How The President Could Invoke Martial Law

Military Times – by Sarah Sicard, October 23, 2020

Throughout 2020, America has faced a global pandemic, civil unrest after the death of George Floyd and a contentious election. As a result, an influx of fear about the possibility of the invocation of martial law or unchecked military intervention is circulating around the internet among scholars and civilians alike.

“The fear is certainly understandable, because as I’m sure you know, martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws,” Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. “If someone has declared martial law, they’re essentially saying that they are the law.” 

What is ‘martial law’

In short, martial law can be imposed when civil rule fails, temporarily being replaced with military authority in a time of crisis. Though rare, there have been a number of notable U.S. cases where martial law came into play, including in times of war, natural disaster and civic dispute — of which there has been no shortage in 2020.

While no precise definition of martial law exists, a precedent for it exists wherein, “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,” according to documents from JRANK, an online legal encyclopedia.

Martial law may be declared by both the president and by Congress. State officials may also declare martial law, according to 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 reported. “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.”

Throughout the course of U.S. history, federal and state officials have declared martial law at least 68 times, according to Joseph Nunn, an expert with the Brennan Center for Justice.

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