Volume 76, Number 25 | November 8 - 14, 2006

Talking Point

On the ropes, Bush quietly moves toward martial law

By Frank Morales

In a stealth maneuver, President Bush has signed into law a provision that, according to Senator Patrick Leahy (D-Vermont), “will actually encourage the president to declare federal martial law.” 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 1807 Insurrection Act, along with the later 1878 Posse Comitatus Act, have over time helped to enforce strict prohibitions on military involvement in domestic law enforcement. Regrettably, with one swipe of his pen, Bush is seeking to undo those prohibitions and thereby usher in an era of domestic, military “martial law.”

The John Warner Defense Authorization Act of 2007, now Public Law 109-364, which was signed by the commander in chief on Oct. 17 in a private Oval Office ceremony, allows the president to declare a “public emergency” in order to “suppress, in any state, any insurrection, domestic violence, unlawful combination, or conspiracy,” and to station troops anywhere in America by taking control of state-based National Guard units. The key point is that he’s now allowed to do so without the consent of the governor or local authorities.

Section 1076, the “Use of the Armed Forces in Major Public Emergencies,” states that “the president may employ the armed forces, including the National Guard in federal service, to 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 domestic violence has occurred to such an extent that the constituted authorities of the state or possession are incapable of maintaining [or “unwilling to maintain,” the act later adds,] public order.”

The law also facilitates military-police roundups and detention of protesters, “illegal aliens” and other “undesirables” for detention in facilities already contracted for and under construction by Halliburton. That’s right! Under the cover of a trumped-up “immigration emergency” and the frenzied militarization of the southern border, detention camps are being constructed right under our noses, camps designed for anyone who resists the foreign and domestic agenda of the Bush administration.

The summer 2006 issue of the slick, insider Journal of Counterterrorism & Homeland Security International reported that global engineering and technical services powerhouse KBR [Kellogg, Brown & Root] announced in January 2006 that its government and infrastructure division was awarded a $385 million indefinite delivery/indefinite quantity (IDIQ) contract in order to establish “temporary detention and processing capabilities to augment existing ICE [Immigration and Customs Enforcement] Detention and Removal Operations (DRO)…in the event of an emergency influx of immigrants into the U.S., or to support the rapid development of new programs.” The report points out that “K.B.R. is the engineering and construction subsidiary of Halliburton.”

Make no mistake about it. The de-facto repeal of the Posse Comitatus Act is an ominous assault on American democratic tradition and jurisprudence. The 1878 Act, which reads, “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both,” is the only U.S. criminal statute that outlaws military operations directed against the American people under the cover of “law enforcement.” As such, it has been the best protection we’ve had against the power-hungry intentions of an unscrupulous and reckless executive, an executive intent on using force to enforce its will, and to do so through the implementation of “martial law” and the militarization of law enforcement.

Despite the unprecedented and shocking nature of this act, there has been no outcry in the American media and little reaction from our elected officials in Congress. In his Sept. 19 and 29 press statements, a lone senator, Vermont’s Patrick Leahy, noted that the 2007 Defense Authorization Act contained a “widely opposed provision to allow the president more control over the National Guard…[adopting] changes to the Insurrection Act, which will make it easier for this or any future president to use the military to restore domestic order WITHOUT [his emphasis] the consent of the nation’s governors.

“We certainly do not need to make it easier for presidents to declare martial law,” he said. “Invoking the Insurrection Act and using the military for law-enforcement activities goes against some of the central tenets of our democracy…. One can easily envision governors and mayors in charge of an emergency having to constantly look over their shoulders while someone who has never visited their communities gives the orders.

“The implications of changing the [Posse Comitatus] Act are enormous,” Leahy went on. “There is good reason for the constructive friction in existing law when it comes to martial law declarations…. 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.”

It has become clear in recent months that a critical mass of the American people have seen through the lies of the Bush presidency. With Bush’s popularity at an all-time low, the growing resistance to the war in Iraq and a possible shift in the Congress, it is apparent that the Bush administration is on the ropes. And so it is particularly worrying — though maybe, in some respects, predictable — that Bush has seen fit, at this juncture, to in effect, declare himself dictator.

Morales is associate pastor at St. Mark’s Church in the Bowery; he writes extensively on police-state matters.


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