What is martial law? And how the president could invoke one?

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what is a martial law, how the president could invoke martial law
What is a martial law?And how the president could invoke a martial law? Picture: Military Times

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.

How does it work?

Martial law does have limits. The Posse Comitatus Act, passed on June 18, 1878, prevented federal troops from supervising Confederate state elections during Reconstruction. Though initially it only applied to the Army, it has been amended to include the Defense Department and, of course, the other service branches. That act prevents troops from enforcing domestic law, preventing such actions as searching and seizing property or dispersing crowds. However, National Guard units, which take their direction from state governors, are exempt from the Posse Comitatus Act.

One exception to Posse Comitatus, however, is the Insurrection Act, which allows the use of active-duty or National Guard troops for federal law enforcement in cases when “rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings,” according to U.S. Northern Command.

The text of the Act reads:

“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.”

But activating the National Guard even under federal Title 32 status, in which the federal government helps pay for Guard troops under state control, does not fall under the Insurrection Act, nor does it equate to martial law in ordinary circumstances.

“Governors call the National Guard all the time to respond to a storms or power outages, delivering medical supplies, stuff going on even during COVID,” Banks said. “That’s not extraordinary, nor would it be if the President federalized the National Guard for similar reasons, responding to a need to disseminate vaccines next winter, for example, would be perfectly appropriate, lawful, not martial law.”

Should we be worried?

“The sort of hellish scenarios that some people talk about is one where the president orders or regular military armed forces the United States to take over cities that he believes are engaged in an unlawful election, disruption or protests in the wake of an unresolved presidential election in the days after November 3,” Banks noted.

Though purely a hypothetical, Banks notes that the way it would happen would be through the Insurrection Act. In order to invoke the Insurrection Act, 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,” according to a 2006 Congressional Research Service report.

“One of the important things to remember about the Insurrection Act is that it’s not martial law,” Banks said. “The purpose of utilizing the mechanisms of insurrection act is to enforce the law, not replace it.”

In June, at the height of the protests surrounding the death of a Black man named George Floyd at the hands of a white Minnesota police officer, President Donald Trump alluded to the Insurrection Act as a means of calling up active duty troops to quell civil unrest as protest erupted across the country.

“If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them,” Trump said in a White House statement on June 1 — just before he posed for a photo opportunity outside Washington, D.C.’s St. John’s Church with a bible amid an entourage, which included Joint Chiefs of Staff Chairman Gen. Mark Milley.

Milley publicly apologized for his appearance in Trump’s walk across Lafayette Square to pose for photos in front of a church partially burned during protests.

“My presence in that moment and in that environment created a perception of the military involved in domestic politics,” Milley said. “As a commissioned uniformed officer, it was a mistake that I have learned from, and I sincerely hope we all can learn from it.”

But while the Insurrection Act is law, the fact that martial law is not codified lands its use in a distinctly grey legal area.

“One of the problems, of course, is that there’s nothing to prevent the president or a military commander from declaring martial law,” Banks noted. “They can just do it. It’s not sanctioned by law.”

Banks noted that the civilian in charge of the military — in this case, Defense Secretary Mark Esper — is the key to ensuring the military is kept out of the 2020 elections.

“Secretary Esper is in a in a really critical role here,” Banks noted.

Esper addressed this in a memo to the force.

“As citizens, we exercise our right to vote and participate in government,” he wrote. “However, as public servants who have taken an oath to defend these principles, we uphold DoD’s longstanding tradition of remaining apolitical as we carry out our official responsibilities.”

Milley too feels strongly about the necessity of keeping the U.S. military out of politics and the election.

“We don’t swear an oath of allegiance to an individual, a king, a queen, a president or anything else,” he said in an interview with NPR. “We don’t swear an oath of allegiance to a country, for that matter. We don’t swear an oath of allegiance to a flag, a tribe, a religion or any of that. We swear an oath to an idea, or a set of ideas and values, that are embedded in our Constitution.”

As a result of these comments, Banks is optimistic that the worst case election scenario in the event of disputed election results might just be lawsuits in certain states where the outcomes are murky.

“A really important limitation in the event that there is martial law is that it’s highly unlikely to be tolerated in a situation where our civilian institutions are working,” Banks noted. “Martial law requires a complete meltdown. It requires the inability of our civilian institutions to manage government. It’s hard to imagine that.”

More on Military Times, Strange Sounds and Steve Quayle.

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12 COMMENTS

  1. We are already under martial law. The “Covid Lockdowns” are the equivalent of martial law under a medical tyranny.

  2. “While no precise definition of martial law exists;” Clearly this author needs to return to school for not only grammar but vocabulary as well.

    Definition of martial law

    1 : the law applied in occupied territory by the military authority of the occupying power
    2 : the law administered by military forces that is invoked by a government in an emergency when the civilian law enforcement agencies are unable to maintain public order and safety

  3. Why Are Some Iranian Conservatives Cheering For Trump?

    Those involved in politics in Iran have different views as to the best outcome in the United States presidential election. Many fed up with Iran’s political deadlock and punishing US sanctions hope victory for the Democratic Party’s Joe Biden would reduce international tensions and improve Iran’s economy.

    A second group says there is little difference between Iran policies of the two candidates, and that Iranians should look for reforms at home to improve their plight. But a third group is comprised of conservatives who favor a second term for President Donald Trump, says a report published on October 30 by Fararu website.

    Mohammad Sadeq Javadi-Hesar, a reformist analyst and leading member of the National Trust Party, tells Fararu that those cheering for Trump victory either already benefit politically from the current situation or think they would gain from persistent US pressures on Iran. Javadi-Hesar says that there may be even powerful individuals who see Trump’s re-election as benefiting their financial interests through continuing sanctions and economic crisis.

    Javadi-Hesar suggests that a re-elected Trump administration would doom Iran’s reform movement, while Biden’s election would make it difficult for Iranian conservatives to win the presidency in the June 2021 election. But the view that Trump weakens their political rivals, Javadi-Hesar argues, is held not just by Iran’s ultra-conservatives but by those Iranians living abroad who hope that a Trump victory would lead to the end of the Islamic Republic.

  4. We interrupt this program with a special bulletin: America is now under martial law! All Constitutional Rights have been suspended!. Stay in your homes! Do not attempt to contact loved ones, insurance agents or attorneys! Shut up! –Do not attempt to think or depression may occur! Stay in your homes! – Curfew is at 7 PM sharp after work! Anyone caught outside the gates of their subdivision sectors after curfew Will. Be. Shot. Remain calm, do not panic. Your neighborhood watch officer will be by to collect urine samples in the morning! Anyone caught interfering with the collection of urine samples Will. Be. Shot. Houses will be inspected for Trace Elements at Noon! Anyone who fails to display the required black velvet painting of president [Hunter Biden ] on their living room wall Will. Be. Shot. Cameras and Surveillance Equipment will be posted on ALL lampposts and streetlights! Anyone failing to attend required worship services on Sunday will be promptly arrested and dispatched to a re-education resort! Stay in your homes, remain calm! The number one enemy of progress is questions! National security is more important than individual will! All sports broadcasts will proceed as normal. No more than two people may gather anywhere without permission! Use only the drugs prescribed by your boss or supervisor! Shut up, be happy! Obey all orders! without question! -The comfort you demanded is now mandatory. Be happy! At last, everything is done for you. – Jello Biafra.

  5. sorry, Lyrics to ‘Shut Up be happy!’ are by Jello Biafra of the Dead Kennedys.
    I changed President Quayle to Hunter [S.] Biden.

  6. This is all pretty straight forward.
    There has been a criminal takeover of the Democrat party and many of the republican offices as well. They implanted subversives into local state and national positions.
    They have sold their allegiance to foreign interests.
    The average American is a “leave me alone”ist not philosophically committed.
    The criminal cartel believed that America was conquered when it had not awoken.
    Now that more and more people are waking up the same cartel is trying to bait the Americans into destroying what the cartel see’s as subhuman chattle.
    After all history is pock marked with incidences of regular Americans ending targeted groups.Chester PA 1917, Tulsa OK 1926, Farrel OH 1968, Hopkinsville KY 1968-1970 are examples where the left had organized large groups of people then triggered mass slaughter.
    MLK saw that there was a different path as well as Malcon X before CIA Greg Benjamin had him killed. Watch the film of MLK’s death Jackson ducked before the shot.
    Wallace & Johnson tricked the black community into thinking he was going to help them as every Democrat has done for 50 years.
    What have they done ?
    War on poverty is a war on the poor.
    While dumbass people are worried about the military they completely overlook the fact that 240 million US citizens are armed 170 Million are trained with 310 million weapons without the military armories.
    If the insurrection act is called military it will protect the innocent.
    If the theft and criminal left continue on their current course , America will very quickly (25 min) eliminate all of the criminal assets in control and within two hours remove the trash from our country.

    So worrying about martial law is like worrying about a bowl of ice cream in comparison to what will happen if this election is stolen.
    Look around you the poles and the media are false.
    75,000 people in Miami show up for a social media organized Trump event, every campaign stop is packed with Americans, the left can not muster 200 at Obamas last show even when media announces it for three weeks.

    Understand the criminality is blatant and only this election is providing the left with safe exit, afterwards there will be no quarter.

  7. I was in Many Martial Law , It was used much different now of course. We used give soldiers flowers and Pepsi coffee hand maid etc..Now if you do they will shut you?

    Second night of looting breaks out in Philadelphia amid BLM protests over fatal police shooting of Walter Wallace, car rams NYPD officers and mother of black man who died fleeing cops in Washington DC is maced by officers

    Karon Hylton, 20, died on Monday while being chased on his Revel scooter by police in the nation’s capital
    Walter Wallace, 27, who was said to be armed with a knife, was killed Monday when Philadelphia cops shot him
    Pictures and footage from Philadelphia and Washington Tuesday showed continued unrest over the deaths
    Images from Philadelphia shows stores in the city being ransacked by looters and of police confrontations
    Windows were smashed by protesters at a police station in DC; other footage shows tear gas deployed
    A woman identified as Hylton’s mom appears to have been maced by officers during the protests
    In New York City, footage appeared to show a car driving through a line of cops in Brooklyn
    In Portland demonstrators held a vigil for Wallace and gathered outside City Commissioner Dan Ryan’s house.
    I warn all people of world , Still world is shaking in mass revolutions and rumors of wars , tensions are daily getting in much we can not take it any more. Second Full
    moon of OCT 31-2020 arrives soon and in one sentence , i said it before gates of hell is opened up for humanity. Election chaos followed mass emotional political religious clashes in USA and Canada. Major Quakes for ring of fire , West coast of USA to East coast of USA and whole ring of fire will get unleashed soon. Martial Law will be called for USA and Canada also will continue copy same thing. When
    brother kills brothers and sister kills sisters, This is not our USA at all any more.
    Followed by volcanoes , meteors still comes closer to earth, Typhoons , Hurricanes,Fires still burning, USA will get weak and China, Cuba, Russia can always attack USA with EMP and we all go to chaos in North America. There is
    soon zero hours to prepare foods get them now you have been warned by full spectrum survival and Jason A and others. Education , Awareness, Prevention.
    End of American dream as you know it?
    civil war also for mask is very funny and baseless? Other wise new shut down is in progress in Europe and middle east and Asia. Please see movie FLU is korean made 2013? It was Avian Flu H5N1 influenza ? https://www.youtube.com/watch?v=1BvKZMg2LjU

    • Come to Miami be loved escape the hate that surrounds you.
      Americans are reaching out to all who will join us and respect us what you quoted here is a criminal cabal in the throws of death.
      The guy in Chester park attacked the police officer with a knife.
      The story of mace I do not know about.
      In every instance around the country the truth is always distorted by a corrupt press. The guy up north was complaining about breathing before he was put into the car he died of fentanyl.
      In every instance but the mace I know the story has been distorted to cause strife, wake up the inciter is the enemy.

  8. When they take your rights they relieve you of all responsibilities. Military members will quickly find this is not a war they are use too. Their families will not be ten thousand miles away and will be legitimate targets.

    • Most of the left think that this purge will be drawn out.
      It will be less than a few days and the left will be gone understand that when all of the people used compromised communication they are identified and targeted.

  9. 5 Rights You’ll Lose Under Martial Law, and 1 You’ll Still Have?
    Martial law is a concept usually discussed with derision and fear among preppers, and with good reason. Any declaration of martial law in the United States is an obvious symptom that something bad has happened, perhaps something society-alteringly bad.

    Visions of people being dragged out of their homes, held without cause or warrant, random checkpoints and equally random searches abound. All this won’t be done by police officers but instead by uniformed soldiers operating out of camouflaged armored vehicles.

    It is a genuinely scary prospect because it strikes at the heart of what guarantees our inborn rights as Americans: the Constitution and the Bill of Rights.

    But is it true? Would our military, are uniformed protectors, actually trample on our rights as citizens? Would you and I and everyone we know see our constitutional rights discarded under martial law?

    It’s sad to say, but in a grave enough situation, yes, yes we probably would. The only real question is just how bad it would be.

    In this article, we’ll discuss what martial law actually is, what you can expect to lose as far as your rights are concerned, and what rights, maybe, you’ll get to keep for the duration.
    Martial Law Defined

    Martial law entails a lot of changes to the status quo of law and order over U.S. citizens, but in recent years it has taken on an almost mythical status in the minds of some people, becoming a sort of boogeyman.

    When martial law is declared over a region of the US or even over the entire country, what it means simply that the military has assumed control of law enforcement and keeping order over civilian populations in lieu of local government and typical police.

    Martial law is declared at the federal level by the President of the United States, and at the state level, within the confines of the state, by the state’s governor.

    Stated plainly, the military will be in charge of your area, your state or even the entire country, lock, stock and smoking gun barrels. It is commonly thought that the mass deployment of military forces, including the National Guard, to an area means that martial law has been enacted.

    This is not the case. Domestic abuse and employment of military troops is a common occurrence for disaster relief and every time that the state’s interest needs a lot of extra manpower. It does not mean martial law has been declared or is in effect.

    These more pedestrian military deployments do not entail the suspension of any civil rights even though the police and other state powers may have the rule of law on their side for forcing evacuation.

    The most important distinction is that under martial law the ranking military officer in command of the force on the ground will become the head of civilian government for the duration.

    Martial law is declared only rarely in the US compared to other places around the world, but you should expect to see it enacted, if only on a local level, whenever our government wants to ensure the “safety”, stability and good order of a populace in the aftermath of a severe disaster or some majorly threatening event like foreign invasion.

    We may also see it declared on a smaller or larger scale if serious anti-government agitation and civil unrest goes un-quelled and a city for a length of time or when it turns actively violent towards the government.

    You can bet your bottom dollar that any attempt to overthrow or destabilize the legitimate government will see martial law enacted instantly.
    New Sheriff in Town: Martial Law and You

    When martial law is in effect, civilians live under military law and military enforcement of that law. That means that any crimes and violations will be tried in military court as military legal proceedings.

    This is an important distinction you must understand. Perhaps most vitally, habeas corpus will be suspended. Habeas corpus is a right requiring a person under arrest to be brought before a judge or into a courtroom if they feel they’ve been unlawfully detained, i.e. is a civic requirement for a court of law to determine that a person’s detainment is lawful.

    Most sobering, the suspension of habeas corpus means that, at least in theory, U.S. citizens may be detained with no explanation for why, and no recourse through a typical court of law in opposition of it.

    You could be tossed in a military holding cell and left there, flapping in the breeze indefinitely under martial law.

    The good news doesn’t stop there, however. Here are some other rights on the Bill of Rights you can expect to be pencil out while living under martial law. Wave goodbye to:

    1st Amendment – Freedom of Speech, Assembly and the Press
    2nd Amendment – Right to Bear Arms
    3rd Amendment – Freedom from Housing Soldiers
    4th Amendment – Protection from Unreasonable Search and Seizure
    5th Amendment – Protection to Life, Liberty and Property

    You should absolutely expect your freedom of speech as well as freedom of the press to be harshly curtailed under martial law, especially if it’s the reason for in the first place.

    Citizens agitating against their government or publishing politically-charged media that may “inflame” the crisis will be stopped. Likewise any fresh ill sentiment against your newly-minted military overlords will be similarly put down.

    And don’t even think about gathering in public or in large groups organizing for any particular purpose; there’s a surefire way to make your rulers nervous.

    You can also expect door-to-door searches to search for and seize firearms. Small arms in the hands of citizenry have long been a check and major thorn in the side of people who are trying to exert control over a populace.
    Thanks a lot Strange Sounds we did want put similar story here you read our minds. Second night of chaos in Philly and around USA riots looters.We are lost it as a nation.

    • When the president said “stand down and standby” during the debate it was an order to the American people. While the left is convinced that their leaders are truthful in their desire to help them they are increasingly pushing evil intent.
      The whole warning about military action is an example, the military is the best option for the left at this point, order will prevail and America will be a free nation the brainwashed children and the lost in drugs and leftist philosophies are a tiny minority of damaged people. Their voice has been amplified and heard but the evil that swims freely amongst the left is profound. Americans are not against the people only the evil.
      The evocation of traditional martial law is only likely if the left gains the power to invoke it.
      If you look clearly you can see that sheepdogs (police firefighters and professional law enforcement ) are an have been totally supported and in league with Americans.
      You will also notice that epigenetic strengthening of all of the sheepdogs is taking place men and women who are protectors are becoming stronger and healthier every day.
      If you look at the reaction to the press trying to malign a fraternity of beer drinking Americans the “Proud Boys” you can clearly see that Just in Florida 250,000 new members signed up. While the artificially created Bougalou Boys is being exposed as nothing more than an Antifa False Flag. When you look at the swath of destruction organized and funded by known Nazi collaborators and Marxists you see an end to America but when you see the aftermath of a Trump rally you understand that America is just waking up streets are trash free parking lots are swept and facilities are clean when the crowd leaves.
      The quest ion is are YOU standing by or are you declining.

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