Presidential Martial Law Authority https://abcnews.go.com/Politics/fired-attorney-sidney-powell-back-advising-trump-chart/story?id=74823842&amp;cid=clicksource_4380645_2_heads_hero_live_hero_hed Trump and Powell met in the Oval Office Friday night, ABC News has confirmed, and were joined by Trump's former national security adviser, retired Lt. Gen. Michael Flynn, who has been publicly prodding Trump to take unprecedented steps to seize a second term -- including declaring martial law and ordering the military to oversee new elections in the battleground states that Trump lost. Does POTUS have the authority to declare martial law and order the military to oversee a new election in battleground states? I am not a lawyer and would appreciate a high school level explanation and then maybe a explanation for lawyers.
&quot;Martial law&quot; is not a cleanly-defined legal concept in US law, but it is generally understood to refer to placing a region of the US under military control. POTUS, Congress and state governors can do it, to some extent. Art. 1, §9 (speaking of powers denied to Congress) says that &quot;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&quot;. Suspending the Writ of Habeas Corpus is one fundamental element of &quot;martial law&quot;. Art. 2 §2 (presidential powers) grants relatively little power to POTUS, but does say &quot;The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States&quot;, so as commander in chief, POTUS can command the army, but in general requires authorization from Congress. At the outset of the Civil War, Lincoln declared a numbered of things which Congress ratified, but this did not include a declaration of martial law. In Ex parte Merryman, 17 F. Cas. 144, the Taney (Chief Justice of the Supreme Court of the United States) stated that &quot;the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it&quot;. Congress eventually retroactively legalized the suspension of habeas corpus. Without Congressional approval of the suspension of the Writ of Habeas Corpus, a &quot;declaration of martial law&quot; would be meaningless and toothless. The Posse Comitatus Act further limits the ability of the army to meddle in domestic affair, and 18 USC 1385 states that Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. One of authorizations by Congess is The Enforcement Acts, which empowered federal intervention when states refused to protect the constitutional rights of citizens, and this was invoked more recently during the Eisenhower administration and in connection with the Mississippi Burning murders. Another much older authorization is the Insurrection Act of 1807, now at 10 USC Ch. 13 allows use of the military (§252): Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. The next section §253 would, no doubt, be the statutory provision invoked for use of the military: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. The rhetoric that would need to be associated with such an executive order (sending in the troops) would resemble that in Texas v. Pennsylvania et al, which did not turn out well for POTUS. Moreover, nothing at all authorizes POTUS to declare elections void and to order new elections (therefore, the military cannot be employed to engage in such an illegal action).
Whether or not a war between political entities can result from some action is completely political and strategic, and not legal. The specific incident is probably legal, given US and international law regarding military action. Unless the order was self-evidently unlawful there is no possibility of arrest and prosecution under US law, however there might be a framework for legal action by Iran, if e.g. a drone operator were to fall into Iranian hands. The specifics of the order are not generally known, though we know that DoD states that this was due to a presidential order. This article discusses targeted killing from a legal perspective. In the context of war, killing is legal though not entirely unregulated. There was a failed attempt to sue the US in the case Al-Aulaqi v. Panetta, which involved a targeted killing of a US citizen involved in planning terrorist attacks, a suit which was dismissed. One problem is that the suit "failed to state a 4th Amendment claim", and also failed to state a 5th Amendment due process claim since Al–Aulaqi's deaths was unanticipated. The court notes that a Bivens claim allows damage action against a federal officer for violation of clearly-established constitutional rights. However, No case has discussed precisely whether a plaintiff can proceed on a Bivens action that claims deprivation of life without due process based on the overseas killing by United States officials of a U.S. citizen deemed to be an active enemy. In the discussion, the question arises whether special circumstances counsel hesitation (Doe v. Rumsfeld and citations therein), which the Doe court notes would "require a court to delve into the military's policies", and they will not do that lightly. All of this is about US citizens. Soleimani was not a US citizen.
The Fifth Amendment would not apply, because nothing in the testimony would incriminate the doctor. Indeed nothing would be at all likely to incriminate the President either, it is not a crime to be unable to carry out Presidential duties. It is likely in such a case that the President would waive confidentiality. In that case the doctor could testify freely. If the President insisted on confidentiality, and attempted to prevent the doctor from testifying to Congress, there would be a conflict between the power of Congress to compel testimony, in this case on what is clearly a vital national issue within the scope of the needs of Congress, and traditional doctor-patient confidentiality, let alone the requirements of HIPAA. I am not sure how this conflict would be resolved. There might be an emergency application to the Supreme Court, but the SC does not usually do very well with truly urgent issues. The Pentagon Papers case and Bush V. Gore indicate some of the problems that can arise. If the doctor was prevented from testifying, that might incline members of congress to think the testimony would not be favorable to the President, and thus tend to suggest that they should not approve the President resuming or continuing his or her powers and duties. But that is rather speculative. The 25th has never been invoked, and the detailed procedure that would be followed if it were is not very clear. I am not aware of any similar situation in which medical testimony has been demanded to deal with an urgent issue, but the patient has attempted to block it. I think this case must be considered to be undecided until it actually arises and a court rules.
After the edit of the question: Deceased defendants are not normally put on trial. Before the edit of the question: The ability of the US President to start military operations is a somewhat murky issue. Congress has the power to declare wars, the President is the commander in chief, and the War Powers Resolution complicates things. But this is not really an issue because Congress approved the operation. As far as domestic US law, the war was legal. I'm not aware of any competent legal authority deciding on the invasion being a crime of aggression under international law. The practical problem here is that such trials mostly happen under UN auspices at the end of a world war, putting the defeated side on trial. The UNSC would probably be involved, and the US is a veto power. Note also that Iraq had probably violated the ceasefire agreement from 1991 ... Which leaves the domestic issue of lying to the American public and especially to Congress. While perjury in a congressional hearing may be a crime, proving it would require a legal judgement of the state of knowledge at the time the supposed perjury happened. To a large degree, the US government deceived itself before it gave testimony, and being factually wrong is not perjury if the witness believed what he or she said.
The US President is Commander-in-chief of the US military. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; (from Article II section 2) That does not make the president the direct boss of every federal employee. The Congressional Sergeants-at-arms, in particular (and their assistants) are employed by, and responsible to, Congress, not the President. The Secret Service is part of the Department of Homeland Security (formerly part of the Treasury Department, until 2002) which is part of the Executive branch, but I am sure the President cannot order them to arrest someone who has not committed any crime. If such a thing were pushed to a direct confrontation, I have no idea where it would go, I hope we do not find out. Article I Section 8 grants Congress the power (among a number of others): To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings That seems to say the ultimately Congress controls the District, and sets the rules there. There is also the provision in Article I section two that: The House of Representatives shall choose their speaker and other officers; which would include the Sargent-at-Arms, I think. Article I section five says: Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member. which again seems to grant control over the situation to the individual houses of Congress. Article I section 6 says: The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. which again puts Congress out of the direct control of the President.
Most secret service details are protection for heads of government/state and thus their details would be afforded Sovereign Immunity (Such as POTUS, VPOTUS, and First and Second Families) OR Diplomatic Immunity (visiting dignitaries and leaders of other nations). Typically there are more diplomatic ways to handle the cases in the latter. In the former case, thus far, it has not been handled. During visits, the traditional Executives and Families are usually closely guarded by the Service with additional law enforcement form local jurisdictions called in to aid in the protection, usually to secure routes the Motorcade will take to a designation (I speak from personal experience, POTUS coming to town is a nightmare on traffic). If they are speeding, they are typically doing so down a completely empty highway with police escort. From this point, most under of the Service would be monitored and controlled so closely, at least one Agent would notice if any protected was committing a crime and would have to write it up in a report. There is also considerable debate in legal circles if the President and Vice President could be arrested for a crime while in office, with the general acceptance being that they could not and would need to be impeached by congress. Secret Service will continue to protect former Presidents and Vice Presidents for life, along with their spouses and children up to a certain age. With all that in mind, it would not so much be that the Secret Service would prevent arrest of an individual under their protection so much as the Secret Service would be the arresting authority. As they are law enforcement agents under the Federal Government, they can legally arrest people and then hand them to the proper law enforcement agency to effect the arrest. This would mostly happen with candidates for office OR former presidents OR family at any point in time as the scenario described is a bit harder to make a legitimate arrest. In fact, the Secret Service does have arrest authority with one of the highest conviction rates of any Law Enforcement Agency in the Country. It's just most crimes they arrest have nothing to do with threats to those under their protection. The Secret Service is also charged with investigation of counterfeiting of US currency and they are very good at it. This was actually their original sole function in the U.S. government and they still exist under the Treasury Department to this day. At this point, if you're wondering how they got the job of protecting important people in the executive branch from that, well, it's simple. At the time of his assasination, the legislation to create the USSS was on Licoln's desk. At the time of their creation, the only other Federal Police services were the U.S. Park Police, the Postal Inspection Service, and the U.S. Marshals. The first two had specific jurisdictions and the Marshals were undermanned so the USSS was tasked with investigating all sorts of financial crimes and quickly became the most successful U.S. Law Enforcement Service. They were also the first U.S. Intelligence and Counterintelligence agency (though they no longer are part of the Intelligence Community) until the FBI took on those duties. So following the Assassination of William McKinley in 1901, Congress authorized them to take up full time Presidential Protection because at the time, they were pretty much doing everything else.
The question actually asked, "what legal theories would support or harm...", is somewhat unclear. But what the questioner seems to be asking is, basically, what would happen if you tried it? The answer, it seems to me, is pretty straightforward. In the hypothetical case, you have been publishing a notice for years, saying "I have not been served with a subpoena." You then get served with a subpoena that includes a gag order. The gag order, presumably, includes wording prohibiting you from revealing the existence of the subpoena. You then cease publication of the warrant canary. By doing so, you have revealed the existence of the subpoena, and you are in violation of the gag order. You will be subject to whatever penalties you would be subject to if you violated it in some other way; for example, by publishing a notice that said, "Hey! We got a subpoena! It's a secret!" The distinction between revealing the existence of the subpoena by action, rather than by inaction, is a false one. It's exactly the kind of cutesy legal formality that non-lawyers love to rely on, but real judges ignore. If you tell someone: "Hey, you know John Smith's three sons, Joe, Ted, and Bill? Joe and Ted are good people; they have never molested any children. As for Bill--well, I don't have anything to say about Bill." If Bill is not a child molester, you have defamed him, and you are not going to convince a judge otherwise. The EFF link you link to tries to claim it'll "work" because courts are reluctant to enforce speech. Even if that were true, that might mean your canary would be effective in the sense of giving the public notice of the subpoena. That doesn't mean you wouldn't be liable for giving the public notice. For example: I put up a billboard saying "Bill Smith is a pedophile." Even if the court can't force me to add the word "not", that doesn't mean the billboard isn't defamatory. Realistically, though, courts compel speech all the time. Court-ordered apologies, disclosures, and notices are not unusual. And if ever a court would be inclined to compel speech, it would be in a situation like this one, where a company intentionally set out to get around a gag order with this kind of convoluted sea-lawyering.
united-states Under US law, any citizen may hold a person caught in the process of committing a felony (which kidnapping surely is) for the police. A soldier has no special authority. Indeed under the Posse Comitatus Act, the military has more restricted authority in such matters than citizens in general. However note that the book doesn't say the soldier was justified. I do not find it implausible that a soldier might have believed that the military had such authority.