Legal Corner: Prisoners at War Time


by Cassie Pierson, Staff Attorney, Legal Services for Prisoners with Children
The legal column for this edition will be slightly different from past columns. Rather than focusing on one particular issue this column will attempt to dispel a rumor that has been circulating in prisons in California and other states.
Since the tragic events of September 11th a rumor that prisoners are to be summarily dispatched during times of war or national security, has been circulating. Various emails received at LSPC have addressed this rumor but in many cases have added to the confusion. If any of you have been told about a King Alpha Law, THERE IS NO SUCH LAW. You may have been told that the Marshall Plan has a provision regarding the dispatch of prisoners, specifically enemy prisoners; this is also UNTRUE. The Marshall Plan was an economic recovery plan implemented after WWII to assist various countries in Europe and elsewhere. Moreover, enemy prisoners or prisoners of war are addressed in the Geneva Convention which prohibits any mistreatment, abuse, torture or execution of prisoners.
On the other hand, martial law is real and allows the military to exert great control over civilians and civilian affairs. If martial law is declared by the President, a military commander could seize civilians and hold them in confinement without a trial. In addition, if a trial took place it would be before a military tribunal and one could be tried for violation of the laws of war or for violating the commanders own regulations. However, I found no reference to the dispatch of prisoners under martial law. The U.S. Constitution provides that martial law may only be declared in times of war or when civil authority has become ineffective. President Bush has not declared martial law at this time.
Neither Title 15 nor the Department Operations Manual (DOM) address this issue directly. Section 3302 of Title 15 (Emergency Preparedness Plan) does list war as one of the types of emergencies requiring an appropriate response plan. It is the responsibility of the warden at each facility to have an approved plan in effect at all times. The director of the CDC must approve each preparedness plan and the plans are to be updated and revised by the wardens and submitted to the director for approval every two years.
In researching the DOM, I found references to evacuations and emergencies in several places. The provisions for emergency preparedness and employee protection in institutions are found in DOM 55010. Interestingly enough, DOM 55010 could not be found. I searched the entire Chapter 5 of the DOM and it ends with 54100. I was also unsuccessful in trying to locate 55010 under changes to the DOM. If 55010 is in a restricted chapter of the DOM, then it is not available to anyone outside the Department.
The outcome is this: there are no laws calling for the dispatch of prisoners in time of war or national security. I will continue to search the DOM for anything that even remotely refers to the treatment of prisoners during wartime.
Please stay safe and continue to look out for one another. Peace.