Sunday, October 5, 2014

When is Martial Law Justified? Who Can Impose it?

I am reading a book entitled Andrew Jackson and the Politics of Martial Law by Matthew  Warshauer. Of course, the first thing I do is turn to the index and look for Aaron Burr. The index lists just one mention, on page 21.

The turmoil in New Orleans was, of course, not the first time that conspiracies and plots presented a danger to the city. Aaron Burr's infamous attempt to separate the southern portion of the newly acquired Louisiana Territory in 1805-7 had prompted concerns. As a result of the warnings over Burr, Gen. James Wilkinson, who was also a longtime friend of his and a co-conspirator, attempted to suspend the writ of habeas corpus and proclaim martial law.
Channeling Theodosia, I am tempted to fling the open book across the room. But since I'm not Theodosia, and I love books of all sorts, I just put it gently down on the table, on top of a bunch of other books I am also reading. Outside, Bow is enjoying the crisp autumn day.

Why is it that so many historians still have swallowed whole the entire "Burr Conspiracy" story, which was concocted by James Wilkinson and embraced by Thomas Jefferson? Even if we know nothing at all about the history of the falling out between Jefferson and Burr, even if we don't realize that Burr was exonerated of the charge of planning to separate the western territories and only convicted for violating the Neutrality Act, which was because he was going to war with Spain as a private American citizen -- not unlike Sam Houston  in his day --  then surely the words in the paragraph quoted above themselves would put us on notice that something does not tally.

We are told that James Wilkinson was a friend and a co-conspirator of Burr's and that when he heard "warnings about Burr" he attempted to suspend the writ of habeas corpus and impose martial law. On whose behalf was he doing it? Not for Burr. He was arresting Burr and all his friends and depriving them of their right to a day in court. He was doing this for the sake of Thomas Jefferson and also for his Spanish employers. It is a well established fact that Wilkinson was in the employ of Spain, and that he betrayed Burr at the behest of his Spanish employers, who did not want Burr to succeed in conquering Mexico or liberating Texas. Yet if we read the paragraph not knowing this, we might have supposed that Wilkinson was imposing martial law to help Burr with his "conspiracy".

 Nevertheless, I calm down and pick the book back up, to see what I can learn about Wilkinson's attempt to impose martial law.

The result of  of Wilkinson's defiance of the writ of habeas corpus was the 1807 Supreme Court decision of  Ex Parte Bollman and Swartwout, which declared that only the legislature can suspend the writ. Prior to this decision, who exactly could suspend the writ of habeas corpus was in some question. 
This is all just preparation for the discussion later on in Warshauer's book of what happened when Andrew Jackson declared Martial Law in New Orleans before the Battle of New Orleans and kept it in effect even after a peace treaty was known to have been signed, officially ending the war, and all without getting congress to approve the suspension.

Is the imposition of Martial Law ever really done by voting about it? An essentially undemocratic action, is it ever democratically brought about? Is it ever left for the people or their representatives to decide on, or is it not something that by its nature is imposed by the executive branch, acting on its military prerogatives, constitutional or not? I will have to read the rest of the book to find out.

But before I start reading, I can't help but check the index for Jean Laffite. There is just one mention, pages 22-23.

Old Hickory ultimately solved the ... problem by invading the city [Barancas]  in November 1814 and driving the English from the area, but in the meantime they had arrived below New Orleans and approached the Baratarian pirate, Jean Laffite, to enlist his aid in capturing the city. Laffite had cleverly stalled the British and informed members of the Louisiana legislature of the enemy's plan. Yet the British infiltration in the area alarmed the general, and on December 15 he published an address to the citizens... '...The rules and articles of war annex the punishment of death to any person holding secret correspondence with the enemy.'
Warshauer notes that these rules were traditionally applicable to soldiers only, but Jackson was applying them to all the residents of New Orleans.

This book seems kinder to Jean Laffite than to Aaron Burr, even though the word "pirate" is used, but I will have to read it in its entirety to see how fairly it treats Andrew Jackson, and what we can learn about the roots of martial law and suspension of habeas corpus under which we live today. Where exactly do no-knock warrants or the siege of Mt. Carmel fit into the general scheme of our constitutional freedoms? What about the NDAA or the "sheltering at home" required in Boston after the Marathon bombing? If a general rode into your town today and declared that anyone not for him is against him and subject to the penalty of death for speaking with "the enemy", what recourse would you have against that?

I will post a full report on the book once I have had a chance to read and digest it.


  1. Nationalism, according to Warshauser, was the force that allowed the constitutional limits on military authority to be breached, not just in the case of Andrew Jackson, but for every member of the executive branch since who has invoked emergency powers: THINK DONALD J. TRUMP. D5 INBOUND.

    To many, Jackson represented the pinnacle of American nationalism. The Battle of New Orleans had invested him with the highest claims of patriotism and devotion to country… Jackson’s understanding of his nationalist appeal is one of the items that made him a formidable politician and president. Subsequent presidents have embraced the same political use of nationalism. Lincoln focused on the sanctity of the Union during the Civil War and … embraced martial law. Consider also the nationalism fomented by Franklin Roosevelt in the midst of the Great Depression. He utilized the overwhelming nationalist support of the 1936 election to challenge the Supreme Court’s threats to his New Deal legislation. … [E]ngagement in World War II was impossible without nationalist sentiment … in the form of … Pearl Harbor…Similarly, George W. Bush could not possibly have engaged in a war against Iraq … or curtailed civil liberties with the Patriot Act without the nationalism spawned by [9/11]. (Warshauer p. 18)

  2. Yes, but what exactly does Warshauer mean by "nationalism"? The right and left nowadays use that word somewhat differently.