August 31, 2005
Private: Louisiana Gives Officials the Power to Suspend Civil Liberties
By Patrick Shifley
Hurricane Katrina has passed New Orleans by, but it has left its mark by devastating the Crescent City. As water spills into the city through breached levees the city government has ordered evacuations, rescued and sheltered those who remain, and tried to hold the city together. In the face of looting and the rising water, it was being reported that martial law had been declared within parts of New Orleans by local officials. The Louisiana Attorney General's Office clarified those assertions stating Louisiana does not have a legal construct called martial law. The AG's office did add, however, that the declaration of a state of emergency issued by Gov. Kathleen Blanco does give officials the authority to suspend civil liberties. Additionally, the Louisiana Homeland Security and Emergency Assistance and Disaster Act of 1993 gives the governor and heads of parishes power to commandeer property. The Times-Picayune reported that, "Authorities may also suspend any statute related to the conduct of official business, or any rule issued by a state agency, if complying would 'prevent, hinder or delay necessary action' to mitigate the emergency."
Martial law has a legal history within the United States. Article 1, Section 9, Clause 2 of the Constitution gives the President the power to suspend habeas corpus in case of rebellion or invasion. In addition, in Ex Parte Milligan, 71 U.S. 2 (U.S. 1866) the Supreme Court considered the detention of a citizen during martial law, and defined and limited martial law within the United States. Martial law was defined as the suspension of civil authority in favor of military control of a region, martial law replacing elements of the civilian government, including the legislature, judiciary, or police, with governance by military forces.
In Ex Parte Milligan, the Supreme Court set forth requirements limiting the times martial law could be imposed within the United States: the actual closing of the courts; an impossibility of administering law; and the requirement of the safety of society. The requirements stressed that martial law was only to be applied as needed, and when applied was automatically terminated whenever the courts were opened and unobstructed in their execution of jurisdiction.
Interestingly enough, the Supreme Court in Milligan considered historical precedent from a previous declaration of military law in Louisiana. In 1815 General Andrew Jackson declared martial law suspending all function of the civil authorities. After General Jackson returned the power taken by him to the city, he stood trial before the Supreme Court of Louisiana. The case is recorded as Johnson v. Duncan 3 Mart. 530 La. 1815. The Supreme Court of Louisiana decided that General Jackson had acted illegally and he was fined for his behavior.
Through the course of American history martial law has been imposed several times during periods of crisis and emergency. In 1892, the Governor of Idaho declared martial law after a mill was blown up and strike-breaking mine workers were shot at by rebellious mine workers. During the Coal Field Wars in Colorado in the early 20th century, martial law was declared and federal troops were sent to Colorado to disrupt violence between workers and security forces. Following the 1906 earthquake in San Francisco, martial law was declared and federal troops were pressed into service to prevent widespread looting.
Exactly which functions of the local government have been provisionally superseded by the Governor's declaration of a state of emergency are unknown. Regardless of the extent of that declaration constitutional decisions and tradition suggest that they will be limited to the term of the current crisis in New Orleans.