Opening Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
Hearing On
“‘The Insurrection Act Rider’ And State Control Of The National Guard”
April 24, 2007

The Committee is holding this hearing to focus on a little-noticed but sweeping change in the law governing the National Guard made by the last Congress.  Specifically, we are examining the recent changes to the Insurrection Act, which controls when the President can use components of the United States military for domestic law enforcement purposes.  The Insurrection Act is one of the major exemptions to our longstanding statutes and distinctive American tradition not to involve the military in domestic law enforcement.   Last year, both the House and Senate Armed Services Committees slipped provisions into the Defense Authorization Bill, apparently at the request of the Administration, to make it easier for the President to invoke the Insurrection Act in cases well short of insurrection. 

In addition, the President’s authority to nationalize State units of the National Guard was increased.   These State units of the National Guard are controlled by our Governors.  Even though this change in law authorizes the President essentially to strip control of State Guard units from a State’s Governor without consent, none of the Nation’s Governors was consulted.  The Nation’s adjutant generals, who command the State Guard units, were not consulted.  The local law enforcement community was not consulted.  Congressional committees with jurisdiction over law enforcement matters were not consulted.  There was no debate about the significance of this change when the bill was before the House or the Senate.  Even after some of us discovered these add-ons to the bill and raised our concerns and the Governors came forward to raise their strong objections to these changes, our concerns were ignored, and the Insurrection Act rider was retained in the final version of the legislation.

The changes to the Insurrection Act were not just bad process.  More to the point, the changes reflect bad policy.  The “Insurrection Act Rider” subverts sound policies for dealing with emergency situations that keep our Governors and other locally-elected officials in the loop when they are having to deal with disasters that affect the people they represent.  These changes increase the likelihood that the military will be inserted into domestic situations.  One of the distinguishing characteristics of the United States is that we do not use the military to patrol our communities and neighborhoods, to make ordinary arrests or to execute searches and seizures involving American citizens. Our tradition has been to call on the military as a last resort and only with great care and caution. 

The Insurrection Act Rider is emblematic of this Administration’s overreaching “unitary executive” approach to all things and its viewing military power as the answer to all problems. Here the Administration has misunderstood the lessons of Hurricane Katrina.  The National Guard, serving at the State level under the command of the Governors, actually performed spectacularly after Katrina.  Active military forces did come in to support local relief efforts and worked professionally alongside the Guard and our first responders after Katrina.  So let us be clear – in the aftermath of Hurricane Katrina, the problem was a breakdown in FEMA, a federal agency, which did anything but a “heckuva job” in preparing for and responding to that emergency.  The disaster response coordinators from President Bush on down — including Governor Blanco and Mayor Nagin -- did not have an effective, coordinated response.  This dangerous change in statute in which a fundamental law that protects the basic rights of the American people is being upset to increase presidential power and score political points is wrong.

This change is also part of a pattern of Defense Department mismanagement of issues concerning the National Guard that we have seen all too often in recent years.  What we should be doing is ensuring that our 500,000 men and women in the National Guard have the equipment and the policies in place that provide them the support they need for the expanded missions they are being asked to perform.  Instead, Pentagon leaders generate proposals that reduce and undermine the force’s ability to handle their traditional missions. We should be giving the Army Guard the billions of dollars in equipment it needs to respond to emergencies at home, not forcing the Guard to leave its equipment in Iraq and then providing no backfill.  We should be making sure that insightful and experienced Guard leaders have a voice in key debates, not keeping the Guard out of vital discussions and then trying to pay for the enormous costs of the Iraq war by cutting corners on the needs of our citizen-soldiers and our citizen-airmen.

If we do not take steps to strengthen and protect the Guard and their ability to respond here at home, we are going to see States resort to private contracting -- that is right, private contractors -- to maintain a baseline level of response capabilities when they are needed to help a State in a crisis.  Who do you want at a time of local need?  Do you want Blackwater, or do you want the Nation’s Adjutants Generals and the outstanding men and women from among our neighbors who wear the uniforms of the National Guard?  And do we really want this President to be deciding to press into service in our communities the active military that is already overstretched, or do we want the home-grown National Guard?  That is what is at stake.  It is that simple.  

Some have argued that the changes made to the Insurrection Act were just a “clarification” of existing law.  They contend that there is no real expansion of authority.  When you change the title of something – particularly a law – you change its meaning and purpose.  That in turn changes the way we perceive the law and the way it could be interpreted.  Common sense tells us that a mere technical clarification would not draw the attention of Governors, Adjutant Generals, and local law enforcement.  Why thumb your nose at Governors and local law enforcement for a mere technical clarification?  The idea that the change is just a little tinkering to the law here, a little touch-up to the wording there, is hogwash. 

There is certainly something going on that is far more than just a clarification.  As with so much else this Administration has done, this is a raw expansion of Presidential power.  It is certainly not an expansion of power that should be granted without thoughtful deliberation, and without extensive consideration of the far-reaching consequences.  That is why Senator Bond and I have sponsored bipartisan legislation to repeal the changes and to restore the Insurrection Act to it its original form.

Today we begin to shed light on this change in law.  I thank our distinguished witnesses for being with us.  I appreciate all of you taking the time to testify today, and we look forward to your testimony.

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