PLRC Blog

This blog supplements Chapter 10 of America in Peril

18 April 2008

Section 1076 of the National Defense Authorization Act for Fiscal Year 2007 effectively repealed the Posse Comitatus Act which, with few exceptions, forbids the military from performing law enforcement within the US. This was done by expanding the Insurrection Act to allow employment of federalized National Guard troops and/or the Armed Forces during “natural disaster, epidemic or serious public health emergency, terrorist attack or incident, or other condition in any state or possession of the United States, the president determines that domestic violence has occurred,” to an extent justifying federal intervention. (Emphasis added) The Insurrection Act was also revised to add “or those obstructing the enforcement of the laws” in defining who federal authorities can order to disburse. Previously only “insurgents” could be so ordered. This of course could easily be stretched to cover legitimate peaceful protesters.

Then some good news, or so it seemed at first glance. Section 1068 of the National Defense Authorization Act for Fiscal Year 2008 repealed those changes. Posse Comitatus is revived and only “insurgents” can be ordered to disburse by federal officials. But as the bloggers warned, watch the signing statement. Sure enough, the president issued one when he signed that Act on 28 January 2008. It read in part:

Provisions of the Act … purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations …. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

Judging from how the executive branch wields its perceived “constitutional authority” during the normal administration of government, one can easily imagine how that signing statement would play out during the turmoil and panic of a national emergency. Nothing has altered the president’s plan for continuity of government during such an emergency.

Continuity of government was spelled out in a dual executive order on 9 May 2007 — National Security Presidential Directive No. 51 and Homeland Security Presidential Directive No. 20 (NSPD-51/HSPD-20). This order effectively suspends the Constitution and confers extraordinary powers on the President and Vice-President. Lip service is given to guaranteeing the checks and balances among the three branches of government but the overriding theme is that the executive branch is paramount.

Declaring national emergencies is not new. “National Emergency Powers,” a November 2006 Congressional Research Service (CRS) report, recalled that “delegations or grants of power authorize the President to meet the problems of governing effectively in times of crisis…. Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and in a variety of ways control the lives of United States citizens.”

The operative phrase is “delegations or grants of power.” The Constitution and Congress never intended a dictatorship. The CRS report also explained the limits of that power:

With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion.

In 1976 Congress passed The National Emergencies Act (50 U.S.C. 1601-1651) to restrict arbitrary declarations of emergencies by executive order. The Act mandated reporting the emergency declaration and subsequent updates to Congress, including the rules & regulations issued during the emergency.

Section 1079 of the 2008 Defense Authorization Act (which reversed the martial law provisions) requires the head of any intelligence agency or department to respond within 45 days to a congressional request for information. However, Bush’s signing statement (which takes specific exception to Section 1079) along with NSPD-51/HSPD-20 leaves considerable doubt about compliance with any reporting requirements. Section 20 of that executive order reads very similar to his signing statements: “This directive shall be implemented in a manner that is consistent with, and facilitates effective implementation of, provisions of the Constitution concerning succession to the Presidency or the exercise of its powers …” In addition, nothing in NSPD-51/HSPD-20 provides for any notification to Congress.

The American public does not know the full scope of NSPD-51/HSPD-20, and neither does Congress. All except one of the annexes to that directive are classified. When Congressman Peter DeFazio asked to see the secret annexes, a request made and honored numerous times, he was denied. DeFazio said: “We’re talking about the continuity of the government of the United States of America. I would think that would be relevant to any member of Congress, let alone a member of the Homeland Security Committee. Maybe the people who think there’s a conspiracy out there are right.”

The point is that we should not be complacent because certain martial law provisions have been rescinded. The thinking behind those provisions lives on, and the planning for continuity of government after another “terrorist attack” remains the same. America is still very much in peril.

Bob Aldridge

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