Bush and Martial Law

Right after Katrina I wrote a series of posts at the old Revolution blog that accused the Bush Administration of using the hurricane’s devastation and New Orleans’ desperate plight to try to lever the power to declare martial law away from Louisiana’s governor and give it to the White House in defiance of the law.

There was some evidence to suggest that FEMA was ordered to hold up the relief that was waiting in trucks and on ships so the administration could use it as a bargaining chip to force Gov Blanco to give away that power. She refused and Louisiana paid the price, sort of: FEMA slowed its relief efforts – which had been blazing fast in Jeb Bush’s hurricane-hit Florida the year before – down to a crawl.

Of course, in the end that snail-like response gave Bush a huge black eye and FEMA a horrendous reputation from which it has yet to recover, but that was small consolation to the tens of thousands left homeless, hustled off to other states, or abandoned altogether by a govt that has still shown no particular interest in their fate.

But though Blanco stymied that effort, Bush didn’t give up. Last October, while I was still offline, he got what he wanted from the Congress.

A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.

The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.

The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

In other words, the president can now declare martial law virtually anywhere in the US for the skimpiest of reasons, precisely what he was trying to get Blanco to agree to. He wanted a precedent to hang his hat on and didn’t get it – if Blanco had agreed, these provisions might not have been necessary.

Well, the rubber-stamp Pub Congress gave it to him anyway without bothering to ask the governors or hold hearings or even announce the change publicly. They passed it in secret “in the dead of night” to make sure there wasn’t any dissension or discussion because they would have been nailed to the wall if people had known what they were doing. The governors would have made sure of that.

Fortunately, that’s not the end of the story.

There is a bipartisan bill, introduced by Senators Patrick Leahy, Democrat of Vermont, and Christopher Bond, Republican of Missouri, and backed unanimously by the nation’s governors, that would repeal the stealthy revisions. Congress should pass it. If changes of this kind are proposed in the future, they must get a full and open debate.

If changes of this kind are proposed in the future, they ought to be slapped down with a blunt instrument.

Of course, the Bushies have shown very little respect for any law they don’t care for, and Bush’s Atty Gen, Alberto the Magnificent, has proven to be a whiz at “re-interpreting” laws in a way that makes it sound as if they mean the opposite of what they say, so even if the Leahy/Bond bill passes, the Bushies may find a way to ignore it.

More frightening is the prospect that they may hurry up and use the power before it’s taken away from them.

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