Continuing to Flatten the Constitution

Fine Print in Defense Bill Opens Door to Martial Law
By Jeff Stein, CQ National Security Editor

It’s amazing what you can find if you turn over a few rocks in the anti-terrorism legislation Congress approved during the election season.

Take, for example, the John W. Warner Defense Authorization Act of 2006, named for the longtime Armed Services Committee chairman from Virginia.

Signed by President Bush on Oct. 17, the law (PL 109-364) has a provocative provision called “Use of the Armed Forces in Major Public Emergencies.”

The thrust of it seems to be about giving the federal government a far stronger hand in coordinating responses to Katrina-like disasters.

But on closer inspection, its language also alters the two-centuries-old Insurrection Act, which Congress passed in 1807 to limit the president’s power to deploy troops within the United States.

That law has long allowed the president to mobilize troops only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.”

But the amended law takes the cuffs off.

Specifically, the new language adds “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident” to the list of conditions permitting the President to take over local authority — particularly “if domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.”

Since the administration broadened what constitutes “conspiracy” in its definition of enemy combatants — anyone who “has purposely and materially supported hostilities against the United States,” in the language of the Military Commissions Act (PL 109-366) — critics say it’s a formula for executive branch mischief.

Yet despite such a radical turn, the new law garnered little dissent, or even attention, on the Hill.

Read the rest here.

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