The Martial Law Act of 2007

Congress rubberstamped martial law.

The American Conservative posted online my article on how Congress rolled out the red carpet for martial law.  This piece vivifies how neither party in Washington  gives a darn about the risks of dictatorship in America.

American Conservative   April 23, 2007

Working for the Clampdown

What might the president do with his new power to declare martial law?

by James Bovard

How many pipe bombs might it take to end American democracy? Far fewer than it would have taken a year ago.

The Defense Authorization Act of 2006, passed on Sept. 30, empowers President George W. Bush to impose martial law in the event of a terrorist “incident,” if he or other federal officials perceive a shortfall of “public order,” or even in response to antiwar protests that get unruly as a result of government provocations.

The media and most of Capitol Hill ignored or cheered on this grant of nearly boundless power. But now that the president’s arsenal of authority is swollen and consecrated, a few voices of complaint are being heard. Even the New York Times recently condemned the new law for “making martial law easier.”

It only took 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 these restrictions, imposing a two-year prison sentence on anyone who used the military within the U.S. without the express permission of Congress. But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act.

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 to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition”—and such “condition” is not defined or limited.

These new pretexts are even more expansive than they appear. FEMA proclaims the equivalent of a natural disaster when bad snowstorms occur, and Congress routinely proclaims a natural disaster (and awards more farm subsidies) when there is a shortfall of rain in states with upcoming elections. A terrorist “incident” could be something as stupid as the flashing toys scattered around Boston last fall.

The new law also empowers the president to commandeer the National Guard of one state to send to another state for up to 365 days. Bush could send the Alabama National Guard to suppress antiwar protests in Boston. Or the next president could send the New York National Guard to disarm the residents of Mississippi if they resisted a federal law that prohibited private ownership of semiautomatic weapons. Governors’ control of the National Guard can be trumped with a simple presidential declaration.

The story of how Section 1076 became law vivifies how expanding government power is almost always the correct answer in Washington. Some people have claimed the provision was slipped into the bill in the middle of the night. In reality, the administration clearly signaled its intent and almost no one in the media or Congress tried to stop it.

The Katrina debacle seems to have drowned Washington’s resistance to military rule. Bush declared, “I want there to be a robust discussion about the best way for the federal government, in certain extreme circumstances, to be able to rally assets for the good of the people.” His initial proposal generated a smattering of criticism and no groundswell of support. There was no “robust discussion.” On Aug. 29, 2006, the administration upped the ante, labeling the breached levees “the equivalent of a weapon of mass effect being used on the city of New Orleans.” Nobody ever defined a “weapon of mass effect,” but the term wasn’t challenged.

Section 1076 was supported by both conservatives and liberals. Sen. Carl Levin (D-Mich.), the ranking Democratic member on the Senate Armed Services Committee, co-wrote the provision along with committee chairman Sen. John Warner (R-Va.). Sen. Ted Kennedy openly endorsed it, and Rep. Duncan Hunter (R-Calif.), then-chairman of the House Armed Services Committee, was an avid proponent.

Every governor in the country opposed the changes, and the National Governors Association repeatedly and loudly objected. Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, warned on Sept. 19 that “we certainly do not need to make it easier for Presidents to declare martial law,” but his alarm got no response. Ten days later, he commented in the Congressional Record: “Using the military for law enforcement goes against one of the founding tenets of our democracy.” Leahy further condemned the process, declaring that it “was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.”

Congressional Quarterly’s Jeff Stein wrote an excellent article in December on how the provision became law with minimal examination or controversy. A Republican Senate aide blamed the governors for failing to raise more fuss: “My understanding is that they sent form letters to offices. If they really want a piece of legislation considered they should have called offices and pushed the matter. No office can handle the amount of form letters that come in each day.”

Thus, the Senate was not guilty by reason of form letters. Plus, the issue was not on the front page of the Washington Post within the 48 hours before the Senate voted on it. Surely no reasonable person can expect senators to know what they were doing when they voted 100 to 0 in favor of the bill? In reality, they were too busy to notice the latest coffin nails they hammered into the Constitution.

This expansion of presidential prerogative illustrates how every federal failure redounds to the benefit of leviathan. FEMA was greatly expanded during the Clinton years for crises like the New Orleans flood. It, along with local and state agencies, floundered. Yet the federal belly flop on the Gulf Coast somehow anointed the president to send in troops where he sees fit.

“Martial law” is a euphemism for military dictatorship. When foreign democracies are overthrown and a junta establishes martial law, Americans usually recognize that a fundamental change has occurred. Perhaps some conservatives believe that the only change when martial law is declared is that people are no longer read their Miranda rights when they are locked away. “Martial law” means obey soldiers’ commands or be shot. The abuses of military rule in southern states during Reconstruction were legendary, but they have been swept under the historical rug.

Section 1076 is Enabling Act-type legislation—something that purports to preserve law-and-order while formally empowering the president to rule by decree. The Bush team is rarely remiss in stretching power beyond reasonable bounds. Bush talks as if any constraint on his war-making prerogative or budget is “aiding and abetting the enemy.” Can such a man be trusted to reasonably define insurrection or disorder? Can Hillary Clinton?

Bush can commandeer a state’s National Guard any time he declares a “state has refused to enforce applicable laws.” Does this refer to the laws as they are commonly understood—or the laws after Bush fixes them with a signing statement?

Some will consider concern about Bush or future presidents exploiting martial law to be alarmist. This is the same reflex many people have had to each administration proposal or power grab from the Patriot Act in October 2001 to the president’s enemy-combatant decree in November 2001 to the setting up the Guantanamo prison in early 2002 to the doctrine of preemptive war. The administration has perennially denied that its new powers pose any threat even after the evidence of abuses—illegal wiretapping, torture, a global network of secret prisons, Iraq in ruins—becomes overwhelming. If the administration does not hesitate to trample the First Amendment with “free speech zones,” why expect it to be diffident about powers that could stifle protests en masse?

On Feb. 24, the White House conducted a highly publicized drill to test responses to IEDs going off simultaneously in ten American cities. The White House has not disclosed the details of how the feds will respond, but it would be out of character for this president to let new powers he sought to gather dust. There is nothing more to prevent a president from declaring martial law on a pretext than there is to prevent him from launching a war on the basis of manufactured intelligence. And when the lies become exposed years later, it could be far too late to resurrect lost liberties.

Senators Leahy and Kit Bond (R-Mo.) are sponsoring a bill to repeal the changes, but it is not setting the woods on fire on Capitol Hill. Leahy urged his colleagues to consider the Section 1076 fix, declaring, “It is difficult to see how any Senator could disagree with the advisability of having a more transparent and thoughtful approach to this sensitive issue.”

He deserves credit for fighting hard on this issue, but there is little reason to expect most members of Congress to give it a second look. The Section 1076 debacle exemplifies how the Washington establishment pretends that new power will not be abused, regardless of how much existing power has been mishandled. Why worry about martial law when there is pork to be harvested and photo ops to attend? It is still unfashionable in Washington to worry about the danger of the open barn door until after the horse is two miles down the road


James Bovard is the author of Attention Deficit Democracy and eight other books.


Note:  The printed version of this article had an incorrect number for the section of the statute which changed the law (based on an earlier version of the Defense Authorization bill).  This online version corrects that error.


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21 Responses to The Martial Law Act of 2007

  1. Lawhobbit April 23, 2007 at 6:25 pm #

    Dibs on the cell with Jim!

  2. Jim April 23, 2007 at 7:33 pm #

    Hey, I always wanted to have in-house counsel.

  3. Original Steve April 24, 2007 at 4:55 am #

    Looking fwd to it, Jim. Sounds like the idea they had for cancelling the 2004 elections. Anyone remember that one?

  4. Mace Price April 24, 2007 at 6:55 am #

    …Coming events cast their shadows beforehand

  5. Don Bangert April 24, 2007 at 10:41 am #

    I made similar observations after hurricanes Katrina and Rita. See this post, Posse Comitatus is changing to Posse Come-and-Get-US?, for more…

    BTW, Jim, excellent post!

  6. Dirk W. Sabin April 24, 2007 at 10:53 am #

    That we must rely upon Senator Leahy, a Democrat… to question or militate against government over-reach is but one of the fine bits of dark comic irony surrounding this age of the “Big Government Conservative”.

    The permanently post-pubescent Cumandor in Cheef and Bedtime Naploneon continues to prosecute the modern world’s most florid display of the Peter Principle and yet the feckless public continues to think it’ll all blow over and things will “get back to normal”.

    Well, things aint been “normal” for some time now and normalcy aint gonna emerge out of Washington or Hollywood or the Editorial Offices of the Post and the Times . Where it is going to originate is with the individual when they are surrounded by the scenic mayhem cruise our branches of government seem so intent on dead reckoning into. Unfortunately, with laws like this, the reckoning will more than likely be too late and accompanied by the background drumbeat of truncheons thumping on skulls.

    I am reminded of a short and revealing interlude in one of Michael Moore’s films during which a member of Congress is reviewing the enormous amount of legislation they are resposible for producing. Mr. Moore chides the Congressman for not reading the sections of a recently enacted law that seemed counter to American principles. Unsurprisingly, in a stentorian and haughty manner, the Congressman replied that they cannot possibly be expected to read ALL the laws they are expected to vote upon….I mean really, just think of it, actually read all the contents of laws they are voting upon.

    Well, after the current Bozo Carnage Carnival has had it’s way with us, perhaps the second law we should enact will be a requirement that members of Congress must read all the laws they vote on and then produce a single page, double-spaced simple summary of them prior to voting. The first law? This one’s simple, Congress members will serve on a part time basis again and the legislative sessions will consist of two 30 day periods, in August and January when the climate of the Federal District is about as loathsome as any on earth. This should self-enforce a kind of brevity and efficiency we have not seen since Jackson trounced the Imperial Brits in New Orleans.

    The public thinks government must be big and centralized in this “complex and fast-moving time”. Citizenship is reduced to a spectator sport. It would appear that the spectators are getting the pistol-whipping they so robustly deserve. Nothing so deserves tyranny like gullible spectators of a Bread and Circus Authoritarian Regime.

  7. klyde April 24, 2007 at 10:55 am #

    They aren’t building a massive gulag in Cuba for nothing folks.
    An aside, Briton locks up dissidents (alleged terrorist) under it’s anti-terror act. Everyone thinks the anti-terror act was passed in response to 9-11. The anti-terror act was passed in 2000 prior to 9-11, it was strengthened after 9-11 and again after 7-7-05. But they had the original law in place and ready for 9-11. Just as we have the patriot act and now this law in place for the next big attack.

  8. Rumspringa April 24, 2007 at 12:30 pm #

    The Antifederalist Papers No. 29
    Objections to National Control of the Militia

    the absolute command of Congress over
    the militia may be destructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing their liberty and independency. But in so doing, although the magnanimity of their minds will be extinguished, yet the meaner passions of resentment and revenge will be increased, and these in turn will be the ready and obedient instruments of despotism to enslave the others; and that with an irritated vengeance. Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow-citizens, and on one another. This power can be exercised not only without violating the Constitution, but in strict conformity with it; it is calculated for this express purpose, and will doubtless be executed accordingly.

    As this government will not enjoy the confidence of the people, but be executed by force, it will be a very expensive and burdensome government. The standing army must be numerous, and as a further support, it wilt be the policy of this government to multiply officers in every department; judges, collectors, tax-gatherers, excisemen and the whole host of revenue officers, will swarm over the land, devouring the hard earnings of the industrious like the locusts of old, impoverishing and desolating all before them. . . .

  9. Bob Bogus April 24, 2007 at 12:33 pm #

    We are all terrorists now. They hate us for our freedoms, or at least the freedoms we used to have.

  10. Alpowolf April 24, 2007 at 4:43 pm #

    Hillary must be beside herself with delight. No doubt she is already making plans for the use of this wonderful power.

    Assuming, of course, that we ever have elections again. Given how pointless elections have become I’m not sure we’d notice the difference.

  11. Jim April 24, 2007 at 5:07 pm #

    OK, well, apparently, I have once again failed to rev up the idealism of folks who read this blog.

  12. Lawhobbit April 24, 2007 at 6:29 pm #

    Ummmm….Jim, in response to your remark about “having in-house counsel,” that wasn’t in the biblical sense of the word “have,” right? Maybe I want dibs on the cell next door… 🙂

  13. Jim April 24, 2007 at 6:58 pm #

    Such an interpretation of the term never occurred to me.

    On the other hand, I haven’t practiced law for years and years and years.

    Besides, I was raised Presbyterian, and, happily, they interpret the Bible more narrowly than many other denominations.

  14. charlie ehlen April 25, 2007 at 12:23 am #

    Holy crap!
    I would not trust ME with this type of legislation. And I love freedom and the Constitution and the Bill of Rights.
    This sort of “law” should only happen in the worst nightmares of any freedom loving being, human or otherwise.
    The old saying about power corrupting comes immediatly to mind here.
    As to Hi-Larry rubbing her hands with glee at being able to use this new law, I have no doubts. I would be even more put off about Shrub/Cheney using it to stay “in office” long after November 2008.
    As to our poor dear Congress critters not having time to read all the laws they are to vote ob. What the hell do we pay them for? To take all expenses paid vacations around the world? To live in relative luxury while the Gulf coast is still working our asses off to recover from two big storms in less than one month?
    Maybe it IS time for a new American revolution.
    I agree with the “new” rules to be applied to future Congress critters as put forth by some of the folks who have replied here to this article.
    My LAtin is way rusty, but I think it goes Sic Semper Tyranus or some such.
    Correct my poor Latin if need be.
    Some other one mentioned not letting the bastards grind us down, but I have long forgotten that one.
    semper fi,

  15. Ross April 25, 2007 at 2:10 am #

    And who better to head Martial Law Amerika than Robert Reich?

  16. pete April 25, 2007 at 7:47 am #

    Since reading your LOST RIGHTS a couple of years ago, I’m waiting to see what’s going to happen. Same with Bill Blum’s KILLING HOPE and all the other books of the coming Apocalypse.
    Jim, I agree totally with what you say, but you and all the other guys can’t raise people from the dead. I mean there are approximately 535 corpses on Capitol Hill – they are all morally dead.
    We need to call a Constitutional Convention in Independence Hall and write a new Constitution – the old one is dead and buried under a Bush.

  17. Sean April 25, 2007 at 11:00 am #

    “We need to call a Constitutional Convention in Independence Hall and write a new Constitution.”

    They’ll declare it an insurrection and shoot/imprison everyone present.

    Stalin is laughing from the grave, the era of the American Gulag has begun.

  18. Marc Swanson April 25, 2007 at 12:50 pm #

    I’m sensing that the public is at least becoming restless, perhaps more over mounting war costs rather than loss of freedom. Most don’t have a clue how grave the problems are or how to deal with them. Elections cycles and the resulting superficial changes in Washington act like placebos and tranquilizers administered to a patient requiring major lifesaving surgery.

  19. Patrick Henry May 2, 2007 at 1:08 pm #

    Bush and Cheney need to be impeached and prosecuted for their war crimes and treason.


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