Monday, October 30, 2006

Did Anybody In Congress Know They Were LOWERING Restrictions On Declaring Martial Law?

If not, WHY THE FUCK NOT?

If so, who knew, when did they suss it out, and why THE FUCK did they not move fucking heaven and earth to stop it?

In a stealth maneuver, President Bush has signed into law a provision which, according to Senator Patrick Leahy (D-Vermont), will actually encourage the President to declare federal martial law (1). It does so by revising the Insurrection Act, a set of laws that limits the President's ability to deploy troops within the United States. The Insurrection Act (10 U.S.C.331 -335) has historically, along with the Posse Comitatus Act (18 U.S.C.1385), helped to enforce strict prohibitions on military involvement in domestic law enforcement. With one cloaked swipe of his pen, Bush is seeking to undo those prohibitions.

The Supreme Court is the sole remaining bastion against the Bushevik assumption of truly dictatorial powers. Four of the nine justices--the boys from Opus Dei: Roberts, Alito, Scalia, and Thomas--are already acolytes of the "unitary executive' theory. Kennedy is likely to agree with them. I do not think the omens are good that the Court will rein in Gibbering George and his minions.

But mebbe that's just me?

1 comment:

Dave said...

Given the process required for a bill to become law and the fact that the changes were passed by a bipartisan majority of both houses of Congress (94-0 in the Senate, and 396-31 in the House), I thought some of you may be interested to know about the actual changes made to the Insurrection Act of 1807. In order for military forces to be used under these provisions, the following conditions must be met:

(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.

These are the same conditions that must be met under the old wording of the statute; however, the surrounding language has been expanded to include application to any event that is still also determined to meet these conditions, such as major public emergencies, terrorist incidents, and so on, as opposed to only "insurrection" specifically. Congress must also be informed immediately and every 14 days thereafter during the exercise of such authority, which was not required under the old statute.

The changes to this law are likely the result of public outcry in response to the Hurricane Katrina disaster, particularly President Bush's refusal to activate National Guard elements by federal or presidential order given the previous restrictions to such an order. This expansion of the wording would have, for example, allowed Hurricane Katrina to fall under the guidelines as a "natural disaster", whereas previously "insurrection" was required.

Here is the old text:

-----
333. Interference with State and Federal law

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.
-----

And here is the new text:

-----
333. Major public emergencies; interference with State and Federal law

(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 the authority.
-----

As you can see, the wording REQUIRES that the identical conditions be met (included in paragraph 2), as well as both requirements under (a)(1)(A). The only real difference is allowing the conditions to be met during "a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition" as opposed to "insurrection" specifically. (Besides, can't it be argued that "insurrection" can be broadly defined, too, if the real interest is to declare martial law?)

Just because there is now "or other condition" wording in the revised statute does NOT mean they can just arbitrarily decide there is an "other condition" and deploy the military or national guard. The condition still MUST meet the guidelines above; it's just that now it's not an "insurrection" that also meets those conditions, it's any event that meets those conditions. But the conditions themselves are specific, and are actually carefully worded to guarantee Constitutional protections.

I suppose this wouldn't be very interesting for people to blog about, though.

Regards,

Dave Schroeder
University of Wisconsin - Madison
das@doit.wisc.edu
http://das.doit.wisc.edu/