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[igotthisguitar]

Martial Law in a Nutshell--15 Questions

Mary Maxwell, Ph.D | November 10 2005

1. Q: Is it likely that martial law is imminent in the U.S.?
A: Yes. The way has been partially cleared for it legally by the Homeland Security Act, that 'grandfathered in' the whole of a secret 1979 executive order dealing with emergency rule. One legal hurdle to martial law still remains, namely, the Posse Comitatus Act of 1878, which explicitly forbids soldiers to participate in domestic law enforcement. However, Congress could easily annul the Posse Comitatus Act, and is being pressured by the attorney general and the Pentagon to do just that.

2. Q: What is martial law?
A: In popular usage, martial law means that some or all civil liberties are suspended. For example, there could be a curfew, which would prevent people from exercising their normal liberty to walk around after 9 p.m. Legally, martial 'law' means that military commanders are assigned to carry out law and order among civilians. Hence, soldiers can determine what the rules are, can arrest civilians for breaking them, and can subject them to summary justice. A person could not turn to the courts for help.

3. Q: Have any democratic countries experienced martial law?
A: Yes, many. For example, Prime Minister Trudeau of Canada declared martial law over Montreal in 1970 in response to kidnappings by Quebec separatists. In the Philippines, martial law under President Marcos lasted from 1972 to 1981. Greece endured 'the rule of the Colonels' from 1967 to 1974.

4. Q: At the moment, while the Posse Comitatus Act is still in effect, does it offer good protection?
A: No. Posse Comitatus was substantially weakened by amendments in 1981 and 1991 that gave the Defense Department a role in the enforcement of drug laws. Since then, many American cities have acquired joint task forces composed of military and local police (who can be temporarily deputized as federal officers). A drug dealer, or an innocent person, may have his door broken down--legally--and his home entered by soldiers and police with guns drawn.

5. Q: What does the Constitution of the U.S. say about martial law?
A: The term 'martial law' never appears in the Constitution. However, the idea of it is conveyed in two sections of Article I as follows: Section 8 says The Congress shall have the Power . . . (15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. Section 9 (2) says The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety will require it.

6. Q: Does the Constitution tell us which branch of government has the right to declare martial law?

A: Yes, the legislative branch has the right. Currently, there are 'White House radicals,' particularly in the Office of Legal Counsel to the President, advocating the position that the Constitution can be interpreted to support almost unlimited executive power. However, even they must acknowledge that the above-quoted sections (Sections 8 and 9) appear in Article I of the Constitution, which is the article that allocates specific powers to the legislature! Indisputably, this means that Congress can suspend our right to habeas corpus. One looks in vain for any similar authority for the president. Article II, which lays out the prerogatives of the executive branch, is silent on these matters.

7. Q: Has martial law ever been declared in the U.S.?
A: Yes. President Lincoln declared it during the Civil War. but this was overruled by the Supreme Court, after the war ended, in the case of Ex Parte Mulligan (1866). Mr. Mulligan was a civilian in Indiana who was allegedly aiding the enemy, i.e., the Confederacy. He was arrested and tried by the military. The Supreme Court ruled that there was no justification for martial law since the ordinary courts had functioned throughout the Civil War, and thus Mr. Mulligan should not have been deprived of his right to habeas corpus. One of the Justices said, "No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people . . ."

8. Q: Then what about Jose Padilla, who has been held in a military brig since 2001, uncharged, even though he is an American civilian? Isn't the deprivation of his rights a grave matter?

A: Not according to the US Court of Appeals, which has taken the pro-executive position that the president requires scope to fight the war on terror.

(Note: the Latin 'habeas corpus' literally means "Produce the body" i.e., bring the accused before a judge.)

9. Q: Will we ever see Army tanks roll onto the streets in our country?
A: This has already happened. Tanks rolled out in Los Angeles during the Watts riots in 1965. It happened again in that city in 1992, when rioting followed the verdict of 'not guilty' in the case of four white police officers who had severely beaten an African-American, Rodney King.

10. Q: Is it likely that race riots will be the thing that triggers martial law?
A: In many countries, ethnic minority repression leads to outbursts that are quelled by military force. Since Americans are conditioned to see racial conflict as a frightening possibility, our government may be able to 'sell' the idea of martial law. An alternative scenario, which cannot be ruled out, is that someone would kidnap or assassinate a high official of the American government with an eye to bringing about martial law.

11. Q: What is the first assignment for soldiers when martial law is declared?
A: If the actual intent of the government is to establish illegitimate dictatorial rule, one of the first things it must do is remove oppositional leaders and popular figures--be they poets, physicians, priests, or judges. When General Augusto Pinochet seized power in Chile in 1973, his soldiers immediately arrested hundreds of dissidents and corralled them in a stadium. They were subsequently tortured and many were 'disappeared.' Now, three decades later, technological advances such as stun guns and remote-control pain delivery make it even easier to arrest huge groups of people.

12. Q: Is it conceivable that mercenaries would be used domestically?
A: It is more than conceivable; it has already happened. Following Hurricane Katrina, the Blackwater USA (and perhaps other mercenary units) were assigned to duty in Louisiana by the Federal Emergency Management Agency (FEMA).

13. Q: Where does FEMA get its authority?
A: As above mentioned, the Homeland Security Act established it legislatively. Section 502 of that act says: " . . . there shall be transferred to the Secretary [of the new Homeland Security Department] the functions, personnel, assets, and liabilities of . . . the Federal Emergency Management Agency."

14. Q: Didn't FEMA have an unsavory history during the Reagan administration when it helped to run a secret government inside the White House, doing deals that became known as the Iran-Contra affair?

A: Yes.

15. Q: How is it that the controversial powers of FEMA did not get resolved in the past 20 years?

A: Perhaps because there have been too many distractions. Fortunately for us, however, Professor Harold Koh, Dean of Law at Yale, provides excellent recommendations for reform in his 1990 book The National Security Constitution. Koh calls for a return to the proper balance of power among the three branches of government, even in times when foreign crises -- or domestic terrorism -- work to unbalance those powers.

[igotthisguitar]

Bush Calls For PERMANENT Expansion Of Spy Law
By DEB RIECHMANN, Associated Press Writer

FORT MEADE, Md. - President Bush said Wednesday he wants Congress to expand and make permanent a law that "temporarily" gives the government more power to eavesdrop without warrants on "suspected" foreign terrorists.

Without such action, Bush said, " ... our national security professionals will lose critical tools they need to protect our country."



"It will be harder to figure out what our enemies are doing to train, recruit and infiltrate operatives into America," the president said during a visit to the super-secret National Security Agency's headquarters. "Without these tools, our country will be much more vulnerable to attack."

The Foreign Intelligence Surveillance Act governs when the government must obtain warrants for eavesdropping from a secret intelligence court. This year's update � approved just before Congress' August break � allows more efficient interceptions of foreign communications.

Under the new law, the government can eavesdrop without a court order on communications conducted by a person reasonably believed to be outside the U.S., even if an American is on one end of the conversation � so long as that American is not the intended focus or target of the surveillance.

In requesting the change, the Bush administration said technological advances in communications ... had created a dire gap in the ability to collect intelligence on "terrorists".

Such surveillance generally was prohibited under the original law if the wiretap was conducted inside the U.S., unless a court approved it. Because of changes in technology, many more foreign communications now flow through the U.S. The new law, known as the Protect America Act, allows those to be tapped without a court order.

Civil liberties groups and many Democrats say the new changes go too far. Democratic leaders in Congress set the law to expire in six months so that it could be fine-tuned; that process now is beginning on Capitol Hill.

Democrats hope for changes that would provide additional oversight when the government eavesdrops on U.S. residents communicating with overseas parties.

Sen. Jay Rockefeller, chairman of the Senate Intelligence Committee, said lawmakers understand the need to update the law, but also the need to protect the rights and liberties of Americans.

"For over five years, the president carried out a warrantless surveillance program that ignored the law and the role of court oversight," Rockefeller said. "Today, the president continues to seek unchecked surveillance powers that many of us in Congress cannot support. The fact is, the Protect America Act did provide authority for collection, but it did not include sufficient protections for Americans. There's no reason we can't do both," Rockefeller said.

"The president needs to step up to the plate and show that he is willing to work with Congress to get this important legislation passed."

Bush timed his visit to Fort Meade to press his case.

"The threat from al-Qaida is not going to expire in 135 days," he said, "so I call on Congress to make the Protect America Act permanent."

He also urged lawmakers to expand the law, not restrict it.

One provision particularly important to the administration, but opposed by many Democrats, would grant retroactive immunity to telecommunications companies which may have helped the government conduct surveillance before January 2007 without a court order.

Bush was joined at the podium in an NSA hallway by Vice President Dick Cheney, National Intelligence Director Mike McConnell and others.

The president received private briefings from intelligence officials and mingled with employees in the National Threat Operations Center. While cameras and reporters were in the room, the large video screens that lined the walls displayed unclassified information on computer crime and signal intelligence.

Along one wall at NSA is a sign that says, "We won't back down. We never have. We never will."

[Dome Vans]

America seems to be going the same way as the Soviet Union. America is going to collapse under it's own ideology and paranoia. Hegemonic status comes and goes. America is on the down slope and is trying all it can to maintain it. Problem is it's not going to happen. Then we'll have China telling us how they defeated America for decades to come. Like the Cold war but different players.

[Dome Vans]

[igotthisguitar]

[keane]

It has only gotten worse since then with the new presidential and homeland security orders giving the president control of all three branches of government.

[Dome Vans]

I find it funny that the pro americans stay away from certain threads like this. Maybe it's a little bit too truthful for them and they wouldn't have a leg to stand on.

[Junkyardninja]

- I am not a particularly skilled debater, and I tend to be very reluctant to get involved in threads of this nature, but in the absence of other dissenting voices I felt compelled to post.

There is a natural human impulse to desire the downfall of the powerful or the impoverishment of the wealthy. The largest man in a small room is frequently the least popular. There is an equally natural but more insidious desire to automatically associate wealth or power with oppression and evil, a kind of reflexive assumption that no powerful entity can be other than malevolent.

This effect seems to be especially pronounced with regards to the U.S, and is not, of course, helped much by recent foreign policy.

Dome Vans has asserted that America's ideology will cause it to crumble. I agree that the health of a nation is inextricably linked to the underlying ideologies commonly held to by its people. I believe, though, that the underlying idea of America itself, as expressed very clearly in the constitution, bill of rights, and, in my opinion, most importantly the declaration of independence, is just, moral, and held to by the vast majority of Americans.

Eight years of an administration and one war do not the character of a nation make.

We have survived a bloody war which created us, the burning of our capitol by an invading power, a fratricidal carnage from which we still have scars, a paralyzing depression, and not one but two world-engulfing wars.

That, of course, is just rhetoric, and, I'm afraid, not terribly good rhetoric. The best argument against your vitriol is time. I am content to let a few decades argue for me. When I am old, God willing, my country will still be strong, and much more importantly, free.

[igotthisguitar]

Destruction By Design

[keane]

[Ya-ta Boy]

This is just more hysteria from the flakes. Boosh's call for an extention is just a) an exercise in futility while the Democrats have control of Congress and b) an attempt to whip up the paranoia of his constituents. It worked during the McCarthy Era of the early 50's and when his paranoid xenophobe GOPpers were in control of Congress, but it won't work now.

[keane]

[Joo Rip Gwa Rhhee]

The US justice system is not up to fighting Al Qaeda.

The Patriot act doesn't go far enough.

The sooner the US has a national ID card the better.

[Pluto]

[igotthisguitar]