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Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It

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tags: authoritarianism, Donald Trump, martial law



On August 20, 1942, military police in Honolulu, Hawaii, arrested a man named Harry White. Under normal circumstances, the U.S. military would not have been involved in his case. He was a stockbroker, not a soldier, and neither he nor his business had any connection with the armed forces. Even his alleged crime — embezzlement of funds from a client — was a violation of civilian, not military, law.

But nothing about Hawaii was normal in 1942. It had been under martial law since the Japanese attack on Pearl Harbor in December 1941. Its courts were closed and replaced with military tribunals. The rules governing everyday life were set not by an elected legislature but by the military governor. The army controlled every aspect of life in the islands, from criminal justice to parking zones and curbside trash removal.

White was brought before a military provost court. His attorney objected to the court’s jurisdiction, requested a jury trial, and asked for time to prepare a defense. But Major Murrell, the presiding military officer, rejected these motions. Instead, just five days after being arrested, White was tried without a jury, convicted, and sentenced to five years in prison.

As White’s story illustrates, martial law — a term that generally refers to the displacement of civilian authorities by the military — can be and has been employed in the United States. Indeed, federal and state officials have declared martial law at least 68 times over the course of U.S. history. Yet the concept has never been well understood. The Constitution does not mention martial law, and no act of Congress defines it. The Supreme Court has addressed it on only a handful of occasions, and the Court’s reasoning in these decisions is inconsistent and vague. The precedents are also old: the most recent one — in which the Court overturned Harry White’s conviction — was decided almost 75 years ago.

This report aims to clear up the confusion that surrounds martial law. To do so, it draws on recent legal scholarship, the few rules that can be gleaned from Supreme Court precedent, and general principles of constitutional law. It concludes that under current law, the president lacks any authority to declare martial law. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. State officials do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.

 

Read entire article at Brennan Center

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