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.<\/p>\n\n\n\n
\u201cThe fear is certainly understandable, because as I\u2019m sure you know, martial law isn\u2019t described or confined or limited, proscribed in any way by the Constitution or laws,\u201d Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. \u201cIf someone has declared martial law, they\u2019re essentially saying that they are the law.\u201d<\/p>\n\n\n\n
In short, martial law can be imposed<\/a> 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 \u2014 of which there has been no shortage in 2020.<\/p>\n\n\n\n While no precise definition of martial law exists, a precedent for it exists wherein, \u201ccertain 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,\u201d according<\/a> to documents from JRANK, an online legal encyclopedia.<\/b><\/p>\n\n\n\n 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<\/a>, however, \u201ctheir actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.\u201d<\/p>\n\n\n\n \u201cNotorious examples include Franklin D. Roosevelt\u2019s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush\u2019s programs of warrantless wiretapping and torture after the 9\/11 terrorist attacks,\u201d the Atlantic reported<\/a>. \u201cAbraham 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.\u201d<\/p>\n\n\n\n Throughout the course of U.S. history, federal and state officials have declared martial law at least 68 times<\/a>, according to Joseph Nunn, an expert with the Brennan Center for Justice.<\/p>\n\n\n\n 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<\/a>.<\/p>\n\n\n\n One exception to Posse Comitatus, however, is the Insurrection Act, which allows the use of active-duty or National Guard troops<\/a> for federal law enforcement in cases when \u201crebellion 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,\u201d according to U.S. Northern Command<\/a>.<\/p>\n\n\n\n The text of the Act reads:<\/p>\n\n\n\n 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.<\/p>\n\n<\/blockquote>\n\n\n\n\n\n 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.<\/p>\n\n\n\n \u201cGovernors call the National Guard all the time to respond to a storms or power outages, delivering medical supplies, stuff going on even during COVID,\u201d Banks said. \u201cThat\u2019s 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.\u201d<\/p>\n\n\n\n \u201cThe 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,\u201d Banks noted.<\/p>\n\n\n\n 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 \u201cmust first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. \u00a7 334.4. If the situation does not resolve itself, the President may issue an executive order to send in troops,\u201d according to a 2006 Congressional Research Service<\/a> report.<\/p>\n\n\n\n \u201cOne of the important things to remember about the Insurrection Act is that it\u2019s not martial law,\u201d Banks said. \u201cThe purpose of utilizing the mechanisms of insurrection act is to enforce the law, not replace it.\u201d<\/p>\n\n\n\n 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.<\/p>\n\n\n\n \u201cIf 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,\u201d Trump said in a White House statement<\/a> on June 1 \u2014 just before he posed for a photo opportunity outside Washington, D.C.\u2019s St. John\u2019s Church with a bible amid an entourage, which included Joint Chiefs of Staff Chairman Gen. Mark Milley.<\/p>\n\n\n\n Milley publicly apologized<\/a> for his appearance in Trump\u2019s walk across Lafayette Square to pose for photos in front of a church partially burned during protests.<\/p>\n\n\n\n \u201cMy presence in that moment and in that environment created a perception of the military involved in domestic politics,\u201d Milley said. \u201cAs a commissioned uniformed officer, it was a mistake that I have learned from, and I sincerely hope we all can learn from it.\u201d<\/p>\n\n\n\n But while the Insurrection Act is law, the fact that martial law is not codified lands its use in a distinctly grey legal area.<\/p>\n\n\n\n \u201cOne of the problems, of course, is that there\u2019s nothing to prevent the president or a military commander from declaring martial law,\u201d Banks noted. \u201cThey can just do it. It\u2019s not sanctioned by law.\u201d<\/p>\n\n\n\n Banks noted that the civilian in charge of the military \u2014 in this case, Defense Secretary Mark Esper \u2014 is the key to ensuring the military is kept out of the 2020 elections.<\/p>\n\n\n\n \u201cSecretary Esper is in a in a really critical role here,\u201d Banks noted.<\/p>\n\n\n\n Esper addressed this in a memo to the force<\/a>.<\/p>\n\n\n\n \u201cAs citizens, we exercise our right to vote and participate in government,\u201d he wrote. \u201dHowever, as public servants who have taken an oath to defend these principles, we uphold DoD\u2019s longstanding tradition of remaining apolitical as we carry out our official responsibilities.\u201d<\/p>\n\n\n\n Milley too feels strongly about the necessity of keeping the U.S. military out of politics and the election.<\/p>\n\n\n\n \u201cWe don\u2019t swear an oath of allegiance to an individual, a king, a queen, a president or anything else,\u201d he said in an interview with NPR<\/a>. \u201cWe don\u2019t swear an oath of allegiance to a country, for that matter. We don\u2019t 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.\u201d<\/p>\n\n\n\n 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.<\/p>\n\n\n\n \u201cA really important limitation in the event that there is martial law is that it\u2019s highly unlikely to be tolerated in a situation where our civilian institutions are working,\u201d Banks noted. \u201cMartial law requires a complete meltdown. It requires the inability of our civilian institutions to manage government. It\u2019s hard to imagine that.\u201d<\/p>\n\n\n\nHow does it work?<\/h2>\n\n\n\n
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Should we be worried?<\/h2>\n\n\n\n