What is the legal loophole on martial law that allows the president to remain indefinite?

Question

There is a legal "loophole". A law in the constitution which allows the president to remain in office, indefinite, or until the issue is resolved?

It is if martial law is declared in this country, the president can remain president even beyond new elections.

What is that law called? I cannot for the life of me remember.

Help me out, please!


Your sister,
Ginger

I found it:

Critics fear that the president could make himself a de facto dictator by side-stepping the other branches of government and making autocratic laws. The Italian philosopher Giorgio Agamben in particular has criticized the generalization since World War I of the use of executive orders or decrees by all Western democracies, declaring that this tends toward the constitution of a "permanent state of exception." The presidents, however, cite executive order as often the only way to clarify laws passed through the Congress, laws which often require vague wording in order to please all political parties involved in their creation.

Wikipedia.org: "Executive Orders of President"

Answer 1

There are several Executive Orders that allow EXACTLY that to occur.

Here's an interesting site:

http://www.urbansurvival.com/week.htm

It's not related to your question, but I thought I'd post it.

Answer 2

I don't know if that is really true. If it is, it must be really hard to do. Otherwise, Abe Lincoln would not have bothered with a re-election that even his own party thought he would lose. He wouldn't have gone to the lengths that he did to get re-elected (suppressing the press, ordering a mass execution in Minnesota because, "I need those votes", putting fear into the opposing party by labeling anyone with a view contrary to his as a "Copperhead" and ordering their arrest and deportation, etc). Martial law was already in effect.

Answer 3

I don't know exactly WHY you asked that, but I am glad you did !

Martial law
From Wikipedia, the free encyclopedia

Martial law is the system of rules that takes effect when the military takes control of the normal administration of justice.

Usually martial law reduces some of the personal rights ordinarily granted to the citizen, limits the length of the trial processes, and prescribes more severe penalties than ordinary law. In many states martial law prescribes the death penalty for certain crimes, even if ordinary law does not contain that crime or punishment in its system.

Originally martial law was imposed during wars or occupations to let the government control population more effectively in spite of heightened unrest. Nowadays it is most commonly used by authoritarian governments to enforce their rule, for example after coup d'état (Thailand 2006), when threatened by popular protests (PRC 1989), or to crack down on the opposition (Poland 1981). Martial law can also be declared in cases of major natural disasters, however most countries use a different legal construct like "state of emergency".

In many countries martial law imposes particular rules, one of which is curfew. Often, under this system, the administration of justice is left to a military tribunal, called a court-martial. The suspension of the writ of habeas corpus is likely to occur.
Contents
[hide]

* 1 Examples in and of various countries
o 1.1 Australia
o 1.2 Canada
o 1.3 People's Republic of China (mainland China)
o 1.4 Egypt
o 1.5 India
o 1.6 Pakistan
o 1.7 Philippines
o 1.8 Poland
o 1.9 Switzerland
o 1.10 Republic of China (Taiwan)
o 1.11 Thailand
o 1.12 United States of America
+ 1.12.1 New Orleans, Louisiana
+ 1.12.2 The Territory of Hawaii
+ 1.12.3 Hurricane Katrina
+ 1.12.4 Controversy
* 2 See also
* 3 References
* 4 External links

[edit] Examples in and of various countries

[edit] Australia

Martial law was first used in Australia from midnight Sunday 4 March, 1804 during the Castle Hill convict rebellion, also known as the second Battle of Vinegar Hill, a reference to the Irish engagement of 1798 in which many of the convicts had previously been involved. The militia were called out under the auspices of posse comitatus to assist in suppressing the rebelling convicts. Martial law was then lifted.

[edit] Canada

Though the Canadian government has never actually instated martial law, it has come close through a piece of legislation known as the War Measures Act. This act was invoked three times, in both world wars due to riots over conscription (the Conscription Crisis of 1917 and Conscription Crisis of 1944) and in the October Crisis of 1970. The War Measures Act technically does not invoke martial law, as the military does not take over the administration of justice. A better comparison would be to declaring a State of Emergency. Indeed, the War Measures Act was later replaced by the Emergencies Act in 1988.

During the Canadian federal election, 2006, a military ad that was leaked from the incumbent Liberals' office suggested that their primary opponent, the Conservative Party of Canada, would invoke martial law if they won; public backlash from this was severe.

Martial law was proclaimed and applied on the territory of the Province of Quebec during the American invasion in 1775-1776, and on the territory of Lower Canada during the insurrections of 1837-1838. On December 5, following the events of November 1837, martial law was proclaimed in the district of Montreal by the Parliament of Lower Canada. It was imposed until April 27, 1838. It was proclaimed a second time on November 4, 1838 and this applied until August 24, 1839. [1]

[edit] People's Republic of China (mainland China)

The constitution of the People's Republic of China originally granted the National People's Congress the power to declare martial law. In 1989 Premier Li Peng unilaterally invoked the martial law clause to allow the military to stage a crackdown on Tiananmen Square protesters. This action proved controversial, and in 2004 the clause was finally weakened into a provision that allowed the government to simply declare a State of Emergency. Martial law was declared in November 2004 to quell ethnic clashes in Langchenggang, Henan province.

[edit] Egypt

The State of Emergency in Egypt has been imposed almost continuously since 1967. Due to the assassination of President Anwar el-Sadat in 1981, martial law was declared in Egypt. Egypt has been under martial law ever since - the Parliament has renewed the emergency laws every three years since they were imposed. The legislation was last extended in 2003 and was due to expire at the end of May 2006; plans were in place to replace them with new anti-terrorism laws but after the Dahab bombings in April martial law was renewed for another two years. [1] [2]

Martial law allows the government to detain anyone deemed to be threatening state security for renewable 45-day periods without court orders and also give military courts the power to try civilians.

Public demonstrations are banned under the legislation.

[edit] India
This article does not cite any references or sources.
Please help improve this article by adding citations to reliable sources. (help, get involved!)
Unverifiable material may be challenged and removed.
This article has been tagged since June 2007.

Martial law in India is different from rest of the world. According to the Indian Constitution, during peacetime, governmental and the people's interests are under the control of the Prime Minister, Parliament, and the Supreme Court, but all armed forces (except police, which are under the control of the Home Ministry) are under the direct control of the Department of Defense and the President (who also controls the national guards and paramilitary forces). In case of a non-environmental crisis, all armed forces, national guards, and paramilitary forces, along with the Department of Defense, comes under the strict orders of the President; while police, home ministry, justice department, and governments comes under strict control of the Prime Minister (without any intervention by Parliament and the Supreme Court). In such a crisis, solving an issue/problem, stabilizing the nation, and defense are considered higher priority then the people's interest.

In case of an environmental crisis, the Indian government declares states of emergency, in which the emergency relief forces of the Indian Armed Forces, the National Guard, and the police come under the strict control of the President of India.

So far, Indian government declared State of Emergency in the following times:-
1. 1975 - Indira Gandhi declares state of emergency.
2. 1984 December - Gas leak at Union Carbide pesticides plant in Bhopal. Thousands are killed immediately, many more subsequently die or are left disabled.
3. 1999 October - Cyclone devastates eastern state of Orissa, leaving at least 10,000 dead.
4. 2001 January - Massive earthquakes hit the western state of Gujarat, leaving at least 30,000 dead.
5. 2004 December - Thousands are killed when tidal waves, caused by a powerful undersea earthquake off the Indonesian coast, devastate coastal communities in the south and in the Andaman and Nicobar Islands.
6. 2005 July - More than 1,000 people are killed in floods and landslides caused by monsoon rains in Mumbai (Bombay) and Maharashtra region.
7. 2005 8 October - An earthquake, with its epicenter in Pakistani-administered Kashmir, kills more than 1,000 people in Indian-administered Kashmir.
NOTE:- Indian government declares state of emergency during any crisis that is administered as terrorist activity.
8. 2003 August - At least 50 people are killed in two simultaneous bomb blasts in Bombay. Also, Bombs kill 62 people in Delhi.
9. 2006 14 people are killed by bomb blasts in the Hindu pilgrimage city of Varanasi.
10. 2006 May - Suspected Islamic militants kill 35 Hindus in the worst attacks in Indian-administered Kashmir for several months.
11. 2006 11 July - More than 180 people are killed in bomb attacks on rush-hour trains in Mumbai. Investigators blame Islamic militants based in Pakistan.
12. 2006 8 September - Explosions outside a mosque in the western town of Malegaon kill at least 31 people.
13. 2007 18 February - 68 passengers, most of them Pakistanis, are killed by bomb blasts and a blaze on a train traveling from New Delhi to the Pakistani city of Lahore.

Indian government declared Martial Law:-
1. 1984 - Troops storm Golden Temple - Sikh's most holy shrine - shooting thousands of innocent citizens to death. Indira Gandhi, PM of India assassinated by Sikh bodyguards (to revenge for killings of thousands of innocents at Golden Temple), following which her son, Rajiv, takes over.
2. 1992 - Hindu extremists demolish mosque in Ayodhya, triggering widespread Hindu-Muslim violence, Martial law declared.
3. 2002 February - Inter-religious bloodshed breaks out after 59 Hindu pilgrims returning from Ayodhya are killed in a train fire in Godhra, Gujarat. More than 1,000 people, mainly Muslims, die in subsequent riots.

For further reading please browse through BBC Archives in South Asia section, relating to India.[2]

[edit] Pakistan

Martial law has been declared in Pakistan twice. In the first instance President Iskander Mirza abrogated the Constitution in 1958 and declared Martial Law over the country. The second instance was when General Yahya Khan declared martial law in March, 1969 after Mirza's successor, General Ayub Khan handed over power to him.

After several tumultuous years, which witnessed the secession of East Pakistan, politician Zulfikar Ali Bhutto took over in 1971 as the first civilian martial law administrator in recent history, imposing selective martial law in areas hostile to his rule, such as the country's largest province, Balochistan. Following widespread civil disorder, General Muhammad Zia-ul-Haq overthrew Bhutto and imposed martial law in its totality on July 5, 1977 in a bloodless coup d'etat. Unstable areas were brought under control through indirect military action, such as Balochistan under Martial Law Governor, General Rahimuddin Khan. Civilian government resumed in 1988 following General Zia's death in an aircraft crash.

On October 12, 1999, the government of Prime Minister Nawaz Sharif was dissolved, and the Army took control once more. But no Martial Law was imposed. General Pervez Musharraf took the title of Chief Executive until the President Rafiq Tarar resigned and General Musharraf became President. Free elections were held in October 2002 and Mir Zafarullah Khan Jamali became Prime Minister.

[edit] Philippines

The Philippines was under the rule of martial law from 1972 to 1981 under the authoritarian rule of Ferdinand Marcos. Martial law was declared to suppress increasing civil strife and the threat of communist takeover following a series of bombings in Manila. The declaration of martial law was initially well-received by some segment of the people but became unpopular as excesses and human rights abuses by the military emerged. Torture was used in extracting information from their enemies.

[edit] Poland

Main article: Martial law in Poland

Martial law was introduced in Poland by the Communist government on December 13, 1981 to prevent democratic movements from gaining popularity and political power in the country, and to reduce the risk of Soviet intervention.

[edit] Switzerland

There are no provisions for martial law as such in Switzerland. Under the Army Law of 1995 [3], the Army can be called upon by cantonal (state) authorities for assistance (Assistenzdienst). This regularly happens in the case of natural disasters or special protection requirements (e.g., for the World Economic Forum in Davos). This assistance generally requires parliamentary authorization, though, and takes place in the regular legal framework and under the civilian leadership of the cantonal authorities. On the other hand, the federal authorities are authorized to use the Army to enforce law and order when the Cantons no longer can or want to do so (Ordnungsdienst). This power largely fell into disuse after World War II. See [4].

[edit] Republic of China (Taiwan)

After the Kuomintang (Nationalist) regime of the Republic of China retreated from mainland China to Taiwan, the distinction of having the longest period of martial law in modern history was imposed on Taiwan and the other islands administered by the Republic of China. In the aftermath of the 228 Incident of 1947, martial law was declared in 1948, and the perceived need to suppress Communist and pro-democracy activities on the island meant that the martial law was not lifted until 1987.

[edit] Thailand

In Thailand many coups have taken place since the 1930s, but many have failed. In January of 2004, the former Prime Minister of Thailand, Thaksin Shinawatra, declared a state of martial law in the provinces of Pattani, Yala, and Narathiwat in response to the growing South Thailand insurgency. On September 19, 2006, Thailand's Army declared martial law following a bloodless military coup in the Thai capital of Bangkok, declared while The Prime Minister Thaksin Shinawatra was in New York to address the United Nations General Assembly. General Sonthi Boonyaratglin took the control of the Government, and soon after handed the premiership to Ex-Army Chief General Surayud. Sonthi himself is Chief of the Administrative Reform Council.

[edit] United States of America

See also: Suspension clause

The martial law concept in the U.S. is closely tied with the Writ of habeas corpus, which is in essence the right to a hearing on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. The ability to suspend habeas corpus is often equated with martial law. Article 1, Section 9 of the U.S. Constitution states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion; the public Safety may require it."

In United States law, martial law is limited by several court decisions that were handed down between the American Civil War and World War II. In 1878, Congress passed the Posse Comitatus Act, which forbids military involvement in domestic law enforcement without congressional approval.

The National Guard is an exception, since unless federalized, they are under the control of state governors. [5]. This has now changed. Public Law 109-364, or the "John Warner Defense Authorization Act of 2007" (H.R.5122), was signed by President Bush on October 17, 2006, and allows the President to declare a "public emergency" and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities. Title V, Subtitle B, Part II, Section 525(a) of the JWDAA of 2007 reads "The [military] Secretary [of the Army, Navy or Air Force] concerned may order a member of a reserve component under the Secretary's jurisdiction to active duty...The training or duty ordered to be performed...may include...support of operations or missions undertaken by the member's unit at the request of the President or Secretary of Defense." [3]

[edit] New Orleans, Louisiana

During the War of 1812, U.S. General Andrew Jackson imposed martial law in New Orleans, Louisiana after capturing the encampment of New Orleans from the British in the Battle of New Orleans.

[edit] The Territory of Hawaii

During World War II (1939 to 1945) what is now the State of Hawaii was held under martial law from 1941 to 1945 .

[edit] Hurricane Katrina

Contrary to many media reports at the time, martial law was not declared in New Orleans in the aftermath of Hurricane Katrina, because no such term exists in Louisiana state law. However, a State of Emergency was declared, which does give unique powers to the state government similar to those of martial law. On the evening of August 31, 2005, New Orleans Mayor Ray Nagin nominally declared "martial law" and said that officers don't have to worry about civil rights and Miranda rights in stopping the looters. [4] Federal troops were a common sight in New Orleans after Katrina. At one point, as many as 15,000 federal troops and National Guardsmen patrolled the city to curb its descent into chaos and looting.

See also "What Is Martial Law? And is New Orleans under it?" by the Slate Explainer.

[edit] Controversy
The factual accuracy of this article or section is disputed.
Please see the relevant discussion on the talk page.
Info icon This section does not cite any references or sources.
Please help improve this section by adding citations to reliable sources. (help, get involved!)
Any material which cannot readily be verified may be challenged and removed.

This article has been tagged since February 2007.

Debate exists in regard to the legality of a Presidential decree of martial law, due to recent pronouncements from the Bush Administration and national security initiatives that were put in place in the Reagan era. When president Ronald Reagan was considering invading Nicaragua, he issued a series of executive orders that provided the Federal Emergency Management Agency with broad powers in the event of a crisis such as violent and widespread internal dissent or national opposition against a U.S. military invasion abroad. To date, these powers have never been used but with the 2003 Invasion of Iraq, 2006 U.S. immigration reform protests and the possibility of avian flu spreading globally, concerns have been raised that these powers could be employed or a de facto drift into their deployment could occur.

In addition, from 1982-84 Colonel Oliver North assisted FEMA in drafting its civil defense preparations. Details of these plans emerged during the 1987 Iran-Contra scandal. They included executive orders providing for suspension of the constitution, the imposition of martial law, internment camps and the turning over of government to the president and FEMA. FEMA, whose main role is disaster response, is now also responsible for handling U.S. domestic unrest. With recent proposals to criminalize illegal and undocumented immigrants, the United States saw itself immersed in a debate at the end of March and beginning of April about these laws and the role of immigration post-September 11.

A Miami Herald article on July 5, 1987, reported that the deputy of former FEMA director Louis O. Giuffrida, John Brinkerhoff, handled the martial law portion of the planning. The plan was said to be similar to one titled "Rex 84", which Mr. Giuffrida had developed earlier to combat a national uprising by black militants. It provided for the detention of at least 21 million African-Americans in assembly centers or relocation camps. Following a request by the Pentagon in January, 2002, that the U.S. military be allowed the option of deploying troops on American streets, the Anser Institute for Homeland Security in February, 2002, published a paper by current-employee Mr. Brinkerhoff that argued the legality of this. He alleged that the Posse Comitatus Act of 1878, which has long been accepted as prohibiting such deployments, had simply been misunderstood and misapplied. The preface to the article also provided the revelation that the national plan he had worked on, under Mr. Giuffrida, was approved by Reagan, and actions were taken to implement it.

The full facts and final contents of Reagan's national plan remain uncertain, in part because President Bush took the unprecedented step of sealing the Reagan presidential papers in November of 2001 via Executive Order 13233. The papers in question, some dealing with Reagan-era officials who now have high posts in the Bush administration, were to have been disclosed under the 1978 Presidential Records Act, which said that the documents could be restricted at the most for 12 years after Reagan left office.

It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.

Go figure...