First, in 1792, President Washington received express authority from Congress to call out the militia to quell domestic disturbances.(56) This law addressed two types of disturbances: (1) insurrection against the government of a state (where a state legislature, or the governor if the legislature was not in session, had applied for assistance, incorporating the provisions of Article IV, Section 4); or (2) the obstruction of the execution of federal laws. These provisions, as amended, still exist at 10 U.S.C. 331-33.
It is technically true that statutory authority to use the national armed forces to quell domestic disturbances did not exist until 1807:
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 prerequisites of the law in that respect.(57)
However, since it is obvious that the Constitution expressly provides for such use of U.S. military forces -- and the Constitution trumps any statute -- obviously the Congress' failure to expressly provide for such use of military forces before 1807 was an oversight.(58)
Statutory Exceptions
Besides this evident Constitutional exception to the Posse Comitatus Act, a number of statutes expressly provide for the use of U.S. military personnel and equipment. Even by 1903, Congress had recognized the need for strong executive action, having enacted 20 statutes which authorized deployment of "the land and naval forces of the United States" for law enforcement purposes.(59) Thanks to Congress, this number had nearly doubled by 1995, including the statutes which were identified above.(60)
For example, U.S. military units may, as a matter of course, "provide to Federal, State, or local civilian law enforcement officials any information collected during the normal course of military training or operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials."(61) Not only is such information to be provided, requests for information should be solicited. "The needs of civilian law enforcement officials for information shall, to the maximum extent practicable, be taken into account in the planning and execution of military training or operations."(62)
Also, the Secretary of Defense may "make available any equipment (including associated supplies or spare parts), base facility, or research facility of the Department of Defense to any Federal, State, or local civilian law enforcement official for law enforcement purposes."(63) He may also "make Department of Defense personnel available to train Federal, State, and local civilian law enforcement officials in the operation and maintenance of equipment, including equipment made available under section 372 of this title; and to provide such law enforcement officials with expert advice."(64) The Secretary of Defense may make military personnel available for the maintenance and operation of equipment for Federal, State, and local civilian law enforcement officials, including equipment made available under section 372 of this title.(65) Your administration has already made effective use of military personnel and equipment in the Waco incidents by means of these provisions.
For example, active duty military personnel trained agents of the Bureau of Alcohol, Tobacco and Firearms ("BATF") before the attempt to serve warrants at Waco.(66) The military assistance to BATF from active duty and National Guard units was based upon allegations (later discovered to be unsubstantiated) of an active methamphetamine lab in the Davidian compound.(67) This assistance included surveillance overflights, training by Special Forces soldiers, and direct support by Texas National Guard personnel providing an aerial diversion during the raid.(68)
After the raid, active duty military personnel provided services to the FBI in support of the FBI's activities during the standoff.(69) Some Special Forces personnel were dressed in civilian clothes while at or near the Branch Davidian residence.(70)
Texas National Guard forces provided 10 Bradley Fighting Vehicles, 4 M728 Combat Engineering Vehicles ("CEV"), 2 M1A1 Abrams Tanks, and 1 M88 Tank Retriever.(71) These vehicles were effectively employed, demonstrating the value of military/civilian collaboration. The Bradleys were used by FBI agents to fire projectiles containing CS agent into the residence.(72) The CEVs were used to ram holes into the residence and insert CS agent.(73) National Guard troops assisted the FBI in refilling the CEVs with the CS agent.(74)
As the day progressed, the FBI began to use the CEVs to "deconstruct" the Branch Davidian residence, using them to ram into the corners and sides of the building, creating large openings in the building. At one point, part of the rear roof collapsed after once CEV made multiple entries into the side of the building.(75)
Support vehicles and equipment (e.g., tents, generators, concertina wire) were also provided by the Defense Department to the FBI.(76)
IV. Martial Law
Given the almost limitless authority these precedents provide you to use military forces for civilian law enforcement purposes within the United States however, it hardly seems necessary to address the nature of martial law.(77) Additionally, the precedents in this area are less well established -- apparently, there have been only two occasions where a president has formally declared martial law, both by President Lincoln.(78) On September 24, 1862, President Lincoln declared disloyal persons throughout the United States subject to martial law. He later placed the Commonwealth of Kentucky under martial law on July 5, 1864.(79)
Nevertheless, to give complete coverage to the issues which you raised, we present the following analysis.
While no federal statutes appear to define martial law, one section of the Code of Federal Regulations ("CFR") -- 32 CFR 501.4(80) -- makes four points about martial law:
First, federal troops are normally deployed domestically without a declaration of martial law.(81) "It is unlikely that situations requiring the commitment of Federal Armed Forces will necessitate the declaration of martial law."
Second, the "law of necessity" undergirds the implementation of martial law. "When Federal Armed Forces are committed in the event of civil disturbances, their proper role is to support, not supplant, civil authority. Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time."
Third, declarations of martial law are not limited to the President. "In most instances the decision to impose martial law is made by the President, who normally announces his decision by a proclamation, which usually contains his instructions concerning its exercise and any limitations thereon. However, the decision to impose martial law may be made by the local commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from higher authority (Sec. 501.2). Whether or not a proclamation exists, it is incumbent upon commanders concerned to weigh every proposed action against the threat to public order and safety it is designed to meet, in order that the necessity therefor may be ascertained."
Fourth, the rules of conduct for citizens are merely announced by the military and are immediately effective. "When Federal Armed Forces have been committed in an objective area in a martial law situation, the population of the affected area will be informed of the rules of conduct and other restrictive measures the military is authorized to enforce. These will normally be announced by proclamation or order and will be given the widest possible publicity by all available media. Federal Armed Forces ordinarily will exercise police powers previously inoperative in the affected area, restore and maintain order, insure the essential mechanics of distribution, transportation, and communication, and initiate necessary relief measures.
Another section of the Code of Federal Regulations, 32 CFR 501.1(c), discusses military arrests:
Persons not normally subject to military law taken into custody by the military forces incident to the use of Armed Forces, as contemplated by this part, will be turned over, as soon as possible, to the civil authorities. The Army will not operate temporary confinement/detention facilities unless local facilities under the control of city, county, and State governments and the U.S. Department of Justice cannot accommodate the number of persons apprehended or detained. Further, this authority may be exercised only in the event Federal Armed Forces have been committed under the provisions of this part and only with the prior approval of the Department of the Army. When the requirement exists for the Army to operate such facilities, the provisions of Army confinement regulations will apply to the maximum extent feasible under the circumstances.
The termination of the deployment of federal troops to address civil disturbances within the United States are addressed at 32 CFR 501.6:
The use of Federal Armed Forces for civil disturbance operations should end as soon as the necessity therefor ceases and the normal civil processes can be restored. Determination of the end of the necessity will be made by the Department of the Army. [Emphasis added.]
A. Judicial Review of Martial Law
Only two U.S. Supreme Court cases have been found which appear to constrain presidential powers under martial law. However, with Congress' deference toward presidential use of military power against rebellious elements within the United States, the effect of these cases is questionable. In light of the fact that virtually any objective you may have could be efficiently achieved without resort to a declaration of martial law, we would advise against any such action as needlessly provoking citizens and legal purists.(82)
Ex parte Milligan
The U.S. Supreme Court helped define the proper scope and application of martial law in Ex parte Milligan, 71 U.S. 2 (1866). Milligan, a citizen of Indiana, was arrested by federal troops and found guilty -- by a military court -- of conspiracy against the government of the United States, affording aid and comfort to rebels, inciting insurrection, disloyal practices, and violation of the laws of war. Milligan presumably became subject to military judicial process under President Lincoln's declaration of martial law of September 24, 1862. Milligan was sentenced to death.(83) He filed a writ of habeas corpus in federal court, seeking release from military custody.(84)
Counsel for the military argued that Milligan's treatment was legal "under the 'laws and usages of war.'"(85) Disagreeing, the Court held that:
It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.(86)
The Court continued:
It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.
If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish.(87)
The writ of habeas corpus was issued.(88)
Duncan v. Kahanamoku
The only other treatment of the topic of martial law by the U.S. Supreme Court came as a result of the declaration of martial law in Hawaii during World War II. Duncan v. Kahanamoku, 327 U.S. 304 (1946), arose out of the declaration of martial law in Hawaii (before it became a state) by its governor on December 7, 1941, pursuant to the federal statute organizing Hawaii as a territory ("the Organic Act"). On December 8, the Commanding General prohibited both civil and criminal courts from summoning jurors and witnesses or trying cases. The Commanding General established military tribunals to take the place of the courts.(89)
Duncan was a civilian shipfitter employed in the Navy Yard at Honolulu. On February 24, 1944, he engaged in a brawl with two armed Marine sentries at the yard. By the time of his arrest, the military had authorized civilian courts to "exercise their normal functions." However, only military tribunals were to try "Criminal Prosecutions for violations of military orders." Duncan was charged with violating one of these orders, which prohibited assault on military or naval personnel with intent to resist or hinder them in the discharge of their duty. He was therefore tried by a military tribunal rather than the Territorial Court, although the general laws of Hawaii made assault a crime. A conviction followed and Duncan was sentenced to six months imprisonment.(90)
Duncan filed a writ of habeas corpus in federal district court. The court issued an order to the military authorities to show cause why Duncan should not be released. In response, the military argued "that the writ of habeas corpus had ... properly been suspended and martial law had validly been established in accordance with the provisions of the Organic Act; that consequently the District Court did not have jurisdiction to issue the writ; and that the trials of petitioners by military tribunals pursuant to orders by the Military Governor issued because of military necessity were valid." The District Court then held its own trial, found that the courts had always been able to function but for the military orders closing them, and that consequently there was no military necessity for the trial of petitioners by military tribunals rather than regular courts. It accordingly held the trials void and ordered the release of the petitioners. The federal court of appeals reversed, holding the military trials to be valid.(91)
As to the nature of martial law, the U.S. Supreme Court stated that:
the 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. 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.' What was true in 1857 remains true today.(92)
The Court examined whether Congress had intended to "give the armed forces power to supplant all civilian laws and to substitute military for judicial trials" when it, by statute, gave the governor of Hawaii the power to declare martial law. It concluded that "both the language of the Organic Act and its legislative history fail to indicate that the scope of 'martial law' in Hawaii includes the supplanting of courts by military tribunals."(93) The Court then asked:
Have the principles and practices developed during the birth and growth of our political institutions been such as to persuade us that Congress intended that loyal civilians in loyal territory should have their daily conduct governed by military orders substituted for criminal laws, and that such civilians should be tried and punished by military tribunals? Let us examine what those principles and practices have been, with respect to the position of civilian government and the courts and compare that with the standing of military tribunals throughout our history.
People of many ages and countries have feared and unflinchingly opposed the kind of subordination of executive, legislative and judicial authorities to complete military rule which according to the government Congress has authorized here. In this country that fear has become part of our cultural and political institutions.(94)
The Court concluded:
Our system of government clearly is the antithesis of total military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from an enemy. They were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws. Their philosophy has been the people's throughout our history. For that reason we have maintained legislatures chosen by citizens or their representatives and courts and juries to try those who violate legislative enactments. We have always been especially concerned about the potential evils of summary criminal trials and have guarded against them by provisions embodied in the constitution itself. Legislatures and courts are not merely cherished American institutions; they are indispensable to our government.
Military tribunals have no such standing. For as this Court has said before: '... the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.'(95)
The writ of habeas corpus was issued.
It is important to observe that both rulings were issued well after the crisis had passed. Were any challenge to your actions to reach the Court during a time of emergency, the Court's extreme deference to forceful executive action would likely be exercised.(96)
B. Military Analysis of Martial Law
A military analyst, of the 1920s, Major Cassius Dowell, addressed the nature of martial law in his work, Military Aid to the Civil Power. First, he observes that the term is a misnomer -- the true definition is where "the State or National government, through its military forces, controls the civil population without authority of written law, as necessity may require."(97) Major Dowell states that martial law should be distinguished from circumstances where the military is employed under statute; for in the latter circumstances the military "is not called out to supersede civil authority but to maintain or restore it."(98) He adds that martial law:
is not part of the Constitution, but is rather a power to preserve the Constitution when constitutional methods prove inadequate to that end. It is the law of necessity. Manifestly it cannot be instituted at the caprice of an executive or a military commander. It cannot, strictly speaking, be created by declaration. As has been said by good authority, it proclaims itself. A declaration of martial law is an announcement of fact rather than the creation of that fact.(99)
Major Dowell observes that:
Martial law is not an absolute power. It is the will of the general who commands the army, but the occasion and justification for its employment, like the exercise of the right of self-defense by an individual, is necessity. It may not be permitted to serve as a pretext for license or disorder on the part of the military, and acts of undue violence or oppression committed in its name will, by the laws of war, be visited with extreme punishment.(100)
Thus, if there is to be a declaration of martial law, a full and convincing explanation of the necessity undergirding the action should be part of the proclamation.
Incidentally, the proposed plan to appoint a military commander to oversee deployments of the U.S. military within the United States is another positive step in the organized use of military resources in the struggle to ensure domestic tranquility into the 21st century.(101)
CONCLUSION
A presidential declaration of martial law has not been a necessary predicate to the deployment of federal troops to control unruly and insurrectionist elements within the United States. In light of this history, and these favorable precedents, it appears to be absurdly unlikely that the U.S. Congress or federal judiciary would ever make any determined effort to limit your broad statutory powers to use the military to take such measures as you consider necessary for the public good.
APPENDIX
The Arming of Federal Bureaucrats
If you have any qualms about the use of military forces within the United States or in the event that necessary U.S. military forces are unavailable or reluctant to participate, you enjoy other resources generally not available to your predecessors. Current estimates are that there are 80,000 armed employees in the Executive Branch -- an increase of 20,000 over 1996!(102)
The power to carry firearms has been granted, by statute, to:
the Treasury Department's Inspector General for Tax Administration (5 U.S.C. 8D);
designated employees of the Office of Inspector General of the Department of Agriculture (7 U.S.C. 2270);
designated employees of the Department of Agriculture engaged in animal quarantine activities (7 U.S.C. 2274);
Immigration and Naturalization Service employees (8 U.S.C. 1357);
civilian employees of the Department of Defense (10 U.S.C. 1585);
members of the Park Police (16 U.S.C. 1a-6);
designated employees of the Forest Service (16 U.S.C. 559c);
designated employees of the Department of Agriculture or Department of the Interior (16 U.S.C. 670j);
designated employees of the Tennessee Valley Authority (16 U.S.C. 831c-3);
designated employees of the Department of the Interior, Department of Transportation, or the Department of the Treasury (16 U.S.C. 3375);
employees of the Bureau of Prisons (18 U.S.C. 3050);
employees of the Federal Bureau of Investigation (18 U.S.C. 3052);
United States marshals (18 U.S.C. 3053); Postal inspectors (18 U.S.C. 3061);
"law enforcement" personnel of the Environmental Protection Agency (18 U.S.C. 3063);
federal pretrial services officers (18 U.S.C. 3154);
federal probation officers (18 U.S.C. 3603);
officers of the United States Customs Service (19 U.S.C. 1589a);
designated employees of the Department of Health and Human Services (21 U.S.C. 372);
employees of the Drug Enforcement Agency (21 U.S.C. 878);
designated special agents of the Department of State (22 U.S.C. 2709);
law enforcement employees of the Bureau of Indian Affairs (25 U.S.C. 2803);
officers of the Bureau of Alcohol, Tobacco and Firearms (26 U.S.C. 7608);
the Marshal of the Supreme Court and the Supreme Court police (40 U.S.C. 13n);
designated employees of the General Services Administration (40 U.S.C. 318d);
employees, contractors, and subcontractors of the Atomic Energy Commission (42 U.S.C. 2201); contractors and subcontractors of the United States Enrichment Corporation (42 U.S.C. 2297h-5);
designated employees, contractors, and subcontractors of the National Aeronautics and Space Administration (42 U.S.C. 2456);
designated employees, contractors, and subcontractors of the Department of Energy (42 U.S.C. 7270a);
federal law enforcement personnel with responsibilities respecting the public lands (43 U.S.C. 1733);
personnel with air transportation security responsibilities (49 U.S.C. 44903);
designated Central Intelligence Agency personnel (50 U.S.C. 403f); and
designated employees of the Office of Export Enforcement of the Department of Commerce (50 U.S.C. App. 2411).
As highlighted above, several of these statutes not only authorize federal employees to carry firearms, but also extend this authority to federal contractors and subcontractors. This elastic concept could be useful.
Again, however, there has been some effort to publicize this issue by politicians motivated by personal animus. For example, in 1997 Rep. Ron Paul (R-TX) observed that:
Under the constitution, there was never meant to be a federal police force. Even an FBI limited only to investigations was not accepted until this century. Yet today, fueled by the federal government's misdirected war on drugs, radical environmentalism, and the aggressive behavior of the nanny state, we have witnessed the massive buildup of a virtual army of armed regulators prowling the States where they have no legal authority. The sacrifice of individual responsibility and the concept of local government by the majority of American citizens has permitted the army of bureaucrats to thrive.(103)
Of course, the loyalty of these dedicated public servants to the policies of your administration should make them a valuable resource, whatever the future may hold.
AUTHORS’ POSTSCRIPT
It would be difficult for most Americans in 1999 to imagine any president’s use of the military against U.S. citizens — if it had not already happened innumerable times in the history of our country. No president, even one with the highest moral character, should be entrusted with such plenary powers, as have been exercised by presidents in the past. As Senator Daniel Hastings once said of a statutory authority being given to Franklin Roosevelt, it was:
more power than any good man should want, and more power than any other kind of man ought to have.