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
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
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
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
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
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
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
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
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
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
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)
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
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
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
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)
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)
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)
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)
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)
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
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)
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)
the Act's punitive provisions, commanders have an obvious interest in ensuring they do not
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
Several different regulations govern military support to civilian law
enforcement agencies. The application of these regulations depends upon the nature of the crisis
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)
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)
exists even though responsibility for quelling such rebellions lies primarily with State and local
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
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)
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
Obviously, the Code of Federal Regulations is not the source of the President's emergency
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
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
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)
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
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
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
and the President's continued use of the armed forces in these roles.(89)
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
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
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
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://
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
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
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
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
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.
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
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),
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
(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
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,
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
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
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.
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
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
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,
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
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.