There have been a lot of whispers lately about a possible declaration of Martial Law as a way of responding to the coronavirus crisis in which we currently find ourselves immersed. In order to get in front of fake news or misconceptions about what this means, I thought it might be a good idea to talk a little about what to expect if we do see such a declaration. Knowledge is power, and martial law can be incredibly frightening if you don’t understand what it means. Camouflaged military vehicles and armed soldiers in urban camo fatigues patrolling the streets with military weaponry is NOT something most Americans are used to seeing, and without knowing what those things actually mean, there’s a good chance that panic could erupt into chaos.
This article is going to deal with martial law as it is defined and implemented in the United States only. If you live in another jurisdiction, the implications are probably similar, particularly if you live in a democracy, but many things may be different, especially with regard to powers of the governors of the individual states here in the U.S.
Martial law is simply some form of military control over all of a country’s activities, mostly with regard to law enforcement and peacekeeping, and only during wartime or due to an emergency or widespread disaster. Martial law can be absolute, or it can also be limited in nature or scope for example, to a particular state only, or even to a county or small area within a state. Per United States law, martial law for the entire country can only be ordered by the president as commander-in-chief and must be limited to the duration of the emergency. The president has the power to use either the U.S. military to enforce martial law, or to co-opt the National Guards of each state to take control.
In addition to a full declaration of martial law in the United States by the president, governors of each state can impose full or limited martial law in their jurisdictions by utilizing the Army National Guard and the Air National Guard troops under their command to take control of law enforcement duties within their states or a portion of their states.
The reason that a declaration of martial law is needed to deploy guard or military troops is because those forces are prohibited from taking any legal action on U.S. soil or against U.S. citizens by the Posse Comitatus Act of 1878. The Posse Comitatus Act was written into federal law expressly to limit the powers of the federal government to use federal troops to enforce domestic policies in the United States. Posse Comitatus applies specifically to just the U.S. Army and Air Force, which is why you see the Coast Guard, and sometimes even the U.S. Navy doing things like making arrests during drug interdiction and Customs enforcement along oceanic borders. There are some exceptions to Posse Comitatus such as the Enforcement Acts which were bills written to protect the rights of African Americans. Eisenhower used those exceptions to send federal troops into Little Rock, Arkansas to protect civil rights in 1957. A declaration of martial law in an emergency situation suspends Posse Comitatus during the time frame of the emergency.
If we see martial law here in this country, the main thing we’ll notice will be that military troops will take the place of police officers to enforce the law or to keep the peace. In most instances they will work alongside the officers, supplementing their forces, however, the civilian police officers will be subject to the orders of the military commanders in this case. They most likely will implement some sort of curfew or forced quarantine of the population as well. These things become legal, and, in fact, martial law is usually declared in order to make these things legal, because the very important thing that a martial law declaration does is suspend habeas corpus.
It is this suspension of habeas corpus that makes martial law such a daunting declaration. Habeas corpus is the basis of our rights against unlawful arrest and detention. It is in fact, one of the underlying cornerstones of our democracy and our constitution, and represents one of the fundamental rights that we recognize as American citizens. Habeas corpus is the writ of law that guarantees us protection against unlawful arrest and the right to contest that arrest in an impartial court of law. These guarantees are so important that the writers of the constitution limited the ability of the government to suspend them right in Article One, Section Nine, which reads,
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
So basically, if martial law is declared, in addition to military troops enforcing laws, they’ll also be able to arrest and detain people for pretty much any reason they want, and there will be no legal recourse like a court hearing or trial to dispute that arrest. So, yeah, declaring martial law is a pretty big deal.
Now, that’s not likely to be what happens in such a declaration. The troops are still accountable to their commanding officers, who are accountable to the governor, and military tribunals will still be convened to deal with any malfeasance, however, this suspension of habeas corpus is what allows them to enforce things like curfews or quarantines. With a state of martial law, civilian courts are shut down and military courts take over. This means that all citizens are subject to military law and can be tried in military courts. So, if you do see a martial law declaration you might want to get those shoes shined up, soldier.
Martial law has been declared several times in this country in the last hundred years:
West Virginia Coal Wars of 1920-1921. Governor Cornwell dispatched federal troops to deal with striking miners. This was a prime example of the suspension of habeas corpus as many striking union miners were arrested and jailed without any sort of trial or court order, and without having violated any written law.
In San Francisco, California in 1934, Governor Frank Merriam placed a very limited area of San Francisco under martial law, mostly relating to the area around the docks. This was in response to the riots resulting from a dock worker’s strike. The National Guard was used in this case, as opposed to federal troops.
In Hawaii, the state was held under martial law for almost three years following the Pearl Harbor attacks of December 7th, 1941. For those three years, Hawaii was effectively governed like enemy territory with the Army taking full control of all state government and law enforcement.
In Russell County, Alabama in July of 1954, Governor Persons declared limited martial law due to vast corruption by law enforcement officers in that county. The entire police force of the county, including the cities in that county were forced to stand down and the Alabama National Guard took over those duties. Major General Walter Hanna disarmed the citizenry, closed down illegal gambling establishments and businesses serving alcohol, and helped to bring about free elections, an establishment that had been corrupted for decades by the police force who were apparently all on the take from the illegal gambling rings.
So, will we see martial law declared during this coronavirus crisis?
I think the most likely scenario for a declaration of martial law would be the inability of police forces and emergency personnel to respond to developing scenarios. This could happen for a couple of reasons:
- The coronavirus could begin to spread through police or fire departments, cutting down on available manpower. This is a big possibility. As we all know by now, Covid-19 is highly contagious and spreads asymptomatically. If a single officer contracts the virus, he or she probably spreads that to others in his division, and those officers spread it on to still others. This could result in quarantine or isolation of huge chunks of these infected departments. We saw this in Kirkland, Washington, the epicenter of the virus in the United States. Twenty or more police officers and firefighters were quarantined for two weeks when a couple of them tested positive. We’re seeing it right now in other jurisdictions like NYPD, and in Washington D.C. where over 200 emergency personnel are currently being quarantined. If coronavirus begins to spread through large police and fire departments, the governors will have no choice but to begin sending in national guard troops to help out. This will be a limited declaration of martial law.
- If we start to see rioting and looting as this lockdown continues, and police forces are unable to keep up with peacekeeping, or they start to become overwhelmed with the additional responsibilities in enforcing quarantine/shelter-in-place orders in states that implement them. Currently, as of this writing, California and New York have issued such orders, and I expect we’ll see them in many more states, likely starting with Washington State and maybe Florida after that.
- If we start to see the health care system become overloaded and surge capacity of those systems is breached or ventilators become unavailable to people who need them. This will create panic, and guard troops may be needed to maintain order or to supplement security at existing and temporary hospitals. Presumably, the national guard medical units could also be called up to assist in providing care under a martial law declaration as well.
- With the borders being shut down completely as of today, there is a possibility that federal troops would be needed to supplement the Border Patrol and to help secure them. This would involve a limited federal declaration of martial law by President Trump.
I see a situation where one of these scenarios happens as quite likely to very likely. I do not foresee a total national declaration of martial law where U.S. Army troops are called in to enforce the peace, however, it seems very likely to me that governors will soon have no choice but to enforce at least limited martial law in sections of their states. It’s just impossible to stop this virus from spreading through emergency services personnel as they can’t be isolated and need to remain out in the public. When that happens, national guard troops are really the only recourse.
In conclusion, it might be a good idea to start doing some pushups and situps while you’re sitting at home. Those staff sergeants who are about to run our lives ain’t gonna put up with no slovenly behavior from the likes of you!