USA - Grounds for Treason / Arrests to Prevent a Coup The base question is what grounds must a president have to initiate arrests on the basis of treason. What evidence must be had, if any. In the event of a suspected Coup, what acts may the president undertake. Elaboration Secretary X refuses to perform his duty, he can be fired. But does that count as treason? When would his refusal count as treason, if ever. General A is suspected of plotting treason either by conspiring with a foreign power or plotting a coup. What acts can the President take, and when. I believe he can just fire the general outright, but can the President place the general under arrest even temporarily, without firm evidence. Is the belief that a coup is underway enough evidence to suspend Posse Comitatus or Habeas Corpus.
What Is Treason? Treason is the only crime defined in the U.S. Constitution, at Article III, Section 3 which says: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Now let's apply that to your examples. Options For Dealing With The Secretary Secretary X refuses to perform his duty, he can be fired. But does that count as treason? When would his refusal count as treason, if ever. I am assuming that Secretary X is a civilian and not an active duty member of the military forces. The law requires this but there is a process by which a waiver of that limitation can be obtained. But, it is useful in any case to point out the differences between a senior civilian governmental official and a member of the military (different issues still would apply to civilian civil servants who are not political employees and are members of a civil servant's union as well). It would be hard to imagine a fact pattern in which mere failure to perform his duties would constitute treason, although I wouldn't necessarily say that it is categorically impossible that such fact pattern might exist. The President could fire the Secretary for failure to perform his duty, or for that matter, for no reason whatsoever, and appoint someone else to be acting Secretary. If the Secretary also committed some crime by doing more than simply failing to act in some respect (e.g. engaging in espionage), the process would be the same as any other federal criminal prosecution. But, you could fire someone and deny them all authority immediately and without due process or cause, while you would need probable cause to bring criminal charges. Options For Dealing With General A General A is suspected of plotting treason either by conspiring with a foreign power or plotting a coup. The President can investigate the claims and find if there is probable cause to believe that General A is engaged in this conduct, and if so, can order the General's arrest. The General could be tried in a Court Martial for conduct in violation of the Uniform Code of Military Justice, but, treason is not a crime covered by the UCMJ. The applicable offense for a coup participant under the UCMJ would be Article 94: ART. 94. MUTINY OR SEDITION (a) Any person subject to this chapter who-- (1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; (2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or disturbance against that authority is guilty of sedition; (3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. (b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court- martial may direct. The President, however, also has the power to order any member of the military to do just about anything, with or without cause. For example, the President would be entirely within his rights to order General A to report to the Barracks at Fort Levenworth (a military prison) or to a maintenance detail in a South Korean Army base, as active duty personnel individual assigned to that duty (i.e. not detained as a prisoner) and to await further orders. If General A disobeyed this order, then General A would have committed an offense under the UCMJ and could be detained and tried for violating a valid military order. Thus, the President could assign suspected coup participants to duties where they would not be helpful in carrying out a coup without due process even though he couldn't have them arrested on a mere suspicion, even under the UCMJ. The President can't just reduce the General's rank outright, as the General has a property interest in that rank earned over the course of a career. It would take a Courts-Martial to do that. But, the General could be assigned to a new post with the same rank at any time without due process. Suspension of Habeas Corpus Is the belief that a coup is underway enough evidence to suspend Posse Comitatus or Habeas Corpus. I'll address the first part of this question under this heading and the second part under the next heading. The suspension of Habeas Corpus is discussed at Article I, Section 9, Clause 2 of the United States Constitution (pertaining to the legislative branch) and 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. By implication, the fact that the provision is located in Article I pertaining to Congress and not Article II pertaining to the Presidency or Article III pertaining to the judicial branch, suggests that only Congress main suspend the writ of habeas corpus. A Civil War case addressed this separation of powers issue and held that the President may not suspend the Writ of Habeas corpus without the approval of Congress, but its status as valid precedent is contested: Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487), is a well-known and controversial U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus" under the Constitution's Suspension Clause, when Congress was in recess and therefore unavailable to do so itself. U.S. Supreme Court Chief Justice Roger Taney ruled that the authority to suspend habeas corpus lay exclusively with Congress. The Executive Branch, including the Army, failed to comply with Taney's Merryman opinion, and John Merryman remained inaccessible to the judiciary (and the civilian legal authorities generally) while Congress remained in recess. Taney filed his Merryman decision with the United States Circuit Court for the District of Maryland, but it is unclear if Taney's decision was a circuit court decision. One view, based in part on Taney's handwritten copy of his decision in Merryman, is that Taney heard the habeas action under special authority granted to federal judges by Section 14 of the Judiciary Act of 1789. According to this view, Merryman was an in-chambers decision. Due to its vague jurisdictional locus and hastened disposition, the nature of the Merryman decision remains contested to this day. The separation of powers issue regarding the power of the President to suspend the writ of habeas corpus was not addressed squarely in the later and more famous Ex Parte Milligan, 72 U.S. 2 (1866) (which undisputedly remains good law) which held that neither the President nor Congress could suspend the writ of habeas corpus to allow the trial of civilians within the United States by a military tribunal outside a war zone. As Wikipedia explains: The president's ability to suspend the writ of habeas corpus without congressional approval was not addressed in this case, most likely because it was a moot issue with respect to the case at hand. (President Lincoln suspended the writ nationwide on September 24, 1862, and Congress ratified this action on March 3, 1863, with the Habeas Corpus Suspension Act. Milligan was detained in October 1864, more than a year after Congress formally suspended the writ.) The intertwined political and legal history of habeas corpus suspension in the United States is addressed here. A coup is generally not an invasion, although it could be if coordinated with a foreign power. Instead, a coup would probably be a form of a rebellion, which could justify the suspension of habeas corpus. So, Congress could probably suspend the writ of habeas corpus if it felt that a particular coup was a rebellion. A Congressional determination that a particular coup was a rebellion for purposes of suspension of the writ of habeas corpus would probably be a political question beyond court review. But, Congress could do this only once the rebellion was actually in progress and not merely contemplated. This is because, as Milligan makes clear, suspending habeas corpus in advance of an active rebellion that prevents the courts from functioning is unconstitutional anyway. Honestly though, suspension of habeas corpus would probably be pretty irrelevant in a coup. Typically, a coup lasts for a matter of hours or days, maybe a couple of weeks tops. Courts in which one could seek redress from allegedly unlawful detention using a writ of habeas corpus simply don't act that fast, and Congress would be hard pressed to act that fast as well. The coup will have prevailed (in which case the constitution is basically irrelevant) or will have failed (in which case habeas corpus will provide little relief to coup participants) by the time that the courts can get involved. Also, since a coup generally involves members of the military, whose habeas corpus rights arise only once they have exhausted their avenues for relief under the Uniform Code of Military Justice, the writ of habeas corpus wouldn't be a remedy available to them anyway. The suspension of the writ of habeas corpus would only be relevant to civilians involved in the coup, who are tried after Congress has suspended the writ, and who have been detained long enough for judicial relief from military detention to be relevant. Also, the post-9-11 experience has been that, contrary to common belief, civilian courts are actually a faster way of resolving cases of non-uniformed persons who commit violent, war-like acts than military tribunals and impose penalties that are just as harsh as those imposed by military tribunals. Convicting these people turns out to be easy. Indeed, in practice, many rebels and terrorists openly admit their crimes without even receiving plea bargains in exchange. So, there would be little benefit to be gained from suspending the writ of habeas corpus in order to allow the use of military tribunals rather than civilian courts to punish civilian participants in a coup. Why Would The President Want To Suspend Posse Comitatus? It makes no sense, however, to talk about suspending the Posse Comitatus Act during a coup, which is exactly the opposite of what you would want the military to do in that situation, if you are the legitimate President. You would want to suspend the Posse Comitatus Act and related laws when there was a grass roots insurgency or an invasion that had not penetrated the military, not during a coup. A coup d'etat is the recognition of the authority of someone other than the legitimate political leaders of a country as the leader of a country in a manner that denies the legitimate political leaders of a country authority by its own military or some subset of that military. The Posse Comitatus Act passed in 1878, 18 U.S.C. § 1385, is a criminal law passed by Congress that makes it a crime to use the military to enforce domestic law, especially criminal law, within the territory of the United States outside military bases (although the term Posse Comitatus is sometimes used more colloquially to refer to a group of laws and regulations with the same effect including but not limited to the true Posse Comitatus Act, such as the Insurrection Act of 1807, 10 U.S.C. §§ 331–335). In a coup, by definition, the military is following illegitimate leaders and the whole point is to prevent martial law from being imposed by the military in that situation, which Posse Comitatus is supposed to prevent them from doing. Coup participants could be prosecuted for violating the Posse Comitatus Act by imposing martial law while they are members of the U.S. military on active duty. It would make no sense for the President to suspend it.
Can someone be arrested for not being ‘nice’ to police? Yes. The arrest may later be declared unlawful, and the cop could later be disciplined by his boss, but if a cop wants to arrest you now for any reason they just can. Seems weird and an abuse of power to me. The available means of dealing with abuse of power have never been in excess. Could they win such a case? Yes. So could your friend. It depends on many many factors.
18 USC 1752: (a) Whoever— (1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so; [...] shall be punished as provided in subsection (b). (b) The punishment for a violation of subsection (a) is— (1) a fine under this title or imprisonment for not more than 10 years, or both, if— (A) the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm; or (B) the offense results in significant bodily injury as defined by section 2118(e)(3); and (2) a fine under this title or imprisonment for not more than one year, or both, in any other case. (c) In this section— (1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area— (A) of the White House or its grounds, or the Vice President’s official residence or its grounds; [...] An ex-president does not have &quot;lawful authority&quot; to occupy the building. They may be not only removed, but also arrested and criminally prosecuted. &quot;Squatter's rights&quot; or other eviction protections would come from the District of Columbia's local laws, over which federal law takes precedence. So they would not apply here.
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.
Edit: I didn't notice a that this question was tagged for Canada; this answer is based on U.S. law. "Must you stop walking" and "can the police detain you for leaving" are different questions. Must you stop? I'd expect a lot of variation from state to state, but there are definitely situations in which you must stop. In Ohio, for instance, an officer who "reasonably suspects" that that you have committed, are committing, will commit, or have witnessed the commission of violent felony, is permitted to stop you and ask for your name, address and date of birth, and it is a crime to refuse to provide that information. R.C. 2921.29. But at the moment the officer asks you to stop, you're in a tricky position. If you haven't done anything wrong, you'd be inclined to think that the officer has no basis to stop you and that you're justified in walking away. But if someone just called the police and said someone fitting your description just robbed a store two blocks away, the officer has reasonable suspicion that you committed a violent felony, but you have no way of knowing that. This sort of thing happens pretty much all the time. In the absence of that reasonable suspicion, though, Ohio courts have repeatedly held that it is not obstruction for you to just walk away (or even run!) from the officer. Can the police detain you for walking away? Obviously, if you're in a situation where it is a crime to not answer questions, the police can detain you because they just watched you break the law. But what about when you're within your rights not to answer? The police can still detain you with a Terry stop when they have a reasonable and articulable suspicion that you are committing a crime, or that you just did, or that you're about to. And they can continue that Terry stop until that suspicion is confirmed or dispelled, or until they can't reasonably expect to get anymore information by detaining you. Based on the facts you described, it seems unlikely that they could legally detain you based on your termination of the conversation. Still, I imagine that there could be circumstances where they might stop someone, ask questions, and then reasonably suspect that the person was engaged in a crime based on his decision to walk away, especially if the person hasn't explicitly invoked his Fifth Amendment right to silence.
Do I correctly understand that Federal employees, notably including the Armed Forces, pledge their duty first to the Constitution of the United States and only secondarily to carry out legal orders? And that they have no legal obligation to execute an illegal order? What process allows a subordinate to defy an illegal order if a superior gives the order? What legal protection does the subordinate have? All officers of the United States government (and for that matter also all officers of state and local governments) including soldiers in the armed forces are sworn to uphold the Constitution. Members of the armed forces are not only allowed to disregard illegal orders, they are obligated to not carry out illegal orders. Operationally, disobeying an order due to the fact that it is unconstitutional is a defense to an effort to fire or discipline a federal government civil service employee who may only be fired for good cause after due process. In the military, the issue would usually present itself in the form of a defense in a court martial for refusing to obey a lawful order of a superior. Of course, it would hardly be unprecedented for someone's firing from a job that was unlawful, or for a wrongful court-martial conviction, to be upheld on appeal. Suppose the Congress holds someone in contempt. The Congress, as I understand it, goes to a court to enforce the contempt charge. The court turns to Federal law enforcement to bring action. What if the President directs Federal law enforcement to ignore the court order? What if law enforcement complies with the President? The U.S. Justice Department is charged with bringing contempt of Congress cases at the request of Congress. But, an attorney retained by Congress could probably bring such an action in the U.S. District Court of the District of Columbia if the U.S. Justice Department refused to do so. Contempt may be civil or criminal, and unlike ordinary criminal charges (felonies can only be brought based upon grand jury indictments and grand juries are controlled by prosecutors) either civil or criminal contempt charges can be brought by a non-governmental employee attorney. The established practice is to seek contempt sanctions against the lowest level employee who has the authority to take the action requested, or to seek contempt sanctions against everyone from that lowest level employee up through the chain of command to the responsible cabinet officer. The President is generally not named as a party against whom contempt charges are sought. Defiance of the law in the face of a binding and immediately effective court order would be a constitutional crisis and you would need to move to the realm of politics and political realities, and away from the realm of what the law says that people should or should not do, to meaningfully predict how a constitutional crisis turns out. The law assumes that all government officials will obey a lawful court order duly enforced. If government law enforcement officers start defying court orders, then there is a constitutional crisis. On the other hand, the vast majority of law enforcement officers in the United States are civil servants who aren't beholden personally to the President. They were appointed on a merit basis, they are civil servants who can't be fired without good cause and due process, they are in agencies that have an institutional culture of obeying court orders. The civil servants with more seniority (and basically all senior military officers in the U.S. military) have served under multiple Presidents of different political parties. The number of political appointees supervising them is fairly modest. Likewise, most federal judges at any given time were appointed by prior Presidents and even judges appointed by a current President will not infrequently rule against the federal government when the facts and law demand that they do so. There is less politics and there is more unity in interpretation of the law among federal judges and federal law enforcement and legal officials than is generally assumed by more cynical members of the general public. Suppose Congress orders fines. What is to be done if no one will enforce the fines? A court can order that the fines be paid out of the U.S. Treasury. The order itself can have the force of law without the cooperation of any U.S. Treasury official. Sustained defiance of such a court order would lead to a constitutional crisis. Same scenario as 1 but this time it’s impeachment and conviction: the President defies any action to remove him. What if the President simply barricades himself in the White House and orders security and military personnel to protect him? Is there a protocol in the U.S. military hierarchy to deal with this scenario? This has never actually happened, of course, so it is hypothetical. The Treasury Department, General Services Administration and Secretary of State (and all other government officials) should revoke privileges that the President has by virtue of being President and provide them to the new acting President (realistically, in the simple scenario presented, current Vice President Pence). The military should stay out of it, but should immediately start treating acting President Pence, and not the impeached incumbent as the Commander-in-Chief. U.S. military forces are indoctrinated on the Presidential succession and it is unlikely that many military officers would disregard a Presidential impeachment. The Secret Service should stop defending the former President except in an ex-President capacity. In theory, one could imagine acting President Pence bringing an eviction action in the local courts of the District of Columbia just as one would with any holdover tenant. Since the local courts in D.C. are federal, this doesn't present the federalism problems that it would if the same thing were done in a state court with respect to federal real estate, and U.S. marshals would evict him and his family like anyone else. The trickier situation in terms of creating a constitutional crisis, honestly, is really one where the President is clearly and blatantly defying the law and court orders, but the U.S. Senate refuses to convict the President in an impeachment proceeding out of partisan bias. What should common citizens do if any of these scenarios play out? Whatever they want, in a lawful manner. Ultimately, this would be a matter for federal government officials (elected and appointed alike) to figure out.
While there are certainly statutory and procedural vehicles for sanctions, they are almost never requested or allowed when moved for, and are almost never imposed by judges. Something very severe needs to occur and not just your typical discovery violation ("speaking objections" during depositions, being late with responses, failure to cite to affidavits, affidavits citing conjecture rather than fact, et). It would have to be something quite serious....like misleading the court or directly failing to comply with a direct order or ruling on a motion. It is exceedingly rare. It is most seen in Federal Court.
...in this case the officer has "definite cause." Why is probable used? "Probable cause" is a standard for when a property search can be conducted or a warrant issued. According to the Wikipedia article you linked to, Ballentine's Law Dictionary defines probable cause as a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true We do not talk about "definite cause" because there is no such legal standard. Having "definite cause" as you suggest here simply means you have a very strong case to satisfy the legal standard of probable cause. Referring to the above definition, the officer whose drug-sniffing dog alerts at a traffic stop certainly has a "reasonable amount of suspicion." The officer may actually have an incredibly high amount of suspicion, but that's irrelevant to the probable cause standard. It is merely sufficient that the officer's level of suspicion is "reasonable" and backed by suitable evidentiary circumstances. It just seems like any way you try to interpret the word "probable" it doesn't make sense, you either have cause to search/arrest/etc. or you don't where is the probability? The probable cause standard is "probable" because it does not impose exacting requirements on law enforcement. (Note that the U.S. Constitution uses "probable" slightly differently from its modern meaning; see another answer.) It need not be blatantly obvious that a crime is being committed but likely that a crime is being committed. Of course, the exact standard of how likely is likely enough to satisfy the standard of probable cause (and what evidence constitutes a particular threshold of likelihood) is a test for the court to determine.