Newcomb: Bush’s unprecedented power: Will Congress reverse the dangerous trend?


Despite Karl Rove’s prediction of a GOP win on election night, the Democratic Party pulled off a stunning victory, thereby taking control of both the House and Senate. Nancy Pelosi, D-Calif., is slated to become the first female Speaker of the House. Now the question is: What will the Democrats do with their newfound influence?

There are many scandals and abuses of power that ought to be investigated by the new Congress. Some are obvious – the bogus reasons for invading Iraq, or the expense and billing irregularities by contractors like Halliburton that the present Congress has so far refused to investigate. Other abuses of power by the Bush administration and the Republicans are somewhat less obvious, but attack deep structural elements of the governmental system of the United States, such as habeas corpus protection for individuals and the ability of the president to declare martial law.

On the domestic front, there is one particular issue that a Democratic Congress ought to immediately turn its attention to in 2007: reversing the newly legislated ability for President Bush or any future president to unilaterally declare martial law in the United States. If Congress is going to save “democracy,” this issue ought to be a priority.

The Military Commissions Act authorizes Bush to declare anyone in the United States an “enemy combatant” and to hold that person indefinitely without habeas corpus protection. Habeas corpus is the legal provision that allows a person to go before a court and challenge their detention. The Military Commission Act also allows Bush wide latitude to decide what constitutes torture of so-called enemy combatants. At this point, apparently anything goes, except for techniques that result in organ failure or death.

Bush’s ceremonious Rose Garden signing of the Military Commissions Act received quite a bit of media coverage. What seems to have received very little attention, however, is another bill that Bush signed that day. In the privacy of the Oval Office, Bush signed the “John Warner Defense Authorization Act of 2007” (H.R. 5122). This bill authorizes more than $500 billion for military activities by the Pentagon.

Section 1076 of the defense authorization bill has been described as “ominous” because it revises the Insurrection Act that has heretofore limited the president’s ability to deploy U.S. troops inside the United States. According to an article by Frank Morales, “Bush Moves Toward Martial Law”: “The Insurrection Act (10 U.S.C. 331-335) has historically, along with the Posse Comitatus Act (18 U.S.C. 1385), helped to enforce strict prohibitions on military involvement in domestic law enforcement. With one cloaked swipe of his pen, Bush is seeking to undo those prohibitions.”

According to a press release issued by Sen. Patrick Leahy, D-Vermont, congressional leaders “expressed grave disappointment over the House and Senate conference agreement on the Fiscal Year 2007 Defense Authorization Bill for abandoning the National Guard ‘empowerment’ thrust of the Senate’s version of the bill.”

Leading up to the passage of the defense authorization bill, a main concern raised by a number of congressional leaders was the fact that the authorization bill was “likely to take a sizable step toward weakening states’ authority over their Guard units.” In a joint statement, Sen. Kit Bond, R-Mo., and Leahy, as the co-chairs of the Senate’s National Guard Caucus, said, “The conference agreement is expected to include a provision making it easier for the President to declare martial law, stripping state governors of part of their authority over state National Guard units in domestic emergencies.”

At a press conference on Sept. 19, Leahy said that he regretted that “Congress at this critical moment is on the verge of an outright failure in supporting the National Guard.” He further announced the prospect of “changes to the Insurrection Act, which will make it easier for this or any future president to use the military to restore domestic order without the consent of the nation’s governors. To put it another way, the Defense Authorization Bill actually encourages the president to declare federal martial law – something [that] has been done in only three – three – occasions over the past several decades.”

Morales pointed out that the defense authorization act “allows the President to declare a ‘public emergency’ and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities, in order to ‘suppress public disorder.’”

Leahy explained that the changes made to the Insurrection Act, effectively making posse comitatus obsolete, were “slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.”

This odious power-grab, facilitated by the Republican Congress, dovetails with a $385 million contract awarded in January to KBR, a subsidiary of Halliburton, for the building of detention centers inside the United States over the next five years. The contract specifies that the detention centers will be built for “an emergency influx of immigrants, or to support the rapid development of new programs” designed to respond to emergencies such as “a natural disaster.” Exactly what these “new programs” will be, or precisely where and when these facilities are to be built, is unknown.

As Leahy said a month before Bush signed the defense authorization bill, “Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy.” When the Democrats take control of Congress in January, we’ll see if they have the tenacity and wherewithal to reverse this alarming ability of the U.S. president to declare martial law, and to use U.S. troops inside the borders of the country in the event of “natural disasters,” “terrorist attacks” or a “disease epidemic” without the approval of state governors.

<i>Steven Newcomb, Shawnee/Lenape, is indigenous law research coordinator at Kumeyaay Community and Sycuan Education Department, co-founder and co-director of the Indigenous Law Institute, a research fellow with the American Indian Policy and Media Initiative, and a columnist for Indian Country Today.