The military officer has power to try an offender and punish him under martial law, but he should not exercise this power except where it is necessary for him to do so for the purpose of restoring order or when it is not possible to keep an accused person in arrest until he can be handed over for trial by the ordinary courts.
Such occasion may arise if communications are interrupted during a considerable period, but even then the military officer can generally arrange for the attendance of a civil magistrate to whom prisoners can be handed over for trial, and this should be done when possible.
If the military officer has to try an offender, though this should only be necessary in very exceptional circumstances, the trial should follow the forms of military law; and a record must be kept of every trial so held, and of every punishment inflicted under martial law.
Any punishment so inflicted must not be excessive. But what happens when martial law is proclaimed may be gathered from reports of military officers. The following extracts are from reports appended to the Governor's report to the Colonial Office regarding the insurrection in Jamaica in On returning to Golden Grove in the evening, sixty-seven prisoners had been sent in.
I disposed of as many as possible, but was too tired to continue after dark. We held a court martial on the prisoners, who amounted to about fifty or sixty. Several were flogged without court martial, from a simple examination. The soldiers enjoy it, the inhabitants here dread it. If they run on their approach, they are shot for running away. Proclamations of Martial Law. Martial law was part of the existing laws thus inherited. Martial law under the common law rule was administered in in Sind which later became a province of Pakistan.
To the Government of Pakistan this was the latest instance of martial law administration with which they were closely familiar. When they had to resort to martial law in , they therefore followed the latest precedent and administered it under the common law rule without recourse to legislation.
Martial law was proclaimed in Lahore in March when orthodox Muslims resorted to direct action against Admadiyas, a Muslim sect following the teachings of Mirza Ghulam Ahmad. In a matter of six hours order was restored by the military forces. The military commander constituted himself Chief Martial Law Administrator and conferred on himself authority to issue martial law regulations and orders and to appoint special courts for the trial and punishment of persons contravening such regulations and orders.
Ordinary criminal courts were permitted to exercise jurisdiction in respect of offences other than those created by the regulations or connected with the disturbances.
The Ordinance defined the martial law period as "the period beginning on the 6th day of March, and ending on such day as the Central Government may by notification in the Official Gazette declare".
On October 7, the President of Pakistan proclaimed martial law throughout the State and abrogated the Constitution which he considered was "full of dangerous compromises".
It was decided that the administrative organisation of the Chief Martial Law Administrator would consist of a civil wing and a military wing. In running the administration in accordance with the military regulations issued from time to time, the civil agencies would be utilized to the maximum extent possible.
The Laws Continuance in Force Order, , promulgated by Iskandar Mirza who still styled himself President after having abrogated the Constitution of which the President formed a part provided that, notwithstanding the abrogation of the Constitution and subject to any order of the President, or Regulation made by the Chief Martial Law Administrator, Pakistan would be "governed as merely as may be in accordance with the late Constitution".
The order declared that all courts in existence immediately before the proclamation of October 7 would continue in being, that the law declared by the Supreme Court would be binding on all courts in Pakistan and that the Supreme Court and the High Court would have power to issue the writs of habeas corpus, mandamus , prohibition, quo warranto and certiorari.
No writs, however, could be issued against the Chief Martial Law Administrator, or his Deputy or any person exercising powers or jurisdiction under the authority of either. Between October 7th and 17th thirty-nine martial laws regulations and nine martial law orders were issued by the Chief Martial Law Administrator.
Under Regulation 1-A special and summary military courts as well as ordinary criminal courts were given power to try and punish any person for contravention of martial law regulations or orders or for offences under the ordinary law. Severe penalties for offences were prescribed by the regulations.
For instance, "black marketing" was declared punishable by rigorous imprisonment for fourteen years. Martial Law Regulations issued between October 30 and November 8 dealt, in the main, with the control of prices of foodgrains and other commodities, income tax returns, surrender of foreign exchange and similar welfare measures.
As early as October 17th, General Ayub Khan declared that martial law would not be lifted until the political, social, economic and administrative mess in the country had been cleared. When martial law is declared, civil liberties, such as the right to free movement, free speech , or protection from unreasonable searches, can be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, such as a military tribunal.
Civilians may be arrested for violating curfews or for offenses that, in normal times, would not be considered serious enough to warrant detention. Laws relating to habeas corpus that are designed to prevent unlawful detention may also be suspended, allowing the military to detain individuals indefinitely without the possibility of recourse.
Considering the negative ramifications martial law can have on a country and its citizens, declaring martial law is a last resort reserved for situations where law and order are rapidly deteriorating. For example, in , the governor of Idaho instituted martial law after a group of rebellious mine workers blew up a mill, which leveled a four-story building and killed several people.
Typically, the power to declare martial law rests with the president. For example, a president may be authorized to declare martial law during a time of violent civil unrest, but only for 60 days. International laws may also limit the scope and duration of martial law if a country has signed onto a multilateral treaty. The use of martial law in the wake of natural disasters is less common. Rather than declaring martial law and hand over power to the military in the case of a hurricane or earthquake, governments are much more likely to declare a state of emergency.
When a state of emergency is declared, the government may expand its powers or limit the rights of its citizens. The government does not, however, have to hand power over to its military. In some cases, a government may invoke a state of emergency specifically to suppress dissent or opposition groups.
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Rivers, 31 F. Misuses of martial law were not confined to Georgia. At the climax of the conflict, Sterling imposed martial law on several counties — despite the total absence of violence or threats of violence — and deployed the Texas National Guard to enforce the regulation. He declared that the federal courts had no power to review his decision. It ordered Texas to stop using the military or any other means to enforce the regulation.
The federal government has used martial law far less frequently than the states, imposing it only a few times since the end of Reconstruction. Generals have declared it more often than the president, such as in , when U. Army Gen. Francis C. Marshall imposed martial law on Lexington, Kentucky, in order to suppress a lynch mob attempting to storm the courthouse. Most recently, the federal government declared martial law in Hawaii after the Japanese attack on Pearl Harbor in , which initiated three years of absolute military rule in the islands.
As abruptly as it took hold in the mid th century, martial law disappeared from American life after World War II. The federal government has not declared martial law since it restored civilian rule to Hawaii in At the state level, martial law was last declared in , when Maryland Governor J.
Millard Tawes imposed it on the city of Cambridge for more than a year in response to clashes between racial justice advocates and segregationists. But even if the power to declare martial law has not been used in decades, it still exists in the case law and in the record books — and it remains poorly understood.
The Court has never explained the legal basis for martial law. It has implied that the federal government can declare it but has never said so conclusively. When discussing the possibility of a federal martial law power, the Court has never clearly indicated whether the president could unilaterally declare martial law or if Congress would first need to authorize it. Insofar as the Supreme Court has said anything on these questions, its statements have been inconsistent.
Diekelman, 92 U. Note that both the portion of Luther that Chief Justice Stone cites and the rest of his opinion directly contradict his own opening proposition. During World War II, the Court assumed without deciding that Congress could authorize a federal declaration of martial law but did not make clear whether that authorization was required.
In contrast, in a much earlier but influential concurring opinion, Chief Justice Salmon Chase did conclude that federal martial law exists and that it must be authorized by Congress.
It is also old: even the most recent Supreme Court decision on martial law — Duncan v. Kahanamoku , decided in — predates many significant developments in U. Sawyer, U. Ohio, U. United States, U. Connecticut, U. Arizona, U. Rumsfeld, U. Bush, U. The precedents thus provide little help in determining the legal basis for martial law — or, assuming that federal martial law is even permissible, whether its use is controlled by Congress or the president.
Texas, U. Regan, U. Consider, for example, if the president were to declare martial law over the U. In that hypothetical scenario, a federal court would likely apply Youngstown to decide whether the president had exceeded executive authority. Under Youngstown , the courts show varying degrees of deference to presidential action, depending on whether the president is acting in accordance with or contrary to the will of Congress.
The court will uphold the action unless the federal government, as a whole, lacks the power to act. These actions are impermissible unless Congress has overstepped its own powers.
This language acknowledges the possibility that martial law might exist as an emergency power, despite the lack of any express provision for it in the Constitution. It does not, however, suggest where that power lies, and certainly does not indicate that it belongs solely to the executive branch.
Nor does it render the three-zone test inapplicable in the context of martial law. We start with what Congress has said: Congress has legislated so extensively with respect to the domestic use of the military — through, for example, the Posse Comitatus Act, the Insurrection Act, the Stafford Act, the Non Detention Act, and various other provisions within Title 10 of the U.
Furthermore, the Posse Comitatus Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities — even if they are merely supplementing rather than supplanting civilian authorities — except when doing so is expressly authorized by Congress. The Posse Comitatus Act nominally allows for constitutional exceptions to its general rule, but none exists.
As it is generally understood, martial law necessarily involves military participation in civilian law enforcement. While there are a number of statutory exceptions to the Posse Comitatus Act, none of them authorizes the president to declare martial law, as part III of this report explains. Barreme, 6 U. In other words, when Congress and the president disagree, Congress wins.
The critical question, then, is how the Constitution allocates the powers related to domestic deployment of the military. The balance of power established by these provisions decisively favors Congress over the president.
Instead, it grants authority to the federal government as a whole. Furthermore, it only allows unilateral federal action in the case of invasion. Lastly, the Commander in Chief Clause would not enable the president to unilaterally declare martial law in disregard of the Posse Comitatus Act and other statutes that regulate the domestic use of the military.
To start, the Commander in Chief Clause is not a source of domestic regulatory authority for the president. In domestic affairs, both generally and with respect to the role of the military, the Constitution envisions Congress as the branch in control. If a foreign enemy launches a sudden attack inside the United States, it is generally understood that the president may act to repel that attack, even if Congress has not given its blessing.
But the former power is quite limited, and the latter relies on prior congressional authorization. Accordingly, a unilateral declaration of martial law by the president today — on the southern border or elsewhere — would not survive a legal challenge under Youngstown.
It bears emphasizing that this conclusion is compelled partly by the Constitution and partly by federal law. It is possible that, in the absence of the Posse Comitatus Act and other laws regulating domestic military activity, the president could rely on some independent executive power to declare martial law. But that scenario is hypothetical and the likely legal outcome is uncertain. The reality is that the domestic role of the U.
In the imagined scenario described earlier, the president set up military tribunals to try violators of federal immigration law. The Posse Comitatus Act, however, only applies to military participation in law enforcement. When it comes to military involvement in judicial functions, the analysis changes, and the law is characterized by profound uncertainty. While the Calling Forth Clause expressly contemplates the use of military forces to execute the law, no provision of the Constitution authorizes the military to perform the functions assigned to the judicial branch under Article III.
In one part of the opinion, the Court firmly asserts that emergency conditions can never justify exceeding the bounds of the Constitution. But the larger issue is that a necessity exception to the Constitution is impossible: it is a fundamental principle of U. Carter Coal Company, U. Maryland, 17 U. Madison, 1 Cranch In any event, even if the necessity-based exception articulated in Milligan were considered to be authoritative, it would be extremely narrow. The possibility of using martial law to replace civilian courts with military tribunals should not be confused with the rule established by Ex parte Quirin in Quirin and a handful of more recent Supreme Court decisions related to the U.
These individuals, the Court has held, are subject to the international law of war. Offences against the Law of Nations. These decisions are not about martial law. They demarcate the line between military and civilian jurisdiction, rather than allowing the military to exercise jurisdiction in an area ordinarily reserved for civilian courts. No existing federal statute explicitly authorizes the president to declare martial law. Virgin Islands to declare martial law under certain circumstances.
Neither statute grants any power to the president. However, there are a number of statutory exceptions to the Posse Comitatus Act that allow the president to deploy the military domestically. The most important of these is the Insurrection Act. Rather than a single package of legislation, the Insurrection Act consists of a series of statutes that were enacted between and , with a few amendments in the 20th century.
The act and parts of the act contained sunset provisions, and are no longer in force, but their text and legislative history remain instructive. The first two, Sections and , are relatively straightforward and mirror the language of the Calling Forth Clause. Nothing in the plain language of Sections and indicates that they authorize martial law. Rather, it contemplates that the military may assist overwhelmed civilian authorities by doing exactly what soldiers are trained to do: fight and defeat an armed and hostile group.
Section suggests a more expansive power: it allows the military to enforce federal law, not just to suppress an insurrection. Nonetheless, it still does not imply that the military may push aside the civilian authorities.
In its decision in Duncan , the Supreme Court made clear that when a statute authorizes the military to encroach on the affairs of civilian government, the Court will interpret it extremely narrowly. Because Section does not expressly authorize the displacement of civilian authorities, it should not be read as license to turn the normal relationship between civilian and military power on its head. Instead, it should be understood merely as authorization for the military to assist civilian government officials when they are overwhelmed by forces attempting to obstruct law enforcement and judicial proceedings.
Section is the only substantive provision of the Insurrection Act that might, on its face, be read to authorize a limited form of martial law.
In any situation covered by clause 1 , the State shall be considered to have denied the equal protection of the laws secured by the Constitution. As in Section , the desires of the state are irrelevant.
By its express terms, Section contemplates a situation in which, rather than needing help from the military to enforce the laws, the civilian authorities are just not enforcing them.
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