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APPENDIX A

MARTIAL LAW

 

1. INTRODUCTION.

a. Purpose. Except in the event of an overwhelming enemy attack, it is unlikely that federal martial law would be imposed. Circumstances may never justify federal martial law in a civil disturbance. However, in an extreme emergency where the nation's existence is threatened, federal martial law would be justified in the national interest. This annex is a guide for the administration of martial law.

b. Basic Authorities.

(1) Article I of the United States Constitution gives Congress the power to declare war and to raise and support armies.

(2) Article II of the United States Constitution provides that the executive power is vested in the President. He is the Commander in Chief of the Armed Forces. The President has to make sure that the laws are faithfully followed.

(3) Article IV, section 4, of the United States Constitution provides that each state may have a Republican form of government and will be protected by the United States against invasion.

c. Definitions.

(1) Martial law. Martial law is the exercise of federal military power to preserve order, and ensure public safety in domestic territory in time of emergency, when civil governmental agencies are unable to function or their functioning would itself threaten the public safety (AR 500-50). Martial law may be declared by governing executives--mayor, governor, or president, or in their absence, the military commander. Usually federal martial law is proclaimed upon, and by express direction of the President except that in circumstances involving an extreme emergency, commanders of troops may make the decision to impose martial law in accordance with the provisions of AR 500-50.

(2) Domestic Territory. Domestic territory is an area entitled to the protection of the United States Constitution.

(3) Necessity. Necessity, as used in the field of martial law, indicates a need for military force to repel or contend with the results of force exerted by action of a hostile person.

(4) Writ of Habeas Corpus. The writ of habeas corpus is a writ issued by a civil court upon proper cause to inquire into the legality of any restraint upon the liberty of a person.

(5) Military Commander. Military commander refers to the military authority who has been named as the person responsible for exercising immediate martial law powers. The term military commander also applies to commanders of troops who, acting without prior permission from higher authority, declares martial law (AR 500-50).

(6) Martial Law Tribunals. Martial law tribunals (military commissions and provost courts) are courts employed by the military commander to try violators of martial law proclamations, orders, rules, and regulations, and in addition thereto to try violators of federal civil and local laws, when civil courts are not open and functioning.

2. DECLARATION OF MARTIAL LAW:

a. General. Martial law declared because of an enemy attack would require the military to control the civilian population, to restore law and order, provide for the relief and rehabilitation of the people, the resumption of industrial production, and restoration of a shattered economy, the protection of life and property, the control and evacuation of traffic, and the prevention of sabotage and other crimes.

b. Nature of Martial Law.

(1) Basic Concepts. Martial law is the right of the public to defend itself. When ordinary civil authorities cannot deal with a public danger, extra military forces may be used. Martial law depends on public necessity. Necessity creates it, justifies it, and limits it. How much military force depends on the size of the disturbance. When dealing with a major disaster, the force and the means are greater than when dealing with a small riot.

(2) Distinguished from Military Law. Martial law is different from military law in that it is temporary government by military forces over civilians in domestic territory. Military law is the jurisdiction by military forces over their own members to promote good order and discipline. Confusion must be avoided.

(3) Distinguished from Military Government. Military government is concerned with control of foreign territory. When the Army controls civilians in domestic territory under martial law, it is limited by the Constitution as well as the limits in the declaration of martial law. Military government operations over civilians in foreign territory are not limited.