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Originally Published: 11/1/2006


By The Issue Wonk


According to Wikipedia, “Martial law is the system of rules that takes effect (usually after a formal declaration) when a military authority takes control of the normal administration of justice." In the United States, the President has limited law enforcement powers. Those powers have been delegated to the states. The Insurrection Act and the Posse Comitatus Act are the principal means of controlling federal intervention into domestic disturbances in the states.


Posse Comitatus Act.  The Posse Comitatus Act (18 U.S.C. § 1385) was passed in 1878 and prohibits federal military personnel and units of the U.S. National Guard from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or by Congress. The original act referred only to the Army. In 1956 the Air Force was added to the law. The Navy and Marine Corps have been included by a regulation of the Defense Department.


The Insurrection Act.  The Insurrection Act is a set of laws that also limit the President’s ability to deploy troops within the U.S. The laws are primarily contained in 10 U.S.C. § 331 and 10 U.S.C. § 335, which state as follows:


10 U.S.C. § 331:  Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.


10 U.S.C. § 335:  For purposes of this chapter, the term “State” includes the unincorporated territories of Guam and the Virgin Islands.


On June 22, 2006 Congress modified the Insurrection Act as part of the 2007 Defense Appropriations Bill (HR 5122). Known as the John Warner National Defense Authorization Act for the Financial Year 2007, portions of the bill changed the Insurrection Act to allow the President to use the armed forces, including the National Guard, to “restore public order and enforce the laws” during an emergency as the result of “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition.” [Emphasis added.] It also gives the President the ability to “suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy . . . ” [Emphasis added.] One of the “conditions” for the President’s intervention is if the event “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” [Emphasis added.]


Thus, HR 5122 expanded the President’s ability to deploy troops as a police force during various conditions when the President determines that the authorities of the state are incapable of maintaining public order, and orders that the President notify Congress of his decision “as soon as practicable after the determination.” The bill also modified Section 334 of the Insurrection Act by giving the President authority to order the dispersal of either “insurgents” or “those obstructing the enforcement of the laws” and also changed the name from “The Insurrection Act” to “Enforcement of the Laws to Restore Public Order.”


HR 5122 was sent to the Senate where it was amended by Senators Patrick Leahy (D, VT) and Christopher “Kit” Bond (R, MO) to expand the power of the National Guard through their “National Guard Empowerment Act.” The amendment was based on the recommendations from several major reports to elevate the Chief of the National Guard Bureau to the rank of full 4-star general and to ensure that the Deputy Commander of the Northern Command would come from the ranks of the National Guard. (See summary.) This amendment passed the Senate and, since the House and Senate versions of HR 5122 were different, the bill was sent to a Conference Committee. (See How a Bill Becomes Law.)


The National Governor’s Association sent letters to the Senate and the House in opposition to the provisions providing the President with power to take over law enforcement in a state. They said, in part:


This provision is very open-ended without a definition of what constitutes a “serious” natural or manmade disaster. We understand that in case of a National Security incident where the state may have been incapacitated by an event, the President may need this power. However, he is granted this authority under the “insurrection act.”


The amendment failed to make it out of the Conference Committee. The final version of the National Defense Authorization Act of 2007 is essentially the same as the House version.


Senator Leahy had much to say about the final bill:


The National Guard Empowerment Act, which is designed to make it more likely for the National Guard to remain in State control, is dropped from this conference report in favor of provisions making it easier to usurp the Governors’ control and making it more likely that the President will take control of the Guard and the active military operating in the States.


The changes to the Insurrection Act will allow the President to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor. When the Insurrection Act is invoked posse comitatus does not apply. Using the military for law enforcement goes against one of the founding tenets of our democracy, and it is for that reason that the Insurrection Act has only been invoked on three – three – [occasions] in recent history. The implications of change [to] the Act are enormous . . .


* * *


Also, it seems the changes to the Insurrection Act have survived the Conference because the Pentagon and the White House want it. It is easy to see the attempts of the President and his advisors to avoid the debacle involving the National Guard after Hurricane Katrina, when Governor Blanco of Louisiana would not give control of the National Guard over to President and the federal chain of command. Governor Blanco rightfully insisted that she be closely consulted and remain largely in control of the military forces operating in the State during that emergency. This infuriated the White House, and now they are looking for some automatic triggers – natural disasters, terrorist attacks, or a disease epidemic – to avoid having to consult with the governors.


And there you have it – we are getting two horrible policy decisions out of this Conference because we are not willing to use our Constitutional powers to overcome leadership that ranges from the poor to the intemperate in the Pentagon and the White House. We cannot recognize the diverse ways that the Guard supports the Country, because the Department of Defense does not like it – simply does not like it.


Because of this rubberstamp Congress, these provisions of this conference report add up to the worst of all worlds. We fail the National Guard, which expects great things from us as much as we expect great things from them. And we fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty.


Thus, the President now has the capability of declaring martial law at any time he sees fit. President Bush signed the bill on October 17, 2006 and it became Public Law 109-364.


What are the implications? All the President needs to trigger this law is a “conspiracy” that “impedes the course of justice.” This could be an organized public protest that is told to “disperse” but doesn’t comply. He doesn’t need the governor's approval. He can simply federalize the National Guard (even from another state) to take control from the state and local governments. If the protestors are declared “enemy combatants” they can be “disappeared” since the right of habeas corpus was suspended under the Military Commissions Act.



© The Issue Wonk, 2006



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