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On martial law in the US November 2, 2006

Posted by fukumimi in law, Overseas.

I don’t write about US politics very often because Japan has plenty of problems of its own (and it is a delicate subject when which can touch a raw nerve when “foreigners” start criticising other nations – descent into an unproductive “debate” of the pot-kettle-black type is just around the corner).

However, the John Warner National Defense Authorization Act which became law last month has received minimal media exposure for a law which has huge potential implications (yup, let’s just throw out the safeguards against abuses of power defined in the Insurrection Act and Posse Comitatus Act). Buried within the 439-page long Act is a provision which appears to makes it easier for the President of the United States of America to impose martial law. I’m sure supporters of the Act will argue that this will enable the Government to respond more quickly to disasters such as Katrina. Perhaps, but even then it turned out that the public disorder stories were mostly hoaxes, lest we forget. It is questionable if federal commandeering of the National Guard would have been possible before any violence broke out anyway (although the timing of same could be arranged, no doubt), which would have been too late to prevent the damage caused by the hurricane.

“ 333. Major public emergencies; interference with State and

Federal law


(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 insurrec-

tion, 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



Senator Leahy in a statement he made at the end of September:

Not only does this Conference Report unfortunately drop the Empowerment amendment entirely, it adopts some incredible changes to the Insurrection Act, which would give the President more authority to declare martial law. 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, and it is for that reason that the Insurrection Act has only been invoked on three — three — in recent history. 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.

Why has much of the US media ignored this story?

It seems almost as much of a whitewash as the Japanese media’s marginalisation of Togo Fujita’s whistleblowing re: Shinzo Abe’s friends’ (Apa Group) likely fraud of building safety codes with bureaucratic assistance….


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