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    REID, PELOSI IGNORE BUSH PLAN FOR MARTIAL LAW JEFF STEIN http://public.cq.com/public/20061201_homeland.html It s amazing what you can find if you turn over a
    Message 1 of 1 , Dec 7, 2006

      It's amazing what you can find if you turn over a few rocks in the
      anti-terrorism legislation Congress approved during the election season.

      Take, for example, the John W. Warner Defense Authorization Act of
      2006, named for the longtime Armed Services Committee chairman from

      Signed by President Bush on Oct. 17, the law (PL 109-364) has a
      provocative provision called "Use of the Armed Forces in Major Public

      The thrust of it seems to be about giving the federal government a far
      stronger hand in coordinating responses to Katrina-like disasters.

      But on closer inspection, its language also alters the
      two-centuries-old Insurrection Act, which Congress passed in 1807 to
      limit the president's power to deploy troops within the United States.

      That law has long allowed the president to mobilize troops only "to
      suppress, in a State, any insurrection, domestic violence, unlawful
      combination, or conspiracy."

      But the amended law takes the cuffs off.

      Specifically, the new language adds "natural disaster, epidemic, or
      other serious public health emergency, terrorist attack or incident"
      to the list of conditions permitting the President to take over local
      authority — particularly "if domestic violence has occurred to such an
      extent that the constituted authorities of the State or possession are
      incapable of maintaining public order."

      Since the administration broadened what constitutes "conspiracy" in
      its definition of enemy combatants — anyone who "has purposely and
      materially supported hostilities against the United States," in the
      language of the Military Commissions Act (PL 109-366) — critics say
      it's a formula for executive branch mischief.

      Yet despite such a radical turn, the new law garnered little dissent,
      or even attention, on the Hill.

      One of the few to complain, Sen. Patrick J. Leahy, D-Vt., warned that
      the measure virtually invites the White House to declare federal
      martial law.

      It "subverts solid, longstanding posse comitatus statutes that limit
      the military's involvement in law enforcement, thereby making it
      easier for the President to declare martial law," he said in remarks
      submitted to the Congressional Record on Sept. 29.

      "The changes to the Insurrection Act will allow the President to use
      the military, including the National Guard, to carry out law
      enforcement activities without the consent of a governor," he said.

      Moreover, he said, it breaks a long, fundamental tradition of federal

      "Using the military for law enforcement goes against one of the
      founding tenets of our democracy."

      And he criticized the way it was rammed through Congress.

      It "was just slipped in the defense bill as a rider with little
      study," he fumed. "Other congressional committees with jurisdiction
      over these matters had no chance to comment, let alone hold hearings
      on, these proposals."

      No matter: Safely tucked into the $526 billion defense bill, it easily
      crossed the goal line on the last day of September.

      The language doesn't just brush aside a liberal Democrat slated to
      take over the Judiciary Committee come January. It also runs over the
      backs of the governors, 22 of whom are Republicans.

      The governors had waved red flags about the measure on Aug. 1, sending
      letters of protest from their Washington office to the Republican
      chairs and ranking Democrats on the House and Senate Armed Services

      No response. So they petitioned the party heads on the Hill — Sens.
      Bill Frist, R-Tenn., and Harry Reid, D-Nev., Speaker of the House J.
      Dennis Hastert, R-Ill., and his Democratic opposite, Nancy Pelosi of

      "This provision was drafted without consultation or input from
      governors," said the Aug. 6 letter signed by every member of the
      National Governors Association, "and represents an unprecedented shift
      in authority from governors . . .to the federal government."

      "We urge you," they said, "to drop provisions that would usurp
      governors' authority over the National Guard during emergencies from
      the conference agreement on the National Defense Authorization Act."

      Again, no response from the leadership, said David Quam, the National
      Governors Association's director of federal relations.

      On Aug. 31, the governors sent another letter to the congressional
      party leaders, as well as to Defense Secretary Donald H. Rumsfeld, who
      had met quietly with an NGA delegation back in February.

      The bill "could encroach on our constitutional authority to protect
      the citizens of our states," they protested, complaining again about
      how the provision had been dumped on a midnight express.

      "Any issue that affects the mission of the Guard in the states must be
      addressed in consultation and coordination with governors," they demanded.

      "The role of the Guard in the states and to the nation as a whole is
      too important to have major policy decisions made without full debate
      and input from governors throughout the policy process."

      More silence.

      "We did not know until the bill was printed where we stood," Quam said.

      That's partly the governors' own fault, said a Republican Senate aide.

      "My understanding is that they sent form letters to offices," she
      said. "If they really want a piece of legislation considered they
      should have called offices and pushed the matter. No office can handle
      the amount of form letters that come in each day."

      Quam disputed that.

      "The letter was only the beginning of the conversation," he said. "The
      NGA and the governors' offices reached out across the Hill."

      Looking back at the government's chaotic response to Katrina, it's not
      altogether surprising that the provision drew so little opposition in
      Congress and attention from the mainstream media.

      And of course, it was wrapped in a monster defense bill related to the
      emergency in Iraq.

      But the blogosphere, of course, was all over it.

      A close analysis of the bill by Frank Morales, a 58-year-old Episcopal
      priest in New York who occasionally writes for left-wing publications,
      spurred a score of liberal and conservative libertarian Web sites to
      take a look at it.

      But a search of The Washington Post and New York Times archives, using
      the terms "Insurrection Act," "martial law" and "Congress," came up empty.

      That's not to say the papers don't care: There's just too much going
      on in the global war on terror to keep up with, much less write about
      such a seemingly insignificant provision. The martial law section of
      the Defense Appropriation Act, for example, takes up just a few
      paragraphs in the 591-page document.

      What else is in there? More intriguing stuff, it looks like — and I'm
      working my way through it.

      Putin on the Risk: Don't be too quick to finger Russian president
      Vladimir Putin in the radiation rub-out of disaffected former KGB
      agent Alexander Litvinenko in London Nov. 23, says a retired CIA
      operative who spent a career trying to outwit his Soviet opposites. "I
      see it all as a little too pat," says Milt Bearden, a 30-year CIA
      veteran and chief of its Soviet/East European Division when the
      Kremlin crumbled in 1990.

      "Is Putin insane or stupid? I think not," Bearden e-mailed me last week.

      "I tilt toward a setup," Bearden said. The villain? "Someone with the
      [scientific] resources of a state," a large research laboratory,
      perhaps, with connections to the criminal underworld.

      "This story has legs," Bearden went on, "just what Putin would not
      want if he was behind it."

      Stay tuned...

      More on Torture Law: Most legal analysts, as reported here last week,
      believe that the new law setting up Military Commissions will exempt
      U.S. officials from prosecution for abusing prisoners, by narrowing
      the definitions of torture in the 1997 War Crimes Act. But at least
      one eminent jurist begs to differ.

      "Even as retroactively amended and narrowed, a person whose actions
      caused `serious' or `severe' mental or physical suffering at any time
      after 1997 committed a felony violation of the War Crimes Act and can
      be prosecuted," maintains Stephen Rickard, a former top State
      Department official, foreign policy adviser to the late Sen. Daniel
      Patrick Moynihan, D-N.Y., and prominent Washington lawyer with a
      speciality in human rights.

      "I don't like the definitions of `torture' and `cruel and inhuman'
      conduct," Rickard e-mailed me last week, "but even with all of their
      flaws, I don't see how they exempt interrogators from potential
      punishment, especially for the harshest, most controversial techniques."

      These days Rickard is the director of the Washington Office of the
      liberal Open Society Institute.

      Jeff Stein can be reached at jstein@....



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