Issue #51
Last Update May 5, 2007
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
National Martial Law Act of 2007 by David Katz November 3, 2006 A little known companion to the Military Commissions Act of 2006 was the passage of the National Defense Authorization Act of 2007, which, in addition to authorizing funding for the military, modifies the Insurrections Act, which (amongst other things) deals with the domestic use of troops by the Federal Government. The Military Commissions Act removes the rights of habeas corpus and judicial review from non-citizens, legitimates the use of torture and hearsay evidence in Commission proceedings, and allows evidence to be kept secret from defendants and their attorneys. (See New York Stringer article “S.3930” for more details.) The modifications to the Insurrections Act contained in the Defense Authorization Act authorizes the military to act in law enforcement and takes control of the National Guard away from state Governors, further centralizing power in the hands of the President. Prior to this legislation, Governors would request the activation of their state Guard units to deal with civil unrest. With this new legislation, the President can activate Guard units without the consent of the Governor. The circumstances under which the President can order these actions are so broad as to be essentially limitless.
The text of the key provisions is as follows:
Sec. 333. Major public emergencies; interference with State and Federal law
(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES- (1) The President may employ the armed forces, including the National Guard in Federal service, to--
(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
(ii) such violence results in a condition described in paragraph (2); or
(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
(2) A condition described in this paragraph is a condition that--
(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
`(b) NOTICE TO CONGRESS- The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of the authority.'.
The following points are worthy of note: “other condition” can mean anything; “unlawful combination or conspiracy” is not further defined in this Act and apparently does not require a judicial finding; nowhere is it defined who makes the determination that a State is incapable or unwilling to enforce the law or grant equal protection; although Congress must be notified in advance and every 14 days once this authority is exercised, the Act does not grant Congress the right of initial consent, not does it require Congress' continuing approval; there is no provision for judicial review to ensure that the Executive has acted properly.
An Administration with a track record of flouting the law, lying to the public, and marginalizing Congress and the judiciary should not be trusted with enhanced powers. Republicans who have supinely acquiesced in the dismantling of Constitutional checks and balances should not be surprised when a President not to their liking takes advantage of the holes they have made in our liberties.
To be notified of New York Stringer updates and new issues, click here.
New York Stringer is published by NYStringer.com. For all communications, contact David Katz, Editor and Publisher, at david@nystringer.com
All content copyright 2007 by nystringer.com