November 16, 2006

Martial Law Made Easy


While the full frontal assault on the Constitution that is the Military Commissions Act (MCA) has garnered some well-deserved attention and criticism, another wretched piece of legislation - with equally ominous implications for American democracy - was signed into law by President Bush on the very same day, but with much less fanfare. That law is H.R. 5122, the John Warner National Defense Authorization Act for Fiscal Year 2007 (JWNDAA). While the MCA has been cast by its supporters as a tool against foreign terrorists, what is most striking and frightening about the Warner Defense Authorization Act is that it explicitly targets citizens of the United States.

Two federal laws, the Insurrection Act of 1807 and the Posse Comitatus Act of 1878, govern the president's ability to deploy troops on domestic soil for the purposes of, respectively, putting down "lawlessness, insurrection and rebellion," and broader law enforcement. Together, they are highly restrictive of presidential power, and they are the primary bastion against the use of America's military against its own citizens. H.R. 5122 removes this safeguard by modifying the Insurrection Act and effectively gutting Posse Comitatus provisions.

Section 1076 of the Warner Defense Authorization Act states:
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...
In short, it allows the President to declare a "public emergency" and station troops anywhere in the United States, commandeering state-based National Guard units without the consent of governors or local authorities. It is an unprecedented level of power in the hands of the executive branch, and it threateningly echoes the MCA by allowing the President alone to determine the circumstances under which he exercises it.

Under this law, President Bush can take control of National Guardsmen from any state - again, over the the objections of that state's authorities - deploy them across the country on law enforcement assignments, and use them to suppress any portion of the citizenry he deems disorderly. Those citizens might be protesters or, given previous statements from Mr. Bush, people who object to forced quarantines in the event of a Bird Flu outbreak. It might be possible to regard H.R. 5122 as merely distasteful or poorly-considered legislation if it had been passed on its own, but the timing of its signing into law clearly marks it as complementary to the Military Commissions Act .

Those with any doubt need only consider that the JWNDAA permits mass round-ups and imprisonment in new large-scale facilities, the construction of which have already been contracted to Halliburton subsidiary Kellogg Brown & Root (KBR). The New York Times reported earlier this year that KBR executives have stated that these facilities would be built to handle an "unexpected influx of immigrants [or] to house people in the event of a natural disaster" but, more chillingly, that they might also be used for "new programs that require additional detention space."

Clearly, the Military Commissions Act, the John Warner National Defense Authorization Act and the KBR contracts are elements of a coordinated assault on fundamental freedoms, from both foreign and domestic perspectives. Anyone who thinks either of these laws was passed for show need look no further than the cases of Ali Saleh Kahlah al-Marri, Ali Partovi or Jose Padilla - all of whom have been held without charge for years - for confirmation that the Bush White House has few qualms about violating human rights or trashing long-standing Constitutional and legal protections, even when it comes to American citizens.

Taken together, the MCA and the JWNDAA represent the product of the fear which so thoroughly informs the national security policy decisions of the Bush Administration. They are emblematic of Mr. Bush's weakness, which chases easy solutions - no matter the consequences to democracy - rather than pursuing more difficult avenues that preserve civil liberties. To be sure, the job of the President of the United States of America is not an easy one, but it isn't supposed to be; and it is inarguable that a chief executive who fails to "preserve, protect and defend the Constitution" - as demanded by his oath of office - has failed in his duties.

The results of the 2006 mid-term elections indicate that the public is awakening to the political, ethical and functional bankruptcy of the modern GOP. Democrats who will be in the majority in both the Senate in the House next January are in position to roll back some of the most egregious elements of the MCA and the JWNDAA, with Christopher Dodd planning to do just that on the former (hat tip to Crooks and Liars), and Patrick Leahy likely to take point on the latter. While these are not issues that will get the coverage or the attention of something like an increase to the federal minimum wage, they are crucial to the continued existence of our nation.

Overturning the Republican Congressional majority was only step one; keeping pressure on our elected officials to turn back government threats to our civil liberties must follow.

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