Bush's New Power to Declare Martial Law

You might start seeing articles about Bush and declaring Martial Law, here's the scoop. I first saw this referenced Saturday on slashdot and then I saw it on Boing Boing on Sunday. They point to this article dated October 26. Bush Moves Toward Martial Law by Frank Morales.

First off, the article is on uruknet.biz, a Saddam Hussein support site. Second, Frank Morales is a New York activist priest and member of the Campaign to Demilitarize the Police. This doesn't make the article wrong, but that extremest tone you read, wasn't your imagination.

So what happened? On October 17, 2006 Bush signed the National Defense Authorization Act for Fiscal Year 2007 (known as H.R.5122), he also put out a Signing Statement on it which is mostly irrelevant to this topic. Every year there is a National Defense Authorization Act, it sets the budget of the Department of Defense.

Of course Congress puts a lot more into the bill and it's mammoth. The part in question is Section 1076, titled "Use of the Armed Forces in Major Public Emergencies". It's nestled between Section 1075, "Patent Term Extensions for the Badges of the American Legion, the American Legion Women's Auxiliary, and the Sons of the American Legion." and Section 1077, "Increased Hunting and Fishing Opportunities for Members of the Armed Forces, Retired Members, and Disabled Veterans."

Section 1076 modifies The Insurrection Act, in particular, Title 10, Subtitle A, Part I, Chapter 15, Insurrection, Section 333. Interference with State and Federal law which until now read:

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it--
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

For a good brief history of the Insurrection Act see this New Yorker commentary by Nicholas Lemann. The gist is that the president can only bring in the military to supress an insurrection or if the rule of law isn't functioning. For more background on this see:

• One of the charges against King George III in the Declaration of Indepence is "He has affected to render the Military independent of and superior to the Civil Power."


• Article I Section 8 of the US Constitution gives Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and of course the militia is under the control of the President.


• The Posse Comitatus Act of 1878 which says: "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both".


• This article on Martial Law


• The US Supreme Court case Ex parte Milligan from 1865 which found that suspending habeas corpus was legal but not while the civilian courts were open. "It has been said that martial law, and its execution by trials by military commission, is fatal to liberty and the pursuit of happiness; but we are only asking for the exercise of military power, when necessity demands and prudence dictates."

I think most people never heard of this stuff before Hurricane Katrina. The National Guard is different from the military in that they are under the control of the state and only the state legislature or governor can relinquish control to the federal government. Bush wanted this to happen but Louisiana governor Kathleen Blanco for some reason refused (and the Louisiana legislature wasn't in session). So Bush considered sending in troops under the Insurrection Act but it wasn't clear it allowed him to do so. After all it wasn't an insurrection, it was a natural disaster.

So Section 1076 was supposed to correct this. It changes the title of the law from "Insurrection" to "Enforcement of the Laws to Restore Public Order". However, instead of just adding "natural disaster" someplace, they rewrote the entirety of section 333 to be as follows:

• (a) Use of Armed Forces in Major Public Emergencies-
• (1) The President may employ the armed forces, including the National Guard in Federal service, to--
• (A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
• (i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
• (ii) such violence results in a condition described in paragraph (2); or
• (B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
• (2) A condition described in this paragraph is a condition that--
• (A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
• (B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
• (3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
• (b) Notice to Congress- The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.'.

See how much clearer that is? Ugh. Anyway, notice the "when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident," part? That's the point, if one of these happens, the President wants to be able to intervene even if the state refuses. You may think that allowing the President to override the local government is a bad thing. "In 1957 and 1963, however, Presidents Eisenhower and Kennedy sent troops to the South to enforce the civil rights of African-Americans without gubernatorial invitations."

The problem with the new law is I think the phrase "or other condition" but I think (a)(1)(A)(i-ii) cover that pretty well. Paragraph (2) is basically what was there before. So you might wonder how this law passed Congress without much fuss. Patrick Leahy (D-VT) did speak about it in September before it passed, but apparently no one listened.

I'm no lawyer, but I think this is one of those cases where it's hard to write a law that gives extraordinary powers to be used only when it's "the right thing to do". Protecting people after hurricanes and enforcing civil rights when states won't are good things. Sending in the military to do the president's bidding is not.

One option is to require both Congress and the President to agree. Maybe that's what people are complaining about, that Bush can do this on his own decision and merely has to inform Congress (which he's not very good about and that signing statement lists 12 parts of the law (though not Section 1076) calling for "the executive branch to furnish information to the Congress or other entities on various subjects" which the President says is optional. However the existing Insurrection Act didn't require the consent of Congress so this is nothing new.

All in all, I think it's a wash. Then again, someone on slashdot posted this quote by William Adama from Battlestar Galactica (the best show on TV) from the second episode, titled "Water": "There's a reason why we separate military and the police: one fights the enemy of the State, the other serves and protects the people. When the military becomes both, then the enemies of the State tend to become the people."