military and martial law
article from Parameters,
publication of the Army War College
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From an article that appeared
in the August 1997 issue of Parameters, the journal of the Army
Disaster Relief Operations
The US Army had a remarkable experience
in responding to the devastating onslaught of Hurricane Andrew
in south Florida in August 1992; Hurricane Iniki on the island
of Kaui in Hawaii one month later evoked a similar response.
Both instances provide ample evidence that there is a reliable
mechanism to facilitate the employment of active-duty Army units
in times of great national disaster. The Robert T. Stafford Disaster
Relief Act of 1984, as amended in 1988 (42 US Code Section 5121
et seq.), commonly referred to as the Stafford Act after its
legislative author, is the authority under which such assistance
is provided. The Stafford Act is applicable only within the United
States and its territories, and comes into play when a state,
usually through its governor, requests a presidential declaration
of a state of emergency following a natural disaster. Once a state of emergency
is declared, active-duty soldiers can be employed to respond
to the crisis under the direction of the Federal Emergency Management
These situations present unique
legal issues. . . .
The unprecedented destruction of
the Alfred P. Murrah Federal Office Building in Oklahoma City,
Oklahoma, on 19 April 1995, raised another important legal issue
affecting disaster relief operations. As one might imagine, all
the resources of local, state, and federal government agencies
were mobilized to deal with this shocking act of domestic terrorism.
FEMA served as the primary focal point of relief operations,
and Army assets were provided under the terms of the Stafford
Act. FEMA officials were on the scene within hours of the explosion,
and specialized rescue teams followed closely. The entire reaction
has been categorized as a masterful melding of state and federal
resources. However, the internal FEMA report underscores a natural
tension between the rescue effort and the FBI which may be increasingly
important in the future. The FBI, as part of the Department of
Justice, determined that the entire area was a crime scene for
the purposes of apprehending and successfully prosecuting the
perpetrators of the bombing. The rescue effort's only goal was
recovering survivors or their remains. This natural conflict
must be resolved in order to facilitate the nation's response
to the increasing threat of similar incidents.
can take solace in the lessons learned from military participation
in domestic disaster relief, for the record indicates that legal
niceties or strict construction of prohibited conduct will be
a minor concern. The exigencies of the situation seem to overcome
legal proscriptions arguably applicable to our soldiers' conduct.
Pragmatism appears to prevail when American soldiers help their
Civilian Law Enforcement
Military support to law enforcement
agencies seemingly will present more problems for senior leaders
than those encountered in disaster relief. At first blush, this
entire area appears to be outside the scope of military operations.
As previously mentioned, the Posse Comitatus Act provides a broad
proscription against soldiers enforcing the law. However, subsequent
congressional acts granting exceptions to the original prohibition
of Posse Comitatus have significantly altered the manner in which
the armed forces may assist law enforcement. Congress began to
carve out these exceptions in response to the perceived increase
in importation and use of destructive illegal drugs. Under more
recent legislation, the Army can provide equipment, training,
and expert military advice to civilian law enforcement agencies
as part of the total effort in the "war on drugs."
In addition, troops of the active Army are authorized to provide
a wide range of support along the borders with the caveat that
a "nexus" be established between illegal drugs and
the support given. The principle example of the contentious nature
of such support can be found in a review and analysis of the
support provided to the Bureau of Alcohol, Tobacco, and Firearms
(BATF) by the Army under the operational control of Joint Task
Force 6 (JTF 6), during the siege and assault of David Koresh's
Branch Davidian compound outside of Waco, Texas. . . .
The specter of members of the Army's
special operations forces accompanying BATF agents storming a
religious compound, however misguided its leader, could have
seriously compromised public support of the US Army. Had the
initial request been approved (it was) and acted upon (it wasn't),
this could easily have been the single most debilitating event
to occur within the Army since the tragedy at My Lai. In fact,
this occurrence could have been even more egregious because it
would have taken place on American soil, would have been a clear
violation of the Posse Comitatus Act, and would have raised the
issue of military involvement in a case of alleged religious
freedom. . . .
Finally, leaders can take heart
from the fact that the training and experience of today's soldiers
allow them to make the right decisions in situations fraught
with career and personal implications. Granted, in this instance
the soldiers were mature commissioned and noncommissioned officers
with substantial operational experience. . . .
The next area of consideration focuses
on those discrete instances when the President of the United
States relies on his constitutional and statutory authority to
maintain public order and domestic tranquillity. Those who consider the Posse
Comitatus Act a giant bulwark preventing the Army from enforcing
the law will be surprised to learn that the relevant enabling
mechanism is fairly straightforward. The language of the act
itself specifies that activities expressly authorized by the
Constitution or by statute are exempt from the act's restrictions.
One such exception is the statutory authority of the President
to use federal troops to quell domestic violence. Upon receipt
of a proper request for assistance from a state governor, the
President issues a proclamation identifying that a breakdown
in public order has occurred, and orders the intransigent individuals
to disperse. Once it is clear that the order to disperse is not
being followed, the President then orders the Secretary of Defense,
in consultation with the Attorney General, to quell the insurrection
and restore public order. This presidential authority to use
federal troops is plenary and not subject to judicial review.
. . .
The second series of lessons related
to the military helping civil law enforcement agencies to maintain
public order and domestic tranquillity is derived from the FBI
experience at Ruby Ridge, Idaho. It should be noted that the
incident at Ruby Ridge was classified as a generic hostage-barricade
situation and not a terrorist incident. . . .
The United States has for many years
fielded military units specifically equipped and trained to deal
with terrorist threats throughout the world. With the growing
prospect of terrorism in our own country, the probability of
domestic employment of the US military to counter terrorism has
grown substantially. The FBI experience at Ruby Ridge provides
lessons for such employment. . . .
There is a growing awareness
that many US law enforcement agencies are ill equipped to deal
with heavily armed terrorist organizations. The spectacle of
police rushing to a local gun store to borrow high-performance
weapons in March 1997 during a shoot-out in California defines
the nature of the threat and a possible response to it by the
average local police department. We can expect a degree of asymmetry
between terrorists and law enforcement personnel that will almost
inevitably trigger an intervention by the military. Our police
are neither constituted, nor trained, nor equipped to deal with
paramilitary assaults on our citizens. Simply stated, the scope
of a terrorist action may be beyond the capability and resources
of the FBI's Hostage Rescue Team (HRT), the preeminent civilian
law enforcement entity trained and equipped for this role.
The introduction of military
units into such situations adds to the difficulty of applying
law enforcement standards of self-defense or defense of other
agents in imminent danger of death or grievous bodily harm before
using deadly force. If the military is deployed to eliminate
terrorists and restore a situation, they must be employed as
they have been trained. That training is intended to succeed
with minimum friendly casualties using military rules of engagement.
Hence any member of a group participating in such an incident
on this specific form of battlefield could by definition be considered
a threat and subject to attack. . . .
Commanders of any unit likely to
be committed in aid of domestic law enforcement agencies confronting
terrorists will want to ensure that our soldiers are the most
capable, best equipped, and best trained they can possibly be.
The operational plan will have to be developed, coordinated,
and approved at the highest level of government. The final requirement
will be for the government to stand behind its decisions and
acknowledge errors without attempting to make scapegoats of those
at the tactical level. This course of action will allow the United
States to apply its military resources successfully in support
of civilian law enforcement to meet a very real and growing terrorist
threat. . . .
military leaders need to expect an increase in domestic deployments
of US military forces. They need to recognize that each instance
of use is accompanied by new and possibly unprecedented challenges.
America's leaders should recognize that the relationship between
America's Army and the American people is strong but may be compromised.
Public confidence in the military can best be maintained by strict
adherence to the legal underpinnings governing domestic operations
of the armed forces. Applying
the lessons learned from the early 1990s will maintain the excellent
relationship between the people and the military well into the