Martial Law and Federal Assistance

The Feds have a limited role unless the governor says the State is out of her/his control.

From the Times Picayune:

Military presence isn’t martial law

Active military used in humanitarian role

By Susan Finch
Staff writer

Martial law isn’t a law at all.

But the term has been invoked over and over in the week since Hurricane Katrina struck to describe the enhanced authority assumed by public officials, restrictions on access to some public streets and the presence of armed federal soldiers roaming parts of the New Orleans area.

Some public officials do invoke extraordinary authority during emergencies, under a 12-year-old Louisiana law. But the presence of active-duty military personnel does not mean martial law has been declared.

The role of the active military thus far has been to help the Federal Emergency Management Agency with humanitarian work, search and rescue efforts, medical assistance and supply distribution – not to enforce civil law, a military spokesman said.

The National Guard is trying to enforce civil law in the hurricane zone. It was pressed into service by Gov. Kathleen Blanco.
A true state of martial law would also put the active military in a law enforcement role. That rarely happens. Martial law was declared during labor strikes in the early 20th century and during the Watts riots of 1965 in Los Angeles, said John Baker, constitutional law professor at Louisiana State University.

At all other times, the U.S. system of government is set up to give the states and their own police the primary responsibility to protect residents, with the federal government being called on only as a backup when a state is overwhelmed.

"If a governor will call and say, ‘I no longer have the ability to secure my state, I need help,’ the president could invoke the Insurrection Act and the military could assist in law enforcement activities," said a U.S. Northern Command lawyer who spoke on the condition that he not be identified. "That is not what we are doing."

Baker said martial law is not a written law but has been recognized by the U.S. Supreme Court as a legal concept.

"It’s a suspension of law, and the term goes way back and it’s linked to what is called the law of necessity," doing what is necessary in extreme situations, Baker said. "The question is whether, quite apart from law, there is inherent power to those charged with order in the community to keep it from descending into chaos and insurrection."

What is written is the Louisiana Homeland Security and Emergency Assistance and Disaster Act of 1993. Under the law, the governor and some top parish officials, including Jefferson Parish President Aaron Broussard, have the right to commandeer private property if necessary to cope with an emergency. Specific officials may also suspend any law related to the conducting of official business or any rule previously issued by a state agency if complying would "prevent, hinder or delay necessary action" to mitigate the emergency, the state attorney general’s office said last week.

The law also gives certain officials the right to compel evacuations, suspend alcohol and weapon sales and make provisions for emergency housing, the office said.

Mayors assume similar authority, although not the right to commandeer private property or arrange emergency housing, the office said.
Blanco invoked the 1993 law when she declared a state of emergency last week. Broussard himself has described Jefferson as being "under martial law, and there’s only one marshal: Me."

Broussard has announced that Jefferson Parish is closed to all residents and visitors. Police have been staffing roadblocks on highways entering the parish. Despite widespread criticism from other public officials and utility companies, Broussard plans to let residents return Monday for a brief time but will order them out again until streets are clear, power is restored and the water supply made safe for drinking.

Baker said Louisiana must take care not to "fall into the notion that you look first and primarily to the military to run things.

"The military are not police officers generally; their job is to fight a war. That’s totally different from a police function unless people want to turn this country into other countries where you have the military running the police force,