A More Practical Quiz

In the wake of the “civics” quiz featured in the last post, I thought I’d make up my own multiple choice question this time. This is not a research question; it’s designed to test what you’ve picked up from your normal participation in society, so don’t look it up. The question is:

Under the Defense Authorization Act of 2006, if a terrorist incident occurs on U.S. soil, or if the President determines for any other reason that there has been a breakdown of “public order,” the President may:

A. declare a federal emergency in the affected area(s);
B. detail federal troops to the affected area(s), to work under the direction of state and local officials;
C. declare martial law throughout the United States; or
D. none of the above.

Hint: This legislation passed the Senate by unanimous consent (on Sept. 30, 2006), so how controversial can it be?

Give up?

Well, if you answered D, you were obviously born in the wrong century, because these days it is awfully hard to find a problem of any magnitude that the federal government has not claimed a power to cure. No, the correct answer is C; the President may declare martial law throughout the United States. (For all I know, A and B may also be permitted, but the point here is that C is among the permitted responses.)

You might have thought that A (federal emergency aid such as FEMA assistance) would be a logical choice, since that’s the federal response to other localized emergencies. You might also have thought by analogy that B made sense (sending troops to the affected areas to work side-by-side with state and local law enforcement authorities and National Guard units). But on the contrary, not only does the law not call for the President to send troops to supplement National Guard units, the law actually permits the President to take control of National Guard units away from the governor(s), without any action by the state government authorizing such a takeover.

Isn’t that the sort of thing you would have expected to hear something about when it was breezing through Congress in the summer and fall of 2006? Shouldn’t it have received, I don’t know, maybe half the coverage that Anna Nicole Smith’s death received? But no. Even today, this seems to be a pretty well kept secret. The New York Times editorialized in favor of repeal in February, but I didn’t find any coverage of the original enactment either there or in The Washington Post. It’s tempting to blame this on inattention by the national media, but the sad fact is that the people who passed this legislation didn’t seem to think it was remarkable either. It passed 398-23 in the House and by unanimous consent in the Senate. Unanimous consent for martial law!

I first heard about this provision in an article by James Bovard in the April 23, 2007 issue of The American Conservative. Bovard could hardly contain his disbelief:

“Martial law” is a euphemism for military dictatorship. When foreign democracies are overthrown and a junta establishes martial law, Americans usually recognize that a fundamental change has occurred. Perhaps some conservatives believe that the only change when martial law is declared is that people are no longer read their Miranda rights when they are locked away. “Martial law” means obey soldiers’ commands or be shot.

Bovard suggested that this legislation passed because no one had any idea what they were voting on, an explanation seconded by The New York Times. But still, unanimous consent?

Furthermore, whatever one thinks of the “I voted on it without knowing what it said” excuse, I think it cannot be the whole story. It seems undeniable that someone in a position to write draft legislation thought this was a good idea, and it is hard not to be horrified at that. Can such a person possibly have read the Constitution or The Federalist Papers? Is everyone so worried about the Goths that no one remembers the Rubicon?

Bovard noted last spring that two senators (Leahy and Bond) were sponsoring a bipartisan bill to repeal the martial law provisions passed in 2006. Apparently, that bill was reported out of Committee last week and is expected to pass the Senate this week. Let’s hope so. Perhaps 2007 will turn out to be the year that we started watching the Rubicon again.


18 Responses to “A More Practical Quiz”

  1. David Fitzgerald Says:

    I know gross generalizations are not in keeping with the spirit of this blog, but, as a lawyer, I am so offended by the tax funded lawyers working for the Bush administration that I want to scream. Those of us who are members of the bar must keep this thought in mind, every single act that lead to the Holocaust had statutory warrant in the Nuremberg Laws. The best legal minds in 20th century Germany, presumably not all Nazi’s, drafted, debated and promoted that infamous legislation as a reasonable outgrowth of centuries of German jurisprudence.

    So, when you look at the type of legislation that Mark referred to above and wonder where it all stops, now you know.

    Every accredited law school in the country today that I know of, and most state bars, require, as a condition to receiving and maintaining a license to practice law, training in “legal ethics.” Most of those courses focus on questions around the attorney-client privilege and who is the client. Useful information, no doubt. But, the bar, and the country, would be far better served if someone could figure out how to teach lawyers, especially those wielding the power of the state, to exercise prudence, courage, temperance and judgment in their practice. In short, the profession is in desparate need of adults with fully formed consciences. Alas, such people are always in short supply.

  2. Mark E. Says:

    I guessed C by extrapolating the general trends of the Bush Administration and the (at the time) Republican controlled congress. I daresay that had it crossed my radar at the time, I probably would have been duly outraged.

    After looking up the bill and seeing the sponsor, my respect for my state’s senior senator has evaporated.

  3. Mark Grannis Says:

    It’s interesting that both Fitz and Mark E blame the Bush administration in their first sentences. I assume that’s not entirely unfair; that is, I assume (without knowing) that the administration had a lot to say about the contents of the Defense Authorization Act of 2006, possibly including the nationwide martial law provision. But in many ways I think the big story here is how many people either overlooked this or dismissed concerns about it. Senator Leahy specifically called attention to the martial law provisions before they were enacted, yet the legislation still passed overwhelmingly and the martial law provisions were included in the final act even though they could have been quietly dropped after folks had a chance to read them. This did not generate much if any press coverage, let alone the banner headlines I would expect to see if anyone were paying attention.

    I conclude, therefore, that we are generally not paying attention, and that’s not something that is likely to end on Jan. 20, 2009. So why aren’t we paying attention?

    Maybe we need more civics lessons, as the nice people at ISI suggest, but if so I’d much rather it be more basic. And it won’t do for it to be only for lawyers. Every citizen should understand almost reflexively that government must be limited and power must be divided. That is much more important than familiarity with Burke, let alone Keynes.

    But maybe that’s not even the root of the trouble. Maybe we’re just suffering from bigness. Government is so big that no one can be bothered to read the bills that keep it running. The citizenry is so numerous that we rarely think of ourselves as sovereigns in the act of self-government. Law firms, accounting firms, and other corporations are suffering from bigness as well. If that’s the problem, it’s hard to see how that ends well.

  4. Timothy Peach Says:

    Do any of these Orwellian things ever actually happen in this country?

    Every day I read about incredibly dangerous threats to our civil liberties generated by companies telling other companies you exist, or the FBI having the right to tap your phone, or the theoretical right of the President to declare martial law, and I hear a lot of shrill protest from the usual suspects, but I hear very little about actual intrusions.

    I do understand that terrorists and drug dealers are routinely having their privacy invaded, and one time I think my doctor accidentally let someone see that I had a mole removed from my back when I was 12, but outside of Washington attorneys and Sean Penn’s extended calling circle, is anyone really all that worried about this stuff? It doesn’t worry me one iota.

  5. Mark Grannis Says:

    Tim, are you suggesting we shouldn’t worry about “the theoretical right of the President to declare martial law” until it becomes an “actual intrusion[]” — that is, until martial law is actually declared?

  6. Timothy Peach Says:

    It won’t, of course, but I’ll bet if we took some time and created a full catalog of all of the “theoretical rights” of the President, we could get really terrified.

    For instance, doesn’t the President have a launch button as Commander in Chief? Aren’t we worried he’ll have one too many cocktails or lose too many 3-team NFL parlays on the wrong day and just say, “F**k it. I’m tired of looking at this big red area on the map in Asia. Let’s make some craters.”

    None of these things come to pass because who we are prevents the ridiculous, Orwellian interpretations of law notwithstanding. Look what happens to people who get BJs in the White House or funnel money to counterrevolutionaries? The “apparatus of democracy” (euphemism) slams down hard.

  7. Timothy Peach Says:

    I need to apologize for my Tourette’s relapse.

    I shouldn’t post from work — my work environment is super potty mouth permissive, and it distorts my sensibilities.

    Again, a pox upon me for my relapse.

  8. Mark Grannis Says:

    I wasn’t particularly offended, but thank you anyway.

    I agree that “who we are” is the key to this issue. If we were angels, we would not need checks and balances, or any other laws. But we are humans, and although we are (in Douglas Adams’s phrase) “mostly harmless,” there are at any given time some considerable number of us who have a tendency toward the accumulation and abuse of power, even when our 3-team NFL parlays are going well. History confirms this with dismal regularity. So because of “who we are,” we pass laws to constrain the exercise of power. Of course the laws do not prevent all abuses of power, but they do at least inhibit them and provide some bright lines that should not be crossed.

    Is it possible to worry too much about unchecked power? Yes, just as it is possible to worry too much about almost any other danger. It is also possible to worry too little. But the central question is not our level of anxiety, it is what laws we pass on the subject. To the guy on the corner with a sandwich board who says the President wants to place us all under martial law, we may say that he should get some rest and try not to worry so much. But when Congress actually passes a law that says it’s OK for the President to declare martial law, it is hardly an answer to say the President would never do such a thing. Why would he not, if it is fully within his legal right to do so? And how can we be so confident about Presidents not yet elected?

    Who are we? Traditionally anyway, we are the people who don’t do martial law, or warrantless arrest, or imprisonment without trial, or torture. I’m conservative, so I think we should keep it that way.

  9. Timothy Peach Says:

    I’m biting on this line of reasoning a little, but we are in an “out of context” void here, and I’m not the jamoke to fill it.

    The proximate issue is whether the law you quoted above represents a significant incremental increase in the President’s potential power to impose an effective military dictatorship.

    The key question is: what was he already able to do before this development. I don’t believe it was the case that martial law could never be imposed. Who knows the answer to this question?

    As an important side note, for those of you putting together 3-team parlays, this is what I like this weekend:

    Arizona -3.5 at STL
    Houston at home -5.5 vs Miami
    Giants at home -3.5 vs Jets
    Tenn at home -8.5 vs Atlanta
    KC at home +2 vs Jax

  10. Timothy Peach Says:

    Wikipedia has an interesting summary:

    United States of America
    See also: Suspension clause
    The martial law concept in the U.S. is closely tied with the Writ of habeas corpus, which is in essence the right to a hearing on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. The ability to suspend habeas corpus is often equated with martial law. Article 1, Section 9 of the U.S. Constitution states, “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.”

    In United States law, martial law is limited by several court decisions that were handed down between the American Civil War and World War II. In 1878, Congress passed the Posse Comitatus Act, which forbids military involvement in domestic law enforcement without congressional approval.

    The National Guard is an exception, since unless federalized, they are under the control of state governors. [5]. This has now changed. Public Law 109-364, or the “John Warner Defense Authorization Act of 2007” (H.R.5122), was signed by President Bush on October 17, 2006, and 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. Title V, Subtitle B, Part II, Section 525(a) of the JWDAA of 2007 reads “The [military] Secretary [of the Army, Navy or Air Force] concerned may order a member of a reserve component under the Secretary’s jurisdiction to active duty…The training or duty ordered to be performed…may include…support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.” [6]

    [edit] New Orleans, Louisiana in the War of 1812
    During the War of 1812, U.S. General Andrew Jackson imposed martial law in New Orleans, Louisiana after capturing the encampment of New Orleans from the British in the Battle of New Orleans.

    [edit] The Territory of Hawaii
    During World War II (1939 to 1945) what is now the State of Hawaii was held under martial law from 1941 to 1945 .

    [edit] Hurricane Katrina
    Contrary to many media reports at the time, martial law was not declared in New Orleans in the aftermath of Hurricane Katrina, because no such term exists in Louisiana state law. However, a State of Emergency was declared, which does give unique powers to the state government similar to those of martial law. On the evening of August 31, 2005, New Orleans Mayor Ray Nagin nominally declared “martial law” and said that officers don’t have to worry about civil rights and Miranda rights in stopping the looters. [7] Federal troops were a common sight in New Orleans after Katrina. At one point, as many as 15,000 federal troops and National Guardsmen patrolled the city to curb its descent into chaos and looting.

    See also “What Is Martial Law? And is New Orleans under it?” by the Slate Explainer.

    [edit] Controversy
    The factual accuracy of this article is disputed.
    Please see the relevant discussion on the talk page.
    This section needs additional references or sources to facilitate its verification.
    Please help improve this article by adding reliable references. Unverifiable material may be challenged and removed.
    This article has been tagged since February 2007.

    Debate exists in regard to the legality of a Presidential decree of martial law, due to recent pronouncements from the Bush Administration and national security initiatives that were put in place in the Reagan era. When president Ronald Reagan was considering invading Nicaragua, he issued a series of executive orders that provided the Federal Emergency Management Agency with broad powers in the event of a crisis such as violent and widespread internal dissent or national opposition against a U.S. military invasion abroad. To date, these powers have never been used but with the 2003 Invasion of Iraq, 2006 U.S. immigration reform protests and the possibility of avian flu spreading globally, concerns have been raised that these powers could be employed or a de facto drift into their deployment could occur.

    In addition, from 1982-84 Colonel Oliver North assisted FEMA in drafting its civil defense preparations. Details of these plans emerged during the 1987 Iran-Contra scandal. They included executive orders providing for suspension of the constitution, the imposition of martial law, internment camps and the turning over of government to the president and FEMA. FEMA, whose main role is disaster response, is now also responsible for handling U.S. domestic unrest. With recent proposals to criminalize illegal and undocumented immigrants, the United States saw itself immersed in a debate at the end of March and beginning of April about these laws and the role of immigration post-September 11.

    A Miami Herald article on July 5, 1987, reported that the deputy of former FEMA director Louis O. Giuffrida, John Brinkerhoff, handled the martial law portion of the planning. The plan was said to be similar to one titled “Rex 84”, which Mr. Giuffrida had developed earlier to combat a national uprising by black militants. It provided for the detention of at least 21 million African-Americans in assembly centers or relocation camps. Following a request by the Pentagon in January, 2002, that the U.S. military be allowed the option of deploying troops on American streets, the Anser Institute for Homeland Security in February, 2002, published a paper by current-employee Mr. Brinkerhoff that argued the legality of this. He alleged that the Posse Comitatus Act of 1878, which has long been accepted as prohibiting such deployments, had simply been misunderstood and misapplied. The preface to the article also provided the revelation that the national plan he had worked on, under Mr. Giuffrida, was approved by Reagan, and actions were taken to implement it.

    The full facts and final contents of Reagan’s national plan remain uncertain, in part because President Bush took the unprecedented step of sealing the Reagan presidential papers in November of 2001 via Executive Order 13233. The papers in question, some dealing with Reagan-era officials who now have high posts in the Bush administration, were to have been disclosed under the 1978 Presidential Records Act, which said that the documents could be restricted at the most for 12 years after Reagan left office.

  11. David Fitzgerald Says:


    As I’ve written before in this space, the thing about the current administration that is particulalry scary is the attempt to abrogate judicial and legislative authority in the executive under color of law. This is particulalrly acute with regard to the refusal to subject executive judgments to judicial review (ie refusal to grant Guantanamo detainees habeus corpus rights, his universal assertion that he can declare anyone, anywhere an enemy combatant and not have that decision reviewed, the use of the CIA to abduct suspects and take them offshore for interrogation and, at least as reported, torture, his assertion that US attorneys need not enforce an order of contempt of Congress in the face of his subordinates assertion of executive privilege,etc…) and in his insistence that his presidential signing statements give him the authority to both interpret (a judicial function) and selectively enforce (a legislative perogative with regard to drafting the laws) laws duly passed by Congress and signed by him.

    When you turn it into a list like this, these things, which “actually” happened and are happening sound like the bill of particulars against George III in the DOI.

    Aside from the blatant infringements these “policies” cause on the civil rights of others, the greatest calamity of all of this is that everywhere the notion that the US stands for the rule of law has become a big joke. Look at Burma. Hundreds of thousands of Buddhist monks for godsakes have been killed, beaten and tortured for engaging in the mildest forms of civil disobedience. The president, to his credit, quickly condemned such actions. However, very few listened. Everyone here in London was waiting for the Chinese, again for godsakes, to intervene. Of course, the Chinese, who are stripping Burma of every natural resource it has at rock bottom prices, remain silent.

    By undermining US moral authority, this President has made it easier for Putinism, Communist China and Iran to credibly state that “cultural differences” are all that separates them from us. If that’s not actual harm, I don’t know what is?

  12. Timothy Peach Says:

    It’s difficult for me to judge anyone’s level of concern given a set of facts, but the connection between Bush’s overreaching and our inefficacy in changing Burma from the bully pulpit seems rather tenuous to me.

    It also strikes me as a tad ironic that your primary concern would be executive branch overreaching in this day and age — to my mind, by far the biggest hazard to democracy is the ongoing tendency, with little concern from the standard legal circles, of courts to write law through judicial activism rather than do their job (which is to interpret law).

    Compared with the atrocity of Roe v. Wade, the single most egregious piece of judicial activism in history, and its progeny, Bush’s overreaching looks like a 5-yard illegal motion penalty to me.

    But we all have our particular zones of sensitivity, I guess.

  13. David Fitzgerald Says:

    As the mechanisms for judicial appointments have been controlled by “conservatives” for 28 out of the last 40 years and the Senate for 18 of those same 40 years, that leads to one of three conclusions (i) “conservative” presidents are not very good at selecting judicial candidates that reflect the values on which those conservatives were elected (for which, people voting for them have only themselves to blame), (ii) “conservative” judges have made a decision that the older precedent enshrining a more “liberal” post New Deal value system is, at least to a degree, rightly decided or (iii) the judicial appointees of the last 40 years are cowards who don’t have the courage of their convictions and are intellectually dishonest to boot (this may simply be a harsher way of phrasing (i)).

    As to your point that the Judiciary is the biggest threat to a democracy, no less than James Madison, John Jay and Alexander Hamilton disagree with you. They were most concerned with legislative tyranny and Madison at least had a healthy fear of the executive. None of them worried much about the judiciary.

  14. Mark Grannis Says:

    For anyone who missed Fitz’s allusion, here is the passage from Federalist # 78:

    “Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm, even for the efficacy of its judgments.”

    Many people who complain about judicial activism — particularly non-lawyers — are apt to overlook the fact that courts can only decide the cases that are brought to them. That is, even when they are in some sense “legislating,” they do not get to decide what they’re “legislating” about. This not only makes them less dangerous, it also makes them less culpable. Legislatures can generally prevent judicial activism by speaking clearly in language that will be sufficient to resolve all foreseeable questions that will arise under a particular law. Instead, what we tend to find is that legislators are quite happy to duck the difficult questions, adopt fuzzy language as a means of brokering compromises, and leave it to the courts to clean it all up later. I hesitate to condemn the practice too roundly, as the founders unquestionably used it to adopt a Constitution that united free and slave-holding states. But to blame the judiciary for doing a job that it has no prerogative to shirk is a little much.

  15. Timothy Peach Says:

    My curt response:

    (1) It’s clearly (i). Conservative picks have been unreliable, whereas liberal stooges like Ginsberg have been ultra-reliable. I think it’s because the temptation to legislate from the bench is so much stronger than the “temptation” to rein oneself in.

    (2) Three guys dead quite a long time. I’m glad to hear their worries were elsewhere, but none have them have seen any of the crap that’s come out of the courts lately. (By “lately”, I mean the last 150 years.) The Supreme Court has hardly been the sanctuary of detached reason they supposed it would be. It is just as political as the other branches.

    (3) As for the point about only seeing “what’s brought them”… as you well know, there’s an army of activists ready to bring cases to the friendliest court available to get something “interpreted” — this is especially true with regard to abortion issues. You cite practical realities when they serve you, and ignore them when they don’t.

    Fear of the judiciary is prominent and justified. We “non-lawyers”, although in the minority, perhaps benefit from a bit of judicial detachment, and therefore find ourselves closer to reason on this topic.

  16. David Fitzgerald Says:

    Even if we assume that the federal Judiciary has overstepped its Constitutional limits (a dubious assumption, but let’s stipulate the point for the purpose of argument) it is not at all clear to me that the solution is for the Executive to ignore the Constituional limitations on its department.

    The opinion piece by David Brooks I’ve cut in highlights the current tension within the “conservative” movement between Burkean conservatives and so called “movement” conservatives. Not to beat up on Tim too much, but it seems odd that someone worried about judicial activism would pull out the “dead white man” argument to refute the considered opinions of the Founding Fathers. If one feels that Constitutional boundaries have been crossed. it would seem to me that the “conservative” response would be to elect people who would encourage each department to adhere more closely to the traditional sets out by the authors of the Federalist as opposed to electing those, like our current President, who asseert novel, and in many case unprecedented, constitutional prerogatives.

    When in a hole, the best thing to do is to stop digging.

  17. Timothy Peach Says:

    In the interests of conciliation and closure, I pledge not to vote for Bush this time around.

  18. Boom, Bust, Bailout. Repeat? « Reasonable Minds Says:

    […] Patriot Act, the invade-first-inspect later approach to Iraq, the defense legislation that made it easier to declare martial law, etc.  I even find myself a little surprised that I’m not being told that short-sellers hate […]

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