Martial Law

What is martial law? How does it differ from other states of emergency? These are questions on the minds of many in times of national emergency whether it’s 9/11 terror attacks, riots, or times of elevated threat levels. Here’s what you need to know about martial law, including why it isn’t likely to happen in times of national emergency unless certain conditions are met.

Martial law occurs when the military assumes police powers. Although the president usually imposes martial law, federal regulation allows for a state governor to do so if the circumstances demand immediate action.

Technical Definition Of Martial Law

Merriam-Webster defines martial law in two ways, the most relevant definition for our discussion here is this:

“…the law administered by military forces that is invoked by a government in an emergency when the civilian law enforcement agencies are unable to maintain public order and safety.”

The other definition (the one we’re not discussing here) applies to situations where the military has occupied a territory, most notably the American occupation of Japan in the aftermath of World War Two. There are other examples, but that is likely the best-understood version for most readers.

Practical Definition Of Martial Law

What do we mean by “practical definition”? Basically how the average person interprets the phrase and/or how the term is used to define a specific set of actions by the authorities that constitutes actual martial law.

Practically speaking, martial law is a situation where the governor of a state or the President of the United States places a military entity in control of the state or the country under a lawful order.

Depending on circumstances, the President has the authority to declare martial law on the federal level, but Congress may also. Some sources disagree, but remember that the definition of “martial law” is fairly open-ended.

State-Level Martial Law Authority

The governor of your state has the power to declare state-wide martial law. What does this mean? Let’s look at the laws of New York State as cited by NBC from Article I, Section 6 of the Consolidated Laws of New York:

“The governor shall have power, in case of invasion, disaster, insurrection, riot, breach of the peace, or imminent danger thereof, to order into the active service of the state.” Furthermore, this power “shall include the power to order the organized militia or any part thereof to function under the operational control of the United States army (sic), navy (sic) or air force (sic) commander in charge of the defense of any area within the state”

Can the Military be Used for Law Enforcement?

The short answer is a limited “yes”, the military can be used for law enforcement depending on the circumstances. The use of the military for civilian law enforcement can also be done without declaring martial law.

The Posse Comitatus Act of 1878 is (18 U.S.C. § 1385), latin for “power of the county” or “the force of the county, prohibits direct involvement of the U.S. Armed Forces in civilian law enforcement activities or the execution of civilian laws.

However, there are statutory exceptions (10 U.S.C. §§ 271-284 & 10 U.S.C. §§ 251) that permits the Department of Defense to provide federal, state and local police with information, equipment, and personnel. Therefore, governors and other local leaders can still request that the president dispatch federal troops to assist police during emergencies as long as they are supporting and not supplanting local law enforcement.

Examples of the use of these exceptions include:

• 1967 race riots in Detroit, Michigan
• 1968 Democratic Convention in Chicago
• 1992 race riots during the Rodney King trial in Los Angeles

The Posse Comitatus Act does not apply to the National Guard mobilized at the request of a state governor or the Coast Guard, which is not under the authority of the U.S. military during peace time. Congress can also expressly authorize the use of the military to execute civilian law.

The Insurrection Act (10 U.S.C. Section 251):

If there is an insurrection in a State, the President, at the request of the State’s legislature, or Governor if the legislature cannot be convened, may call National Guards of other States into Federal service as well as use the Federal military to suppress the insurrection…Whenever the President considers that unlawful obstructions, combinations, or assemblages or rebellion against authority of United States makes it impracticable to enforce the law of the United States in any State or territory by judicial proceedings, the President may call into Federal service the militia of any State and use the Federal military to enforce the laws or suppress the rebellion.

When Martial Law Has Been Used In America

Martial law was used on the state level notably following the attack on Pearl Harbor, Hawaii on Dec. 7, 1941. You read that correctly, martial law was not imposed on the entire country following Pearl Harbor. Hawaii endured martial law for three years after the attack.

Martial law was imposed following Hurricane Katrina using a Public Health Emergency declaration for the state of Louisiana. Other times America has experienced martial law include:

• Battle of New Orleans in 1815
• The Chicago Fire of 1871
• San Francisco earthquake of 1906
• Omaha race riot of 1919
• 1920 Lexington riots
• 1934 West Coast waterfront strike
• Pearl Harbor 1941
• Cambridge riot of 1963

Notably, martial law was NOT declared nationwide after the terrorist attacks of 9/11.

What Martial Law Is Not

Martial law is sometimes mistakenly pronounced or spelled as “marhsall law” which sounds vaguely like some kind of old west version of martial law.

Some confuse martial law (and “marshall law”) with The Marshall Plan, which was a recovery program for European countries in the wake of World War Two, but also had an “anti-communist” mission statement in addition to the economic assistance program. According to History.com, the Central Intelligence Agency received additional funding via the Marshall Plan, which saw its final year in 1952.

Martial Law And National Guard Troops

Invoking martial law may involve the use of National Guard troops on American soil, but the presence of National Guard troops DOES NOT equal the use of martial law. Just because you see uniforms, military equipment, and other indicators that a Guard unit is setting up operations near you DOES NOT mean martial law has been declared.

Martial law requires a formal declaration. Deploying troops to a hard-hit area does not mean that martial law is coming, that it’s being planned, or even thought about.

You Will Know If There Has Been A Declaration Of Martial Law

Declaration of martial law is a major step that is ordered to deal with a major problem. Declaration of martial law is not done in secret, requires specific steps, and would be a very transparent process simply because there will be an immediate demand for information, strategies, and logistical details.

Martial law cannot be done in secret because it’s too wide-reaching and affects too many different parts of the economy, industry, and military readiness.

Troubling Uses Of Martial Law In America 

Among the troubling chapters of American history, martial law was used by the Governor of Alabama in 1961 to suppress the Freedom Riders civil rights movement. What was the dangerous criminal activity Freedom Riders were responsible for?

Freedom Riders were those who took interstate bus trips into segregated areas to protest non-enforcement of Supreme Court rulings that found segregated bus service to be a violation of the Constitution.

Some southern states ignored these Supreme Court rulings; Governor John Malcom Patterson of Alabama issued a martial law order to prevent what Patterson derisively labeled “outside agitators” who came to the state to “violate our laws and customs.” Patterson’s name in this context lives in infamy in modern times as an obstacle to basic human rights.

Those with concerns about martial law should examine history; cases like the one above are as rare as the declaration of martial law itself. That said, it’s crucial to be mindful of how such power can be (and was) abused by those with personal agendas rather than a genuine desire to protect public law and order.

21st Century Legislation Affecting The Process Of Establishing Martial Law

In the 21st century, following the war on terrorism and other concerns, House Resolution 5122 was passed into law. The bill, titled the John Warner National Defense Authorization Act for Fiscal Year 2007 (which became Public Law 109-364) offering the sitting U.S. President power to declare martial law and command National Guard units of each state with or without the participation of state governors.

Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News