If you haven't read about it, you should be made aware that the government you voted into office is doing something scary. Very scary.
Essentially, President George Bush signed a bill which grants him power to declare martial law if there is public disorder. Oh yeah, and he's the one who gets to define "public disorder". Yay.
Here's an article from the San Francisco Independent Media Center:
In a stealth maneuver, President Bush has signed into law a provision which, according to Senator Patrick Leahy (D-Vermont), will actually encourage the President to declare federal martial law (1). 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 Insurrection Act (10 U.S.C.331 -335) has historically, along with the Posse Comitatus Act (18 U.S.C.1385), helped to enforce strict prohibitions on military involvement in domestic law enforcement. With one cloaked swipe of his pen, Bush is seeking to undo those prohibitions.
Click here to read the rest of the article
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9 Comments:
Actually, the same set of conditions must be met as needed to be met in the original statute, as worded when it was penned nearly two centuries ago in 1807. The original statute had the same provisions for loss of public order, and the same conditions needed to be met, word for word. The only new thing in the revised statute is that, while the same set of specific conditions still need to be met as did for the last 200 years, any circumstance can now bring rise to those conditions, whereas before it was just "insurrection" or "rebellion". Well, if you're concerned about protest, demonstrations, riots, or even revolt, the Insurrection Act of 1807 could have been used against those situations, as-is, since the exact same conditions would need to be met that are in the current statute's wording, if that's what you're concerned about.
And if you're concerned that the President would just break the law anyway, then why are we even concerned with the wording of any law, anyway?
Here's something that I wrote up earlier that exactly describes the situation. I also edited the entry for this act at wikipedia and created a table that shows the exact differences:
http://en.wikipedia.org/wiki/Insurrection_Act#Comparison_of_differences
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Given the process required for a bill to become law and the fact that the changes were passed by a bipartisan majority of both houses of Congress (94-0 in the Senate, and 398-23 in the House), I thought some of you may be interested to know about the actual 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:
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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.
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And here is the new text:
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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.
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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?)
Just because there is now "or other condition" wording in the revised statute does NOT mean they can just arbitrarily decide there is an "other condition" and deploy the military or national guard. The condition still MUST meet the guidelines above; it's just that now it's not an "insurrection" that also meets those conditions, it's any event that meets those conditions. But the conditions themselves are specific, and are actually carefully worded to guarantee Constitutional protections.
Regards,
Dave Schroeder
University of Wisconsin - Madison
das@doit.wisc.edu
http://das.doit.wisc.edu/
Dave,
What you wrote in your first paragraph is exactly what concerns me. "...any circumstance can now bring rise to those conditions..."
In other words, he can institute martial law if he decides that the protesters against the policies of the World Bank are not to his liking. If he were President in 1968 in Chicago, he might have declared martial law.
I believe that we need the opposite. I believe we need a President who would stand up for the protesters and give them a wider birth, as well as clean water and medical aid. Protesting is what got us our own country. It should be revered. Instead, the new wording brings us closer to what Stalin had for himself: The ability to declare anyone an enemy of the people.
Stu,
But my point is that the Insurrection Act could have been used *as-is* against "protesters", for the last 200 years, if the President considers it to be "insurrection, domestic violence, unlawful combination, or conspiracy". So the changes to the Insurrection Act actually have no effect on things of that ilk. What is now *added* is the additional ability to respond to "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition" IF "domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order" that ALSO meets the identical conditions required by the original act.
So from that perspective, it could be argued that, if anything, the original act was designed to quash rebellion, dissent, protest, and revolt - because, as worded, that's exactly how it could have been used since 1807 - while the new wording allows it to be used in situations that we might actually want it to be used in, i.e., legitimate public emergencies, not cases of opposition to or rebellion against the government.
- Dave
Thanks, I understand a little better now. But what do you say to the people who say that this latest law circumvents the Posse Comitatus Act?
I just want to clarify what I said a bit more:
The revised law can still be used in situations of "insurrection, domestic violence, unlawful combination, or conspiracy", which was the language that was in the original law. I'm sure you'll agree that those could be interpreted to be almost any form of protest or dissent.
So, in my view, no new capabilities with respect to, e.g., protest, are granted in the reworded law. Also, remember, in order to be used in combination with "insurrection, domestic violence, unlawful combination, or conspiracy", the following MUST also be met, and has been true since 1807:
The condition:
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(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.
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And for the new part, which allows it to also be used in the case of "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition", the same requirements above, PLUS:
(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order
must also be true.
So remember, if some President doesn't like, say, the WTO protesters, the old Insurrection Act of 1807 could have been used anyway as-is, but in ANY event, the State MUST have lost all control of ability to maintain public order, enforce laws, and uphold constitutional guarantees.
With regard to protesters being given "clean water" and "medical aid", in the context of peaceful and non-violent and non-disruptive protest, I'd agree. You might think, gee, that's a lot of conditions...but if a protest is, say, disrupting official activities or business, I'm sorry, but at a certain point, it must either be removed from the locale or otherwise silenced. If any and all forms of protest are always allowed, including protest that disrupts or stops official activities, and/or violates the law, then what is the use of any system of rule of law in a civilized society at all? When someone chooses to protest - or violently protest, or even revolt - they are doing so with the knowledge that there may be consequences. All activities, including simple speech, have consequences. That's because in a system of "rights" also comes "responsibilities". Note that in this paragraph I'm NOT implying that speech should be stifled or protest outlawed, in any way, shape, or form. What I am saying is that at some level, the government can stop things that interfere with other lawful activities (such as a WTO conference the US government is hosting), and I'm not even talking about this in the context of the Insurrection Act. If the protesters still wish to make their point, they need to be aware that there could be negative consequences. If there ever comes a time where a rebellion or revolution has enough power to, say, overthrow the government, then the whole discussion of what is or isn't legal becomes moot.
- Dave
With regard to Posse Comitatus, I'd say this:
"The original Insurrection Act has stood tempered by Posse Comitatus since 1807. Even the original wording of the Insurrection Act, if invoked, would, on its face, appear to violate Posse Comitatus; however, the principle of Posse Comitatus restricts application of the act except in the most dire of situations. Since the original wording allowed for the use of the national armed forces or the State national guard in federal service in the event of an insurrection or rebellion when public order has been lost, it could be argued that such use in similarly dire circumstances as a result of a major public emergency, such as a natural disaster, epidemic, or terrorist attack is actually more appropriate use than, for example, quelling what some might see as a legitimate rebellion against the government. Additionally, Posse Comitatus also allows an explicit exception for use of military forces in domestic conditions when allowed by "Act of Congress". The Insurrection Act, as originally and currently worded, falls into that category."
(I posted this in the wikipedia article in the "Rebuttal to criticism" section.)
In other words, if the reworded statute somehow violates Posse Comitatus, then so did the original statute. But Posse Comitatus explicitly allows domestic military deployments when allowed by an "Act of Congress", which the Insurrection Act, both original and reworded, obviously is. The spirit of Posse Comitatus is what tempered the original Insurrection Act, and that's the same spirit that would temper use of the act as it has been reworded.
- Dave
Thanks for your thoughtful replies. I'm not a juris doctor, nor do I play one on tv. Your words are edifying and appreciated.
Yeah, I see what you are saying. I guess I'm just not as trusting. If a President would enter us into a war under dubious circumstances, why would that same President hesitate to use the Warner Act in a dubious manner? Maybe he wouldn't, but I like my laws to be an airtight protector of the citizenry.
"but in ANY event, the State MUST have lost all control of ability to maintain public order, enforce laws, and uphold constitutional guarantees."
What happens in an instance where the state and the fed disagree upon whether or not "control" has been lost? For instance, in California medical marijuana use was approved by the electorate, but the fed continues to prosecute in defiance of the 10th ammendment.
(At least, as I read the 10th ammendment. Some folk's mileage varies on that.)
Now, I'm not expecting outright insurrection because of pot, but certainly there are circumstances imaginable wherein a state may feel that it is in control while the fed believes otherwise. Does this change the dynamic of such a situation?
Suldog,
That's a very good point, and probably in part why people are concerned about this. Before, the state had to be out of control, and it had to fall under that old wording of "insurrection, domestic violence, unlawful combination, or conspiracy."
Now, it could potentially be almost anything that still meets the criteria laid out, the wording of which I think it pretty important, and bears repeating:
The condition "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 opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws," AND "domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order."
Now, what I'd say is that any law is open to interpretation, and there may indeed be times where the state may feel it hasn't "lost control" and the federal government does. But the bar is, in my opinion, so high, and the way it's worded makes me doubt highly that it would ever be arbitrarily invoked to, say, do things like enforce drug laws, but rather would be used in cases of major emergencies. Consider also that a state may not "feel" it's lost control when it actually has, but still wants to keep authority for reasons of saving political face, ego, or what have you. The purpose of the Insurrection Act is to take that authority from the state give that authority to the federal government if the federal government determines that the situation meets those guidelines.
Now, if we're concerned about a particular administration REALLY broadly interpreting something and/or not following the law anyway, the actual wording of the law is moot, isn't it?
- Dave
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