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?
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.