> **The Imposition of Martial Law**
>
> **In The United States**
>
> [Major Kirk L. Davies\*]{.smallcaps}
>
> "Necessity hath no law. Feigned necessities, imaginary necessities . .
> . are the greatest cozenage that men can put upon the Providence of
> God, and make pretenses to break known rules by."[^1]

# **Martial Law: Threat and Response**

Imagine the following frightening scenario: Members of an American
militia group enter a major metropolitan airport and attach small
aerosol-like devices in several restrooms throughout the concourse.
These devices release deadly amounts of smallpox bacteria into the air,
infecting hundreds of Americans travelling through the airport. Within
days, citizens around the country begin to display the horrific symptoms
of smallpox.[^2] Public health workers soon determine the nature of the
epidemic and release the information to the press. Widespread panic
results. Civilian public health agencies attempt to educate the public
on how to control the spread of the disease. But despite police efforts
to control the populace by establishing quarantine areas, the civilian
infrastructure is quickly overwhelmed. Chaos results. Finally, the
President declares martial law in an attempt to restore order in the
nation.

This unwelcome scenario is but one example of a crisis that could
quickly rip apart America's social structure.[^3] Even though civilian
disaster relief and law enforcement agencies regularly prepare for
emergencies, Americans as individuals and as a society are woefully
unprepared to face this kind of serious disaster.[^4] Michael Osterholm,
State Epidemiologist for the Minnesota Department of Health, and Chair
of the Committee on Public Health and the Public and Scientific Affairs
Board, is an outspoken advocate of developing a national emergency
preparedness program for biological attack. He recently stated:

> Several of my colleagues and I have tried to walk though these
> \[disaster\] scenarios time and time again. We've looked at them as we
> would handle any other public health disaster, as we've done in the
> past. Unfortunately, each and every time, given the resources we have
> now, given the kinds of authorities we have now, we come down to
> basically complete chaos and panic. In many instances, the only thing
> that would probably prevail is martial law. I don't think this country
> has yet prepared to realize that we may face that in the future.[^5]

Given the relative easy availability of biological and chemical weapons,
and considering the number of groups[^6] who would conceivably use such
weapons, it is not difficult to imagine a disaster scenario in which the
President would feel compelled to restore order by imposing martial law.

The term "martial law" has an ominous ring to it, especially in a
country founded upon notions of civil liberties and individual rights.
Considering our national predilection for demanding "our rights," and in
view of the constitutional separation of powers, a President who imposed
martial law would almost certainly face strong political and legal
opposition. Even if our population faced a severe disaster, like the one
described above, it is quite predictable that many Americans would rebel
against a President who took such drastic action, despite the
President's good intentions.

It seems axiomatic that the President, as the chief executive, would
have authority to respond to national emergencies without any specific
authorization from Congress. The extent to which the President may
constitutionally or lawfully employ military force to react to an
internal, national crisis is not at all clear. The Constitution does not
explicitly grant any emergency powers to the President. Perhaps the
clause that requires the President to "take Care that the Laws be
faithfully executed . . ."[^7] could be interpreted to allow the
President some authority to respond to national emergencies or crises.
But relying only on that authority to employ military force to impose
martial law is problematic since the Constitution grants *Congress* the
authority to "call\[\] forth the Militia to execute the Laws of the
Union...."[^8]

The tendency in recent years has been for the President and Congress to
direct the military into more and more operations that are traditionally
civilian in nature.[^9] Several factors could combine to continue this
trend. First, the threats against national security have become more
complicated and diverse.[^10] Second, the political leaders view the
military as possessing critical expertise for responding to the varied
threats previously mentioned.[^11] Third, the military is the only
governmental organization whose members are not only trained to do
dangerous jobs, but who can also be ordered into life-threatening
situations.[^12] Finally, if federal funds remain limited, Congress and
the President will probably want to capitalize on the money they have
already spent on military training, rather than expend additional
dollars on civilian training and supplies.

The trend to grant the President more statutory authority to regularly
involve the military in civilian law enforcement and disaster relief
roles creates serious risks for the military and the nation. For
purposes of this article, the risk inherent in this slow, but steady,
move is that it may push the military closer to fulfilling a role that
our founding fathers did not envision. A significant offshoot of this
trend is whether Congress has so altered the role of the military that
they have granted the chief executive implied authority to act in
response to severe emergency crises, even in the absence of specific
authorization from either the Constitution or the United States
Congress. If so, the leap to a lawfully imposed condition of martial law
is not so far as otherwise imagined.

Those facing the risks associated with declaring martial law would
extend beyond the President and his close circle of advisors. Military
commanders who have sworn to support and defend the Constitution of the
United States[^13] *and* who are required to follow the President's
orders,[^14] would find themselves in an equally challenging
predicament. Under declared martial law, the President would expect
military commanders to follow his orders and execute the day-to-day
duties associated with martial law. Yet in a commander's mind, the
President's orders may appear to stand in direct opposition to the
commander's oath to uphold and defend the nation's Constitution. Under
normal conditions, following the commander-in-chief's orders and
directives do not usually raise these kinds of constitutional dilemmas.
Martial law, however, would be anything but "normal." Under such
conditions, commanders would unfortunately be placed in the difficult
position of wondering whether their actions were protected under the
law.

## **Overview of Martial Law Issues**

This article addresses the issue of martial law in the following manner:
First, as a necessary precondition to a declaration of martial law, this
article presumes that America's civilian agencies would be unable to
adequately respond to certain crises. Accordingly, the article looks
briefly at how America's civilian agencies may respond to these types of
scenarios.

This article next looks at the military's role in America and how that
role has developed from the early days of our nation's history to the
present day. It also considers briefly the President's authority as
commander-in-chief under our constitutional scheme, and how the
constitutionally imposed separation of powers affects the military. The
article then addresses how various statutes and regulations impact on
military operations, particularly in the area of emergency response
activities.

Next, this article explores the topic of martial law itself. It develops
a definition of martial law and discusses whether or not martial law can
ever be considered lawful. To help in that analysis, the article reviews
Supreme Court cases in two areas: those that address the issue of
martial law and those that address the extent of the President's
emergency authority. The article looks at how a military commander
should respond to the unusual order to execute a presidential
declaration of martial law. Finally, the article integrates the various
statutes, rules, and case law and develops an approach for analyzing an
executive proclamation of martial law.

## **Civilian Agencies' Response to Crises**

One can easily construct a crisis scenario that overwhelms the
capabilities of civilian law enforcement and relief agencies.[^15] For
example, during the 1992 Los Angeles riots, civilian law enforcement
agencies were unable to cope with the widespread rioting and relied upon
National Guard and Federal troops to help restore order.[^16]

According to a Department of Defense (DoD) directive, "\[t\]he primary
responsibility for protecting life and property and maintaining law and
order in the civilian community is vested in the State and local
government."[^17] Within the federal government, the Federal Emergency
Management Agency (FEMA) is the lead federal agency for domestic
disaster relief. Under FEMA's Federal Response Plan, DOD has assigned
responsibilities during disaster response operations.[^18] FEMA's
primary responsibilities lie in the area of disaster or consequence
management, that is, taking steps to aimed at restoring the community to
its previous condition. As an agency, they are neither trained nor
manned to handle scenarios involving insurrection. In such a severe
crisis, if the President might be inclined to streamline the operational
chains of command, resulting in removing FEMA from its primary role in
consequence management and mandating that the Department of Defense take
over the process under a proclamation of martial law.[^19]

A recent presidential initiative reflects the Administration's belief
that the nation is poorly prepared to respond to the kinds of
non-traditional attacks envisioned in this article.[^20] In the area of
biological attack, FEMA officials maintain an unusual position that they
have inadequate funding[^21] to respond to these types of emergencies.
This position is contradiction by the government's decision in recent
years to initiate large-scale emergency training programs.[^22]

Rioting, insurrection, or other serious disturbances are natural
responses to severe disasters. These responses would hamper efforts to
counteract the effects of the disaster. The authority to direct the
federal response to such civil disturbances lies with the Attorney
General of the United States.[^23] The federal response to terrorist
attack falls under the direction of the Department of Justice and the
Federal Bureau of Investigation.[^24] However, the Department of Justice
can enlist the support of DoD when conditions warrant.[^25] In
recognition of anticipated threats, government officials have granted an
increased attention to funding and training, particularly in the areas
of disaster response, on a nation-wide basis and DoD plays a critical
role in this training.[^26] This funding and training alarms civil
rights activists that the President will eventually use the military in
a way that violates American's Civil and Constitutional rights---in
other words, martial law.

**C. Traditional Views**

The American military currently enjoys a relatively high level of
respect within our country.[^27] Along with this increased popularity,
the American military establishment has become increasingly involved in
domestic affairs.[^28] Despite these recent trends to the contrary,
Americans have historically shown a strong aversion to military
involvement in civil affairs.[^29] Given this traditional distaste for
military involvement in civil affairs, it is likely that Americans would
not merely grumble about the rigors of living under martial law.
Instead, it is quite possible that citizens would actively resist the
President's and the military's action under a martial law regime,
regardless of the stated purpose or intended outcome.

The traditional American dislike for a strong military role in society
has its genesis in the American Revolution. The Declaration of
Independence, which set out a multitude of the colonists' grievances
against the King of Great Britain, listed several complaints against his
use of the military, including:

> He has erected a multitude of New Offices, and sent hither swarms of
> Officers to harass our people, and eat out their substance.
>
> He has kept among us, in times of peace, Standing Armies, without the
> consent of our legislatures.
>
> He has affected to render the Military independent of and superior to
> the Civil power.[^30]

One renowned commentator has noted that "\[a\]ntimilitarism arose in
colonial America for two primary reasons: first, the belief that
professional soldiers were the agents of oppression and, second, the
loathsome reputation of the soldiers themselves."[^31]

According to some national opinion polls, the American military has
successfully cast off this negative reputation.[^32] After displaying
their new, improved military skills during the Persian Gulf war, the
President and Congress rewarded the American military by assigning them
a host of new responsibilities.[^33] These non-traditional roles include
enforcing peace in such places as Bosnia and Haiti and conducting
counter-narcotics operations in Central and South America.[^34] These
typically non-military operations have earned the military a new
reputation as a sort of "go-to" guy for the United States. Thus, the
military's improved reputation probably has less to do with the an
increased appreciation for the role of the military in contemporary
society and more to do with the common perception that when asked, the
military gets the job done.

Despite an improved reputation in society, many institutions in America
ardently object to any notion that the military should further increase
its involvement in traditional civilian functions. While Americans may
recognize and appreciate the military's ability to competently respond
to a variety of national and international crises, there remains a
strong distrust of the military crossing too far into the traditionally
taboo territory of civilian law enforcement. This attitude was evident
in the response to President Clinton's recent announcement regarding
increased Federal funding to fight biological, chemical and computer
attacks where many groups decried the President's move to increase the
military's role in civil law enforcement.[^35] Americans may now applaud
the military's entering into such popular battles like the fight against
illegal drugs, but once the "enemy" becomes the average American under
strict conditions of martial law, that applause would likely be quickly
silenced.

**D. Constitutional Roles**

When the founders drafted the Constitution, they weakened the
possibility of a military with a dominant role in society by
subordinating the military to civilian control. The Constitution placed
the military subordinate to a civilian President, who serves as the
Commander-in-Chief of the Armed Forces.[^36] But clearly under our
constitutional scheme, the President's title as commander-in-chief does
not accord him full authority over the military and its operations. In
fact, the Constitution ensures civilian control of the military, not
only through appointing the President as its civilian head, but by
allowing the other two branches of the government to exercise control or
influence over the armed forces.

Of the other two branches of government, Congress has the most practical
authority to exercise influence over the military.[^37] Interestingly,
the Framers gave Congress, not the President, the authority to declare
war.[^38] Congress also has the authority to raise and support an
Army[^39] and a Navy.[^40] The Congress may make rules and regulations
for the military[^41] and call forth the militia.[^42] Congress must
provide advice and consent to the President's appointment of
officers.[^43] Perhaps most significant, is the constitutional
requirement that Congress "raise and support Armies, but no
Appropriation of Money to that use shall be for a longer Term than two
Years."[^44] This limitation on long-term military funding ensures that
the Congress maintains an active, regular role in regulating the affairs
of the military.[^45] Clearly, the Constitution envisions a strong,
regular involvement by the Congress in military affairs.[^46]

In addition to congressional control, under our Constitutional scheme
the judicial branch watches over the executive branch and its military
activities.[^47] The Court has at times hesitated to fully interject
itself into military affairs, calling the military a "separate
society"[^48] that may merit more relaxed scrutiny when it comes to
judicial review, or by refusing to interject itself into matters that
the Court does not believe are best decided by the judicial branch.[^49]
Justice Frankfurter summed up this attitude in the seminal separation of
powers case, *Youngstown Sheet and Tube Co. v. Sawyer*, when he stated
that the Framers "did not make the judiciary the overseer of our
government."[^50] Despite this traditional deference to the military,
the Court has not granted the President *carte blanche* when it comes to
military affairs. The Court's repeated willingness to review actions
taken by the President presumably indicates a belief and willingness not
only to review, but even to overturn, executive and military action when
constitutionally required, especially when the action taken impacts
constitutional rights.

## **E. Statutes and Regulations Covering the Military's Involvement in Civilian Affairs** {#e.-statutes-and-regulations-covering-the-militarys-involvement-in-civilian-affairs .unnumbered}

An intricate array of statutes, directives, and regulations govern the
military's activities in the civilian arena, particularly when acting in
law enforcement activities or in disaster relief roles.[^51] Even though
some of these rules attempt to limit certain types of military activity,
taken as a whole, they show that the President and military commanders
have substantial authority to involve our armed forces in a wide array
of civilian activities.

In 1878, the Congress enacted the Posse Comitatus Act.[^52] Congress
passed this Act "\[i\]n response to the military presence in the
Southern States during the Reconstruction Era"[^53] and the perceived
abuses of involving the military in various civilian responsibilities.
The Act's primary purpose was to forbid military personnel from
executing laws or having any direct involvement in civilian law
enforcement activities. The Act states:

> Whoever, except in cases and under circumstances expressly authorized
> by the Constitution or Act of Congress, willfully uses any part of the
> Army or the Air Force as a posse comitatus or otherwise to execute the
> laws shall be fined under this title or imprisoned not more than two
> years, or both.[^54]

Determining when the military is in violation of the Act can be
difficult.[^55] However, considering the Act's punitive provisions,
commanders have an obvious interest in ensuring they do not disobey
it.[^56] Over time, Congress has authorized relatively significant
exceptions to the Act's sweeping prohibitions. None of the exceptions
have specifically granted the military a domestic law enforcement role,
but the recent pattern is to accord the military a greater role in
civilian affairs than had been previously envisioned.

Congress has granted the Department of Defense (DOD) some authority to
support civilian law enforcement activities.[^57] Several different
regulations govern military support to civilian law enforcement
agencies. The application of these regulations depends upon the nature
of the crisis involved.[^58] These exceptions to the Posse Comitatus Act
allow the military to provide support to civilian law enforcement
agencies by sharing information,[^59] loaning equipment,[^60] and
providing expert advice and training.[^61]

Perhaps the broadest exception to the Posse Comitatus Act is Congress's
relatively recent move to direct the military to join civilian law
enforcement agencies in the fight against illegal drugs.[^62] Congress
made the Department of Defense "the lead federal agency for detection
and monitoring of aerial and maritime transit of illegal drugs into the
United States."[^63] The use of the military in these diverse roles has
been the subject of a fair amount of criticism. Yet, despite the
concerns, Congress and the President appear to remain committed to them.

Congress has also granted the President specific statutory authority to
use federal troops in a law enforcement role in the case of national
emergency involving civil disturbances.[^64] This authority exists even
though responsibility for quelling such rebellions lies primarily with
State and local governments.[^65] These statutory exceptions to the
Posse Comitatus Act include insurrections within a state (upon the
Governor's request);[^66] rebellions which makes it impracticable to
enforce federal laws;[^67] or any insurrection or violence which impedes
the state's ability to protect citizens of their constitutional rights,
and the state is unable or unwilling to protect those rights.[^68]

Perhaps the President already has the authority to act in situations
involving maintenance of public order, even without congressional
authorization. According to the Code of Federal Regulations (CFR),
"\[t\]he Constitution and Acts of Congress establish six
exceptions,[^69] generally applicable within the entire territory of the
United States, to which the Posse Comitatus Act prohibition does not
apply."[^70] The CFR cites two constitutional exceptions. The first is
an emergency authority to prevent lost of life or property during
serious disturbances or calamities.[^71] The second authority allows the
use of military forces to protect Federal property and governmental
functions.[^72]

Obviously, the Code of Federal Regulations is not the source of the
President's emergency response authority.[^73] However, when considering
whether Congress has granted the President either "express or
implied"[^74] authority to use military troops in a domestic crisis,
evidence of a federal regulation that recognizes such a constitutional
basis for authority is extremely relevant. This is especially true if
Congress takes no action to modify or interpret the language of the
Code.

### Disaster Relief

Under the Stafford Act,[^75] the President may commit federal troops to
assist state governments in their disaster relief operations.[^76] Under
this Act, the President may use military troops to perform work
"essential for the preservation of life and property."[^77] The Stafford
Act is not an exception to the Posse Comitatus Act, primarily because
actions taken under the Stafford Act should not involve law enforcement
activities. Preconditions to federal support under the Act's various
sections include a natural catastrophe or major disaster, a request from
the state's governor to provide support, and a finding that the state
needs additional help beyond what it is able to provide.[^78]

### The Military's Inherent Immediate Response Authority

In recent years, Department of Defense personnel have acted in civilian
emergency situations without any specific statutory authorization. They
have done so under a theory of "immediate response authority."[^79] An
example of the military acting under this immediate response authority
occurred in Oklahoma City after the bombing of the Alfred P. Murrah
federal building.[^80] In that case, local authorities could be assisted
by the military providing support to the investigation in the form of
"medevac aircraft, ambulances, bomb detection dog teams, and various
military personnel."[^81] Local commanders at Fort Sill and Tinker Air
Force Base provided this support under the theory of the commander's
immediate response authority.[^82]

This immediate response authority is mentioned in two Department of
Defense Directives, one relating to disaster relief support to civil
authorities,[^83] and the other relating to support for civilian
agencies during civil disturbances.[^84] According to these regulations,
commanders may act to prevent human suffering, save lives, or mitigate
great property damage, even without prior authorization from the
President.[^85] Commanders may act in these cases if there is an
emergency that "overwhelms the capabilities of local authorities."[^86]

The "most commonly cited rationale to support Immediate Response actions
is the common law principle of necessity."[^87] From a humanitarian,
common sense perspective, it seems self-evident that a military
commander should be able to use available resources to alleviate human
suffering, without first requiring a bureaucratic permission slip.
Arguably, that is why Department of Defense directives articulate this
authority. Interestingly, even though Congress undoubtedly is aware of
the military's actions under these Department of Defense directives,
congressional leaders have not acted to limit or codify a commander's
authority to act in these types of scenarios.

## **F. Summary** {#f.-summary .unnumbered}

It appears that the traditional prejudice against military involvement
in civil affairs may be on the decline. The evidence of that decline is
manifest in congressional willingness to create exceptions to the Posse
Comitatus rules[^88]---rules allowing for military support during law
enforcement activities,[^89] and the President's continued use of the
armed forces in these roles.[^90] Whatever the reason, Congress has
implicitly or explicitly given the military increased authority in the
civilian domain, an authority Presidents have not hesitated to use.[^91]
This trend has serious implications for the legality of a President's
actions under a proclamation of martial law.

#  **PRESIDENTIAL POWER**

Ideally, the President will never have to declare martial law in
response to a national crisis.[^92] The best scenario envisions the
nation responding to such a crisis with civilian agencies in the
forefront and the Department of Defense in its traditional support role.
However, should civilian agencies become overwhelmed in an environment
of chaos and panic, one of the President's obvious options for restoring
order would be to declare martial law. Such a response is an extreme
option, well beyond what is contemplated under statutes relating to
disaster response actions or limited military support to civilian law
enforcement authorities.

## **Martial Law Defined**

In our country, federal authorities have declared martial law on only a
few occasions.[^93] Since our country's legal system is based on the
concepts of stare decisis and precedent, there is no body of case law to
which explains a precise legal definition of the term "martial law."
Some scholars suggest that martial law is not really law at all.
Blackstone, for example, has described martial law as:

> \[T\]emporary excrescences bred out of the distemper of the state, and
> not any part of the permanent and perpetual laws of the kingdom. For
> martial law, which is built upon no settled principles, but is
> entirely arbitrary in its decisions, *is . . . in truth and reality no
> law*, but something indulged rather than allowed as a law.[^94]

Some scholars prefer to use the term "martial rule," avoiding the use of
the term "law" in this context.[^95] In fact, one of the most noted
authors on the subject of martial law, Charles Fairman, insists on
referring to it as martial rule, thus eliminating the possibility of
inferring that the condition is lawful.[^96] He states:

> Martial law \[in the sense we are using it\] is more accurately
> described as *martial rule,* which obtain in a domestic community when
> the military authority carries on the government, or at least some of
> its functions. Martial rule may exist *de facto;* the term is
> noncommittal as to its legality.[^97]

Martial law has been defined in various manners. Essentially, it is "the
rule which is established when civil authority in the community is made
subordinate to military, either in repelling invasions or when the
ordinary administration of the laws fail to secure the proper objects of
the government."[^98] The Supreme Court has defined martial law as "the
law of military necessity in the actual presence of war. It is
administered by the general of the army, and is in fact his will. Of
necessity it is arbitrary, but it must be obeyed."[^99]

Scholars consistently agree that necessity is a mandatory precondition
to imposing the state of martial law.

> Martial law is the public law of necessity. Necessity calls it forth,
> necessity justifies its exercise, and necessity measures the extent
> and degree to which it may be employed. That necessity is no formal,
> artificial, legalistic concept but an actual and factual one: it is
> the necessity of taking action to safeguard the state against
> insurrection, riot, disorder, or public calamity. What constitutes
> necessity is a question of fact in each case.[^100]

The Code of Federal Regulations mirrors this definition of martial law.
It states: "Martial law depends for its justification upon public
necessity. Necessity gives rise to its creation; necessity justifies its
exercise; and necessity limits its duration."[^101]

Compared to the civil disorder statutes, which give the President
limited authority in narrowly defined circumstances, martial law grants
the executive broad emergency powers. The civil response statutes impose
restrictions that the President must meet before he can commit federal
troops to a given crisis.[^102] In contrast, practically the only
limitation on a commander's actions under martial law is the continued
state of necessity that prompted its imposition in the first
place.[^103] The declaration of martial law allows the military broad
authority to "do all acts which are reasonably necessary for the purpose
of restoring and maintaining public order."[^104] These acts include
restricting individuals' movement, imposing punishment through military
trials, and suspending other fundamental rights.[^105]

## **B. Is Martial Law Lawful?** {#b.-is-martial-law-lawful .unnumbered}

It is logical that a President should be able to impose martial law to
preserve the nation, even if not explicitly authorized in the
Constitution. President Lincoln echoed this sentiment when he asked:
"Are all the laws, but one, to go unexecuted, and the government itself
to go to pieces, lest that one be violated?"[^106] Indeed, the President
states in his oath of office: *I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States*.[^107] In addition, the Constitution
requires the President to ensure that the laws are faithfully
executed.[^108] Accordingly, the President should have the inherent
authority, in fact the *responsibility*, to preserve the nation, even if
it means taking extreme actions not specified in the Constitution.

Some scholars suggest that the executive may be justified in acting
outside the Constitution's explicit authority, when required by the
nation's best interests.[^109] This type of power (as opposed to
authority) was apparently accepted by classical thinkers in the 18th
Century. A review of the prevailing intellectual views on this topic
during that time provides insight into why the Constitution does not
more explicitly define the President's emergency powers:

> Classical liberal theory thus divides executive action into two
> spheres: normal constitutional conduct, inhabited by law, universal
> rules and reasoned discourse; and a realm where universal rules are
> inadequate to meet the particular emergency situation and where law
> much be replaced by discretion and politics . . . . liberalism seeks
> to separate emergency rule from the normal constitutional order,
> thereby preserving the Constitution in its pristine form while
> providing the executive with the power, but not legal authority, to
> act in an emergency.[^110]

Under this theory, the executive can impose martial law without
violating the Constitution, even though he is acting outside its express
language. President Abraham Lincoln embraced this theory when he stated:

> \[M\]y oath to preserve the Constitution to the best of my ability,
> imposed upon me the duty of preserving, by every indispensable means,
> that government---that nation---of which the Constitution was the
> organic law. Was it possible to lose the nation, and yet preserve the
> Constitution? By general law life *and* limb must be protected; yet
> often a limb must be amputated to save a life; but a life is never
> wisely given to save a limb. I felt that measures otherwise
> unconstitutional, might become lawful, by becoming indispensable to
> the preservation of the constitution, through the preservation of the
> nation.[^111]

This commonsensical point of view rings true, particularly when
considering that the President not only has the duty to preserve the
nation, but also that the office has most resources ready and prepared
to take such drastic action. Whether or not the President has inherent
powers to preserve the nation has been the topic of vigorous scholarly
debate.[^112]

Beyond the intellectual arguments, the real difficulty comes in
determining when the President may wield such frightening power, as in
the case of martial law, to deprive citizens of their constitutional
rights. Fairman has stated that,

> \[o\]ur constitutional system contains within itself all that is
> essential to its own preservation. It is adequate to all the
> exigencies which may arise. When force becomes necessary to repress
> illegal force and preserve the commonwealth, it may lawfully be
> exerted. Martial rule depends for its justification upon this public
> necessity. It is not a thing absolute in its nature, a matter of all
> or nothing. On the contrary, it is measured by the needs of the
> occasion. What appeared reasonably necessary under the circumstances
> will be justified upon the great first principle that the nation has
> power to maintain its own integrity. The reason of the law, as the
> judges often said, is compressed in the maxim *Quod enim necessitas
> cogit, defendit*.[^113]

For a military commander responsible for executing the President's
orders, these questions are more than an interesting intellectual
debate. The commander in this unusual situation must make the difficult
and risky analysis of whether or not the President is properly operating
within his "power," even though he is technically acting beyond his
"legal authority."[^114] A review of Supreme Court case law provides
some useful guidance.

#  **The Supreme Court'S Analysis of Martial Law**

Developing helpful rules to follow or legal standards to apply under
martial law is extremely difficult because the Supreme Court of the
United States has issued very few opinions on the subject.[^115] Perhaps
the best way to predict how the Court would deal with a case of martial
law is to analyze the few existing martial law cases, along with some of
the Court's decisions relating to the Constitutional limits of executive
power. Even here, though, the Supreme Court recently remarked that the
"decisions of the Court in this area have been rare, episodic, and
afford little precedential value for subsequent cases."[^116]
Nonetheless, taken as a whole, the Supreme Court cases that deal with
martial law and executive power reveal some important guiding
principles.

First, even though the Court has held unconstitutional certain
activities that took place under the umbrella of declared martial law,
it has never held that martial law itself is per se unconstitutional or
unlawful. Second, the Court has held that martial law is allowable under
only the most extreme circumstances. Finally, the Court has recognized
that the President may possess powers beyond those specifically
enumerated in the Constitution. How and when the President may lawfully
exercise those powers will be discussed below.

## **The Seminal Case: Youngstown Sheet & Tube Co. v. Sawyer** [^117]

When considering the principle of the United States Constitution and the
powers of the executive, *Youngstown* is probably the most important
Supreme Court declaration on the principle. The case arose in the
context of a threatened nation-wide strike in the national steel
industry during the Korean War. President Harry Truman, concerned that
the "proposed work stoppage would immediately jeopardize"[^118] national
defense, issued an Executive Order directing the "Secretary of Commerce
to take possession of most of the steel mills and keep them
running."[^119] The steel companies protested the Secretary's actions
and brought "proceedings against him in the District Court."[^120]

Against this backdrop, the mill owners argued that "the President's
order amount\[ed\] to lawmaking, a legislative function which the
Constitution has expressly confided to the Congress and not to the
President."[^121] The government argued that the order "was necessary to
avert a national catastrophe which would inevitably result from a
stoppage of steel production."[^122] The Government further argued that
a steel strike "would so endanger the well-being and safety of the
Nation that the President had 'inherent power' to do what he had
done---power 'supported by the Constitution, by historical precedent,
and by court decisions.'"[^123] The Court rejected the Government's
position, holding that the Constitution did not give the President such
broad authority.[^124]

Unfortunately, the Court did not speak with a unified voice.[^125]
Justice Black, who wrote the opinion of the Court, viewed the issue
quite simplistically. If the President had authority to take such an
action, he had to derive it either from an act of Congress or the
Constitution itself---but his opinion found no legislation granting the
President seizure authority.[^126] The opinion also rejected the
argument that the President enjoyed any powers that could be "implied
from the aggregate of his powers under the Constitution."[^127]

Obviously, a majority of the Court joined Justice Black in his belief
that the President's actions were unconstitutional. But the other
justices who comprised the majority must have also agreed in principle
with Justice Frankfurter who stated that "considerations relevant to the
legal enforcement of the principle of separation of powers . . .
\[were\] more complicated and flexible"[^128] than what Justice Black
had expressed in his opinion. As a result, the Court issued numerous
concurring opinions, opinions which provide important guidance to a
discussion of martial law. [^129] Of all these concurring opinions,
Justice Jackson's provides the most useful and pragmatic approach to
analyzing this issue.[^130]

Justice Jackson posited a three-tiered approach to analyzing executive
power under our constitutional scheme. First, "\[w\]hen the President
acts pursuant to an express or implied authorization of Congress, his
authority is at its maximum."[^131] Second, "\[w\]hen the President acts
in absence of either a congressional grant or denial of authority, he
can only rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in
which its distribution is uncertain."[^132] Finally, "\[w\]hen the
President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitutional powers of
Congress over the matter."[^133]

Justice Jackson was careful to emphasize his view that the President's
emergency powers are derived from the Constitution,[^134] and are
essentially shared with the Congress. Indeed, for Jackson, such power
could only arise from an interaction between the legislature and the
executive: "Presidential powers are not fixed but fluctuate, *depending
upon their disjunction or conjunction with those of Congress*."[^135]
And even though Jackson was willing to give these powers broad
interpretation,[^136] he was unwilling to go so far as to declare the
Executive possesses an inherent emergency power. [^137]

Key to Justice Jackson's analysis is how congressional action or
inaction affects presidential authority. On that point, *Dames & Moore
v. Regan*[^138] is an important companion case to *Youngstown*, because
it provides some guidance on how to apply the *Youngstown* test. In
*Dames & Moore*, Justice Rehnquist noted:

> Justice Jackson himself recognized that his three categories
> represented 'a somewhat over-simplified grouping,' and it is doubtless
> the case that executive action in any particular instance falls, not
> neatly in one of three pigeonholes, but rather at some point along a
> spectrum running from explicit congressional authorization to explicit
> congressional prohibition.[^139]

This analysis is complicated by the difficulty in ascertaining whether a
particular statute should be viewed as a specific or implied grant of
authority to the President, or whether Congress intended the law to
limit the President's actions within certain boundaries. Language from
*Dames & Moore* assists the practitioner in making this determination:

> As we have noted, Congress cannot anticipate and legislate with regard
> to every possible action the President may find it necessary to take
> or every possible situation in which he might act. Such failure of
> Congress specifically to delegate authority does not, "especially . .
> . in the areas of foreign policy and national security," imply
> "congressional disapproval" of action taken by the Executive." On the
> contrary, the enactment of legislation closely related to the question
> of the President's authority in a particular case which evinces
> legislative intent to accord the President broad discretion may be
> considered to "invite" "measures on independent presidential
> responsibility." At least this is so where there is no contrary
> indication of legislative intent and when, as here, there is a history
> of congressional acquiescence in conduct of the sort engaged in by the
> President.[^140]

Under this analysis, Congress may, either through legislative action, or
indeed, inaction, inadvertently grant the President broader authority to
proclaim and execute martial law by "inviting" such action.

The *Youngstown* opinion, read together with *Dames & Moore*, provides
important guidance to any analysis of the President's authority to
declare martial law. First, in dicta*,* Justice Jackson specifically
excludes martial law from his assertion of an absence of inherent
executive emergency powers.[^141] Even though martial law was not at
issue in the *Youngstown* case, any Supreme Court recognition, albeit in
dicta, that implicitly recognizes the validity of martial law, adds some
strength to the argument that the President may lawfully impose it. This
is particularly true when it is part of a discussion rejecting an
inherent emergency power.

Second, in addition to Justice Jackson's implicit expression that the
President may have the authority to impose martial law, his three-tiered
framework is extremely useful in any analysis of how and when that
authority may be exercised. Because martial law is clearly an extreme
option on the spectrum of presidential emergency powers, and considering
the paucity of caselaw directly concerning martial law, any guidance on
the exercise of executive authority is very useful, even if that
guidance is not directly on point. Finally, even if the President does
have authority to declare martial law, the *Youngstown* opinion shows
that exercise of any emergency authority must be assessed in light of
several factors, including, congressional action (or inaction), the
Constitution, and the prevailing circumstances at the time.

## **Ex parte Milligan** [^142]

In July 1862, President Lincoln's Secretary of War, Edwin M. Stanton,
issued an order under the President's authority, suspending the writ of
habeas corpus for "persons arrested for disloyal practices."[^143]
Another order, issued the same day, directed U.S. marshals to arrest
disloyal persons and stated that military commissions would try such
persons. In September 1862, President Lincoln issued another
proclamation that provided authority to subject to martial law and trial
and punishment by courts-martial or military commissions, those
individuals who were found "discouraging volunteer enlistments,
resisting militia drafts, or guilty of any disloyal practice affording
aid and comfort to rebels."[^144]

In March 1863, Congress added to President Lincoln\'s proclamation by
"passing a law which authorized the President to suspend the writ
whenever he thought necessary and to detain those persons under arrest
by the military authorities without interference by the civil
courts."[^145] In passing the law, Congress specified that in
jurisdictions where the civil courts were still open, the names of those
individuals violating these laws be provided to the federal courts for
presentation to a grand jury for indictment. If this procedure was not
followed, the detainee should be discharged.[^146]

Lambdin P. Milligan, a lawyer from Huntington, Indiana, had been active
in Democratic politics and was sympathetic to the Confederate
cause.[^147] Milligan, along with several other defendants, was tried
for treason by a military commission in 1864.[^148] The Commission found
Milligan guilty and sentenced him to be hanged. Milligan appealed his
conviction to the Circuit Court of Indiana, which, in turn, certified
the case to the Supreme Court of the United States.[^149]

At the Supreme Court, Milligan argued that the military commission did
not have jurisdiction over him as he was not a member of the armed
forces.[^150] The government argued that as a result of the necessities
of war, the President and the Congress suspended the writ of habeas
corpus, and that the declaration of martial law justified the
government's use of the military commission in the Milligan case. The
Court rejected this argument, stating:

> The Constitution of the United States is a law for rulers and people,
> equally in war and in peace, and covers with the shield of its
> protection all classes of men, at all times, and under all
> circumstances. No doctrine, involving more pernicious consequences,
> was ever invented by the wit of man than that any of its provisions
> can be suspended during any of the great exigencies of government.
> Such a doctrine leads directly to anarchy or despotism, but the theory
> of necessity on which it is based is false; for the government, within
> the Constitution, has all the powers granted to it, which are
> necessary to preserve its existence; as has been happily proved by the
> result of the great effort to throw off its just authority.[^151]

In overturning Milligan's conviction, the Court rejected the
government's argument that the laws of war justified the use of military
commissions under the circumstances present in Milligan's case.[^152]
The Court based its logic on the fact that the civil courts had remained
open, despite the suspension of the writ of habeas corpus and the
proclamation of martial law.[^153] Further, the Court noted its concern
that the authorities had not followed the congressionally mandated
procedures for suspending the writ, by stating that,

> \[t\]his court has judicial knowledge that in Indiana the Federal
> authority was always unopposed, and its courts always open to hear
> criminal accusations and redress grievances; and no usage of war could
> sanction a military trial there for any offense whatever of a citizen
> in civil life, in nowise connected with the military service . . . One
> of the plainest constitutional provisions was, therefore, infringed
> when Milligan was tried by a court not ordained and established by
> Congress.[^154]

Because Congress had established procedures for suspension of the writ,
Milligan's conviction by military commission was clearly in direct
opposition to stated congressional intent.[^155]

If we apply these facts to Justice Jackson's three-tier approach in
*Youngstown*, the President's actions would fall into the third tier. By
trying Mr. Milligan at a military commission, without following the
procedures established by Congress, the President was taking "measures
incompatible with the expressed or implied will of Congress."[^156]
Under a Justice Jackson's *Youngstown* analysis, then, the President's
actions must be supportable under "his own constitutional powers minus
any constitutional powers of Congress over the matter."[^157] So, even
under Justice Jackson's theory in *Youngstown*, Milligan's conviction
would likely have been overturned.[^158]

In *Milligan*, the Court also provided guidance, albeit in dicta, for
determining when, if ever, martial law would be justified.[^159] The
Court noted that the Constitution only provides for the suspension of
one enumerated right---the *writ of habeas corpus*.[^160] Nevertheless,
the Court implicitly recognized that there may be situations where
martial law would be needed. But even as the Court stated that necessity
is a prerequisite for martial law it repeated the earlier assertion that
in order to declare martial law, the courts must be closed.[^161]

According to the *Milligan* Court, "proper" martial law can only be
allowed under narrow circumstances, *i.e.*, under, (a) strict conditions
of necessity, (b) during war (foreign invasions or civil war), (c) when
the courts are closed,[^162] and (d) only in the area of the "actual
war."[^163] Perhaps the most important point to be learned from
*Milligan*, though, is that any exercise of emergency power by the
President must be viewed in conjunction with congressional will. The
Court did not declare unlawful the President's proclamation of martial
law. It was the exercise of that power, in a manner contrary to
congressional mandate, that caused the Court to opine that "\[n\]o
graver question" had ever been considered by that Court.[^164]
Interestingly, this opinion practically validated the *Youngstown*
template that would follow by several years.

## **Duncan v. Kahanamoku**[^165]

Shortly after the 1941 Japanese surprise attack on Pearl Harbor, the
Territorial Governor of Hawaii, Joseph B. Poindexter, declared martial
law and suspended the writ of habeas corpus.[^166] Besides declaring
martial law, Governor Poindexter authorized the commanding general of
the Military Department of Hawaii, Lieutenant General Walter Short, "to
exercise all of the powers normally exercised by judicial officers and
employees" of the territory.[^167] Military rule lasted in Hawaii for
nearly three years, until it was revoked by President Franklin D.
Roosevelt.[^168]

In his opinion overruling the three convictions obtained in
*Duncan*,[^169] Justice Black, in his later opinion in
*Youngstown,*[^170] looked primarily at whether Congress had authorized
the trial of civilians[^171] by military commission under a declaration
of martial law.[^172] Justice Black noted that the Organic Act[^173] did
have a provision for placing the territory[^174] under martial law. But
since the Act did not define the term "martial law," Justice Black
looked to the legislative history to determine whether Congress intended
to grant the military such broad authority.[^175] Finding no such
authority, Justice Black looked to "other sources"[^176] to determine
the meaning of the term martial law.

Justice Black did not clearly articulate a constitutional analysis of
the executive's constitutional authority under martial law. Perhaps
since the Constitution does not mention martial law,[^177] he found that
question irrelevant. In looking at other "sources" to interpret the
meaning of martial law, Justice Black stated that the "answer may be
found in the birth, development and growth of our governmental
institutions up to the time Congress passed the Organic Act."[^178]
Justice Black ultimately decided that under these other authorities, the
meaning of martial law did not include the trial of civilians by
military commission, at least under the circumstances described in
*Duncan*.[^179]

The *Duncan* Court ultimately held that even though the Hawaii Organic
Act authorized martial law, Congress had not intended to replace
civilian courts with military jurisdiction:

> We believe that when Congress passed the Hawaiian Organic Act and
> authorized the establishment of "martial law" it had in mind and did
> not wish to exceed the boundaries between military and civilian power,
> in which our people have always believed, which responsible military
> and executive officers had heeded, and which had become part of our
> political philosophy and institutions prior to the time Congress
> passed the Organic Act. The phrase "martial law" as employed in that
> Act, therefore, while intended to authorize the military to act
> vigorously for the maintenance of an orderly civil government and for
> the defense of the island against actual or threatened rebellion or
> invasion, was not intended to authorize the supplanting of courts by
> military tribunals.[^180]

How the *Duncan* case would fare under Justice Jackson's three-tier
approach is an interesting question. Since Congress had authorized the
use of martial law, the actions taken would arguably fall into the first
tier.[^181] In addition, besides passing the Organic Act, Congress was
certainly aware that Governor Poindexter had placed Hawaii under martial
law. Accordingly, the case fits best under Justice Jackson's first tier.
But in view of the facts of both cases, upholding the convictions would
not seem fair, even in light of possible congressional authorization of
such trials.

Considering the quick rush to judgment in *Duncan*, perhaps the best way
to support the finding (under the three-tiered analysis) would be to
argue that even though the President's authority is at its fullest in
the first tier, his actions must still be supported by the pre-condition
of necessity. In *Duncan*, the courts were open and operating and the
defendants were civilians who posed no real threat to security.
Balancing those circumstances with the clear violation of the
defendant's constitutional rights, it appears that the use of the
military commission was not necessary and would therefore fail under the
three-tier analysis, even if falling within the first tier.[^182] In the
end, the holding stands for the proposition that without strict
conditions of necessity, even Congress and the President acting together
may not violate the Bill of Rights.

## **World War II Japanese Cases**

In analyzing relevant Supreme Court decisions in the area of executive
emergency authority, political and social conditions existing at the
time of congressional and presidential action must be considered as
well. The cases arising from the internment of the Japanese during World
War II aptly illustrate this point. Even though martial law was not
declared on the mainland of the United States during the war, the United
States government took extreme actions to intern and relocate thousands
of civilians of Japanese ancestry living within its borders.

In two cases, the Supreme Court considered the legality of those
governmental actions. [^183] In both of these cases, the defendants were
charged with violations of orders excluding them from certain areas or
imposed curfews.[^184] These rules applied to persons of Japanese
ancestry regardless of their citizenship status or evidence of their
loyalty to the United States. In both cases, the Court upheld the
government's actions.

Fundamental to the Court's analysis in both cases was its view that in
the arena of war making, the Court should not substitute its judgment
for those who have been authorized by the Constitution to make such
decisions. In *Hirabayashi*, the Court stated that,

> \[w\]here, as they did here, the conditions call for the exercise of
> judgment and discretion and for the choice of means by those branches
> of the Government on which the Constitution has placed the
> responsibility of war-making, it is not for any court to sit in review
> of the wisdom of their action or to substitute its judgment for
> theirs.[^185]

The Court went on to emphasize the great amount of discretion it
afforded the constitutionally appointed decision-makers in the area of
war powers by noting that,

> \[o\]ur investigation here does not go beyond the inquiry whether, in
> the light of all the relevant circumstances preceding and attending
> their promulgation, the challenged orders and statue afforded a
> reasonable basis for the action taken in imposing the curfew. In this
> case it is enough that circumstances within the knowledge of those
> charged with the responsibility for maintaining the national defense
> afforded a rational basis for the decision which they made. Whether we
> would have made it is irrelevant.[^186]

Despite widespread violations of citizens' most basic constitutional
rights, the Court refused to interject itself into an area that it
believed was beyond its authority.[^187]

*Korematsu* and *Hirabayashi* are not martial law cases, but while both
are instructive, *Korematsu* is particularly useful for determining how
the Court might view similar actions under a declaration of martial
law.[^188] In *Korematsu*, the Court first implicitly recognized the
principle of necessity, and permitted otherwise unacceptable actions
because, in its estimation, the conditions warranted them. Second, the
Court recognized that the severity of the actions must relate to the
level of the threat, stating that "when under conditions of modern
warfare our shores are threatened by hostile forces, the power to
protect must be commensurate with the threatened danger."[^189] Finally,
the Court judged the case in the context of the executive and
legislative branches operating together, and did not elaborate on the
outcome if the President had taken the actions in the absence of
congressional authorization. Once again, the Court validated the
significance of *Youngstown's* three-tier template.

Additionally, even though the case did not involve a declaration of
martial law, Justice Murphy's dissent in *Korematsu* does offer another
indication that the Court might, under proper circumstances, approve a
regime of martial law. The dissent stated that excluding persons of
Japanese ancestry from the Pacific Coast, "on a plea of military
necessity in the *absence of martial law* ought not to be
approved."[^190] By implication, then, Justice Murphy would approve
similar actions when necessity dictated and martial law had been
properly declared.

## **Summary**

None of the Supreme Court cases cited above directly discussed the
source of the President's authority to impose martial law. From these
cases, however, we can glean some legal principles relating to the
proper imposition of martial law.

First, no opinion of the Supreme Court has ever declared martial law per
se unlawful or unconstitutional. Second, the Supreme Court has
recognized some presidential emergency authority. Third, the President's
authority to act in emergencies is not unfettered.[^191] Fourth, the
President's actions are more likely to survive Supreme Court scrutiny if
he seeks congressional approval. And fifth, the more extreme the
circumstances, the more extensive the power the Court would likely
accord the President.[^192]

#  **Application to Military Commanders**

A presidential decision to impose martial law raises the most profound
legal, ethical and moral questions imaginable. But once the order is
issued, the President must rely on the military, through its chain of
command, to execute the order. If the President's decision to issue the
order is later questioned or held unlawful, the ramifications for the
President lie in the political and judicial realms: public criticism,
impeachment, removal from office, injunction or reversal by the Supreme
Court, or indictment and conviction. For the military commander, the
ramifications could be similarly criminal and career ending.

Under Article 92 of the Uniform Code of Military Justice,[^193] a member
of the United States military may be held criminally liable for failure
to obey lawful orders and for dereliction of duty.[^194] Depending on
the circumstances, a commander who violates orders may also be punished
for conduct unbecoming an officer and a gentleman.[^195]

Military members are required to obey *lawful* orders. They are not
required to obey unlawful orders, but they disobey orders at their own
peril.[^196] When a military member receives an order, he presumes it to
be lawful, unless it is "patently illegal" or "directs the commission of
a crime."[^197] According to the Manual for Courts-Martial, a general
order or regulation is "lawful unless it is contrary to the
Constitution, the laws of the United States, or lawful superior orders
or for some other reason is beyond the authority of the official issuing
it."[^198]

A military commander is unlikely to ignore the terms "contrary to the
Constitution" or "laws of the United States" because all military
officers, upon entering active duty service, swear an oath to "uphold
and defend the Constitution of the United States."[^199] Military
commanders understand the obligation to honor individuals'
constitutional freedoms, and they receive indoctrination on the role of
the military in a democracy (*i.e.*, the Posse Comitatus Act[^200]).
These commanders, and their legal advisors, will likely pause before
executing an order that both involves them directly in civilian law
enforcement and which requires systematic violation of citizens'
constitutional rights.

Considering the legal standard established in the Manual for
Courts-Martial, the commander who receives an order to execute martial
law should obey the order. Unless "patently illegal," such as the
extremely unlikely order to conduct mass executions of noncombatants or
to torture suspected criminals,[^201] there is sufficient judicial
support for the Commander-in-Chief's authority to proclaim martial law.
In the end, the commander's best option would be to obey the order.

#  **Analysis**

Unfortunately neither the author nor this article can resolve all the
legal questions that would swirl around a declaration of martial law.
But, integrating the cases already discussed, along with the other
principles mentioned above, a type of template becomes apparent that
could be useful in determining whether the President has the authority
to move the military into such an expanded role during an emergency.

This article also presumes that the President enjoys inherent authority
to declare martial law, outside of the powers granted him by the
Constitution. But just as emergencies do not "create power"[^202] and
"unenumerated powers do not mean undefined powers,"[^203] the
President's power to impose martial law must not be limitless. Certainly
the ability to exercise such power must be subject to certain
limitations. Those limitations are derived from the Congress, balanced
upon conditions of necessity, and tempered by other constitutional
considerations.

The best method for analyzing the legality of a proclamation of martial
is to integrate the three-tier standard set forth in *Youngstown* with
some of the principles articulated in the other cases discussed above.
Prior to invoking the *Youngstown* three-tier analysis, however, a
precondition of "necessity" is indispensable to any declaration of
martial law. Meeting this requirement increases the likelihood a court
will favorably view the President's exercise of discretion under trying
circumstances. Moreover, even if the President is operating under the
first-tier, with implied or express congressional approval, without
meeting this precondition of necessity, his actions will likely fail
judicial scrutiny.

The more dire the circumstances (hence, the greater the necessity), the
more direct action the President can take. For example, in *Milligan,*
the Court based part of its rationale upon the fact that the courts were
not closed. Arguably, the Court believed the military was going beyond
merely controlling the civilian population, and inserting itself into
the judicial realm---an area where there existed no need for the
military to operate. So, the standard of necessity was *not* met in that
case, at least to the extent the military wished as it attempted to try
civilians before military commissions. In contrast, in the Japanese
cases, the Court upheld the President's emergency actions because of his
ability to articulate why wartime conditions justified such extreme
actions. The conclusion to be drawn from all of these cases is that the
principle of necessity is not limited solely to the declaration of
martial law, but must also be matched against the type of action the
President takes under the umbrella of his newly declared authority.

Once necessity exists, under the first tier of the *Youngstown*[^204]
template, congressional action (or inaction) becomes the most critical
part of the analysis. Obviously, Congress has never acted to grant the
President explicit authority to impose martial law. But there is ample
evidence that Congress has granted both express and implied authority to
the military to act in certain law enforcement roles. Contrary to years
of tradition, the Posse Comitatus Act now is less like a roadblock than
a speed bump between the Armed Forces and ever-increasing law
enforcement roles.[^205] New legislation and initiatives geared to face
the emerging threats have charged the military with a central role in
the planning, training and execution phases of U.S. crisis readiness
plans. Taken together, these statutes and regulations create a strong
legal basis for the President to argue that Congress, upon conditions of
necessity, has implicitly authorized a proclamation of martial law.

The second tier under *Youngstown*[^206] perhaps presents the most
difficult legal analysis. Here, looking to congressional intent would be
fruitless so the President must act upon his "own independent
powers."[^207] However, when operating within this "zone of
twilight"[^208] where distribution of authority is "uncertain,"[^209]
the President may be invited to exercise "independent presidential
responsibility."[^210] It is here that the President's inherent
authority is arguably at its fullest, and it is here that the President
can be guided by certain factors. First, the actual events, or elements
of necessity, should be key in determining the President's
authority,[^211] and second, the extent to which the President is
exercising his power must be considered.[^212] Finally, in the second
tier, n the President can take some reassurance not only in knowing that
he is not acting contrary to congressional intent, but also from the
fact that no Supreme Court opinion specifically denounces the
constitutionality of martial law.

If the President acts directly contrary to congressional will, he is
squarely within the third tier of Justice Jackson's template. Even
accepting that the President possesses inherent, extra-constitutional
authority to "preserve"[^213] the nation, that power is not unfettered.
Here, the President is taking the greatest risk, both politically and
legally. Even though the Supreme Court is generally disinclined to
involve itself in these types of matters, acting contrary to the stated
will of Congress appears to be exactly the kind of "case" or
"controversy" that falls directly within the Supreme Court's authority
to adjudge.[^214]

Finally, one must examine and try to determine exactly where this leaves
the military commander. Martial law's "rubber hits the road" when
military authorities impose the President's orders upon individual
citizens. Under these circumstances, the commander's authority is
derived from the President's authority. If the President is justified in
taking action, that justification will flow down to support the
military's actions taken pursuant to the President's orders.

Any military commander would face numerous dilemmas under these
circumstances. Besides facing a hostile population, the commander must
weigh duties to obey orders against obligations to uphold the
Constitution. Even if the commander believes the order is lawful, he
must still remain vigilant not to violate the most basic human rights of
the very citizens he is trying to protect. Unfortunately, the lack of
training and preparation for such an eventuality probably leaves most
commanders ill-prepared to handle such a crisis.[^215]

# **VI. Conclusion** {#vi.-conclusion .unnumbered}

In 1998, Americans were exposed to the specter of martial law in the
form of a hit movie, [The Siege]{.smallcaps}.[^216] The movie vividly
depicted the aftermath of a terrorist attack on New York City where the
government declared martial law and rounded up thousands of
Arab-Americans and put them in internment camps.[^217] Unfortunately,
some time in the future, life may imitate art and America's experience
with martial law may extend outside the movie theater into reality. It
seems obvious that a number of anti-American groups exist both within
and without our borders that would not hesitate to employ terrorism and
other tactics that could result in upheaval and, perhaps, anarchy within
our country.[^218]

The circumstances that would prompt a declaration of martial law are so
horrendous that they are almost beyond contemplation. But that dreadful
eventuality should not translate into a lack of preparation, for if the
nation is prepared, it is less likely to fear even the most awful
possibilities. Those who worry about the profound legal, moral and
social implications of declaring martial law must seriously contemplate
Thomas Jefferson's insightful words:

> A strict observance of the written laws is doubtless one of the high
> duties of a good citizen, but it is not *the highest*. The laws of
> necessity, of self-preservation, of saving our country when in danger,
> are of higher obligation. To lose our country by a scrupulous
> adherence to written law, would be to lose the law itself, with life,
> liberty, property and all those who are enjoying them with us; thus
> absurdly sacrificing the end to the means . . . The officer who is
> called to act on this superior ground, does indeed risk himself on the
> justice of the controlling powers of the Constitution, and his station
> makes it his duty to incur that risk . . . . The line of
> discrimination between cases may be difficult; but the good officer is
> bound to draw it at his own peril, and throw himself on the justice of
> his country and the rectitude of his motives.[^219]

[^1]: *\* Major Davies is the Chief of Operations Law in the Office of
    the Staff Judge Advocate, 16^th^ Air Force, Aviano AB, Italy. He
    holds a B.U.S. from the University of Utah, a J.D. from the
    University of Utah College of Law, and an LL. M. in International
    and Operations Law from The Judge Advocate General's School, U.S.
    Army, Charlottesville, Virginia. He is a member of the bar in the
    state of Utah.*

    ^?^ Remarks of Oliver Cromwell[, John Bartlett, Familiar
    Quotations]{.smallcaps} 247 (16^th^ ed. 1992).

[^2]: A 1998 Frontline™ series episode discussed in detail the
    possibilities and ramifications of biological warfare. *Plague War*
    (PBS television broadcast, 13 Oct. 1998). In conjunction with the
    television series, PBS maintains a comprehensive web site, which
    includes a transcript of the broadcast, Frequently Asked Questions,
    texts of interviews not aired on the broadcast, and other resource
    materials (*available at* http:
    www.pbs.org/wgbh/pages/frontline/shows/

    plague) \[hereinafter Frontline Internet Site\]. The site offers the
    following information regarding smallpox:

    > Smallpox is a virus. It is highly contagious transmits through the
    > atmosphere very easily and has a high mortality rate. A worldwide
    > vaccination program eliminated smallpox in the 1970s. Both the
    > United States and the former Soviet Union officially maintained
    > small quantities of the virus at two labs. However, there is the
    > suspicion that it may have been or is still researched and
    > developed at other labs either within Russia or in other
    > countries, thus increasing the concern of smallpox being used as a
    >
    > biological weapon.

    *See* Frontline Internet Site at http:
    www.pbs.org/wgbh/pages/frontline/ shows/plague/

    etc/faqs.html (copy on file with [The Air Force Law
    Review]{.smallcaps}).

[^3]: Other possible scenarios might include one, or more, of the
    following conditions: wide-spread terrorist attacks with chemical or
    biological weapons, nuclear attacks, cyber-attacks on critical
    national computer systems, or conventional wars waged within our own
    borders. The purpose of this article is not to explore the relative
    likelihood of any of these scenarios. Instead, the author uses the
    biological attack scenario merely as a tool to illustrate the
    possible conditions that could lead to martial law.

[^4]: This article is not intended as an analysis of the American civil
    defense program. However, a layman's comparison of current U.S.
    civil defense activities with those of the Cold War era when
    Americans regularly participated in nuclear attack exercises
    supports this conclusion. Illustrative of the past attention given
    to civil preparedness was an exercise conducted by President Dwight
    D. Eisenhower in 1955. OPERATION ALERT, 1955, included the
    evacuation of government buildings in Washington D.C. and a
    "proclamation" of martial law by the President. *See* [N.Y.
    Times]{.smallcaps}, June 16, 1955, at 1. It is difficult to image
    the federal government today conducting such an extensive exercise.

[^5]: Frontline Internet Site, *supra* note Error: Reference source not
    found, at http: www.pbs.org/wgbh/pages/frontline/shows/

    plague/interviews/osterholm.html.

[^6]: International terrorist organizations, militia groups, millennial
    "doomsday" cults, and right-wing hate groups, to name a few.

[^7]: [U.S. Const.]{.smallcaps} art. II, § 3.

[^8]: *Id.* at art. I, § 8, cl. 15.

[^9]: *See generally* Colonel Charles J. Dunlap, *Welcome to the Junta:
    The Erosion of Civilian Control of the U.S. Military*[, 29 Wake
    Forest L. Rev. 341]{.smallcaps} (1994); [David
    Jablonsky]{.smallcaps}, *The State of the National Security States*,
    *in* [U.S. Nat'l Sec.,]{.smallcaps} 36 (Jul. 26, 1997) (citing James
    Dubik, *"The New Logic: The U.S. Needs Capability-Based, Not Threat
    Based Military Forces,"* [Armed Forces J. Int.]{.smallcaps}, Jan.
    1997, 43); [William S. Cohen, Ann. Rep. to the President and the
    Congress]{.smallcaps}, 5-11 (Apr. 1997); [William S. Cohen, Ann.
    Rep. to the President and the Congress]{.smallcaps}, 5-10 (1998);
    [William S. Cohen, Ann. Rep. to the President and the
    Congress]{.smallcaps}, 4-8 (1999); and [William S. Cohen, Ann. Rep.
    to the President and the Congress]{.smallcaps}, 4-9 (2000).

[^10]: For example, who should respond to an attack against nationwide
    sophisticated computer systems such as air traffic control or the
    national banking system, should the response be solely the Federal
    Bureau of Investigation or the Department of Defense or some
    combination? Who is best suited to respond to a terrorist-sponsored
    chemical weapon attack? The Department of Justice, who is authorized
    to do so, (*see infra* note Error: Reference source not found and
    accompanying text), or the Department of Defense? This shift in the
    traditional threat could lead the nation to continue to interject
    the military into roles that previously were handled by civilians.
    *See* Tom Bowman, *Clinton Suggests Budget Increase to Deal With
    Modern Terrorism*, [The Balt. Sun,]{.smallcaps}. Jan. 23, 1999, at
    3A ("We must be ready; ready if our adversaries try to use computers
    to disable power grids, banking, police, fire and health services,
    or military assets.").

[^11]: Because of its expertise, the President has tasked the military
    with training groups of civilians around the country on the proper
    response to chemical and biological attacks. *See generally, The
    Threat of Chemical and Biological Weapons, Before the Senate
    Subcomm. of Tech., Terrorism and Gov't, Info. Comm. on the
    Judiciary, and Select Comm. on Intelligence,* (1998), available in
    1998 WL 11516695, (statement of Janet Reno, Attorney General);
    *Federal Spending on Anti-Terrorism Efforts, Before the House
    Subcomm. on Nat'l Sec., Veterans Affairs, and Int'l Relations, Comm.
    on Gov't Reform,* House of Representatives, available in 1999 WL
    8085480 (statement of Henry L. Hinton, Jr., Assistant Comptroller
    General, National Security and International Affairs Division.)
    Beyond their expertise and training in dealing with chemical and
    biological weapons, the military is currently under an anthrax
    inoculation program. *See generally* information available at
    http://www.anthrax.osd.mil (DoD's anthrax program Website). These
    kinds of activities make the military the best choice to respond to
    the scenarios envisioned by this article.

[^12]: Pursuant to the anthrax inoculation program, military authorities
    have ordered military members to receive the anthrax vaccination, in
    preparation for facing future threats. Some have resisted such
    vaccinations, but their resistance has been met with direct orders,
    threats of punishment, and in some cases, courts-martial. *See
    generally* <http://www.af.mil/news/Apr1999/n19990423_990759.html>
    (AF summary court-martial);
    <http://www.af.mil/news/Mar1999/n19990301_990321.html> (AF special
    court-martial);
    <http://www.newstribune.com/stories/081899/wor_0818990038.asp> (US
    Navy special court-martial); and
    <http://www.jsonline.com/news/nat/ap/aug99/ap-anthrax-refusal081699.asp>
    and <http://starbulletin.com/1999/03/25/news/story11.html> (USMC
    courts-martial) (copies on file with [The Air Force Law
    Review]{.smallcaps}).

[^13]: 5 U.S.C. § 3331 (2000). *See also* Geoffrey S. Corn,
    *Presidential War Power: Do the Courts Offer Any Answers?*, [157
    Mil. L. Rev. 180, 187]{.smallcaps} n.22 (1998) (discussing
    Constitution's checks and balances among the executive, legislative
    and judicial branches).

[^14]: U.C.M.J. art. 92, 10 U.S.C. § 892 (2000).

[^15]: This article does not address whether or not the military would,
    under such circumstances, be prepared to restore law and order
    within the community. The military may be *better prepared* than
    most federal agencies to handle certain types of emergency
    situations. However, since the military does not train for such
    circumstances, it may also be seriously unprepared to impose and
    administer martial law.

[^16]: *See* Kurt Andrew Schlichter, *Locked and Loaded: Taking Aim at
    the Growing Use of the Military in Civilian Law Enforcement
    Operations*, 26 [Loy. L.A. L. Rev]{.smallcaps}. 1291 (1993).

[^17]: [U.S. Dep't of Defense Directive]{.smallcaps} 3025.12, para
    D(1)(c), [Military Assistance for Civil Disturbances
    (MACDIS)]{.smallcaps} (4 Feb. 94) \[hereinafter [DOD
    Dir]{.smallcaps}. 3025.12\].

[^18]: Assignment of Emergency Preparedness Responsibilities, Exec.
    Order No. 12656, 53 Fed. Reg. 47, 49 (1988).

[^19]: As the country pays more attention these issues, the military
    will likely emerge as a central player in whatever course the nation
    ultimately takes. For example, the DoD is "stationing 10 Rapid
    Assessment and Detection Teams (RADT), each composed of 22 specially
    trained Air Force and Army National Guard personnel, in 10 states to
    respond to chemical and biological weapons attacks." Jim Landers,
    *U.S. Quietly Upgrading Homeland Defense Plan*, [The Dallas Morning
    News]{.smallcaps}, Feb. 9, 1999 at 1A. In addition, some factors
    indicate that FEMA is not prepared to properly execute its
    statutorily authorized role to control disasters. One author stated,

    > \[i\]n practice, nobody knows who would do what if American
    > city-dwellers faced a lethal cloud of anthrax or nerve gas. An
    > exercise in March, designed to test the authorities' response to a
    > genetically engineered virus spread by terrorists on the
    > Mexican-American border, led to bitter squabbling among rival
    > agencies. "There is no clear demarcation line between the FEMA,
    > and knowledge about disease and hazardous materials is spread over
    > a broad array of institutions," says Zachary Selden, a
    > germ-warfare boffin. "Somebody is needed to sit on top of these
    > operations."

    *The National Guard in a Brave New World*, [The
    Economist]{.smallcaps}, May 9, 1998, at 25.

[^20]: *See* John M. Broder, *President Steps Up War On New Terrorism*,
    [N.Y. Times,]{.smallcaps} Jan. 23, 1999, at 14. (discussing the
    President's proposed new steps to defend against unconventional
    warfare, including creation of 25 "urban medical emergency teams to
    respond to germ weapons attacks."); *See also* Landers, *supra* note
    Error: Reference source not found; Paul Mann, *White House Shed
    Inertia on Germ War*, [Av. Wk. & Space Tech.]{.smallcaps}, May 4,
    1998, at 36.

[^21]: Mann, *supra* note Error: Reference source not found.

    > Stephen Sharro, Acting director of FEMA's terrorism coordination
    > unit, said his agency has very little funding for WMD or terrorism
    > specifically. Total dedicated funding amounts to \$6.8 million . .
    > . Sharro noted, however, that "FEMA is not the responder, it is
    > the coordinator of the federal response. So I would think the real
    > shortfall \[is in\] agencies like Public Health Service \[and
    > the\] Health and Human Services \[Dept.\], who are struggling
    > mightily to deal with these kinds of threats, and how you prepare
    > a nation this size for this new threat."

    For additional comments regarding the federal government's failure
    to properly allocate funds to preparing to counteract this threat,
    *see* Osterholm interview, *supra* note Error: Reference source not
    found.

[^22]: The 1996 Defense Against Weapons of Mass Destruction Act of 1996
    (known as Nunn-Lugar), *see* National Defense Authorization Act For
    Fiscal Year 1996, Pub. L. No. 104-106, §1201, 110 Stat. 186, 469
    (1996) has provided millions of dollars to train local communities
    on how to respond to nuclear and biological attacks. DoD trainers
    are an integral part of the program. Under this legislation, DoD and
    other federal agencies have established teams who teach local forces
    how to deal with explosives and nuclear, chemical and biological
    attacks. *See Federal Response to Terrorist Incidents Involving
    Weapons of Mass Destruction: Status of Dep't of Defense Support
    Program, Before the Subcomm. on Research and Development of the
    House Comm. on Nat'l Sec.,* 105^th^ Cong., 1997 WL 697573 (1997)
    (statement of Mr. James Q. Roberts, Principal Director to the Deputy
    Assistant Secretary of Defense (Policy and Missions), Office of the
    Assistant Secretary of Defense (Special Operations/Low-Intensity
    Conflict); *see also* Skip Thurman, *Cities Learn How to Handle
    Terrorists' Chemical Attacks*, [The Christian Science
    Monitor,]{.smallcaps} Aug. 26, 1997, at 3; Karen Ann Coburn,
    *Rehearsal for Terror*, [Governing Magazine]{.smallcaps}, Feb. 1998,
    at 22; Otto Kreisher, *Pentagon to Create More Chemical-Bio Response
    Teams*, [Copley News Service]{.smallcaps}, Mar. 17, 1998; and
    Frontline interview with William S. Cohen, United States Secretary
    of Defense, Frontline Internet Site, *supra* note Error: Reference
    source not found, at
    http://www.pbs.org/wgbh/pages/frontline/shows/plague/ interviews/

    cohen.html.

[^23]: *See* [U.S. Dep't of Defense, Dir.]{.smallcaps} 3025.1, [Military
    Support to Civil Authorities (MSCA),]{.smallcaps} para D(1)(d), (15
    Jan. 1993) \[hereinafter [DOD Dir.]{.smallcaps} 3025.1\].

[^24]: *See* [DOD Dir]{.smallcaps}. 3025.12, *supra* note Error:
    Reference source not found, para D(8)(a)(1-2).

[^25]: It is hard to predict how the President would react in a severe
    national crisis like the ones considered in this article.
    Nonetheless, it is somewhat predictable that federal agencies may
    not follow the prescribed, pre-planned method of response. Realistic
    training scenarios increase the likelihood that officials would not
    make these kinds of changes.

    > We do not want to be in a posture where the only thing which you
    > can do at that time is turn it into martial law because we haven't
    > done the process of . . . working out those standing arrangements
    > with FBI and working it out with local civil defense people and
    > emergency preparedness people. If none of that takes place . . .
    > that is far more likely to lead to an unacceptable role of the
    > military in our society.

    Jonathan S. Landay[,]{.smallcaps} *Delicate Task of Rallying Public
    About Threat of Terrorism*, [The Christian Science
    Monitor]{.smallcaps}, Feb. 3, 1999, at 2 (quoting a senior Pentagon
    official).

[^26]: See generally statement of Mr. James Q. Roberts, supra note
    Error: Reference source not found, (discussing the
    Nunn-Lugar-Domenici legislation and subsequent counter-terrorism
    actions).

[^27]: See Chris Chambers, *Military Number One in Public Confidence,
    HMOs Last*, at http://www.gallup.com/poll/releases/pr000710.asp
    ("The Gallup Poll's annual rating of Americans' confidence in the
    country's major institutions shows that the public has more
    confidence in the military than in any other institution tested)
    (copy on file with [The Air Force Law Review);]{.smallcaps} Rudi
    Williams, *Military, Civilians Follow Different Callings*,
    ("\[a\]ccording to public opinion polls, the armed forces are the
    most highly regarded institution in American society," quoting
    Charles Moskos, a sociology professor at Northwestern University) at
    http://www.defenselink.mil/news/May2000/n05302000_20005202.html,
    (2000) (copy on file with [The]{.smallcaps} [Air Force Law
    Review).]{.smallcaps}

[^28]: *See generally* Dunlap, *supra* note Error: Reference source not
    found, at n.121.

[^29]: *See* Duncan v. Kahanamoku, 327 U.S. 304, 320 (1946).

[^30]: [The Declaration of Independence]{.smallcaps} para. 15-17 (U.S.
    1776).

[^31]: *See* Dunlap, *supra* note Error: Reference source not found, at
    344 (citing generally [Richard H. Koh, Eagle and Sword: The
    Beginnings of the Military Establishment in America]{.smallcaps},
    1783-1802, at 3-9 (1975)).

[^32]: According to a 22-25 June 2000 poll on the amount of confidence
    in the country's major institutions, "\[t\]he military retains its
    leading position---as it has since 1986---with 64% of Americans
    giving it high confidence marks," outpolling organized religion, the
    police, the Supreme Court, and banks, among other well-known
    institutions. *See* Chambers, *supra* note Error: Reference source
    not found; *see also* Dunlap, *supra* note Error: Reference source
    not found, at 354 ("The American public no longer views the armed
    forces with the fear and loathing that produced the antimilitarism
    that provided the intellectual infrastructure for civilian control
    of the military in this country. In 1993 the steadily climbing
    approval rating for the military reached a twenty-seven-year high.")
    (citing *Public Confident About Military*, [Soldiers]{.smallcaps},
    June 1993, at 5 (reporting results from a Harris poll)).

[^33]: *See FY2000 Appropriations, the Air Force Posture, Before the
    Senate Comm. on Appropriations, Subcomm. on Defense*, 1999 WL
    8085693 (statement of F. Whitten Peters, Acting Secretary of the Air
    Force and General Michael E. Ryan, Chief of Staff).

    > In 1998, the Air Force flew more than 2,200 missions in the
    > Balkans, 27,000 missions over Southwest Asia, and 30,000 airlift
    > missions. During this same period, Air Force members participated
    > in over 1,600 exercises in 35 countries, and conducted almost 300
    > military-to-military contact visits in Europe and the Pacific.
    > Additionally, Air Force airlifters conducted almost 100 Denton
    > Amendment humanitarian relief missions to 30 countries, and
    > supported numerous joint force deployments throughout the year.

    *Id. See also* Brian Mitchell, *Air Force Heads for Bumpy Ride*,
    [Investor's Business Daily]{.smallcaps}, Sept. 25, 1998, at A1
    (noting the recent high number of mission requirements for the Air
    Force). Even though the author specifically refers to the Air Force
    in this article, similar facts could presumably be produced for the
    other Services.

[^34]: John Yoo, *War Powers: Where Have All the Liberals Gone?*, [The
    Wall St. J.]{.smallcaps}, Mar. 15, 1999:

    > When it comes to the use of American military, no president has a
    > quicker trigger finger than Mr. Clinton. Since December 1995, some
    > 20,000 American troops have implemented the peace accords in
    > Bosnia, American planes and missiles attack Iraq on an almost
    > daily basis, as well as enforce a no-fly zone. Last summer, Mr.
    > Clinton used cruise missiles to bomb terrorist targets in Sudan
    > and Afghanistan. In 1994, he ordered 16,000 troops into Haiti to
    > enforce its transition to civilian government. In 1993, Mr.
    > Clinton expanded the goals of the 28,000 American troops in
    > Somalia, originally deployed by Mr. Bush for humanitarian reasons,
    > but then withdrew them after the deaths of soldiers in combats. On
    > Mr. Clinton's watch American troops have participated in U.S.
    > peacekeeping mission in dangerous places such as Macedonia and
    > Rwanda.

    *Id.* at A19. *See also* Christopher Walker, *Long-Term Solution
    Needed in Kosovo*, [Newsday,]{.smallcaps} Mar. 3, 1999, at A39
    (noting that 7,000 American troops still remain in Bosnia).

[^35]: "The danger is in the inevitable expansion of that authority so
    the military gets involved in things like arresting people and
    investigating crimes . . . . It's hard to believe that a soldier
    with a suspect in the sights of his M-1 tank is well positioned to
    protect that person's civil liberties." Dith Miller, *Pentagon Seeks
    Anti-Terrorism Role*, [Portland Oregonian]{.smallcaps}, Jan. 30,
    1999, at A14 (quoting Gregory Nojeim, legislative counsel on
    national security for the American Civil Liberties Union, Washington
    D.C.). *See* Mr. Nojeim's further comment in Landay, *supra* note
    Error: Reference source not found, at 2 ("The best way to convince
    the public that the military isn't crossing the line into civilian
    law enforcement is to draw the line darker and heavier, not to blur
    it as the administration proposes yet again."); *see also* Bradley
    Graham, *Pentagon Plans Domestic Terrorism Team*, [The Wash.
    Post,]{.smallcaps} Feb. 1, 1999, at 2.

[^36]: [U.S. Const.]{.smallcaps} art. II, § 2.

[^37]: *See* [Lawrence Tribe, American Constitutional Law]{.smallcaps}
    353-56 (2d ed. 1988)) ("Because of national security interests and
    concern for unforeseen military exigencies, it was the intent of the
    framers to vest very great authority over these matters in
    Congress." (quoted in United States v. Weiss, 36 M.J. 224, 236
    (C.M.A. 1992), *aff'd*., 510 U.S. 163 (1994)).

[^38]: [U.S. Const.]{.smallcaps} art. I, § 8, cl. 11.

[^39]: *Id.* at cl. 12.

[^40]: *Id.* at cl. 13.

[^41]: *Id.* at cl. 14.

[^42]: *Id.* at cl. 15.

[^43]: *Id.* at art. II, § 2, cl. 2.

[^44]: *Id*. at art. I, § 8.

[^45]: *See generally* Elia V. Pirozzi, *The War Power and a
    Career-Minded Congress: Making the Case of Legislative Reform,
    Congressional Term Limits, and Renewed Respect for the Intent of the
    Framers*, [27 Sw. U.L. Rev. 185]{.smallcaps} (1997).

[^46]: *But see* Corn, *supra* note Error: Reference source not found,
    at 183 (noting that even though the Constitution envisions
    "congressional predominance" over the war power, "primary authority
    over the war power has shifted from that representative body to the
    executive branch.").

[^47]: A complete discussion of the history of the Supreme Court's
    exercise of judicial review of the executive branch is beyond the
    scope of this article. The precedent for such a practice was
    established in the historic case of *Marbury v. Madison*, 5 U.S. (1
    Cranch) 137 (1803). A number of authors have since discussed the
    *Marbury* decision, resulting in a diverse body of opinion on the
    meaning of the case. *See generally* Orrin G. Hatch, *Modern Marbury
    Myths*, [57 U. Cin. L. Rev. 891 (1989);]{.smallcaps} Dean Alfange,
    Jr., *Marbury v. Madison and Original Understandings of Judicial
    Review: In Defense of Traditional Wisdom*, [Sup. Ct. Rev.
    329]{.smallcaps} (1993); Michael Stokes Paulsen, *The Most Dangerous
    Branch: Executive Power to Say What the Law Is.*, [83 Geo. L.J.
    217]{.smallcaps} (1994).

[^48]: Parker v. Levy, 417 U.S. 733 (1974) (holding that a lower
    expectation of privacy existed in the military, a separate society
    with unique needs). *See also* Able v. United States, 155 F.3d. 628
    (1998), where the court noted,

    > \[d\]eference by the courts to military-related judgments by
    > Congress and the Executive is deeply recurrent in Supreme Court
    > caselaw and repeatedly has been the basis for rejections to a
    > variety of challenges to Congressional and Executive decisions in
    > the military domain. For example, the Supreme Court has upheld
    > Congress's delegation of authority to the President to define
    > factors for the death penalty in military capital cases;
    > Congress's authority to order members of the National Guard into
    > active federal duty for training outside the United States; the
    > President's authority as Commander in Chief to "control access to
    > information bearing on national security;" Congress's decision to
    > authorize registration only of males for the draft; Congress's
    > regulation of the conduct of military personnel under the Uniform
    > Code of Military Justice; and the President's discretion as
    > Commander in Chief to commission all Army officers.

    *Id*. at 633 (citations omitted).

[^49]: *See* *infra* note Error: Reference source not found and
    accompanying text.

[^50]: Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594
    (hereinafter Youngstown).

[^51]: This article is not intended as a comprehensive treatise on all
    of these rules. They are presented merely as support for the
    article's overall proposition that Congress has, in recent years,
    given explicit and implicit endorsement to the military's increased
    involvement in non-traditional roles.

[^52]: Army Appropriations Act, ch. 263, 15, 20 Stat. 145, 152 (1878)
    (codified as amended at 18 U.S.C. § 1385 (2000)).

[^53]: Matthew Carlton Hammond, *The Posse Comitatus Act: A Principle in
    Need of Renewal*, 75 [Wash. U. L. Q. 953]{.smallcaps} (1997). *See
    also* Colonel Paul Jackson Rice, *New Laws and Insights Encircle the
    Posse Comitatus Act*, 104 [Mil. Law Rev.]{.smallcaps} 109 (1984).

[^54]: 18 U.S.C.§ 1385 (2000).

[^55]: In reviewing the military's actions under the Act, courts have
    developed three tests for determining whether the military has
    violated the Act. The first test asks whether the military's actions
    were "active" or "passive." *See* United States v. Rasheed, 802 F.
    Supp. 312 (D. Hawaii 1992); United States v. Yunis, 681 F. Supp.
    891, 892 (D.D.C. 1988); United States v. Red Feather, 392 F. Supp.
    916, 921 (W.D.S.D. 1975). The second test asks whether the use of
    the armed forces "pervaded" the activity of civilian law enforcement
    officials. *See* Hayes v. Hawes, 921 F.2d 100 (7^th^ Cir. 1990);
    United States v. Hartley, 678 F.2d 961, 978 (11^th^ Cir. 1982). The
    third (and perhaps most common) test looks at whether citizens were
    subject to military power that was regulatory, proscriptive, or
    compulsory. *See* United States v. Kahn, 35 F.3d 426 (9^th^ Cir.
    1994); United States v. Casper, 541 F.2d. 1274 (8^th^ Cir. 1975).

[^56]: 18 U.S.C.§ 1385 (2000).

[^57]: 10 U.S.C.§§ 371-382 (2000).

[^58]: [DOD Dir.]{.smallcaps} 3025.1, *supra* note Error: Reference
    source not found, is the umbrella directive for dealing with civil
    emergencies and attacks. This directive governs all of DoD's
    planning a response for civil defense or other support to civil
    authorities, except, military support to law enforcement. *See also*
    [U.S. Dep't of Defense, Dir., 3025.15, Military Assistance to Civil
    Authorities]{.smallcaps}, (18 Feb. 1997) \[hereinafter [DoD Dir.
    3025.15.\] (]{.smallcaps}governing military support to law
    enforcement); [U.S. Dep't of Defense, Dir.,]{.smallcaps} 5525.5,
    [DoD Cooperation with Civilian Law Enforcement
    Officials]{.smallcaps}, (15 Jan. 1986) \[hereinafter [DoD Dir.
    5525.5\]]{.smallcaps} (providing additional guidance in this area).
    Note that law enforcement scenarios involving other federal agencies
    may also implicate the Economy Act, 31 U.S.C.§ 1535 (2000) if the
    request calls for sharing goods and services. *See generally*
    Winthrop, *infra* note Error: Reference source not foundError:
    Reference source not found, at 14.

[^59]: 10 U.S.C.§ 371 (2000).

[^60]: Id. at § 372.

[^61]: Id. at § 373.

[^62]: 10 U.S.C.§§ 124 and 371-82 (2000), also known as the Defense Drug
    Interdiction Assistance Act, Pub. L. No. 99-570, Title III, Subtitle
    A, § 3051, 100 Stat. 3207-74, (1986).

[^63]: [International and Operational Law Department, The Judge Advocate
    General's School, U.S. Army, Operational Law Handbook]{.smallcaps}
    344 (2001), quoting 10 U.S.C. § 124.

[^64]: 10 U.S.C.§§ 331-334 (2000). *See also* [DOD Dir]{.smallcaps}.
    3025.12, *supra* note Error: Reference source not found.

[^65]: *See* 32 C.F.R. 215.4(a).

[^66]: 10 U.S.C.§ 331 (2000).

[^67]: *Id.* at § 332.

[^68]: *Id*. at § 333. For a detailed discussion of DOD's rules relating
    to this topic, *see* [DOD Dir.]{.smallcaps} 5525.5, *supra* note
    Error: Reference source not found; *see also* [Operational Law
    Handbook]{.smallcaps}, *supra* note Error: Reference source not
    foundError: Reference source not found, at 337-344.

[^69]: Besides the two constitutional exceptions, the Code of Federal
    Regulations lists four statutory exceptions to the Posse Comitatus
    Act. They include the three statutory exceptions found in 10
    U.S.C.§§ 331-33, and another exception for assisting the Secret
    Service in providing protection to governmental officials and
    political candidates. 32 C.F.R. § 215.4(c)(2)(i)(a-d).

[^70]: *Id.* at § 215.4(c).

[^71]: *Id.* at § 215.4(c)(1)(i) states:

    > The emergency authority. Authorizes prompt and vigorous Federal
    > action, including use of military forces to prevent loss of life
    > or wanton destruction of property and to restore governmental
    > functioning and public order when sudden and unexpected civil
    > disturbances, disasters, or calamities seriously endanger life and
    > property and disrupt normal governmental functions to such an
    > extent that duly constituted local authorities are unable to
    > control the situations.

    *Id.*

[^72]: *Id. at* § 215.4(c)(1)(ii) (This section addresses protection of
    federal property and functions and "\[a\]uthorizes Federal action,
    including the use of military forces, to protect Federal property
    and Federal governmental functions when the need for protection
    exists and duly constituted local authorities are unable or decline
    to provide adequate protections." *Id.*).

[^73]: Interestingly, the Code of Federal Regulations also defines
    martial law. *Id.* at § 501.4. Noting, in relevant part, that,

    > martial law depends for its justification upon public necessity.
    > Necessity gives rise to its creation; necessity justifies its
    > exercise; and necessity limits its duration...In most instances
    > the decision to impose martial law is made by the President, who
    > normally announces his decision by a proclamation, which usually
    > contains his instructions concerning its exercise and any
    > limitations thereon...When Federal Armed Forces have been
    > committed in an objective area in a martial law situation, the
    > population of the affected area will be informed of the rules of
    > conduct and other restrictive measures the military is authorized
    > to enforce...Federal Armed Forces ordinarily will exercise police
    > powers previously inoperative in the affected area, restore and
    > maintain order, insure the essential mechanics of distribution,
    > transportation, and communication, and initiate necessary relief
    > measures.

    *Id.*

[^74]: Youngstown, 343 U.S. at 635 (Frankfurter, J., concurring).

[^75]: 42 U.S.C. § 5121 (2000).

[^76]: *Id. See also* [DoD Dir. 3025.1,]{.smallcaps} *supra* note Error:
    Reference source not found; [DoD Dir. 3025.15,]{.smallcaps} *supra*
    note Error: Reference source not found.

[^77]: 42 U.S.C.§ 5170b(c) (2000).

[^78]: For a more detailed discussion of the Stafford Act, *see
    generally* Commander Jim Winthrop, *The Oklahoma City Bombing:
    Immediate Response Authority and Other Military Assistance to Civil
    Authority (MACA)*, [Army Law.,]{.smallcaps} Jul. 1997, at 9-11.

[^79]: Technically, this authority does not fall under any of the
    categories previously discussed, although it is mentioned in of all
    the primary DoD Directives that cover support to civilian
    authorities. These Directives recognize the authority in the context
    of the scenarios they cover. *See* [DoD Dir.]{.smallcaps} 3025.1,
    *supra* note Error: Reference source not found, para. D5(a); [DoD
    Dir]{.smallcaps}. 3025.12 para. D2(b), *supra* note Error: Reference
    source not found; [DoD Dir.]{.smallcaps} 5525.5, *supra* note Error:
    Reference source not found, para. A2(c).

[^80]: *See* Winthrop, *supra* note Error: Reference source not found,
    at 4.

[^81]: *Id.*

[^82]: *Id*. at 3.

[^83]: [DoD Dir.]{.smallcaps} 3025.1, *supra* note Error: Reference
    source not found, para. D5. Under this directive, the military must
    receive a request for support from civil authorities before
    providing any emergency support.

[^84]: [DoD Dir]{.smallcaps}. 3025.12, *supra* note Error: Reference
    source not found, para D2(b). This directive does not require a
    request for support from civilian authorities before military
    authorities may provide needed assistance.

[^85]: These authorities provide military commanders some guidance on
    the types of actions they can take. For example, these directives
    limit commanders to providing support in the form of emergency
    medical care, clearance of debris, and recovery and identification
    of the dead. [DoD Dir]{.smallcaps}. 3025.12, *supra* note Error:
    Reference source not found. However, the list also includes
    safeguarding, collecting and distributing food, and "facilitating
    the reestablishment of civil government functions." [DoD
    Dir]{.smallcaps}. 3025.12, *supra* note Error: Reference source not
    found, para. D5(d).

[^86]: Winthrop, *supra* note Error: Reference source not found, at 6.
    *See also* [DoD Dir]{.smallcaps}. 3025.12, *supra* note Error:
    Reference source not found, para. D2(b)(1).

[^87]: Winthrop, *supra* note Error: Reference source not found, at 6.

[^88]: *See* discussion *supra* Part I.E.

[^89]: *Id.*

[^90]: *See 21^st^ Century Security Threats Before the Senate Armed
    Services Committee, Hearing on Transnational Threats,* United States
    Senate, 1998 WL 11515924 (1998) (statement of Walter B. Slocombe,
    Under Secretary of Defense for Policy) (discussing the involvement
    of military personnel in domestic anti-terrorism training programs).

    > The Department of Defense has prepared to play a significant role
    > in supporting other government agencies like the Federal Bureau of
    > Investigation for crisis response and the Federal Emergency
    > Management Agency for consequence management. DoD possesses
    > significant assets, including active forces, National Guard and
    > other reserve components, that, at the onset of a domestic NBC
    > terrorism incident, can be integrated into a coordinated Federal
    > response.
    >
    > \[T\]he Department is also implementing the Domestic Terrorism
    > Preparedness Program to train and exercise local first responders,
    > including firemen, law enforcement officials, and medical
    > personnel. Two parallel efforts are ongoing: first, training
    > responders in the nation's largest 120 cities; second, developing
    > training modules and establishing mechanisms to provide federal
    > expertise to every community in the nation, using mass media
    > formats such as the Internet, video and CD-ROM.

    *Id.* at Part C5.

[^91]: Jill Elaine Hasday, *Civil War as Paradigm: Reestablishing the
    Rule of Law at the End of the Cold War*, [5 Kan. J.L. & Pub. Pol'y
    129]{.smallcaps} (1996). As she noted:

    > While Clinton has had great difficulty controlling a military made
    > powerful and enormous by the Cold War, he too is attracted to the
    > ease and efficiency of emergency procedures. In the wake of the
    > April 19, 1995 terrorist attack on the Alfred P. Murrah Federal
    > Building in Oklahoma City, the most lethal act of terrorism in the
    > nation\'s history, Clinton has advocated amending the Posse
    > Comitatus Act, whose enactment finally ended Civil War crisis
    > government. Clinton's proposed amendment would allow military
    > personnel and equipment to be used to help civilian authorities
    > investigate crimes involving "weapons of mass destruction," such
    > as chemical or biological weapons. This exemption may be narrowly
    > drawn and reasonable, but there are good reasons for concern about
    > such a mingling of civil and military police responsibilities.
    > Beyond the possibility of military usurpation of civilian
    > authority, servicemen are unfamiliar with the constitutional
    > rights which guide domestic police work. Perhaps more
    > significantly, delegating domestic functions to the military
    > appears to be an implicit acceptance of the current size, power,
    > and resources of the military, all of which are products of the
    > Cold War.

    *Id.* at 142.

[^92]: Few would argue that the President has the authority to respond
    with force to an armed attack upon the United States. "An early
    draft of the Constitution vested in Congress the power to 'make' war
    rather than the power to 'declare' war. The change from 'make' to
    'declare' was intended to authorize the President the power to repel
    sudden attacks and to manage, as Commander-in-Chief any war declared
    by Congress." Commonwealth of Massachusetts v. Laird, 400 U.S. 886,
    893 (1970) (Douglas, J., dissenting)) and *see generally,* Note, The
    Congress, the President, and the Power to Commit Forces to Combat,
    81 [Harv. L. Rev]{.smallcaps}. 1771 (1968)). *See also* Jane E.
    Stromseth, *Collective Force and Constitutional Responsibility*, [50
    U. Miami L. Rev. 145, 158 (1995) (]{.smallcaps}"To be sure, the
    President as Commander in Chief clearly has the authority under the
    Constitution (and under Article 51 of the U.N. Charter) to repel
    sudden attacks against the United States and its forces."). For
    purposes of this article, the author assumes the President's
    authority to respond to civil disorder or crisis, either as a
    response to external attack (by a terrorist or nation state) or an
    internal attack (with a biological or chemical agent) is not an
    offshoot of this "repel" authority.

[^93]: Martial law has been imposed on the state level on numerous
    occasions, generally in the context of "labor strikes or other civil
    turmoil." Harry N. Scheiber and Jane L. Scheiber, *Bayonets in
    Paradise: A Half-Century Retrospect on Martial Law in Hawai'i*, 19
    [U. Haw. L. Rev]{.smallcaps}. 480 (1997) (citing Charles Fairman,
    *The Law of Martial Rule and the National Emergency*, 55 [Harv. L.
    Rev]{.smallcaps}. 1253 (1942)).

[^94]: 2 [W. Blackstone]{.smallcaps}, [Commentaries]{.smallcaps} 413,
    *quoted in* [Dycus et al., National Security Law 398
    (1990)]{.smallcaps} (emphasis added)[.]{.smallcaps}

[^95]: For some people, the distinction between "martial rule" and
    "martial law" is a distinction without a difference. For others, the
    terminology is important because of the underlying message sent by
    each term.

    > People imagine, when they hear the expression martial law, that
    > there is a system of law known by that name, which can upon
    > occasion be substituted for the ordinary system; and there is a
    > prevalent notion that under certain circumstances a military
    > commander may, by issuing a proclamation, displace one system, the
    > civil law, and substitute another, the martial . . . Let us call
    > the thing by its right name; it is not martial law, but martial
    > rule.

    [Charles Fairman, The Law of Martial Rule]{.smallcaps} 28
    [(]{.smallcaps}2 ed. 1943) (quoting David Dudley Field in his
    argument before the Supreme Court in *Ex parte Milligan*, 71 U.S. (4
    Wall.) 2, 35 (1866)).

[^96]: For purposes of this article, the author prefers to use the more
    common term, "martial law," in order to avoid confusion. However, he
    agrees that "martial rule" is a more desirable term for describing
    the condition of military imposed rule.

[^97]: [Fairman,]{.smallcaps} *supra* note Error: Reference source not
    foundError: Reference source not found, at 30. *See also* [Robert S.
    Rankin, When Civil Law Fails]{.smallcaps} 173-76 (1939) (surveying
    scholarly opinion positing that martial law is extraconstitutional
    in nature).

[^98]: [Major William E. Birkhimer, Military Government and Martial
    Law]{.smallcaps} ¶ 357, at 371 (3^rd^ ed. Revised, Franklin Hudson
    Publishing Co., 1914).

[^99]: United States v. Diekelman, 92 U.S. 520, 526 (1876).

[^100]: [Frederick Bernays Wiener, A Practical Manual of Martial
    Law]{.smallcaps} 16 (1940). *See also* [Fairman]{.smallcaps},
    *supra* note Error: Reference source not found, at 22;
    [Rankin]{.smallcaps}, *supra* note Error: Reference source not
    found, at 191.

[^101]: 32 C.F.R. § 501.4 (1999).

[^102]: *See* discussion *infra* Part 1.E.

[^103]: An obvious exception to this general rule is that federal troops
    may not take extreme actions, like torture, murder and rape, which
    would violate Americans' human rights, even in the name of national
    emergency. *See* discussion *infra* n.Error: Reference source not
    found*.*

[^104]: [53 Am. Jur. 2nd]{.smallcaps} *Military and Civil Defense* § 441
    (1996). *But see* [Wiener]{.smallcaps}, *supra* note Error:
    Reference source not found, at 15 ("\[T\]he purpose of martial law
    is not to replace the civil administration of law but to support it
    by brushing aside the disorders which obstruct its normal
    operation.").

[^105]: This article does not explore the full extent of a commander's
    authority while operating under a proclamation of martial law. But
    for a thorough discussion of what a commander may do under such
    circumstance, *see generally* [Fairman,]{.smallcaps} *supra* note
    Error: Reference source not found[, Rankin]{.smallcaps}, *supra*
    note Error: Reference source not found, [Birkhimer]{.smallcaps},
    *supra* note 98, and [Wiener]{.smallcaps}, *supra* note Error:
    Reference source not found.

[^106]: President Abraham Lincoln, Message to a special session of
    Congress (July 4, 1861), *quoted in* [William H. Rehnquist, All the
    Laws But One, Civil Liberties In Wartime,]{.smallcaps} at title page
    (1998).

[^107]: [U.S. Const.]{.smallcaps} art. II, § 1.

[^108]: [U.S. Const.]{.smallcaps} art. II, § 3.

[^109]: William C. Banks and Alejandro D. Carrio, *Presidential Systems
    in Stress: Emergency Powers in Argentina and the United States*, [15
    Mich. J. Int'l L. 1]{.smallcaps} (1993). The authors note that,

    > liberal constitutional thought in the 18^th^ century separated
    > lawful from lawless government by simply positing a boundary line:
    > "separate spheres of emergency versus non-emergency governance." .
    > . . Through the doctrine of prerogative, \[John\] Locke's version
    > of executive emergency powers was their extra-legal character. The
    > prerogative was to act "according to discretion, for the publick
    > \[sic\] good, without the prescription of the law, and sometimes
    > even against it."

    *Id.* at 10.

[^110]: Jules Lobel, *Emergency Power and the Decline of Liberalism*,
    [98 Yale L.J. 1385, 1390]{.smallcaps} (1989).

[^111]: Letter from Abraham Lincoln to A. Hodges (April 4, 1864)
    reprinted in [VII Collected Works]{.smallcaps} 281 (R. Basler ed.
    1953-1955) *quoted in* [Dycus,]{.smallcaps} *supra* note 94, at
    [83.]{.smallcaps}

[^112]: Regardless of the lack of explicit constitutional authority,
    society appears to recognize the fact that the President, as chief
    executive, possesses some authority to preserve the nation during a
    time of crisis. Interestingly, among all of the Supreme Court cases
    (*see* discussion *infra* Part III) that have addressed martial law,
    none have stated that it is completely unlawful for the President to
    declare it. Instead, they focus on the preconditions necessary for
    its imposition. Alexander Hamilton stated:

    > \[I\]t is impossible to foresee or define the extent and variety
    > of national exigencies, and the corresponding extent and variety
    > of the means which may be necessary to satisfy them. The
    > circumstances that endanger the safety of nations are infinite,
    > and for this reason no constitutional shackles can wisely be
    > imposed on the power to which the care of it is committed.

    THE FEDERALIST No. 23, at 153 (Alexander Hamilton) (Clinton Rossiter
    ed. 1961) (*quoted in* Oren Gross, "*Once More Unto the Breach*":
    *The Systemic Failure of Applying the European Convention on Human
    Rights to Entrenched Emergencies*, 23 [Yale J. Int'l L.]{.smallcaps}
    437, 439 (1998). *But cf.* Henry Paul Monaghan, *The Protective
    Power of the Presidency*, [93 Colum. L. Rev. 1 (1993).]{.smallcaps}

[^113]: [Fairman]{.smallcaps}, *supra* note Error: Reference source not
    found, at 47. (Translation: That which, in fact, you know you need,
    defend.).

[^114]: Lobel, *supra* note Error: Reference source not found, at 1390.

[^115]: Martial law has been federally imposed only a few times,
    although various state governors have declared it on numerous
    occasions. Scheiber and Scheiber, *supra* note Error: Reference
    source not found, at 478, 480.

[^116]: Dames & Moore v. Regan, 453 U.S. 654, 661 (1981).

[^117]: Youngstown*,* 343 U.S. 579 (1952).

[^118]: *Id.* at 583.

[^119]: *Id.*

[^120]: *Id.*

[^121]: *Id.* at 582.

[^122]: *Id.* at 582.

[^123]: *Id.* at 584.

[^124]: Central to both the majority opinion concurring opinions was the
    fact the Congress had specifically refused to grant the President
    seizure authority. The majority opinion stated:

    > \[T\]he use of the seizure technique to solve labor disputes in
    > order to prevent work stoppages was not only unauthorized by any
    > congressional enactment; prior to this controversy, Congress had
    > refused to adopt that method of settling labor disputes. When the
    > Taft-Hartley Act was under consideration in 1947, Congress
    > rejected an amendment which would have authorized such
    > governmental seizures in cases of emergency. Apparently it was
    > thought that the technique of seizure, like that of compulsory
    > arbitration, would interfere with the process of collective
    > bargaining. Consequently, the plan Congress adopted in the Act did
    > not provide for seizure under any circumstances.

    *Id.* at 586 (citations omitted).

[^125]: Besides Justice Black's opinion, the case includes five
    concurring opinions and a dissent by three Justices.

[^126]: *Id.* at 585.

[^127]: *Id.* at 587.

[^128]: *Id.* at 589 (Frankfurter, J., concurring).

[^129]: The concurring opinions show that a number of the Justices would
    agree that the President *does* enjoy some inherent emergency
    powers. Even though concurring with the majority, Justices
    Frankfurter, Burton and Clark, all expressed opinions that gave
    credence to the position that the President, as the chief executive,
    enjoys emergency powers not expressed in the Constitution. Justice
    Frankfurter stated:

    > In short, a systematic, unbroken, executive practice, long pursued
    > to the knowledge of the Congress and never before questioned,
    > engaged in by Presidents who have also sworn to uphold the
    > Constitution, making as it were such exercise of power part of the
    > structure of our government, may be treated as a gloss on
    > 'executive Power' vested in the President by § 1 of Art. II.

    *Id.* at 610 (Frankfurter, J., concurring). Justice Burton stated:
    "The present situation is not comparable to that of an imminent
    invasion or threatened attack. We do not face the issue of what
    might be the President's constitutional power to meet such
    catastrophic situations." *Id*. at 659 (Burton, J., concurring).
    Finally, Justice Clark stated:

    > In my view---taught me not only by the decision of Chief Justice
    > Marshall in *Little v. Barreme*, but also by a score of other
    > pronouncements of distinguished members of this bench---the
    > Constitution does grant to the President extensive authority in
    > times of grave and imperative national emergency. In fact, to my
    > thinking, such a grant may well be necessary to the very existence
    > of the Constitution itself. As Lincoln aptly said, "\[is\] it
    > possible to lose the nation and yet preserve the Constitution?" In
    > describing this authority I care not whether one calls it
    > "residual," "inherent," "moral," "implied," "aggregate,"
    > "emergency," or otherwise. I am of the conviction that those who
    > have had the gratifying experience of being the President's lawyer
    > have used one or more of these adjectives only with the utmost of
    > sincerity and the highest of purpose.

    *Id.* at 662 (Clark, J., concurring) (alteration in original)
    (citations omitted).

[^130]: Justice Rehnquist approvingly noted the views held by both
    parties in Dames & Moore by stating that "Justice Jackson in his
    concurring opinion in *Youngstown . . .* brings together as much
    combination of analysis and common sense as there is in this area."
    Dames & Moore, 453 U.S. at 661 (Jackson, J. concurring).

[^131]: Youngstown*,* 343 U.S. at 635 (Jackson, J., concurring).

[^132]: *Id*. at 637. Jackson went on to note the important impact
    congressional action might have on such a determination:

    > Therefore, congressional inertia, indifference or quiescence may
    > sometimes, at least as a practical matter, enable, if not invite,
    > measures on independent presidential responsibility. In this area,
    > any actual test of power is likely to depend on the imperatives of
    > events and contemporary imponderables rather than on abstract
    > theories of law.

    *Id.*

[^133]: *Id.*

[^134]: Justice Jackson stated that,

    > \[i\]n the practical working of our Government we already have
    > evolved a technique within the framework of the Constitution by
    > which normal executive powers may be considerably expanded to meet
    > an emergency. Congress may and has granted extraordinary
    > authorities which lie dormant in normal times but may be called
    > into play by the Executive in war or upon proclamation of national
    > emergency.

    *Id* at 652*.*

[^135]: *Id.* at 635 (emphasis added).

[^136]: Justice Jackson felt that just "because the President does not
    enjoy unmentioned powers does not mean that the mentioned ones
    should be narrowed by a niggardly construction. Some clauses could
    be made almost unworkable, as well as immutable, by refusal to
    indulge some latitude of interpretation for changing times." *Id.*
    at 640.

[^137]: Justice Jackson also stated that,

    > \[t\]he appeal, however, that we declare the existence of inherent
    > powers *ex necessitate* to meet an emergency asks us to do what
    > many think would be wise, although it is something the forefathers
    > omitted. They knew what emergencies were, knew the pressures they
    > engender for authoritative action, knew, too, how they afford a
    > ready pretext for usurpation. We may also suspect that they
    > suspected that emergency powers would tend to kindle emergencies .
    > . . . I do not think we rightfully may so amend their work, and,
    > if we could, I am not convinced it would be wise to do so.

    *Id.* at 649-650.

[^138]: 453 U.S. 654 (1981) (Presidential orders nullifying attachments
    on Iranian assets after 14 November 1979 and suspending all claims
    against Iranian government, held authorized by International
    Emergency Economic Powers Act (50 U.S.C. § 1702) and congressional
    approval of claims settlement procedures).

[^139]: *Id.* at 669 (citations omitted).

[^140]: *Id.* at 678 (quoting Haig v. Agee, 453 U.S. 280, 291 (1981),
    and Youngstown, 343 U.S. at 637 (Jackson, J., concurring)).

[^141]: Justice Jackson mentioned that "\[a\]side from the suspension of
    the privilege of habeas corpus," the framers made "no express
    provision for exercise of extraordinary authority because of a
    crisis." Youngstown*,* 343 U.S. at 650. In a footnote to that
    comment, he wrote: "I exclude, as in a very limited category by
    itself, the establishment of martial law." *Id*. n.19 (citing Ex
    parte Milligan, 71 U.S. (4 Wall.) 2 (1866) and Duncan v. Kahanamoku,
    327 U.S. 304 (1946) (citations omitted), (*see* *infra* Parts B and
    C for a discussion of these cases).

[^142]: Ex parte Milligan*,* 71 U.S. (4 Wall.) 2 (1866).

[^143]: [Rehnquist]{.smallcaps}, *supra* note Error: Reference source
    not found, at 60 (citations omitted). *See generally* Hasday,
    *supra* note Error: Reference source not found, at 130-32
    (discussing President Lincoln's actions relating to the suspension
    of the writ of habeas corpus during the Civil War.).

[^144]: [Rehnquist]{.smallcaps}, *supra* note Error: Reference source
    not found, at 60 (internal quotation marks omitted). For a near
    complete text of the proclamation, *see* [Rankin,]{.smallcaps}
    *supra* note Error: Reference source not found, at 55-56.

[^145]: [Rankin,]{.smallcaps} *supra* note Error: Reference source not
    found, at 56. The President issued another proclamation on 15
    September 1863, suspending the writ.

[^146]: Milligan*,* 71 U.S. at 115-118.

[^147]: [Rehnquist,]{.smallcaps} *supra* note Error: Reference source
    not found, at 89.

[^148]: Mr. Milligan and the other defendants were suspected of making
    plans to "stage an uprising and free the eight thousand Confederate
    prisoners at nearby Camp Douglas." *Id*. at 83.

[^149]: [Rankin]{.smallcaps}, *supra* note Error: Reference source not
    found, at 54.

[^150]: According to Chief Justice Rehnquist, a defendant tried before a
    military commission would lose some procedural protections that he
    would otherwise enjoy in the civil courts, since:

    > \[A\] defendant before a military court at this time was not
    > accorded some of the important procedural rights possessed by a
    > defendant in a civil court. But if a military commission could
    > simply decide for itself what acts were criminal, and what
    > sentence was appropriate upon conviction, a defendant before such
    > a commission suffered an additional and equally serious
    > deprivation, compared with his counter part in a civil court.

    [Rehnquist]{.smallcaps}, *supra* note Error: Reference source not
    found, at 85-86. Not only did the defendant receive fewer procedural
    protections at a trial by military commission, he was also subject
    to greater potential punishment. After a review of the then-existing
    federal treason statutes, Rehnquist states:

    > The charges before the military commission, on the other hand,
    > included offenses covered by these statues but swept more broadly
    > in several instances. But the greatest contrast was not in the
    > acts that were proscribed but in the maximum penalties authorized.
    > Both of the statutes quoted above set maximum imprisonment terms
    > at ten years and six years, respectively. But, as mentioned, the
    > military was authorized by a two-thirds majority to impose a
    > sentence of death.

    *Id.* at 88.

[^151]: Milligan, 71 U.S. (4 Wall.) at 120-121.

[^152]: *Id.* In a later case, the Supreme Court "cut back on some of
    the extravagant dicta favorable to civil liberty in *Milligan*."
    [Rehnquist]{.smallcaps}, *supra* note Error: Reference source not
    found, at 221. (discussing *Ex parte Quirin,* 317 U.S. 1 (1942)). In
    *Quirin*, the Court upheld the conviction by a military commission
    of seven men, six of whom were German citizens. 317 U.S. 20-21, 48.
    These men were apprehended during a failed secret attack mission
    against the United States. *Id.* at 21. Citing *Milligan*, the
    defendants argued that because the civil courts were open, and
    because there had been no invasion of the country, the military
    commission lacked jurisdiction over them. *Id.* at 45. In response,
    the Court limited *Milligan* to its facts, holding that,

    > \[t\]he Court's opinion is inapplicable to the case presented by
    > the present record. We have no occasion to define with meticulous
    > care the ultimate boundaries of the jurisdiction of military
    > tribunals to try persons according to the law of war. It is enough
    > that petitioners here, upon the conceded facts, were plainly
    > within those boundaries.

    *Id.* at 45-46. This analysis is more consistent with Court's
    approach in the Japanese cases, where it refused to interject itself
    into the area of war-making, and analyzed Presidential and
    Congressional actions under a reasonableness standard. *See*
    discussion *infra* Part D. In fact, the *Quirin* Court had no
    trouble accepting the government's argument that one of the
    defendants, who was arguably a U.S. citizen, had abandoned his
    American citizenship and was, therefore, subject to the laws of war.
    Quirin, 317 U.S. at 20-21 and 37-38. The atmosphere of wartime
    crisis that pervaded the nation likely influenced the Court's
    opinion. Perhaps even more meaningful to a discussion of martial law
    was the Court's acceptance that a non-belligerent would be subject
    to the law of war, albeit under certain narrow circumstances. Those
    circumstances would be "constitutionally established" martial law.
    *Id.* at 45. Thus the Court recognized that martial law might not
    only be legally supportable, but also constitutionally supportable

[^153]: Milligan, 71 U.S. (4 Wall.) at 120-121.

[^154]: *Id.* at 122.

[^155]: "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." [U.S. Const.]{.smallcaps} art. I, § 9, cl.
    2. The Constitution does not explicitly grant Congress the authority
    to suspend the writ. As the authority is found in Article I, the
    legislative section, the Framers presumably intended Congress to
    exercise that power. During the Civil War, Congress delegated the
    authority to the President, pursuant to the procedural restrictions
    mentioned above.

[^156]: Youngstown, 343 U.S. at 637.

[^157]: *Id.*

[^158]: The *Milligan* Court was not only concerned that Mr. Milligan's
    trial was in contravention of Congressional will, it was also
    concerned that his conviction violated basic constitutional rights,
    like his right to a trial by jury. Milligan, 71 U.S. (4 Wall.) at
    122-123.

[^159]: The Court seems to indicate at one point that martial law is
    unconstitutional:

    > It is claimed that martial law covers with its broad mantle the
    > proceedings of this military commission . . . . The statement of
    > this proposition shows its importance; for, if true, republican
    > government is a failure, and there is an end of liberty regulated
    > by law. Martial law, established on such a basis, destroys every
    > guarantee of the Constitution, and effectually renders the
    > "military independent of and superior to the civil power"-- the
    > attempt to do which by the King of Great Britain was deemed by our
    > fathers such an offence, that they assigned it to the world as one
    > of the causes which impelled them to declare their independence.
    > Civil liberty and this kind of martial law cannot endure together;
    > the antagonism is irreconcilable; and in conflict, one or the
    > other must perish.
    >
    > *Id.* at 124.

[^160]: In *Ex parte Merryman*, 17 F. Cas. 144 (C.C.D. Md. 1861) (No.
    9,487)), Chief Justice Taney, sitting as a circuit judge, held that
    only Congress had the authority to suspend the writ of habeas
    corpus. *Id.* at 148. In that case, Merryman had been seized after
    President Lincoln signed an order suspending the writ at the
    beginning of the Civil War. *Id.* Interestingly, President Lincoln
    ignored Chief Justice Taney's opinion and Merryman remained
    imprisoned. [Rehnquist]{.smallcaps}, *supra* note Error: Reference
    source not found, at 38-39.

[^161]: The Court focused on necessity and the courts being closed:
    "Martial law cannot arise from a threatened invasion. The necessity
    must be actual and present; the invasion real, such as effectually
    closes the courts and deposes the civil administration." Milligan,
    71 U.S., at 127.

[^162]: According to Rankin, this provision of the *Milligan* decision
    has been routinely misinterpreted. He states that,

    > \[t\]he *Milligan* case, in late years, has been called upon to
    > prove that when the civil courts are open, martial law cannot be
    > used. Such an interpretation is erroneous. The "open" court must
    > have unobstructed exercise of its jurisdiction, and it is possible
    > that the court might be open and yet its jurisdiction be
    > obstructed. Therefore, to make the broad statement that, by the
    > *Milligan* case, martial law cannot be established when the civil
    > courts are open is incorrect, for the courts must also be
    > unobstructed and functioning in the proper manner.

    [Rankin]{.smallcaps}, *supra* note Error: Reference source not
    found, at 63.

[^163]: The Court stated that,

    > it follows, from what has been said on this subject, that there
    > are occasions when martial rule can be properly applied. If, in
    > foreign invasion or civil war, the courts are actually closed, and
    > it is impossible to administer criminal justice according to law,
    > then, on the theatre of active military operations, where war
    > really prevails, there is a necessity to furnish a substitute for
    > the civil authority, thus overthrown, to preserve the safety of
    > the army and society; and as no power is left but the military, it
    > is allowed to govern by martial rule until the laws can have their
    > free courts. As necessity creates the rule, so it limits its
    > duration; for if this government is continued after the courts are
    > reinstated, it is a gross usurpation of power. Martial rule can
    > never exist where the courts are open, and in the proper and
    > unobstructed exercise of their jurisdiction. It is also confined
    > to the locality of actual war.

    Milligan, 71 U.S. (4 Wall.) at 127.

[^164]: *Id*. at 118.

[^165]: Duncan v. Kahanamoku, 327 U.S. 304 (1946).

[^166]: *See generally* [J. Garner Anthony]{.smallcaps}, [Hawaii Under
    Army Rule]{.smallcaps} 5 (1955) and [Rehnquist]{.smallcaps}, *supra*
    note Error: Reference source not found, at 212. Governor Poindexter
    relied on the authority of the territorial charter, enacted by
    Congress in 1900. Hawaii Organic Act § 67, ch. 339, 31 Stat. 141,
    153 (1900).

[^167]: [Anthony]{.smallcaps}, *supra* note Error: Reference source not
    found, at 5-6. For a complete text of the Governor's proclamation,
    *see id*., App. A at 127[.]{.smallcaps}

[^168]: See [Rehnquist]{.smallcaps}, *supra* note Error: Reference
    source not found, at 214.

[^169]: *Duncan* actually involved two petitioners. Petitioner Duncan
    was arrested for and convicted of assaulting two armed Marine
    sentries at the Honolulu Navy Yard where he worked. 327 U.S. at
    310-11. Petitioner White, a civilian stockbroker with no connection
    with the military, was arrested for and convicted of embezzling
    stocks belonging to another civilian. *Id.* at 309-310.

[^170]: *See* discussion *supra* Part A.

[^171]: The *Duncan* Court noted that, at the time Mr. Duncan was
    arrested, "\[c\]ourts had been authorized to 'exercise their normal
    functions.' They were once more summoning jurors and witnesses and
    conducting criminal trials." However, there were exceptions for
    cases like Duncan's, that involved violations of military orders.
    *See id.*

[^172]: As in *Milligan*, the Court's opinion may have turned on the
    summary manner in which the military commissions disposed of the
    petitioner's cases. As Justice Murphy noted:

    > \[T\]he military proceedings in issue plainly lacked
    > constitutional sanction. Petitioner White was arrested for
    > embezzlement on August 20, 1942, by the provost marshal. . . . On
    > August 25 he was convicted and sentenced to five years in prison.
    > Petitioner Duncan was accorded similar streamlined treatment by
    > the military. On February 24, 1944, he engaged in a fight with two
    > armed sentries at the Navy Yard at Honolulu. He was promptly tried
    > without a jury in the provost court on March 2 and was sentenced
    > to six months at hard labor, despite his plea of self-defense.
    > Both the petitioners were civilians entitled to the full
    > protection of the Bill of Rights, including the right to jury
    > trial.

    Duncan, 327 U.S. at 326. (Murphy, J., concurring.)

[^173]: Hawaii Organic Act § 67, ch. 339, 31 Stat. 141, 153 (1900).

[^174]: Until 1959, Hawaii was still a territory, not a State.

[^175]: Duncan, 327 U.S. at 316.

[^176]: *Id.* at 319.

[^177]: *Id.* at 315.

[^178]: *Id.* at 319. Justice Black reviewed some early American history
    along with some Supreme Court precedent to support his position that
    such broad authority under martial law is unacceptable. *See id.* at
    319-24. Justice Black makes some brief references to presidential
    authority to support his position. *See id.* at 323 n.21 (discussing
    President Johnson's post-Civil War veto of legislation that would
    have supplanted the civil courts with military tribunals).

[^179]: The *Duncan* opinion mirrored the *Milligan* opinion, holding
    that the American "system of government clearly is the antithesis of
    total military rule." Duncan, 327 U.S. at 322. The Court in *Duncan*
    reemphasized the necessary preconditions for acting under martial
    law, holding that "martial law" is only intended to authorize the
    military to act in such a manner in the cases where the courts are
    closed and when there exists an "actual or threatened invasion."
    *Id.* at 318.

[^180]: *Id.* at 324.

[^181]: Justice Black's belief that the Congress did not intend to
    authorize the imposition of *real* martial law is somewhat strained,
    especially considering the plain language in the statute. At worst,
    even if one were to accept Justice Black's contention that Congress
    didn't intend this type of action under martial law, the case would
    fall into the second tier.

[^182]: Or, proceeding under the analysis in *Milligan*, the Court could
    find that the imposition of martial law was within the first tier,
    but because the execution of the law was contrary to congressional
    intent such an action would fall within the third tier. Under the
    facts in *Duncan,* however, it would be hard to arrive at this
    conclusion.

[^183]: Hirabayashi v. United States, 320 U.S. 81 (1943) and Korematsu
    v. United States, 323 U.S. 214 (1944).

[^184]: Both of these cases involved executive orders issued by the
    President. Those executive orders were later authorized by an Act of
    Congress, which attached a criminal penalty for violating the
    orders. *See* Hirabayashi, 320 U.S. at 87; Korematsu, 323 U.S. at
    216.

[^185]: Hirabayashi, 320 U.S. at 93.

[^186]: *Id.* at 101-02. In *Korematsu*, the Court further noted that,

    > \[t\]he provisions of the Constitution which confer on the
    > Congress and the President powers to enable this country to wage
    > war are as much part of the Constitution as provisions looking to
    > a nation at peace. And we have had recent occasion to quote
    > approvingly the statement of former Chief Justice Hughes that the
    > war power of the government is "the power to wage war
    > successfully." Therefore, the validity of action under the war
    > power must be judged wholly in the context of war. That action is
    > not to be stigmatized as lawless because like action in times of
    > peace would be lawless. . . . To recognize that military orders
    > are "reasonably expedient military precautions" in time of war and
    > yet to deny them constitutional legitimacy makes of the
    > Constitution an instrument for dialectic subtleties not reasonably
    > to be attributed to the hard-headed Framers, of whom a majority
    > had had actual participation in war.

    Korematsu, 323 U.S. at 224-25 (Frankfurter, J., concurring) (quoting
    *Hirabayashi*, 320 U.S. at 93).

[^187]: Even though the Court recognized the existence of such emergency
    powers under the circumstances of "modern warfare," the Court's
    opinion does not spell out what standard it would apply to determine
    the legality of future actions. In *Korematsu*, the Court stated
    that, "exclusion from the area in which one's home is located is a
    far greater deprivation than constant confinement to the home from 8
    p.m. to 6 a.m. Nothing short of apprehension by the proper military
    authorities of the *gravest imminent danger* to the public safety
    can constitutionally justify either." 323 U.S. at 218 (emphasis
    added). The Court then added an additional standard, stating that
    "\[c\]ompulsory exclusion of large groups of citizens from their
    homes, except under circumstances of *direct emergency and peril*,
    is inconsistent with our basic governmental institutions." *Id.* at
    219-20 (emphasis added).

[^188]: The governmental actions taken in those cases are similar to
    those envisioned under a regime of martial law (*i.e.*, imposing
    curfews, restricting movement, etc.).

[^189]: *Korematsu*, 323 U.S. at 220. In other words, the greater the
    threat, the more willing the Court would be to accept otherwise
    unacceptable violations of Constitutional rights.

[^190]: *Id.* at 233 (Murphy, J., dissenting) (emphasis added).

[^191]: Regardless of whether our nation would legally or politically
    accept imposition of martial law, international law may still
    condemn actions taken under martial law. The United States, either
    through treaty or through customary international law, is bound to
    accord its citizens certain human rights. Imposition of martial law
    could violate these rights, subjecting the President or military
    commanders to liability. To help illustrate the point, Article 1 of
    The Universal Declaration of Human Rights states that "all human
    beings are born free and equal in dignity and rights." Other
    pertinent articles from the Declaration include:

    > Article 3--Everyone has the right to life, liberty and the
    > security of person.
    >
    > Article 7--All are equal before the law and are entitled without
    > any discrimination to equal protection of the law.
    >
    > Article 8--Everyone has the right to effective remedy by the
    > competent national tribunals for acts violating the fundamental
    > rights granted him by the constitution or by law.
    >
    > Article 9--No one shall be subjected to arbitrary arrest,
    > detention or exile.
    >
    > Article 10--Everyone is entitled to full equality to a fair and
    > public hearing by an independent and impartial tribunal, in the
    > determination of his rights and obligations and of any criminal
    > charge against him.
    >
    > Article 13--Everyone has the right to freedom of movement.

    Universal Declaration of Human Rights, G.A. res. 217 (AIII), U.N.
    Doc. A/810 at 71 (1948).

    Additionally, The American Convention on Human Rights reiterates the
    Universal Declaration and sets forth certain civil and political
    rights, including the right to life, right to humane treatment,
    right to personal liberty, the right to a fair trial, right to
    peaceful assembly, right to freedom of association, right to equal
    protection, and the right to judicial protection. *See* American
    Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series, No.
    36, at 1, OEA/Ser. L./V/II.23 doc. rev. 2., *entered into force*
    July 18, 1978 \[hereinafter *American Convention*\].

    The *American Convention* also contains a derogation clause. Article
    27, Suspension of Guarantees, states that in "time of war, public
    danger, or other emergency that threatens the independence or
    security of a State Party, it may take measures derogating from its
    obligations under the present Convention to the extent and for the
    period of time strictly required by the exigencies of the situation
    . . . ." The exception does not apply to all rights. Specifically,
    the clause states that any discrimination can not be based upon
    race, color, sex, language, religion, or social origin. Further, the
    Article states that several of its articles may not be suspended.
    Several Articles of the Convention may apply to the treatment of
    citizens under martial law. *See generally American Convention*,
    Article 3 (Right to Juridical Personality), Article 5 (Right to
    Humane Treatment), and Article 23 (Right to Participate in
    Government).

    The prerequisite for suspending these rights is necessity. According
    to one scholar,

    > in addition to the overarching requirement of temporary duration
    > and effect, several factors are considered when giving specific
    > content to the principle of exception danger. First, the
    > particular crisis must be actual or imminent. Derogation may not
    > be used as a purely preventive mechanism unless an imminent danger
    > exists. Second, normal measures available to the state should be
    > manifestly inadequate and insufficient to respond effectively to
    > the crisis . . . . Third, the threat must have nationwide effects
    > . . . The threat must endanger the whole population and either the
    > entire territory of the state or significant parts thereof.
    > Finally, the emergency must threaten the very existence of the
    > nation, that is, the "organized life of the community constituting
    > the basis of the State."

    Gross, *supra* note Error: Reference source not found, at 453-54.

    The principle of proportionality also applies to the derogation
    regime. According to the American Convention, the derogation regime
    applies "to the extent and for the period of time strictly required
    by the exigencies of the situation." *American Convention*, Article
    27. So, like martial law, necessity guides the executive's ability
    to rely on the derogation clause.

[^192]: Chief Justice Rehnquist notes that, "\[w\]ithout question, the
    government's authority to engage in conduct that infringes civil
    liberty is greatest in time of declared war . . . ."
    [Rehnquist]{.smallcaps}, *supra note Error: Reference source not
    found*, at 218.

[^193]: 10 U.S.C. § 892 (2000) and [Manual for Courts-Martial, United
    States,]{.smallcaps} Part. IV,

    ¶ 16 (2000 ed.) \[hereinafter MCM\].

[^194]: The punishment options range from a dishonorable discharge (or
    dismissal for an officer), forfeiture of all pay and allowances, and
    2 years confinement for disobedience of a lawful general order, to a
    bad conduct discharge for enlisted members (a dismissal for
    officers) and confinement for six months in cases of willful
    dereliction of duty. MCM, Part IV, ¶ 16(e)(1) and (3).

[^195]: U.C.M.J. art 133 and MCM, Part IV, ¶ 59(b)-(c). The maximum
    punishment available under Article 133 is a dismissal, forfeiture of
    all pay and allowances, and confinement for a period not to exceed
    that authorized for the most analogous offense when the punishment
    is prescribed in the Manual, or if not prescribed, one year. MCM,
    Part IV, ¶ 59(e).

[^196]: The infamous *Calley* court-martial from the Vietnam War era
    made it clear that the defense of "just following orders" would not
    exonerate an officer for unlawful behavior. *See* United States v.
    Calley, 48 C.M.R. 19 (1973), *aff'd sub nom.* Calley v. Callaway,
    519 F. 2d 184 (5^th^ Cir. 1975) (habeas corpus review), *cert.
    denied sub nom.* Calley v. Hoffman, 425 U.S. 911 (1976).

[^197]: MCM[,]{.smallcaps} Part IV, ¶ 14(c)(2)(a)(i) states that "\[a\]n
    order requiring the performance of a military duty or act may be
    inferred to be lawful and it is disobeyed at the peril of the
    subordinate. This inference does not apply to a patently illegal
    order, such as one that directs the commission of a crime."

[^198]: *Id.* at ¶ 16(c)(1)(c).

[^199]: The officer and enlisted oaths of office vary slightly, but the
    differences have serious ramifications when it comes to obeying a
    superior's orders to impose martial law. Commissioned officers swear
    (or affirm) an oath to, *inter alia*, "support and defend the
    Constitution." 5 U.S.C. § 3331 (2000). Enlisted members swear (or
    affirm) and oath "to support and defend the Constitution, obey the
    orders of the President of the United States and the orders of the
    officers appointed over \[them\], according to regulations and the
    Uniform Code of Military Justice." 10 U.S.C. § 502 (2000).

[^200]: 18 U.S.C. § 1385 (2000), *supra* note 52 (prohibiting federal
    military forces from assisting in local or state law enforcement
    roles, with certain exceptions).

[^201]: *See* *supra* note Error: Reference source not found and
    accompanying text.

[^202]: Youngstown, 343 U.S. at 629.

[^203]: *Id.* at 610 (Frankfurter, J., concurring).

[^204]: *Id.* at 635 (Jackson, J., concurring).

[^205]: *See* discussion *supra* Part A.

[^206]: *Id.* at 637 (Jackson, J., concurring).

[^207]: *Id.*

[^208]: *Id.*

[^209]: *Id.*

[^210]: *Id.*

[^211]: *Id.* ("In this area, any actual test of power is likely to
    depend on the imperatives of events and contemporary imponderables
    rather than on abstract theories of law.").

[^212]: As Justice Frankfurter implied, the President's authority may
    expand if exercised only for a "short, explicitly temporary period,
    to be terminated automatically unless Congressional approval were
    given. *Id.* at 597 (Frankfurter, J., concurring).

[^213]: *See* discussion *supra* note Error: Reference source not found.

[^214]: [U.S. Const.]{.smallcaps} art. III, § 2, cl. 1.

[^215]: It has been the author's experience that military attorneys
    receive little, if any, training on the subject of martial law. In
    addition, the author has not participated in any military training
    exercises that focused on dealing with civilians in the context of
    martial law. Even if such emergency plans exist, they are
    infrequently used in the context of military exercises.

[^216]: [The Siege]{.smallcaps} (Twentieth Century Fox 1998).

[^217]: As expected, the movie was extremely controversial. Most of the
    controversy focused on the improper stereotyping of Arab-Americans,
    but the issue of whether our country could ever face martial law
    also received a fair amount of attention, as well. *See* Cindy
    Pearlman, *Terrorism Message to Teach Tolerance; Director Zwick Has
    Moral Lesson*, [The Chicago Sun-Times]{.smallcaps}, Nov. 1, 1998, at
    SHO Section, p.3.

[^218]: One extremist group, led by Japanese cult leader Shoko Asahara,
    has already used chemical weapons against civilian targets, killing
    eleven and injuring 3,796 in a March 1995 Tokyo subway attack. *See*
    http://www.nttls.co.jp/fpc/e/shiryo/jb/j8.html (discussing poisonous
    sarin gas attack and the events surrounding the trial of the cult
    members) (copy on file with [the]{.smallcaps} [Air Force Law
    Review]{.smallcaps}). Others seriously contemplate the possibility.
    Consider the following exchange between a member of an American
    white supremacist group and a television interviewer:

    > LARRY WAYNE HARRIS: My view of the future is that we are facing
    > now a biological apocalypse. It is coming. The Bible says that it
    > is coming.
    >
    > NARRATOR: Larry Wayne Harris, a member of the white supremacist
    > group Aryan Nation, has been in constant trouble with the law for
    > his attempts to obtain plague bacteria and anthrax through the
    > mail. Harris has written a manual for do-it-yourself biological
    > warfare, and he claims it is easy to acquire these deadly agents.
    >
    > INTERVIEWER: Could you personally use biological organisms
    > offensively, if you have to?
    >
    > LARRY WAYNE HARRIS: Most definitely. I -- I hope I never have --
    > we never have to, but most definitely.
    >
    > INTERVIEWER: Do you believe, looking into the future, that you may
    > have to?
    >
    > LARRY WAYNE HARRIS: I hope and pray that I never have to.
    >
    > INTERVIEWER: That's not the question, Mr. Harris.
    >
    > LARRY WAYNE HARRIS: Yes.

    Frontline Internet Site, *supra* note Error: Reference source not
    found.

[^219]: Lobel, *supra* note 110, at 1393 (citing Letter from Jefferson
    to Colvin, 20 Sept. 1810, reprinted in 11 [The Works of Thomas
    Jefferson]{.smallcaps} 146, 148-49, (P. Ford ed. 1905)).