Dictatorial Powers for the Most Dangerous President

Apologies for the "wonkiness" of this post, but I used to be an analyst before I became ill. Try to stick with it. Your life may depend upon this knowledge.

On October 17th, 2006, the same day that the President signed the "torture bill", he also signed Public Law 109-364, or the "John Warner Defense Authorization Act of 2007" (H.R.5122) (2), in a "private" ceremony. According to Frank Morales at the link above, this bill nullifies The Posse Comitatus Act of 1878 which forbids the use of federal military forces for law enforcement: "From and after the passage of this act it shall not be lawful 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".

Posse Comitatus would be nullified because it does not apply when the Insurrection Act is in force. The Insurrection Act was enacted to override the exception in the Posse Comitatus, where the use of federal troops for law enforcement is prohibited "except" as authorized by the Constitution or Congress. It enabled the President to federalize a state's National Guard with the permission of the state Governor, and use them along with federal troops to quell civil disturbances, again, as long as the Governor gives permission to the President.

Public Law 109-364 supposedly modifies the Insurrection Act, though you would never know it if you depended on the US DOD for your news. The President may now federalize any state's National Guard at any time he chooses, and the President may use federal troops against the American populace at any time he chooses if he thinks there is reason, such as civil unrest, according to Mr. Morales. He writes:

Public Law 109-364, or the “John Warner Defense Authorization Act of 2007″ (H.R.5122) (2), which was signed by the commander in chief on October 17th, 2006, in a private Oval Office ceremony, 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.”

President Bush seized this unprecedented power on the very same day that he signed the equally odious Military Commissions Act of 2006. In a sense, the two laws complement one another. One allows for torture and detention abroad, while the other seeks to enforce acquiescence at home, preparing to order the military onto the streets of America. Remember, the term for putting an area under military law enforcement control is precise; the term is “martial law.”

Section 1076 of the massive Authorization Act, which grants the Pentagon another $500-plus-billion for its ill-advised adventures, is entitled, “Use of the Armed Forces in Major Public Emergencies.” Section 333, “Major public emergencies; interference with State and Federal law” states that “the President may employ the armed forces, including the National Guard in Federal service, to 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 domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of (”refuse” or “fail” in) maintaining public order, “in order to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.”

I have spent many hours during the night attempting to confirm Mr. Morales statements. I have, as yet, been unable to locate the sections mentioned above in the massive John Warner National Defense Authorization Act for Fiscal Year 2007, S.2766 . However, also recorded in the Library of Congress, I have found in H.R. 5122 by the same name. It appears to be Mr. Morales' reference. I have copied it at the very end of this post, after very disturbing "interpretations" of the applicable laws by Homeland Security. He appears to be completely correct.

There was definite concern about the bill when it came out of committee, as I have confirmed at Senator Leahy's official website.

Senator Patrick Leahy (D-VT) spoke September 29, 2006:

"Let me repeat: The National Guard Empowerment Act, which is designed to make it more likely for the National Guard to remain in State control, is dropped from this conference report in favor of provisions 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.

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. When the Insurrection Act is invoked posse comitatus does not apply. Using the military for law enforcement goes against one of the founding tenets of our democracy"

"The implications of changing the Act are enormous, but this change was just 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."

Also, read the press release from the office of Senator Patrick Leahy :

"Under the changes, the President would now be able to invoke the Act during such regular occurring events as a natural disaster. Because posse comitatus restrictions that prevent the military’s involvement in law enforcement do not apply when the Insurrection Act is invoked, the changes would nullify these long-standing laws."

Further remarks of Senator Leahy:

"Also, it seems the changes to the Insurrection Act have survived the Conference because the Pentagon and the White House want it. It is easy to see the attempts of the President and his advisors to avoid the debacle involving the National Guard after Hurricane Katrina, when Governor Blanco of Louisiana would not give control of the National Guard over to President and the federal chain of command. Governor Blanco rightfully insisted that she be closely consulted and remain largely in control of the military forces operating in the State during that emergency. This infuriated the White House, and now they are looking for some automatic triggers — natural disasters, terrorist attacks, or a disease epidemic — to avoid having to consult with the governors.

A Final Summary

And there you have it -- we are getting two horrible policy decisions out of this Conference because we are not willing to use our Constitutional powers to overcome leadership that ranges from the poor to the intemperate in the Pentagon and the White House. We cannot recognize the diverse ways that the Guard supports the Country, because the Department of Defense does not like it — simply does not like it.

Because of this rubberstamp Congress, these provisions of this conference report add up to the worst of all worlds. We fail the National Guard, which expects great things from us as much as we expect great things from them. And we fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty. "

Being granted the powers of Dictator by his Republican Congress was not even enough for this power-mad and most dangerous President in the history of the United States.

Read the President's signing statement where, over and over again, he states that provisions of the law that require consultation or advisement of the Congress, will be construed by the President as meaning that he can basically do whatever the hell he wants without the involvement of Congress whatsoever, and he can withhold any information from Congress that he thinks should be kept secret.

"'From the inception of the Republic until 2000, Presidents produced signing statements containing fewer than 600 challenges to the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George W. Bush (Bush II) has produced more than 800,” explains the American Bar Association Task Force on Presidential Signing Statements and the Separation of Powers Doctrine."

The Insurrection Act has been used only a very few times in the history of the country. I found several sources that claimed it was only used 3 times before, but not according to this website. It claims it was used against the Bonus Marchers in 1932, against striking railroad workers in 1946, against the American Indian Movement at Wounded Knee, and in Los Angeles during the riots in 1992, ironically, by the first President Bush. I haven't been able to confirm whether it was 3 or 4 by any definitive sources yet, however, from what I recall of my studies, I do believe 4 is correct.

Regardless, it appears that it is inevitable that it will now be used against American citizens, within our own borders, whenever a sitting President cares to use it, regardless of the concerns or sovereignty of the local or state governments.

All because of the whimsy and petulance of a very dangerous President.

And because of a rubber stamp Congress. The bill passed with very little scrutiny. The roll call in the House was 396 Ayes, 31 Nays, 5 Abstained. See the roll here. Unfortunately, for all his words, words, words, Senator Leahy voted for the bill. It was unanimous in the Senate, both before and after committee.

Face it, people. "They" are not looking out for us. None of them. We have to look out for ourselves. The answer is not on "Dancing with the Stars" or "The Great Race". Freedom is not how many choices you have at the grocery store. You don't know what freedom means if you are not willing to speak out, stand up, and fight if necessary, for it.

I leave this post with two quotations of Abraham Lincoln.

"Allow the president to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such a purpose - and you allow him to make war at pleasure."

"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."

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Here is how the Department of Homeland Security interprets The Insurrection Act, apparently posted prior to October 17th, as the President now does not need the permission of a Governor to Federalize a state's National Guard:

"Quelling Civil Disturbances: The Insurrection Act (10 U.S.C. § 331 et seq.)
State and local governments have primary responsibility for quelling rebellions (32 C.F.R. § 215.4(a).
The President may use the military (including the Federalized National Guard) to quell (1) civil disturbances in a State (upon the Governor's request), (2) rebellions that make it difficult to enforce Federal law, or (3) any insurrection that impedes a State's ability to protect citizens' constitutional rights and that State is unable to unwilling to protect these rights.
Before committing U.S. troops, the President must issue a proclamation for rebellious citizens to disperse, cease, and desist.
Some government attorneys believe that the Insurrection Act is subject to a very liberal interpretation."

Posse Comitatus:

"Use of Federal Troops for Law Enforcement Purposes: The Posse Comitatus Act (18 U.S.C. § 1385)
Army and Air Force may not be used for law enforcement. DoD policy extends the prohibition to Navy and Marines.
National Guard in State-status are not covered by the Posse Comitatus Act.
(My note...the below has nothing to do with posse comitatus, so you can see how they had already decided it was irrelevant.)
Federal troops (incl. Federalized National Guard) may be used for law enforcement if the President invokes the Insurrection Act to quell civil disturbances.
Other exception includes preventing the loss of life or property during serious disturbances or calamities, and protecting Federal property and governmental functions."


H.R.5122
John Warner National Defense Authorization Act for Fiscal Year 2007 (Enrolled as Agreed to or Passed by Both House and Senate)

SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(a) Use of the Armed Forces Authorized-
(1) IN GENERAL- Section 333 of title 10, United States Code, is amended to read 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 that authority.'.
(2) PROCLAMATION TO DISPERSE- Section 334 of such title is amended by inserting `or those obstructing the enforcement of the laws' after `insurgents'.