Martial Law

Brief Written in the Week After Hurricane Katrina - Edward P. Richards

(Background - the media and local officials were talking about "martial law." The LA AG and others, including myself, were trying to explain that we had working institutions and no insurrection, so there was no justifications for martial law. The concern was that a local sherif or other official would delcare martial and shoot someone, most likely a Yankee reporter.)

This is a brief, common sense review of martial law that will be expanded with time. It is not intended to be a scholarly review, but a quick reference for policy makers dealing with public health emergencies such as aftermath of Hurricane Katrina. Martial law is often invoked in movies and is bantered about by the media. Martial law deals with a very limited circumstance that has nothing to do with looters or crowd control.

Martial law has two meaning: 1) the suspension of constitutional criminal due process, which is the topic of this essay; and 2) the law that governs military affairs.

The federal and state governments derive their powers from the Constitution, and must respect the limitations of the Constitution. Martial law is a short-hand for the use of force to maintain order when the rule of law has so completely broken down that there is no order and the Constitution no longer applies. Martial law cannot be invoked as a substitute for ordinary criminal law enforcement against citizens in the United States when there is no war or insurrection and the courts are open. For example, while the the courts will not be physically open in New Orleans for some time after the hurricane, they are legally available and the judges can hear cases sitting at a different physical site, such as Baton Rouge.

The most recent United States Supreme Court discussion of martial law is Justice Scalia's dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004). While Justice Scalia was not in the majority, his discussion of martial law accurately portrays its only application, which is in the: "...the theatre of active military operations, where war really prevails..." (quoting the classic case, Ex Parte Milligan, 71 U.S. 2 (1866))

The extraordinary nature of martial law is echoed in the federal regulation governing its use by the military (emphasis added):

32 C.F.R. § 501.4 Martial law.

It is unlikely that situations requiring the commitment of Federal Armed Forces will necessitate the declaration of martial law. When Federal Armed Forces are committed in the event of civil disturbances, their proper role is to support, not supplant, civil authority. Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time. 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. However, the decision to impose martial law may be made by the local commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from higher authority (§ 501.2). Whether or not a proclamation exists, it is incumbent upon commanders concerned to weigh every proposed action against the threat to public order and safety it is designed to meet, in order that the necessity therefor may be ascertained. 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. These will normally be announced by proclamation or order and will be given the widest possible publicity by all available media. 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.

There is no need to use martial law: the police can arrest looters, can shoot armed persons who threaten them; and can enforce curfews and other lawful orders. The national guard may assist with such enforcement. Federal troops are much more restricted in their role because of the limitations placed on them by Congress, and because separation of military and domestic civil authority is a key American value.

In the case of Hurricane Katrina, the federal declaration that is an "incident of national significance" allows much more extensive use of the National Guard and more flexibility for federal troops. There are many roles the federal troops can play to free up the police and national guard to carry out law enforcement. This should be their role as much as possible. The specter of troops defending themselves from starving, desperate hurricane victims on CNN should give any politician pause.