Working for the Clampdown
By James Bovard
07/21/07 "ZNet" --- - How many pipe bombs might it take to
end U.S. democracy? Far fewer than it would have taken a
year ago. The Defense Authorization Act of 2006, passed on
September 30, empowers President George W. Bush to impose
martial law in the event of a terrorist “incident” or 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
It took a few paragraphs in a $500 billion, 591-page bill to
destroy 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 permission of Congress. But there was 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 “con- dition” 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 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 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 demonstrates 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 signaled its intent and almost
no one in the media or Congress tried to stop it.
The Katrina debacle appears 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 only a smattering of
criticism and there was no “robust discussion.” On August
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-MI), the ranking Democratic
member on the Senate Armed Services Committee, co-wrote the
provision, along with committee chair Sen. John Warner
(R-VA). Sen. Ted Kennedy (D-MA) openly endorsed it and Rep.
Duncan Hunter (R-CA), then-chair 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 September 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 the December issue 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? Apparently, they were simply 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 person
be trusted to reasonably define insurrection or disorder?
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 USA PATRIOT Act in October
2001 to the president’s enemy-combatant decree in November
2001 to setting up 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 evidence of abuses—illegal wiretapping, torture, a
global network of secret prisons, Iraq in ruins—became
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 February 24, the White House conducted a highly
publicized drill to test responses to Improvised Explosive
Devices (IEDs) going off simultaneously in ten American
cities. The White House has not disclosed the details of how
the feds responded, but it would be out of character for
this president to let new powers he sought to gather dust.
There is nothing to prevent presidents from declaring
martial law on a pretext than there is to prevent them from
launching a war on the basis of manufactured intelligence.
Senators Leahy and Kit Bond (R-MO) are sponsoring a bill to
repeal the changes. 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
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
James Bovard is the author of Attention Deficit Democracy
and eight other books.
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