![]() ![]() It does not authorize martial law in the sense of deprivation of ordinary civil liberties, special tribunals, irregular punishment, street justice, cutting off resort to the courts, etc." ( In 2006, the annual National Defense Authorization Act included a provision which changed that, allowing the president to impose martial law via the Insurrection Act. The "thing to remember about the Insurrection Act," Olson added, "is that it doesn't allow federal troops to enforce anything but already-prevailing federal, state, and local law. Furthermore, Olson told me, "there is a separate set of laws in which Congress has not only disallowed, but even chosen to make a crime, actions by federal troops or officers that interfere with the right to vote." But those exceptions - which typically involve violent insurrection - aren't applicable in this scenario. It does provide an exception to the general prohibition (under the Posse Comitatus Act) on using federal troops to enforce domestic law. ![]() The Insurrection Act gives Trump no additional leeway here. (The Army statement is an indicator of this very understanding.) And even if their constitutional oaths did not constrain them, there would be "very real personal consequences for both civilian and military administrators should they go along" with such an unlawful proposal, Olson noted, as career bureaucrats and officers undoubtedly realize. That might not stop Trump, Olson allowed, but it would stop many of the people he'd need to execute this plan. "Courts would not be afraid to recognize this as reason to strike down acts pretending to martial law authority," Olson said, just as they haven't been afraid to smack down specious election challenges. The courts are open now, which means any declaration of martial law - including in the six states Flynn targeted - would be illegal. There must be a state of invasion or insurrection such that ground is actually contested, and resort to conventional civil courts and authority must have collapsed." Absent those conditions, the court said in Milligan, martial law is "a gross usurpation of power," and in fact "can never exist where the courts are open." It means "the president cannot simply declare martial law at his whim. ![]() This ruling is "key" to understanding the president's martial law powers today, Olson said. But in Ex parte Milligan (1866), the Supreme Court ruled Lincoln had overstepped his legitimate bounds. ![]() That single occasion was President Abraham Lincoln's suspension of habeas corpus rights to suppress dissent during the Civil War. Moreover, Trump's other advisers in the Friday meeting reportedly opposed the plan in forceful terms, and a statement from Army leadership the same day made clear the military would take no role "in determining the outcome of an American election." streets, scooping up voting machines and tossing anyone who objects before a military tribunal. The president reportedly expressed interest in Flynn's idea.Ĭould this actually happen? Though it may simply be normalcy bias at work, I can't really imagine federal troops marching through U.S. And then there's Trump himself, who met with Flynn and other allies in the Oval Office this past Friday. Lin Wood, an attorney who sued to prevent the certification of the Georgia presidential election results, tweeted Saturday that "atriots are praying" Trump will "impose martial law in disputed states." Commenters at TheDonald.win, an online forum for supporters of the president, thrilled at the idea of a "mostly peaceful martial law declaration" but wondered, absurdly, whether it would accommodate their teenagers' travel home from college or their wives' scheduled c-sections. Flynn isn't alone in his open enthusiasm for precisely the military junta scenario the president's supporters have spent four years dismissing as a fever dream of Trump Derangement Syndrome. ![]()
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