Revolutionizing the world, one "I agree" at a time
Saturday, October 28, 2006
Mark Dixon, 9:03 PM:
Changes to the Insurrection Act re martial law
I've always liked Sen. Patrick Leahy (D-Vermont). I was reading remarks he made recently about the John Warner National Defense Authorization Act of 2007 (HR5122, you can find it on Thomas - choose the "enrolled" version agreed to by the House and Senate) and discovered that it does indeed, as Leahy says, modify the Insurrection Act of 1807 (10 USC 333, you can find it on Findlaw). I would include links but unfortunately both Thomas and Findlaw seem to "time out" their search links such that you can't go back to them later. Dammit. And govtrack.us seems to be down.
Leahy says the law "includes language that subverts solid, longstanding posse comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the President to declare martial law," and "adopts some incredible changes to the Insurrection Act, which would give the President more authority to declare martial law ... making it easier to usurp the Governor's control."
The changes to the Insurrection Act, Leahy said, "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." It includes "automatic triggers — natural disasters, terrorist attacks, or a disease epidemic — to avoid having to consult with the governors."
I compared the language amending 10 USC 333 in section 1076 of HR5122 ("Use of armed forces in major public emergencies") to the existing 10 USC 333 and found what Leahy is talking about. The Insurrection Act was designed to give the president the authority to use federal troops in the event of rebellion, insurgency or revolution. HR 5122 adds all kinds of other situations where the White House can send in federal troops including "a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident." It also changes "insurgents" to "insurgents or those obstructing the enforcement of the laws," giving it a much broader (and, I'm sure Leahy would agree, unintended) scope.
Leahy's remarks are at http://leahy.senate.gov/press/200609/092906b.html
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Thanks for the info. Perhaps these links, at the bottom, may be of interest: Ref
There is a solution: A sitting President may be lawfully prosecuted by the states. Here's how: Ref.
Feel free to spread the word: There are legal options to lawfully this abuse of power and illegal conduct. Good luck.
There is a solution: A sitting President may be lawfully prosecuted by the states. Here's how: Ref.
Feel free to spread the word: There are legal options to lawfully this abuse of power and illegal conduct. Good luck.
You may be interested to know about the 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?)
I suppose this wouldn't be very interesting to blog about, though.
Regards,
Dave Schroeder
University of Wisconsin - Madison
das@doit.wisc.edu
http://das.doit.wisc.edu/
(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?)
I suppose this wouldn't be very interesting to blog about, though.
Regards,
Dave Schroeder
University of Wisconsin - Madison
das@doit.wisc.edu
http://das.doit.wisc.edu/
# posted by 
: 10:16 AM
: 10:16 AM
You're correct, Dave, but I consider that a significant change, especially when viewed as part of a continuous campaign by the Bush administration to radically extend the power of the executive. I note that you're studying intelligence at the American Military University, which may mean you are more comfortable with the use of military force to achieve political ends than am I.
You're right Dave:
"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."
The key is that now the president can use the military during any "incident or other condition" that satisfies the other conditions you outlined. Why word it so broadly if it was merely a response to Hurricane Katrina? Indeed, why revise it at all if the original word "insurrection" could be defined very broadly as you suggest?
The answer to both questions is obvious, this administration uses (abuses) every single opportunity it gets to expand Executive authority as far as it possibly can, and the Republican controlled congress is facilitating it. I don't know what happened to the days when the Republicans were true conservatives that believed in a limited government.
Finally, who cares if the president has to notify congress when he exercises this power. He still has ultimate authority to "determine" whether a "condition" warrants sending in the military. We may as well be living in a complete and total dictatorship.
"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."
The key is that now the president can use the military during any "incident or other condition" that satisfies the other conditions you outlined. Why word it so broadly if it was merely a response to Hurricane Katrina? Indeed, why revise it at all if the original word "insurrection" could be defined very broadly as you suggest?
The answer to both questions is obvious, this administration uses (abuses) every single opportunity it gets to expand Executive authority as far as it possibly can, and the Republican controlled congress is facilitating it. I don't know what happened to the days when the Republicans were true conservatives that believed in a limited government.
Finally, who cares if the president has to notify congress when he exercises this power. He still has ultimate authority to "determine" whether a "condition" warrants sending in the military. We may as well be living in a complete and total dictatorship.
# posted by : 11:41 PM
: 11:41 PM<< Home
