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Making Martial Law Easier
The New York Times | Editorial
Monday 19 February 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 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.
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