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Working for the Clampdown
What might the president do with his new power to declare
martial law?
By James Bovard
04/25/07 "American
Conservative" -- - How many pipe bombs
might it take to end American democracy? Far fewer than it would
have taken a year ago.
The Defense Authorization Act of 2006, passed on Sept. 30,
empowers President George W. Bush to impose martial law in the
event of a terrorist “incident,” if he or other federal
officials perceive a shortfall of “public order,” or even in
response to antiwar protests that get unruly as a result of
government provocations.
The media and most of Capitol Hill ignored or cheered on this
grant of nearly boundless power. But now that the president’s
arsenal of authority is swollen and consecrated, a few voices of
complaint are being heard. Even the New York Times recently
condemned the new law for “making martial law easier.”
It only took a few paragraphs in a $500 billion, 591-page bill
to raze one of the most important limits on federal power.
Congress passed the Insurrection Act in 1807 to severely
restrict the president’s ability to deploy the military within
the United States. The Posse Comitatus Act of 1878 tightened
these restrictions, imposing a two-year prison sentence on
anyone who used the military within the U.S. without the express
permission of Congress. But there is a loophole: Posse Comitatus
is waived if the president invokes the Insurrection Act.
Section 1076 of the John Warner National Defense Authorization
Act for Fiscal Year 2007 changed the name of the key provision
in the statute book from “Insurrection Act” to “Enforcement of
the Laws to Restore Public Order Act.” The Insurrection Act of
1807 stated that the president could deploy troops within the
United States only “to suppress, in a State, any insurrection,
domestic violence, unlawful combination, or conspiracy.” The new
law expands the list to include “natural disaster, epidemic, or
other serious public health emergency, terrorist attack or
incident, or other condition”—and such “condition” is not
defined or limited.
These new pretexts are even more expansive than they appear.
FEMA proclaims the equivalent of a natural disaster when bad
snowstorms occur, and Congress routinely proclaims a natural
disaster (and awards more farm subsidies) when there is a
shortfall of rain in states with upcoming elections. A terrorist
“incident” could be something as stupid as the flashing toys
scattered around Boston last fall.
The new law also empowers the president to commandeer the
National Guard of one state to send to another state for up to
365 days. Bush could send the Alabama National Guard to suppress
antiwar protests in Boston. Or the next president could send the
New York National Guard to disarm the residents of Mississippi
if they resisted a federal law that prohibited private ownership
of semiautomatic weapons. Governors’ control of the National
Guard can be trumped with a simple presidential declaration.
The story of how Section 1076 became law vivifies how expanding
government power is almost always the correct answer in
Washington. Some people have claimed the provision was slipped
into the bill in the middle of the night. In reality, the
administration clearly signaled its intent and almost no one in
the media or Congress tried to stop it.
The Katrina debacle seems to have drowned Washington’s
resistance to military rule. Bush declared, “I want there to be
a robust discussion about the best way for the federal
government, in certain extreme circumstances, to be able to
rally assets for the good of the people.” His initial proposal
generated a smattering of criticism and no groundswell of
support. There was no “robust discussion.” On Aug. 29, 2006, the
administration upped the ante, labeling the breached levees “the
equivalent of a weapon of mass effect being used on the city of
New Orleans.” Nobody ever defined a “weapon of mass effect,” but
the term wasn’t challenged.
Section 1076 was supported by both conservatives and liberals.
Sen. Carl Levin (D-Mich.), the ranking Democratic member on the
Senate Armed Services Committee, co-wrote the provision along
with committee chairman Sen. John Warner (R-Va.). Sen. Ted
Kennedy openly endorsed it, and Rep. Duncan Hunter (R-Calif.),
then-chairman of the House Armed Services Committee, was an avid
proponent.
Every governor in the country opposed the changes, and the
National Governors Association repeatedly and loudly objected.
Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate
Judiciary Committee, warned on Sept. 19 that “we certainly do
not need to make it easier for Presidents to declare martial
law,” but his alarm got no response. Ten days later, he
commented in the Congressional Record: “Using the military for
law enforcement goes against one of the founding tenets of our
democracy.” Leahy further condemned the process, declaring that
it “was just slipped in the defense bill as a rider with little
study. Other congressional committees with jurisdiction over
these matters had no chance to comment, let alone hold hearings
on, these proposals.”
Congressional Quarterly’s Jeff Stein wrote an excellent article
in December on how the provision became law with minimal
examination or controversy. A Republican Senate aide blamed the
governors for failing to raise more fuss: “My understanding is
that they sent form letters to offices. 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.”
Thus, the Senate was not guilty by reason of form letters. Plus,
the issue was not on the front page of the Washington Post
within the 48 hours before the Senate voted on it. Surely no
reasonable person can expect senators to know what they were
doing when they voted 100 to 0 in favor of the bill? In reality,
they were too busy to notice the latest coffin nails they
hammered into the Constitution.
This expansion of presidential prerogative illustrates how every
federal failure redounds to the benefit of leviathan. FEMA was
greatly expanded during the Clinton years for crises like the
New Orleans flood. It, along with local and state agencies,
floundered. Yet the federal belly flop on the Gulf Coast somehow
anointed the president to send in troops where he sees fit.
“Martial law” is a euphemism for military dictatorship. When
foreign democracies are overthrown and a junta establishes
martial law, Americans usually recognize that a fundamental
change has occurred. Perhaps some conservatives believe that the
only change when martial law is declared is that people are no
longer read their Miranda rights when they are locked away.
“Martial law” means obey soldiers’ commands or be shot. The
abuses of military rule in southern states during Reconstruction
were legendary, but they have been swept under the historical
rug.
Section 1076 is Enabling Act-type legislation—something that
purports to preserve law-and-order while formally empowering the
president to rule by decree. The Bush team is rarely remiss in
stretching power beyond reasonable bounds. Bush talks as if any
constraint on his war-making prerogative or budget is “aiding
and abetting the enemy.” Can such a man be trusted to reasonably
define insurrection or disorder? Can Hillary Clinton?
Bush can commandeer a state’s National Guard any time he
declares a “state has refused to enforce applicable laws.” Does
this refer to the laws as they are commonly understood—or the
laws after Bush fixes them with a signing statement?
Some will consider concern about Bush or future presidents
exploiting martial law to be alarmist. This is the same reflex
many people have had to each administration proposal or power
grab from the Patriot Act in October 2001 to the president’s
enemy-combatant decree in November 2001 to the setting up the
Guantanamo prison in early 2002 to the doctrine of preemptive
war. The administration has perennially denied that its new
powers pose any threat even after the evidence of abuses—illegal
wiretapping, torture, a global network of secret prisons, Iraq
in ruins—becomes overwhelming. If the administration does not
hesitate to trample the First Amendment with “free speech
zones,” why expect it to be diffident about powers that could
stifle protests en masse?
On Feb. 24, the White House conducted a highly publicized drill
to test responses to IEDs going off simultaneously in ten
American cities. The White House has not disclosed the details
of how the feds will respond, but it would be out of character
for this president to let new powers he sought to gather dust.
There is nothing more to prevent a president from declaring
martial law on a pretext than there is to prevent him from
launching a war on the basis of manufactured intelligence. And
when the lies become exposed years later, it could be far too
late to resurrect lost liberties.
Senators Leahy and Kit Bond (R-Mo.) are sponsoring a bill to
repeal the changes, but it is not setting the woods on fire on
Capitol Hill. Leahy urged his colleagues to consider the Section
1076 fix, declaring, “It is difficult to see how any Senator
could disagree with the advisability of having a more
transparent and thoughtful approach to this sensitive issue.”
He deserves credit for fighting hard on this issue, but there is
little reason to expect most members of Congress to give it a
second look. The Section 1076 debacle exemplifies how the
Washington establishment pretends that new power will not be
abused, regardless of how much existing power has been
mishandled. Why worry about martial law when there is pork to be
harvested and photo ops to attend? It is still unfashionable in
Washington to worry about the danger of the open barn door until
after the horse is two miles down the road.
James Bovard is the author of Attention Deficit Democracy and
eight other books.
Copyright © 2007 The American Conservative
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