According to one officer who spoke to Newsweek on condition of anonymity, the planning is being kept out of sight of the White House and Trump loyalists in the Pentagon for fear that it would be shut down. A half-dozen officers in similar positions agree that while there is zero chance that the uniformed leadership would involve itself in any scheme to create an election-related reversal, they worry that the military could get sucked into a crisis of Trump's making, particularly if the president tries to rally private militias and pro- Trump paramilitaries in an effort to disrupt the transition and bring violence to the capital.
Though such a presidential proclamation could flow from his order as commander-in-chief, an essential missing ingredient is the martial side: the involvement and connivance of some cabal of officers who would support the president's illegal move. Yet while the Pentagon officially responded to Newsweek's queries with various quotes from defense leaders that the military has no role to play in the outcome of the election, it declined to address post-election crises or the discussions of martial law, referring questions to the White House.
Similarly, officers who were willing to speak about the subject insisted on anonymity, fearful that use of their names might provoke the ire of the president. People gather in support of President Donald Trump and in protest the outcome of the 2020 presidential election at freedom plaza on December 12, 2020, in Washington, DC.
After his television remarks, Flynn was invited to the Oval Office over the weekend, according to The New York Times and CNN, where he repeated his proposal. The Public Health Service Act is a 1944 statute that affords the president broad powers to mandate and enforce a nationwide quarantine.
And though President Trump himself tweeted Martial law = Fake News” the day of the New York Times report, officials who have served in the Trump White House say that his reference to “things that people don't even know about” portends true dangers, as the president indeed does have secret powers and has been fascinated with their existence. Military officers and National Security Council officials with direct knowledge of the early coronavirus deliberations at the White House say Trump was briefed by his national security team on a broad range of extraordinary powers available to him, including secret military plans to suppress civil disturbances in the “National Capital Region” and extraordinary powers contained in Top Secret continuity of government plans, both first revealed in Newsweek.
Contained in the various packages briefed in the Oval Office during the early months of COVID-19, he says, were discussions of so-called Presidential Emergency Action Documents. Heads originated during the darkest days of the Cold War and are proclamations, executive orders, presidential messages and draft legislation ready for submission to Congress, prepared and approved by the White House, the Justice Department, and Congressional lawyers.
That document, according to a former Justice Department lawyer who was involved in an Obama administration review of the entire sheaf of Heads, is probably the only explicit government statement setting out a domestic application of such a presidential proclamation. President Donald Trump sits with the United States Military Academy Corps of Cadets, December 12, 2020, in West Point, New York.
But they point out that in Portland, Oregon, and other cities across America, the Department of Homeland Security has already declared that the local governments have lost control, necessitating federal intervention, even without the state's permission. So it's also conceivable that in the District of Columbia a commander could independently invoke martial law to restore order were there a complete breakdown.
“You've got to recognize an illegal order when it comes your way,” says another retired flag officer, saying he has been involved in unprecedented internal discussions going on right now about this subject. On Tiffany Cross' show, The Nation's justice correspondent explains the high bar Merrick Garland will have to reach as Biden's attorney general, and why we don't need new laws to punish the insurrectionists we saw on Wednesday.
“Fox News, the network that avidly promoted President DonaldTrump's efforts to subvert the election results, is now almost silent on a major story from over the weekend: the reports in both The New York Times and Axis that Trump is flirting with martial law,” Krefeld explains. Both the New York TimesandAxiosreport that the president on Friday welcomed retired Army Lt. Gen. Michael Flynn, Trump ’s pardoned former national security adviser, to a meeting that, at one point, touched on the prospect of potentially using the military to somehow overturn the results of the 2020 presidential election that former Vice President Joe Biden decisively won.
Other topics discussed at the meeting included “an executive order to commandeer voting machines … and the specter of Sidney Powell, the conspiracy-spewing election lawyer, obtaining governmental power and a top-level security clearance,” according to Axis. That Trump welcomed a noted conspiracy theorist like Flynn into his inner circle to discuss somehow overturning the results of the 2020 election is one thing.
“The fact that Mike Flynn continues to spread conspiracy theories and misrepresent the president’s legal authorities is a disgrace to the country and to the uniform he wore,” Jim Colby, a senior fellow at the Clements Center for National Security at the University of Texas-Austin, told Task & Purpose. Indeed, Trump ’s push comes at a precarious (if not somewhat ridiculous) moment for civil-military affairs in the United States, one that’s been building since the president floated the prospect of invoking the Insurrection Act of 1807 to quell nationwide protests this summer.
And luckily, the norms are holding: On Friday, Army Secretary Ryan McCarthy and Chief of Staff Gen. James McConnell reiterated in a joint statement that there “is no role for the U.S. military in determining the outcome of an American election.” But the very fact that Trump welcomed Flynn into the White House and seriously entertained the prospect of military action should be alarming to both senior government officials and to average voters living at home.
Social media users are voicing a theory that President Donald Trump planned to invoke a 2018 executive order to impose martial law by Friday, Dec. 18. “ Martial law or something very similar is going to happen, likely before this Friday, that’s what the experts are saying,” says conservative television host Zach Drew in a Facebook video.
As he speaks, text from the Executive Order on Imposing Certain Sanctions in the Event of Foreign Interference in a U.S. Election” flashes on screen. However, their descriptions seem to reflect martial law at its most extreme: the suspension of civil authority and military control of civilian functions such as the courts.
Political spoke to six scholars of constitutional law and presidential power and asked them whether the executive order allows Trump to declare martial law. “The statutory authorities that the executive order invokes would not extend to declaring martial law,” said Bernadette Male, a Stanford Law School professor.
“It’s painful to hear about this theory, both because it’s not based in fact and because it’s dangerous to be thinking this way,” said Chris Nelson, an assistant professor of government at American University. The 2018 executive order at the center of the claim allows the president to impose sanctions on foreign entities or individuals who have interfered in a U.S. election.
Any executive order that gave the president the authority to unilaterally invoke martial law would be unconstitutional, the scholars we spoke with said. Under Article II of the Constitution, the president has no inherent authority to declare martial law except under the extreme circumstances of a rebellion or foreign invasion, said Noah Feldman, a professor at Harvard Law School.
Even if such conditions existed in a part of the U.S., the president would have to get congressional approval to use the military, said Joseph Nun, a fellow at the Brennan Center for Justice and author of an exhaustive study on martial law in America. In more recent history, for instance, President Johnson deployed federal troops to Detroit in 1967 during a riot and once more to Chicago amid violence during the Democratic convention in 1968.
However, President Eisenhower sent the 101st Airborne Division to Little Rock against the wishes of Arkansas to enforce high school integration in 1957. President Kennedy federalized the National Guard to force integration of the University of Alabama in 1962, also over state objections.
The closest the Constitution comes to regulating these powers is in a prohibition against suspending the writ of habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.” Accordingly, even if President Trump were to try to invoke martial law or emergency powers, claiming that they are inherent with his authority as commander in chief of the armed forces, the courts would have the last word, because citizens detained without due process would be able to secure judicial review by means of the “great writ” of habeas corpus.
If this right to suspend the provisions of the Constitution during the great exigencies of government “is conceded and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.” Governors have declared martial law in response to all manner of domestic disturbances, ranging from strikes to riots to disputes over oil production.
Were the president to claim that both the violent disruptions and the threat of a renewed spread of the coronavirus justified the use of the military or the suspension of certain basic rights, he would be embarking on uncharted waters, and so would the courts. They would pay greater deference to an executive branch declaration if Congress authorized it than if the president acted alone.
“What then could we reasonably expect from our courts if any American president during a period of dire emergency were once again to suspend important constitutional safeguards?” Let us hope that the nation never gets to a point where martial law or other emergency measures that curtail fundamental rights are deemed necessary.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. Note: Neither the writer of this story nor The USA Herald takes a position on the use of martial law.
We will NOT stand for it,” Tom Zawistowski, President of the TEA Party affiliated We the People Convention said. To put it simply, martial law is the suspension of the constitution and a take over by the military of policing, courts, and many aspects of daily life are run by the armed forces.
It notably happened in Hawaii in 1942 after the attack on Pearl Harbor where even trash pickup was handled by the military. Martially can be called when a civilian rule fails, something that could have, and many people believe should have, happened during the months-long nationwide race riots.
The Brennan Center for Justice, however, “their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.” “Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks,” the Atlantic said.
“Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.” You may have noticed in the news recently that protests for and against President Trump have turned into fights bordering on riots.