Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Martial Law: Threat and Response

 

Syllabus
Resources
Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

Major Kirk L. Davies

From: Major Kirk L. Davies, the Imposition of Martial Law in the United States, 49 Air Force Law Review 67-218, 68-84 (2000)

 

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.(1)

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.(2)

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.(3)

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.(4)

Given the relative easy availability of biological and chemical weapons, and considering the number of groups(5)

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 ..."(6)

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 ...."(7)

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.(8)

Several factors could combine to continue this trend. First, the threats against national security have become more complicated and diverse.(9)

Second, the political leaders view the military as possessing critical expertise for responding to the varied threats previously mentioned. (10)

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.(11)

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(12)

and who are required to follow the President's orders,(13)

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.

A. 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.

B. Civilian Agencies' Response to Crises

One can easily construct a crisis scenario that overwhelms the capabilities of civilian law enforcement and relief agencies.(14)

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.(15)

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."(16)

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.(17)

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.(18)

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.(19)

In the area of biological attack, FEMA officials maintain an unusual position that they have inadequate funding(20)

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.(21)

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.(22)

The federal response to terrorist attack falls under the direction of the Department of Justice and the Federal Bureau of Investigation.(23)

However, the Department of Justice can enlist the support of DoD when conditions warrant.(24)

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.(25)

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.(26)

Along with this increased popularity, the American military establishment has become increasingly involved in domestic affairs. (27)

Despite these recent trends to the contrary, Americans have historically shown a strong aversion to military involvement in civil affairs.(28)

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.(29)

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."(30)

According to some national opinion polls, the American military has successfully case off this negative reputation.(31)

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.(32)

These non-traditional roles include enforcing peace in such places as Bosnia and Haiti and conducting counter- narcotics operations in Central and South America.(33)

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.(34)

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. (35)

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.(36)

Interestingly, the Framers gave Congress, not the President, the authority to declare war.(37)

Congress also has the authority to raise and support an Army(38)

and a Navy.(39)

The Congress may make rules and regulations for the military(40)

and call forth the militia.(41)

Congress must provide advice and consent to the President's appointment of officers.(42)

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."(43)

This limitation on long- term military funding ensures that the Congress maintains an active, regular role in regulating the affairs of the military.(44)

Clearly, the Constitution envisions a strong, regular involvement by the Congress in military affairs.(45)

In addition to congressional control, under our Constitutional scheme the judicial branch watches over the executive branch and its military activities. (46)

The Court has at times hesitated to fully interject itself into military affairs, calling the military a "separate society"(47)

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.(48)

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."(49)

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

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.(50)

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.(51)

Congress passed this Act "[i]n response to the military presence in the Southern States during the Reconstruction Era"(52)

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.(53)

Determining when the military is in violation of the Act can be difficult.(54)

However, considering the Act's punitive provisions, commanders have an obvious interest in ensuring they do not disobey it.(55)

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.(56)

Several different regulations govern military support to civilian law enforcement agencies. The application of these regulations depends upon the nature of the crisis involved.(57)

These exceptions to the Posse Comitatus Act allow the military to provide support to civilian law enforcement agencies by sharing information,(58)

loaning equipment, (59)

and providing expert advice and training.(60)

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.(61)

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."(62)

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.(63)

This authority exists even though responsibility for quelling such rebellions lies primarily with State and local governments.(64)

These statutory exceptions to the Posse Comitatus Act include insurrections within a state (upon the Governor's request);(65)

rebellions which makes it impracticable to enforce federal laws;(66)

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.(67)

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,(68)

generally applicable within the entire territory of the United States, to which the Posse Comitatus Act prohibition does not apply.(69)

The CFR cites two constitutional exceptions. The first is an emergency authority to prevent lost of life or property during serious disturbances or calamities.(70)

The second authority allows the use of military forces to protect Federal property and governmental functions.(71)

Obviously, the Code of Federal Regulations is not the source of the President's emergency response authority.(72)

However, when considering whether Congress has granted the President either "express or implied"(73)

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.

1. Disaster Relief

Under the Stafford Act,(74)

the President may commit federal troops to assist state governments in their disaster relief operations.(75)

Under this Act, the President may use military troops to perform work "essential for the preservation of life and property."(76)

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.(77)

2. 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."(78)

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.(79)

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."(80)

Local commanders at Fort Sill and Tinker Air Force Base provided this support under the theory of the commander's immediate response authority.(81)

This immediate response authority is mentioned in two Department of Defense Directives, one relating to disaster relief support to civil authorities,(82)

and the other relating to support for civilian agencies during civil disturbances.(83)

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.(84)

Commanders may act in these cases if there is an emergency that "overwhelms the capabilities of local authorities." (85)

The "most commonly cited rationale to support Immediate Response actions is the common law principle of necessity."(86)

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

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 (87)

--rules allowing for military support during law enforcement activities,(88)

and the President's continued use of the armed forces in these roles.(89)

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.(90)

This trend has serious implications for the legality of a President's actions under a proclamation of martial law.

 

 

1. . A 1998 Frontline superTM 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).

2. . 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.

3. . 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, June 16, 1955, at I. It is difficult to image the federal government today conducting such an extensive exercise.

4. . Frontline Internet Site, supra note 2, at http:www.pbs.org/wgbh/pages/frontline/shows/plague/interviews/osterholm.html.

5. . International terrorist organizations, militia groups, millennial "doomsday" cults, and right-wing hate groups, to name a few.

6. . U.S. Const. art. II, 3.

7. . Id. at art. I, 8, cl. 15.

8. . 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 (1994); DAVID JABLONSKY, The State of the National Security States, in U.S. NAT'L SEC., 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., Jan. 1997, 43); WILLIAM S. COHEN, ANN. REP. TO THE PRESIDENT AND THE CONGRESS, 5-11 (Apr. 1997); WILLIAM S. COHEN, ANN. REP. TO THE PRESIDENT AND THE CONGRESS, 5-10 (1998); WILLIAM S. COHEN, ANN. REP. TO THE PRESIDENT AND THE CONGRESS, 4-8 (1999); and WILLIAM S. COHEN, ANN. REP. TO THE PRESIDENT AND THE CONGRESS, 4-9 (2000).

9. . 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 23 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,. 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.").

10. . 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.

11. . 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 off 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-refusa1081699.asp and http:// starbulletin.com/1999/03/25/news/story11.html (USMC courts-martial) (copies on file with THE AIR FORCE LAW REVIEW).

12. . 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 n.22 (1998) (discussing Constitution's checks and balances among the executive, legislative and judicial branches).

13. . U.C.M.J. art. 92, 10 U.S.C. 892 (2000).

14. . 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.

15. . 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. 1291 (1993).

16. . U.S. DEP'T OF DEFENSE DIRECTIVE 3025.12, para D(1)(c), MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (MACDIS) (4 Feb. 94) [hereinafter DOD DIR. 3025.12].

17. . Assignment of Emergency Preparedness Responsibilities, Exec. Order No. 12656, 53 Fed. Reg. 47, 49 (1988).

18. . 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, 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, May 9, 1998, at 25.

19. . See John M. Broder, President Steps Up War On New Terrorism, N.Y. TIMES, 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 19; Paul Mann, White House Shed Inertia on Germ War, AV. WK. & SPACE TECH., May 4, 1998, at 36.

20. . Mann, supra note 20.

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 5.

21. . 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 superth 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, Aug. 26, 1997, at 3; Karen Ann Coburn, Rehearsal for Terror, GOVERNING MAGAZINE, Feb. 1998, at 22; Otto Kreisher, Pentagon to Create More Chemical-Bio Response Teams, COPLEY NEWS SERVICE, Mar. 17, 1998; and Frontline interview with William S. Cohen, United States Secretary of Defense, Frontline Internet Site, supra note 5, at http:// www.pbs.org/wgbh/pages/frontline/shows/plague/interviews/cohen.html.

22. . See U.S. DEP'T OF DEFENSE, DIR. 3025.1, MILITARY SUPPORT TO CIVIL AUTHORITIES (MSCA), para D(1)(d), (15 Jan. 1993) [hereinafter DOD DIR. 3025.1].

23. . See DOD DIR. 3025.12, supra note 17, para D(8)(a)(1-2).

24. . 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, Delicate Task of Rallying Public About Threat of Terrorism, THE CHRISTIAN SCIENCE MONITOR, Feb. 3, 1999, at 2 (quoting a senior Pentagon official).

25. . See generally statement of Mr. James Q. Roberts, supra note 22, (discussing the Nunn-Lugar-Domenici legislation and subsequent counter- terrorism actions.)

26. . 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); 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 AIR FORCE LAW REVIEW).

27. . See generally Dunlap, supra note 9, at n.121.

28. . See Duncan v. Kahanamoku, 327 U.S. 304, 320 (1946).

29. . THE DECLARATION OF INDEPENDENCE para. 15-17 (U.S. 1776).

30. . See Dunlap, supra note 9, at 344 (citing generally RICHARD H. KOH, EAGLE AND SWORD: THE BEGINNINGS OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783- 1802, at 3-9 (1975)).

31. . 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 27; see also Dunlap, supra note 9, 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, June 1993, at 5 (reporting results from a Harris poll)).

32. . 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, 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.

33. . John Yoo, War Powers: Where Have All the Liberals Gone?, THE WALL ST. J., 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, Mar. 3, 1999, at A39 (noting that 7,000 American troops still remain in Bosnia).

34. . "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 solider 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, 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 25, 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, Feb. 1, 1999, at 2.

35. . U.S. Const. art. II, 2.

36. . See LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 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)).

37. . U.S. Const. art. I, 8, cl. 11.

38. . Id. at cl. 12.

39. . Id. at cl. 13.

40. . Id. at cl. 14.

41. . Id. at cl. 15.

42. . Id. at art. II, 2, cl. 2.

43. . Id. at art. I, 8.

44. . 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 (1997).

45. . But see Corn, supra note 13, 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.").

46. . 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); Dean Alfange, Jr., Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom, SUP. CT. REV. 329 (1993); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is., 83 GEO. L.J. 217 (1994).

47. . 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).

48. . See infra note 183 and accompanying text.

49. . Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594, (hereinafter Youngstown).

50. . 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 nontraditional roles.

51. . Army Appropriations Act, ch. 263, 15, 20 Stat. 145, 152 (1878) (codified as amended at 18 U.S.C. 1385 (2000)).

52. . Matthew Carlton Hammond, The Posse Comitatus Act: A Principle in Need of Renewal, 75 WASH. U. L. Q. 953 (1997). See also Colonel Paul Jackson Rice, New Laws and Insights Encircle the Posse Comitatus Act, 104 MIL. LAW REV. 109 (1984).

53. . 18 U.S.C. 1385 (2000).

54. . 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 superth Cir. 1990); United States v. Hartley, 678 F.2d 961, 978 (11 superth 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 superth Cir. 1994); United States v. Casper, 541 F.2d 1274 (8 superth Cir. 1975).

55. . 18 U.S.C. 1385 (2000).

56. . 10 U.S.C. 371-382 (2000).

57. . DOD DIR. 3025.1, supra note 23, 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, (18 Feb. 1997) [hereinafter DOD DIR. 3025.15.] (governing military support to law enforcement); U.S. DEP'T OF DEFENSE, DIR., 5525.5, DOD COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS, (15 Jan. 1986) [hereinafter DOD DIR. 5525.5] (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 78, at 14.

58. . 10 U.S.C. 371 (2000).

59. . Id. at 372.

60. . Id. at 373.

61. . 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).

62. . INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 344 (2001), quoting 10 U.S.C. 124.

63. . 10 U.S.C. 331-334 (2000). See also DOD DIR. 3025.12, supra note 17.

64. . See 32 C.F.R. 215.4(a).

65. . 10 U.S.C 331 (2000).

66. . Id. at 332.

67. . Id. at 333. For a detailed discussion of DOD's rules relating to this topic, see DOD DIR. 5525.5, supra note 58; see also OPERATIONAL LAW HANDBOOK, supra note 63, at 337-344.

68. . 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).

69. . Id. at 215.4(c).

70. . 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.

71. . 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.).

72. . 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 marital 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.

73. . Youngstown, 343 U.S. at 635 (Frankfurter, J., concurring).

74. . 42 U.S.C. 5121 (2000).

75. . Id. See also DOD DIR. 3025.1, supra note 23; DOD DIR. 3025.15, supra note 58.

76. . 42 U.S.C. 5170b(c) (2000).

77. . 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., Jul. 1997, at 9-11.

78. . 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. 3025.1, supra note 23, para. D5(a); DOD DIR. 3025.12 para. D2(b), supra note 17; DOD DIR. 5525.5, supra note 58, para. A2(c).

79. . See Winthrop, supra note 78, at 4.

80. . Id.

81. . Id. at 3.

82. . DOD DIR. 3025.1, supra note 23, para. D5. Under this directive, the military must receive a request for support from civil authorities before providing any emergency support.

83. . DOD DIR. 3025.12, supra note 17, para D2(b). This directive does not require a request for support from civilian authorities before military authorities may provide needed assistance.

84. . 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. 3025.12, supra note 17. However, the list also includes safeguarding, collecting and distributing food, and "facilitating the reestablishment of civil government functions." DOD DIR 3025.12, supra note 17, para. D5(d).

85. . Winthrop, supra note 78, at 6. See also DOD DIR. 3025.12, supra note 17, para. D2(b)(1).

86. . Winthrop, supra note 78, at 6.

87. . See discussion supra Part I.E.

88. . Id.

89. . See 21 superst 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.

90. . 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 (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.

 

 
 
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