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Thursday, March 08, 2007

Five Questions About Martial Law, Part I: What Is Martial Law?

Martial law, at once the most important and the least defined concept in the broad field of national security law (if not in all of constitutional law), has been a hot topic as of late.  In January, the New Yorker ran an intriguing book review by Caleb Crain about Matthew Warshauer’s new book on Andrew Jackson and martial law [to be fair, the authoritative discussions remain Dennison's Martial Law: The Development of a Theory of Emergency Powers, 1776-1861, 18 Am. J. Legal Hist. 52 (1974), and Sofaer's Emergency Power and the Hero of New Orleans, 2 Cardozo L. Rev. 233 (1981)], and no less an authority than the editorial page of the New York Times ran an editorial two weeks ago on how the 2007 Defense Authorization Act, in amending a little-known statute called the “Insurrection Act,” made martial law “easier.” (For a counterargument and the notion that the amendment to the Insurrection Act only clarified an issue that had previously been unclear, see this intriguing post by Bobby Chesney).

The same day as the Times editorial (talk about preemption!), I posted a new paper to SSRN on “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act.”  Prepared in conjunction with the Temple Law Review’s symposium later this month on presidential power (about which I’ll have more to say in a separate post, but the brochure for which is available here), the article takes on the complicated relationship between martial law and habeas corpus and surveys what few historical examples the United States has seen of situations where the civil government was rendered subservient to the military.  I don’t mean to launch into an extended discourse about the paper (although comments are most welcome), but I was reminded, while writing it, just how little is commonly known and understood about the operation of martial law in the United States.  Reading the Times editorial the day I finished the paper (and contrasting it with Bobby’s analysis) only further drove that point home. Thus, the genesis for this series of posts.

Over five posts cross-posted on PrawfsBlawg and National Security Advisors—this one and four subsequent posts over the coming two weeks—I aim to explore what I view as the five central questions about “martial law”: 

  1.  What is martial law?
  2.  Where does the federal government’s constitutional authority to impose martial law come from, and is it consistent with the Posse Comitatus Act?
  3.  When can the federal government impose martial law?
  4.  What happens to the privilege of the writ of habeas corpus when martial law is in effect?
  5.  When does martial law terminate (and who gets to say so)?

My hope, in addressing these series of questions, is not to comprehensively survey the field, but rather to spark debate about those points that today remain largely unresolved, and, in doing so, to provide at least some illumination of one of the most understudied areas of American constitutional law.

And so, without further ado, question 1: What is martial law?

To begin with, I think it is fair to say that “martial law” is a bit of a misnomer, for it arguably is used to refer to at least three different legal concepts. In his concurring opinion in Ex parte Milligan—at once the most famous and most troubling decision concerning martial law in American history, but more on that later—Chief Justice Chase broadly summarized the concept, which he referred to as “military jurisdiction,” as follows:

There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.

As Chase would have it, “martial law” itself refers only to the last category—to crisis situations where for reasons of “insurrection or invasion,” civil government can no longer function. In those situations, “martial law” is shorthand for “domestic military government.” The military does not just have legal authority over its own soldiers (Chase’s first category of “military jurisdiction”), or over persons and property within enemy territory, be it on foreign soil or over domestic rebels (the second category), but over friendly civilians within the United States.

Leaving aside, for the moment, the critical questions of where the authority to impose martial law comes from, and when martial law may validly be imposed (each the subject of a later post), we end up with a fairly simple conception of what “martial law” means.  If Chase’s formulation (which was later echoed by William Winthrop in his classic treatise, Military Law and Precedents), is correct, then “martial law” is just the last category: It is the alternative to anarchy when civil government is substantially unable to function and/or operate.

What should be fairly obvious from such a definition of martial law is that martial law and civil government, at least in theory, are mutually exclusive. Similarly, martial law, so defined, is a functional ideal, and therefore exists irrespective of legal proclamation. As Attorney General Caleb Cushing wrote in a prescient 1857 opinion, “When martial law is proclaimed under circumstances of assumed necessity, the proclamation must be regarded as the statement of an existing fact, rather than the legal creation of that fact.” To similar effect is Frederick Bernays Wiener’s classic 1940 study, A Practical Manual 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.”

What should therefore also be obvious is that there is something unnatural about Chase’s limitation of martial law to situations of insurrection or invasion. As we know only all too well, natural disasters are just as capable of displacing civil government as are wars. More to the point, as I've written about previously (and as I will discuss in the next post), the Constitution authorizes the domestic use of the military in three instances: to suppress insurrections, to repel invasions, and to “execute the laws of the union.” And so it makes little sense to distinguish between the reasons why civil government is unable to function. The question—in constitutional terms, anyway—is objective.

But if martial law can only exist where civil government is inoperable, how do we discern when and to what extent that condition must be satisfied? Did martial law exist after Hurricane Katrina? (President Bush apparently considered but ultimately rejected the idea). If so, where? Could looters have been tried by military tribunals? By courts-martial? If Milligan was correct that martial law cannot obtain when “the courts are open and their process unobstructed,” which courts? Could the D.C. district court have entertained a habeas petition from individuals detained without charges in New Orleans? Could the Western District of Louisiana have done so?

I’ll return to these troubling questions in the subsequent posts. For now, though, the central point seems to be that martial law, as we have come to understand it, should not depend upon whether the nature of the emergency is belligerent or natural. For that reason, the Times editorial, although a worthwhile attempt to flag a serious potential issue, misses the mark. Consider this passage:

The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

I’m not sure the Times editorial is wrong about the President's authority under the Insurrection Act as amended; rather, I think the Times is wrong because there is a very good case to be made that the pre-2006 Insurrection Act already recognized the authority to impose martial law in the cases the Times describes. As noted above, the issue is whether civil government is unable to function, and not why it is so inhibited.  That is not to justify the wisdom of the open-ended and broad delegation of power contained within the Insurrection Act; indeed, I think there is much more that Congress can and should do vis-à-vis imposing substantive limitations upon the exercise of martial law. But much though I may be tempted to blame the 109th Congress for everything, for once, I don’t think that this is their fault.

So, I guess the “answer” to question 1 is that “martial law,” as we tend to use the term, is the supplanting of civil authority by the military during times of crisis. Where the authority for martial law comes from, and when martial law may validly be imposed/recognized, are the more important (and disturbing) questions that naturally come next.

Posted by Steve Vladeck on March 8, 2007 at 12:36 AM in Article Spotlight, Books, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Oh, yeah, completely, it's a great article, with an impressive scope in a small compass; I didn't mean to take that away from it at all.

Posted by: Caleb Crain | Mar 8, 2007 11:38:28 PM

Thanks Caleb (and thanks for such an interesting book review). I stand corrected on Dennison. I guess by "authoritative" I meant "most thorough and comprehensive," although I agree that Warshauer calls at least some of Dennison's analysis--but not the history--into question...

Posted by: Steve Vladeck | Mar 8, 2007 2:18:36 PM

Thanks for the nod to my article, and I'll look forward to how your series turns out. I'm persuaded by your and Mr. Chesney's argument that the New York Times editorial may have missed the mark.

A side note: Since you refer to Dennison's article as authoritative, you might like to know that in his endnotes, where it's easy to miss, Warhsuaer corrects a couple of slips in Dennison's article, which matter to the question of figuring out when certain ideas about martial law came into currency. In essence, Dennison used later editions of James Kent's and John Bouvier's law compendia, and inferred, wrongly, that Kent and Bouvier had expressed the same ideas in earlier editions.

Posted by: Caleb Crain | Mar 8, 2007 2:06:18 PM

I am interested to see where this goes vis a vis Katrina, as I am interested in an academic discussion of the subject. Much of what I've seen online thusfar has been in regards to mass gun confiscations in New Orleans post Katrina, and people who are still enraged about it.

Might be worth reading:

Posted by: jps | Mar 8, 2007 11:28:31 AM

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