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Law Public Law 109-364 (H.R. 5122) Oct 17, 2006 2014-06-19

Nullifies Posse Comitatus

  1. Brokor
    Nullifies Posse Comitatus

    (Scroll to page 322 of the document, under section 1076)

    The John Warner Defense Authorization Act of 2007 passed easily at the end of September 2006, authorizing the expenditure of $526 billion for fiscal year 2007. Only 23 U.S. representatives voted against the Act, and not a single senator objected during a unanimous voice vote.

    One provision of the Act, Section 1076, has created outrage among grassroots activists, based on an article that swept through email and independent media rounds: "Bush Moves Towards Martial Law." BORDC has compiled some resources to clarify what Section 1076 actually says, and how the Insurrection Act was changed.

    Section 1076
    Major changes:
    • Changed the title of the law from "Insurrection Act" to "Enforcement of the Laws to Restore Public Order Act"
    • Specifies situations in which the President can invoke martial law (natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident or other condition in which the President determines that domestic violence has occurred to the extent that state officials cannot maintain public order). These had not been specified before.
    • Spells out the President's obligation to inform Congress within 14 days when he determines to exercise the authority, and every 14 days thereafter, during the exercise of the authority. This had also not been specified under the Insurrection Act.
    Compare the previous Insurrection Act to the current "Enforcement of the Laws to Restore Public Order Act" for yourself. Use the following links:

    • HR 5122 Section 1076 is the Defense Appropriations Bill in which changes to the Insurrection Act appear. Choose the ENR (enrolled) version of the bill.
    • Insurrection Act—See sections 331-335.
    Congressional Remarks:
    Senator Edward Kennedy (D-MA) spoke in favor of the changes to the Insurrection Act, referencing the Administration's poor response to Hurricane Katrina. Kennedy seems to believe the provision does not grant any additional powers to Bush, but merely specifies which emergency situations will be covered by his existing powers:

    • "As I understand the amendment, it defines when the President can call on the Armed Forces if there is a major public emergency at home. The amended statute now lists specific situations in which the troops can be used to restore public order. This includes natural disasters, epidemics or other serious public health emergencies, and terrorist attacks or incidents that result in domestic violence to such an extent that State authorities are unable to maintain public order. These were not mentioned specifically before. While the amendment does not grant the President any new powers, it fills an important gap in clarifying the President's authority to respond to these new kinds of emergencies."
    Senator Patrick Leahy (D-VT) spoke out vehemently against the provision, as part of an overall defense of the National Guard as a body, which is best employed locally, by the Governor of the state in which the Guard is stationed, and not siphoned off as an auxiliary national force by the White House and Pentagon. Below are two quotes from his statements on September 29, 2006 in the Senate. Read his complete statement.

    • "It also should concern us all that the conference agreement includes language that subvert solid, longstanding posse comitatus statutes that limit the military's involvement in law enforcement, thereby making it easier for the President to declare martial law. There is good reason for the constructive friction in existing law when it comes to martial law declarations..."
    • "Also, it seems the changes to the Insurrection Act have survived the conference because the Pentagon and the White House want it. It is easy to see the attempts of the President and his advisors to avoid the debacle involving the National Guard after Hurricane Katrina, when Governor Blanco of Louisiana would not give control of the National Guard over to President and the Federal chain of command. Governor Blanco rightfully insisted that she be closely consulted and remain largely in control of the military forces operating in the State during that emergency. This infuriated the White House, and now they are looking for some automatic triggers--natural disasters, terrorist attacks, or a disease epidemic--to avoid having to consult with the Governors.
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