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
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
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
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)
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
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
he was unwilling to go so far as to declare the Executive possesses an inherent
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
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
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)
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
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
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)
under Justice Jackson's theory in Youngstown, Milligan's conviction would likely have been
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)
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
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
by military commission under a declaration of martial law.(58)
Justice Black noted that the
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)
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)
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
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
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)
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)
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
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.
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)
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
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.
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.
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
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.
327 U.S. 304 (1946) (citations omitted), (see infra Parts III.B and III.C for a discussion of
28. . Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
29. . REHNQUIST, supra note 106, at 60 (citations omitted). See generally
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.
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,
[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,
[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,
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
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
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
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
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
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
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
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.