Olson points to Section 32CFR 501.4 of the Code of Federal Regulations, which simply states: "Martial law depends for its justification upon public necessity. Necessity gives rise to its creation, necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time."
Nor, says Olson, does establishment of military rule have to result from an order by the president. Under Section 32CFR 501.4, virtually any military officer in a position of authority can make that decision. As the statute reads: "In most instances, the decision to impose martial law is made by the president, who usually announces his decision by proclamation, which usually contains his instructions concerning its exercise and any limitations thereon. However, the decision to impose martial law may be made by the local commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from anybody."
The operating assumption is that someone in the constitutional chain of command would be in charge of the country in an emergency, of course. But the shadow government is designed to function even if a terrorist act or an act of war were able to wipe out virtually everyone in Washington. That is one situation in which military officials in the bunkers, or elsewhere in the country, lacking a clear chain of civilian command, might start taking the law into their own hands.
Even some National Guard officers have expressed concern about encroaching federal control of their work. "One of the things they're doing in the Office of Homeland Security is working to unite the separate state authorities over the state Guard into a national command," says Michael Leventhal, a lieutenant colonel in the New York National Guard. "What they're doing is establishing the precursor to a national domestic military command, which is scary."
State National Guard divisions are technically considered to be state militias, under the authority of state governors, not the president, even if they are being paid by the federal government and are performing their duty across the nation. But Leventhal says they are actually already acting as a kind of national police force. He points to the national call-up of Guard units to patrol the nation's airports and inspect passengers and crews. Reports of excessive force and abusive treatment of passengers and crewmembers, some of whom have been pulled from flights and even detained at gunpoint by some of those M16-toting soldiers, make some people worry about what military rule might be like.
"It's a short step from having a national domestic military command to having martial law," says Leventhal, a self-described libertarian Republican whose unit was put on active duty after Sept. 11 to guard New York City-area military armories. "All it would take at this point would be another major terrorist attack or two in the heartland, and that would do it."
Critics see other signs that the government may be preparing for a military role in domestic affairs. Wayne Madsen, a former communications security specialist for the National Security Agency during the Reagan and first Bush administrations, describes a convention he attended in Washington in early February, hosted by the National Defense Industrial Association, where military special forces and special operations soldiers mingled freely with Justice Department officials, discussing urban warfare and crowd-control techniques and equipment. "There was a lot of talk about things like shooting Spiderman-type nets and about mass arrest techniques," he says, "none of which would be of much use in the mountains of Afghanistan or the deserts of Iraq. It was pretty clear that the Posse Comitatus Act was being completely ignored there."
While the "continuity of government" program has never before been put into effect, the idea of declaring martial law was raised recently as a serious possibility by someone who ought to know what he's talking about: Clinton administration Secretary of Defense William Cohen. In an Oct. 27, 1998, Army Times article headlined "U.S. Martial Law Coming? Cohen Predicts Army Will Patrol Streets," Cohen warned: "Terrorism is escalating to the point that Americans soon may have to choose between civil liberties and more intrusive means of protection." He added that the specter of armored vehicles surrounding civilian hotels or governments "could happen here."
It's also not the first time the idea has been seriously explored by government officials in recent years.
At the end of the Nixon administration in the mid-1970s, there were reports in the media -- most notably a 1975 New Times magazine article by award-winning investigative reporter Ron Ridenhour -- that the president, about to be ousted because of the Watergate scandal, actually went so far as to approach some top Pentagon brass to ask if they would support a declaration of martial law, which would have kept him in power. Fortunately, the generals that he reportedly contacted turned him down. More testimony about Nixon's desperate gambit came out during the Senate Watergate hearings, but the allegations weren't pursued by investigators.
The hearings also featured testimony about a series of Pentagon war games run during Nixon's second term, which included mock martial-law exercises and mock mass roundups of dissidents. The code name of those exercises was reportedly Operation Garden Plot, the same name given to the current Pentagon plan being worked on at the Office of Homeland Security, FEMA and the Pentagon. The most recent version of that plan, dated Feb. 15, 1991, was approved during the administration of George Bush the elder. At that time, the secretary of defense was Dick Cheney, now vice president and chief cave-dweller-in-residence.
More recently, in the late 1980s, Iran-Contra scandal co-conspirator Oliver North, then a member of President Reagan's national security staff, also had FEMA look into the possibility of declaring martial law -- and of rounding up dissidents en masse -- in the event of major civil unrest should the U.S. government decide (as was being contemplated at the time) to commit troops to battle in the El Salvador civil war.
After martial law was declared in Hawaii in 1941 following the Japanese attack on Pearl Harbor, local agribusiness companies tried to have it extended indefinitely in hopes that it would help them combat local labor organizing, but their efforts were rejected in 1946 by the U.S. Supreme Court. In another case of martial law being used against labor organizing, in 1918 President Wilson sent federal troops into Colorado during a coal labor dispute, and had them disarm the state's apparently insufficiently reliable sheriffs and National Guard, after which the federal troops oversaw the breaking of the strike.
These examples show the way martial law can be used to serve interests other than public safety, and that history alarms critics who are already suspicious of the Bush administration's pro-business, anti-dissent agenda.
Next page: Creeping toward martial law