muddy

good question ... according to 10 U.S.C. 311 :

cynicalflyer

The point is you are NOT using the "military to enforce civil law". Read Milligan again: "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." This is why martial law, at least in the U.S., is so tied into habeus corpus.

cynicalflyer

And the U.S. Supreme Court has heard oral arguments (December 5) on the challenges to the law. Boumediene v. Bush and Al Odah v. U.S. They will handing down the decision this spring.

muddy

If you're talking about Martial Law in the strictest sense (where the law actually changes) then the only provision in the constitution is the suspension of habeas corpus, which is right now being done on a continuing basis.

Or is there some other Martial Law provision in the constitution?

fahrradman

I enter the country about 12-15 times a year. I usually approach the passport guy with with a big sh*t eating grin and say loudly, "How ya doin'? It's great to be back home." Never a follow up question or a call out to the special customs area. I just have to remember to channel my inner Billy Carter with INS.

law dawg

Which still proves the point - there is no civil law, there are no courts. As such, there cannot be, by definition, due process, which is the basis for almost all the Bill of Rights (BOR), is it not? Or at best it's military due process, which is a far different animal than the BOR.

If there are no courts to oversee LE function (whether civilian or military) you cannot enjoy BOR protections as they have no function. If you do enjoy those protections, you do so at the whim and grace of an untrained (in LE matters) military.

If the BOR does not apply (and it substantive cannot during martial law) then yes, portions of the Constitution are being shelved, at least for the duration of the precipitating event.

Martial rule does not equal Constitutional protections in the BOR, which means that there are provisions in place to set aside at least part of the Constitution, in my mind at least.

Unless, of course, I'm missing something, which is probably the case.

cynicalflyer

Read Milligan. The Supreme Court lays it out quite clearly what is meant by "martial law". Here's my post on it.

cynicalflyer

Let me give you a direct, on point example. Duncan v. Kahanamoku 327 U. S. 304 (1946) Hawaii, not even a state at the time, is put under martial law just after Pearl Harbor. ("Act" refers to the Hawaiian Organic Act, their territorial "constitution"). The "act" allowed for the declaration of martial law by the governor, which he used. The Supreme Court, in looking at the convictions by the subsequent military proceedings noted:
Again, if there is a function civil court system, you cannot have martial law. But even if the civil court system is non-functioning, the Bill of Rights does not suddenly end and your rights are enforcable (save with the single possible exception of habeus, which must be expressly suspended).

The point is not "will my rights be violated". Whether it is military or civilians, people's rights will be violated (imperfect humans that we all are). The point is that when they are, recourse is available either during or after the fact.

(Again, contrast this against a military government such as one that was in operation in post-war Germany or Japan, which is different, see again Milligan)

law dawg

So all protections re-attach at the end? If you were held unlawfully with evidence that would be excluded per the Exclusionary Rule then, once the fiasco is over, you walk?

Of course, we can only hope any military rule during such an event would be bound by Tenn v. Garner.

muddy

I still dont get the distinction you seem to be trying to make .... the martial law you're refering to IS the suspension of Habeas Corpus ... there is no other provision of anything that could be considered martial law (other than military enforcement of civil law). Unless there is some other article/theory I don't know about ...

not being argumentative ... just trying to learn ...

muddy

Per the Military Commissions Act of 2006, if habeas corpus is suspended (which can be done by merely labeling you an enemy combatant) then you can just be held ... no proof, no probable cause, no miranda ... then you get tried by a military tribunal and found guilty if the vote is more than 2/3.

hopefully the act will be declared unconstitutional soon as pointed out by another poster ...

vassilipan

I got that one!

cynicalflyer

It is not that the protections "re-attach", it is that they they were denied. Rights get infringed upon, civilian police or military martial law, either way. The point is to restrain the government action where you can and restore the person to liberty where you cannot.

cynicalflyer

Again, simply because the phrase "martial law" doesn't appear in the Constitution does not mean it doesn't exist under another power (ex: I cannot point to where the court's have the power to issue "subpoenas", I CAN point to the "judicial power", which by extention includes it).

As mentioned in Milligan (and again, I am not going to repost it, read it yourself) the power exists within the Constitution to have martial law under the power of Congress and possibly the President (when a staute authroizes the President to do so at his discretion).Please read it.

cynicalflyer

http://thomas.loc.gov/cgi-bin/query/.../~c1091S0wxx::

Have you actually read the statute? Or just what people told you it says?
First, it does not apply to U.S. Citizens. Only "alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission."

Moreover, the act specifically defines "alien" as "a person who is not a citizen of the United States".

So to begin, it does not apply to just anyone. It does not allow the President to just name anyone.

As for the habeus suspension again, read the statute, not what people tell you the statute says.

http://thomas.loc.gov/cgi-bin/query/.../~c1091S0wxx::

It is an open question before the Supreme Court now whether this constitutes a suspension of habeas or not:
Moreover, given that those detained never were in the U.S. or anywhere close, it is again a question as to whether they have a right to habeas at all.

CONTRAST this with your hypothetical where someone here, in the U.S. is taken. There is no question that habeus applies here in the U.S. unless suspended. As noted, the Military Commissions Act of 2006 may or may nor suspend habeas and even if it does, it does so only for "a person who is not a citizen of the United States".

You think it is a suspension based on what others have told you. Others believe that the wording of the section in question (Section 7: HABEAS CORPUS MATTERS) is not a suspension. Regardless, it is not nearly as cut and dry as you are implying. And your hypotheticals are utterly beside the point, given that this would only apply to "a person who is not a citizen of the United States".