Remember from history, how in the 18th and 19th and very early 20th centuries, the ruling classes, or their police lackeys, used to charge militant workers in order to break incipient union movements?
Well, fast forward a bit: Houston police trampled on striking janitors with horses last night.
Pictures and links at MyDD.
(Headline refers to the famous Peterloo Massacre in Manchester in 1819.)
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.
Now that they got caught, they’re sorry:
A South Florida anti-war group’s peaceful protest of military recruitment during last year’s Fort Lauderdale Air & Sea Show was labeled ”subversive” and was being monitored by the Pentagon, which kept a report on the protest in a database designed to track domestic terrorist threats.
That report in the Defense Department’s Threat and Local Observation Notice database, or TALON, was a mistake, a Defense spokesman said Thursday.
And we won’t do it again until next time, we promise.
What was the dangerous activity the Pentagon had identified as such a terrible threat?
‘BAWC plans to counter military recruitment and the ‘pro-war’ message with ‘guerrilla theater and other forms of subversive propaganda,’ ”
For next few days you can read more about this in the Miami Herald article, Pentagon admits error on ‘threat’. The initial source of the report was a civilian agency, maybe the Miami Police. So there are people — lots of people — in our civilian government and in our military, who think that “subversive propaganda” (read, First Amendment protected activities) are a reason to put you on a list of people to be spied on.
Via Crooks & Liars: Olbermann: So heavy-handed. So necessary.
Of course, biting as this satire may be, it is all a bit late now. Even if Bush hasn’t actually signed the bill yet.
Incidentally, I understand that although the Military Commissions Act (aka The Torture Bill) was so essential to our freedom that it had to be rushed through both houses before the election…the Speaker and the President Pro Tem of the Senate only got around to delivering it to the White House today. As a result, the President will be able to delay signing it until Oct. 17th (real urgent, huh?) without the bill becoming subject to a pocket veto.
The reason for the delay in delivering the bill is that the White House wanted the signing ceremony for the 17th. Had it been sent over any earlier, that would have messed up the media strategy.
I’ve lifted this whole post from Talk Left — something I rarely do — because it describes something that makes me so cross:
Steven Howards and his son were walking by a Dick Cheney event this summer in Beaver Creek, on their way to a piano lesson. Howards told Cheney he didn’t approve of his war policy. When Howards walked back from the lesson, passing the site again, he was arrested. Charges later were dropped.
Colorado First Amendment Lawyer David Lane (think Ward Churchill) sued the secret service agent today, for violating his First and Fourth Amendment rights. The full complaint is here (pdf).
[UPDATE: NYT story on the suit. Don’t miss the last line.]
TalkLeft’s summary of the factual allegations in the lawsuit are below. Newer readers are encouraged to visit this earlier post of mine, America Needs You, Harry Truman–which deals with what your are free to say in America, and really isn’t as funny as it used to be.
Buried on page A12 of the Saturday (lowest weekly circulation) Washington Post, is a little lecture from the Lord Falconer. As you read this consider that this is undoubtedly a case of British understatement.
Briton Cites ‘Divergence’ With U.S.: Charles Falconer, one of the highest-ranking justice officials in Britain, said Friday that there is a “great divergence” in how Britain and the United States are handling the fight against terrorists, describing the U.S. approach as a willingness “to do things beyond the law.”
Falconer said in an interview that the practices of holding terrorism suspects without charge at Guantanamo Bay, Cuba, and interrogating them in secret CIA prisons have made it “harder to identify to the world what your values are.”
…
Falconer recently called Guantanamo Bay “an affront to the principles of democracy.” In a lengthy interview Friday, he said Britain had learned hard lessons in the 1970s when it pursued a hard-line course in response to the bombing campaign of the Irish Republican Army. Police got new leeway in interrogation, while suspects’ civil protections were reduced. In multiple cases, innocent people were convicted and sentenced.
“We suffered badly in the ’70s and ’80s,” Falconer said, adding that the United States was among those criticizing the British approach at the time. He also noted that IRA fundraising “shot up” during this period.
…
“Keep your justice system as pure as you can,” Falconer said. “This is advice to a friend from the experience we have had.”
…
Falconer said both countries value democracy and rule of law. But some U.S. practices are “undercutting the very values both countries adhere to,” he said.
Asked whether these practices had hurt U.S. prestige in the world, Falconer said, “it is something that is raised a lot.”
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