Stomping Freedom: Inside the Martial Law Act of 2006

[Echo In Light]

Stomping Freedom
Inside the Martial Law Act of 2006
By JAMES BOVARD

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.

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 naive.

http://www.counterpunch.org/bovard01092008.html

[hobbit709]

1. What this really should have been called is

Gesetz zur Behebung der Not von Volk und Reich.

[onenote]

2. Proof again that you shouldn't accept what you read on the Internet without question

I don't completely fault DUers for being taken in by what they read on some website, but before posting, they might try checking the facts.

Yes, in 2006, Congress passed, and the president signed, legislation (called the Defense Authorization Act for 2007) containing a provision that amended to Insurrection Act to expand the listed circumstances in which the president could order US military forces deployed within the USA. (More on exactly what the bill did later). BUT...the 2006 amendment was REPEALED by the recently enacted Defense AUthorization Act for 2008. The law is back to what it was before the amendments that have everyone responding to the OP up in arms. In fact, the repeal of the 2006 amendments is one of the specific reasons that chimpy is trying, through the back door, to veto the 2007 bill.

Now, as to how bad the 2006 amendments really were. Admittedly, before the amendments, the Insurrection Act only came into play in cases of "insurrection, domestic violence, unlawful combination, or conspiracy" while the amended version (the one Congress repealed) adds "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident or other condition" to the list. Clearly the new law is broader and that in and of itself is a source of concern and reason to support its repeal. But let's not pretend that the existing law (which dates back to the beginning of th3e 19th century) is all that narrow. After all, "conspiracy" and "unlawful combination" are pretty ambiguous terms. Also, under both the new and old versions, the law only applied if, in connection with one of the listed occurences, domestic violence was occurring to such an extent that state-level authorities are incapable of maintaining public order AND such violence so hinders the execution of state or federal law that any part or class of the state's citizenry is deprived of a constitutional right, privilege, immunity or protection.

Again I'm happy that the changes from 2006 are being repealed (and hope Congress sticks to its guns in the face of chimpy's veto effort.

[Echo In Light]

3. Did you read the article? In part it covers what you've outlined, although isn't so quick to dismiss

Concerns regarding domestic surveillance, and intent of govt.

[onenote]

4. Yes I did, and here' s a partial list of some of the things wrong about the article.

We'll start at the macro level. Its an article about a piece of legislation passed in 2006 that was repealed in 2007 and it was published in January 2008, yet it nowhere mentions the repeal. Now, I understand that Brovard first wrote the piece back in 2007 before the repeal was enacted. But what exactly was the agenda of Counterpunch in re-publishing now without any reference to the extremely relevant fact that COngress had repealed the legislation. Sounds fishy to me.

As for Brovard's analysis, he says it allows the president to declare martial law in response to whatever he labels "a shortfall of public order, whatever that means." Well, for starters, that's not what the law says, it says the president may use armed forces including the national guard to restore national order when certain specified conditions are met. Brovard says the term condition isn't defined in the law, but that also is inaccurate. As my post indicated, the law defines the conditions under which the armed forces can be used as a condition where domestic violence has occurred to such an extent that state authorities are incapable of maintaing public order and such violence so hinders the execution of the laws of a state that it results in citizens being deprived of constitutional rights which state authorities are unable, fail or refuse to protect.

Now I think the wording of the conditions is too broad and a bit too loose, but its simply misleading to describe the bill the way Brovard does (which makes it sound like there are no definitions, no conditions, just an unfettered right to declare the need to restore "public order" for any old "condition". For example, Brovard gives the example of calling out the National Guard to suppress anti-war protests. Well, that might be possible, but only if those protests were accompanied by a level of domestic violence that the state authorities couldn't handle and that violence was depriving other citizens of their constitutional rights. Again, Brovard's description is just too glib by half. Indeed, one could argue that if you characterize the anti-war protest as an unlawful combination or conspiracy (pretty ambiguous terms), the prior law allowed the president to do exactly what its claimed the revised provision would allow, without having any condition relating to the existence of domestic violence.

As I said, I'm glad the amendment was repealed because its not well thought through and was basically slipped into the Defense Approps Act for 2007. Indeed, I'd even like to see the prior version of the law tightened up rather than merely restored. But I find the timing of an out of date (and therefore inherently inaccurate) piece on the law to be rather curious, which was the point of my original response.

[Echo In Light]

5. I was going by this quote:

"The controversy over the amendment scuttled its enactment, though it is unclear whether that has deterred the military from expanding its domestic spying."

I thought he was outlining the situation similarly to how you had, saying, no, it isn't law, but given a host of abuses and illegalities, don't be so quick to trust. Perhaps I read that wrong.

Re: this: "accompanied by a level of domestic violence that the state authorities couldn't handle and that violence was depriving other citizens of their constitutional rights."

It's interesting to note that "authorities" have infiltrated various anti-war marches with the sole purpose of instigating violence so that it can be blamed on activists. The media then sells the result to the public: unruly activists turn violent, etc I wonder how such legislation may tie into these types of strategies, esp if it opens a door to 'justify' broader surveillance?

[warren pease]

7. A question, a comment and a reference...

The question: Isn't H.R. 1585, the fiscal year 2008 National Defense Authorization Act, the bill Bushie just pocket vetoed? I'm pretty sure that the case, since Ms. Nancy and Uncle Harry issued a joint statement (strongly worded, of course) on Dec. 28th regarding just that veto of just that bill. They do get things wrong from time to time, though...

And the comment: I think it's a handicap among reasonable people that they assume reasonableness (if that's a word) on the part of others. I think this is how BushCo got over on so many issues post-9/11, particularly after he was deified by US media and touted as the "war president" by a bipartisan congress, all singing gawd bless America on the Capitol steps.

And ever after BushCo has proven itself over and over to be the vile, malevolent snake pit most of us always knew it was, I think some of that tendency to ascribe reason and honor to these vampires remains. So you express concerns that a section of the new bill is "...broader and that in and of itself is a source of concern and reason to support its repeal. But let's not pretend that the existing law (which dates back to the beginning of the 19th century) is all that narrow. After all, "conspiracy" and "unlawful combination" are pretty ambiguous terms."

Yes they are. But I think you omit the human factor or, in this case, the reptilian factor. This administration has distinguished itself as history's most ideologically inflexible and hell-bent on causing irreparable domestic and international damage. So when they have their lawyers draw up omnibus bills like this and sell them through their congressional surrogates, they're careful to leave plenty of room for domestic repression around the edges. I suggest these are not mistakes but intentional power grabs buried in the fine print and which our busy, busy representatives hardly ever actually read. Raising campaign money being so time-consuming, don'tcha know.

For example, here's a little-known piece of H.R. 1585 that seems to contradict what you're saying about the restoration of the Posse Comitatus Act of 1877 and its relationship to the Sedition Act of 1807. I've chopped it up pretty thoroughly to focus on the high (low?) points. The entire bill is http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h1585:">here. Then you click on "text of legislation," then on which brings up the final House/Senate approved bill. Then scroll all the way down to Sec. 1814, click that link, then scroll down again to Sec. 1814, where you'll see the full text of my version below. Sorry for the hassel; Thomas' URLs don't work well with DU's HTML implementation, apparently.

SEC. 1814. REQUIREMENT FOR SECRETARY OF DEFENSE TO PREPARE PLAN FOR RESPONSE TO NATURAL DISASTERS AND TERRORIST EVENTS.

(1) ...the Secretary of Defense, in consultation with the Secretary of Homeland Security, the Chairman of the Joint Chiefs of Staff, the commander of the United States Northern Command, and the Chief of the National Guard Bureau, shall prepare and submit to Congress a plan for coordinating the use of the National Guard and members of the Armed Forces on active duty when responding to natural disasters, acts of terrorism, and other man-made disasters as identified in the national planning scenarios described in subsection (e)...

(d) ...The plan shall cover, at a minimum, the following: ...

(3) An identification of the training and equipment needed for both National Guard personnel and members of the Armed Forces on active duty to provide military assistance to civil authorities and for other domestic operations to respond to hazards identified in the national planning scenarios.

(e) National Planning Scenarios- The plan shall provide for response to the following hazards:

(1) Nuclear detonation, biological attack, biological disease outbreak/pandemic flu, the plague, chemical attack-blister agent, chemical attack-toxic industrial chemicals, chemical attack-nerve agent, chemical attack-chlorine tank explosion, major hurricane, major earthquake, radiological attack-radiological dispersal device, explosives attack-bombing using improvised explosive device, biological attack-food contamination, biological attack-foreign animal disease and cyber attack.

(2) Any other hazards identified in a national planning scenario developed by the Homeland Security Council.

SEC. 1815. DETERMINATION OF DEPARTMENT OF DEFENSE CIVIL SUPPORT REQUIREMENTS.

(B) Any additional capabilities determined by the Secretary to be necessary to support the use of the active components and the reserve components of the Armed Forces for homeland defense missions, domestic emergency responses, and providing military support to civil authorities.

(e) ...United States Code, is amended by striking `contingency plans' at the end of the first sentence and inserting the following: `contingency plans, including plans for providing support to civil authorities in an incident of national significance or a catastrophic incident, for homeland defense, and for military support to civil authorities'.

SEC. 1821. UNITED STATES NORTHERN COMMAND.

(a) Manpower Review-... of the civilian and military positions, job descriptions, and assignments within the United States Northern Command with the goal of determining the feasibility of significantly increasing the number of members of a reserve component assigned to, and civilians employed by, the United States Northern Command who have experience in the planning, training, and employment of forces for homeland defense missions, domestic emergency response, and providing military support to civil authorities.

(b) Definition- In this section, the term `United States Northern Command' means the combatant command the geographic area of responsibility of which includes the United States.

And because we're absolutely not dealing with honorable people here, we can't ascribe normal motives or basic human decency to their actions. We're, in fact, dealing with megalomaniacal sociopaths whose frame of reference for acceptable behavior is completely out of whack with that of "normal" people.

Finally, for reference and to bring up some additional proof points, I'd offer this brief synopsis of the dots that can be connected to infer some rather dark times ahead. Please check out the links if you have the time.

There's an ever-expanding list of repressive legislation, executive orders and presidential directives; massive federal invasions of privacy regarding http://query.nytimes.com/gst/fullpage.html?res=9507E0D7153AF933A2575BC0A9649C8B63">medical and http://www.nytimes.com/2006/06/23/washington/23intel.html?ex=1308715200&en=168d69d26685c26c&ei=5088&partner=rssnyt&emc=rss">financial records; monitoring US citizens' electronic communications shortly after assuming office; re-targeting spy satellites for domestic surveillance; the TSA cavity search specialists (for attractive young women only; the rest are presumed to pose no threat to the state); various http://www.aclu.org/safefree/resources/18752res20041110.html">watch lists that nobody knows who's on and nobody who's on can get off of; RFIDs in all new passports and in new national ID cards scheduled to be issued this year; Halliburton's new detention camps; new " to spot those who don't "look quite right;" all this wonderful new stuff from the DHS; private armies featuring mercenaries from companies like Blackwater and SAIC springing up like mushrooms after a light rain . . . [br />

All that and rendition and torture, too.


wp

[onenote]

8. all good points

Yes, the bill repealing Section 1076 (the provision discussed in the article linked in the OP) is the bill that chimpy is trying to veto. Under the circumstances, that only makes the omission of any reference to the current state of play of section 1076 seem more odd, don't you agree?

And while my comments may not have been clear, my point was not that section 1076 isn't so bad, its that even the existing law, put into the hands of dishonorable people, could be used to "justify" all sorts of actions that this country has never before seen. Its because of the sorts of actions that you outline that I think that merely restoring the old law is just a first step -- additional restraints need to be put on the executive with respect to the circumstances in which the military can be deployed domestically.

[warren pease]

9. And all good points as well...

I particularly like this line from the article: "The risk of tyranny is irrelevant compared with the reduction of risk of embarrassment to politicians."

That speaks volumes and reduces much of the argument, pro and con, on the gross ineffectiveness of the democratic majority in restraining BushCo down to its elements.

And I do think omitting mention of Sec. 1076 in the article is a bit odd. Maybe just reportorial laziness. Gawd knows I've never been guilty of that one. :sarcasm:

Anyway, I think we see things from much the same perspective. I was curious about what I saw as your unwarranted faith in BushCo to act in any way other than as the psychopaths they've proven themselves to be. Now I see I just misread your points.

So you're off the hook... :D


wp

[Toots]

6. Funny how the National Guard is not considered military in this regard..

Any Governor can at any time call in the National Guard when the state is in need either for search and rescue or law and order.
The US Army or any real military branch can not be used so easily though..