What is Martial Law
The exercise of government and control by military authorities over the civilian population of a designated territory.
Martial law is an extreme and rare measure used to control society during war or periods of civil unrest or chaos. Accordingto the Supreme Court, the term martial law carries no precise meaning (Duncan v. Kahanamoku, 327 U.S. 304, 66 S. Ct.606, 90 L. Ed. 688 ). However, most declarations of martial law have some common features. Generally, theinstitution of martial law contemplates some use of military force. To a varying extent, depending on the martial law order,government military personnel have the authority to make and enforce civil and criminal laws. Certain civil liberties may besuspended, such as the right to be free from unreasonable searches and seizures, freedom of association, andfreedom of movement. And the writ of Habeas Corpus may be suspended (this writ allows persons who are unlawfullyimprisoned to gain freedom through a court proceeding).
In the United States, martial law has been instituted on the national level only once, during the Civil War, and on a regionallevel only once, during World War II. Otherwise, it has been limited to the states. Uprisings, political protests, labor strikes,and riots have, at various times, caused several state governors to declare some measure of martial law.
Martial law on the national level may be declared by Congress or the president. Under Article I, Section 8, Clause 15, of theConstitution, Congress has the power “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppressinsurrections and repel Invasions.” Article II, Section 2, Clause 1, of the Constitution declares that “[t]he President shall beCommander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called intothe actual Service of the United States.” Neither constitutional provision includes a direct reference to martial law. However,the Supreme Court has interpreted both to allow the declaration of martial law by the president or Congress. On the statelevel, a governor may declare martial law within her or his own state. The power to do so usually is granted in the stateconstitution.
Congress has never declared martial law. However, at the outset of the Civil War, in July 1861, Congress ratified most of themartial law measures declared by President Abraham Lincoln. Its martial law declaration gave the Union military forces theauthority to arrest persons and conduct trials. However, Congress initially refused to ratify Lincoln’s suspension of the writ ofhabeas corpus. This refusal created friction between Congress and the president and raised the question of whetherunilateral suspension of the writ under martial law was within the president’s power. The Supreme Court reviewed the issueand ruled in Ex parte Merryman, 17 F. Cas. 144 (1861) (No. 487), that only Congress had the power to suspend the writ ofhabeas corpus. After Congress approved Lincoln’s suspension of the writ in 1863, Union forces were authorized to arrestand detain Confederate soldiers and sympathizers, but only until they could be tried by a court of law.
The martial law declared by Lincoln during the Civil War spawned another legal challenge, this one to the military courts: exparte milligan, 71 U.S. (4 Wall.) 2, 18 L. Ed. 281 (1866). Lamdin Milligan, a civilian resident of Indiana, was arrested onOctober 5, 1864, by the Union military forces. Milligan was charged with five offenses: conspiring against the United States,affording Aid and Comfort to rebels, inciting insurrection, engaging in disloyal practices, and violating the laws of war.Milligan was tried, found guilty, and sentenced to prison by a military court.
Although the habeas corpus petition had been suspended, the Supreme Court accepted Milligan’s petition for a writ ofhabeas corpus. The Supreme Court held that neither the president nor Congress could give federal military forces the powerto try a civilian who lived in a state that had federal courts. Milligan firmly established the right of the U.S. Supreme Court toreview the propriety of martial law declarations.
The next large-scale martial law declaration took place 80 years later. On December 7, 1941, the day that Japanesewarplanes bombed Pearl Harbor in what was then the territory of Hawaii, Governor Joseph B. Poindexter, of Hawaii, declaredmartial law on the Hawaiian Islands. The governor also suspended the writ of habeas corpus. The commanding general ofthe Hawaiian military assumed the position of military governor. All courts were closed by order of the military governor, andthe military was authorized to arrest, try, and convict persons. Under Poindexter’s martial law order, approved by thepresident, the military courts were given the power to decide cases without following the rules of evidence of the courts oflaw, and were not limited by sentencing laws in determining penalties.
In February 1942 the Department of War appointed General John L. DeWitt to carry out martial law in California, Oregon,Washington, and the southern part of Arizona. In March 1942 DeWitt announced that the entire Pacific Coast of the UnitedStates would be subject to additional martial law measures. Later that month he declared that all alien Japanese, Germans,and Italians, and all persons of Japanese descent, on the Pacific Coast were to remain inside their home between 8:00 p.m.and 6:00 a.m..
These martial law measures were challenged by criminal defendants shortly after they were put in force. In Duncan v.Kahanamoku, 327 U.S. 304, 66 S. Ct. 606, 90 L. Ed. 688 (1946), the Supreme Court held that the military tribunalsestablished under martial law in Hawaii did not have jurisdiction over common criminal cases because the Hawaiian OrganicAct (31 Stat. 141 [48 U.S.C.A. § 532]) did not authorize the governor to close the courts of law when they were capable offunctioning. In Duncan the Court ordered the release of two prisoners who had been tried and convicted of Embezzlementand assault by military courts.
In other cases the High Court was more tolerant of Civil Rights deprivations under martial law. In Hirabayashi v. UnitedStates, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943), the Court upheld a curfew placed on Japanese Americansduring the war, on the ground of military necessity, and in korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L.Ed. 194 (1944), the Court justified the random internment (imprisonment) of more than 110,000 Japanese Americans duringthe war.
At least one governor has used martial law to enforce state agency regulations. In 1931 Governor Ross S. Sterling, ofTexas, sent Texas National Guard troops into east Texas oil fields to force compliance with limits on the production of oiland an increase in the minimum number of acres required between oil wells. The regulations had been drawn up by theTexas Railroad Commission with the approval of the Texas Legislature, but similar regulations had been enjoined (stopped)by a federal court just four months earlier. In 1932 the Supreme Court invalidated Sterling’s use of martial law, holding that itviolated the constitutional due process rights of the property owners (Sterling v. Constantin, 287 U.S. 378, 53 S. Ct. 190,77 L. Ed. 375 ).
Another governor declared martial law in response to an assassination and rumors of political corruption. In June 1954 AlbertPatterson, a nominee for state attorney general in Alabama, was shot to death on a street in Phenix City. Alabama governorGordon Persons declared martial law in Phenix City and dispatched General Walter J. (“Crack”) Hanna and the AlabamaNational Guard to take over the city. Hanna appointed a military mayor, and the troops took control of the county courthouseand city hall. The troops physically removed certain officials from the courthouse and city hall, seized gambling equipment,and revoked liquor licenses.
Martial law usually is used to try to restore and maintain peace during civil unrest. It does not always yield the desiredresults. In May 1970, for example, Ohio governor James Rhodes declared limited martial law by sending in National Guardtroops to contain a Kent State University protest against the Vietnam War. Four protestors were shot and killed by thetroops. In a case brought by their survivors, the Supreme Court held that the governor and other state officials could besued if they acted beyond the scope of state laws and the federal Constitution (Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct.1683, 40 L. Ed. 2d 90 ).
Martial law is generally an act of last resort. Courts will uphold a decision to use troops only if it is necessary and proper.
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n. a system of complete control by a country’s military over all activities, including civilian, in a theoretical or actual warzone, or during a period of emergency caused by a disaster such as an earthquake or flood, with the military commanderhaving dictatorial powers. In the United States martial law must be ordered by the President as commander-in-chief andmust be limited to the duration of the warfare or emergency. It cannot result in a long-term denial of constitutional rights,such as habeas corpus, the right to a trial, and to free press. Martial law was ordered in contested areas during the Civil War(but the Supreme Court ruled President Abraham Lincoln’s suspension of the writ of habeas corpus was unconstitutional),and during the San Francisco earthquake and fire in 1906 when the city was in ruins, tens of thousands were homeless, andlooting and disease posed great dangers to the public. Mis-use of martial law, such as destruction of the veteran’sencampment in Washington D. C. under President Herbert Hoover, has proved unpopular in the United States. In manyforeign countries martial law has become a method to establish and maintain dictatorships either by military leaders orpoliticians backed by the military. Martial law is not to be confused with “military law” which governs the conduct of themilitary services and applies only to service men and women. (See: military law)