Washington, D.C.

May 1, 1999






Presidential Powers To Use the U.S. Armed Forces
To Control Potential Civilian Disturbances

In light of published reports that the governments of Canada, Great Britain, France, and Germany had placed their armed forces on standby for January 1, 2000 in preparation for possible deployment for disaster assistance and/or domestic disorder, you have asked us to research (1) the extent of your powers to deploy U.S. Armed Forces within the boundaries of the United States for law enforcement purposes involving civilians; (2) the powers that could be exercised by those forces; and (3) whether a declaration of martial law would be necessary to initiate such deployment.


As president of the United States, you may persuasively claim to have extensive statutory and constitutional powers to deploy the armed forces of the United States within the boundaries of the United States for law enforcement purposes without recourse to declarations of martial law. The limitations imposed by the Posse Comitatus Act and related statutes are no significant check to your executive powers as Commander-In-Chief to use the armed forces to take such measures as you consider necessary for the public good.

This memorandum is fictional but accurately depicts the broad powers enjoyed by presidents to utilize U.S. military forces to address domestic disturbances.

This memo is written by William J. Olson and Alan Woll. William J. Olson heads a McLean, Virginia law firm with a practice which focuses on the areas of constitutional law, administrative law, and civil litigation. Alan Woll is an associate with that firm. (William J. Olson, P.C., 8180 Greensboro Drive, Suite 1070, McLean, Virginia 22102-3823; 703-356 5070 (www.wjopc.com; e-mail wjo@mindspring.com).

© 1999 Gun Owners of America, 8001 Forbes Place, Suite 102, Springfield, Virginia 22151, 703-321-8585 (www.gunowners.org). Permission to reproduce in its entirety is granted with full attribution and disclaimers intact.


  1. Constitutional and Statutory Authority

  2. Presidential Use of the Military To Quell Domestic Disturbances
    Colorado, 1914
    Idaho, 1899
    South Carolina, 1871
    United States, 1861-62
    General Practice
    California, 1992

  3. The Posse Comitatus Act and Other Related Statutes
    Effect of the Posse Comitatus Act
    Constitutional and Statutory Exceptions to the Posse Comitatus Act
    Early Statutes Providing for Federal Responses to Domestic Disturbances
    Statutory Exceptions

  4. Martial Law

    1. Judicial Review of Martial Law
      Ex parte Milligan
      Duncan v. Kahanamoku

    2. Military Analysis of Martial Law

I. Constitutional and Statutory Authority

You have statutory authority to intervene with military force in a state's domestic disputes, upon request from the state legislature (or governor), at 10 U.S.C. 331:

Similar statutory authority permits you to use military force without any state request to address circumstances whenever and wherever you determine that the laws of the United States cannot be enforced (10 U.S.C. 332):(1)

This power is particularly broad, as the U.S. Supreme Court has stated that you may act unilaterally both in deciding whether an insurrection is in effect, and how much force is necessary to address it:

As Constitutional scholar Clinton Rossiter observed, the U.S. Supreme Court has herein decided that you have dictatorial power, including the power to suspend the Constitution.:

Moreover, such plenary power, even in the face of state government opposition has been authorized by Congress (10 U.S.C. 333):

Prior to your use of such force, it is anticipated that you will issue an appropriate proclamation:

II. Presidential Use of the Military To Quell Domestic Disturbances

Using these and similar statutory and Constitutional powers, prior presidents have deployed federal military personnel in response to domestic disturbances without the declaration of martial law. Such presidential use of the military has been quite expansive.

Colorado, 1914

For example, on April 28, 1914, President Wilson ordered infantry units into Colorado, with orders to disarm all persons, including sheriff's deputies, policemen, and members of the Colorado National Guard.(5) The army units were given the following orders:

On April 25, 1914, Colorado Governor Ammons had requested federal assistance in ending labor-related violence in the coal fields of Huerfano and Las Animas counties.(7) President Wilson responded under section 5297 of the Revised Statutes (of the United States) which then provided for the use of federal troops to oppose an insurrection against a state's government:

It is important to observe that, without a presidential declaration of martial law, President Wilson ordered the U.S. Army to:

Nor was President Wilson the first president who both acknowledged and exercised these presidential powers -- even to use the U.S. military to disarm rebellious Americans (without any technical requirement to define who is rebellious).

Idaho, 1899

On April 30, 1899, in response to a gubernatorial request, President McKinley ordered federal troops to Idaho without issuing a presidential declaration of martial law. Upon arrival, the troops "scrutinized" passengers on local rail lines, detained suspected criminals, and eventually held prisoners for several months awaiting trial in the local courts. The governor of Idaho declared martial law on May 3, 1899.(9)

South Carolina, 1871

During Reconstruction, without declaring martial law, President Grant sent troops into nine counties of South Carolina (in 1871). This followed his issuance of a proclamation by commanding residents "to deliver, either to the marshal of the United States for the District of South Carolina, or to any of his deputies, or to any military officer of the United States within said counties, all arms, ammunition ... used, kept, possessed or controlled by them...."(10) President Grant even suspended the writ of habeas corpus.(11) More than 600 arrests had been made by the end of 1871.(12)

United States, 1861-62

In 1861, following the inauguration of Abraham Lincoln, a series of arrests of American citizens was undertaken, under the loose oversight of Secretary of State Seward. Arrests normally occurred at night, at the order of Secretary Seward or a military officer, on grounds of:

Prisoners were locked in crowded casemates or batteries within a fort. Visitors were forbidden with rare exceptions. Attorneys were absolutely forbidden -- requesting an attorney would prejudice a defendant's case. Only unsealed letters would be forwarded; such letters were returned or retained in the case file if they contained objectionable matter.(14) Thus, without a statute -- or even a presidential proclamation -- authorizing these arrests, American citizens were arrested by military officers, on suspicion, held without trial in military facilities, and denied access to the courts, yet no martial law had yet been declared.

On February 14, 1862, President Lincoln issued an "executive order" releasing many of these political prisoners, with exceptions for: (1) spies, or (2) persons whose release "may be deemed incompatible with the public safety." A review panel consisting of Judge Edwards Pierrepont and General John Dix was established to expedite releases.(15)

Also without a declaration of martial law, on April 27, 1861, President Lincoln delegated to General Winfield Scott authority to suspend the writ of habeas corpus on or near the railroad lines between Philadelphia and Washington, D.C.(16) The scope of this authority was expanded to New York City on July 2, 1861,(17) and to Bangor, Maine, on October 14, 1861,(18) before its extension to all persons arrested or imprisoned by military forces, in a declaration of martial law.(19) Nearly two years after President Lincoln's first suspension of habeas corpus, Congress passed an act authorizing such suspensions of habeas corpus by the President.(20)

General Practice

For the first 50 years following the enactment of the 1807 statute allowing the use of federal forces in domestic disturbances, such forces were ordinarily deployed together with the militia. The limited size of the regular army made it necessary to call out the militia concurrently to obtain an effective response to domestic disturbances.(21)

Nevertheless, between 1807 and 1925, federal troops were used more than 100 times to quell domestic disturbances.(22) In most instances, the simple presence of the U.S. armed forces proved sufficient to quell the domestic disturbance;(23) in others, the troops were not dispatched until the disturbance was over.(24) On two occasions, both parties in a violent dispute requested federal troops.(25)

One example indicative of the breadth of authority which you enjoy in the use of federal troops is the deployment of such troops to disarm civilians. For example, U.S. soldiers also disarmed American citizens pursuant to deployments in Norfolk, Virginia in 1866,(26) New Orleans in 1874,(27) and West Virginia in 1921.(29) Not one of these deployments involved a federal declaration of martial law.

Not only do you have the benefit of these precedents of the use of federal military personnel to disarm disaffected Americans, more modern, efficient means have been developed (through mandatory registration schemes) to systematically seize the arms of such dangerous individuals. Thus, you enjoy abundant means to protect society from any violent, disaffected fanatics no matter what the year 2000 may bring.

It is also important to recognize that such direct use of federal troops to enforce the laws is not merely of historical interest. The most recent presidential exercise of this power was by President Bush in response to the Rodney King riots in 1992.

California, 1992

On April 29, 1992, the acquittal of four police officers on a charge of beating Rodney King in Los Angeles, California, resulted in riots which spread over hundreds of square miles.(30) The riots caused the deaths of at least 54 people, and more than $800 million in property damage throughout Los Angeles County.(31)

On May 1, 1992, President Bush issued Proclamation 6427, commanding "all persons engaged in such acts of violence and disorder to cease and desist therefrom and to disperse and retire peaceably forthwith."(32) That same day, he issued Executive Order 12804, which stated that:

Pursuant to this executive order, soldiers of the U.S. Army's 7th Infantry Division and Marines from Camp Pendleton were deployed in Los Angeles beginning on May 3.(34)

As expressed by the executive order, the role of federal troops was "to restore law and order." However, according to the deputy adjutant general of the California National Guard, that mission "had been accomplished before [the federal troops] arrived."(35)

Unfortunately, the commander of the so-called Joint Task Force ("JTF") -- comprised of U.S. infantry, marines, and federalized units of the California National Guard -- asserted that his troops had not been called out to maintain law and order. He stated that "[i]t was not the military's mission to solve Los Angeles' crime problem, nor were we trained to do so."(36) As a result, the JTF "required each request for assistance to be subjected to a nebulous test to determine whether the requested assignment constituted a law enforcement or military function." The federal troops became "largely unavailable for most assignments requested by the LAPD."(37) This administration has been diligent in exposing and criticizing this failure by the command to be more aggressive. Colonel Thomas Lujan (Staff Judge Advocate of the United States Special Operations Command) observed that:

Colonel Lujan concluded: "senior leaders will have to reorient their thinking. Given the scarcity of resources, our nation can ill afford to have the effectiveness of their military assets artificially constrained by a misunderstanding of the law."(39)

The Defense Department has since worked to re-educate commanders regarding their necessary role in preserving public order. For example, we note that the Operational Support Planning Guide of Joint Task Force Six (which coordinates military and civilian law enforcement activities in the Southwestern United States) states that:

So that these efforts can be better understood, a quick review of the Posse Comitatus Act and other statutory limits on the use of U.S. military personnel (and equipment) is discussed below.

III. The Posse Comitatus Act and Other Related Statutes

In 1878, in response to alleged abuses resulting from the use of federal troops for law enforcement by the post-Civil War Reconstruction state governments, Congress enacted a statutory limitation on the use of the U.S. Army for domestic law enforcement. This statutory provision, known as the Posse Comitatus Act,(41) originally read as follows:

The "Constitution" and "Act of Congress" exceptions to the prohibition on the use of the army remain in the current version of the Posse Comitatus Act, which has been broadened to add the U.S. Air Force (once the Army Air Corps):

The focus on use of the U.S. Army and Air Force rather than on all services, is said to reflect the origin of the bill -- a rider to an army appropriations bill.(44) The statute does not expressly interfere with your use of the Navy, Marines, or Coast Guard for law enforcement purposes within the United States as you deem necessary.

Another, similar statute implemented a limitation on law enforcement activities on all branches of the U.S. Armed Forces (excepting the Coast Guard). Unlike the Posse Comitatus Act, this statute is not in the criminal section of the U.S. Code.

Soon after the enactment of this law in 1981, Secretary Weinberger of the Reagan Administration promulgated the called-for implementing regulations. This statute is no longer of concern, however, as your administration wisely "removed" these regulations on April 28, 1993.(46) No regulations published in the Code of Federal Regulations now implement this code section. Without implementing regulations, this statute will be unlikely to impede your plans.

Effect of the Posse Comitatus Act

In practice, the "Constitution" and "Act of Congress" exceptions have prevented the Posse Comitatus Act from substantially limiting presidential action. However, the Posse Comitatus Act appears to have only effectively precluded the deployment of federal troops in response to applications -- made directly to military officials -- by local, state, and judicial officials. Before enactment of the Posse Comitatus Act, infantry had been deployed at the request of the mayor of Norfolk, Virginia (in 1831), a federal judge in Boston (in 1854), a state judge in Utah (in 1859), and the sheriff of Mobile, Alabama (in 1869).(47) No such deployments have evidently taken place since the law was enacted.

In part, this reflects the existence of recognized (if not clearly-defined) limits to the authority which can be exercised by the military in domestic disturbances, including the violation of constitutional rights.(49) Military Analyst Major Dowell observed, "[i]n cases of the exercise of military force in the suppression of internal disorders, the military man is liable to civil suit or even to criminal prosecution after the emergency ceases."(50) We do not believe this risk to be credible, and it should not deter military obedience to your orders. The military requires strict and prompt obedience to lawful orders. Major Dowell properly prescribed the standard that all orders should be obeyed unless patently illegal.(51)

Constitutional and Statutory Exceptions to the Posse Comitatus Act

There is disagreement as to whether any provisions of the Constitution expressly provide for the use of federal forces for law enforcement purposes. The best authorities have identified Article IV, Section 4 as a provision of the U.S. Constitution which "expressly authorizes" the use of federal military personnel in law enforcement:(52)

Opponents to this view assert that it is undermined by the fact that presidents had no statutory authority to use U.S. soldiers, sailors or marines to quell domestic disturbances until 1807. The responsibility for maintaining the public peace rested first with the sheriffs and then with the militia.(53) They would also argue that this practice was consistent with the founding fathers' concerns about maintaining a standing army, citing authority such as James Madison. For example, during the ratification debates in Virginia, Madison stated:

These questionable historians miss the fact that Madison was clearly calling for the General Government to have "full power."

Likewise, in 1832, President Andrew Jackson -- who had the experience of leading regulars and militia in battle -- once expressed concerns regarding the size of the Army in his annual message:

Of course, these quotations, are not only taken out of context, they fail to address the inability of 18th and 19th Century political philosophy to deal with 21st Century problems. Fortunately, in contrast with the philosophizing of these "dead white males," the practice of your predecessors firmly establishes your power to employ the military vigorously in the face of domestic disturbances.

Early Statutes Providing for Federal Responses to Domestic Disturbances

First, in 1792, President Washington received express authority from Congress to call out the militia to quell domestic disturbances.(56) This law addressed two types of disturbances: (1) insurrection against the government of a state (where a state legislature, or the governor if the legislature was not in session, had applied for assistance, incorporating the provisions of Article IV, Section 4); or (2) the obstruction of the execution of federal laws. These provisions, as amended, still exist at 10 U.S.C. 331-33.

It is technically true that statutory authority to use the national armed forces to quell domestic disturbances did not exist until 1807:

However, since it is obvious that the Constitution expressly provides for such use of U.S. military forces -- and the Constitution trumps any statute -- obviously the Congress' failure to expressly provide for such use of military forces before 1807 was an oversight.(58)

Statutory Exceptions

Besides this evident Constitutional exception to the Posse Comitatus Act, a number of statutes expressly provide for the use of U.S. military personnel and equipment. Even by 1903, Congress had recognized the need for strong executive action, having enacted 20 statutes which authorized deployment of "the land and naval forces of the United States" for law enforcement purposes.(59) Thanks to Congress, this number had nearly doubled by 1995, including the statutes which were identified above.(60)

For example, U.S. military units may, as a matter of course, "provide to Federal, State, or local civilian law enforcement officials any information collected during the normal course of military training or operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials."(61) Not only is such information to be provided, requests for information should be solicited. "The needs of civilian law enforcement officials for information shall, to the maximum extent practicable, be taken into account in the planning and execution of military training or operations."(62)

Also, the Secretary of Defense may "make available any equipment (including associated supplies or spare parts), base facility, or research facility of the Department of Defense to any Federal, State, or local civilian law enforcement official for law enforcement purposes."(63) He may also "make Department of Defense personnel available to train Federal, State, and local civilian law enforcement officials in the operation and maintenance of equipment, including equipment made available under section 372 of this title; and to provide such law enforcement officials with expert advice."(64) The Secretary of Defense may make military personnel available for the maintenance and operation of equipment for Federal, State, and local civilian law enforcement officials, including equipment made available under section 372 of this title.(65) Your administration has already made effective use of military personnel and equipment in the Waco incidents by means of these provisions.

For example, active duty military personnel trained agents of the Bureau of Alcohol, Tobacco and Firearms ("BATF") before the attempt to serve warrants at Waco.(66) The military assistance to BATF from active duty and National Guard units was based upon allegations (later discovered to be unsubstantiated) of an active methamphetamine lab in the Davidian compound.(67) This assistance included surveillance overflights, training by Special Forces soldiers, and direct support by Texas National Guard personnel providing an aerial diversion during the raid.(68)

After the raid, active duty military personnel provided services to the FBI in support of the FBI's activities during the standoff.(69) Some Special Forces personnel were dressed in civilian clothes while at or near the Branch Davidian residence.(70)

Texas National Guard forces provided 10 Bradley Fighting Vehicles, 4 M728 Combat Engineering Vehicles ("CEV"), 2 M1A1 Abrams Tanks, and 1 M88 Tank Retriever.(71) These vehicles were effectively employed, demonstrating the value of military/civilian collaboration. The Bradleys were used by FBI agents to fire projectiles containing CS agent into the residence.(72) The CEVs were used to ram holes into the residence and insert CS agent.(73) National Guard troops assisted the FBI in refilling the CEVs with the CS agent.(74)

Support vehicles and equipment (e.g., tents, generators, concertina wire) were also provided by the Defense Department to the FBI.(76)

IV. Martial Law

Given the almost limitless authority these precedents provide you to use military forces for civilian law enforcement purposes within the United States however, it hardly seems necessary to address the nature of martial law.(77) Additionally, the precedents in this area are less well established -- apparently, there have been only two occasions where a president has formally declared martial law, both by President Lincoln.(78) On September 24, 1862, President Lincoln declared disloyal persons throughout the United States subject to martial law. He later placed the Commonwealth of Kentucky under martial law on July 5, 1864.(79)

Nevertheless, to give complete coverage to the issues which you raised, we present the following analysis.

While no federal statutes appear to define martial law, one section of the Code of Federal Regulations ("CFR") -- 32 CFR 501.4(80) -- makes four points about martial law:

Another section of the Code of Federal Regulations, 32 CFR 501.1(c), discusses military arrests:

The termination of the deployment of federal troops to address civil disturbances within the United States are addressed at 32 CFR 501.6:

A. Judicial Review of Martial Law

Only two U.S. Supreme Court cases have been found which appear to constrain presidential powers under martial law. However, with Congress' deference toward presidential use of military power against rebellious elements within the United States, the effect of these cases is questionable. In light of the fact that virtually any objective you may have could be efficiently achieved without resort to a declaration of martial law, we would advise against any such action as needlessly provoking citizens and legal purists.(82)

Ex parte Milligan

The U.S. Supreme Court helped define the proper scope and application of martial law in Ex parte Milligan, 71 U.S. 2 (1866). Milligan, a citizen of Indiana, was arrested by federal troops and found guilty -- by a military court -- of conspiracy against the government of the United States, affording aid and comfort to rebels, inciting insurrection, disloyal practices, and violation of the laws of war. Milligan presumably became subject to military judicial process under President Lincoln's declaration of martial law of September 24, 1862. Milligan was sentenced to death.(83) He filed a writ of habeas corpus in federal court, seeking release from military custody.(84)

Counsel for the military argued that Milligan's treatment was legal "under the 'laws and usages of war.'"(85) Disagreeing, the Court held that:

The Court continued:

The writ of habeas corpus was issued.(88)

Duncan v. Kahanamoku

The only other treatment of the topic of martial law by the U.S. Supreme Court came as a result of the declaration of martial law in Hawaii during World War II. Duncan v. Kahanamoku, 327 U.S. 304 (1946), arose out of the declaration of martial law in Hawaii (before it became a state) by its governor on December 7, 1941, pursuant to the federal statute organizing Hawaii as a territory ("the Organic Act"). On December 8, the Commanding General prohibited both civil and criminal courts from summoning jurors and witnesses or trying cases. The Commanding General established military tribunals to take the place of the courts.(89)

Duncan was a civilian shipfitter employed in the Navy Yard at Honolulu. On February 24, 1944, he engaged in a brawl with two armed Marine sentries at the yard. By the time of his arrest, the military had authorized civilian courts to "exercise their normal functions." However, only military tribunals were to try "Criminal Prosecutions for violations of military orders." Duncan was charged with violating one of these orders, which prohibited assault on military or naval personnel with intent to resist or hinder them in the discharge of their duty. He was therefore tried by a military tribunal rather than the Territorial Court, although the general laws of Hawaii made assault a crime. A conviction followed and Duncan was sentenced to six months imprisonment.(90)

Duncan filed a writ of habeas corpus in federal district court. The court issued an order to the military authorities to show cause why Duncan should not be released. In response, the military argued "that the writ of habeas corpus had ... properly been suspended and martial law had validly been established in accordance with the provisions of the Organic Act; that consequently the District Court did not have jurisdiction to issue the writ; and that the trials of petitioners by military tribunals pursuant to orders by the Military Governor issued because of military necessity were valid." The District Court then held its own trial, found that the courts had always been able to function but for the military orders closing them, and that consequently there was no military necessity for the trial of petitioners by military tribunals rather than regular courts. It accordingly held the trials void and ordered the release of the petitioners. The federal court of appeals reversed, holding the military trials to be valid.(91)

The Court examined whether Congress had intended to "give the armed forces power to supplant all civilian laws and to substitute military for judicial trials" when it, by statute, gave the governor of Hawaii the power to declare martial law. It concluded that "both the language of the Organic Act and its legislative history fail to indicate that the scope of 'martial law' in Hawaii includes the supplanting of courts by military tribunals."(93) The Court then asked:

The Court concluded:

The writ of habeas corpus was issued.

It is important to observe that both rulings were issued well after the crisis had passed. Were any challenge to your actions to reach the Court during a time of emergency, the Court's extreme deference to forceful executive action would likely be exercised.(96)

B. Military Analysis of Martial Law

A military analyst, of the 1920s, Major Cassius Dowell, addressed the nature of martial law in his work, Military Aid to the Civil Power. First, he observes that the term is a misnomer -- the true definition is where "the State or National government, through its military forces, controls the civil population without authority of written law, as necessity may require."(97) Major Dowell states that martial law should be distinguished from circumstances where the military is employed under statute; for in the latter circumstances the military "is not called out to supersede civil authority but to maintain or restore it."(98) He adds that martial law:

Major Dowell observes that:

Thus, if there is to be a declaration of martial law, a full and convincing explanation of the necessity undergirding the action should be part of the proclamation.

Incidentally, the proposed plan to appoint a military commander to oversee deployments of the U.S. military within the United States is another positive step in the organized use of military resources in the struggle to ensure domestic tranquility into the 21st century.(101)


A presidential declaration of martial law has not been a necessary predicate to the deployment of federal troops to control unruly and insurrectionist elements within the United States. In light of this history, and these favorable precedents, it appears to be absurdly unlikely that the U.S. Congress or federal judiciary would ever make any determined effort to limit your broad statutory powers to use the military to take such measures as you consider necessary for the public good.


The Arming of Federal Bureaucrats

If you have any qualms about the use of military forces within the United States or in the event that necessary U.S. military forces are unavailable or reluctant to participate, you enjoy other resources generally not available to your predecessors. Current estimates are that there are 80,000 armed employees in the Executive Branch -- an increase of 20,000 over 1996!(102)

The power to carry firearms has been granted, by statute, to:

As highlighted above, several of these statutes not only authorize federal employees to carry firearms, but also extend this authority to federal contractors and subcontractors. This elastic concept could be useful.

Again, however, there has been some effort to publicize this issue by politicians motivated by personal animus. For example, in 1997 Rep. Ron Paul (R-TX) observed that:

Of course, the loyalty of these dedicated public servants to the policies of your administration should make them a valuable resource, whatever the future may hold.


It would be difficult for most Americans in 1999 to imagine any president’s use of the military against U.S. citizens — if it had not already happened innumerable times in the history of our country. No president, even one with the highest moral character, should be entrusted with such plenary powers, as have been exercised by presidents in the past. As Senator Daniel Hastings once said of a statutory authority being given to Franklin Roosevelt, it was:

The constitutional duty to constrain the exercise of unauthorized and unconstitutional presidential powers may someday rest with the federal judiciary. However, at present, it is the solemn constitutional duty of the U.S. Congress to act decisively to remove any pretense of legality from the exercise of such unconstitutional powers — powers that have been accurately described as “dictatorial” in nature.

— Bill Olson & Alan Woll

1. In 1894, federal court officials in Illinois requested the deployment of U.S. troops to enforce judicial processes. The Illinois governor protested sharply against such deployment of U.S. troops within his state, and requested that they be withdrawn. The President refused the governor's request, and his action was upheld by the U.S. Supreme Court in the case In re Debs, 158 U.S. 564 (1895).

2. The Prize Cases, 67 U.S. 635, 670 (1863), emphasis added.

3. Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies. (Princeton: Princeton University Press, 1948) p. 230, quoted in U.S. Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, A Brief History of Emergency Powers in the United States, committee print, 93rd Cong., 2d sess. (Washington: GPO, 1974), p. 15, emphasis added.

4. 10 U.S.C. 334.

5. Bennett Rich, The Presidents and Civil Disorder (Washington, D.C.: The Brookings Institution, 1941), pp. 140, 144.

6. Id., pp. 141-42, emphasis both original and added.

7. Id., p. 138. The previous October, Colorado Governor Elias Ammons had declared a "modified form of martial law." Id., p. 137.

8. Obviously, this ability to disarm persons within the United States is critical in light of reports that disaffected religious and political fanatics, including so-called patriots, continue to purchase arms and ammunition.

9. U.S. Congress, Senate Document No. 24, Coeur D'Alene Mining Troubles, 56th Cong., 1st sess. (Washington: GPO, 1900), pp. 3, 74.

10. President Grant's October 12, 1871 Proclamation, 17 Stat. 949-50, emphasis added, reproduced in U.S. Congress, Senate Document No. 209, Federal Aid in Domestic Disturbances, 57th Cong., 2d sess. (Washington: GPO, 1903), p. 122.

11. Legalistic critics of President Grant's action assert that Article I, Section 9, clause 2 of the U.S. Constitution, which states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it," required a finding of either a state of invasion or rebellion.

12. Federal Aid in Domestic Disturbances, p. 122.

13. U.S. Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, A Brief History of Emergency Powers in the United States, committee print, 93rd Cong., 2d sess. (Washington: Government Printing Office, 1974), p. 19.

14. Id.

15. Id. at 20.

16. This action, which had the form of a proclamation, is reproduced in William H. Rehnquist, All the Laws But One (Alfred A. Knopf: New York, 1998), p. 25. This action was determined to be unconstitutional by Chief Justice of the United States Roger Taney, sitting as a circuit court judge in Baltimore, in Ex parte Merryman 17 F.Cas. 144 (C.C.D. Md. 1861), but the Lincoln Administration refused to either enforce or appeal the federal court ruling.

17. Jill E. Hasday, Civil War as Paradigm: Reestablishing the Rule of Law at the End of the Cold War, 5 Kan. J.L. & Pub. Pol'y, 129, 130 (1996).

18. Rehnquist, p. 48. Following the war, the U.S. Supreme Court granted a writ of habeas corpus, notwithstanding its suspension by the President. Ex parte Milligan, 71 U.S. 2 (1866), discussed at length, below. The concurring opinion pointed out that the holding in Milligan was contrary to the terms of the Habeas Corpus Act of 1863. Rehnquist, p. 131.

19. Proclamation Suspending the Writ of Habeas Corpus (September 24, 1862) cited by Hasday, p. 130.

20. An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases (March 3, 1863) ("Habeas Corpus Act of 1863").

21. Federal Aid in Domestic Disturbances, p. 61.

22. Military Aid to the Civil Power, p. 185.

23. E.g., when the Army was called out in Indiana in 1877; to Seattle in 1885; and to Idaho in 1892. Federal Aid in Domestic Disturbances, pp. 202, 218, 224.

24. E.g., when the Army was called out in Seattle in 1886; Los Angeles in 1894; Idaho in 1899; Army and Marines in Los Angeles in 1992. Id., pp. 221, 236; 247-49; Christopher Schnaubelt, "Lessons in Command and Control from the Los Angeles Riots," Parameters, Summer 1997. Parameters is a quarterly publication of the U.S. Army War College.

25. E.g., the Dorr Rebellion in Rhode Island (1842); also both claimants to the office of Governor of Arkansas requested federal troops in 1874, Id., pp. 66-68, 171-74.

26. Federal Aid in Domestic Disturbances, p. 109. Only blacks were disarmed.

27. (28)

28. Federal Aid in Domestic Disturbances, p. 5; Military Aid to the Civil Power, p. 204; see also President Hayes' proclamations of July 18 and 21, 1877, and President Harrison's proclamation of July 15, 1892.

29. The Presidents and Civil Disorder, p. 166.

30. Schnaubelt.

31. Id.

32. 57 Fed. Reg. 19359. President Bush appeared to rely on both 10 U.S.C. 331 and 332 as bases for the Proclamation.

33. 57 Fed. Reg. 19361, emphasis added.

34. Colonel Thomas Lujan, "Legal Aspects of Domestic Employment of the

Army," Parameters, Autumn 1997.

35. Schnaubelt.

36. Id.

37. Id., quoting from Judge (and former FBI Director) William Webster's report concerning the military and law enforcement response to the Los Angeles riots.

38. Lujan, emphasis added.

39. Id., emphasis added.

40. Quoted in House Rept. 104-749, Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians, p. 33, emphasis in original.

41. The Posse Comitatus is "[t]he entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases." Black's Law Dictionary, Revised Fourth Edition (West Publishing: St. Paul, Minnesota, 1969), p. 1324.

42. Section 15 of the army appropriation bill for fiscal year 1878, reproduced in Federal Aid in Domestic Disturbances, p. 188, emphasis added.

43. 18 U.S.C. 1385.

44. See Charles Doyle, Congressional Research Service, The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law, CRS-39 (1995).

45. 10 U.S.C. 375; Pub. L. 97-86, title IX Sec. 905(a)(1), Dec. 1, 1981, 95 Stat. 1116, emphasis added.

46. 53 Fed. Reg. 25776. Secretary of Defense Aspin's notice of the removal of the regulations observed that the regulations "have served the purpose for which they are intended and are no longer valid." See Doyle, CRS-12, n. 28.

47. Federal Aid in Domestic Disturbances, pp. 56, 76-77, 97, 129.

48. Doyle, opening summary, emphasis added.

49. Ironically, 10 U.S.C. 333 provides for the use of federal military forces where "any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection." Thus the prescribed statutory remedy, military intervention in domestic disturbances, may result in further violations of constitutional rights, as in the disarming of American citizens.

50. Military Aid to the Civil Power, p. 211.

51. Id., p. 213.

52. Federal Aid in Domestic Disturbances, p. 5; Military Aid to the Civil Power, p. 204; see also President Hayes' proclamations of July 18 and 21, 1877, and President Harrison's proclamation of July 15, 1892.

53. George Mason, author of the Virginia Declaration of Rights and a participant in the Constitutional Convention, defined the militia as "the whole people, except for a few public officials." Larry Pratt, ed., Safeguarding Liberty: The Constitution and Citizen Militias (Franklin, Tennessee: Legacy Communications, 1995) p. xiii. A similar definition currently survives in the U.S. Code at 10 U.S.C. 311:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32 [which allows persons who are under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps to enlist in the National Guard] under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

54. Federal Aid in Domestic Disturbances, p. 22, emphasis added.

55. Id., p. 59, emphasis added.

56. 1 Stat. 264.

57. 2 Stat. 443, emphasis added.

58. See n.11, supra.

59. Federal Aid in Domestic Disturbances, pp. 5-9.

60. Doyle, CRS-21 through CRS-23.

61. 10 U.S.C. 371(a).

62. 10 U.S.C. 371(b).

63. 10 U.S.C. 372(a).

64. 10 U.S.C. 373.

65. 10 U.S.C. 374.

66. U.S. Congress, House Committee on Government Reform and Oversight and Committee on the Judiciary, Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians, H. Rep. 104-749, 104th Cong., 2d sess. (Washington: Government Printing Office, 1996), p. 5.

67. Id., pp. 35, 40.

68. Id., p. 38.

69. Id., p. 50.

70. Id.

71. Id.

72. Id.

73. Id.

74. Id., p. 53.

75. Id., p. 50.

76. Id.

77. In addition, you already enjoy emergency powers, granted by statute, derived from the declaration of states of national emergency. Fourteen declarations of national emergency are currently in effect: Iran I (November 14, 1979); Iran II (April 17, 1980); Libya (January 7, 1986); Iraq (August 2, 1990); Yugoslavia (May 30, 1992); UNITA (September 26, 1993); Export Control (August 19, 1994); Bosnia/Herzegovina (October 25, 1994); Weapons of Mass Destruction (November 14, 1994); Middle East Terrorists (January 23, 1995); Columbian Drug Dealers (October 21, 1995); Cuba (March 1, 1996); Burma (May 22, 1997); and Sudan (November 3, 1997).

78. Some argue that President Grant's suspension of the writ of Habeas Corpus in South Carolina was a tacit declaration of martial law. This view is based upon a February 3, 1880 opinion by the U.S. Secretary of State to the Secretary of War. According to the Secretary of State, the deployment of federal troops in New Mexico pursuant to a presidential proclamation dated October 7, 1878 "can not properly be considered a proclamation 'declaring martial law;' it does not suspend or authorize the suspension of the writ of habeas corpus" quoted in Major Cassius Dowell, Military Aid to the Civil Power (Ft. Leavenworth, KS: General Service Schools Press, 1925) p. 219. Thus, in the view of the Secretary of State, the suspension of the writ of habeas corpus is an incident of martial law.

79. Military Aid to the Civil Power, p. 238.

80. Regulations of the Department of Defense, emphasis added.

81. 32 CFR 501 is entitled "Employment of Troops in Aid of Civil Authorities."

82. I.e., a faction of lawyers and law professors who cling to the outdated notion that the U.S. Constitution should be interpreted as its authors intended (so-called "original intent") in ignorant denial of the knowledge gained from 200 years of experience -- as well as the wisdom and insights gleaned from modern science.

83. 71 U.S. at 6-7.

84. Id. at 7.

85. Id. at 121, emphasis added.

86. Id. at 121-22, emphasis added.

87. Id. at 124-25, emphasis added.

88. Id. at 130.

89. 327 U.S. at 308.

90. Id. at 310-11.

91. Id. at 311-12.

92. Id. at 315-16, citations omitted, emphasis added.

93. Id. at 319.

94. Id., emphasis added. The Court would have done well to remember President Roosevelt's admonition about the dangers of fear.

95. Id. at 322-23, citations omitted, emphasis added.

96. E.g., The Prize Cases, 67 U.S. 635 (1863); Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Dames & Moore v. Regan 453 U.S. 654 (1981).

97. Military Aid to the Civil Power p. 231, emphasis in original.

98. Id., emphasis in original.

99. Id., p. 232, emphasis both in original and supplied.

100. Id., p. 234, emphasis both in original and supplied.

101. See, e.g., New York Times, March 10, 1999, p. A15.

102. "Freedom Report," March 1999, published by Rep. Ron Paul (R-TX). The 1996 figure was cited in an October 14, 1997 speech on the floor of the House of Representatives by Rep. Paul; he was quoting published reports.

103. October 14, 1997 speech on the floor of the House of Representatives.