Fine Print in Defense Bill Opens Door to Martial Law

By Jeff Stein, CQ National Security Editor

12/06/06 "CQ" -- -- It’s amazing what you can find if you turn over a few rocks in the anti-terrorism legislation Congress approved during the election season.

Take, for example, the John W. Warner Defense Authorization Act of 2006, named for the longtime Armed Services Committee chairman from Virginia.

Signed by President Bush on Oct. 17, the law (PL 109-364) has a provocative provision called “Use of the Armed Forces in Major Public Emergencies.”

The thrust of it seems to be about giving the federal government a far stronger hand in coordinating responses to Katrina-like disasters.

But on closer inspection, its language also alters the two-centuries-old Insurrection Act, which Congress passed in 1807 to limit the president’s power to deploy troops within the United States.

That law has long allowed the president to mobilize troops only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.”

But the amended law takes the cuffs off.

Specifically, the new language adds “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident” to the list of conditions permitting the President to take over local authority — particularly “if domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.”

Since the administration broadened what constitutes “conspiracy” in its definition of enemy combatants — anyone who “has purposely and materially supported hostilities against the United States,” in the language of the Military Commissions Act (PL 109-366) — critics say it’s a formula for executive branch mischief.

Yet despite such a radical turn, the new law garnered little dissent, or even attention, on the Hill.

One of the few to complain, Sen. Patrick J. Leahy, D-Vt., warned that the measure virtually invites the White House to declare federal martial law.

It “subverts solid, longstanding posse comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the President to declare martial law,” he said in remarks submitted to the Congressional Record on Sept. 29.

“The changes to the Insurrection Act will allow the President to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor,” he said.

Moreover, he said, it breaks a long, fundamental tradition of federal restraint.

“Using the military for law enforcement goes against one of the founding tenets of our democracy.”

And he criticized the way it was rammed through Congress.

It “was just slipped in the defense bill as a rider with little study,” he fumed. “Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.”

No matter: Safely tucked into the $526 billion defense bill, it easily crossed the goal line on the last day of September.

Silence
The language doesn’t just brush aside a liberal Democrat slated to take over the Judiciary Committee come January. It also runs over the backs of the governors, 22 of whom are Republicans.

The governors had waved red flags about the measure on Aug. 1, sending letters of protest from their Washington office to the Republican chairs and ranking Democrats on the House and Senate Armed Services committees.

No response. So they petitioned the party heads on the Hill — Sens. Bill Frist, R-Tenn., and Harry Reid, D-Nev., Speaker of the House J. Dennis Hastert, R-Ill., and his Democratic opposite, Nancy Pelosi of California.

“This provision was drafted without consultation or input from governors,” said the Aug. 6 letter signed by every member of the National Governors Association, “and represents an unprecedented shift in authority from governors . . .to the federal government.”

“We urge you,” they said, “to drop provisions that would usurp governors’ authority over the National Guard during emergencies from the conference agreement on the National Defense Authorization Act.”

Again, no response from the leadership, said David Quam, the National Governors Association’s director of federal relations.

On Aug. 31, the governors sent another letter to the congressional party leaders, as well as to Defense Secretary Donald H. Rumsfeld, who had met quietly with an NGA delegation back in February.

The bill “could encroach on our constitutional authority to protect the citizens of our states,” they protested, complaining again about how the provision had been dumped on a midnight express.

“Any issue that affects the mission of the Guard in the states must be addressed in consultation and coordination with governors,” they demanded.

“The role of the Guard in the states and to the nation as a whole is too important to have major policy decisions made without full debate and input from governors throughout the policy process.”

More silence.

“We did not know until the bill was printed where we stood,” Quam said.

That’s partly the governors’ own fault, said a Republican Senate aide.

“My understanding is that they sent form letters to offices,” she said. “If they really want a piece of legislation considered they should have called offices and pushed the matter. No office can handle the amount of form letters that come in each day.”

Quam disputed that.

“The letter was only the beginning of the conversation,” he said. “The NGA and the governors’ offices reached out across the Hill.”

Blogosphere
Looking back at the government’s chaotic response to Katrina, it’s not altogether surprising that the provision drew so little opposition in Congress and attention from the mainstream media.

And of course, it was wrapped in a monster defense bill related to the emergency in Iraq.

But the blogosphere, of course, was all over it.

A close analysis of the bill by Frank Morales, a 58-year-old Episcopal priest in New York who occasionally writes for left-wing publications, spurred a score of liberal and conservative libertarian Web sites to take a look at it.

But a search of The Washington Post and New York Times archives, using the terms “Insurrection Act,” “martial law” and “Congress,” came up empty.

That’s not to say the papers don’t care: There’s just too much going on in the global war on terror to keep up with, much less write about such a seemingly insignificant provision. The martial law section of the Defense Appropriation Act, for example, takes up just a few paragraphs in the 591-page document.

What else is in there? More intriguing stuff, it looks like — and I’m working my way through it.

BACKCHANNEL CHATTER
Putin on the Risk: Don’t be too quick to finger Russian president Vladimir Putin in the radiation rub-out of disaffected former KGB agent Alexander Litvinenko in London Nov. 23, says a retired CIA operative who spent a career trying to outwit his Soviet opposites. “I see it all as a little too pat,” says Milt Bearden, a 30-year CIA veteran and chief of its Soviet/East European Division when the Kremlin crumbled in 1990.

“Is Putin insane or stupid? I think not,” Bearden e-mailed me last week.

“I tilt toward a setup,” Bearden said. The villain? “Someone with the [scientific] resources of a state,” a large research laboratory, perhaps, with connections to the criminal underworld.

“This story has legs,” Bearden went on, “just what Putin would not want if he was behind it.”

Stay tuned...

More on Torture Law: Most legal analysts, as reported here last week, believe that the new law setting up Military Commissions will exempt U.S. officials from prosecution for abusing prisoners, by narrowing the definitions of torture in the 1997 War Crimes Act. But at least one eminent jurist begs to differ.

“Even as retroactively amended and narrowed, a person whose actions caused ‘serious’ or ‘severe’ mental or physical suffering at any time after 1997 committed a felony violation of the War Crimes Act and can be prosecuted,” maintains Stephen Rickard, a former top State Department official, foreign policy adviser to the late Sen. Daniel Patrick Moynihan, D-N.Y., and prominent Washington lawyer with a speciality in human rights.

“I don’t like the definitions of ‘torture’ and ‘cruel and inhuman’ conduct,” Rickard e-mailed me last week, “but even with all of their flaws, I don’t see how they exempt interrogators from potential punishment, especially for the harshest, most controversial techniques.”

These days Rickard is the director of the Washington Office of the liberal Open Society Institute.

Jeff Stein can be reached at jstein@cq.com.

Source: CQ Homeland Security

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