Note, The Exercise of Emergency Powers , 85 Harvard Law Review 1284-1326 (April, 1972 (174 Footnotes)
So far this section of the Note has developed a framework for examining the constitutionality of government
actions taken to restore order during an emergency. The remainder of the section will turn to a discussion of
specific emergency measures. Three categories of emergency measures can be imagined: (1) those designed to deal
with mass public disorders; (2) those directed at surreptitious acts of political violence; and (3) those meant to cope
with disturbances of either or both types so severe that the civil government is unable to carry out its normal
functions. This subsection will examine several methods for restoring order within each category in terms of their
potential effectiveness and their impact on individual liberties. In this way a tentative evaluation can be made as to
the least restrictive alternative for dealing with each type of emergency.
I. Measures for Controlling Mass Public Disturbances. -- One feature common to many emergencies would be the
presence on the streets or other public facilities of large numbers of persons, often engaged in violent activities.
The most obvious response to such a situation would be for the government to deploy its police, supplemented
when necessary by federal troops, and to order them to use such force as is necessary to restore order. However,
exclusive reliance on the use of armed forces would involve a grave risk of increasing the level of violence and
causing extensive injury not only to participants in the disorder, but also to law enforcement officers and to
bystanders.
Police and troops might minimize the use of potentially deadly force by simply taking into custody all persons in
the area of the disturbance and detaining them until the government had the situation better under control. But
again many persons would suffer injury -- in this case deprivation of liberty -- without having committed any
offense of which they had some prior warning. Moreover, although the police might have had probable cause to
arrest many of those persons for such crimes as rioting or disorderly conduct, in the process of making
indiscriminate mass arrests they might not be able to keep the records necessary to establish probable cause at
arraignment or to convict at trial. The government would then lose the opportunity to prosecute and punish many
offenders.
These difficulties -- both practical and constitutional -- could be largely obviated, and the use of police and
military manpower made more effective, if the government employed emergency regulations to reduce the presence
of large numbers of persons on the street. Two such regulations will be considered: curfews and bans on public
gatherings.
(a) Curfews. -- The use of a curfew might limit damage and aid in restoring order in emergencies in several ways.
It would protect from injury both those persons who might otherwise enter the area unaware of the disorder and
nonparticipating onlookers; it would discourage vigilante action: it would reduce pedestrian and vehicular traffic
which might hinder police and firefighting mobility; it would prevent or reduce gatherings of people that might
engender mob violence; it would reduce the number of incidents requiring police actions in the disturbed area; and
finally it would create an easily applied rule of law for the police to enforce in lieu of the more ambiguous
commands of riot and breach-of-peace statutes. The effectiveness of curfews in handling the race riots of the
1960's indicates that they would prove a formidable aid in coping with mass disorders in a more serious
emergency situation.
Although a curfew would involve a significant infringement on individual liberties, it is unlikely that its use to
control even nonemergency disorders would be unconstitutional; most courts that have considered the issue have
upheld the use of curfews to deal with riots. It therefore seems certain that the imposition of at least some forms of
curfew in an emergency context would easily survive judicial challenge. However, three aspects of a curfew make
it particularly subject to abuse, thus making necessary as close judicial scrutiny of its application as is possible,
and, more importantly, suggesting the utility of executive and legislative consideration of alternative measures.
First, there would be a danger that the scope of a curfew might be more extensive in terms of duration or
geographical extent than was necessary to deal with the disorder. The problem of overbreadth is especially acute
with curfews because of the difficulty faced by legislatures and courts -- and indeed by executives -- in determining
whether a more limited curfew than the one imposed would be equally effective. For example, although a
disturbance might be limited to a particular area, a broader curfew might arguably be necessary to prevent its
spread or to increase the ease of curfew enforcement at the place of disturbance. Similarly, an all-day curfew
might be the best means of dealing with a mass disorder in its early stages despite the drastic nature of such a
measure. Legislative and judicial review of the imposition and extent of a curfew, therefore, might of necessity be
limited primarily to ensuring that some use of the measure was required by the circumstances and that the curfew
was not retained longer than necessary.
Second, if a curfew became operative immediately after its announcement, in the early stages of its application
many persons would be arrested for curfew violation without having had any notice of its imposition. The
government should therefore take care to provide notice either by sending out sound trucks to announce the terms
of the curfew or by instructing the police to issue a warning to persons abroad in the streets during the first few
hours that the curfew is in effect. Judicial review in this respect could be more effective than with respect to the
scope of the curfew, as a deterrent or at least as a means of obtaining a remedy for abuse.
Third, curfews are particularly susceptible of discriminatory enforcement, in part because the curfew statute itself
might allow police wide discretion in enforcing a curfew. Moreover, even if the curfew statute were precisely
drawn, the pattern of its enforcement would not likely be uniform because of the nature of the crime it necessarily
defines. Curfew violations frequently occur in situations where it is clear to the police that they pose no danger and
that an arrest would bear little relation to the goal of restoring order. Consequently, the police might refrain from
making an arrest unless the violator appeared to be a suspicious person. In such cases the curfew would be applied
like a loitering or vagrancy statute, which because of its vagueness often grants the police excessive discretion in
deciding whom to arrest. While during an emergency the police would probably arrest only those persons they
suspected of having participated in the disturbance, there is no guarantee that the decision would not be made
arbitrarily or with a discriminatory intent. As with loitering and vagrancy laws, charges by a defendant of
discriminatory enforcement by the arresting officer might prove incapable of judicial evaluation. Indeed, a curfew
would be more subject to abuse than a loitering or vagrancy law, since apart from the statutory exceptions, there is
no defense to the charge of curfew violations; mere presence on the street is conclusive proof of the crime.
Because of the potential for abuse of a curfew and the impediments to judicial scrutiny, alternative means of
dealing with mass disorders should be explored by the executive and legislature. One possibility would be to
expand the exceptions to the curfew statute to permit movement that did not contribute to the disorder or hinder
police efforts to suppress it. Such an exception would merely give recognition to an enforcement practice which
would likely exist anyway, while providing a defense to persons arrested and prosecuted for harmless violations of
the curfew. Furthermore, if the police were required first to order people off the streets before making arrests for
curfew violations that interfered with their efforts to suppress the disturbance, many needless arrests would be
avoided. Another alternative would be to impose regulations directed against the assembly of people rather than the
mere use of the streets.
(b) Bans on Demonstrations and Public Assemblies. -- During a mass disturbance, public assemblies present a
substantial possibility of producing subsequent violence. By banning the gatherings from the outset, police
resources that might have been needed for controlling the violence ensuing from the meetings would be available
to deal with other aspects of the emergency. If a meeting were attempted in violation of the ban, it would be easier
for the police to order its dispersal at the outset than at the point where immediate violent consequences were
threatened.
Such a total ban would exceed the scope of regulation on public assembly allowed by ordinary constitutional
doctrine. Although prohibitions on demonstrations and public meetings have been upheld for preventing such
consequences as violence, public inconvenience, and interference with governmental functions, the restrictions
have always been limited to cases in which a particular demonstration posed the danger of a specific disturbance.
For example, the Supreme Court has upheld the denial of a demonstration permit where "after a required
investigation it was found that the convenience of the public in the use of thestreets would ... be unduly disturbed."
It has also allowed an injunction against labor picketing where a background of violence by the workers "tainted"
their present activities, generating an atmosphere of fear and increasing the likelihood of future violence. While
the precise quantum of evidence required to justify a ban on meetings or demonstrations has not been defined,
more than a mere belief that violence may ensue is necessary, and it seems unlikely that a city could show that
conditions were so troubled that every public assembly would carry with it an unacceptable risk of violence.
During an emergency, however, it might be difficult to predict which public meetings or demonstrations would
create such a threat. Because of an atmosphere of fear and a possible polarization of social and political groups,
any public gatherings of large numbers of people might produce violent results by creating a situation in which
mob psychology would prevail and hostile responses by other groups would occur. A complete ban on all public
assemblies would be a far more effective measure than selective restraints. In addition, a complete ban, while
overinclusive in its impact, might nevertheless be less offensive to civil liberties than selective restraints, since
there would be a danger that the latter might be applied in an arbitrary manner, especially where the standard for
prohibiting a demonstration was so vague as to leave the decision to the discretion of an official.
A complete ban on public assemblies also seems less restrictive than a curfew, since only one of the possible uses
of streets and public facilities would be denied. However, such a ban would not likely be as effective as a curfew,
for while it would lessen the opportunity for recruiting persons to participate in the disturbance and for initiating
violent actions, those already committed to violence might continue their activities without the spur of public mass
meetings. To meet this problem, and yet still interfere less with freedom of movement than by imposing a curfew,
the government might extend the ban to any group of, say, more than three persons on the street, and empower the
police to order their dispersal.
2. Measures for Dealing with Surreptitious Political Violence. -- The measures previously discussed are likely to
be most effective in situations of mass public disturbances. This section deals with government responses to
emergencies characterized by surreptitious violence, such as terrorist bombings or sabotage, undertaken for
political ends. The gravity of this type of emergency situation derives from the fact that a relatively small number
of determined revolutionaries has the potential for inflicting great harm in their effort to overthrow the
government. By engaging in selective terrorism they could create an atmosphere of fear that might undermine the
confidence of people in the ability of the government to protect them. Furthermore, acts of sabotage against vital
public utilities, such as power plants or water reservoirs, could severely disrupt the normal functioning of society.
This type of violence presents the government with law enforcement difficulties that differ from both those arising
in mass disturbances and those of normal times. Faced with surreptitious acts of violence, it would, of course, be
more difficult for the government to discover the identity of the perpetrators than in mass public disturbances.
Moreover, there would be a greater certainty than with ordinary criminal acts that the same individuals would
continue to engage in violence, and the consequences of such violence for the functioning of the government and
society would probably be greater.
In order to protect individual liberties, the Constitution places restraints on the actions that the government may
take to prevent criminal activities. For example, fourth amendment limitations on searches make investigations
more difficult, and the due process clause limits the incarceration of potentially dangerous persons who have not
been convicted of a criminal offense. However, in order to deal with surreptitious violence in the context of an
emergency, the government might think it necessary to undertake searches that would not be permitted in normal
times and to detain persons considered dangerous who had not been tried and convicted. This subsection will
consider the circumstances in which these measures might be employed and the alternative forms that they might
take.
(a) Emergency Searches. -- The difficulty in obtaining information with regard to secret terrorist organizations
might make it impossible for the police to show probable cause to obtain search warrants during an emergency. As
a first step in restoring order, however, the government might conclude it was necessary to conduct searches on the
basis of small amounts of information, tips of questionable reliability, and mere hunches, in the hope of finding
suspects or the instruments of violence. Even though experience indicates that the widespread use of searches in
the absence of probable cause would likely be a rather inefficient means of dealing with an emergency -- it would
require large expenditures of police manpower with slim chances of obtaining the desired results -- law
enforcement officials are likely to employ the method when they are eager to find particular suspects or particular
contraband. During the 1970 emergency in Canada, for example, the government empowered the police to make
warrantless searches in an attempt to find the political hostages held by the Quebec Liberation Front.
There would, however, be constitutional difficulty with the unrestricted use of searches in an emergency. Many
persons with no connection whatever to the violence would suffer invasions of their privacy. While in many cases
such invasions might be a necessary consequence of good-faith efforts by the police to end the disturbance, the
abandonment of the warrant and probablecause requirements would free the police to make indiscriminate searches
regardless of whether they were related to restoring order or whether police might have used less restrictive
alternatives such as staking out or impounding a particular house. Thus, the police in some cases might invade an
individual's privacy arbitrarily, or with malicious intent. A partial solution to this problem would be for the courts
to relax the exclusionary rule for evidence seized without probable cause or a warrant only in trials for certain
crimes of violence, such as arson and sniping, that contributed directly to the continuation of the emergency
conditions. Evidence seized in searches that would be unconstitutional under ordinary fourth amendment standards
would continue to be excluded in trials for crimes unrelated to the violence that was at the root of the emergency.
In this way, the police would be less constrained in seeking evidence to find and convict terrorists and yet still
might be deterred from abusing their discretion to undertake searches.
Despite this possible compromise, the constitutional weakness and practical inefficiency of unrestricted searches
suggest that the government should use them sparingly. Moreover, where the government had some knowledge as
to either the location of suspects or their supplies, or the likely targets of the violence, two less restrictive
alternatives would be available that would likely contribute more efficiently to curbing the disorder: area searches
of houses pursuant to warrants, and on-the-street searches of individuals.
The advantages of a warranted area search would appear when the government had probable cause to believe that
a suspected terrorist or a supply of arms or explosives was located in a general area, or in one of several dwellings.
The government might be unable to pinpoint the location; or it might risk losing the opportunity for seizing such
persons or instruments of violence if it was required to spend extra time obtaining the information necessary to
narrow the focus of the search. For example, the government might receive a tip from a reliable informant that a
shipment of explosives would be stored in a certain neighborhood before being put to use. In such a situation,
courts might well want to issue warrants for the search of a wider area than ordinarily would be permissible under
the fourth amendment.
In order for a warrant to be valid in normal times, it must identify with considerable particularity the place to be
searched and the objects to be seized. With regard to the area to be searched, the police must show probable cause
for each dwelling unit covered by the search warrant. But the cases applying the one-dwelling rule all involved
situations where there did not seem to be any reason why the police could not pursue their source of information to
narrow the focus to one dwelling; the courts have not yet had occasion to define "exigent circumstances" justifying
wider searches. However, when the consequence of the inability of the police to conduct an area search would be
the escape of a suspected terrorist or the use of weapons or explosives, it seems reasonable to relax the particularity
requirement. Whether or not similar circumstances in normal times would also justify area searches, their use in an
emergency is clearly a less restrictive alternative to unlimited searches of houses without prior judicial approval.
Another alternative for curbing surreptitious acts of violence would be to conduct warrantless frisks and searches
of persons on the street in order to find weapons or explosives. Although this measure would often violate the
ordinary constitutional standard for frisks, since the police might have no criteria for judging which persons could
be reasonably suspected to be armed and dangerous, the intrusion seems less severe than house searches. However,
unrestricted frisks would pose the same problem as unrestricted house searches in that they would be likely to
intrude often upon the innocent and to involve an inefficient use of police manpower. Thus, where the violence
appeared to be directed against particular targets, such as banks or government buildings, a search of persons
entering those buildings would be a more effective means of dealing with the danger, and would be constitutional
without any need for warrants.
(b) Preventive Dentention. -- Because of the difficulty in piercing the secrecy of tightly knit subversive
organizations in order to determine which individuals are responsible for the violence, governments have
occasionally responded to emergencies marked by the threat or reality of sabotage or terrorism by detaining persons
on the ground that they are dangerous and will probably engage in such actions. During the Civil War, the writ of
habeas corpus was suspended and many thousands of persons suspected of disloyalty to the Union were interned.
Similarly, during World War II persons of Japanese ancestry were evacuated from the West Coast and interned in
the interior until the loyalty of each individual could be established. Military authorities in Israel have detained
suspected Arab terrorists. In Canada suspected members and friends of the Quebec Liberation Front were
detained during the crisis of October 1970. And the English government has recently employed its internment
powers to deal with the terrorist activities of the Irish Republican Army in Ulster.
(i) Detention of Persons Not Accused of Crime. -- Of all the emergency measures considered thus far, preventive
detention without trial of persons charged with no crime would appear to involve the most severe infringement
upon fundamental liberties. In the first place, it would undercut the protection normally afforded by the due process
clause by almost surely defining an offense in terms so vague and lacking in ascertainable standards of guilt that it
failed to give fair notice that certain conduct was forbidden. Moreover, although an administrative hearing might
be provided, the use of this measure would deny to those persons detained the right to a trial by jury at which guilt
would have to be proved beyond a reasonable doubt. Finally, the types of emergencies that might require the use of
such preventive detention -- those that were of long term and characterized by persistent violence -- would likely be
those in which there was substantial support for the goals of the terrorists among the population; the power to
intern those believed dangerous, therefore, would be likely to threaten a large number of suspects.
In addition to the inherent restrictiveness of preventive detention, the measure would be subject to grave abuse
because of the difficulty in choosing criteria on which to make a reasonably reliable prediction that an individual
would commit acts of violence in furtherance of the goals of those whose actions had created the emergency. Yet
without such criteria, the effectiveness of the measure would be doubtful, for the persons interned would not
necessarily constitute a more dangerous group than those who remained at liberty.
Two particular criteria have been adopted most often in the past in America and abroad. The first is race or ethnic
background. However, this criterion not only offends constitutional and moral values, but it also proved to be a
poor indicator of political loyalty during World War II, and it would not likely be any more relevant in a future
war with another country with which a significant number of Americans had racial or ethnic ties. A racial criterion
for detentions would perhaps be more reasonably related to the suppression of violence in a situation where
members of a specific racial group were the principal actors in a violent insurrection. Nevertheless, this standard
would probably be vastly overinclusive, for a large number of the members of a racial group which was providing
the primary support for a rebellion would be likely to remain uninvolved. The use of a racial criterion might then
serve only to drive these people into sympathy with the insurgents.
A second possible criterion would be prior speech or association. But the very possibility that the government
might use the exercise of these rights as the basis for denying persons their liberty would have a severe chilling
effect. Since there is no clear distinction between political activities and speech which merely indicate opposition to
the policies of the government and those which indicate a likelihood that an individual will engage in violent
actions, the use of thiscriterion would inevitably result in the suppression of lawful political dissent during the
emergency. Indeed, the government would be apt to be strongly tempted to use preventive detention precisely for
this purpose. The result would not only be that individuals would be unnecessarily deprived of their rights; but, in
addition, the emergency might be exacerbated both because the curbing of the opposition would prevent the
government from hearing the voices that might express the source of discontent, and because the suppression of
speech and peaceful association might compel expression through violence.
Whatever criteria might be used, the restrictiveness of detention without trial of those not charged with a crime
and the potential of this measure for abuse depend in part upon the means by which it is carried out. Two
approaches have been tried in the past. First, Congress has suspended the privilege of the writ of habeas corpus.
Second, Congress has established programs of administrative detentions for the purpose of investigating the
probability that certain persons would engage in violent or subversive activities and of continuing to confine those
who are found to be disloyal or dangerous.
At first glance, it would seem that the suspension of habeas would be the more drastic measure, for the decision of
Congress to take this action would be a political question that was nonjusticiable and the effect of suspension
would be to deny to the courts the power to order the release of individuals illegally confined by the government.
With regard to administrative programs of preventive detention, on the other hand, courts would be able both to
review the necessity for the program as a whole, and to order the release of individuals whose detention under the
program was unjustified.
Nevertheless, there are several reasons why suspension of habeas would be a preferable means of implementing
preventive detention. First, only the federal government would be able effectively to prevent all judicial review of
detentions by suspending habeas. This centralization of power would ensure that only emergencies of national
significance would call forth this extreme response. Second, because suspension of habeas is the exclusive
responsibility of Congress, the implementation of a habeas-based preventive detention would have to receive full
legislative consideration. Third, the fact that the suspension of habeas would indeed be such a drastic measure,
associated as the Great Writ is with the most fundamental of rights, would help ensure that its use would be limited
to only those emergencies that truly threatened the functioning of the government. Finally, while the suspension
of habeas could be used to deprive the courts completely of their power to protect persons detained illegally by the
government, it might also be tailored to permit the courts to provide some checks on the government's use of
internment without trial.
(ii) Denial of Bail. -- There is an alternative form of preventive detention, less restrictive than either of the above
methods, which would most often be equally effective in dealing with emergencies characterized by surreptitious
violence -- that is, pretrial detention by the denial of bail to persons arrested on probable cause of having
committed a criminal offense.
The constitutional status of the denial of bail in normal times is unclear. Although the federal Constitution and
most state constitutions prohibit the imposition of excessive bail, there is not a constitutional right to bail in every
case. Nevertheless, the Supreme Court has suggested that the only permissible standard for setting bail is a
determination of the amount necessary to assure the defendant's appearance at trial, thereby implying that its
denial for the purpose of preventing a defendant from committing further crimes while free on bail would violate
the eighth amendment. Whether or not this technique of preventive detention would be constitutional in normal
times, however, it clearly represents a less restrictive emergency measure than detention without trial of those not
even charged with a crime.
Also, denial of bail is likely to be a more efficient law- enforcement measure than other forms of preventive
detention. Although there seems to be difficulty in discovering reliable standards for predicting which persons are
likely to commit crimes and the available empirical studies indicate that the selective denial of bail in normal
times would have no significant effect on the crime rates, pretrial detention in an emergency could avoid these
difficulties. Persons who engaged in acts of violence for the purpose of overthrowing the government or making a
revolutionary change in the social order would seem more likely to commit further crimes while free on bail than
criminals whose motives are nonideological; for it seems reasonable to suppose that the law and the threat of
punishment would have less deterrent effect upon persons who did not regard their actions as criminal (but rather
as morally or politically necessary) and who, if successful, would face no danger of prosecution. Moreover, to infer
the motives of a defendant, unlike one not charged with a crime, the courts need not rely on evidence of speech and
association. Rather, the decision whether to grant bail could be based on the nature of the offense with which the
defendant was charged. Some crimes committed during an emergency -- for example, arson, sabotage, sniping, or
inciting to riot -- evince a determination to prolong the disturbance and advance its goals. The definition of
precisely which crimes should justify the application of pretrial detention would be a matter for the legislature to
decide. It seems clear, however, that they should not include crimes that were unrelated to the emergency, those
such as looting that involved merely taking advantage of the disorder for personal gain, or offenses like violations
of a curfew or of a ban on public assemblies which might have been inadvertent or of small consequence to the
disorder. Moreover, the category of offenses for which bail could be denied during an emergency should include
only those actions which not only demonstrated a commitment to the rebellion, but were also violent, or intended
to be violent. Persons arrested for acts of nonviolent civil disobedience or membership in an illegal organization
would not confront the government with a sufficiently grave or immediate danger to justify pretrial preventive
detention.
Despite its greater efficiency, however, it might be argued that pretrial detention would be a less effective means
of dealing with surreptitious violence than the forms of detention discussed earlier. First, the government would
have to await the commission of a crime to implement pretrial detention, while other detention measures could be
imposed prior to, and therefore prevent, the commission of violent acts by persons believed to be dangerous.
Second, the government would have to show probable cause for its arrests. Finally, the government eventually
would need to prove beyond a reasonable doubt the guilt of those persons it had arrested, since the defendant would
have to be released if a jury acquitted him.
The first two objections are unconvincing. The government might arrest suspected terrorists for the commission
of an inchoate crime, such as criminal conspiracy, one of whose purposes is to permit the government to act before
the substantive harm of the crime being plotted has been suffered. Furthermore, the amount of evidence required to
establish probable cause for an arrest for such a crime is quite small; if the government could not even show
probable cause to arrest an individual for conspiracy, its suspicion that that person was likely to be dangerous
would seem to be very weak indeed. As for the third objection, it is true that where the government would be
unable to convict a suspect, the detention could last only as long as it took to bring the accused to trial. However,
the emergency might be short-lived and, in any case, postponement of trials is preferable to confinement of a
suspect without probable cause to believe he committed a crime.
3. Martial Law. -- Emergency situations, whether characterized primarily by mass public disturbances or by
guerilla-like violence, can differ greatly as to their magnitude. At the most severe extreme, the government might
be faced with a rebellion so widespread and intense that it was unable to carry out its normal functions through
civilian institutions. It might then be necessary to govern by martial law. Although there has been much confusion
as to the meaning of this term, it is clear that martial law is not "law" at all in the sense of a body of rules, but
rather refers to the way in which governmental power may be exercised. Commentators generally define martial
law as the use of military forces to carry on the functions of civil government, carefully distinguishing it from the
mere use of the military as an aid to the civilian government.
However, the importance of this distinction may have been exaggerated. Although courts still occasionally use
language suggesting that a declaration of martial law results in the complete abandonment of constitutional
safeguards against actions taken by the military, the "direct relation" test of Sterling v. Constantin was formulated
with reference to and applied to overturn emergency measures taken by the military pursuant to an executive
declaration of martial law. There is no reason to believe, therefore, that judicial review of government actions in
an emergency should depend in any way on whether there had been a declaration of martial law or on whether the
emergency measures were carried out by military or civilian authorities. In either case the standard should be the
necessity of the measure to restore order.
Indeed, the idea that there is even in principle a sharp distinction between martial law and military aid to the
civilian government is itself questionable. Even if military forces merely supplemented local police or administered
a regulatory program, they would be carrying out some "functions" of civil government. Conversely, if the military
were used to govern in a way that all would agree constituted martial law, the ultimate authority would remain in
the hands of a civilian commander-in-chief -- a governor or the President. However, there has occurred historically
one situation where the military exercise of a governmental function has raised a distinct question for judicial
consideration -- the trial of civilians by military courts.
In Ex parte Milligan the Supreme Court held such military trials to be unconstitutional where the civil courts
were still open and able to function. The majority opinion stressed that only in an area that had actually been
invaded or where the legitimate governmental authority had been overturned could the use of military tribunals to
try civilians be justified. There is, however, another possible justification for the trial of civilians by military
courts. During a long-term insurrection like the Civil War, where the vast bulk of the population of a region
participated in, or sympathized with, the insurrection, it would likely be impossible for the government to obtain an
impartial jury willing to convict those accused of undertaking violent actions in support of the insurrection, despite
a vigorous and lengthy process of voir dire. Persons who sympathized with an accused would have a strong
incentive to hide that fact; where such sympathizers comprised a significant proportion of the local population, a
jury would be likely to include at least one, and thus would be unable to reach a unanimous verdict. Where this
result was apt to be repeated, a judge would have no choice but to dismiss the charges against the defendant and
order his release. While such an outcome may be acceptable in normal times, the release of suspected rebels
during an emergency might involve an intolerable threat to the security of the government.
The trial of suspected rebels by military tribunals would obviate both of these difficulties. The jury would be
chosen not from a panel composed of the defendant's peers, but from one consisting of soldiers, among whom the
presence of sympathizers would be considerably less probable. Moreover, whereas a jury in a civil court must
decide unanimously, the jury in such a military court would be empowered to act by a two-thirds vote in noncapital
cases.
Whatever the rationale for resort to military tribunals, there are several disadvantages to their use. First, the trial
of civilians by a military court would create a substantial risk of unjust convictions, despite recent legislation
reforming the Uniform Code of Military Justice. The men whose responsibility it had been to suppress the
rebellion would likely be prejudiced against a person whose involvement was sufficient to warrant his being
arrested and charged with a crime related to the disturbance. Furthermore, although military judges must now be
trained lawyers, and commanding officers are prohibited from attempting to influence the action of a
court-martial, it is unlikely that command influence could be altogether eliminated. Finally, while most of the
procedural rights that are constitutionally required in civil courts have been incorporated into military law by
changesin the UCMJ and by recent decisions of the Court of Military Appeals, substantially different rules of
procedure and evidence continue to apply to military trials. A second disadvantage of military trial is that once the
military was given emergency authority to exercise judicial functions, there would be a danger that it would seek to
perpetuate that authority beyond the time of the emergency. Third, the performance of judicial functions by the
military might sometimes impair the government's ability to restore order by diverting military resources from the
primary goal of suppressing the rebellion.
Two alternative measures could avoid these difficulties while effectively serving the purposes of military
tribunals. First, a civil court might be permitted to grant a government request for a change of venue if it was
satisfied that there existed in the district where the prosecution was pending such extensive disorder that a trial
could not be held or so great a prejudice against the government that it could not obtain a fair and impartial trial.
Second, if the reason for a military tribunal was only the danger that any local jury would be too partisan, a civilian
jury might be permitted to return a verdict based on a less-than-unanimous decision. It is not clear whether these
alternatives to military trials need even be considered emergency measures. The Supreme Court has never decided
whether a unanimous verdict is required by the Constitution, and although the Constitution guarantees to the
accused a right to a trial in the state and district where the crime was committed, this right has not yet been made
applicable to trials in state courts. Whatever the resolution of these issues by the Supreme Court, however, it is
clear that the two alternatives proposed are less restrictive than a military trial; while the latter measure might
preserve the right to be tried in the district where the offense was committed, it would deny to the defendant the
safeguard of both a trial by a jury of his peers and a unanimous verdict.
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