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

The Supreme Court's Analysis of Martial Law


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

Major Kirk L. Davies, the Imposition of Martial Law in the United States, 49 Air Force Law Review 67-218, 90-106 (2000)

Developing helpful rules to follow or legal standards to apply under martial law is extremely difficult because the Supreme Court of the United States has issued very few opinions on the subject.(1)

Perhaps the best way to predict how the Court would deal with a case of martial law is to analyze the few existing martial law cases, along with some of the Court's decisions relating to the Constitutional limits of executive power. Even here, though, the Supreme Court recently remarked that the "decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases." (2)

Nonethless, taken as a whole, the Supreme Court cases that deal with martial law and executive power reveal some important guiding principles.

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

A. The Seminal Case: Youngstown Sheet & Tube Co. v. Sawyer(3)

When considering the principle of the United States Constitution and the powers of the executive, Youngstown is probably the most important Supreme Court declaration on the principle. The case arose in the context of a threatened nation-wide strike in the national steel industry during the Korean War. President Harry Truman, concerned that the "proposed work stoppage would immediately jeopardize"(4)

national defense, issued an Executive Order directing the "Secretary of Commerce to take possession of most of the steel mills and keep them running."(5)

The steel companies protested the Secretary's actions and brought "proceedings against him in the District Court."(6)

Against this backdrop, the mill owners argued that "the President's order amount[ed] to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President."(7)

The government argued that the order "was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production."(8)

The Government further argued that a steel strike "would so endanger the well- being and safety of the Nation that the President had 'inherent power' to do what he had done--power 'supported by the Constitution, by historical precedent, and by court decisions."'(9)

The Court rejected the Government's position, holding that the Constitution did not give the President such broad authority.(10)

Unfortunately, the Court did not speak with a unified voice. (11)

Justice Black, who wrote the opinion of the Court, viewed the issue quite simplistically. If the President had authority to take such an action, he had to derive it either from an act of Congress or the Constitution itself--but his opinion found no legislation granting the President seizure authority.(12)

The opinion also rejected the argument that the President enjoyed any powers that could be "implied from the aggregate of his powers under the Constitution."(13)

Obviously, a majority of the Court joined Justice Black in his belief that the President's actions were unconstitutional. But the other justices who comprised the majority must have also agreed in principle with Justice Frankfurter who stated that "considerations relevant to the legal enforcement of the principle of separation of powers ... [were] more complicated and flexible"(14)

than what Justice Black had expressed in his opinion. As a result, the Court issued numerous concurring opinions, opinions which provide important guidance to a discussion of martial law.(15)

Of all these concurring opinions, Justice Jackson's provides the most useful and pragmatic approach to analyzing this issue.(16)

Justice Jackson posited a three-tiered approach to analyzing executive power under our constitutional scheme. First, "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum."(17)

Second, "[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain."(18)

Finally, "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."(19)

Justice Jackson was careful to emphasize his view that the President's emergency powers are derived from the Constitution,(20)

and are essentially shared with the Congress. Indeed, for Jackson, such power could only arise from an interaction between the legislature and the executive: "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress."(21)

And even though Jackson was willing to give these powers broad interpretation,(22)

he was unwilling to go so far as to declare the Executive possesses an inherent emergency power.(23)

Key to Justice Jackson's analysis is how congressional action or inaction affects presidential authority. On that point, Dames & Moore v. Regan(24)

is an important companion case to Youngstown, because it provides some guidance on how to apply the Youngstown test. In Dames & Moore, Justice Rehnquist noted:

Justice Jackson himself recognized that his three categories represented 'a somewhat over-simplified grouping,' and it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition.(25)

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

As we have noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially ... in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the Executive." On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures on independent presidential responsibility." At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President.(26)

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

The Youngstown opinion, read together with Dames & Moore, provides important guidance to any analysis of the President's authority to declare martial law. First, in dicta, Justice Jackson specifically excludes martial law from his assertion of an absence of inherent executive emergency powers.(27)

Even though martial law was not at issue in the Youngstown case, any Supreme Court recognition, albeit in dicta, that implicitly recognizes the validity of martial law, adds some strength to the argument that the President may lawfully impose it. This is particularly true when it is part of a discussion rejecting an inherent emergency power.

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

B. Ex parte Milligan(28)

In July 1862, President Lincoln's Secretary of War, Edwin M. Stanton, issued an order under the President's authority, suspending the writ of habeas corpus for "persons arrested for disloyal practices."(29)

Another order, issued the same day, directed U.S. marshals to arrest disloyal persons and stated that military commissions would try such persons. In September 1862, President Lincoln issued another proclamation that provided authority to subject to martial law and trial and punishment by courts-martial or military commissions, those individuals who were found "discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to rebels."(30)

In March 1863, Congress added to President Lincoln's proclamation by "passing a law which authorized the President to suspend the writ whenever he thought necessary and to detain those persons under arrest by the military authorities without interference by the civil courts."(31)

In passing the law, Congress specified that in jurisdictions where the civil courts were still open, the names of those individuals violating these laws be provided to the federal courts for presentation to a grand jury for indictment. If this procedure was not followed, the detainee should be discharged.(32)

Lambdin P. Milligan, a lawyer from Huntington, Indiana, had been active in Democratic politics and was sympathetic to the Confederate cause.(33)

Milligan, along with several other defendants, was tried for treason by a military commission in 1864.(34)

The Commission found Milligan guilty and sentenced him to be hanged. Milligan appealed his conviction to the Circuit Court of Indiana, which, in turn, certified the case to the Supreme Court of the United States.(35)

At the Supreme Court, Milligan argued that the military commission did not have jurisdiction over him as he was not a member of the armed forces.(36)

The government argued that as a result of the necessities of war, the President and the Congress suspended the writ of habeas corpus, and that the declaration of martial law justified the government's use of the military commission in the Milligan case. The Court rejected this argument, stating:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.(37)

In overturning Milligan's conviction, the Court rejected the government's argument that the laws of war justified the use of military commissions under the circumstances present in Milligan's case.(38)

The Court based its logic on the fact that the civil courts had remained open, despite the suspension of the writ of habeas corpus and the proclamation of martial law.(39)

Further, the Court noted its concern that the authorities had not followed the congressionally mandated procedures for suspending the writ, by stating that,

[t]his court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in nowise connected with the military service ... One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress.(40)

Because Congress had established procedures for suspension of the writ, Milligan's conviction by military commission was clearly in direct opposition to stated congressional intent.(41)

If we apply these facts to Justice Jackson's three-tier approach in Youngstown, the President's actions would fall into the third tier. By trying Mr. Milligan at a military commission, without following the procedures established by Congress, the President was taking "measures incompatible with the expressed or implied will of Congress."(42)

Under a Justice Jackson's Youngstown analysis, then, the President's actions must be supportable under "his own constitutional powers minus any constitutional powers of Congress over the matter."(43)

So, even under Justice Jackson's theory in Youngstown, Milligan's conviction would likely have been overturned.(44)

In Milligan, the Court also provided guidance, albeit in dicta, for determining when, if ever, martial law would be justified.(45)

The Court noted that the Constitution only provides for the suspension of the enumerated right--the writ of habeas corpus.(46)

Nevertheless, the Court implicitly recognized that there may be situations where martial law would be needed. But even as the Court stated that necessity is a prerequisite for martial law it repeated the earlier assertion that in order to declare martial law, the courts must be closed.(47)

According to the Milligan Court, "proper" martial law can only be allowed under narrow circumstances, i.e., under, (a) strict conditions of necessity, (b) during war (foreign invasions or civil war), (c) when the courts are closed,(48)

and (d) only in the area of the "actual war."(49)

Perhaps the most important point to be learned from Milligan, though, is that any exercise of emergency power by the President must be viewed in conjunction with congressional will. The Court did not declare unlawful the President's proclamation of martial law. It was the exercise of that power, in a manner contrary to congressional mandate, that caused the Court to opine that "[n]o graver question" had ever been considered by that Court.(50)

Interestingly, this opinion practically validated the Youngstown template that would follow by several years.

C. Duncan v. Kahanamoku(51)

Shortly after the 1941 Japanese surprise attack on Pearl Harbor, the Territorial Governor of Hawaii, Joseph B. Poindexter, declared martial law and suspended the writ of habeas corpus.(52)

Besides declaring martial law, Governor Poindexter authorized the commanding general of the Military Department of Hawaii, Lieutenant General Walter Short, "to exercise all of the powers normally exercised by judicial officers and employees" of the territory.(53)

Military rule lasted in Hawaii for nearly three years, until it was revoked by President Franklin D. Roosevelt.(54)

In his opinion overruling the three convictions obtained in Duncan, (55)

Justice Black, in his later opinion in Youngstown,(56)

looked primarily at whether Congress had authorized the trial of civilians(57)

by military commission under a declaration of martial law.(58)

Justice Black noted that the Organic Act(59)

did have a provision for placing the territory(60)

under martial law. But since the Act did not define the term "martial law," Justice Black looked to the legislative history to determine whether Congress intended to grant the military such broad authority.(61)

Finding no such authority, Justice Black looked to "other sources"(62)

to determine the meaning of the term martial law.

Justice Black did not clearly articulate a constitutional analysis of the executive's constitutional authority under martial law. Perhaps since the Constitution does not mention martial law,(63)

he found that question irrelevant. In looking at other "sources" to interpret the meaning of martial law, Justice Black stated that the "answer may be found in the birth, development and growth of our governmental institutions up to the time Congress passed the Organic Act."(64)

Justice Black ultimately decided that under these other authorities, the meaning of martial law did not include the trial of civilians by military commission, at least under the circumstances described in Duncan.(65)

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

We believe that when Congress passed the Hawaiian Organic Act and authorized the establishment of "martial law" it had in mind and did not wish to exceed the boundaries between military and civilian power, in which our people have always believed, which responsible military and executive officers had heeded, and which had become part of our political philosophy and institutions prior to the time Congress passed the Organic Act. The phrase "martial law" as employed in that Act, therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals.(66)

How the Duncan case would fare under Justice Jackson's three-tier approach is an interesting question. Since Congress had authorized the use of martial law, the actions taken would arguably fall into the first tier.(67)

In addition, besides passing the Organic Act, Congress was certainly aware that Governor Poindexter had placed Hawaii under martial law. Accordingly, the case fits best under Justice Jackson's first tier. But in view of the facts of both cases, upholding the convictions would not seem fair, even in light of possible congressional authorization of such trials.

Considering the quick rush to judgment in Duncan, perhaps the best way to support the finding (under the three-tiered analysis) would be to argue that even though the President's authority is at its fullest in the first tier, his actions must still be supported by the pre-condition of necessity. In Duncan, the courts were open and operating and the defendants were civilians who posed no real threat to security. Balancing those circumstances with the clear violation of the defendant's constitutional rights, it appears that the use of the military commission was not necessary and would therefore fail under the three-tier analysis, even if falling within the first tier.(68)

In the end, the holding stands for the proposition that without strict conditions of necessity, even Congress and the President acting together may not violate the Bill of Rights.

D. World War II Japanese Cases

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

In two cases, the Supreme Court considered the legality of those governmental actions.(69)

In both of these cases, the defendants were charged with violations of orders excluding them from certain areas or imposed curfews.(70)

These rules applied to persons of Japanese ancestry regardless of their citizenship status or evidence of heir loyalty to the United States. In both cases, the Court upheld the government's actions.

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

[w]here, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war- making, it is not for any court to sit in review of the wisdom of their action or to substitute its judgment for theirs.(71)

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

[o]ur investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statue afforded a reasonable basis for the action taken in imposing the curfew. In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made.Whether we would have made it is irrelevant.(72)

Despite widespread violations of citizens' most basic constitutional rights, the Court refused to interject itself into an area that it believed was beyond its authority.(73)

Korematsu and Hirabayashi are not martial law cases, but while both are instructive, Korematsu is particularly useful for determining how the Court might view similar actions under a declaration of martial law.(74)

In Korematsu, the Court first implicitly recognized the principle of necessity, and permitted otherwise unacceptable actions because, in its estimation, the conditions warranted them. Second, the Court recognized that the severity of the actions must relate to the level of the threat, stating that "when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger."(75)

Finally, the Court judged the case in the context of the executive and legislative branches operating together, and did not elaborate on the outcome if the President had taken the actions in the absence of congressional authorization. Once again, the Court validated the significance of Youngstown's three-tier template.

Additionally, even though the case did not involve a declaration of martial law, Justice Murphy's dissent in Korematsu does offer another indication that the Court might, under proper circumstances, approve a regime of martial law. The dissent stated that excluding persons of Japanese ancestry from the Pacific Coast, "on a plea of military necessity in the absence of martial law ought not to be approved."(76)

By implication, then, Justice Murphy would approve similar actions when necessity dictated and martial law had been properly declared.

E. Summary

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

First, no opinion of the Supreme Court has ever declared martial law per se unlawful or unconstitutional. Second, the Supreme Court has recognized some presidential emergency authority. Third, the President's authority to act in emergencies is not unfettered.(77)

Fourth, the President's actions are more likely to survive Supreme Court scrutiny if he seeks congressional approval. And fifth, the more extreme the circumstances, the more extensive the power the Court would likely accord the President.(78)





1. . Martial law has been federally imposed only a few times, although various state governors have declared it on numerous occasions. Scheiber and Scheiber, supra note 93, at 478, 480.

2. . Dames & Moore v. Regan, 453 U.S. 654, 661 (1981).

3. . Youngstown, 343 U.S. 579 (1952).

4. . Id. at 583.

5. . Id.

6. . Id.

7. . Id. at 582.

8. . Id. at 582.

9. . Id. at 584.

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

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

Id. at 586 (citations omitted).

11. . Besides Justice Black's opinion, the case includes five concurring opinions and a dissent by three Justices.

12. . Id. at 585.

13. . Id. at 587.

14. . Id. at 589 (Frankfurter, J., concurring).

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

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

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

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

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

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

17. . Youngstown, 343 U.S. at 635 (Jackson, J., concurring).

18. . Id. at 637. Jackson went on to note the important impact congressional action might have on such a determination:

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


19. . Id.

20. . Justice Jackson stated that,

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

Id at 652.

21. . Id. at 635 (emphasis added).

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

23. . Justice Jackson also stated that,

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

Id. at 649-650.

24. . 453 U.S. 654 (1981) (Presidential orders nullifying attachments on Iranian assets after 14 November 1979 and suspending all claims against Iranian government, held authorized by International Emergency Economic Powers Act (50 U.S.C. 1702) and congressional approval of claims settlement procedures).

25. . Id. at 669 (citations omitted).

26. . Id. at 678 (quoting Haig v. Agee, 453 U.S. 280, 291 (1981), and Youngstown, 343 U.S. at 637 (Jackson, J., concurring)).

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

28. . Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

29. . REHNQUIST, supra note 106, at 60 (citations omitted). See generally Hasday, supra note 91, at 130-32 (discussing President Lincoln's actions relating to the suspension of the writ of habeas corpus during the Civil War.).

30. . REHNQUIST, supra note 106, at 60 (internal quotation marks omitted). For a near complete text of the proclamation, see RANKIN, supra note 97, at 55-56.

31. . RANKIN, supra note 97, at 56. The President issued another proclamation on 15 September 1863, suspending the writ.

32. . Milligan, 71 U.S. at 115-118.

33. . REHNQUIST, supra note 106, at 89.

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

35. . RANKIN, supra note 97, at 54.

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

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

REHNQUIST, supra note 106, at 85-86. Not only did the defendant receive fewer procedural protections at a trial by military commission, he was also subject to greater potential punishment. After a review of the then-existing federal treason statutes, Rehnquist states:

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

Id. at 88.

37. . Milligan, 71 U.S. (4 Wall.) at 120-121.

38. . Id. In a later case, the Supreme Court "cut back on some of the extravagant dicta favorable to civil liberty in Milligan." REHNQUIST, supra note 106, at 221. (discussing Ex parte Quirin, 317 U.S. 1 (1942)). In Quirin, the Court upheld the conviction by a military commission of seven men, six of whom were German citizens. 317 U.S. 20-21, 48. These men were apprehended during a failed secret attack mission against the United States. Id. at 21. Citing Milligan, the defendants argued that because the civil courts were open, and because there had been no invasion of the country, the military commission lacked jurisdiction over them. Id. at 45. In response, the Court limited Milligan to its facts, holding that,

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

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

39. . Milligan, 71 U.S. (4 Wall.) at 120-121.

40. . Id. at 122.

41. . "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it." U.S. Const. art. I, 9, cl. 2. The Constitution does not explicitly grant Congress the authority to suspend the writ. As the authority is found in Article I, the legislative section, the Framers presumably intended Congress to exercise that power. During the Civil War, Congress delegated the authority to the President, pursuant to the procedural restrictions mentioned above.

42. . Youngstown, 343 U.S. at 637.

43. . Id.

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

45. . The Court seems to indicate at one point that martial law is unconstitutional:

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

Id. at 124.

46. . In Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9,487)), Chief Justice Taney, sitting as a circuit judge, held that only Congress had the authority to suspend the writ of habeas corpus. Id. at 148. In that case, Merryman had been seized after President Lincoln signed an order suspending the writ at the beginning of the Civil War. Id. Interestingly, President Lincoln ignored Chief Justice Taney's opinion and Merryman remained imprisoned. REHNQUIST, supra note 106, at 38-39.

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

48. . According to Rankin, this provision of the Milligan decision has been routinely misinterpreted. He states that,

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

RANKIN, supra note 97, at 63.

49. . The Court stated that,

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

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

50. . Id. at 118.

51. . Duncan v. Kahanamoku, 327 U.S. 304 (1946).

52. . See generally J. GARNER ANTHONY, HAWAII UNDER ARMY RULE 5 (1955) and REHNQUIST, supra note 106, at 212. Governor Poindexter relied on the authority of the territorial charter, enacted by Congress in 1900. Hawaii Organic Act 67, ch. 339, 31 Stat. 141, 153 (1900).

53. . ANTHONY, supra note 166, at 5-6. For a complete text of the Governor's proclamation, see id., App. A at 127.

54. . See REHNQUIST, supra note 106, at 214.

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

56. . See discussion supra Part III.A.

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

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

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

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

59. . Hawaii Organic Act 67, ch. 339, 31 Stat. 141, 153 (1900).

60. . Until 1959, Hawaii was still a territory, not a State.

61. . Duncan, 327 U.S. at 316.

62. . Id. at 319.

63. . Id. at 315.

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

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

66. . Id. at 324.

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

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

69. . Hirabayashi v. United States, 320 U.S. 81 (1943) and Korematsu v. United States, 323 U.S. 214 (1944).

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

71. . Hirabayashi, 320 U.S. at 93.

72. . Id. at 101-02. In Korematsu, the Court further noted that,

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

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

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

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

75. . Korematsu, 323 U.S. at 220. In other words, the greater the threat, the more willing the Court would be to accept otherwise unacceptable violations of Constitutional rights.

76. . Id. at 233 (Murphy, J., dissenting) (emphasis added).

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

Article 3--Everyone has the right to life, liberty and the security of person.

Article 7--All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 8--Everyone has the right to effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9--No one shall be subjected to arbitrary arrest, detention or exile.

Article 10--Everyone is entitled to full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 13--Everyone has the right to freedom of movement.

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

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

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

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

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

Gross, supra note 112, at 453-54.

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

78. . Chief Justice Rehnquist notes that, "[w]ithout question, the government's authority to engage in conduct that infringes civil liberty is greatest in time of declared war ...." REHNQUIST, supra note 106, at 218.


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