[NYTr] The Insurrection Act: working for the clampdown

[nytr at olm.blythe-systems.com]

sent by Mark Graffis Jul 21, 2007

Zmag - Aug 2007
http://zmagsite.zmag.org/JulAug2007/bovard.html

Martial Law
Working for the Clampdown

By James Bovard

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 bincidentb or if he or other
federal officials perceive a shortfall of bpublic orderb 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 presidentbs 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 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 presidentbs 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 bto suppress, in a State,
any insurrection, domestic violence, unlawful combination, or
conspiracy.b The new law expands the list to include bnatural disaster,
epidemic, or other serious public health emergency, terrorist attack or
incident, or other conditionbband such bconditionb 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 Washingtonbs resistance to
military rule. Bush declared, bI 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.b

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 bthe equivalent of a
weapon of mass effect being used on the city of New Orleans.b 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, bWe certainly do not need to make it
easier for Presidents to declare martial law,b 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.b Leahy further condemned the process,
declaring that it bwas 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 Quarterlybs 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: bMy 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.b

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.

bMartial lawb 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 legislationbsomething 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 baiding and abetting the enemy.b Can such a
person be trusted to reasonably define insurrection or disorder?

Bush can commandeer a statebs National Guard any time he declares a
"state has refused to enforce applicable laws." Does this refer to the
laws as they are commonly understoodbor 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 abusesbillegal wiretapping, torture, a global network of
secret prisons, Iraq in ruinsbbecame 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, bIt is difficult to see how any Senator could disagree with
the advisability of having a more transparent and thoughtful approach
to this sensitive issue.b

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.]