Saturday, November 11, 2006

Martial Law Empowered by Bush and Congress - H.R. 5122ENR

John Warner National Defense Authorization Act for Fiscal Year 2007
(Enrolled as Agreed to or Passed by Both House and Senate) [H.R.5122.ENR]
Became Public Law No: 109-364 [GPO: Text, PDF]

According to "Bush Moves Toward Martial Law," by Frank Morales, Toward Freedom, 26 October 2006: http://towardfreedom.com/home/content/view/911:
"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. 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."

Wikipedia entries on Posse Comitatus and the Insurrection Act give helpful perspective, e.g.:
On June 22, 2006, the Congress modified the Insurrection Act as part of the 2007 Defense Appropriations Bill. Section 1076 of the new law changes Sec. 333 of the "Insurrection Act," and widens the President's ability to deploy troops within the United States to enforce the laws. Under this act, the President may also deploy troops as a police force during a natural disaster, epidemic, serious public health emergency, terrorist attack, or other condition, when the President determines that the authorities of the state are incapable of maintaining public order. The bill also modified Sec. 334 of the Insurrection Act, giving the President authority to order the dispersal of either insurgents or "those obstructing the enforcement of the laws."
The new law changed the name of the chapter from "Insurrection" to "Enforcement of the Laws to Restore Public Order."
Some see the new changes as a movement towards martial law, because the circumstances under which the President may declare martial law are now so broad that nearly anything could be interpreted to justify it. They feel that Bush wants these powers, because of growing public opposition to his administration.There's a lot of information at finger2006.com, and here are some other relevant references. The first one covers matters of action to repeals this nightmare.

Here is the exact wording of that new law, i.e., Section 1076 of HR 5122. It is cause for concern.
SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(a) Use of the Armed Forces Authorized-
(1) IN GENERAL- Section 333 of title 10, United States Code, is amended to read as follows:
`Sec. 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 that authority.'.
(2) PROCLAMATION TO DISPERSE- Section 334 of such title is amended by inserting `or those obstructing the enforcement of the laws' after `insurgents'.
(3) HEADING AMENDMENT- The heading of chapter 15 of such title is amended to read as follows:
`CHAPTER 15--ENFORCEMENT OF THE LAWS TO RESTORE PUBLIC ORDER'.
(4) CLERICAL AMENDMENTS- (A) The tables of chapters at the beginning of subtitle A of title 10, United States Code, and at the beginning of part I of such subtitle, are each amended by striking the item relating to chapter 15 and inserting the following new item:
'Enforcement of the Laws to Restore Public Order 331'.
(B) The table of sections at the beginning of chapter 15 of such title is amended by striking the item relating to sections 333 and inserting the following new item:
`333. Major public emergencies; interference with State and Federal law.'.
(b) Provision of Supplies, Services, and Equipment-
(1) IN GENERAL- Chapter 152 of such title is amended by adding at the end the following new section:
`Sec. 2567. Supplies, services, and equipment: provision in major public emergencies
`(a) Provision Authorized- In any situation in which the President determines to exercise the authority in section 333(a)(1)(A) of this title, the President may direct the Secretary of Defense to provide supplies, services, and equipment to persons affected by the situation.
`(b) Covered Supplies, Services, and Equipment- The supplies, services, and equipment provided under this section may include food, water, utilities, bedding, transportation, tentage, search and rescue, medical care, minor repairs, the removal of debris, and other assistance necessary for the immediate preservation of life and property.
`(c) Limitations- (1) Supplies, services, and equipment may be provided under this section--
`(A) only to the extent that the constituted authorities of the State or possession concerned are unable to provide such supplies, services, and equipment, as the case may be; and
`(B) only until such authorities, or other departments or agencies of the United States charged with the provision of such supplies, services, and equipment, are able to provide such supplies, services, and equipment.
`(2) The Secretary may provide supplies, services, and equipment under this section only to the extent that the Secretary determines that doing so will not interfere with military preparedness or ongoing military operations or functions.
`(d) Inapplicability of Certain Authorities- The provision of supplies, services, or equipment under this section shall not be subject to the provisions of section 403(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b(c)).'.
(2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by adding at the end the following new item:
`2567. Supplies, services, and equipment: provision in major public emergencies'.
(c) Conforming Amendment- Section 12304(c)(1) of such title is amended by striking `No unit' and all that follows through `subsection (b),' and inserting `Except to perform any of the functions authorized by chapter 15 or section 12406 of this title or by subsection (b), no unit or member of a reserve component may be ordered to active duty under this section'.

Here are relevant references. The first one covers matters of action to repeals this nightmare.
-"Martial law, Section 1076, and Finger: v1029.2" by Major Danby, October 29, 2006: http://www.dailykos.com/storyonly/2006/10/29/162837/62
-"Bush Guts Posse Comitatus, Grabs National Guard" by Major Danby, Wed Oct 18, 2006 at 06:10:33 PM PDT http://www.dailykos.com/storyonly/2006/10/18/211033/23
-"The Use of Federal Troops for Disaster Assistance: Legal Issues," by Jennifer K. Elsea, Legislative Attorney, Congressional Research Service Report for Congress, August 14, 2006
-"Recent Contract Awards", Journal of Counterterrorism & Homeland Security International, Summer 2006, Vol.12, No.2, pg.8;
-"Homeland Security Contracts for Vast New Detention Camps," by Peter Dale Scott, New American Media, January 31, 2006.
-"Hill's National Guard Advocates Hold News Conference To Protest DOD Bill's Proposed Decisions On National Guard," by Senator Patrick Leahy, leahy.senate.gov, Sept. 19, 2006: http://leahy.senate.gov/press/200609/091906a.html
-"Remarks Of Sen. Patrick Leahy National Defense Authorization Act For Fiscal Year 2007 Conference Report," Senator Patrick Leahy, Congressional Record, Sept 29, 2006
http://leahy.senate.gov/press/200609/092906b.html
-See Section 1076, "Use of the Armed Forces in Major Public Emergencies," of HR.5122: http://www.govtrack.us/congress/billtext.xpd?bill=h109-5122 search for "HR.5122.ENR" at thomas.loc.gov


Remarks Of U.S. SENATOR PATRICK LEAHY (Vermont)
National Defense Authorization Act For Fiscal Year 2007
Conference Report - Congressional Record - September 29, 2006
Contact: Office of Senator Leahy, 202-224-4242
Mr. President, I rise to express my grave reservations about certain provisions of the Fiscal Year 2007 Defense Authorization Bill Conference Report. This legislation poorly handles key provisions related to the National Guard, ... longstanding posse comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the President to declare martial law. There is good reason for the constructive friction in existing law when it comes to martial law declarations.
Combined, these moves amount to a double punch against the National Guard. The National Guard has done so much to protect the security and safety of our country. Yet the Authorization Bill sends the signal that we are not interested in truly supporting them.
The Guard’s Accomplishments
Let’s review what the 500,000 men and women of the National Guard do for the country. The National Guard is essential to the military’s missions at home and abroad. More than 10,000 members of the National Guard are currently called up for domestic operations, most along the border and involved in counter-drug operations. Almost 60,000 citizen-soldiers are deployed overseas, almost 40,000 involved in Iraq deployments. Over 6,000 members of the Air Guard are deployed. And let’s remember, that at the high-water mark, the Guard made up almost 40 percent of the troops on the ground in Iraq.
The Need for Empowerment
Given the fact that the National Guard is one of the country’s most valuable and needed forces, one would think that our leaders in the Department of Defense would be spending significant time developing policies and budgets plans that truly support the Guard. Further, since September 11th, a torturous debate has developed in the Pentagon whenever the National Guard is needed for a large-scale operation at home, such as during Hurricane Katrina. We have learned that the Guard works optimally at home when it serves under the command-and-control of the nation’s governors, with federal reimbursement, under Title 32 of the federal code. This Title 32 status ensures that locally elected officials remain in control of military forces operating at home. Because the National Guard comes directly out of these local communities, posse comitatus statutes do not apply.
There seems to be some kind of reflexive reaction within the Department of Defense against having the Guard and the Governors remain in control of operations at home. In fact, a sizeable contingent exists within the Pentagon to have the active duty military control the National Guard and other military personnel and assets. So, every time there is a natural disaster or other emergency, the Pentagon engages in a lengthy debate back-and-forth about control of the Guard. To date, these debates have led to sensible outcomes.
Finally, the National Guard has little influence at the senior ranks within the Army and the Air Force. The number of high-ranking officers is completely imbalanced between the Guard and the active forces.
Empowerment: A Sensible Move Ahead
Our original legislation, S. 2658, the National Defense Enhancement and National Guard Empowerment Act of 2006, would have additionally placed the Guard Bureau chief on the Joint Chiefs of Staff and given the National Guard separate budget authority. Though we still believe these provisions are important to empowering the National Guard fully, we listened and understood the objections of other senators. We dropped those provisions in the amendment to the Defense Authorization bill to reach a consensus where even more members would agree to the amendment, beyond the already 40 senators who are co-sponsoring the baseline legislation.
The Defense Authorization Conference: Outcome, Argument Against, And Explanation
The changes to the Insurrection Act 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, and it is for that reason that the Insurrection Act has only been invoked on three — three — in recent history. The implications of changing the Act are enormous, but this change 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.
While the Conference made hasty changes to the Insurrection Act, the Guard Empowerment Bill was kicked over for study to the Commission on the National Guard and Reserve, which was established only a year ago and whose recommendations have no real force of law. I would have never supported the creation of this panel — and I suspect my colleagues would agree with me — if I thought we would have to wait for the panel to finish its work before we passed new laws on the Guard and Reserve. In fact, we would get nothing done in Congress if we were to wait for every commission, study group, and research panel to finish its work. I have been around here over 30 years, and almost every Senator here knows the National Guard as well as any commission member. We don’t need to wait, and we don’t need to study the question of enhancing the Guard further. This is a terrible blow against rational defense policy-making and against the fabric of our democracy.
Since hearing word a couple of weeks ago that this outcome was likely, I have wondered how Congress could have gotten to this point.
Governor Blanco rightfully insisted that she be closely consulted and remain largely in control of the military forces operating in the State during that emergency. This infuriated the White House, and now they are looking for some automatic triggers — natural disasters, terrorist attacks, or a disease epidemic — to avoid having to consult with the governors.
A Final Summary
And there you have it -- we are getting two horrible policy decisions out of this Conference because we are not willing to use our Constitutional powers to overcome leadership that ranges from the poor to the intemperate in the Pentagon and the White House. We cannot recognize the diverse ways that the Guard supports the Country, because the Department of Defense does not like it — simply does not like it.
Because of this rubberstamp Congress, these provisions of this conference report add up to the worst of all worlds. We fail the National Guard, which expects great things from us as much as we expect great things from them. And 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.

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