Glossary of Legal Terms in USA, Understanding Martial Law , The declaration of martial law is a rare and momentous decision for a civilian government to make and for a good reason. When martial law is declared, civilian control of some or all aspects of government operations is ceded to the military. This means that, in the case of elected governments, the representatives chosen by the voting population are no longer in power. Civilians have thus ceded control of the country in exchange for the potential restoration of order with the possibility that control may not be reclaimed in the future.
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.
On August 20, 1942, military police in Honolulu, Hawaii, arrested a man named Harry White. Under normal circumstances, the U.S. military would not have been involved in his case. He was a stockbroker, not a soldier, and neither he nor his business had any connection with the armed forces. Even his alleged crime — embezzlement of funds from a client — was a violation of civilian, not military, law.
But nothing about Hawaii was normal in 1942. It had been under martial law since the Japanese attack on Pearl Harbor in December 1941. Its courts were closed and replaced with military tribunals. The rules governing everyday life were set not by an elected legislature but by the military governor. The army controlled every aspect of life in the islands, from criminal justice to parking zones and curbside trash removal.
White was brought before a military provost court. His attorney objected to the court’s jurisdiction, requested a jury trial, and asked for time to prepare a defense. But Major Murrell, the presiding military officer, rejected these motions. Instead, just five days after being arrested, White was tried without a jury, convicted, and sentenced to five years in prison.
As White’s story illustrates, martial law — a term that generally refers to the displacement of civilian authorities by the military — can be and has been employed in the United States. Indeed, federal and state officials have declared martial law at least, Yet the concept has never been well understood. The Constitution does not mention martial law, and no act of Congress defines it. The Supreme Court has addressed it on only a handful of occasions, and the Court’s reasoning in these decisions is inconsistent and vague. The precedents are also old: the most recent one — in which the Court overturned Harry White’s conviction — was decided almost 75 years ago.
This report aims to clear up the confusion that surrounds martial law. To do so, it draws on recent legal scholarship, the few rules that can be gleaned from Supreme Court precedent, and general principles of constitutional law. It concludes that under current law, the president lacks any authority to declare martial law. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. State officials do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.
Outside of these general principles, there are many questions that simply cannot be answered given the sparse and confusing legal precedent. Moreover, although lacking authority to replace civilian authorities with federal troops, the president has ample authority under current law to deploy troops to assist civilian law enforcement. Until Congress and state legislatures enact stricter and better-defined limits, the exact scope of martial law will remain unsettled, and the president’s ability to order domestic troop deployments short of martial law will be dangerously broad.
Special Considerations: States of Emergency
he 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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“Martial law” has no established definition. In the United States, however, the military’s domestic activities typically fall into one of three categories. First, the armed forces sometimes assist civilian authorities with “non–law enforcement” functions. For example, in the aftermath of Hurricane Katrina in 2005, the military deployed helicopters along the Gulf Coast to carry out search-and-rescue missions that local governments were unable to do themselves. Second, and far less frequently, the military assists civilian authorities with “law enforcement” activities. For example, state and federal troops were deployed to help police suppress the 1992 Los Angeles riots. Third, on some occasions, the military has taken the place of the civilian government. This is what happened in Hawaii during World War II.
Usually, but not always, the term “martial law” refers to the third category. It describes a power that, in an emergency, allows the military to push aside civilian authorities and exercise jurisdiction over the population of a particular area. Laws are enforced by soldiers rather than local police. Policy decisions are made by military officers rather than elected officials. People accused of crimes are brought before military tribunals rather than ordinary civilian courts. In short, the military is in charge.