Note: Neither the writer of this story nor The USA Herald takes a position on the use of martial law. We neither endorse nor condemn it. This piece is simply an examination of the law.
As the Supreme Court has decided to take a backseat to the latest election challenge, and with time running out, many supporters of President Donald Trump have called for martial law.
Most notable among them was former national security advisor Michael Flynn who retweeted a full-page ad that ran in The Washington Times that said it was necessary to avoid a real Civil War.
“We wanted to express our concerns to the President, to the legislators, courts, and Congress that We the People will NOT cede our exclusive Constitutional right to elect our Representatives to judges, lawyers, courts, Governors, Secretary’s of State, Congress, corrupt election officials and local politicians, the corrupt media – or Leftist threats of violence! It is OUR EXCLUSIVE RIGHT to elect our President and that sacred right has been infringed by the massive, planned, illegal election fraud conducted by corrupt Democrat/Socialist Party operatives across our nation to steal our vote. We will NOT stand for it,” Tom Zawistowski, President of the TEA Party affiliated We the People Convention said.
But what is martial law and can the president declare it to stay in power??
To put it simply, martial law is the suspension of the constitution and a take over by the military of policing, courts, and many aspects of daily life are run by the armed forces.
It notably happened in Hawaii in 1942 after the attack on Pearl Harbor where even trash pickup was handled by the military.
The thing that can be frightening about it is that there are no constraints on martial law by the Constitution, which does not really touch on it much.
Martial Law can be called when a civilian rule fails, something that could have, and many people believe should have, happened during the months-long nationwide race riots.
In fact, there is no precise definition of martial law, which is described by JRANK as a time when “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus [the right to a trial before imprisonment] may be suspended.”
It has been declared 68 times either locally or federally in the United States but the law is murky on the reasons needed for the president to declare it and what it would mean if he did.
Some believe that there are no time limits to it and no real definition of the reason or reasons for which it can be called.
That leads to the conspiracy theory and nightmare scenario where if the president were to call for it and the military was to go along with it, not a given, it would be seen by some as tantamount to a military coup.
Those conspiracy theorists believe that, if taken to the extreme, it could relegate the United States into a dictatorship where the president never cedes control and even passes the presidency to one of his children.
This is nonsense as there are some limits on it. The Brennan Center for Justice, however, “their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.”
“Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks,” the Atlantic said. “Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.”
The Posse Comitatus Act passed on June 18, 1878, prevents the military from engaging in civil law enforcement, but the exception came with The Insurrection Act.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect,” it says.
Here is how the president could declare it. You may have noticed in the news recently that protests for and against President Trump have turned into fights bordering on riots.
A 2006 Congressional Research Service report the president “must first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. § 334.4. If the situation does not resolve itself, the President may issue an executive order to send in troops.”
But that is not martial law. The thing about martial law is there are no guidelines to when the president or military can declare it, they just can.
“One of the problems, of course, is that there’s nothing to prevent the president or a military commander from declaring martial law,” Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. “They can just do it. It’s not sanctioned by law.”
Banks believes that martial law would not be tolerated by top military officials in peacetime when civil institutions are working, but looking at the fact that President Trump has appointed Corey Lewandowski and David Bossie to top positions in the Pentagon begs the question of why?
Bossie has supported the idea of martial law and if the president has people running the Pentagon supporting it, who knows where that could lead.
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