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I’m frankly skeptical that New Orleans has been declared to be under martial law, as was reported this morning. Here’s why. There is an excellent online explanation of what martial law means.
Article 1, Section 9 of the Constitution implicitly authorizes the imposition of martial law.
“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas corpus is a concept of law, in which a person may not be held by the government without a valid reason for being held. A writ of habeas corpus can be issued by a court upon a government agency (such as a police force or the military). Such a writ compels the agency to produce the individual to the court, and to convince the court that the person is being reasonably held. The suspension of habeas corpus allows an agency to hold a person without a charge. Suspension of habeas corpus is often equated with martial law.
Martial law was declared during the American Civil War.
In the United States, there is precedence for martial law. Several times in the course of our history, martial law of varying degrees has been declared. The most obvious and often-cited example was when President Lincoln declared martial law during the Civil War. This instance provides us with most of the rules for martial law that we would use today, should the need arise.
There follows a recounting of the many instances when martial law was declared in American history. Finally, a key point:
The distinction must be made as clear as that between martial law and military justice: deployment of troops does not necessarily mean that the civil courts cannot function, and that is one of the keys, as the Supreme Court noted, to martial law.
I haven’t been able to discover who declared martial law in the city. It certainly was not President Bush. Was it Louisiana’s governor? It’s hard to see how anyone civil official lower than the governor could have done it, because no official lower than a governor actually has any troops to command.
I think it’s also possible that no official with the authority to declare martial law has actually done so, at least not in the true legal sense. It may be that the term is being used as a shorthand way of saying that civil order will be energetically, even ruthlessly, enforced by civil police and National Guard troops. I’m guessing also that the governor has empowered ordinary Guard soldiers to make arrests and has authorized Guard units to hold offenders prisoner without quickly turning them over to civil police.
What I do not expect to see is civilians being tried by military courts - the distinction indicated above that the Supreme Court has held key as to whether martial law has actually been imposed. It may be true that the capability of civil courts in New Orleans to try offenders has been ended for many days to come, but if so it’s also true that military courts have not been established there, either, and won’t be established before civil courts come back into operation.
Update: An example of imprecise use of the term is this:
Lancaster resident Jennifer Frenette had a brush with martial law yesterday in New Orleans.
When Hurricane Katrina finally passed through the city, she and others who had been virtual prisoners in the Hilton New Orleans Riverside Hotel decided to go outside for some fresh air.
A police officer told them if they didn’t go back inside, they’d be arrested. They went back inside. “It’s martial law. They’re being extra cautious,” she said.
No doubt the police officer was brusque and brooked no dissent, but that’s not martial law. There are dozens of circumstances in non-disaster contexts when you must either obey a police officer or be arrested.
Update, 12:35 p.m. CDT: FoxNews just emphatically announced that martial law has not been declared in New Orleans, and says it regrets the error of having announced it had been declared.
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August 30th, 2005 at 11:11 am
KATRINA: THE MILITARY STEPS IN
Via Drudge and the NYDailyNews, the Pentagon is sending help to hurricane-ravaged areas in Louisiana and Mississippi. The Pentagon…is sending doctors, nurses and rescue specialists along with baby formula, generators, water and ice to the hard-hit ar…
August 30th, 2005 at 11:51 am
According to local tv down there, 2 Parishes are under martial law…
http://www.wwltv.com/
Jefferson Parish and Plaquemines Parish under Martial Law. No one being allowed into New Orleans.
August 30th, 2005 at 11:58 am
It sounds to me like the governor has declared a state of emergency. See Lousiana statute here: http://www.legis.state.la.us/lss/lss.asp?doc=207682
Probably did so a while ago, but she is emphasizing the absolute authority to restrict people’s free movement, confiscate private property and transfer power to the office of homeland security and emergency preparedness, which is within Lousiana’s miltary department.
August 30th, 2005 at 12:14 pm
update
http://news.yahoo.com/news?tmpl=story&u=/wdsu/20050830/lo_wdsu/2908361
10:30 a.m.: Martial Law Declared
New Orleans is under martial law, according to state officials. The declaration is imposed to restore order in times of war and emergency. It could be weeks before displaced residents are allowed to return.—WDSU chief meteorologist Dan Milham
August 30th, 2005 at 12:42 pm
12:35 p.m. CDT: FoxNews emphatically announced that martial law has not been declared in New Orleans, and says it regrets the error of having announced it had been declared.
A state of emergency, yes, but that is not martial law.
August 30th, 2005 at 12:45 pm
First they mislabeled a home as one housing terrorists, now this.
Fox News needs to quit that.
August 30th, 2005 at 4:15 pm
Brittney,
I stand… well, actually, I’m sitting… before you, a person who never made a mistake.
Fox News made a mistake about “martial law”- one that a lot of other news sources also made. They promptly corrected it and apologized.
So. Do you have any comment for us concerning CBS and some memos that they, um, mislabeled? Last I heard, they hadn’t apologized for them. Do you think that the folks at CBS “need to quit that”?
August 30th, 2005 at 4:52 pm
[...] no civil rights” for New Orleans residents who remained in the city. Update: Well, not so fast.
[link [...]
August 30th, 2005 at 4:58 pm
Apparently the whole martial law rumor started with WBEN radio, which announced that “state officials” said martial law had been imposed. The officials were not named, which means they could have been anyone from night janitors up to staff of the governor’s office. Why? See here.
August 30th, 2005 at 6:23 pm
[...] by Donald Sensing @ 6:22 pm. Filed under Current events/news, Hurricanes
International media have picked up the false report that martial l [...]
August 30th, 2005 at 9:30 pm
Hurricane Katrina links
You’ve heard about Hurricane Katrina and the Gulf coast. It’s probably worse than you think. The situation is so bad in New Orleans that it’s not safe for the media right now, so it’s hard to get a read on…
August 30th, 2005 at 9:42 pm
Took them long enough to clarify, but then I’m sure they have better things to do then let all of us know what’s going on…
http://www.nola.com/newslogs/breakingtp/index.ssf?/mtlogs/nola_Times-Picayune/archives/2005_08.html#075262
Martial law clarified
Tuesday, 9:02 p.m.
The state Attorney General’s office on Tuesday sought to clarify reports in some media that “martial law’ has been declared in parts of storm-ravaged southeast Louisiana, saying no such term exists in Louisiana law.
But even though no martial law exists, Gov. Kathleen Blanco’s declaration of a state of emergency gives authorities widespread latitude to suspend civil liberties as they try to restore order and bring victims to safety. Under the Louisiana Homeland Security and Emergency Assistance and Disaster Act of 1993, the governor and, in some cases, chief parish officials, have the right to commandeer or utilize any private property if necessary to cope with the emergency.
Authorities may also suspend any statute related to the conduct of official business, or any rule issued by a state agency, if complying would “prevent, hinder or delay necessary action’’ to mitigate the emergency.
It also gives authority the right to compel evacuations, suspend alcohol and weapons sales and make provisions for the availability and use of temporary emergency housing.
The law gives mayors similar authority, except they do not have the right to commandeer private property or make provisions for emergency housing, according to a background brief prepared by the state Attorney General’s office.
August 30th, 2005 at 9:53 pm
Finally, the LA state Attorney General’s office clarifies the “Martial Law” thing. NO is not under Martial Law, but “state of emergency” as linked to by PD Shaw above.
Spread the word!
August 30th, 2005 at 10:07 pm
Oops, here is the link:
http://www.nola.com/newslogs/breakingtp/index.ssf?/mtlogs/nola_Times-Picayune/archives/2005_08.html#075262
August 30th, 2005 at 10:14 pm
KATRINA: HELL BREAKING LOOSE
***scroll down for updates and definitive clarification about reporting on “martial law”*** As I noted below, the Orleans Parish Prison inmate rioting situation is grave. ABC News reports: Inmates at a prison in hurricane-ravaged New Orleans have rio…
August 31st, 2005 at 6:56 am
[...]
Thanks to those who commented or emailed a story in the Times Picayune Just as I proposed, But even though no martial law exists, Gov. Kathle [...]
September 1st, 2005 at 5:21 am
With all the looting, and now with alot of the looter having stolen guns,I don’t see why Martial Law hasn’t been declared. It needs to be in order to ensure the safety of all of the remaining residents,including the looters themselves. New Orleans needs to be under MARTIAL LAW!
September 2nd, 2005 at 10:45 am
I agree with Anthony. Martial Law needs to be declared. Why does this term seem to be a “four letter word” to politicians? My understanding is that if local authorities are not able to stabilize a situation, then Martial Law needs to be declared. If relief caravans are unable to come into New Orleans because of snipers, etc. then the Army needs to come in. Save those poor people!
September 3rd, 2005 at 2:06 am
Whatever happened to the inmates on the clover of the freeway and the riot in the jail. I saw tonight on UPN that the female worker in the prison who had text messaged her parents good by had been located. She stated that she had gotten out, but the other guards were murdered (her word) or died of thirst. Why can I find NOTHING about this story??????