Kiwi Polemicist

December 22, 2008

Military police on the highways of America (Part 2)

Filed under: Uncategorized — Kiwi Polemicist @ 2:00 am

You may have read my previous post about the possibility of martial law in the United States and thought that it was a bit far-fetched. Well, it’s not and to prove it let’s have a look at how easy it is for the President of the United States to impose martial law.

Here’s what James Bovard says:

Martial law is perhaps the ultimate stomping of freedom. And yet, on September 30, 2006, Congress passed a provision in a 591-page bill¹ that will make it easy for President Bush to impose martial law in response to a terrorist “incident.” It also empowers him to effectively declare martial law in response to what he or other federal officials label a shortfall of “public order” – whatever that means.

It took only a few paragraphs in a $500 billion, 591-page bill to raze one of the most important limits on federal power. Congress passed the Insurrection Act in 1807 to severely restrict the president’s ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened those restrictions, imposing a two-year prison sentence on anyone who used the military within the United States without the express permission of Congress. (This act was passed after the depredations of the U.S. military throughout the Southern states during Reconstruction.)

But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act.

The Insurrection Act and Posse Comitatus Act aim to deter dictatorship while permitting a narrow window for the president to temporarily use the military at home. But the 2006 reforms basically threw any concern about dictatorial abuses out the window.

Section 1076 of the Defense Authorization Act of 2006 changed the name of the key provision in the statute book from “Insurrection Act” to “Enforcement of the Laws to Restore Public Order Act.” The Insurrection Act of 1807 stated that the president could deploy troops within the United States only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.”² The new law expands the list of pretexts to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition” – and such a “condition” is not defined or limited.


The new law also empowers the president to commandeer the National Guard of one state to send to another state for as many as 365 days. Bush could send the South Carolina National Guard to suppress anti-war protests in New Haven. Or the next president could send the Massachusetts National Guard to disarm the residents of Wyoming, if they resisted a federal law that prohibited private ownership of semi-automatic weapons³. Governors’ control of the National Guard can be trumped with a simple presidential declaration.

Bush can commandeer a state’s National Guard any time he declares a “state has refused to enforce applicable laws.” [emphasis added]

Martial law was imposed in New Orleans after Hurricane Katrina and that was before the law change described above. We can expect to see martial law used in a wider range of situations now that the President has an invitation to dictatorship.

What do you think about the US president having these powers?


See also Part 1 and Part 3.




1) the Bill that Bovard refers to is the annual appropriations bill setting out the military budget for the next year. Section 1076 is sandwiched in between one section regarding patent term extensions on badges and another about hunting and fishing opportunities for members of the armed forces; putting a major extension of presidential powers into an appropriations bill is generally considered to be a sneaky move at best. What section 1076 does is amend US Code Title 10, section 333. The US Code is the Federal law book.

2) A very similar passage is currently found in US Code Title 10, section 332.

3) A little cultural information is helpful here. The USA is a very parochial place and generally it would be much easier for a National Guard unit to use force against people from a different state, as compared to using force against people from their own state.



  1. The way in which Bush tossed out both posse comitatus and habeas corpus was appalling. In effect, he took us right back to pre-Magna Carta days. And equally appalling was the fact that most people didn’t notice what was going on – or didn’t grasp the significance of the moves. I tried to persuade the news editor at the Manawatu Standard to run a story on the developments, but she said almost nothing had come “over the wire” (from NZPA). In the end, I think we ran a one-paragraph item in the Briefs column. There has been a catastrophic failure of Western journalism, which is perhaps not surprising in view of the corporatization of the media.

    Comment by Alan Ireland — January 21, 2009 @ 8:44 pm

  2. Alan: the state always has been and always will be the enemy.

    There is a common myth which says that the state is the servant of the people. It is in fact the body which maintains a monopoly of force over a territory in order to subjugate the people.

    I have heard two convincing explanations for the failure of the Western media:
    1) most journalists are left wing
    2) journalists don’t want to rock the boat because that will cause the politicians to freeze them out and therefore threaten their career and/or livelihood.

    Do you have comments on this?

    This may interest you:

    Comment by kiwipolemicist — January 21, 2009 @ 8:52 pm

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