Martial Law

Survival in an Urban Environment

Martial Law

Postby Jester » Thu Aug 24, 2017 5:15 am

A note to Moderators: I realize now I may have placed this in the wrong section of the forum. If so, mea culpa. I promise not to growl if you move it to a more appropriate section.

While it makes for a daunting story title, "martial law" can be a vague subject, complicated by the variances in laws across the world. What you'll read here is specific to the United States. I am not a lawyer, so this is not legal advice; it's a layman's perspective on the legal aspects of what is commonly referred to as "martial law," and as such, it's open to debate. I welcome constructive feedback. As I get feedback, I will expand and edit this document to reflect accurate information.

Martial Law: A Definition and Overview defines "martial law" as:
[A] system of complete control by a country's military over all activities, including civilian, in a theoretical or actual war zone, or during a period of emergency caused by a disaster such as an earthquake or flood, with the military commander having dictatorial powers. In the United States martial law must be ordered by the President as commander-in-chief and must be limited to the duration of the warfare or emergency. It cannot result in a long-term denial of constitutional rights, such as habeas corpus, the right to a trial, and to free press. Martial law was ordered in contested areas during the Civil War (but the Supreme Court ruled President Abraham Lincoln's suspension of the writ of habeas corpus was unconstitutional), and during the San Francisco earthquake and fire in 1906 when the city was in ruins, tens of thousands were homeless, and looting and disease posed great dangers to the public. Misuse of martial law, such as destruction of the veterans' encampment in Washington, D.C. under President Herbert Hoover, has proved unpopular in the United States. In many foreign countries martial law has become a method to establish and maintain dictatorships either by military leaders or politicians backed by the military. Martial law is not to be confused with "military law," which governs the conduct of the military services and applies only to service men and women.

Habeas Corpus
Article I, Section 9 of The Constitution of United States declares, in part:
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.

Cornell Law School provides this definition for "habeas corpus:"
Latin for "that you have the body." In the US system, federal courts can use the writ of habeas corpus to determine if a state's detention of a prisoner is valid. A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, the amount of bail, and the jurisdiction of the court. See, e.g. Knowles v. Mirzayance 556 U.S.___(2009), Felker v. Turpin 518 US 1051 (1996) and McCleskey v. Zant 499 US 467 (1991).

They also provide further historical information regarding the concept and its application today in the United States. For the purposes of this discussion, it's important to understand the basic principle of habeas corpus. According to the information provided by Cornell in the link above, "The writ thus stands as a safeguard against imprisonment of those held in violation of the law, by ordering the responsible enforcement authorities to provide valid reasons for the detention." In short, a person who has been detained by a law enforcement agent has a right to know the reason or reasons for their detention, "unless when in Cases of Rebellion or Invasion the public Safety may require it."

In the United States, such a suspension is possible only through a declaration of Congress (per Article I, Section 9 of The Constitution). The House of Representatives and Senate must vote to invoke a suspension, and may call an emergency session to do so. There are no limits to their authority except those previously mentioned: such a suspension must be during a time of rebellion or invasion, determined at their discretion. They may declare such a time to exist across any or all United States jurisdiction, and may circumvent state law to enact a suspension of habeas corpus.

Executive Orders
Presidents have, at times, bypassed Congress through the use of executive orders. An executive order is a statement issued by a President, in writing, invoking the power of federal law. The Free Dictionary defines an executive order as:
A presidential policy directive that implements or interprets a federal statute, a constitutional provision, or a treaty.

It has been argued that the power for executive orders is given to the President under the following clauses of Article II of The Constitution:
Section I, Clause I wrote:The executive Power shall be vested in a President of the United States of America.

Section II, Clause I wrote:The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...

Section III wrote:...he shall take Care that the Laws be faithfully executed...

Whatever the case, presidents have passed executive orders on a variety of matters, leading to a murky history of legal cases I could not hope to wade through here. However, the National Archives does maintain a catalog of executive orders dating back to Franklin Roosevelt. In times of national crisis, executive orders could be a tool for bypassing the prolonged procedures typically required for some aid efforts, but they could also be used to create a tyrannical situation over citizens.

Some have questioned whether a martial law commander could order inhumane treatment of citizens under martial law. The answer, in theory, is "yes," through the power of executive orders. An executive order could demand the termination of telecommunications, a freeze on commercial sales of food, the suspension of The Constitution, and more. So why doesn't that happen? Theories abound, and for the sake of objectivity, I'll leave someone else to open that can of worms.

Local Authority
While federal laws are provided for by Congress and the President, each state within the United States has freedom to enact its own laws. This is granted under multiple parts of The Constitution, though the head of each state--known as a governor--is not mentioned by title in The Constitution. States may enact laws and governmental structures that do not contradict federal law; in such cases, federal law takes precedence.

Within states are counties or parishes, each with their own governing body, who may make laws and structures that do not contradict state nor federal laws. Going further down the chain, counties are divided into cities, villages, towns, and so forth, whose laws and structures may not contradict those above them in the chain. Some populated areas (such as cities) are further divided into zones, typically designated for commercial, residential, industrial, or other use.

The Second Amendment to The Constitution allows for a Militia for the people:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The governor of each state has the authority to call upon the National Guard to serve as that Militia. In times of crisis, a governor may contact the National Guard to move into an area to quell a rebellion, fight off an invasion, or assist a community in evacuations, damage control, or other necessary tasks. The leader of a populated area may contact the governor to request such assistance, and most states have a policy regarding a "state of emergency."

State of Emergency
The procedure for declaring a state of emergency varies by jurisdiction, but generally, local authorities may petition a governor to declare a state of emergency in order to activate the local National Guard. This may also attract the attention and assistance of other government entities, such as a number of federal law enforcement agencies and the Federal Emergency Management Agency, or FEMA (pronounced "feem-uh"). The nature of the emergency will often determine which agencies will respond.

A "state of emergency" does not equate to "martial law." The former is merely a designation used to acquire the assistance of agencies with greater resources than what may be available to a given jurisdiction. Several events in the United States have prompted governors and other officials to declare a state of emergency. Since September 11, 2001, the United States has been under a state of emergency, initiated by President Bush. That proclamation was continued by President Obama. In spite of the emergency, there has been nothing resembling what would be recognized as "martial law" on a national level.

Other Executive Orders
A governor may be granted the power for executive orders by their state constitution, in which case they may write an order to affect their state, or any part of it. That may lead to similar court battles as have been seen with presidential executive orders, but a governor may use such orders to delegate control to the National Guard or other agencies in their jurisdiction. Similarly, a mayor or other community leader may be granted the power for such orders over their own subordinate agencies.

In the event of a disaster, it is very likely police and other emergency services at the local level will be the first to respond. If they find the disaster is beyond their means to contain, they may petition their most immediate senior leader to request additional resources. Such petitions may be as simple as a phone call. A leader may also step in to acquire additional resources if the leader feels their subordinates require it, but this may be seen as a dodgy move; on one hand, those closest to the disaster may appreciate the assistance, but they might also see it as a lack of confidence from their superiors.

Potential Effects on Citizens
Given the broad power of executive orders, citizens may be affected in countless ways by a state of emergency. However, those in power will likely work to maintain their control, for whatever reasons--whether for the common good, or for the benefit of their own ego. Whatever the case, a state of emergency could become martial law if the disaster continues to grow, and especially if citizens show their outrage in violent ways at such lack of control.

In the event of a zombie apocalypse, resources may be rationed in an attempt to avoid the spread of infection. Curfew laws may be put into effect to make fighting zombies with minimal collateral damage easier. True martial law would require the governance of a military commander enforcing military law over non-military citizens, but would not require a suspension of rights to habeas corpus. "Shoot on sight" laws and other extreme policies could be put into effect, along with bans on free travel, suspension of the Bill of Rights, and other prohibitions, if the military commander in charge deems it necessary.

A zombie apocalypse is, of course, an extreme example, but one in which the full force of martial law would likely be brought to bear. Perhaps most worrisome to citizens in a zombie outbreak is the possibility for extreme containment measures. A military leader during martial law may order the sacrifice of a city if destroying it would save the greater population of the state, country, or world. Such measures are the extreme of the extreme, and of course there would be protest from the surviving citizens.

In the event that such containment measures--to include conventional and other bombs--failed to contain the threat, martial law could expand, up to a national level. Should the zombie outbreak overtake the nation, it is likely martial law will cease to mean anything, and citizens will truly be on their own. Other countries may assist a nation to contain an outbreak, but would eventually look to secure their own borders.

Martial law, at least in the United States, would end in one of two ways:

1. The threat is contained and order is restored.

2. The nation falls to the zombie apocalypse.

Appendix 1: List of Executive Orders Pertinent to Martial Law/States of Emergency

This section will be updated at a later time.

I would caution readers to obey all laws and preserve their lives in the event of martial law, and to also fully educate themselves on their local and national laws and rights.
"On a long enough timeline, the survival rate for everything drops to zero."
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