Major Kirk L. Davies
Major Kirk L. Davies, the Imposition of Martial Law in the United States, 49
Air Force Law Review
67-218, 107-109 (2000)
A presidential decision to impose martial law raises the most profound legal, ethical and moral
questions imaginable. But once the order is issued, the President must rely on the military,
through its chain of command, to execute the order. If the President's decision to issue the order
is later questioned or held unlawful, the ramifications for the President lie in the political and
judicial realms: public criticism, impeachment, removal from office, injunction or reversal by the
Supreme Court, or indictment and conviction. For the military commander, the ramifications
could be similarly criminal and career ending.
Under Article 92 of the Uniform Code of Military Justice,(1)
a member of the United States
military may be held criminally liable for failure to obey lawful orders and for dereliction of duty.(2)
Depending on the circumstances, a commander who violates orders may also be punished for
conduct unbecoming an officer and a gentleman.(3)
Military members are required to obey lawful orders. They are not required to obey unlawful
orders, but they disobey orders at their own peril. (4)
When a military member receives an order, he
presumes it to be lawful, unless it is "patently illegal" or "directs the commission of a crime."(5)
According to the Manual for Courts-Martial, a general order or regulation is "lawful unless it is
contrary to the Constitution, the laws of the United States, or lawful superior orders or for some
other reason is beyond the authority of the official issuing it."(6)
A military commander is unlikely to ignore the terms "contrary to the Constitution" or "laws of
the United States" because all military officers, upon entering active duty service, swear an oath
to "uphold and defend the Constitution of the United States."(7)
Military commanders understand
the obligation to honor individuals' constitutional freedoms, and they receive indoctrination on the
role of the military in a democracy (i.e., the Posse Comitatus Act(8)
). These commanders, and their
legal advisors, will likely pause before executing an order that both involves them directly in
civilian law enforcement and which requires systematic violation of citizens' constitutional rights.
Considering the legal standard established in the Manual for Courts-Martial, the commander
who receives an order to execute martial law should obey the order. Unless "patently illegal,"
such as the extremely unlikely order to conduct mass executions of noncombatants or to torture
suspected criminals, (9)
there is sufficient judicial support for the Commander-in-Chief's authority to
proclaim martial law. In the end, the commander's best option would be to obey the order.
1. . 10 U.S.C. § 892 (2000) and MANUAL FOR COURTS-MARTIAL, UNITED STATES,
Part. IV, ¶ 16 (2000 ed.) [hereinafter MCM].
2. . The punishment options range from a dishonorable discharge (or dismissal for an
officer), forfeiture of all pay and allowances, and 2 years confinement for disobedience of
a lawful general order, to a bad conduct discharge for enlisted members (a dismissal for
officers) and confinement for six months in cases of willful dereliction of duty.
IV, ¶ 16(e)(1) and (3).
3. . U.C.M.J. art 133 and MCM, Part IV, ¶ 59(b)-(c). The maximum punishment available
under Article 133 is a dismissal, forfeiture of all pay and allowances, and confinement for a
period not to exceed that authorized for the most analogous offense when the punishment
is prescribed in the Manual, or if not prescribed, one year. MCM, Part IV, ¶ 59(e).
4. . The infamous Calley court-martial from the Vietnam War era made it clear that the
defense of "just following orders" would not exonerate an officer for unlawful behavior.
See United States v. Calley, 48 C.M.R. 19 (1973), aff'd sub nom. Calley v. Callaway, 519
F. 2d 184 (5 superth Cir. 1975) (habeas corpus review), cert. denied sub nom. Calley v.
Hoffman, 425 U.S. 911 (1976).
5. . MCM, Part IV, ¶ 14(c)(2)(a)(i) states that
"[a]n order requiring the performance of a
military duty or act may be inferred to be lawful and it is disobeyed at the peril of the
subordinate. This inference does not apply to a patently illegal order, such as one that
directs the commission of a crime."
6. . Id. at ¶ 16(c)(1)(c).
7. . The officer and enlisted oaths of office vary slightly, but the differences have serious
ramifications when it comes to obeying a superior's orders to impose martial law.
Commissioned officers swear (or affirm) an oath to, inter alia, "support and defend the
Constitution." 5 U.S.C. § 3331 (2000). Enlisted members swear (or affirm) and oath "to
support and defend the Constitution, obey the orders of the President of the United States
and the orders of the officers appointed over [them], according to regulations and the
Uniform Code of Military Justice." 10 U.S.C. § 502 (2000).
8. . 18 U.S.C. § 1385 (2000), supra note 52 (prohibiting federal military forces from assisting
in local or state law enforcement roles, with certain exceptions).
9. . See supra note 191 and accompanying text.