David Knight - Under Martial Law 2021

David Knight: We’re Under Martial Law NOW, It’s About to Get Much Worse

Banned.video, Released on 11/16/20

Texas just killed jury trials until at least Feb 2021. Fauci says “do what you’re told”, forget individual liberty. We’re under Martial Law already. It’s about to get much worse as troops are being called out.

The last time martial law—military control of the government—was declared in the United States was December 1941, just hours after the Japanese attack on Pearl Harbor. The territorial governor, acting under a turn-of-the-century statute, handed the government of the Hawaiian islands over to the commander of U.S. forces there. The military governor, as he styled himself, immediately ordered the closure of courts, shut down schools, froze wages, suspended labor contracts, and imposed censorship of newspapers, radio, and civilian mail. He also decreed a curfew and blackout, as well as a ban on the sale of alcoholic beverages—a wildly unpopular measure that was quickly reversed. Despite the fact that there was no threat of a Japanese invasion after the Battle of Midway in 1942, martial law remained in place for another two years.

So what would happen if, amid the panic of the coronavirus pandemic, the president tried to declare martial law? Without question, military forces directed by state governors—and perhaps even, in extreme cases, by the president—may be uniquely able to help get us through the current crisis. At least 20 state governors have now called up their National Guard to assist with delivery of food and medical supplies, clean public facilities, and adapt some of those facilities to house patients if hospitals become overwhelmed. Guard personnel could also help enforce quarantines ordered by state governors, and even arrest violators. But their role is to support, not replace, civil authorities. The states’ legal power to do all this is clear; it is not martial law.

During the Civil War, President Lincoln declared martial law with regard specifically to “rebels and insurgents” and certain other disloyal individuals. Although Lincoln limited the application of martial law (it did not apply to the general population), in 1866 the Supreme Court ruled, in a case called Ex parte Milligan, that his order to try such persons by military commission was illegal where civilian courts remained open and operating.

In its decision, the Court laid out criteria for invocation of martial law:

If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.

And, the Court said, “As necessity creates the rule, so it limits its duration.” The Court warned of allowing this extraordinary measure under other circumstances: “Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”

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The Court apparently failed to consider the possibility that the courts might be closed by military order. In such a case, of course, no one would be left to judge the legitimacy of the military’s actions.

The objective criteria set out by the Court—the presence of war, actual insurrection or invasion, effective closure of courts, displacement of civil authorities, and no alternative to protect the Army and society—left plenty of room for judgment about when martial law could be proclaimed. Yet they revealed the kind of extreme conditions that might justify its use.

Martial law was declared a number of times in the late nineteenth and early twentieth centuries at the state level, by governors acting as commanders in chief of their militias or national guards. Most often the declarations resulted from labor disputes. In a 1903 miners’ strike, for example, Colorado Governor James Peabody declared martial law in San Miguel County, where Telluride is located. He closed the saloons, imposed a curfew, censored the press, collected guns, and suspended habeas corpus, although the civil courts remained open. He also ordered state troops to arrest and detain Charles Moyer, the president of the Western Federation of Miners. In the Supreme Court’s 1909 decision in Moyer v. Peabody, Justice Oliver Wendell Holmes upheld the legality of Peabody’s use of martial law, writing that “the governor’s declaration that a state of insurrection existed is conclusive of that fact … When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.”

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But Trump’s “wartime president” rhetoric notwithstanding, invocation of martial law would be utterly unjustified and lawless. The coronavirus threatens the health of many citizens, and it may wreck the economy. But civilian government is adapting to the crisis. Courts remain open and operating, with modified procedures. And there has been no hint of insurrection, no widespread lawbreaking or domestic unrest. None of the conditions used to justify martial law in the past are present today or are likely to arise.

Not long ago a top civilian official in the Pentagon declared, “Our goal is not to declare martial law and take control. Our goal is to avoid that at all costs.” His statement reflects our understanding that martial law would threaten not only civil liberties but also democracy itself.