The
New York Times
February 19, 2007
Making Martial Law Easier
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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