What is Martial Law?

Martial law is a military takeover of a country’s civil legal system. When a country has martial law, there’s no independent judiciary to oversee law enforcement activities. Instead, law enforcement can make arrests without any independent body to oversee or monitor their activities. Martial law means that the military and other law enforcement bodies control the movement and detention of individuals within in the country. To challenge martial law, a detainee brings a petition for habeas corpus.

United States law allows for martial law

Many Americans might be surprised to learn that the United States allows for martial law. The U.S. Constitution authorizes the use of martial law in cases of rebellion or when public safety requires it. The United States has used martial law on several occasions during its history. The country has used martial law in response to acts of war, natural disasters and during times of civil unrest.

Federal habeas corpus law

Current statutory authority for martial law comes from the U.S. Constitution as well as from federal law 28 USC § 2241. The law allows detained individuals to look to the U.S. Supreme Court or its district and circuit courts for action on a petition for habeas corpus. The U.S. Supreme Court may deny a petition or choose to remand it to a lower court. A person may bring a petition if they’re in the custody of the United States or accused of violating a U.S. law. A person may also bring a petition if they’re arrested for the purpose of securing their attendance as a witness at trial.

The presence of troops does not necessarily mean martial law

Martial law is not the same thing as deployment of troops. A country can deploy troops to help with a natural disaster or peacekeeping without imposing martial law on its citizens. This has happened several times in the United States including during the Whiskey Rebellion and during the civil rights movement.

When might a country impose martial law?

There are multiple reasons that a country might impose martial law, and they all have to do with public safety. Although martial law is a subject of great disagreement and debate, martial law might be invoked or appropriate in any of the following situations:

  • Natural disaster – The United States briefly invoked martial law during the Chicago fire of 1871
  • War – Officials imposed martial law during the civil war. Some of those detained successfully challenged the imposition of martial law before the U.S. Supreme Court
  • Occupation of a new territory
  • To silence political dissent, such as during the Chinese Tiananmen Square protests of 1989
  • In absence of the existence of any other government or civil authority

What does martial law mean?

When a country imposes martial law, it restricts the ability of a citizen or other individuals present in the country to go to a civil court in order to challenge restrictions on their freedom. It basically means making the military the judge and jury as well as the police force. Typically, martial law means that civil law doesn’t exist. Citizens can no longer access independent courts to challenge the actions of the police. When citizens are detained, they have no recourse.

There’s also usually a curfew that goes along with the new rules. Citizens lose their right to be free from unlawful search and seizure. When they have a problem with law enforcement, they answer to a military court.

Modern martial law

At a federal level, martial law continues to evolve. Detainees continue to challenge the government’s authority to hold them indefinitely without trial. The U.S. Supreme Court issues decisions on martial law questions. For example, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the U.S. Supreme Court ruled that the government can’t hold U.S. citizens indefinitely. In Rasul v. Bush 03-334 (2004), the courts ruled that non-citizens have limited habeas corpus rights. However, the Boumediene v Bush 06-1195 (2008) decision said that non-citizen detainees can’t use the federal courts to challenge their detention.

Habeas corpus petitions in everyday jurisprudence

Criminal lawyers use habeas petitions in state and local courts throughout the country each day. They use the petitions before trial for things like securing their client’s right to bond or challenging their continued detention without an arraignment. After a conviction, a habeas petition can challenge a mistake at trial. Only a small percentage of habeas petitions are successful, and they can take multiple years to process in the courts. However, for the clients they represent and to society as a whole, lawyers who practice martial law in the form of filing a habeas corpus petition perform a critical service for society in securing the rights and freedoms of the accused and the convicted.

Who practices martial law?

Martial law and international law often intersect. Lawyers who practice international law might find themselves involved with martial law issues on a regular basis. These lawyers oversee the actions of foreign governments in conflict and the actions of foreign governments who are party to war crimes tribunals and other international agreements. These lawyers may practice martial law as an official part of their country’s participation in these international efforts.

Lawyers in martial law might also lend their services to international accountability and oversight organizations. They might advocate for the rights of detained individuals throughout the world. Lawyers may work for private organizations or as part of an official delegation as they aim to oversee foreign judicial and military operations as well as seek to influence the actions of foreign military groups and political leaders.

A habeas corpus petition must be filed in the proper jurisdiction. That means that lawyers specializing in only martial law usually require frequent travel. Martial law is also a great fit for lawyers who are fluent in multiple languages and lawyers who have experience with multiple cultures and international travel.

Why practice martial law?

Lawyers in this field protect some of the most basic freedoms in society. Their work touches on the very essence of what it means to live in a society. Martial law examines what’s in the best interests of society and how those interests interact with individual rights. The work of martial lawyers contributes to the discussion and debate of what it means to live free. For lawyers who want to test the limits of these freedoms, martial law affords them the opportunity to participate in this discussion.

In addition to helping others, marital law is an appropriate choice for lawyers who are passionate about politics and current events. Lawyers in this field have the opportunity to shape current events. For lawyers with a background or experience in politics, martial law might be a worthy extension of their public career. Lawyers can find themselves making the news as they advocate for the rights of their clients. Lawyers have the opportunity to influence legislation, the direction of the courts and even international relations.

Lawyers who bring habeas corpus motions as part of a criminal law practice

For lawyers who practice criminal law, knowing martial law and the freedoms afforded by habeas corpus and due process requirements is part of providing competent service to clients. When a client is detained for any reason, including a violation of a state law or local ordinance, the client needs their criminal lawyer to make sure that the police don’t violate any habeas corpus rights in their detention and criminal proceeding. Although martial law is only one area of a criminal law practice, it’s a critically important area of practice. For lawyers who specialize in criminal law, knowing how martial law can affect the interests of their clients and knowing how to advocate for their clients is a very important part of providing competent service.

Why Become a Martial Lawyer

Martial lawyers play an important role in securing some of the most fundamental rights of U.S. citizens. They challenge authorities and hold them responsible for just application of law. Martial lawyers make sure that U.S. military and civilian officials strike the right balance between laws that are meant to keep Americans safe and laws that protect the safety of society at large. Even when a martial lawyer advocates for one, single client, their work may have a lasting impact on individuals throughout the United States who may not even be aware of their rights. For attorneys who want to make a difference in a high pressure, high stakes environment, martial law offers a challenging and rewarding career choice.