Martial law is perhaps the ultimate stomping of freedom. And
yet, on September 30, 2006, Congress passed a provision in a
591-page bill that will make it easy for President Bush to impose
martial law in response to a terrorist “incident.”
It also empowers him to effectively declare martial law in response
to what he or other federal officials label a shortfall of “public
order” – whatever that means.
It took only 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 those
restrictions, imposing a two-year prison sentence on anyone
who used the military within the United States without the express
permission of Congress. (This act was passed after the depredations
of the U.S. military throughout the Southern states during Reconstruction.)
But there is a loophole: Posse Comitatus is waived if the president
invokes the Insurrection Act.
The Insurrection Act and Posse Comitatus Act aim to deter dictatorship
while permitting a narrow window for the president to temporarily
use the military at home. But the 2006 reforms basically threw
any concern about dictatorial abuses out the window.
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Section 1076 of the Defense Authorization Act of 2006 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 of pretexts to include “natural disaster, epidemic,
or other serious public health emergency, terrorist attack or
incident, or other condition” – and such a “condition”
is not defined or limited.
One might think that given the experience with the USA PATRIOT
Act and many other abuses of power, Congress would be leery
about giving this president his biggest blank check yet to suspend
the Constitution. But that would be naïve.
The new law was put in place in response to the debacle of
the federal response to Hurricane Katrina. There was no evidence
that permitting a president far more power would avoid future
debacles, but such a law provides a comfort blanket to politicians.
The risk of tyranny is irrelevant compared with the reduction
of risk of embarrassment to politicians. According to Washington,
the correct response to Katrina is not to recognize the failure
of relying on federal agencies a thousand miles away but rather
to vastly increase the power of the president to dictate a solution,
regardless of whether he knows what he is doing and regardless
of whether local and state rights are trampled.
The new law also empowers the president to commandeer the National
Guard of one state to send to another state for as many as 365
days. Bush could send the South Carolina National Guard to suppress
anti-war protests in New Haven. Or the next president could
send the Massachusetts National Guard to disarm the residents
of Wyoming, if they resisted a federal law that prohibited private
ownership of semi-automatic weapons. Governors’ control
of the National Guard can be trumped with a simple presidential
declaration.
Section 1076 had bipartisan support on Capitol Hill, including
support from Sen. Carl Levin (D-Mich.), Sen. John Warner (R-Va.),
Sen. Ted Kennedy (D-Mass.), and Rep. Duncan Hunter (R-Calif.),
chairman of the House Armed Services Committee. Since the law
would give the feds more power, it was very popular inside the
Beltway.
On the other hand, every governor in the country opposed the
changes. Sen. Patrick Leahy (D-Vt.), the ranking Democrat on
the Senate Judiciary Committee, warned on September 19, 2006,
that “we certainly do not need to make it easier for presidents
to declare martial law.” Leahy’s 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.”
A U.S. Enabling Act
The new law vastly increases the danger from the actions of
government provocateurs. If there is an incident now like the
first bombing of the World Trade Center in February 1993, it
would be far easier for the president to declare martial law
– even if, as then, it was an FBI informant who taught
the culprits how to make the bomb. Even if the FBI masterminds
a protest that turns violent, the president could invoke the
“incident” to suspend the Constitution.
“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 before 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 an Enabling Act-type legislation – something
which purports to preserve law and order while formally empowering
the president to rule by decree.
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 to the “laws” after Bush “fixes”
them with a signing statement? Unfortunately, it is not possible
for Americans to commandeer the federal government even when
Bush admits that he is breaking a law (such as the Anti-Torture
Act).
Section 1076 is the type of “law” that would probably
be denounced by the U.S. State Department’s Annual Report
on Human Rights if enacted by a foreign government. But when
the U.S. government does the same thing, it is merely another
proof of benevolent foresight. The “comfort blanket”
on Section 1076 is that the powers will not be abused because
the president will show more concern with the Bill of Rights
than Congress did when it rubberstamped this provision. This
is the same “pass the buck on the Constitution”
that worked so well with the PATRIOT Act, the McCain Feingold
Campaign Reform Act, and the Military Commissions Act. As long
as there is hypothetically some branch of the government that
will object to oppression, no one has the right to fear losing
his liberties.
The military on the home front
Section 1076 is more ominous in light of the Bush administration’s
long record of Posse Comitatus violations. Since 2001, the Bush
administration has accelerated a trend of using the military
as a tool in the nation’s domestic affairs. From its support
of the Total Information Awareness surveillance vacuum cleaner,
to its use of Pentagon spy planes during the Washington-area
sniper shootings in 2002, to the Pentagon’s seizures of
Americans’ financial and other private information without
a warrant, the Bush administration has not hesitated to use
military force and intimidation at home whenever convenient.
And Americans may have little or no idea of how far the military
has actually gone on the home front, given the Bush team’s
obsessive secrecy.
The Pentagon has sent U.S. military intelligence agents on
domestic fishing expeditions. In 2004, two U.S. Army intelligence
agents descended on the University of Texas’s law school
in Austin. They entered the office of the Journal of Women and
the Law and demanded that the editors turn over a roster of
the people who attended a recent conference on Islam and women.
The editors denied having a list; the behavior of one agent
was described as intimidating. The agents then demanded contact
information for the student who organized the conference, Sahar
Aziz. University of Texas law professor Douglas Laycock commented,
