Mike Wiser here again. We’ve had conflicting reports about martial law over the past few days, with some commenters stating that such a term has no legal meaning in the state of Louisiana, and others saying that it needs to be declared by various different officials. For what it’s worth, the WWL blog now reports that Mayor Nagin has declared martial law. Direct quote from their site: “7:32 P.M. - N.O. Mayor Ray Nagin declares Martial law in the city and directs the city’s 1,500-person police force to do “whatever it takes” to gain back control of the city. He will also enlist the aid of troops.”
So, if the mayor has the power to declare martial law, it’s been done. Even if he doesn’t have the legal authority to do so, though, it’s possible that pragmatically it won’t matter–it may well be that the police department will take it for granted that the mayor is able to do this, and leave worrying about the technical legality of it to legal scholars. As a disclaimer, though, I speak from the viewpoint of someone unfamiliar with the details of either the declaration of martial law in general or the specifics of the Louisiana legal system.
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Categories: Hurricane Katrina
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August 31st, 2005 at 9:41:56 pm
Louisiana Attorney General says no such term as martial law in Louisiana legal system
With that said, certain powers attributed to martial law are granted to various officials during a State of Emergency. Interestingly enough not all of these powers are granted to mayors.
August 31st, 2005 at 9:52:06 pm
With the stories (which may be just rumors) of police themselves having to raid stores for supplies and siphon gas out of abandoned cars, it may be that the forces there have diminished in capability such that they can’t really do much more than they are, and will have to wait for NG or other outside troops to really roll back the nastiness.
Then again, maybe just the bold declaration will spook most of the rabblerousers into line long enough for those troops to show up.
August 31st, 2005 at 9:52:07 pm
One would think the Mayor wouldn’t have to wait QUITE so long to do this.
August 31st, 2005 at 10:00:27 pm
You should really add http://www.livejournal.com/users/interdictor Interdictor to your list of local blogs. He and his team are holed up with a generator and their big stack of servers for the internet company they work for right in NO. Updated many times a day, they also have a live webcam.
August 31st, 2005 at 10:10:05 pm
My new Mac OS dictionary defines martial law as: “military government involving the suspension of ordinary law.”
In my limited comprehension of this, that would mean the mayor hands over his power to the military. Often that means Habeas Corpus is suspended, but I’ve read that the LA constitution prohibits that. It also means that the ordinary judicial system is replaced by military courts.
I don’t think the mayor has the power to declare real martial law - what military reports to him?But really the “state of emergency” gives them the powers they are using.
Of course people may have their own new definition of the term.
The best site explaining this is
http://www.donaldsensing.com/
scroll down for several entries on martial law.
I personally am not against traditional martial law in this case, I just want to point out that the traditional definition of martial law involves the military, and not a mayor and his police force.
Here is a quote from the site listed above:
“Looting in the city is reported to be uncontrollable, with even police officers joining in. Mayor Nagin ìNagin also said that currently there is no martial law in the city of New Orleans, but he may order it on Wednesday.î With respect to the mayor, he has no authority to order martial law because he commands no military forces. All his authority for law enforcement in this disaster are specified in the Disaster Act of 1993, cited above, and they are less than those of the governor. As I said yesterday, the term ìmartial lawî is being used as shorthand for very strict law enforcement, and I think thatÃs what the mayor meant, but why he would wait until today to order it, I donÃt know.”
August 31st, 2005 at 10:18:59 pm
Brendan, If you can get this to the front page, I think it would be helpful:
Houston area: County Judge Robert Eckels to the Harris County Citizen Corps
“We need your help. We are requesting volunteers to assist in setting up the (Astro)dome with cots and other basic necessities. This needs to be completed by 1700 or 5pm CST. We need for you to forward to anyone who can help … please e-mail Mark Sloan (MTSloan@itc.co.harris.tx.us)… as this time it will be a 24/7 operation.”
August 31st, 2005 at 10:23:52 pm
Major Cassius Dowell, addressed the nature of martial law in his work, Military Aid to the Civil Power.
First, he observes that the term is a misnomer — the true definition is where “the State or National government, through its military forces, controls the civil population without authority of written law, as necessity may require.”
Major Dowell states that martial law should be distinguished from circumstances where the military is employed under statute; for in the latter circumstances the military “is not called out to supersede civil authority but to maintain or restore it.”
He adds that martial law is not part of the Constitution, but is rather a power to preserve the Constitution when constitutional methods prove inadequate to that end. It is the law of necessity. Manifestly it cannot be instituted at the caprice of an executive or a military commander. It cannot, strictly speaking, be created by declaration. As has been said by good authority, it proclaims itself. A declaration of martial law is an announcement of fact rather than the creation of that fact.
Source: memo written by attorneys William J. Olson and Alan Woll
August 31st, 2005 at 10:41:07 pm
Watching Gov’s communications director on WWL. Quite disturbing! Nobody seems to know anything!
August 31st, 2005 at 11:06:20 pm
Brian, thank you for the link!
Martial law definitionally means both military law enforcement and military courts.
Martial law can in fact be declared by Congress, as the Supreme Court has ruled going all the way back to 1807.
See here.
Neither does martial law mean no written law, since in the US there is an extensive corpus of federal legislation that would be used in marital law, the Uniform Code of Military Justice and its implementing instructions, the Manual for Courts Martial. (These actually afford superior protection of the accused than civil codes.)
Martial law is actually a well understood and well defined concept. Nagin and others are really using it as shorthand to say they will strictly enforce civil law.
Great blog, btw - I check it often.
August 31st, 2005 at 11:17:32 pm
Since you mention the WWL blog I wanted to point to a recent entry:
“8:37 P.M. - BATON ROUGE, La. (AP) — It’s an engineering problem that hasn’t been solved: How do you plug a broken floodwall and drain a city that is submerged in water in many areas? Officials acknowledge plans to ‘unwater New Orleans’ have failed, have been redrawn and are continuing to evolve…”
If you read this it describes the various plans that have been considered for fixing the breaches. And it is quite clear that nothing has been done! Contrary to the rumors, there have been no sand bags dropped on the levees. There have been no concrete barriers dropped in. There have been no barges floated into place. There has been nothing.
The reason is because none of these ideas seem to be very promising upon close study. So they are thinking before acting, which is generally not a bad idea.
Yet I have seen report after report that these various things have been tried. I always wondered why there has been no footage of this! Wouldn’t you think an Army helicopter dropping a massive multi-ton bag of sand into a breached levy would be worthy of attention from the TV helicopters which are constantly buzzing around? It was a mystery.
Well, this clears it up. There has been no such footage because there has been no such action. No helicopters have dropped sand bags or anything else into the breaches. The Army Corps of Engineers is still working on the problem. Hopefully they will come up with a practical solution soon.
August 31st, 2005 at 11:43:27 pm
Thanks Donald,
That is a great explanation. To me, “Martial Law” sounds ominous probably because it is usually associated with third world dictators, or at least opressive dictators.
It is reassuring to know that US traditions and codes impose limits. What a great country! Seriously.
September 1st, 2005 at 9:31:02 am
Just so we are clear, the declaration of “martial law” is for show and perception. There’s no such term in the La. law (not true of other states).
The authority of the Governor and Mayor didn’t really change one drop with that “declaration” and when the water goes down, you’ll never find a single document entitled “declaration of martial law”.
Moreover, martial law WAS permitted in La. and officially declared in PREVIOUS versions of La law, specificalyl section 70 of Act 191 of 1912. See Barataria Land Co. v. Louisiana Meadows Co., Supreme Court of Louisiana, 138 La. 428 (December 15, 1915). The question there was whether the Governor’s proclamation of martial law in a given area “ipso facto closes the courts within the territory therein designated.” The judge in the area (Jefferon parish) wasn’t sure if martial law automatically shut down the courts, so he stayed the case until the heard of the judiciary department (i.e. the La. Supreme Court) told him otherwise. Petitioner insisted his case be heard anyway. The Governor later expressly said he didn’t want to interfere with the courts. The La Supreme Court then kicked and said since the governor expressly wants the courts open, they don’t have to decide if martial law = no courts because well, the courts are open.
Now, section 70 of Act 191 of 1912 is gone. The phrase “martial law” is not in La. law anymore and the question of does martial law = no more courts remains an open question.
Since that phrase is gone, the decision to “declare martial law” as I noted changed nothing. BUT if it makes looters and others think twice before doing something illegal and/or stupid, so much the better.
September 1st, 2005 at 9:52:18 pm
Martial law can only be officially declared by the President of the United States, in cases of extreme public emergency. And then only after he gets approval from Congress to suspend Habeaus Corpus. Then, if it’s a non-military related emergency, the President has to waive the Posse Commitatus Act, again with approval from Congress. In certain limited circumstances, Govenors can declare martial law, and use the National Guard for the duration of the emergency, or until contact can be made with the President or Congress, whichever comes first. However, Govenors cannot suspend Habeaus Corpus, nor can they waive the Posse Commitatus Act. The only reason that the National Guard can be used is that legally speaking, the National Guard is not a standing federal army. They are citizen volunteers, subject to active duty recall by the federal army. You can find all the specifics in US code, but you will have an easier time if you look up the UCMJ (Uniform Code of Military Justice.)
September 1st, 2005 at 9:55:04 pm
PS Most states allow looters to be shot on sight during such circumstances as Hurricane Katrina. Without the usual restrictions such as imminent threat to self or others! I know I’ve got some extra ammo around here somewhere….