Monthly Archives: October 2006

Crazy Times (Martial Law Edition)

I've mentioned before that we live in crazy times, that so many things which seemed politically impossible now seem at least possible, and that those of us who take freedom seriously have to worry about stuff we'd have laughed off a decade ago.

I'm reminded of this by two things which at first may seem unrelated: an incident involving an attempt to incite the arrest of Michael Schiavo and an amendment to the (former) Insurrections Act, which has now morphed into an act regarding “Enforcement of the Laws to Restore Public Order,” an amendment which has sparked a remarkable amount of blog angst about possible martial law.

First, there's this I-wish-it-were-incredible story from Michael Schiavo, the husband of Terry Schiavo, who has been dedicating himself to going around the country supporting opponents of the legislators who tried to federalize his wife's hospitalization.

My unreal night in Colorado: Back in mid-July I travelled to Colorado and delivered a letter to Congresswoman Musgrave's office. asking her why she felt compelled to interfere in my family's personal affairs – questioning, in fact trying to refute the medical facts of my wife's case on the floor of Congress.

Not surprisingly, Marilyn Musgrave never responded to my letter.

So on Tuesday I joined about 1,000 citizens and members of the local and regional media in the Windsor High School Auditorium to hear the debate and try to get an answer to my question from Congresswoman Musgrave.

About twenty minutes before the debate started and after speaking to several reporters about how Musgrave had voted to transform her values into our laws, I took a seat in the front row. As it turned out, I was seated next to the timekeeper who held up yellow and red cards to signal time to the candidates.

But just minutes after taking my seat, I noticed a flurry of activity around my seat including about four uniformed police officers who were – I would learn later – called in by Musgrave staffers and asked to remove me from the building.

At this point, I had made no speeches, I had no signs, had made no attempt to disrupt or cause any commotion. I only came into the auditorium, spoke to a dozen or so reporters and took a seat.

To their credit, the police refused the Musgrave campaign's appeal to have me removed.

There's more to come, but I still can't get over even that part. A sitting member of Congress asked the police to remove me – a taxpaying citizen – from a public debate. Obviously, I misunderstand the concept of a political debate. I thought a debate was a place to share ideas, answer questions, defend your record and tell citizens what you've done and what you will do. Marilyn Musgrave believes, I have to gather, that debates are places to have the police remove people who don't agree with you.

(And why shouldn't Congresswoman Musgrave think that you can have your critics arrested? After all, it works for George Bush and Dick Cheney.)

Then there's this second thing, an amendment to 10 USC § 333, that significantly expands the circumstances in which the President can deploy the full armed forces — and federalize the state National Guard even over a local governor's objections. The old version of the Insurrection Act, along with the Posse Comitatus Act, sought to narrow Presidential power and localize the decision to use force. [UPDATE: For a tour de force introduction to the legal regime as it existed prior to this most recent amendment, see Steve Vladeck's amazing student note, Emergency Power and the Militia Acts, 114 YALE L.J. 149 (2004).]

Some of the circumstances the law addresses are pretty clear — “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident,” — even if not necessarily keeping with our traditions of civilian law enforcement and federalism.

But some are pretty vague: The President can call out the full military might of the US (and remove the governor's control of local forces), whenever he thinks that “any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy” in a state has resulted in situation that,

(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

But here's the thing: the section quoted above, the vaguest and broadest part of this statute, the very part that has some folks worrying out loud about martial law, is pretty much the same as the old language, which allowed the President to call out the troops to,

suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

Laws like this are always troubling because there is no practical way to challenge their application. Unless it were willing to strike down the statute as a standardless delegation — a nearly moribund doctrine — it is very hard to see a court telling the President that, say, the chaos in New Orleans after the flood, or even the limited violence in Florida in 2000 when GOP operatives attacked the ballot counters, didn't rise to a level that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The courts are going to label that a political question, or find some other excuse for the courts to duck the matter.

But while this sort of executive discretion is always a problem for democratic rule, as I hope I've shown by juxtaposing the old language and the new it's not a new problem, not at all.

You might wonder why people got all excited about this today, when similar language has been on the books for quite a long time. Some people might just dismiss it as hysteria, a sort of left-wing or libertarian-right-wing paranoia. I think it's subtler than that.

What's new is that so many more of us no longer have the gut-level feeling that we can rely on the people in charge not to abuse the system; this doubt has a large number of people starting at shadows. In one sense that doubt is a beautiful thing: it is part of a free people's antibodies against tyrants. We need to respect that feeling, even while being annoyed about the extra work vigilance imposes on us.

Finding the precisely appropriate dose of concern is a difficult calibration exercise. In that context it is important to understand that the case of Michael Schiavo has two lessons: on the one hand, part of the current ruling cabal mistook our government for a revolutionary junta. On the other hand, the local police had the good sense not to listen.

Emergency federal powers of the type set out in § 333 are scary in part because they threaten to displace the good sense and discretion of a few local cops with the necessarily more order-following tradition of the military officer on the scene. But in the main that's not a new problem, it's a very old one — one today that it is exacerbated by the attack on habeas corpus, and the administration's legal claims that it can jail any of us, any time, for as long as it wants — not to mention the administration's claim that it has the legal right to kill us.

In good times we just don't have to worry about that stuff. But these are crazy times, not good ones.

Full statutory text below the fold.

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Posted in Civil Liberties, Politics: Tinfoil | 7 Comments

Google Fights Genericide

Google™ fights to avoid genericide.

Genericide” is when your trademark becomes a synonym for a thing or activity. Asprin was a trademark once. Xerox™ and Kleenex™ live on the edge of genericide and spend big bucks to prevent it.

If “to Google” something were to come to mean to search for it online regardless of which search engine one used, google or “googling” would have become generic, destroying the trademark — and meaning that competitors could use it too. At present it still clangs a little to say “I googled him on Yahoo” so I think the brand is not yet generic.

But they sure are right to be worried.

Posted in Law: Trademark Law | Leave a comment

Chris Matthews Says GOP Campaign ‘Crosses the Line’

Even generally right-wing supporters of the GOP find its racist ad campaign to be too much to bear. Here’s Chris Matthews, an unreliably right-wing commentator (he has a contrarian streak he lets out now and then), commenting on the “race-baiting in Tennessee” as one of the “last tactics in a losing campaign“:

“I think it’s awful for America,” Matthews said.

Posted in Politics: The Party of Sleaze | Leave a comment

Notes from All Over

Posted in Linkorama | Leave a comment

Fighting Back

It’s been pretty depressing to see the slime tactics proliferating in this campaign. And while there’s no question that both sides are going negative, there’s one side that’s going ugly, and making stuff up. And that is our desperate GOP, the party that sees its monopoly on power possibly slipping from its grasp. In Tennessee, in Virginia, in Missouri, in many other places, it’s not at all pretty right now.

On the brink of what could be a power-shifting election, it is kitchen-sink time: Desperate candidates are throwing everything. While negative campaigning is a tradition in American politics, this year’s version in many races has an eccentric shade, filled with allegations of moral bankruptcy and sexual perversion.

At the same time, the growth of “independent expenditures” by national parties and other groups has allowed candidates to distance themselves from distasteful attacks on their opponents, while blogs and YouTube have provided free distribution networks for eye-catching hatchet jobs.

The result has been a carnival of ugly, especially on the GOP side, where operatives are trying to counter what polls show is a hostile political environment by casting opponents as fatally flawed characters. The National Republican Campaign Committee is spending more than 90 percent of its advertising budget on negative ads, according to GOP operatives, and the rest of the party seems to be following suit.

At least in Virginia, Jim Webb is fighting back against George Allen’s smears.

And Michael J. Fox responds to Limbaugh’s attack on Fox’s McCaskill commercial.

Overall, though, I think Democrats still haven’t fully adapted to the new realities of smear and jeer politics.

Race to the bottom? Or is there some way to struggle to the top?

Posted in Politics: US: 2006 Election | 1 Comment

David Letterman, Patriot

By his own defiant admission, David Letterman is not one of our nation’s intellectuals, nor is he going to be on anyone’s top-10 list of foreign policy thinkers.

Usually he’s just out to crack some jokes and give us a slightly goofy and sardonic good time. But darn it if the man’s not a patriot. It’s clear that the war in Iraq bothers him, casualties for no discernible purpose, and he’s willing to use his pulpit to show that angst.

Witness this clip of an eleven-minute (that’s long by TV standards) set-to with Bill O’Reilly, the serial fabricator from Fox, and poster child for Republican family values.

I’m not a great Letterman fan, but I think Letterman does himself, and the rest of us, proud here. It’s a long download, but worth it.

Incidentally, I was impressed to discover that Letterman is not just talk when it comes to worrying about the way our leaders treat the US military: according to the Wikipedia,

Letterman, along with bandleader Paul Shaffer and Late Show stage manager Biff Henderson, celebrated Christmas 2002 in Afghanistan with United States and international military forces stationed there. The three visited Iraq around Christmas in 2003 and 2004 as well.

Posted in Iraq | 6 Comments