Quiet Revolutions

Today the rule of law, the checks and balances and the rights reserved in the Bill of Rights were damaged as the FISA act was once again altered and retroactive immunity was authorized for law breaking telecoms. A lot has been written about this. I will not add to that.

Instead, I thought I would point out a pair of quiet revolutions that took place over the last couple of years that got very little coverage. I do so for two reasons. First it is worth noting that not all of the battles for civil liberties in the last couple of years have been lost, and second, it is important to realize that major changes both for good and ill can happen with virtually no one noticing.

The day after the Military Commissions Act was passed and habeas corpus damaged, a second important protection was virtually wiped away—Posse Comitatus. If the weakening of habeas corpus dredges up images of King John, Runnymede, and the Magna Carta, Posse Comitatus should put us in mind of Julius Caesar and the crossing of the Rubicon. The Posse Comitatus Act of 1878 basically forbids the use of the US military or the National Guard under federal control within the United States. It keeps the government from using the miltary on its own citizens. It is essentially the modern version of the Roman law that forbade the legions from crossing the Rubicon into Italy proper.

The Insurrection Act of 1807, on the other hand, authorizes the use of the military and the federalized militia to deal with lawlessness, insurrection and rebellion within the country. The tension between the two acts defines the ways in which the President may legitimately use the military domestically.

The expansion of the Insurrection act came on the "John Warner National Defense Authorization Act for Fiscal Year 2007". Section 1076 of that law rewrote Section 333 of title 10 of the U.S. Code, the Insurrection Act. I wrote a blog posting dealing with the changes a year ago, and also produced a page showing the changes in detail. To summarize quickly, the circumstances under which the President could use the military within the US was expanded from insurrection and rebellion to include "natural disasters, public health emergencies and terrorism", and most alarmingly of all "other circumstances" and left the determination of whether these circumstance pertained to the President.

In short, under the new law, if the President determined that a situation of domestic violence, conspiracy or "unlawful combination" has hindered or obstructed the execution of the laws, and that this is one of those "other circumstances cited in the law, he may federalize the National Guard and use it and the armed forces. This basically made the power to declare martial law and arbitrary power of the President.

The good news is that the "National Defense Authorization Act for Fiscal Year 2008" (HR 4986) which was passed and signed by the President in late January completely undid these changes, and the Insurrection Act and Posse Comitatus have returned to their original balance. The bad news is that it had to be done on the QT. Nearly a year before HR 4986 was passed, Senator Leahy, with the support of Kit Bond, Senator Hagel and 10 Democratic Senators introduces S. 513, a bill that would have done the same thing. It died in committee. Only by burying it in the defense authorization act could they sneak it through.

Civil Libertarians would have celebrated this victory except that it went unheralded, and in fact if you look for news stories about the change which was signed at the end of January, you will find that many are dated at the end of April.

Those of you who paid attention to the Senate debate over the last couple of days on the FISA and telecom immunity legislation will recognize the names of the senators who were willing to stand up for Posse, as sponsors or cosponsors of S 513:

I'm afraid I cannot say what nameless aide put the language into HR 4986. Such is the reality of modern stealth legislation.

We must continue to fight the good fight, just as the three or four dozen senators who voted today to support civil liberties did, just as the sponsors of S 513 did, and at times quietly as the author of HR 4986 § 1068.

As ever, don't believe me.
Research for yourself.
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