Usurpation of Power
CounterPunch, CA The 2007 Defense Authorization Act and the “Reform” of the Insurrection Act of 1807
By Col. DAN SMITH (h)
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). [more]