MArtiALLAw : SAviororthreAt ?
Military & Veterans affairs Committee Chairs : RobertBarton — Rumberger / Kirk & SteveCollins — LawOfficeofRoryWeiner
deepwithinthepages ofthatoldmustylaw dictionaryonyourshelfis atermweallknow , but ... havelittlerealexperience litigating : MartialLaw .
Deep within the pages of that old musty law dictionary on your shelf is a term we all know , but at the same time have little real experience litigating . Martial Law , essentially the replacement of the civil law in all or portions of the United States by the absolute rule of a military commander , has a storied history . It is also a tool with which we may need more familiarity .
Before re-shelving that old law dictionary , consider the following possible scenarios : 1 ) A terrorist nuclear strike hits Washington , DC , with 80,000 casualties and a radiation cloud drifting northeast . 2 ) A Category 5 hurricane hits the southeast Florida Coast , with 100,000 casualties and five square miles of downtown Miami leveled . 3 ) A medical pandemic strikes the Northeast with 200,000 dead within a week and the National Guard in Pennsylvania and New York unable to respond .
Stemming from our British roots , the concept of Martial Law has materially changed since our founding . It is today , however , still our “ Constitutional Conundrum .”
How do we protect the citizen ’ s constitutional Privilege of the Writ of Habeas Corpus at times of necessity when civil courts are unable or unwilling to act ?
President George Washington was faced with this question in Pennsylvania in 1794 . Andrew Jackson imposed Martial Law in 1814 , arresting a federal judge and prosecutors along the way . He was tried for Contempt of Court and fined $ 1,000 before he left New Orleans on his way to the presidency . He referred to this “ Sting ” for the rest of his life .
By the 1860s , Martial Law had begun to evolve . Its slow departure from the principles of “ Military Law ” ( rules governing the military establishment ) and “ Military Government ” ( military control over a foreign government or population ) had begun . President Abraham Lincoln and several of his successors imposed Martial Law on the rebellious South during the Civil War and the Reconstruction eras .
The U . S . Supreme Court cases decided during and after the Civil War , as well as scholarly research , bought increased emphasis on the definition of “ necessity ” as a precursor to any Declaration of Martial Law . Since then , except for the San Francisco earthquake ( 1906 ) and the war dangers in Hawaii ( 1941 ), state Governors and even Mayors have used the concept to govern during civil strife , strikes , and other natural disasters .
However , we should not confuse Martial Law with the calling out of any state military force to help preserve order when local police authorities are unable to cope with a riot or natural disaster . Such actions are constitutionally sanctioned . If Martial Law were to be declared today , the action would be announced by a federal or state proclamation during a period in which the civil courts of this nation are unable to function .
I hope this article has provided a helpful overview of this important topic . n
Author : Colonel Harold W . Youmans ( Ret .)
The MVAC Veterans Legal Assistance Registry includes attorneys who are licensed to practice in Florida and who may be available to assist veterans and active-duty personnel with various legal matters . Visit the Registry at : hillsbar . com / page / MVACLegalRegistry .
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