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.
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?
U.S. Const., Art. III, Sec. 3, Cl. 1
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Treason may only occur in a period of declared war, with an officially identified enemy, and specific proof is required by the Constitution. The Framers deliberately made a charge of treason very difficult as said charge had been absued by the king.
In Milligan, the unanimous Supreme Court was quite explicit, "Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction." I am unaware of anyplace where the courts are not open.
U.S. Const., Article 4, Sec. 4:
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
I am not aware of anyplace where the legislature cannot be convened.
U.S. Const, Art. 1, Sec. 8, Cl. 15:
The Congress shall have power... To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
The Constitution gives to Congress the power to provide for suppressing insurrections.
The most common place for martial law is within occupied foreign territory.
https://law.justia.com/cases/federal/district-courts/FSupp/48/40/2391641/
United States v. Minoru Yasui, 48 F. Supp. 40 (D. Or. 1942)
[excerpt at 46-47]
The classical definitions of various situations where ordinary civil law does not apply is given in the concurring opinion in Ex parte Milligan, as follows:"There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under Military Law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as Military *47 Government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated Martial Law Proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights."
[excerpt at 48-51]
A military commander under the *49 Constitution is given no power of legislation. It follows, therefore, in this case, that the regulations issued by his sole authority, even though it be established that the territory on the Pacific Coast of the United States has been invaded and is in imminent danger of invasion, confer upon the military commander no power to regulate the life and conduct of the ordinary citizen,[22] nor make that a crime which was not made a crime by any act of Congress. The Congress of the United States is in session and consists of the elective representatives of the people. To this body, therefore, alone is committed its ordinary power of passing laws which govern the conduct of citizens, even in time of war.It is true that martial law, when instituted, is complete and represents the arbitrary will of the commander,[23] controlled only by consideration of strategy, tactics and policy and subject only to the orders of the President. Under martial law the commander can seize men and hold them in confinement without trial. He can try them before a military commission for a violation of the laws of war or his own regulations. Finally, he can legislate and bind citizens and others by rules established by him and governing their conduct in the future.[24]
Whether declared by the President or by Congress or by the military commander or existing on account of conditions, the only basis for martial law is military necessity.[25]
There is a pernicious doctrine known as "partial martial law", which was developed by an ambitious governor as a method of dictating regulations to the people of a state uncontrolled by the Constitution or *50 laws thereof.[26] It constituted an expression of his arbitrary will. The long history within recent years of the use of arbitrary power in the guise of martial law by the executives of the states, sometimes upon the flimsiest pretext,[27] and occasionally, with the unjustifiable support of the judiciary, state[28] and federal, in subversion of the rights and personal liberty of the citizen, indicates that a fear that the state officials might in some future time attempt further violations is at least justifiable.
These perversions of martial rule used by governors of the states in industrial and social conflict to satisfy a personal need for uncontrolled power in given situations, wherein the civil rights of individuals were swept away by legislation or fiat dictated by an individual, indicate that in these trying days of war, limits must be set to military authority exercised in the name of necessity, lest we lose the liberties for which we fight.
"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." Ex parte Milligan, supra, 4 Wall. 126, 18 L. Ed. 281.
The doctrine that there can be a partial martial law, unproclaimed and unregulated except by the rule of the military commander, expressed in orders or regulations proclaimed by him and enforced in the civil courts in a territory within the continental limits of the United States and at the time not occupied by any foreign foe, belongs in the category of such perversions,[29] and cannot be justified by any sound theory of civil, constitutional or military law. Its only justification lies in the doctrines of "state of siege" proclaimed by military commanders, generally speaking, in the governments of Europe. For a state of the United States or any portion thereof to be placed, in any essential function, or for citizens of the United States to be placed with regard to their fundamental rights, subject to the will of the commander alone, however well designed for their protection, without any of the preliminaries above suggested,[30] up to the time when utter necessity requires the abolition of all civil rule for the preservation of the government, would seem to be a complete surrender of the guarantees of individual liberties confirmed in the Constitution of the United States.
The confusion in the authorities seems to arise in a failure to differentiate between a case where martial law is properly declared in civil disturbances[31] and a case where the military is called upon to aid the civil power. In the latter case no special attributes[32] should be ascribed either to the soldier or the commander. Ordinary civil law is enforced by a greater power.
"Thus, the war power of the federal government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties." Home Building & Loan Association *51 v. Blaisdell, supra, 290 U.S. 426, 54 S. Ct. 235, 78 L. Ed. 413, 88 A.L.R. 1481.