had
been
placed
under
martial
law
by
Admiral
Poindexter.
Accordingly,
the
case
likely
fits
best
under
Justice
Jackson's
first
tier.
But
considering
the
facts
of
the
cases,
upholding
the
convictions
would
not
seem
fair,
even
in
light
of
Congress's
possible
authorization
of
such
trials.
Considering
the
quick
rush
to
judgment
in
the
Duncan
case,
perhaps
the
way
to
support
the
finding
(under
the
three-tiered
analysis)
would
be
to
argue
that
even
though
the
President's
authority
is
at
its
fullest
in
the
first
tier,
his
actions
must
still
be
supported
by
the
pre-condition
of
necessity.
In
Duncan,
the
courts
were
open
and
operating
and
the
defendants
were
civilians
who
posed
no
real
threat
to
security.
Balancing
those
circumstances
with
the
clear
violation
of
the
defendant's
constitutional
rights,
it
appears
that
the
use
of
the
military
commission
under
these
circumstances
was
not
really
necessary
and
could
still
fail
under
the
three-tier
analysis,
even
if
falling
within
the
first
tier.
D.
The
World
War
IUapanese
Cases
In
analyzing
the
relevant
Court
decisions
in
the
area
of
executive
emergency
authority,
it
is
hard
to
underestimate
the
importance
of
Congress's
actions,
taken
together
with
the
circumstances
that
exist
at
the
time
of
the
President's
actions.
The
cases
arising
from
the
Japanese
interments
during
World
War
II
aptly
illustrate
this
point.
Even
though
martial
law
180
Indeed,
Justice
Black's
belief
that
the
Congress
didn't
intend
to
authorize
the
imposition
of
real
martial
law,
even
though
it
was
plainly
stated
in
the
statute,
seems
somewhat
strained.
At
worst,
even
if
you
accept
Justice
Black's
contention
that
Congress
didn't
intend
this
type
of
action
under
martial
law,
the
case
would
fall
into
the
second
tier.
181
Or,
like
the
analysis
in
Milligan,
the
Court
could
find
that
the
imposition
of
martial
law
was
within
the
first
tier,
but
the
execution
of
the
law
was
contrary
to
Congress's
intent,
and
therefore,
within
the
third
tier.
Under
the
facts
in
Duncan,
it
would
be
hard
to
arrive
at
this
conclusion.
48
was
not
declared
on
the
mainland
of
the
United
States
during
the
war,
the
United
States
government
took
extreme
actions
to
intern
and
relocate
thousands
of
Japanese
civilians
who
lived
within
the
borders
of
the
United
States.
In
two
cases,
1
8
2
the
Supreme
Court
considered
the
legality
of
those
government
actions.
In
both
of
these
cases,
the
defendants
were
charged
with
violations
of
orders,
orders
which
excluded
them
from
certain
areas
or
imposed
certain
curfews.
1
83
These
rules
applied
to
persons
of
Japanese
ancestry,
regardless
of
their
citizenship
status
or
evidence
of
loyalty
to
the
United
States.
In
both
cases,
the
Court
upheld
the
government's
extreme
actions.
Fundamental
to
the
Court's
analysis
in
both
cases
was
its
view
that
in
the
arena
of
war-
making,
the
Court
should
not
substitute
its
judgment
for
those
who
have
been
authorized
by
the
Constitution
to
make
such
decisions.
In
Hirabayashi,
the
Court
stated:
Where,
as
they
did
here,
the
conditions
call
for
the
exercise
of
judgment
and
discretion
and
for
the
choice
of
means
by
those
branches
of
the
Government
on
which
the
Constitution
has
placed
the
responsibility
of
war-making,
it
is
not
for
any
court
to
sit
in
review
of
the
wisdom
of
their
action
or
to
substitute
its
judgment
of
theirs
....
The
Court
went
on
to
emphasize
the
great
amount
of
discretion
they
afforded
the
constitutionally
appointed
decision-makers
in
the
area
of
war
powers.
Our
investigation
here
does
not
go
beyond
the
inquiry
whether,
in
the
light
of
all
the
relevant
circumstances
preceding
and
attending
their
promulgation,
the
182
Hirabayashi
v.
United
States,
320
U.S.
81
(1943);
Korematsu
v.
United
States,
323
U.S.
214
(1944).
183
It
is
important
to
note
that
both
cases
involved
Executive
Orders,
issued
by
the
President.
Those
executive
orders
were
later
authorized
by
an
Act
of
Congress,
which
attached
a
criminal
penalty
for
violating
the
orders.
See
Hirabayashi,
320
U.S.
at
87;
Korematsu,
323
U.S.
at
216.
184
Hirabayashi,
320
U.S.
at
93.
49
challenged
orders
and
statue
afforded
a
reasonable
basis
for
the
action
taken
in
imposing
the
curfew
...
In
this
case,
it
is
enough
that
circumstances
within
the
knowledge
of
those
charged
with
the
responsibility
for
maintaining
the
national
defense
afforded
a
rational
basis
for
the
decisions
which
they
made.
Whether
we
would
have
made
it
is
irrelevant.
1
8
5
Despite
widespread
violations
of
citizens'
most
basic
constitutional
rights,
the
Court
refused
to
interject
itself
into
an
area
that
they
believed
beyond
their
authority
186
Korematsu
and
Hirabayashi
are
not
martial
law
cases,
but
they
are
helpful
in
determining
how
the
Court
might
view
similar
actions
under
a
declaration
of
martial
law.
First,
the
Court
implicitly
recognized
the
principle
of
necessity,
and
would
apparently
allow
otherwise
unacceptable
actions
when
conditions
warranted.
Second,
the
court
recognized
that
the
severity
of
the
actions
must
relate
to
the
level
of
the
threat,
stating
that
"when
under
185
Mat
101-102.
In
Korematsu,
the
Court
further
noted:
The
provisions
of
the
Constitution
which
confer
on
the
Congress
and
the
President
powers
to
enable
this
country
to
wage
war
are
as
much
part
of
the
Constitution
as
provisions
looking
to
a
nation
at
peace.
And
we
have
had
recent
occasion
to
quote
approvingly
the
statement
of
former
Chief
Justice
Hughes
that
the
war
power
of
the
government
is
"the
power
to
wage
war
successfully."
Hirabayashi
v.
United
States.
Therefore,
the
validity
of
action
under
the
war
power
must
not
be
judged
wholly
in
the
context
of
war.
That
action
is
not
to
be
stigmatized
as
lawless
because
like
action
in
times
of
peace
would
be
lawless...
.To
recognize
that
military
orders
are
"reasonably
expedient
military
precautions"
in
time
of
war
and
yet
to
deny
them
constitutional
legitimacy
makes
of
the
Constitution
an
instrument
for
dialectic
subtleties
not
reasonably
to
be
attributed
to
the
hard-headed
Framers,
of
whom
a
majority
had
had
actual
participation
in
war.
Korematsu,
323
U.S.
at
224-225
(Justice
Frankfurter,
concurring).
186
Even
though
the
Court
recognized
the
existence
of
such
emergency
powers
under
the
circumstances
of
"modern
warfare,"
it
is
difficult
to
ascertain
what
standard
the
Court
would
apply
to
determine
the
legality
of
future
actions.
In
Korematsu,
the
Court
stated,
"...
exclusion
from
the
area
in
which
one's
home
is
located
is
a
far
greater
deprivation
than
constant
confinement
to
the
home
from
8
p.m.
to
6
a.m.
Nothing
short
of
apprehension
by
the
proper
military
authorities
of
the
gravest
imminent
danger
to
the
public
safety
can
constitutionally
justify
either."
Korematsu,
323
U.S.
at
218
(emphasis
added).
Later
the
Court
added
an
additional
standard,
stating
that
"[c]ompulsory
exclusion
of
large
groups
of
citizens
from
their
homes,
except
under
circumstances
of
direct
emergency
and
peril,
is
inconsistent
with
our
basic
governmental
institutions."
Mat
119-220.
187
The
actions
taken
in
these
cases
are
similar
to
those
envisioned
under
a
regime
of
martial
law,
i.e.,
imposing
curfews,
restricting
movement,
and
etc.
50
conditions
of
modern
warfare
our
shores
are
threatened
by
hostile
forces,
the
power
to
protect
must
be
commensurate
with
the
threatened
danger."
Finally,
the
Court
judged
the
case
in
the
context
of
the
executive
and
legislative
branches
operating
together
and
did
not
elaborate
on
the
outcome
if
the
actions
had
been
taken
by
the
President
in
the
absence
of
congressional
authorization.
Additionally,
even
though
not
a
martial
law
case,
the
dissent
in
Korematsu
does
offer
us
another
small
hint
that
the
Court
would,
under
proper
circumstances,
approve
a
regime
of
martial
law.
The
dissent
stated
that
excluding
persons
of
Japanese
ancestry
from
the
Pacific
Coast,
"on
a
plea
of
military
necessity
in
the
absence
of
martial
law
ought
not
be
approved."
1
89
By
implication,
then,
Justice
Murphy
would
approve
similar
actions
when
necessity
dictated
and
martial
law
had
been
properly
declared.
E.
Summary
None
of
the
Supreme
Court
cases
cited
above
directly
discusses
the
source
of
the
President's
authority
to
impose
martial
law.
But
from
these
cases
we
can
glean
some
legal
principles
relating
to
the
proper
imposition
of
martial
law.
First,
the
Supreme
Court
has
never
declared
martial
law,
per
se,
unlawful
or
unconstitutional.
Second,
the
Supreme
Court
has
recognized
some
presidential
emergency
188
Mat
220.
In
other
words,
the
greater
the
threat
the
more
willing
the
Court
would
be
to
accept
violations
of
rights
otherwise
unacceptable
under
our
Constitution.
189
Mat
233
(Murphy,
J.,
dissenting)
(emphasis
added).
51
authority.
Third,
the
President's
authority
to
act
in
emergencies
is
not
unfettered.
1
90
Fourth,
the
President's
actions
are
more
likely
to
survive
scrutiny
if
he
seeks
Congressional
approval.
190
Regardless
of
whether
our
nation,
through
its
courts
or
its
political
processes,
would
accept
imposition
of
martial
law,
international
law
may
still
condemn
actions
taken
under
martial
law.
The
United
States,
either
through
treaty
or
through
customary
international
law,
is
bound
to
accord
its
citizens
certain
human
rights.
Imposition
of
martial
law
could
violate
these
rights,
subjecting
the
President
or
military
commanders
to
liability.
The
Universal
Declaration
of
Human
Rights
states
that
"all
human
beings
are
born
free
and
equal
in
dignity
and
rights."
Article
1.
Articles
from
the
Declaration
which
are
pertinent
this
discussion
are:
Article
3
-
Everyone
has
the
right
to
life,
liberty
and
the
security
of
person.
Article
7
-
All
are
equal
before
the
law
and
are
entitled
without
any
discrimination
to
equal
protection
of
the
law.
Article
8
-
Everyone
has
the
right
to
effective
remedy
by
the
competent
national
tribunals
for
acts
violating
the
fundamental
rights
granted
him
by
the
constitution
or
by
law.
Article
9
-
No
one
shall
be
subjected
to
arbitrary
arrest,
detention
or
exile.
Article
10
-
Everyone
is
entitled
to
full
equality
to
a
fair
and
public
hearing
by
an
independent
and
impartial
tribunal,
in
the
determination
of
his
rights
and
obligations
and
of
any
criminal
charge
against
him.
Article
13
-
Everyone
has
the
right
to
freedom
of
movement.
Universal
Declaration
of
Human
Rights,
G.A.
res.
217
(AIII),
U.N.
Doc.
A/810
at
71
(1948).
The
American
Convention
on
Human
Rights
reiterates
the
Universal
Declaration
on
human
rights
and
sets
forth
certain
civil
and
political
rights,
including
(among
other
things)
the
right
to
life,
right
to
humane
treatment,
right
to
personal
liberty,
the
right
to
a
fair
trial,
right
to
of
peaceful
assembly,
freedom
of
association,
right
to
equal
protection
and
the
right
to
judicial
protection.
See
American
Convention
on
Human
Rights,
Nov.
22,
1969,
O.A.S.
Treaty
Series,
No.
36,
at
1,
OEA/Ser.
L./V7II.23
doc.
rev.
2.
Entered
into
force
July
18,
1978.
The
American
Convention
also
contains
a
derogation
clause.
Article
27,
Suspension
of
Guarantees,
states
that
in
"time
of
war,
public
danger,
or
other
emergency
that
threatens
the
independence
or
security
of
a
State
Party,
it
may
take
measures
derogating
from
its
obligations
under
the
present
Convention
to
the
extent
and
for
the
period
of
time
strictly
required
by
the
exigencies
of
the
situation...."
The
exception
does
not
apply
to
all
rights.
Specifically,
the
clause
states
that
any
discrimination
can
not
be
based
upon
"race,
color,
sex,
language,
religion,
or
social
origin.
Further,
the
Article
states
that
several
articles
may
not
be
suspended.
Relevant
to
this
article
are:
Article
3
(Right
to
Juridical
Personality),
Article
5
(Right
to
Humane
Treatment),
and
Article
23
(Right
to
Participate
in
Government).
The
prerequisite
for
suspending
these
rights
appears
to
also
be
necessity.
According
to
one
scholar:
In
addition
to
the
overarching
requirement
of
temporary
duration
and
effect,
several
factors
are
considered
when
giving
specific
content
to
the
principle
of
exception
danger.
First,
the
particular
crisis
must
be
actual
or
imminent.
Derogation
may
not
be
used
as
a
purely
preventive
mechanism
unless
an
imminent
danger
exists.
Second,
normal
measures
available
to
the
state
should
be
manifestly
inadequate
and
insufficient
to
respond
effectively
to
the
crisis
T
hird,
the
threat
must
have
nationwide
effects
...
The
threat
must
endanger
the
52
And
fifth,
the
more
extreme
the
circumstances,
the
more
extensive
the
power
Court
would
likely
accord
the
President.
1
9
1
V.
Where
Does
this
Leave
a
Military
Commander?
A
presidential
decision
to
impose
martial
law
raises
the
most
profound
legal,
ethical
and
moral
questions
imaginable.
But
once
the
order
is
issued,
the
President
must
rely
on
the
military,
through
its
various
levels
of
command,
to
execute
the
order.
If
the
President's
decision
to
issue
the
order
is
later
questioned
or
held
unlawful,
the
ramifications
for
the
President
lie
both
in
the
political
and
judicial
realms:
public
criticism,
impeachment,
removal
from
office,
injunction
or
reversal
by
the
Supreme
Court.
For
the
military
commander,
the
ramifications
could
be
criminal.
Under
the
Article
92
of
the
Uniform
Code
of
Military
Justice,
1
92
a
military
member
may
be
held
criminally
liable
for
failure
to
obey
lawful
orders
and
for
dereliction
of
duty.
1
93
whole
population
and
either
the
entire
territory
of
the
state
or
significant
parts
thereof.
Finally,
the
emergency
must
threaten
the
very
existence
of
the
nation,
that
is,
the
"organized
life
of
the
community
constituting
the
basis
of
the
State."
Gross,
supra
note
112,
at
453-454
(1998).
The
principle
of
proportionality
also
applies
to
this
derogation
regime.
According
to
the
American
Convention,
the
derogation
regime
applies,
"to
the
extent
and
for
the
period
of
time
strictly
required
by
the
exigencies
of
the
situation."
Article
27.
So,
like
martial
law,
necessity
guides
the
executive's
ability
to
rely
on
the
derogation
clause.
191
Chief
Justice
Rehnquist
notes
that
"[wjithout
question,
the
government's
authority
to
engage
in
conduct
that
infringes
civil
liberty
is
greatest
in
time
of
declared
war...."
REHNQUIST,
supra
note
106,
at
218.
192
MANUAL
FOR
COURTS-MARTIAL,
UNITED
STATES,
pt.
IV,
f
16
(1998)
[hereinafter
MCM].
193
The
punishment
options
range
from
dishonorable
discharge
(or
dismissal
for
an
officer)
and
2
years
confident
for
disobedience
of
a
lawful
general
order
to
a
bad
conduct
discharge
and
6
months
confinement
for
willful
dereliction
of
duty.
Uniform
Code
of
Military
Justice
art.
92
(1998)
[hereinafter
UCMJ].
53
Depending
on
the
circumstances,
a
commander
who
violates
orders
may
also
be
punished
for
conduct
unbecoming
an
officer
and
a
gentleman.
1
94
Military
members
are
required
to
obey
lawful
orders.
They
are
not
required
to
obey
unlawful
orders,
but
they
disobey
them
at
their
own
peril.
I
95
When
a
military
member
receives
an
order,
he
presumes
it
to
be
lawful,
unless
"patently
illegal"
or
one
that
"directs
the
commission
of
a
crime."
196
According
to
the
Manual
for
Courts-Martial,
an
order
is
"lawful
unless
it
is
contrary
to
the
Constitution,
the
laws
of
the
United
States,
or
lawful
superior
orders
or
for
some
other
reason
is
beyond
the
authority
of
the
official
issuing
it."
197
A
military
commander
is
unlikely
to
breeze
by
the
terms
"contrary
to
the
Constitution"
or
"laws
of
the
United
States"
because
all
military
officers,
upon
entering
active
duty
service,
swear
an
oath
to
"uphold
and
defend
the
Constitution
of
the
United
States."
1
98
Military
commanders
understand
the
obligation
to
honor
individuals'
constitutional
freedoms
and
receive
indoctrination
on
role
of
the
military
in
a
democracy
(i.e.,
Posse
Comitatus).
These
commanders
will
naturally
pause
before
executing
an
order
that
both
involves
them
directly
194
Article
133,
UCMJ.
The
maximum
punishment
available
under
Article
133
is
a
dismissal,
forfeiture
of
all
pay
and
allowances,
and
confinement
for
a
period
not
in
excess
ofthat
authorized
for
the
most
analogous
offense
when
the
punishment
is
prescribed
in
the
Manual,
or
if
not
prescribed,
one
year.
195
The
infamous
Calley
court-martial
made
it
clear
that
the
defense
of
"just
following
orders"
would
not
exonerate
an
officer
for
unlawful
behavior.
See
United
States
v.
Calley,
22
U.S.C.M.A.
534,48
C.M.R.
19
(1973).
196
MCM,
supra
note
192,
pt.
IV,
f
14c(2)(a).
It
states:
"An
order
requiring
the
performance
of
a
military
duty
or
act
may
be
inferred
to
be
lawful
and
it
is
disobeyed
at
the
peril
of
the
subordinate.
This
inference
does
not
apply
to
a
patently
illegal
order,
such
as
one
that
directs
the
commission
of
a
crime."
197
MCM,
supra
note
192,
pt.
IV,
f
16c(l)(c).
198
The
officer
and
enlisted
oaths
of
office
vary
slightly.
Officers
swear
to
uphold
the
Constitution.
10
U.S.C.A.
§
3331
(West
1999).
Enlisted
members
swear
to
uphold
the
Constitution
and
to
obey
the
orders
of
the
officers
who
are
appointed
over
them.
10
U.S.C.A.
§
502
(West
1999).
54
in
civilian
law
enforcement
and
which
requires
systematic
violation
of
citizens'
constitutional
rights.
Considering
the
legal
standard
established
in
the
Manual
for
Courts-Martial,
the
commander
who
receives
a
martial
law
execute
order
should
obey
the
order.
Unless
"patently
illegal,"
like
the
extremely
unlikely
order
to
conduct
mass
executions
or
to
torture
suspected
criminals,
1
99
there
is
sufficient
evidence
to
support
the
Commander-in-Chief
s
authority
to
proclaim
martial
law.
In
the
end,
the
commander's
best
option
would
be
to
obey
the
order.
VI.
Analysis
This
paper
cannot
resolve
all
the
legal
questions
that
would
swirl
around
a
declaration
of
martial
law.
But
integrating
the
cases
already
discussed,
along
with
the
other
principles
mentioned
above,
result
in
a
type
of
template
that
could
be
useful
in
determining
whether
the
President
has
the
authority
to
move
the
military
into
such
an
expanded
role
during
an
emergency.
This
paper
presumes
that
the
President
enjoys
inherent
authority
to
declare
martial
law,
outside
the
powers
granted
him
by
the
Constitution.
But
just
as
emergencies
do
not
"create
power"
200
and
"unenumerated
powers
do
not
mean
undefined
powers"
201
the
President's
power
to
impose
martial
law
must
not
be
limitless.
Certain
the
ability
to
exercise
such
power
199
See
supra
note
190
and
accompanying
text.
200
Youngstown
Sheet
&
Tube
v.
Sawyer,
343
U.S.
703
(1952).
201
Mat
610.
55
must
be
subject
to
certain
limitations.
Those
limitations
are
derived
from
the
Congress,
balanced
upon
conditions
of
necessity,
and
tempered
by
other
constitutional
considerations.
The
best
method
for
analyzing
the
legality
of
a
proclamation
of
martial
is
to
integrate
the
three-tier
standard
set
forth
in
Youngstown
Sheet
&
Tube
v.
Sawyer
with
some
of
the
principles
articulate
in
the
other
cases
discussed
above.
But
even
before
the
Youngstown
three-tier
analysis,
first
a
precondition
of
"necessity"
is
an
indispensable
prerequisite
to
any
declaration
of
martial
law.
Meeting
this
requirement
increases
the
likelihood
a
court
will
favorably
view
the
President's
exercise
of
discretion
under
trying
circumstances.
Moreover,
even
if
the
President
is
operating
under
the
first-tier,
with
implied
or
express
congressional
approval,
without
meeting
the
necessity
precondition,
his
actions
will
likely
fail
judicial
scrutiny.
The
more
dire
the
circumstances
(hence,
the
greater
the
necessity),
the
more
direct
action
the
President
can
take.
For
example,
in
Milligan,
the
Court
based
part
of
its
rationale
upon
the
fact
that
the
courts
were
not
closed.
Arguably,
this
is
because
the
military
was
going
beyond
just
population
control
and
was
inserting
itself
into
the
judicial
realm,
and
area
where
there
existed
no
need
for
the
military
to
operate.
So,
the
standard
of
necessity
was
not
met
in
that
case,
at
least
to
the
extent
the
military
wished
to
try
civilians
in
military
commissions.
Consider
the
Japanese
cases.
There
the
Court
upheld
the
President's
emergency
actions
because
of
his
ability
to
articulate
why
wartime
conditions
justified
such
extreme
actions.
The
conclusion
we
can
draw
from
all
these
cases
is
that
the
principle
of
necessity
is
not
202
Id.
at
579.
56
limited
to
only
the
declaration
of
martial
law,
but
must
also
be
matched
against
the
type
of
action
the
President
has
taken
under
the
umbrella
of
his
newly
declared
authority.
Under
the
Youngstown
203
first
tier,
congressional
action
(or
inaction)
becomes
the
most
critical
part
of
the
analysis.
Obviously,
Congress
has
never
acted
to
grant
the
President
explicit
authority
to
impose
martial
law.
But
there
is
ample
evidence
that
the
Congress
has
granted
both
express
and
implied
authority
to
the
military
act
in
certain
law
enforcement
roles.
Contrary
to
years
of
tradition,
the
Posse
Comitatus
Act
now
is
less
like
a
road
block,
and
more
like
a
speed
bump,
between
the
Armed
Forces
and
ever-increasing
law
enforcement
roles.
New
legislation
and
initiatives
geared
to
face
the
emerging
threats
have
charged
the
military
with
a
central
role
in
the
planning,
training
and
execution
phases
of
our
readiness
plans.
All
of
these
together
create
a
strong
legal
basis
for
the
President
to
argue
that
Congress,
upon
conditions
of
necessity,
would
accept
a
proclamation
of
martial
law.
The
second
tier
perhaps
presents
the
most
difficult
legal
analysis.
Here,
looking
to
congressional
intent
would
be
fruitless
so
the
President
must
act
upon
his
"own
independent
powers."
204
However,
when
operating
within
this
"zone
of
twilight"
205
where
distribution
of
power
is
"uncertain,"
206
the
President
may
be
invited
to
exercise
"independent
presidential
responsibility."
207
It
is
here
that
the
President's
inherent
authority
is
arguably
at
its
fullest.
But
the
President
can
be
guided
here
by
some
factors.
First,
the
actual
events,
or
elements
of
203
Mat
635.
204
Mat
637.
205
Id.
206
Id.
207
I
d.
57
necessity,
should
be
key
in
determining
the
President's
authority
and,
second,
the
extent
to
which
the
President
is
exercising
his
power
must
be
considered.
209
Finally,
in
the
second
tier,
not
only
can
the
President
take
some
reassurance
in
knowing
that
he
is
not
acting
contrary
to
congressional
intent,
but
also
from
the
fact
that
no
Supreme
Court
opinion
specifically
denounces
the
constitutionality
of
martial
law.
If
the
President
acts
directly
contrary
to
congressional
will,
he
is
squarely
within
the
third
tier
of
Justice
Jackson's
template.
Even
accepting
the
President
possesses
inherent,
extra-
constitutional
authority
to
"preserve"
210
the
nation,
that
power
is
not
unfettered.
Here,
the
President
is
taking
the
greatest
risk,
both
politically
and
legally.
And
even
though
the
Supreme
Court
is
generally
disinclined
to
involve
itself
in
these
types
of
matters,
acting
contrary
to
the
stated
will
of
Congress
appears
to
be
exactly
the
kind
of
"case"
or
"controversy"
that
falls
directly
within
the
Supreme
Court's
authority
to
adjudge.
211
Finally,
we
have
to
look
at
where
this
leaves
the
military
commander.
The
martial
law
"rubber
hits
the
road"
when
military
authorities
impose
the
President's
orders
upon
individual
citizens.
Under
these
circumstances,
the
commander's
authority
is
derived
from
the
President's
authority.
If
the
President
is
justified
in
taking
action,
that
justification
will
flow
down
to
support
the
military's
actions
taken
under
the
President's
orders.
208
Id.
("In
this
area,
any
actual
test
of
power
is
likely
to
depend
on
the
imperatives
of
events
and
contemporary
imponderables
rather
than
on
abstract
theories
of
law.")
209
As
Justice
Frankfurter
implied,
the
President's
authority
may
be
greater
if
for
a
"short,
explicitly
temporary
period,
to
be
terminated
automatically
unless
Congressional
approval
were
given.
Id.
at
597
(Frankfurter,
J.,
concurring).
210
See
discussion
supra
note
111.
211
U.S.
CONST.,
art.
Ill,
§
2.
58
The
commander
faces
numerous
dilemmas
under
these
circumstances.
Besides
facing
a
hostile
population,
the
commander
must
weigh
duties
to
obey
orders
against
obligations
to
uphold
the
Constitution.
Even
if
the
commander
believes
the
order
is
lawful,
he
must
still
remain
vigilant
to
not
violate
the
most
basic
human
rights
of
the
citizens
he
is
trying
to
protect.
Unfortunately,
the
lack
of
training
and
preparation
for
such
an
eventuality
probably
919
leaves
most
commanders
ill-prepared
to
handle
such
a
crisis.
VII.
Conclusion
In
1998,
Americans
were
again
exposed
to
the
concept
of
martial
law
in
the
form
of
a
hit
movie,
The
Siege.
213
The
movie
depicted
the
aftermath
of
a
terrorist
attack
on
New
York
City
where
the
government
declared
martial
law
and
rounded
up
thousands
of
Arab-
Americans
and
put
them
in
internment
camps.
214
Unfortunately,
sometime
in
the
future,
life
may
imitate
art
and
America's
experience
with
martial
law
may
extend
outside
the
movie
theater
into
reality.
It
seems
obvious
that
a
number
of
anti-American
groups
exist
both
212
It
has
been
the
author's
experience
that
military
attorneys
receive
little,
if
any,
training
on
the
subject
of
martial
law.
In
addition,
the
author
has
not
participated
in
any
military
training
exercise
that
focused
on
dealing
with
civilians
in
the
context
of
martial
law.
Even
if
such
emergency
plans
exist,
they
are
infrequently
used
in
the
context
of
military
exercises.
213
THE
SIEGE
(Twentieth
Century
Fox
1998).
214
As
expected,
the
movie
was
extremely
controversial.
Most
of
the
controversy
focused
on
the
improper
stereotyping
of
Arab-Americans,
but
the
issue
of
whether
our
country
could
ever
face
martial
law
also
received
a
fair
amount
of
attention.
See
Cindy
Pearlman,
Terrorism
Message
to
Teach
Tolerance;
Director
ZwickHas
Moral
Lesson,
THE
CHICAGO
SUN-TIMES,
Nov.
1,
1998,
at
SHO
Section,
p.3.
59
within
and
without
our
borders
that
would
not
hesitate
to
employ
terrorist-like
tactics
that
could
result
in
upheaval
and,
perhaps,
anarchy
within
our
country.
The
circumstances
that
would
prompt
a
declaration
of
martial
law
are
so
horrendous
that
they
are
almost
beyond
contemplation.
But
that
dreadful
eventuality
should
not
translate
into
a
lack
of
preparation,
for
if
we
are
prepared,
we
are
less
likely
to
fear
even
the
most
awful
possibilities.
Those
who
worry
about
the
profound
legal,
moral
and
social
implications
of
declaring
martial
law
should
contemplate
Thomas
Jefferson's
insightful
words:
A
strict
observance
of
the
written
laws
is
doubtless
one
of
the
high
duties
of
a
good
citizen,
but
it
is
not
the
highest.
The
laws
of
necessity,
of
self-
preservation,
of
saving
our
country
when
in
danger,
are
of
higher
obligation.
To
lose
our
country
by
a
scrupulous
adherence
to
written
law,
would
be
to
215
One
extremist
group,
led
by
Japanese
cult
leader
Shoko
Asahara,
has
already
used
chemical
weapons
against
civilian
targets.
Others
seriously
contemplate
the
possibility.
Consider
the
following
exchange
between
a
member
of
an
American
white
supremacist
group
and
a
television
interviewer:
LARRY
WAYNE
HARRIS:
My
view
of
the
future
is
that
we
are
facing
now
a
biological
apocalypse.
It
is
coming.
The
Bible
says
that
it
is
coming.
NARRATOR:
Larry
Wayne
Harris,
a
member
of
the
white
supremacist
group
Aryan
Nation,
has
been
in
constant
trouble
with
the
law
for
his
attempts
to
obtain
plague
bacteria
and
anthrax
through
the
mail.
Harris
has
written
a
manual
for
do-it-yourself
biological
warfare,
and
he
claims
it
is
easy
to
acquire
these
deadly
agents.
INTERVIEWER:
Could
you
personally
use
biological
organisms
offensively,
if
you
have
to?
LARRY
WAYNE
HARRIS:
Most
definitely.
I
-1
hope
I
never
have
-
we
never
have
to,
but
most
definitely.
INTERVIEWER:
Do
you
believe,
looking
into
the
future,
that
you
may
have
to?
LARRY
WAYNE
HARRIS:
I
hope
and
pray
that
I
never
have
to.
INTERVIEWER:
That's
not
the
question,
Mr.
Harris.
LARRY
WAYNE
HARRIS:
Yes.
Frontline
Internet
Site,
supra
note
2.
60
lose
the
law
itself,
with
life,
liberty,
property
and
all
those
who
are
enjoying
them
with
us;
thus
absurdly
sacrificing
the
end
to
the
means
....
The
officer
who
is
called
to
act
on
this
superior
ground
does
indeed
risk
himself
on
the
justice
of
the
controlling
powers
of
the
Constitution,
and
his
station
makes
it
his
duty
to
incur
that
risk
....
The
line
of
discrimination
between
cases
may
be
difficult;
but
the
good
officer
is
bound
to
draw
it
at
his
own
peril,
and
throw
himself
on
the
justice
of
his
country
and
the
rectitude
of
his
motives.
216
216
Lobel,
supranote
84,
at
1393
(citing
Letter
from
Jefferson
to
Colvin,
Sept.
20,
1810,
in
11
The
Works
of
Thomas
Jefferson
146,
148-149,
(P.
Ford
e.
1905)).
61
