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The base question is what grounds must a president have to initiate arrests on the basis of treason. What evidence must be had, if any. In the event of a suspected Coup, what acts may the president undertake.

Elaboration

  1. Secretary X refuses to perform his duty, he can be fired. But does that count as treason? When would his refusal count as treason, if ever.

  2. General A is suspected of plotting treason either by conspiring with a foreign power or plotting a coup. What acts can the President take, and when.
    I believe he can just fire the general outright, but can the President place the general under arrest even temporarily, without firm evidence. Is the belief that a coup is underway enough evidence to suspend Posse Comitatus or Habeas Corpus.

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    Would this have a better chance at a in depth answer on Law.SE? – DVK May 8 '17 at 20:21
  • @user4012 I was unsure on which to use. – user2259716 May 8 '17 at 20:39
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    Arresting someone is a legal act, not a political one. I think this question belongs rather on Law.SE. – Philipp May 8 '17 at 22:08
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What Is Treason?

Treason is the only crime defined in the U.S. Constitution, at Article III, Section 3 which says:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

Now let's apply that to your examples.

Options For Dealing With The Secretary

Secretary X refuses to perform his duty, he can be fired. But does that count as treason? When would his refusal count as treason, if ever.

I am assuming that Secretary X is a civilian and not an active duty member of the military forces. The law requires this but there is a process by which a waiver of that limitation can be obtained. But, it is useful in any case to point out the differences between a senior civilian governmental official and a member of the military (different issues still would apply to civilian civil servants who are not political employees and are members of a civil servant's union as well).

It would be hard to imagine a fact pattern in which mere failure to perform his duties would constitute treason, although I wouldn't necessarily say that it is categorically impossible that such fact pattern might exist.

The President could fire the Secretary for failure to perform his duty, or for that matter, for no reason whatsoever, and appoint someone else to be acting Secretary.

If the Secretary also committed some crime by doing more than simply failing to act in some respect (e.g. engaging in espionage), the process would be the same as any other federal criminal prosecution. But, you could fire someone and deny them all authority immediately and without due process or cause, while you would need probable cause to bring criminal charges.

Options For Dealing With General A

General A is suspected of plotting treason either by conspiring with a foreign power or plotting a coup.

The President can investigate the claims and find if there is probable cause to believe that General A is engaged in this conduct, and if so, can order the General's arrest. The General could be tried in a Court Martial for conduct in violation of the Uniform Code of Military Justice, but, treason is not a crime covered by the UCMJ. The applicable offense for a coup participant under the UCMJ would be Article 94:

  1. ART. 94. MUTINY OR SEDITION

(a) Any person subject to this chapter who--

(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or disturbance against that authority is guilty of sedition;

(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court- martial may direct.

The President, however, also has the power to order any member of the military to do just about anything, with or without cause.

For example, the President would be entirely within his rights to order General A to report to the Barracks at Fort Levenworth (a military prison) or to a maintenance detail in a South Korean Army base, as active duty personnel individual assigned to that duty (i.e. not detained as a prisoner) and to await further orders. If General A disobeyed this order, then General A would have committed an offense under the UCMJ and could be detained and tried for violating a valid military order.

Thus, the President could assign suspected coup participants to duties where they would not be helpful in carrying out a coup without due process even though he couldn't have them arrested on a mere suspicion, even under the UCMJ.

The President can't just reduce the General's rank outright, as the General has a property interest in that rank earned over the course of a career. It would take a Courts-Martial to do that. But, the General could be assigned to a new post with the same rank at any time without due process.

Suspension of Habeas Corpus

Is the belief that a coup is underway enough evidence to suspend Posse Comitatus or Habeas Corpus.

I'll address the first part of this question under this heading and the second part under the next heading.

The suspension of Habeas Corpus is discussed at Article I, Section 9, Clause 2 of the United States Constitution (pertaining to the legislative branch) and states:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

By implication, the fact that the provision is located in Article I pertaining to Congress and not Article II pertaining to the Presidency or Article III pertaining to the judicial branch, suggests that only Congress main suspend the writ of habeas corpus.

A Civil War case addressed this separation of powers issue and held that the President may not suspend the Writ of Habeas corpus without the approval of Congress, but its status as valid precedent is contested:

Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487), is a well-known and controversial U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus" under the Constitution's Suspension Clause, when Congress was in recess and therefore unavailable to do so itself. U.S. Supreme Court Chief Justice Roger Taney ruled that the authority to suspend habeas corpus lay exclusively with Congress. The Executive Branch, including the Army, failed to comply with Taney's Merryman opinion, and John Merryman remained inaccessible to the judiciary (and the civilian legal authorities generally) while Congress remained in recess. Taney filed his Merryman decision with the United States Circuit Court for the District of Maryland, but it is unclear if Taney's decision was a circuit court decision. One view, based in part on Taney's handwritten copy of his decision in Merryman, is that Taney heard the habeas action under special authority granted to federal judges by Section 14 of the Judiciary Act of 1789. According to this view, Merryman was an in-chambers decision. Due to its vague jurisdictional locus and hastened disposition, the nature of the Merryman decision remains contested to this day.

The separation of powers issue regarding the power of the President to suspend the writ of habeas corpus was not addressed squarely in the later and more famous Ex Parte Milligan, 72 U.S. 2 (1866) (which undisputedly remains good law) which held that neither the President nor Congress could suspend the writ of habeas corpus to allow the trial of civilians within the United States by a military tribunal outside a war zone. As Wikipedia explains:

The president's ability to suspend the writ of habeas corpus without congressional approval was not addressed in this case, most likely because it was a moot issue with respect to the case at hand. (President Lincoln suspended the writ nationwide on September 24, 1862, and Congress ratified this action on March 3, 1863, with the Habeas Corpus Suspension Act. Milligan was detained in October 1864, more than a year after Congress formally suspended the writ.)

The intertwined political and legal history of habeas corpus suspension in the United States is addressed here.

A coup is generally not an invasion, although it could be if coordinated with a foreign power. Instead, a coup would probably be a form of a rebellion, which could justify the suspension of habeas corpus. So, Congress could probably suspend the writ of habeas corpus if it felt that a particular coup was a rebellion. A Congressional determination that a particular coup was a rebellion for purposes of suspension of the writ of habeas corpus would probably be a political question beyond court review.

But, Congress could do this only once the rebellion was actually in progress and not merely contemplated. This is because, as Milligan makes clear, suspending habeas corpus in advance of an active rebellion that prevents the courts from functioning is unconstitutional anyway.

Honestly though, suspension of habeas corpus would probably be pretty irrelevant in a coup.

Typically, a coup lasts for a matter of hours or days, maybe a couple of weeks tops. Courts in which one could seek redress from allegedly unlawful detention using a writ of habeas corpus simply don't act that fast, and Congress would be hard pressed to act that fast as well. The coup will have prevailed (in which case the constitution is basically irrelevant) or will have failed (in which case habeas corpus will provide little relief to coup participants) by the time that the courts can get involved.

Also, since a coup generally involves members of the military, whose habeas corpus rights arise only once they have exhausted their avenues for relief under the Uniform Code of Military Justice, the writ of habeas corpus wouldn't be a remedy available to them anyway.

The suspension of the writ of habeas corpus would only be relevant to civilians involved in the coup, who are tried after Congress has suspended the writ, and who have been detained long enough for judicial relief from military detention to be relevant.

Also, the post-9-11 experience has been that, contrary to common belief, civilian courts are actually a faster way of resolving cases of non-uniformed persons who commit violent, war-like acts than military tribunals and impose penalties that are just as harsh as those imposed by military tribunals. Convicting these people turns out to be easy. Indeed, in practice, many rebels and terrorists openly admit their crimes without even receiving plea bargains in exchange. So, there would be little benefit to be gained from suspending the writ of habeas corpus in order to allow the use of military tribunals rather than civilian courts to punish civilian participants in a coup.

Why Would The President Want To Suspend Posse Comitatus?

It makes no sense, however, to talk about suspending the Posse Comitatus Act during a coup, which is exactly the opposite of what you would want the military to do in that situation, if you are the legitimate President. You would want to suspend the Posse Comitatus Act and related laws when there was a grass roots insurgency or an invasion that had not penetrated the military, not during a coup.

A coup d'etat is the recognition of the authority of someone other than the legitimate political leaders of a country as the leader of a country in a manner that denies the legitimate political leaders of a country authority by its own military or some subset of that military.

The Posse Comitatus Act passed in 1878, 18 U.S.C. § 1385, is a criminal law passed by Congress that makes it a crime to use the military to enforce domestic law, especially criminal law, within the territory of the United States outside military bases (although the term Posse Comitatus is sometimes used more colloquially to refer to a group of laws and regulations with the same effect including but not limited to the true Posse Comitatus Act, such as the Insurrection Act of 1807, 10 U.S.C. §§ 331–335).

In a coup, by definition, the military is following illegitimate leaders and the whole point is to prevent martial law from being imposed by the military in that situation, which Posse Comitatus is supposed to prevent them from doing. Coup participants could be prosecuted for violating the Posse Comitatus Act by imposing martial law while they are members of the U.S. military on active duty. It would make no sense for the President to suspend it.

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Legally, no citizen of the United States may be arrested or held for an infamous crime except when indicted by a jury (5th Ammendment). The only exception is for members of the military. So, if there was an attempted coup by the military, the president could arrest anyone in the military so long as there was a "public danger".

During the Civil War, Lincoln more or less ignored the Constitution in various ways, including arresting and imprisoning civilian citizens for treason. The most celebrated such case was possibly that of Lambdin Milligan. In many cases these people had not taken up arms, but merely spoken out against Lincoln. During the war against the South many confederate rebels were hung by the military for treason, but whether they were citizens entitled to the protection of the Constitution is questionable, since they had succeeded from the Union. An example was William Mumford who was hung for tearing down a US flag as a protest.

  • The Uniform Code of Military Justice doesn't actually give the President such broad arrest powers, even though Congress could in theory give the President more broad arrest powers with respect to members of the military. The President must still have probable cause to make military arrests, and arrests may be conducted of civilians without an indictment in a great many circumstances. The grand jury rights of the constitution are against being formally charged with an infamous crime, not against being arrested per se pending grand jury review of the charges. – ohwilleke May 9 '17 at 0:32
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    The fifth amendment protects every "person" from being "held to answer" for an infamous crime except when indicted by a grand jury. So any argument that this protection didn't apply to "Confederate rebels" would have to be based on something other than a purported loss of US citizenship. – phoog May 9 '17 at 2:39
  • @phoog There are some exceptions that apply - basically under the Congressional power to authorize captures and to authorize war, but these exceptions are largely limited to soldiers, spies and saboteurs. The former can be killed in combat or taken as POWs. The latter can be executed by commission during wartime if other law authorizes this. But both require active war-like involvement. These exceptions don't apply to civilians like Mumford. Still, the fact that something is against the law doesn't mean it won't happen or that violators of that law will be seriously punished by the victors. – ohwilleke May 10 '17 at 1:47
  • @ohwilleke sure, of course there are exceptions; my point is only that the exceptions are not based purely on a lack of US citizenship or nationality. (For example, enemy soldiers being killed or captured in lawful combat are not on its face subject to the fifth amendment provision in question because they haven't committed any crime.) – phoog May 10 '17 at 2:11
  • @phoog Agreed. 5th Amendment rights are not tied to citizenship or nationality, per se. – ohwilleke May 10 '17 at 2:28

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