The imposition of martial law in the United States

Air Force Law Review, Spring, 2000 by Kirk L. Davies

KIRK L. DAVIES [*]

"Necessity hath no law. Feigned necessities, imaginary necessities... are the greatest cozenage that men can put upon the Providence of God, and make pretenses to break known rules by." [1]

I. MARTIAL LAW: THREAT AND RESPONSE

Imagine the following frightening scenario: Members of an American militia group enter a major metropolitan airport and attach small aerosol-like devices in several restrooms throughout the concourse. These devices release deadly amounts of smallpox bacteria into the air, infecting hundreds of Americans travelling through the airport. Within days, citizens around the country begin to display the horrific symptoms of smallpox. [2] Public health workers soon determine the nature of the epidemic and release the information to the press. Widespread panic results. Civilian public health agencies attempt to educate the public on how to control the spread of the disease. But despite police efforts to control the populace by establishing quarantine areas, the civilian infrastructure is quickly overwhelmed. Chaos results. Finally, the President declares martial law in an attempt to restore order in the nation.

This unwelcome scenario is but one example of a crisis that could quickly rip apart America's social structure. [3] Even though civilian disaster relief and law enforcement agencies regularly prepare for emergencies, Americans as individuals and as a society are woefully unprepared to face this kind of serious disaster. [4] Michael Osterholm, State Epidemiologist for the Minnesota Department of Health, and Chair of the Committee on Public Health and the Public and Scientific Affairs Board, is an outspoken advocate of developing a national emergency preparedness program for biological attack. He recently stated:

Several of my colleagues and I have tried to walk though these [disaster] scenarios time and time again. We've looked at them as we would handle any other public health disaster, as we've done in the past. Unfortunately, each and every time, given the resources we have now, given the kinds of authorities we have now, we come down to basically complete chaos and panic. In many instances, the only thing that would probably prevail is martial law. I don't think this country has yet prepared to realize that we may face that in the future. [5]

Given the relative easy availability of biological and chemical weapons, and considering the number of groups [6] who would conceivably use such weapons, it is not difficult to imagine a disaster scenario in which the President would feel compelled to restore order by imposing martial law.

The term "martial law" has an ominous ring to it, especially in a country founded upon notions of civil liberties and individual rights. Considering our national predilection for demanding "our rights," and in view of the constitutional separation of powers, a President who imposed martial law would almost certainly face strong political and legal opposition. Even if our population faced a severe disaster, like the one described above, it is quite predictable that many Americans would rebel against a President who took such drastic action, despite the President's good intentions.

It seems axiomatic that the President, as the chief executive, would have authority to respond to national emergencies without any specific authorization from Congress. The extent to which the President may constitutionally or lawfully employ military force to react to an internal, national crisis is not at all clear. The Constitution does not explicitly grant any emergency powers to the President. Perhaps the clause that requires the President to "take Care that the Laws be faithfully executed ..." [7] could be interpreted to allow the President some authority to respond to national emergencies or crises. But relying only on that authority to employ military force to impose martial law is problematic since the Constitution grants Congress the authority to "call[] forth the Militia to execute the Laws of the Union..." [8]

The tendency in recent years has been for the President and Congress to direct the military into more and more operations that are traditionally civilian in nature. [9] Several factors could combine to continue this trend. First, the threats against national security have become more complicated and diverse. [10] Second, the political leaders view the military as possessing critical expertise for responding to the varied threats previously mentioned. [11] Third, the military is the only governmental organization whose members are not only trained to do dangerous jobs, but who, can also be ordered into life-threatening situations. [12] Finally, if federal funds remain limited, Congress. and the President will probably want to capitalize on the money they have already spent on military training, rather than expend additional dollars on civilian training and supplies.

The trend to grant the President more statutory authority to regularly involve the military in civilian law enforcement and disaster relief roles creates serious risks for the military and the nation. For purposes of this article, the risk inherent in this slow, but steady, move is that it may push the military closer to fulfilling a role that our founding fathers did not envision. A significant offshoot of this trend is whether Congress has so altered the role of the military that they have granted the chief executive implied authority to act in response to severe emergency crises, even in the absence of specific authorization from either the Constitution or the United States Congress. If so, the leap to a lawfully imposed condition of martial law is not so far as otherwise imagined.