Can the Military Arrest Civilians?
The relationship between the military and the general public is a vital component of any society, with both entities having certain powers and limitations. But the question remains: can the military arrest civilians? The answer is not straightforward, as it largely depends on the specific legal framework, jurisdiction, and context. In this article, we will delve deeper into the complexities surrounding civilian arrest by the military, highlighting key points, differences between countries, and common law principles.
Principle of Civilian-Civilian Jurisdiction
Article 1 Section 9 of the US Constitution states that civilians should be tried in their "natural" courts by jurors, implying that individuals cannot be tried by anything but civilian courts. While the military has its own separate court system, a principle known as The Non-Reviewability Theory, holds that military powers extend only to the uniformed members of the defense force. This means, as a general rule, civilians have a constitutional right to an immediate writ of habeas corpus (a guarantee that they will be legally held) and cannot be held without a trial conducted in a civilian court under ordinary laws.
Instances where the Military can make an Arrest
Despite these fundamental principles, there exist rare situations where the military might have the authority to detain and arrest civilians in peacetime. One scenario is when the Executive Order (EO) calls upon the military to participate in a domestic crisis scenario or during a natural disaster EO 13631: Support for the Employee-Free Choice Act serves as an example. While rare, this EO underscores that, in extraordinary times, the military can make an arrest under the framework outlined by the EO in support of the civil power. Additionally, the possibility exists when the military law and regulations specifically authorize enforcement and execution of civil martial law orders, such as Article 99 of Military Regulation (MR) Army United States Army AR 190-14 para. 2-42b.
Jurisdictional Overlap and Complexity
Another factor influencing answers lies in the specific legal framework of respective jurisdictions. In the case of the United States Fifty States, Distrit of Columbia, or Territory), the general guideline is that the Constitution explicitly restricts the Executive, the Congress, the Senate, and the Governor in matters related to Domestic issues concerning Arrest, Imprisonment, and Exigencies, with Section 3, Article Three, which establishes the court systems for both the legislative (Article I) civil jurisdiction and enforcement branches Article III power over cases.
Military Law Enforcement – General
Country: United States Canada France
- National Service Code (French equivalent)
- FRA Law (European Parliament Law)
- French Article 22 Law
| Rank & Jurisdiction | US | Canada | France |
|---|---|---|---|
| Law Enforcement Officer | *No specific authority within own | *Constables under provincial | *No specific authority |
| powers except as granted by act, | jurisdiction*, | ||
| *evidence | *delegates duties to | ||
| regular police forces |
The Problematic Area: War/Crime and Civil Contingency
When looking at times of war/war crimes, or any case where a country feels a national security threat warrants invocation of the military-civilian distinction, understanding whether the military can truly arrest the population is more complex:
Military Law Enfocrement – war & crime
Military Courts tend to not hear non-combatant (non-military) suspects directly; instead, either through transfer to civilian trials (like in the Iraq War Detainees and Combatant Status review board) or keeping non-combatants for detention purposes only with possible later release. Excessive Force must never be wielded as an excuse while keeping prisoners, which directly ties to the Humanitarian Laws. Courts with the jurisdiction of combat-related issues usually fall short due to no adequate capacity for dealing with mixed-combatant situations, even under Military Anti-Terrorism Laws as stated.
**Worst-case Scenarios with an Increased Risk of Political Imprisonment
The possibility raises serious questions about Ex parte judicial proceedings‘ consequences in a time or an event when political stakes weigh heavy on the proceedings:
Civilian Legal Redress Mechanisms not affected by Military Actions within Non-War Context
- Appeal: to higher Superior Courts Appeals and Warrant or Supreme and Courts
- Ex-Parte (One Way/Party) : Hear
- In Military CJA: Military Court Adjournerment (End Session)
Conclusion: Despite some instances where civilian arrest by military power is allowed, even during war, it will always be limited only in those cases involving threats to national security for detention and potential later rehabilitation with respect to Due Process of Law rules within civilian jurisdiction. Most, though not all; international legal instruments and jurisdictions enforce civilian control over justice through strict separation of their criminal laws, enforce military laws for martial affairs only.
So while military action cannot directly usurp the jurisdiction of any federal civilian court there could exist some specific exception instances when military powers need enforcement authority for extraordinary occurrences during the statehood time or natural disaster relief cases, with an executive mandate or international commitment, in line, following constitutional rules, of that **non-review ability to support civilian jurisdiction during this type of emergency assistance cases.
