Martial law is supposed to be a temporary state of military rule during an emergency like a natural disaster, a foreign invasion or a riot. But as history has shown, both authoritarian governments and democracies have routinely exploited martial law to suppress political opposition or hold onto power.
What Is Martial Law?
The term martial law is taken from the adjective "martial," which means pertaining to the military, and is derived from Mars—the ancient Roman god of war. Under martial law, many of the roles normally performed by civilian authorities are handed over to the military. That includes emergency response, policing and even the courts.
In theory, the laws of the land shouldn’t change under martial law, including constitutional protections and civil liberties. In practice, though, martial law is often used as legal cover to imprison people without a fair trial.
“The problem is that martial law is often a tool that strongmen use as a pretext,” says Stephen Vladeck, a law professor at Georgetown University. “And so the trick is to split the difference between the rare and exceptional cases where martial law is actually beneficial and the far more common cases where it's used to suppress civil liberties, infringe on our rights or overthrow our democratic institutions.”
Here are five notable times that martial law was declared, both in the United States and abroad.
American Civil War (1862-1866)
Martial law makes sense during wartime, particularly when one-half of the country is at war with the other. Abraham Lincoln made extensive use of martial law during the Civil War, especially in regions of the country where local government was in disarray or couldn’t be trusted to enforce the laws of the Union. That included border states like Missouri, Kentucky and Indiana.
Lincoln issued proclamations authorizing the use of military tribunals instead of civilian courts to try suspected Confederate sympathizers. Proclamation 94, signed in 1862, extended the use of martial law to “all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia draft or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States.”
In a landmark Supreme Court decision handed down after the war, the justices rebuked the Union for overstepping its authority. In Ex parte Milligan (1866), the court ruled that military tribunals could only be used when no civilian courts were available. That wasn’t the case in Indiana, where the defendant, Lambden P. Milligan, was sentenced to death for disloyalty to the Union.
“The court went out of its way to say martial law is not appropriate when the civilian courts ‘are open and their process is unobstructed,’” says Vladeck. “That really drives home the limits on martial law. Which is that, when the civilian courts are open, when they're able to do their job, when they can issue writs of habeas corpus, that's pretty powerful evidence that there's no justification for martial law to continue.”