Article II, Section 2, Clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law; 1 that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity. 2 By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden 3 that state declarations of martial law were conclusive and therefore not subject to judicial review. 4 In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that state. The decision in the Prize Cases, 5 although not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.
The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case, 6 reverting to the older doctrine, pronounced President Lincoln’s action void, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as
abettors of the enemy. The salient passage of the Court’s opinion bearing on this point is the following:
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 theater 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 course. 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 proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. 7 Four Justices, speaking by Chief Justice Chase, while holding Milligan’s trial to have been void because it violated the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan’s trial. The Chief Justice wrote:
Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. . . .
We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.
Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety. 8 In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.
Early in the 20th century, however, the Court appeared to retreat from its stand in Milligan insofar as it held in Moyer v. Peabody 9 that
the Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . [T]he plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. . . . So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief. 10 The
good faith test of Moyer, however, was superseded by the
direct relation test of Sterling v. Constantin, 11 where the Court made it very clear that
[i]t does not follow . . . that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions. 12
Martial Law in Hawaii
The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also
all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and until the danger of invasion is removed. Two days later the Governor’s action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.
By section 67 of the Organic Act of April 30, 1900, 13 the Territorial Governor was authorized
in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known. By section 5 of the Organic Act,
the Constitution . . . shall have the same force and effect within the said Territory as elsewhere in the United States. In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding till February 1946, 14 the Court, speaking by Justice Black, held that the term
martial law as employed in the Organic Act,
while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals. 15
The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result.
I assume also, he said,
that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts, 16 but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that
courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight. 17
Articles of War: The Nazi Saboteurs
In 1942 eight youths, seven Germans and one an American, all of whom had received training in sabotage in Berlin, were brought to this country aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.
The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns.
. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. 18 The second argument it disposed of by showing that petitioners’ case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre. 19 The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises, 20 thereby, in effect, attributing to the President the right to amend the Articles of War in a case of the kind before the Court ad libitum.
The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President’s purely martial powers as Commander in Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war, they would have been subject under the statutes to restraint and other disciplinary action by the President without appeals to the courts. In any event, the Court rejected the jurisdictional challenge by one of the saboteurs on the basis of his claim to U.S. citizenship, finding U.S. citizenship wholly irrelevant to the determination of whether a wartime captive is an
enemy belligerent within the meaning of the law of war. 21
Articles of War: World War II Crimes
As a matter of fact, in General Yamashita’s case, 22 which was brought after the termination of hostilities for alleged
war crimes, the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge’s dissenting opinion in this case:
The difference between the Court’s view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply. 23 And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under international law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws, nor does international law forbid ex post facto laws. 24
Articles of War: Response to the Attacks of September 11, 2001
In response to the September 11, 2001, terrorist attacks on New York City's World Trade Center and the Pentagon in Washington, D.C., Congress passed the
Authorization for Use of Military Force, 25 which provided that the President may use
all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons. During a military action in Afghanistan pursuant to this authorization, a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had plenary authority under Article II to hold such an
enemy combatant for the duration of hostilities, and to deny him meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan, although a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds. 26 However, the Court did find that the government may not detain the petitioner indefinitely for purposes of interrogation, and must afford him the opportunity to offer evidence that he is not an enemy combatant. 27
In Rasul v. Bush, 28 the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay were outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II that denied habeas corpus petitions from German citizens who had been captured and tried overseas by United States military tribunals. 29 In Rasul, the Court noted that the Guantanamo petitioners were not citizens of a country at war with the United States, 30 had not been afforded any form of tribunal, and were being held in a territory over which the United States exercised exclusive jurisdiction and control. 31 In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners. 32
In response to Rasul, Congress amended the habeas statute to eliminate all federal habeas jurisdiction over detainees, whether its basis was statutory or constitutional. 33 This amendment was challenged in Boumediene v. Bush, 34 as a violation of the Suspension Clause. 35 Although the historical record did not contain significant common-law applications of the writ to foreign nationals who were apprehended and detained overseas, the Court did not find this conclusive in evaluating whether habeas applied in this case. 36 Emphasizing a
functional approach to the issue, 37 the Court considered (1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made; (2) the nature of the sites where apprehension and detention took place; and (3) any practical obstacles inherent in resolving the prisoner’s entitlement to the writ. As in Rasul, the Court distinguished previous case law, noting that the instant detainees disputed their enemy status, that their ability to dispute their status had been limited, that they were held in a location (Guantanamo Bay, Cuba) under the de facto jurisdiction of the United States, and that complying with the demands of habeas petitions would not interfere with the government's military mission. Thus, the Court concluded that the Suspension Clause was in full effect regarding these detainees.
Martial Law and Domestic Disorder
President Washington himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called into federal service were required. 38 Since World War II, however, the President, by virtue of his own powers and the authority vested in him by Congress, 39 has used federal troops on a number of occasions, five of them involving resistance to desegregation decrees in the South. 40 In 1957, Governor Faubus employed the Arkansas National Guard to resist court-ordered desegregation in Little Rock, and President Eisenhower dispatched federal soldiers and brought the Guard under federal authority. 41 In 1962, President Kennedy dispatched federal troops to Oxford, Mississippi, when federal marshals were unable to control with rioting that broke out upon the admission of an African American student to the University of Mississippi. 42 In June and September of 1964, President Johnson sent troops into Alabama to enforce court decrees opening schools to black students. 43 And, in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights march. The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing to protect the marchers. 44