Dave Gilson

There's a provision in the defense authorization bill signed two weeks ago by President Bush that makes it easier for the White House to assume command of the National Guard during a major national emergency. This quiet yet significant expansion of executive power is causing all kinds of anxious buzz on lefty blogs. BoingBoing's Cory Doctorow fumes, "Between the right-to-torture bill and this one, it's clear that Bush intends to bring back the pork-politics glory of the Cold War by reinventing the Soviet Union on American soil." At towardfreedom.com, Frank Morales intones, "[I]t is particularly worrying that President Bush has seen fit, at this juncture to, in effect, declare himself dictator." The provison, which modifies the president's powers under the Insurrection Act and Posse Comitatus Act, allows him to mobilize the National Guard without governors' approval in order to respond to natural disasters, epidemics, terrorist attacks, and insurrections. This is feeding into conspiracy theories that, in the wake of a Democratic congressional victory (or mass protests against a rigged Republican victory) the administration will simply declare martial law. Why else, as Gore Vidal told the Huffington Post, would Bush seem so confident about the upcoming election results?

Let's catch our breath for a moment. For all the talk of this being a "stealth" provision, it's worth noting that the National Governors Association was against it, as were many members of Congress, including Senators Patrick Leahy (D-Vt.) and Kit Bond (R-Mo.). Does the law expand presidential powers unnecessarily? It certainly appears so. As Leahy explained publicly before the provision was made official:

[T[he Defense Authorization Bill will actually encourage the President to declare federal martial law—something has been done in only three—three—occasions over the past several decades.... [W]e certainly do not need to make it easier for Presidents to declare martial law. Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy. It creates needless tension among the various levels of government—one can easily envision governors and mayors in charge of an emergency having to constantly look over their shoulders while someone who has never visited their communities gives the orders.

Yep, it looks like Congress gave Bush and Co. another big fat constitutional freebie, buried inside a big bill that passed the Senate unanimously and the House 398 to 23. But does this mean that Karl Rove is smiling because he's going send tanks down Main Street November 8? For all its flaws, there's nothing in the new law that hints that such a move is suddenly legal. And the last time I checked, the National Guard kind of had its hands full dealing with a much bigger disaster than the prospect of Speaker Pelosi.

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