Will coronavirus lead to martial law?
Article by Sarah Sicard in "The Military Times":
While
the number of cases of the novel coronavirus, COVID-19, continues to
grow around the country and the globe, lawmakers are considering how
best to cut down on the spread of the disease. But the measures being
taken have some citizens and service members wondering if martial law
may be declared.
As of Tuesday, more than 1,500 Guard personnel in 22 states
were called up to aid efforts to stop the spread of COVID-19 as the
World Health Organization declared the coronavirus a pandemic on March
11, with President Donald Trump following two days later to classify the
virus as a national emergency.
California Gov. Gavin Newsom in a Sunday presser said that martial law was not necessary to combat coronavirus in his state.
“If you want to establish a framework of martial law, which is ultimate
authority and enforcement, we have the capacity to do that, but we are
not feeling at this moment that is a necessity,” Newsom said.
On Monday, Florida Sen. Marco Rubio tweeted, albeit with a spelling
error, requesting everyone stop sharing misinformation about the use of
martial law to maintain stability in this ongoing crisis. He wrote,
“Please stop spreading stupid rumors about marshall law. COMPLETELY
FALSE. We will continue to see closings & restrictions on hours of
non-essential businesses in certain cities & states. But that is NOT
marshall law.”
What is ‘martial law’
In simple terms, martial law is the replacement of civil rule with
temporary military authority in a time of crisis. While its imposition
is rare, the United States does have several noteworthy instances where
martial law came into play, including in times of war, natural disasters
and civic disputes.
Though there is no precise definition of martial law, the precedent in
the United States holds that under it, “certain civil liberties may be
suspended, such as the right to be free from unreasonable searches and
seizures, freedom of association, and freedom of movement. And the writ
of habeas corpus [the right to a trial before imprisonment] may be
suspended," according to a legal journal.
Martial law can be declared by both the president and by Congress. The
governor of a state may also declare martial law if it is included in
that state’s constitution. However, Congress has never solely imposed
it.
During
the War of 1812, then-Gen. Andrew Jackson imposed martial law within
his encampment at New Orleans, which he had recently liberated.
“Notorious examples include Franklin D. Roosevelt’s internment of U.S.
citizens and residents of Japanese descent during World War II and
George W. Bush’s programs of warrantless wiretapping and torture after
the 9/11 terrorist attacks,” the Atlantic reported. “Abraham Lincoln conceded that his unilateral suspension of habeas
corpus during the Civil War was constitutionally questionable, but
defended it as necessary to preserve the Union.”
But martial law is not without limits. The Posse Comitatus Act, passed
on June 18, 1878, stopped federal troops from supervising Confederate
state elections during Reconstruction. It originally applied only to the
Army, but has since been amended to include the Defense Department and
the other service branches. That act essentially prohibits troops from
carrying out domestic law enforcement actions such as searching and
seizing property and dispersing crowds. National Guard units, however,
as they operate under state-rule, are exempt from the Posse Comitatus Act.
In extreme circumstances, there is an exception: the Insurrection Act, which allows
the use of active-duty or National Guard troops for federal law
enforcement in cases when “rebellion against the authority of the U.S.
makes it impracticable to enforce the laws of the U.S. by the ordinary
course of judicial proceedings,” according to U.S. Northern Command.
One of the more relevant cases, at least as it may pertain to National
Guard units being called up to aid in the coronavirus pandemic, is that
of the John Warner National Defense Authorization Act for Fiscal Year
2007. The bill, signed into law in 2006, gave the president the power to
take command of National Guard units under the guise of martial law
without the approval of state governors until its expiration a year
later, creating a precedent for such action.
“I
would call out the military now,” former Vice President Joe Biden said
at the Democratic primary debate on Sunday night. “They have the ability
to provide this surge that hospitals need. They have the capacity to
build 500 hospital beds and tents that are completely safe and secure.”
However, one major disadvantage to mobilizing the Guard or the Reserves
is that those personnel would be redistributed away from civilian
hospitals and duties.
“What we are trying to be very careful about is not overpromising,”
Joint Staff Surgeon General Brig. Gen. Paul Friedrichs said in a Monday
Pentagon briefing. “We want to be factual about what we have. Our fixed
facilities are designed to the force that we have. They are not
thousand-bed medical centers all over the United States. They are, for
the most part, small community hospitals.”
New York Gov. Andrew Cuomo wrote an op-ed in the New York Times pleading with Trump to increase testing and mobilize the military to help open more hospital beds before the situation spirals out of control.
“At this point, our best hope is to utilize the Army Corps of Engineers
to leverage its expertise, equipment and people power to retrofit and
equip existing facilities — like military bases or college dormitories —
to serve as temporary medical centers,” he wrote. “Then we can designate existing hospital beds for the acutely ill.”
The
president has named the coronavirus a “major disaster” under the
Stafford Act, which enumerates how the federal government can handle
emergency responses, which no president has ever done before in response
to a health epidemic. While much of the coronavirus response falls
under the purview of federal government, “[enforcing] laws relating to
public health and safety falls squarely within the powers of the states
under the Tenth Amendment,” The Atlantic reported.
As such, states would most likely need to put in requests for Stafford Act declarations for COVID-19 relief.
For now, no major mobilizations have occurred, and the power to call up
the National Guard remains with the states, including for drill
weekends and other duties.
https://www.militarytimes.com/news/your-military/2020/03/17/will-coronavirus-lead-to-martial-law/
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