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November
20, 2006
The 2007 Defense Authorization Act and
the "Reform" of the Insurrection Act of 1807
Usurpation
of Power
By Col. DAN SMITH
Messages are circulating on the Internet
that raise an alarm over a provision of the FY2007 Defense Department
Authorization Act (PL 109-364) that expands presidential discretion
to declare martial law and to federalize the National Guard in
case of insurrection.
The first to raise the subject
was Senator Patrick Leahy (VT). On September 19th , 2006, and
again on September 29th, 2006, he decried this expansion of presidential
power previously restricted by the Insurrection Act of 1807 (10
U.S.C. 331) (as updated) and a similar weakening of the limits
on presidential power in the Posse Comitatus Act of 1878
(18 U.S.C. 1385).
BACKGROUND
Many who have taken note of
Senator Leahy's remarks have also included in their analysis
the generally unheralded Department of Homeland Security contract
awarded to KBR, a Halliburton subsidiary. The five-year, $385
million "Indefinite delivery/Indefinite quantity sole-source
contract calls for construction on a contingency basis, under
supervision of the U.S. Army Corps of Engineers, of "temporary
detention and processing capabilities to augment existing Immigration
and Custom Enforcement (ICE) Detention and Removable Operations"
should there be an "emergency influx of immigrants into
the U.S. or to support the rapid development of new programs."
This is not a new contract; Halliburton secured a similar contract
covering 2000 with four one-year extensions that carried the
contract to 2005. The "one-year" provisions are part
of the current contract.
Before delving into the concerns
raised by Senator Leahy and others, it might be helpful to start
at the beginning--with what the U.S. Constitution says about
militias, "insurrection" and with George Washington's
actions in response to the "Whiskey Rebellion of 1791"
that formed the precedent in these matters.
The Constitution
and the Role of Congress Regarding Insurrection
Albeit somewhat ancillary to
the main threads to be followed, it remains important to the
evolution of laws touching on insurrection to recall Article
1 Section 8 of the Constitution. This enumerates the powers reserved
for the legislature. As with any document of such fundamental
import, constitutional scholars have poured over the order of
words and the placement of every comma, semi-colon, and period
in making the case for their interpretation of the meaning intended
by the writers.
In regard to the public order,
it seems noteworthy that the Framers saw fit not to insert commas--which
could be taken to indicate a sequencing or hierarchy of congressional
powers and duties in that part of this section reading "to
pay the debts and provide for the common defense and general
welfare of the United States" This indicates that the common
defense and the general welfare, which arguably includes domestic
tranquility, are of equal importance.
Moreover, Article 1 Section
8 empowers Congress, not the president,
"To provide for calling forth the militia to execute the
laws of the union, suppress insurrections and repel invasion"
and "To provide for organizing, arming, and disciplining,
the militia, and for governing such part of them as may be employed
in the service of the United States, reserving to the states
respectively, the appointment of the officers, and the authority
of training the militia according to the discipline prescribed
by Congress."
Article 1, Section 9 states
that "The privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or invasion the
public safety may require it."
The Constitution
and the Role of the Executive Regarding Insurrection
Article 2 Section 2 of the
U.S. Constitution provides that "The President shall be
commander in chief of the Army and Navy of the United States,
and of the militia of the several states, when called into the
actual service of the United States." This latter ostensibly
would occur when a natural disaster or man-made event or threat
to the "common defense and the general welfare" either
entails external attack (common defense) or exceeds the ability
of local authorities to handle (general welfare).
IMPLEMENTING
THE LAW: Washington and the Whiskey Rebellion of 1794
In 1791, in order to raise
revenue to help pay the Revolutionary War debts the federal government
assumed from the states, Congress imposed a tariff on the sale
of "distilled spirits." The tax was not a major burden
for large distillers. For the smaller operators who were chiefly
located along the frontier and who had other grievances against
the federal government, the tax was the last straw. By 1794,
Washington and Allegheny Counties in western Pennsylvania had
evolved into centers of resistance to the federal government,
with mobs destroying property and threatening the lives and well-being
of revenue collectors, physically assaulting and kidnapping a
federal marshal, and stealing mail from a post-rider.
Under the 1792 Militia Act,
Congress had enumerated the three specific circumstances that
would justify calling up a state militia for federal service:
"calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions." The militia
of the state or states concerned was to be called first, but
should it refuse or be deemed insufficient to deal with the insurrection,
militias of adjacent states could be called up for a period extending
30 days after reconvening of the Congress, a period thought sufficient
for Congress to take action if necessary.
But before the militias could
be called out, two conditions had to be met: a reasonable time
for ending the insurrection had to be publicly proclaimed and
to have expired, and evidence of "combinations too powerful
to be suppressed by the ordinary course of judicial proceedings"
or by federal marshals had to be presented to a federal associate
or district judge. Having reviewed the material presented, the
judge would in writing inform the president that a state of insurrection
existed.
Using the authority given him
by the Militia Act, in August 1794, President Washington issued
a proclamation calling on those in rebellion to "disperse
and retire peaceably to their respective abodes." Upon receiving
the required judicial notification, Washington called up nearly
13,000 militiamen, most from Virginia, and joined them in the
field for part of their march westward.
Washington's proclamation is
noteworthy for its details on the rebellion: "misrepresentations
of the laws," acts committed that "amount to treason,
being overt acts of levying war against the United States,"
"intention to prevent by force of arms the execution of
the said laws," and "it is my judgmentthat the very
existence of government and the fundamental principles of social
order are materially involved in the issue."
Congress had intended that
the 1792 Militia Act would have to be renewed every three years.
But when renewal was considered in 1795, this requirement, along
with the involvement of a federal judge, was dropped. Moreover,
the bar against initially federalizing out-of-state militias
was also rescinded. The revised Militia Act passed in 1795 permitted
the president to act virtually unilaterally and quickly when
Congress was not in session.
One other, albeit temporary,
change to the law occurred in 1799 when Congress authorized the
president to call out the federal regulars in circumstances in
which he was empowered by the 1795 Militia Act to federalize
state militias. This change was repealed in 1802.
The Burr
Conspiracy and the First Insurrection Act
In 1806, Aaron Burr was accused
of treasonous acts for planning to sail down the Mississippi
River to attack Spanish New Orleans or to engineer the secession
of the states of the southeast U.S. Burr was acquitted, and
the incident largely forgotten except for what came to be known
as the "Insurrection Act of 1807." This Act, in effect
a one-sentence amendment to the Militia Act, reinstated and made
permanent the 1799 expansion of the use of federal troops in
domestic disorders and insurrections. (By 1806, the regular army,
which had been reduced after the Revolutionary war to 80 officers
and men, numbered over 12,000.)
Why this change was made is
unclear because this Act has no legislative history; it was passed
with no debate, along with other bills, on the last day the Ninth
Congress was in session in 1807. Whatever the reason, the Insurrection
Act of 1807 amended the 1795 statute to permit, "where it
is lawful for the President of the United States to call forth
the militia for the purpose of suppressing such insurrectionit
shall be lawful for him to employ for the same purposes, such
part of the land or naval forces of the United States, as shall
be judged necessary, having first observed all the prerequisites
of the law in that respect."
Other 19th
Century Changes to the Law
With the Civil War looming,
Congress in 1861 authorized the president to call up either the
militias of the states or federal troops "whenever, by reason
of unlawful obstructions, combinations, or assemblages of persons,
or rebellion against the authority of the Government of the United
States, it shall become impractical, in the judgment of the President
of the United States, to enforce, by the ordinary course of judicial
proceedings, the laws of the United States within any State or
Territory." This revision also extended the call-up period
to 60 days into a new session of Congress and eliminated the
requirement for a presidential proclamation. The significant
changes were the addition of "rebellion" to the circumstances
empowering federalizing militias and permitting the president
to determine on his own that the laws could not be enforced.
The addition of "rebellion" also linked use of militias
and federal troops to the question of declaring martial law and
suspending habeas corpus, as "rebellion" is
constitutionally specified as a trigger for such suspension.
A minor change to the Militia
Act was made in 1871 to counter the depredations of the Ku Klux
Klan in the post-Civil War South. With the withdrawal of federal
troops from the South and the end of Reconstruction, Congress
also passed the Posse Comitatus Act of 1878. This Act
sought to limit the power of the president to "employ any
part of the Army of the United States, as a posse comitatus,
or otherwise, for the purpose of executing the laws, except in
such cases and under such circumstances as such employment of
said force may be expressly authorized by the Constitution or
by act of Congress." Note that the law applies only to federal
troops. Non-federalized militias, because they are from the local
community and, under normal "peacetime" conditions,
come under and respond to the direction of their state's governor,
are exempt from this 1878 law.
At the turn of the century,
then, distinctions existed as to the conditions that empowered
the president to employ federal troops or federalized troops.
Normally he waited until a state governor or legislature requested
federal assistance. But in extremis, should the president
determine that the state government was incapable of or refused
to protect the rights of a significant part of its population,
whether the rights were guaranteed by the constitution or by
statute, he could use federal troops without waiting for a state
request. And because the state militias at the time were so poorly
organized, trained, and equipped, presidents had to use federal
troops when unrest or disasters struck--e.g., the Pullman strike
when the movement of the U.S. mail was endangered.)
Finally, in 1903, Secretary
of War Elihu Root convinced Congress to pass a new Militia Act.
This created the Organized Militia, which came to be called the
National Guard. In ordinary times, control and employment of
Guard personnel remained with state governors. The president
retained authority to call the Guard into federal service in
case of invasion or insurrection or to enforce the laws of the
Union--and only for a maximum of nine months.
Nonetheless, between 1807 and
1925, federal troops were employed more than 100 times under
the auspices of the Militia and Insurrection Acts to resolve
civil disturbances that state authorities could not or would
not control.
The Insurrection Act (10 U.S.C.
331) itself was expanded during these years to five sections.
These roughly empower the president:
* upon application by state
authorities for help in suppressing an insurrection, to federalize
sufficient militia troops or use federal troops "as he deems
necessary";
* upon determining that the
laws of the U.S. cannot be enforced through normal judicial proceedings
because of "unlawful combinations , or assemblages, or rebellion,"
to federalize the militia or use federal troops in sufficient
numbers to end the rebellion;
* to use the militia or federal
troops if he determines that such use is the way to put down
"any insurrection, domestic violence, unlawful combination,
or conspiracy" that deprives any class or part of a state's
population of their right privileges, immunities, or protections
under the Constitution or in statute and the state authorities
cannot or will not act to ensure these rights--or if they even
oppose or obstruct the e execution of federal law or "impede
the course of justice";
The fourth section requires
the president, upon determining the need to use militia or federal
troops, to "immediately order the insurgents to disperse"
and return home peacefully. The fifth specifies that the act
applies to Guam and the U.S. Virgin Islands.
The 2007
Defense Authorization Act
The Senate version of this
bill (H.R.5122) went to conference with a section intended to
strengthen the independence of the National Guard by raising
its bureaucratic profile, requiring the Pentagon to provide more
and better equipment, and emphasizing its role in responding
to domestic disasters. When the Senate-House conference ended,
the legislation not only had been stripped entirely of these
proposals, in their place were revisions "making it easier
to usurp the Governors' control and making it more likely that
the President will take control of the Guard and the active military
operating in the states," according to Senator Leahy. Why?
Because, as noted before, the National Guard (militia) when operating
under state control can be used to augment law enforcement, thus
removing the need for federal troops. But if a president invokes
the Insurrection Act with its tie to "rebellion," he
can override state objections and authority and use federal forces
or federalized forces (National Guard) for purposes of "enforcing
the laws of the United States."
Senator Leahy sees the changes
as "payback" by the administration for the refusal
of the Louisiana governor to cede control of post-Katrina recovery
efforts to Washington. Indeed, the title of Section 1076 of the
FY2007 Defense Authorization act suggests an expansion of presidential
power--"Use of the Armed Forces in Major Public Emergencies."
Section 333 of the Insurrection Act now permits the president
to use "the armed forces, including the National Guard in
Federal service, to restore public order" in circumstances
that now include "terrorist attack or incident, or other
condition in any State or possession of the United States, the
President determines" that state authorities cannot "maintain
public order" because of "domestic violence."
The balance of the current Section 333 of the Insurrection Act
is repeated in the 2007 legislation
Section 334 of the Insurrection
Act which deals with the presidential proclamation ordering those
engaged in opposing the government or fomenting unrest to disperse.
The 2007 law adds to "insurgents" the phrase "or
those obstructing the enforcement of the laws." The fact
that the president determines to whom the proclamation applies
gives him, ipso facto, the power to determine when the
laws are being obstructed regardless of the views of state authorities.
Senator Leahy sees these changes
as "automated triggers" that congressional allies of
the administration rammed through the conference to further consolidate
power in Bush's unitary presidency. In point of fact, Congress
has so yielded its power under the Militia clauses of the constitution
that a president has nearly a free hand in case of a major man-made
or natural disaster. And until one of these disasters actually
occurs and the federal government usurps first line--that is,
state controlled--assets, Congress is unlikely to try to claw
back power to the states. One major impediment to congressional
action is that the 2007 legislation also requires the Pentagon
to provide relief supplies and emergency shelters needed "for
the immediate preservation of life and property" once the
president invokes the new powers. States will not reimburse the
federal government for these supplies. The law also calls for
coordination between the Department of Homeland Security and
the Pentagon's Northern Command which is responsible for Defense
Department actions inside the United States.
And at a deeper level, there
is still the power to suspend habeas corpus upon presidential
declaration.
CONCLUSION
Section 1076 of Public Law
109-364 does expand presidential power to declare when an emergency
exceeds the power of a state government to handle and has tied
ill-defined concepts such as "public orderor other condition"
to rebellion, thus triggering potential presidential suspension
of habeas corpus.
THE QUESTION IS: WHEN AND HOW
FAR WILL THE CURRENT OR ANY FUTURE PRESIDENT DECIDE TO GO IN
EXERCISING THE INCREASED LATITUDE CONFERRED BY THIS LAW?
Given the propensity for power
to always tend toward the center, Congress needs to reverse this
propensity. Its springboard is the Tenth Amendment--if it will
but use it.
Col. Dan Smith is a military affairs analyst for
Foreign Policy In Focus ,
a retired U.S. Army colonel, and a senior fellow on military
affairs at the Friends Committee on National Legislation. Email
at dan@fcnl.org.
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