ecliptic, I did not give you a "bogus link". The official commentary said exactly what I quoted. The creator of the show outright said that one of the basic concepts for the show was that unchecked military rule is a bad thing, that the Colonials prize civil rights and liberties even in the face of crisis and war just as much as our culture does, their government in many ways is strongly modelled on ours, and that there is a legitimate civilian government which is what the people listen to and acknowledge, although there is politicking and arguing between the military and that civilian power structure. The actual cultural and legal framework, as well as the creator's intents are crystal clear, he even establishes it early on in the series well before the episode in question.
Also, if you think that the nuclear destruction of Washington DC would lead to nationwide martial law possibly with some General running things, you really don't know much about civics, American history, or the Constitution.
ecliptic said:
You mean the basic course of government that teaches that the President of the United States can put this country under martial law if such a thing happens?
American law and precedent is very clear that the President
cannot legally do that if such a cataclysm happens.
When Washington DC was
burned to the ground during the War of 1812, with hostile troops marching on the city and martial law was not declared. The only time during that war where Martial Law was declared was in the City of New Orleans, to a 4 mile radius from the city limits, as it was a central base of American forces during the war. Major General Andrew Jackson was actually fined $1000 (a considerable sum at the time) by a Federal judge outside the area of Martial Law for refusing to turn over a military prisoner to a civilian court. Gen. Jackson ordered the Judge arrested for interfering with the war effort, which the military arrested the judge. After a political struggle that is a major historic parallel to the BSG situation, Gen. Jackson relented, begrudgingly acknowledged the supremacy of civilian law, paid the fine, and released the Judge and handed the prisoner over.
When Lincoln declared nationwide Martial Law during the Civil War, it was ruled by the courts to be unconstitutional, and that precedent has stood to this day. The relevant Supreme Court precedent is
Ex Parte Milligan (1866) http://www.law.uchicago.edu/tribunals/milligan.html, which ruled that while the Congress can suspend the Writ of Habeas Corpus in the event of invasion or insurrection, but only in the area where the actual invasion or insurrection is occuring, not nationwide, and not while there are still functioning civilian courts. United States precedent and law states that martial law can only be forcibly imposed in situations where the civilian government is completely unable to function, not where the military would rather function unimpeded by civilian authority. The martial law throughout Hawaii in WWII was also overturned by the Supreme Court, with related convictions overturned, on the same grounds.
What could be described by some as martial law was declared locally several times in the late 19th and early 20th centuries to deal with labor disputes, as the Posse Comitatus Act (
http://www.northcom.mil/index.cfm?fuseaction=news.factsheets&factsheet=5) was invoked to allow the military to act as law enforcement to break the strike, but only under orders from the civilian government and to bring them to civilian courts for trial. In American legal tradition "Martial Law" as generally legally implemented refers to using the military to act as law enforcement for the civilian authority in time of emergency, not letting the military run govern without civilian oversight.
A nuclear strike against Washington DC also wouldn't destroy entire civilian government. We have what are called Continuity of Operations Plans, where we are always prepared for such an event, and have been since the dawn of the Cold War. Under no circumstance is everybody in the line to the Presidency ever in one place, and there are very long and very elaborate plans to ensure that a legally valid Federal government remains intact. Frankly, if as little as one state Lieutenant Governor somewhere in the country survives a disaster, he can ascend to become Governor, who can appoint two interim Senators, who can choose one of them as a President Pro Tempore of the Senate, who is then immediately sworn in as President, and another Senator is appointed to fill that gap, and then the new President can appoint a new Cabinet and Supreme Court that are confirmed by the new Senate, and there is an interim government legally reestablished until new elections can be convened at the end of the current term of office. Under no circumstance is the idea of some General or Admiral just assuming power ever part of this plan.
