Is Martial Law Around the Corner?
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Editor's note: After writing about the White House's issuance of a "National Continuity Policy" on May 9 which entrusts President Bush to lead the entire federal government, not just the Executive Branch, to ensure "constitutional government" in the case of a "catastrophic emergency," Progressive magazine editor Matthew Rothschild has followed up after consulting with the ACLU to see what they thought about it. (For another take on the National Continuity Policy, read Marjorie Cohn's article, " Don't We Have a Constitution, Not a King?")
A note of caution since I wrote about Bush's plans to anoint himself the insurer of constitutional government in the event of emergency.
I decided to see what the American Civil Liberties Union thought of the May 9 release of the National Security Presidential Directive, and to my surprise, the ACLU did not seem that concerned about it.
"These presidential directives on the continuity of government have existed for a long time," says Mike German, ACLU policy counsel. "All it does is establish that they should have a policy and coordinate that policy with legislative and judiciary. It doesn't change the order of succession, or anything like that."
Plus, he praised the Bush Administration for making the document public, since previous ones have remained classified.
"I'm glad they made it public," he says. "The fact that this was done in an open and transparent manner should be applauded."
As to the substance of the document: "It's impossible to know whether this is an attempt to usurp some authority that had otherwise not been contemplated by law," German says.
It certainly is curious as to why the Bush Administration released the document. The last paragraph is entitled "Security," and it states: "This directive and the information contained herein shall be protected form unauthorized disclosure, provided that, except for Annex A, the Annex's attached to this directive are classified."
But whatever the reason for the disclosure, the document is not reassuring, especially given Bush's demonstrated disdain for the Constitution.
Take his approval of warrantless NSA domestic spying. U.S. District Judge Anna Diggs Taylor ruled that it "undisputedly" violates the Fourth Amendment, "undisputedly" violates the Foreign Intelligence Surveillance Act, violates the First Amendment, and violates the separation of powers. Not mincing any words, she added: "The Constitution itself has been violated."
Or take his policy of denying U.S. citizens due process. Justice Sandra Day O'Connor, writing for the Supreme Court in the Hamdi case, said the President does not have a blank check in times of war. "We necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts," O'Connor wrote. And she explicitly warned about an Executive Branch approach that "serves only to condense power into a single branch of government."
Condensing power into a single branch is precisely what concerns me about Bush's new directive.
The directive also uses fudge words that President Bush was fond of while he was trying to find ways to justify torture. The continuity of government directive says it will be implemented in a manner "consistent with" the Constitution and "consistent with applicable law."
Compare that with Bush's February 7, 2002, order governing the treatment of detainees: "The war against terrorism ushers in a new paradigm. . . . Our nation recognizes that this new paradigm -- ushered in not by us, but by terrorists -- requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva."
In that context, Bush used the phrase "consistent with" to justify actions that were antithetical to the Geneva Conventions.
You have to wonder whether he's using that phrase in a similar way when it comes to the Constitution in times of an emergency.
What's more, there are the comments by former high-ranking officials in the Bush Administration who have said that martial law is coming if we're attacked again.
Wayne Downing was Bush's deputy national security adviser for counterterrorism under Condoleezza Rice early in the first term. On December 24, 2002, six months after he retired, he told The Washington Post: "The United States may have to declare martial law someday in the case of a devastating attack with weapons of mass destruction causing tens of thousands of casualties. This could mean that the military would be given the authority to impose curfews, protect businesses and communities, even make arrests."
General Tommy Franks, who led the Iraq invasion, told Cigar Aficionado in December 2003 that if terrorists attack us again, this time with a weapon of mass destruction, it will cause the "population to question our own Constitution and to begin to militarize our country in order to avoid a repeat of another mass-casualty-producing event. Which, in fact, then begins to potentially unravel the fabric of our Constitution."
Downing and Franks aren't the only former officials talking about martial law.
On April 7, 2004, Ted Koppel hosted a Nightline program on the very subject.
He said if Washington, D.C., is attacked, "Aren't we left for at least the foreseeable future with some sort of martial law anyway?"
Kenneth Duberstein, Reagan's chief of staff, responded: "You have to suspend rights."
Richard Clarke, who was Clinton's counterterrorism expert and was in the Bush Administration on 9/11, responded: "There would be a period of, for lack of a better term, something like martial law."
One month later, Koppel spoke at the University of California-Berkeley commencement and again addressed the martial law issue quite frankly: "Do not doubt for a moment that, at some point, during the next few years, one or the other of those weapons [chemical, biological, or nuclear] will almost certainly be used in an act of terrorism against the United States . . . in the United States. Then the time for discussing our civil liberties will be over. More than likely, the use of a chemical or biological weapon in a terrorist attack against the U.S. homeland would lead to the imposition of martial law. For how long and under what circumstances it would be lifted again has, to the best of my knowledge, never even been publicly addressed. But understand that the most implacable enemy of our civil liberties is fear. What we will do after the next terrorist attack is not a conversation that should be deferred."
So why is it being deferred?
Why is Congress not taking up the urgent need to hold hearings on this very subject?
Here are two more reasons to be worried.
The Northern Command, Northcom, created by Bush, already has plans to militarize the United States in the event of an attack.
"The new plans provide for what several senior officers acknowledged is the likelihood that the military will have to take charge in some situations, especially when dealing with mass-casualty attacks," Bradley Graham wrote in The Washington Post on August 8, 2005.
Then there is the revision to the Posse Comitatus Act, which Bush whisked through last October.
In an editorial on February 19 of this year, aptly entitled "Making Martial Law Easier," The New York Times wrote: "Beyond cases of actual insurrection, the President may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack, or to any 'other condition.' Changes of this magnitude should be made only after a thorough public airing. But these new Presidential powers were slipped into the law without hearings or public debate."
Interestingly, some in the Bush Justice Department didn't believe this Congressional change was even necessary. On October 23, 2001, then-Deputy Assistant Attorney General John C. Yoo and Robert J. Delahunty, then-special counsel in the Office of Legal Counsel, wrote a memo to Alberto Gonzales, then-White House Counsel, and William Haynes II, then-general counsel for the Pentagon: "We recently opined that the Posse Comitatus Act, 18 USCs.1385 (1994), which generally prohibits the use of Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States."
Now Congress has given Bush and the Pentagon this power anyway.
I hope the ACLU is correct, and that Bush's May 9 directive is nothing to worry about.
But given all that we know about the Bush Administration, I, for one, am not convinced.
What I am convinced of, however, is the need for Congressional hearings on this subject -- before it's too late.
Matthew Rothschild is the editor of The Progressive.