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To: ransomnote
This isn't my own reasoning. When I heard Mike Flynn use the term, "limited Martial Law" I had to look it up because I'd never heard of it. It describes the process of the military conducting a fair election. I think I've assumed we all read this content before and this is what I have had in view since that time.

Tonight, I haven't searched far - I know Flynn's is/was on video talking about it, but I'll use some content he linked from his Twitter, which I believe has since been deleted. The content Flynn linked in his Tweet is still present on a 3rd party website and describes the same idea of "Limited Martial Law" that I'd heard/read Flynn talk about.

This is a definition from Black's Law Dictionary and a unanimous opinion from the U.S. Supreme Court.

There is no provision in the Constitution to impose martial law. There is a provision in Article I, under the powers of Congress, to revoke the privilege of the writ of habeas corpus; but not the issuance of the writ itself.

To understand what martial law is, I provide the definition from Black's Law Dictionary, 11th Ed.

martial law. (1933)

1. The law by which during wartime the army, instead of civil authority, governs the country because of a perceived need for military security or public safety. • The military assumes control purportedly until civil authority can be restored.

2. A body of firm, strictly enforced rules that are imposed because of a perception by the country’s rulers that civil government has failed, or might fail, to function. • Martial law is usu. imposed when the rulers foresee an invasion, insurrection, economic collapse, or other breakdown of the rulers’ desired social order.

“Martial law is the public law of necessity. Necessity calls it forth, necessity justifies its exercise, and necessity measures the extent and degree to which it may be employed. That necessity is no formal, artificial, legalistic concept but an actual and factual one: it is the necessity of taking action to safeguard the state against insurrection, riot, disorder, or public calamity. What constitutes necessity is a question of fact in each case.” Frederick B. Wiener, A Practical Manual of Martial Law 16 (1940).

“[T]he term ‘martial law’ carries no precise meaning. The Constitution does not refer to ‘martial law’ at all and no Act of Congress has defined the term. It has been employed in various ways by different people and at different times. By some it has been identified as ‘military law’ limited to members of, and those connected with, the armed forces. Others have said that the term does not imply a system of established rules but denotes simply some kind of day to day expression of a General’s will dictated by what he considers the imperious necessity of the moment. See U.S. v. Diekelman, 92 U.S. 520, 526, 23 L.Ed. 742. In 1857 the confusion as to the meaning of the phrase was so great that the Attorney General in an official opinion had this to say about it: ‘The Common Law authorities and commentators afford no clue to what martial law, as understood in England, really is. ... In this country it is still worse.’ 8 Op. Atty. Gen. 365, 367. What was true in 1857 remains true today.” Duncan v. Kahanamoku, 327 U.S. 304, 315, 66 S.Ct. 606, 611 (1946) (Black, J.).

absolute martial law. (1914) The execution of government functions entirely by military agencies, as a result of which the authority of civil agencies is superseded.

qualified martial law. (1903) The execution of government functions partly by military agencies, as a result of which the authority of some civil agencies is superseded.

3. The law by which the army in wartime governs foreign territory that it occupies.

4. Loosely, military law.

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (Unanimous 9-0)

Syllabus

1. Circuit Courts, as well as the judges thereof, are authorized, by the fourteenth section of the Judiciary Act, to issue the writ of habeas corpus for the purpose of inquiring into the cause of commitment, and they have jurisdiction, except in cases where the privilege of the writ is suspended, to hear and determine the question whether the party is entitled to be discharged.

2. The usual course of proceeding is for the court, on the application of the prisoner for a writ of habeas corpus, to issue the writ, and, on its return, to hear and dispose of the case; but where the cause of imprisonment is fully shown by the petition, the court may, without issuing the writ, consider and determine whether, upon the facts presented in the petition, the prisoner, if brought before the court, would be discharged.

3. When the Circuit Court renders a final judgment refusing to discharge the prisoner, he may bring the case here by writ of error, and, if the judges of the Circuit Court, being opposed in opinion, can render no judgment, he may have the point upon which the disagreement happens certified to this tribunal.

4. A petition for a writ of habeas corpus, duly presented, is the institution of a cause on behalf of the petitioner, and the allowance or refusal of the process, as well as the subsequent disposition of the prisoner is matter of law, and not of discretion.

5. A person arrested after the passage of the act of March 3d, 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases," and under the authority of said act, was entitled to his discharge if not indicted or presented by the grand jury convened at the first subsequent term of the Circuit or District Court of the United States for the District.

6. The omission to furnish a list of the persons arrested to the judges of the Circuit or District Court as provided in the said act did not impair the right of said person, if not indicted or presented, to his discharge.

7. Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.

8. The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

9. The Federal authority having been unopposed in the State of Indiana, and the Federal courts open for the trial of offences and the redress of grievances, the usages of war could not, under the Constitution, afford any sanction for the trial there of a citizen in civil life not connected with the military or naval service, by a military tribunal, for any offence whatever.

10. Cases arising in the land or naval forces, or in the militia in time of war or public danger, are excepted from the necessity of presentment or indictment by a grand jury, and the right of trial by jury in such cases is subject to the same exception.

11. Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.

12. A citizen not connected with the military service and a resident in a State where the courts are open and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.

13. Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course, and, on its return, the court decides whether the applicant is denied the right of proceeding any further.

14. A person who is a resident of a loyal State, where he was arrested, who was never resident in any State engaged in rebellion, nor connected with the military or naval service, cannot be regarded as a prisoner of war.

OPINION of the Court at 120-21:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times

71 U. S. 121

and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

OPINION of the Court at 71 U.S. 125-27

It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested

71 U. S. 126

in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.

It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late Rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them, and it is urged that this, in a military sense, constituted them the theater of military operations, and as, in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and, with

71 U. S. 127

it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.

It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal, and as there could be no wish to convict except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.

It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be "mere lawless violence."


1,848 posted on 01/18/2021 11:45:07 PM PST by woodpusher
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To: woodpusher

What then in a case of foreign subversion of the courts where the law cannot be applied, is not then martial law applicable in the detainment of traitors actively engaged in the overthrow of the Government by stifling the application of the rule of law?

While their rights as civilians in civil life affords them a jury of peers, is not their aiegence to the foreign enemy in its pursuit of the overthrow of the government strip them from the protections of citizenry?

Are they not enemy agents pursuing military gains not civilians pursuing civil ones?

Do not mistake me, I am fine with their detainment until they can be arrained under a civil authority for adjudication, however I would think in the present circumstances the first to be arrested for treason for judgement by the citizenry is the present judiciary who have refused to enforce the law at the bidding of their Chinese masters.


2,199 posted on 01/19/2021 9:13:46 AM PST by American in Israel (A wise man's heart directs him to the right, but the foolish mans heart directs him toward the left.)
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To: woodpusher

There’s also the Insurrection Act.


2,209 posted on 01/19/2021 9:19:10 AM PST by little jeremiah (Thirst for truth is the most valuable possession and no one can take it away from you.)
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