Post by Watchman on Nov 17, 2005 13:36:39 GMT -5
If the pandemic comes, will martial law follow?
Rohn K. Robbins
Bird flu. Those may be words we come to dread. Or maybe not. It all depends upon whether the H2N1 virus mutates such that it can be transmitted from person to person and, if it does, when.
But even if the H2N1 never becomes the problem that it might, inevitably, something will. And when it does - whatever "it" might be - and a pandemic begins to circle the globe with deadly speed, what steps might nations take - our own included - to stanch the deadly tide?
One aspect of control no doubt will be quarantine. But while "quarantine" has a benign, antiseptic ring to it, the reality might well be considerably more insidious. In order to quell the spread of this or another killer virus, could the wheels of government grind towards the imposition of martial law and, if so, how will it manifest itself and what, precisely, will it mean? While the concept may seem farfetched to some, a quick primer here may, in fact, prove helpful.
Exactly what is martial law and why might the spread of a killer strain of flu - H2N1 or some other - one day invoke it?
Martial law is, strictly speaking, the suspension of civil law and, in its place, the imposition of military authority. While not explicitly provided for in the Constitution, suspension of habeas corpus is mentioned in Article 1, Section 9, and the activation of the militia in time of rebellion or invasion is mentioned in Article 1, Section 8.
"Habeas corpus" means, literally, "you have the body." The primary function of a writ (a formal order issued from a court requiring the performance of a specific act) of habeas corpus is to bring a person before the court in order to convince it that the a person is being held for a valid reason and that her/she is being detained of his/her liberty by the exercise of due process. Accordingly, suspension of habeas corpus means a person may be held without charge.
It is the extinction of the right of due process before a person may be maintained in confinement. Article 1, Section 9 states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it." It is the "public safety" reference we should focus on.
When a region or a country is "under martial law," it means, in its strictest form, that the military is in control of the area; it acts as the police, as the courts, as the legislature. The degree of control might vary, for example, a nation may retain a civilian legislature but have the courts administered by the military, or the legislature and courts may operate under civilian control with a military ruler.
It has been often argued that only Congress can declare martial law, because Congress alone is granted the power to suspend the writ. The President, however, is commander-in-chief of the military, and, thus, it has been argued to the contrary that the President can take it upon himself to declare martial law. In times of national crises, Congress may decide not to act, effectively accepting martial law by failing to stop it; Congress may agree to the declaration, putting the official stamp of approval on the declaration; or it can reject the President's imposition of martial law, which could set up a power struggle between the Congress and the Executive that only the Judiciary would be able to resolve.
In the United States, there is precedent for martial law. Several times in the course of our history, martial law of varying degrees has been declared. The most obvious and often-cited example was when President Lincoln declared martial law during the Civil War.
In September of 1863, Lincoln imposed Congressionally-authorized martial law. The authorizing act allowed the President to suspend habeas corpus throughout the entire United States. Lincoln imposed the suspension on "prisoners of war, spies, or aiders and abettors of the enemy," as well as on other classes of people, such as draft dodgers.
The President's proclamation was challenged in the United States Supreme Court case of ex parte Milligan. Lambden Milligan, for whom the case is named, was arrested in Indiana as a Confederate sympathizer. Indiana, like the rest of the United States, was part of a military district set up to help conduct the war. Milligan was tried by military commission and sentenced to die. After his conviction, Milligan petitioned the Circuit Court for habeas corpus, arguing that his arrest, trial, and conviction were all unconstitutional.
What the Supreme Court had to decide, it said, was whether the military commission had the legal power and authority to try and punish. While, ultimately, the Court said "no," observing that "Martial law ... destroys every guarantee of the Constitution," it also observed that the President may declare martial law when circumstances warrant.
There have been several instances throughout our history where martial law has been declared, including in the 1914 Coal Field Wars in Colorado.
There, President Woodrow Wilson sent in federal troops in to Ludlow, Colorado (now a ghost town in Las Animas County) in order to gain control of striking miners and the violence their protests fostered.
Most recently, in the wake of Hurricane Katrina, New Orleans was placed under martial law. While the state of Louisiana does not have an actual legal construct called "martial law," it, instead has something quite like it; a state of public health emergency, which, clearly, has direct and recent parallels to what might occur were bird flu or some other deadly virus to sweep the nation.
There have been many instances of the use of the military within the borders of the United States, such as during the 1794 Whiskey Rebellion and in the South during the civil rights crises of the 1960s.
But the deployment of military forces alone is not tantamount to a declaration of martial law. As determined in ex parte Milligan, in order to declare martial law, the civil courts must be unable to function. Would that be the case in the event that bird flu grips the nation? Perhaps. Perhaps not. It depends, I imagine, how grave things may ultimately get.
But if martial law were, in fact, declared, how would it permanently and fundamentally affect the nation? Food for thought, at least.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of "Community Focus."
All contents © Copyright 2005 vaildaily.com
Rohn K. Robbins
Bird flu. Those may be words we come to dread. Or maybe not. It all depends upon whether the H2N1 virus mutates such that it can be transmitted from person to person and, if it does, when.
But even if the H2N1 never becomes the problem that it might, inevitably, something will. And when it does - whatever "it" might be - and a pandemic begins to circle the globe with deadly speed, what steps might nations take - our own included - to stanch the deadly tide?
One aspect of control no doubt will be quarantine. But while "quarantine" has a benign, antiseptic ring to it, the reality might well be considerably more insidious. In order to quell the spread of this or another killer virus, could the wheels of government grind towards the imposition of martial law and, if so, how will it manifest itself and what, precisely, will it mean? While the concept may seem farfetched to some, a quick primer here may, in fact, prove helpful.
Exactly what is martial law and why might the spread of a killer strain of flu - H2N1 or some other - one day invoke it?
Martial law is, strictly speaking, the suspension of civil law and, in its place, the imposition of military authority. While not explicitly provided for in the Constitution, suspension of habeas corpus is mentioned in Article 1, Section 9, and the activation of the militia in time of rebellion or invasion is mentioned in Article 1, Section 8.
"Habeas corpus" means, literally, "you have the body." The primary function of a writ (a formal order issued from a court requiring the performance of a specific act) of habeas corpus is to bring a person before the court in order to convince it that the a person is being held for a valid reason and that her/she is being detained of his/her liberty by the exercise of due process. Accordingly, suspension of habeas corpus means a person may be held without charge.
It is the extinction of the right of due process before a person may be maintained in confinement. Article 1, Section 9 states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it." It is the "public safety" reference we should focus on.
When a region or a country is "under martial law," it means, in its strictest form, that the military is in control of the area; it acts as the police, as the courts, as the legislature. The degree of control might vary, for example, a nation may retain a civilian legislature but have the courts administered by the military, or the legislature and courts may operate under civilian control with a military ruler.
It has been often argued that only Congress can declare martial law, because Congress alone is granted the power to suspend the writ. The President, however, is commander-in-chief of the military, and, thus, it has been argued to the contrary that the President can take it upon himself to declare martial law. In times of national crises, Congress may decide not to act, effectively accepting martial law by failing to stop it; Congress may agree to the declaration, putting the official stamp of approval on the declaration; or it can reject the President's imposition of martial law, which could set up a power struggle between the Congress and the Executive that only the Judiciary would be able to resolve.
In the United States, there is precedent for martial law. Several times in the course of our history, martial law of varying degrees has been declared. The most obvious and often-cited example was when President Lincoln declared martial law during the Civil War.
In September of 1863, Lincoln imposed Congressionally-authorized martial law. The authorizing act allowed the President to suspend habeas corpus throughout the entire United States. Lincoln imposed the suspension on "prisoners of war, spies, or aiders and abettors of the enemy," as well as on other classes of people, such as draft dodgers.
The President's proclamation was challenged in the United States Supreme Court case of ex parte Milligan. Lambden Milligan, for whom the case is named, was arrested in Indiana as a Confederate sympathizer. Indiana, like the rest of the United States, was part of a military district set up to help conduct the war. Milligan was tried by military commission and sentenced to die. After his conviction, Milligan petitioned the Circuit Court for habeas corpus, arguing that his arrest, trial, and conviction were all unconstitutional.
What the Supreme Court had to decide, it said, was whether the military commission had the legal power and authority to try and punish. While, ultimately, the Court said "no," observing that "Martial law ... destroys every guarantee of the Constitution," it also observed that the President may declare martial law when circumstances warrant.
There have been several instances throughout our history where martial law has been declared, including in the 1914 Coal Field Wars in Colorado.
There, President Woodrow Wilson sent in federal troops in to Ludlow, Colorado (now a ghost town in Las Animas County) in order to gain control of striking miners and the violence their protests fostered.
Most recently, in the wake of Hurricane Katrina, New Orleans was placed under martial law. While the state of Louisiana does not have an actual legal construct called "martial law," it, instead has something quite like it; a state of public health emergency, which, clearly, has direct and recent parallels to what might occur were bird flu or some other deadly virus to sweep the nation.
There have been many instances of the use of the military within the borders of the United States, such as during the 1794 Whiskey Rebellion and in the South during the civil rights crises of the 1960s.
But the deployment of military forces alone is not tantamount to a declaration of martial law. As determined in ex parte Milligan, in order to declare martial law, the civil courts must be unable to function. Would that be the case in the event that bird flu grips the nation? Perhaps. Perhaps not. It depends, I imagine, how grave things may ultimately get.
But if martial law were, in fact, declared, how would it permanently and fundamentally affect the nation? Food for thought, at least.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of "Community Focus."
All contents © Copyright 2005 vaildaily.com