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Can You Call It Martial Law?

By       Message Bob Hurt     Permalink
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Dialog with Larry over Martial Law

My friend Dr. Lowell Becraft ("Larry") expressed his concern that so many PNJ's (Patriot Nut Jobs - I call them PMM's or Patriot Myth Mongers) complain that the US operates under martial law. He wrote:

"In the case of Ex parte Milligan, 71 U.S. 2 (1866), the Supremes were required to determine what constituted "martial law," and in essence the Court concluded that it was essential that an army be in the field (meaning the locality where martial law prevails) and that the courts be closed because of the chaos. That case may be read here: Where I live, there is no army in the field, and our courts are open. In fact, I know of no place in America where an army is in the field, and anarchy is so prevalent that the courts must be closed. "

I, Bob, responded:

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The courts do seem open, but to many they have become meaningless as tools of obtaining justice/redress because:
  1. Most don't know the law or procedure.
  2. Most cannot afford legal counsel.
  3. Court and transcript and advocacy/case worker fees have become so exorbitant that most cannot afford them.
  4. Judges seem to favor lawyered litigants over pro se litigants.
In other words, for most, courts have effectively become NOT open.  That is one reason so many have showed up in the field.
I am unusual.  Because I don't work, I actually have the discretionary time for studying law and procedure, but even I would have a terrible time facing off against an experienced attorney.

Larry: "But not because of martial law."

Bob: "Then why?"

Larry: "The best description is that it is a power structure that protects the powerful; but it is not martial law. "

Bob: "Doesn't that equal "martial law?"  The powerful remain protected by militant force against the non-powerful who have, as a consequence, no say in government except to the extent the powerful allow?"

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Larry: "Read the case: We have lots of people that now believe we have martial law. When the real thing comes along, there will be no resistance because people thought it had already arrived."

Bob: "I have always visualized martial law as evidenced by soldiers patrolling the streets.  Who needs them with bomb-dropping drones patrolling the skies?"

Larry: "Excellent point, and drones may very well replace soldiers."

Now, I respond more fully, taking the time to honor the Ex parte Milligan opinion Dr. Becraft cited above.

Regarding Ex parte Milligan

The opinion cited above in Ex parte Milligan - 71 U.S. 2 (1866) makes the most excellent point that in martial law, military tribunals, not the judicial courts, try people accused of a crime in the jurisdiction of the military.  It also points out the process for using writ of error to appeal denial a petition for writ of habeas corpus, and the fact that the US must timely indict/present or discharge the prisoner.  It makes apparent the fact that only Congress can authorize the military to arrest and try folks in some territory of the US during insurrection/war/rebellion, and that the right to trial by jury always exists. It shows that grand juries must indict/present except in cases arising among military or militia forces during war or public danger. 

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And, I rather enjoyed the Chief Justice's instruction about the meaning of certain legal terms including cause and suit, and the fact that an ex parte habeas proceeding constitutes a cause/suit of the prisoner against the captor, typically some agent or agency of the Government.  I also appreciated the Court's opinion that Congress, not the President, has final say over empowering the President to suspend of the right of petition for writ of habeas corpus in times of publicly dangerous national emergency. The Chief Justice poignantly penned:

" The suspension of the writ does not authorize the arrest of anyone, but simply denies to one arrested the privilege of this writ in order to obtain his liberty... It was the manifest design of Congress to secure a certain remedy by which anyone deprived of liberty could obtain it if there was a judicial failure to find cause of offence against him... authority was given to the judges out of court to grant relief to any party who could show that, under the law, he should be no longer restrained of his liberty... The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. "

Thus, must the prisoner who evades summary execution wait out the term of the emergency for restoration of the right  to petition the court to issue the writ so that the prisoner might prosecute the cause of liberty before the court against the captors.  And at that time, the court has the legal duty, not the prerogative, to grant the writ and order the release of the prisoner if the Government cannot show legal merit under the Fourth Amendment for the detention.  And that means, under the law, that the Grand Jury sitting after the capture must indict or present against the prisoner, or the court must order the prisoner's release.

My Favorite Excerpt from Ex Parte Milligan

Every actual and wanna-be Citizen should read and embrace this, my favorite excerpt from Ex Parte Milligan, for it illustrates the central core motive behind the Colonist's rebellion against the British Crown, and every rebellion against authority before or since.

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