Making Martial Law Easier
Published: February 19, 2007
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 administrationís 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 presidentís 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 ďother condition.Ē
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 nationís 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 nationís 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.