No Need To Declare Martial
Law - It's Already
Here Say Attys
By Sarah Foster
© 1999
President Clinton doesn't need to sign an executive order to start a full-scale gun grab. He doesn't need to declare martial law if he wants to use the armed forces to deal with public unrest. And if he figures a state government isn't doing all it should to enforce some federal law that nobody likes, he can use federal troops to make certain that the law is complied with -- even if the governor and everyone living in the state are adamantly opposed to it.
He can do all these things on his own, without seeking advice or approval from Congress.
Not even the 1878 Posse Comitatus Act, which Congress intended as a shield to protect citizens from the military, places any significant limitations on presidential power.
That's what Virginia attorneys William Olson and Alan Woll discovered when they looked into the matter for Gun Owners of America, a Washington-based lobbying organization dedicated to defending the Second Amendment.
Last December Olson and Woll published an analysis on "Executive Orders and National Emergencies: Presidential Power Grab Nearly Unchecked," which was featured in WorldNetDaily. This earlier work prompted Larry Pratt, president and executive director of GOA, to commission the attorneys to examine a related issue.
"I asked them to look at all the executive orders and see if there was a nexus with guns; some kind of hook that would allow the government to get a hook on our trigger guards, so our guns can be pulled from our hands through some power they had delegated to themselves by executive order," Pratt recalled in a telephone interview.
Though unable to find a direct reference that would permit gun confiscation, "What they discovered was worse," said Pratt. "The president doesn't have to sign an executive order. He already has the power to go after our guns."
The Olson-Woll report entitled "Presidential Powers to Use the U.S. Armed Forces to control Potential Civilian Disturbances," developed naturally from their earlier research, but it is written as though it were a memo to the president, from a "Counsel's Office," in response to a White House request for a legal opinion about how far the president can go in using the military for law enforcement purposes in the event of a Y2K or other crisis: Would a declaration of martial law be necessary to call out the military? What about the Posse Comitatus Act?
"This memorandum is fictional but accurately depicts the broad powers assumed and exercised by presidents to utilize U.S. military forces to regulate civilian activity," the authors state in a disclaimer.
"We wrote it that way to draw peoples' attention to the issues," Olson explained by telephone. "We hoped that using this format to present the information would make it more real. A lot of what we talk about sounds like history, but it's quite current, and one could imagine the president asking for advice on this very issue."
The answers to the hypothetical questions came as a "complete surprise" to Larry Pratt and to the authors themselves. "We had no idea that his powers were so broad," said Olson. "The fact that there are these vast standby statutory powers is shocking. I'm afraid Congress keeps passing the laws that grant this power and never stands back and asks, 'What have we done?' It's time that they start looking and asking."
The statutes referred to are found in Title 10 of the U.S. Code, which deals with the Armed Forces. Through them the president is given authority to intervene with military force in a state's domestic disputes, upon request from the state legislature or governor -- or without it. Some examples cited by Olson and Woll:
Title 10, U.S. Code, Section 331: Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or its governor ... use such of the armed forces, as he considers necessary to suppress the insurrection.
Title 10, U.S. Code, Section 332: Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory ... he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
Title 10, U.S. Code, Section 333: The President, by using the militia or the armed forces, or both, or by other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination or conspiracy, if it hinders the execution of the laws of that State, and of the United States within the State ... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws ...
Olson and Woll discovered that the U.S. Supreme Court ruled in 1863 that the president can unilaterally decide whether an insurrection is in effect and determine how much force is necessary to suppress it. He can "brand as belligerents the inhabitants of any area in general insurrection."
Equally shocking, in Olson's view, as the fact that the president can use the military against civilians, is the fact that former presidents have done so on "many occasions" -- none of them declaring martial law.
For example, in 1914 President Woodrow Wilson deployed federal troops in Colorado to suppress a labor dispute. Olson-Wolls point out that Wilson ordered the U.S. Army to disarm American citizens -- including state and local officials, sheriffs, the police and the National Guard; to arrest American citizens; to monitor the state judicial process and re-arrest (and hold in military custody) persons released by the state courts; and to deny writs of habeas corpus issued by state courts.
Earlier, in South Carolina in 1871, without declaring martial law, President Grant sent troops into nine counties of South Carolina to enforce a proclamation commanding the residents to give up their arms and ammunition.
Between 1807 and 1925, federal troops were used more than 100 times to quell domestic disturbances -- sometimes the presence of the troops alone was enough to discourage the participants.
"Look at the history," Olson exclaimed. "None of what's happening is new. Could you ever imagine that the President of the United States could order the Army to disarm sheriffs, disarm police, and disarm the National Guard? Isn't that beyond what you'd ever dream?
"But it has happened. It's the fact that this has happened that should cause people to take this issue seriously."
But doesn't the Posse Comitatus Act provide restrictions against the use of the military? This is the act that prohibits the Army or Air force from acting as a posse comitatus -- "the population of a county the sheriff may summon to assist him in certain cases."
"No one should ever think the Posse Comitatus Act is any check whatsoever on the ability of the federal government to employ military might against civilians," said Olson.
"We were surprised at how weak the Posse Comitatus Act is," he continued. "There have been no prosecutions ever, and it doesn't apply to any branch of the armed forces except the Army and the Air Force. It doesn't have any implementing regulations, yet it has a huge exception -- that deployment of the Army or Air Force as a posse comitatus is a crime, 'except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.'
"That 'Constitution or Act of Congress' exception is so broad you can drive a truck through," Olson remarked.
"The final thing that surprised us was that that the military doesn't need an order from the president to have control over civilians," Olson said. "I had always thought only the president could declare martial law, but apparently not. Apparently any commander can do it, can suspend all civil rights."
Larry Pratt considers this last the most egregious of all the Olson-Woll findings.
"Military commanders can act on the basis that there is an emergency," said Pratt. "They don't have to wait until martial law is declared. The powers that they have in their hands are tremendous.
"People can't expect President Clinton to sit there in front of a camera and say, 'Tonight I have declared martial law,'" Pratt said. "You'll just find out about it when you try and get on the main highway and there's a humvee with a soldier who says, 'Turn back.' And when you ask why, he puts his gun into ready position and says, 'I'm only following orders. Please turn back.'
"You can challenge that. You can say they -- the commander or the soldier -- have no constitutional authority for this, and you may be correct. But you will be arguing on the wrong side of a barbed wire fence. They can simply do it. It will not be debated.
"It's wonderful," Pratt noted, ironically. "It goes beyond what [White House spokesperson] Paul Begala said about executive orders: You know, 'Stroke of a pen. Law of the land. Kinda cool.' Martial law could be initiated by one commander sending an e-mail to a guy at the base to muster his troops.
"Stroke of a keyboard, martial law. Kinda cool," Pratt said.
---- © 1999 Western Journalism Center