Pittsburgh in Context: A Selected History of Martial Law in America

By Justin Rogers-Cooper

For anyone that paid attention, the Pittsburgh Protests during the G20 summit on September 24th and 25th last month became a bewildering spectacle of police action against crowds of protesters, University of Pittsburgh students, and even bystanders. The spectacle of the riot police took on dystopian cinematic dimensions: military troops and para-military forces acted in concert with local SWAT-like units, as well as nearly every land-branch of the Homeland Security. The coordination between these groups was arguably unprecedented. Dozens of videos and blogs that have appeared on the internet show aggressive exchanges between the police and the protesters.

Indeed, much of the violence appears disproportionate to the protest itself. This disproportionate response raises questions about the efficacy of protesting, but also about the actual motives of the police forces in Pittsburgh. It’s entirely plausible that the police response was intentionally disproportionate to the events because the protests offered police an opportunity to test different elements of martial law. Besides shutting down roads and enforcing limited free speech zones, the police used new technology and tactics to disperse non-violent crowds assembling to protest, including the LRAD sonic gun, which had previously only been used against crowds in Iraq. Many links to these blogs and videos can be found on this website, and there is growing evidence that many protesters and students were arrested for crimes that apparently violate basic constitutional guarantees for rights such as assembly, speech, and freedom from seizure. It’s likely that these constitutional violations were intended to test both logistical and strategic tactics. This seems evident as well in the aftermath of the confrontations, since the police have coordinated with the FBI to justify their logistical innovations with an analogous legal assault on protest organizing and logistics. The most obvious example of this is the arrest of Eliott Madison for “twittering” the location of the police to protesters from a hotel room during the protest. Days after his arrest, his apartment in Queens, New York was raided by an FBI counter-terrorism unit.

The legal questions surrounding the arrest, detention, and charges against the protesters raise several crucial and urgent questions about civil liberties. They also inevitably raise concerns about the role of technology for the police and protesters alike, as both the LRAD gun and Twitter played crucial roles in the US for the first time. Both of these technologies have already been used with various degrees of success by the US military in Iraq and by Iranian dissidents following the disputed election there earlier this summer. Framing the US persecution of the Pittsburgh protesters within the larger transnational context of democracy movements is instructive because of this, and not just because the protesters were directing their actions against the Group of 20 nations responsible for implementing agreements conducive to world trade.

In many confrontations, the police forces clearly overwhelmed the protesters in sheer numbers, and this use of force to disperse non-violent crowds of mostly young people recalls an escalating strategic manipulation of tactics that goes back to the 2004 Republican National Convention in New York, when Mayor Michael Bloomberg’s New York City Police made multiple arrests on August 30th, 2004, using “divide and arrest” tactics. More ominously, the next day the NYPD made mass arrests of 900-1200 people and took them to the Hudson Pier Depot, where some spent more than 24 hours in legal isolation and detained without charges. The events at Pittsburgh continue along this strategic line: in hindsight, it’s possible to see these violations of civil liberties as purposeful experiments in selected martial law, where local civilian authorities cede tactical and legal responsibility to the police and police agents. The temporary suspension of constitutional rights during these protests seems to break any implicit “contract” between the police and the protesters that free speech can be exercised in good faith. In other words, it is precisely when one is actively asserting one’s constitutional rights to physically protest and speak against activities associated with civilian authority that those authorities declare emergency powers against the exercise of just that assertion.

Martial law, of course, is when the military assumes control of the administration of justice, and often refers to an occupation of territory where constitutional rights of due process no longer apply. Martial law was openly used in the American south during the Reconstruction era after the Civil War, for instance, for the ironic purpose of guaranteeing constitutional recognition for newly won rights of black persons. It’s important to remember here that the deposed regime of slavery was more than simply a lack of economic contract between labor and capital – between master and slave, as it were. It was a federally sanctioned political strategy targeted against huge numbers of Americans that explicitly denied them constitutional protection. The fact of their “slave” status – and also as 'Negroes' – does little to justify the legal authority that forbade them access to constitutional protection.

The racial status of slaves was fluid, and changed in relation to ever harsher forms of forced labor and forced servitude. The fluid legal status of the slave did not, in fact, reveal a transcendental, metaphysical belief in racial inferiority. The 1850 Fugitive Slave Act and 1857 Dred Scott decision appeared in the Supreme Court because the metaphysical reality of slavery was inept. Slavery required legal protection in order to work, and also because the abolition movement’s campaign against its status as ‘normal reality’ was so successful. The 1896 Plesssy v. Ferguson decision again reinforced a legal standard for segregation after Reconstruction, only this time within the logic of its “separate but equal” clause. This cynical division of territory into white and black zones should again remind us that an apartheid logic has operated in the United States for long stretches of time previous to the temporary emergency zones operating during protest events. During these stretches, constitutional rights were regularly denied to millions of Americans. To understand these violations solely within the logic of racism is a mistake, however, because race was primarily a concept used to classify bodies zoned for permissible violations. Emergency powers were implicitly and sometimes explicitly legal against those bodies, and to the extent that extra-judicial violence against African-Americans was rarely prosecuted, it’s certain that lynchings by vigilante groups organizing terrorist activities were in part justified because those groups understood that federal constitutional protection did not apply to certain zoned bodies.

The recent de jure and de facto invocation of martial law emergency powers by police forces is the proper frame for understanding the Pittsburgh Protests and the RNC protests that preceded it; this has been argued already by bloggers like Kevin Gozstola. In effect, those protesting the actions of civilian political authorities implicitly waive their constitutional rights by appearing in the protest “zones” demarcated by the police. In these zones, it’s apparently taken for granted that police may declare emergency powers and institute small-scale zones of martial law.

These zones have precedents not only in the history of American aggression against constitutional protection for African-Americans, but also in the revision of constitutional commitments after the events of September 11 and the United States “war on terror.” In particular, the on-going confusion about the legal status and extra-judicial military prosecutions against the Guantanamo Bay detainees raises more hard questions about how much the emergency powers of executive authority in Cuba have bled into making extra-judicial arrests more common against United States citizens who themselves are, in part, protesting those very same policies. Moreover, the purposely vague Military Commissions Act of 2006 authorized military trails for “violations for the law of war, and other purposes” (italics mine). There is widespread controversy over whether or not this law applies to United States citizens. Both Pennsylvania Senator Arlen Specter and Oregon Representative David Wu have commented that it potentially violates the constitution. Persons subject to arrest under the Act do not have recourse to prove their identity as citizens because if they’re charged as an enemy combatant the Act explicitly denies them recourse to regular courts. Furthermore, the Act defines enemy combatant as anyone “engaged in hostilities or who has purposefully and materially supported hostilities against the United States.” According to this reading, the declaration of emergency powers by police forces in Pittsburgh might be justified if the police forces understood the protesters to be “engaged in hostilities” against the United States. Much depends upon the politics, perspective, motivation, and inclination of the person defining “hostilities.” Much also depends upon how much these legal confusions give indirect license to police powers to act as though emergency powers are somehow more legitimate in the climate of a "war on terror."

Currently, the only person officially charged with enemy combatant status is Ali Saleh Kahlah Al Marri. The recent events at Pittsburgh, however, should remind readers that his precedent may lead to further mass detentions and arrests of US citizens in the shadow of police powers that operate with martial law powers. The precedent for indefinite definition after declaring emergency powers was in fact used against protesters in New York City in 2004, and, furthermore, equipment first tested outside the US on Iraqis was used on American citizens in Pittsburgh. These are troubling developments, and they seem to suggest that a new era of compromised civil liberties is upon us.

Just as constitutional protections were first denied African-Americans and then expanded against other enemies of the state in the Palmer Raids and during the McCarthy era, the legal powers granted to federal authorities against one group seem to follow against other organizations that actively refrain from supporting civilian authorities during times of war. The Obama and Bush administrations both seem to support these police policies. Obama has so far only promised to shut down CIA rendition prisons (“black sites”) and Guantanamo Bay, but not alter the laws granting security agencies new emergency powers. In short, the entire notion of “enemy combatant” erodes reverence for the constitution, and creates an atmosphere where violations are more likely to occur. Indeed, Pittsburgh seems the proof of this.

In future blogs, I’ll further explore the history of federal and local relationships to martial law. I’ll also re-examine it in the context of the response to Hurricane Katrina and what’s come to be called “disaster management” by the organizations affiliated with Homeland Security, which now has the legal authority to allow military intervention into “civil disturbances” following “man-made” and natural disasters. (Hint: one of the disasters that Homeland Security intends to activate the military for includes flu pandemics.)