'Making Martial Law Easier' in the U.S

1 Homeland Security Rev. 221, Fall 2007

10 Pages Posted: 17 Apr 2013 Last revised: 1 Jun 2017

See all articles by Kevin H. Govern

Kevin H. Govern

Ave Maria University - Ave Maria School of Law

Date Written: Fall 2007


Fiscal Year 2007 legislation gave Homeland Security professionals cause to re-examine domestic employment and deployment of military forces, and more specifically, military control over law and justice enforcement - sometimes referred to as "martial law." In September 2006, Senator Leahy of Vermont warned about proposed Fiscal Year 2007 Defense Authorization Act changes to U.S. laws which would: "Fail the National Guard, which expects great things from us as much as we expect great things from them. And we fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty."

Some months later, after the Defense Authorization Act passed into law, the New York Times and International Herald Tribune published a February 19, 2007 article titled "Making Martial Law Easier." That article claimed that the John Warner National Defense Authorization Act for Fiscal Year 2007 (JWNDAA) was: "A disturbing recent phenomenon in Washington ... that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration's behest that makes it easier for a president to override local control of law enforcement and declare martial law."

In this article I posited that "martial law" had not been made easier, nor did the then-current state of law and policy override local control of law enforcement under ordinary circumstances. Instead, the JWNDAA had prudently advanced an evolution rather than revolution involving over a century of federal troop deployments and 200 years of legal precedent. The Insurrection Act of 1807 was one of the first and most important U.S. laws on this subject, and was followed some 71 years later by the Posse Comitatus Act of 1878, which further limited executive authority to conduct military law enforcement on U.S. soil. Each of those laws has evolved over time, and consistent with the times and the popular will expressed through Congress.

Epilog: In 2008, these changes in the Insurrection Act of 1807 were repealed in their entirety, reverting to the previous wording of the Insurrection Act that in its original form was written to limit Presidential power as much as possible in the event of insurrection, rebellion, or lawlessness. In 2011, U.S. President Barack Obama signed National Defense Authorization Act for Fiscal Year 2012 into law. Section 1031, clause "b", article 2 defines a 'covered person', i.e., someone possibly subject to martial law, as the following: "A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

Keywords: National Defense, Homeland Security, Domestic Use of Military, Posse Comitatus, Insurrection Act, John M. Warner Defense Authorization Act, JMWDAA, Army, Air Force, Navy, Marine Corps, Coast Guard

JEL Classification: H56

Suggested Citation

Govern, Kevin H., 'Making Martial Law Easier' in the U.S (Fall 2007). 1 Homeland Security Rev. 221, Fall 2007. Available at SSRN: https://ssrn.com/abstract=2251998

Kevin H. Govern (Contact Author)

Ave Maria University - Ave Maria School of Law ( email )

1025 Commons Circle
Naples, FL 34119
United States
(239) 687-5390 (Phone)

HOME PAGE: http://https://www.avemarialaw.edu/faculty/kevin-h-govern/

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