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.”
But in the immediate wake of Hurricane Katrina and the monumental mess of the relief effort made by the Mayor of New Orleans and the Governor of Louisana, it was the NY Times which was questioning why more federal law enforcement aid wasn't forthcoming:
As New Orleans descended into chaos last week and Louisiana's governor asked for 40,000 soldiers, President Bush's senior advisers debated whether the president should speed the arrival of active-duty troops by seizing control of the hurricane relief mission from the governor.
For reasons of practicality and politics, officials at the Justice Department and the Pentagon, and then at the White House, decided not to urge Mr. Bush to take command of the effort. Instead, the Washington officials decided to rely on the growing number of National Guard personnel flowing into Louisiana, who were under Gov. Kathleen Babineaux Blanco's control.
The debate began after officials realized that Hurricane Katrina had exposed a critical flaw in the national disaster response plans created after the Sept. 11 attacks. According to the administration's senior domestic security officials, the plan failed to recognize that local police, fire and medical personnel might be incapacitated.
As criticism of the response to Hurricane Katrina has mounted, one of the most pointed questions has been why more troops were not available more quickly to restore order and offer aid. Interviews with officials in Washington and Louisiana show that as the situation grew worse, they were wrangling with questions of federal/state authority, weighing the realities of military logistics and perhaps talking past each other in the crisis.
To seize control of the mission, Mr. Bush would have had to invoke the Insurrection Act, which allows the president in times of unrest to command active-duty forces into the states to perform law enforcement duties.But decision makers in Washington felt certain that Ms. Blanco would have resisted surrendering control, as Bush administration officials believe would have been required to deploy active-duty combat forces before law and order had been re-established.
While combat troops can conduct relief missions without the legal authority of the Insurrection Act, Pentagon and military officials say that no active-duty forces could have been sent into the chaos of New Orleans on Wednesday or Thursday without confronting law-and-order challenges.
Sounds like an organization (NY Times) identifying a "flaw", detailing the extent of the problem and its immediate impact and demanding some sort of fix if you ask me. Why else the discussion of the extraordinary measures President Bush would have had to take to take charge? And even if he had, he still wouldn't have been able to deploy federal troops in a law-enforcement role as the law still prohibited such deployments without the permission of Congress. The reason, identified by the Times, was the Insurrection Act (as well as Posse Commitatus).
Further, in today's article, the Times criticizes the way the new law was passed:
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.
Maybe the NY Times missed it but the discussion, or "airing", even within their own paper, was extensive. As they said in their Katrina article, the "debate" began right after 9/11. We heard every politician and his brother pontificate about such a problem during Katrina not to mention every talking head which could find a microphone and camera. And all seemed to believe that a change in the indicated laws were necessary for disasters of that magnitude.
Asked almost every day in the aftermath of Katrina were the questions, why hadn't federal troops shown up to enforce the law, why was that a problem, why were the feds so late in getting them in there to take charge?
Acknowledged by everyone, to include the NY Times, was the fact that they were prohibited from doing so by the provisions of the "Insurrection Act" which, apparently, the NY Times now holds in very high regard as a "bulwark of liberty".
Now, what was identified as a problem in responding to such disasters has been addressed, but instead of pointing out that now such a problem won't exist in the future should a storm the size of Katrina ever again devastate the US, we see the Times resort to characterizing the fix as a "dead of night" attack on liberty.
In fairness, I can at least understand the concerns about the phrase "other conditions", included in the bill. I certainly don't have any problem with a move to have those "conditions" specifically defined or that phrase eliminated.
But that's a fairly easy and painless procedure which even a marginally competent legislature can undertake immediately and without too much muss and fuss. It's certainly not worthy of a Times tirade about threatening liberty.
OTOH, I see nothing proposed in the new law (as outlined by the Times) which necessarily weakens Posse Commitatus. As background, in 1878, Congress passed the Posse Comitatus Act, which forbids military involvement in domestic law enforcement without congressional approval. Nothing in what the Times has written points to an abrogation of the necessity for a President to get Congressional approval in order to use federal troops in a law enforcement role. Instead, it broadens the categories in which they can be used, to include natural disasters.
Naturally, however, the Times takes the most extreme and inflammatory view of this provision. One is led to believe the true purpose of passing such a law was to make declaring martial law easier to do.
If Congress still has to approve the deployment of federal troops in a law enforcement role regardless of the reason, how has that been accomplished?
Why the charge of hypocrisy against the Times?
One, their previous questioning of the obstacles placed in the way of deploying federal troops in a law enforcement role.
Two, because much legislation, by both sides, is introduced in "the dead of night" and the NY Times knows it. That doesn't make it good or right, but it does make it common to the process. In fact, just about every earmark ever proposed was introduced without so much of a word of discussion or debate. The hyperbole is, instead, for a purpose. In simple terms, it is a device to paint the Republican Congress and thereby the Republican administration in a bad light.
And to put forward the Time's favored (but most likely unnecessary) solution instead:
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.
Uh huh ... when the NY Times comes out strongly calling for the same sort of requirement for all appropriations bills, earmarks and other "stealthy revisions" in the name of "liberty" it might have some credibility. Not much of a chance of that. Instead this is simply one in a long line of selective and hypocritical attempts to mischaracterizing legislation by presenting it in the worst light possible in order to embarrass the Republicans.
Oh come off it, McQ, the current legislation stinks and you know it. It especially should stink if you are at least nominally a libertarian.
How happy would you be to hand Hillary Clinton the narrative of executive power in wartime that has been created by the current administration? Personally, I’m no more happy with that idea than the idea of Dubya having those powers.
It’s not about Katrina, it’s about the power of the executive becoming unbalanced. To hark back to Katrina and say the NYT is being hypocritical is to construct a strawman when the actual issue is that of constitutional balance as a whole, with or without the NYT and Katrina.
On such an issue, if the NYT wants to change tune and advocate better balance and a weaker central government then I say let ’em!