Repeal Bush's Sneaky Martial Law Provisions

The NY Times editorial today appeals to the nation to repeal Bush's sneaky moves towards easier martial law.

A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.

The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.

The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

Changes of this magnitude should be made only after a thorough public airing. But these new presidential powers were slipped into the law without hearings or public debate. The president made no mention of the changes when he signed the measure, and neither the White House nor Congress consulted in advance with the nation’s governors.

There is a bipartisan bill, introduced by Senators Patrick Leahy, Democrat of Vermont, and Christopher Bond, Republican of Missouri, and backed unanimously by the nation’s governors, that would repeal the stealthy revisions. Congress should pass it. If changes of this kind are proposed in the future, they must get a full and open debate.

When you put these provisions together with the ongoing rhetoric of "treasonous terror-aiding Democrats" which began well before the midterms and has continued right through to the recent debates on the Hill about Iraq, you would have to be blithely indifferent to not see all the factors are present for an assualt on democracy.

Further, we now have a presidency which has forwarded a view of the primacy of the executive, even in times of undeclared war, which deliberately approaches dictatorship and which ignores the balance of powers enshrined in the constitution. Nor have radical Republican pundits been shy about their debate - they actively advocate a coup and the murder of those who oppose their world-views.

As Jeffrey feldman writes, "What we are witnessing with these calls for violence is the radicalization of authoritarian conservatism as the prospects for electoral success diminish."

Many on the extreme Right, taking their cue from the White House's inflammatory speech, now believe that the Republic could be better replaced by a de facto Empire which would still masquerade as a democracy. Rep. Ron Paul put it bluntly in 2005: "If we don't change our ways we will go the way of Rome."

And yet you would think that the most vocal of the extreme Right would be aghast at the thought of, say Hillary Clinton, inheriting the power that Bush has garnered unto himself.

(That they are not screaming for a rollback of those powers might well speak volumes about their true assessment of the chances of a Democrat sitting in the Oval Office come 2008, no matter what the result of the election may be.)

Support the bipartisan bill now, or there may well not be a chance to do so later.

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Update Ron at MEJ is doing sterling work, as usual, today. He notes that the libertarian Right is just as worried as the liberal Left about runaway executive power.

The invasion of Iraq has put the possibility of the end to American democracy on the table and has empowered groups on the Right that would acquiesce to and in some cases welcome the suppression of core American freedoms.

and then points to Joe Conason at Salon who says we should worry:

Today we live in a state of tension between the enjoyment of traditional freedoms, including the protections afforded to speech and person by the Bill of Rights, and the disturbing realization that those freedoms have been undermined and may be abrogated at any moment.

Such foreboding, which would have been dismissed as paranoia not so long ago, has been intensified by the unfolding crisis of political legitimacy in the capital. George W. Bush has repeatedly asserted and exercised authority that he does not possess under the Constitution he swore to uphold. He has announced that he intends to continue exercising power according to his claim of a mandate that erases the separation and balancing of power among the branches of government, frees him from any real obligation to obey laws passed by Congress, and permits him to ignore any provisions of the Bill of Rights that may prove inconvenient.

Whether his fellow Americans understand exactly what Bush is doing or not, his six years in office have created intense public anxiety. Much of that anxiety can be attributed to fear of terrorism, which Bush has exacerbated to suit his own purposes -- as well as to increasing concern that the world is threatened by global warming, pandemic diseases, economic insecurity, nuclear proliferation, and other perils with which this presidency cannot begin to cope.

In the meantime, some who call themselves libertarian are busy constructing a strawman of NY Times hypocrisy and Katrina response times to justify their continued support for the regime which has so endangered the American experiment in democracy.