Archive for October 4, 2008

Palin’s Quasi-Sexual Rhetoric

From someone significantly smarter than me: listen to how sexually Palin speaks – her rhetoric is dominated by phrases like “surge,” “hungry,” “flow,” and “passionate.” And then of course she brought up Biden’s “rape the continental shelf” comment. I wonder, though: does the continental shelf have to pay for its own rape kit?

Posse Comitatus & Crossing our Rubicon

According to the Army Times, ((H/T to, of all people, “The Confluence.”)) the U.S. armed forces may become a permanent stateside presence, in assisting as “an on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks.” As I’ve previously written, there’s cause to worry when the armed forces of any republic participate actively in the homeland, absent war or insurrection. The question is, just how much cause is there to worry? Let’s analyze.

The Law: Posse Comitatus

Since the 1800s, federal law has forbidden the use of the armed forces to exercise posse comitatus (“power or authority of country”) – in essence, the declaration of martial law, and the concomitant enforcement of domestic law by a branch of the armed services. ((See Posse Comitatus Act of 1878, 18 U.S.C. § 1385 (2008).)) The command is ancient to the Republic, and tied up with the ideals of the Suspension Clause, ((“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” U.S. Const, Art. I, § 9, cl. 2.)) in that it guarantees a safe distance between the civilians and the army in their domestic life. Since its enactment in 1878, the ban against posse comitatus has provided for exceptions where “expressly authorized by the Constitution or Act of Congress.” ((See Bissonette v. Haig, 776 F.2d 1384 (8th Cir. 1985), citing 18 U.S.C. § 1385, reprinted in Stephen Dycus, William C. Banks, and Peter Raven-Hansen, COUNTERTERRORISM LAW 670-771 (2007).)) This gels with a traditional notion of the separation of powers: the President has some inherent authority to respond to national disasters, and when Congress agrees with the President that a course of action must be taken, the President’s power is “at its zenith.” ((See Youngstown Tube & Sheet Co. v. Sawyer, 343 U.S. 579 (1952).))

The requirement for “express” statutory authorization is well-taken. Presidents, especially this one, have a history of reading any vague statute conferring war powers as conferring ALL war powers, to the detriment of “enemy combatants” and American citizens, too. So, if an exception to the ban against posse comitatus were either vague or specific and still extremely broad, there would be cause to worry: the President could claim an exception that swallows the rule.

Fortunately, even with President Bush’s revisions to the Insurrection Act in 2006, the statutory exemption to posse comitatus is still fairly small, and is generally understood to have come simply to clarify the President’s authority to use the National Guard, in situations like Hurricane Katrina. ((See Dycus et al, supra, at 679.))  The amendment didn’t change much; the pre-existing exception to posse comitatus was expansively construed, and had actually been frequently used to quell race riots in the 1960s. ((Id.)) If anything, Bush’s amendment narrowed the posse comtitatus exception, by more explicitly laying out the requirements for the usage of military power against domestic civilians. The current statutory exception follows below the line; notice that it is justly very limiting.

The Rant Cautionary Remarks: Chill

Anytime that forces of war touch boots on American soil with guns over their backs, it’s worrying. But as it stands, the President’s hands are tied as to when he can use these troops. Of course, no-one brings troops back to the United States under arms except to use them.

I’d be more worried about what the troops’ new presence suggests Bush is planning on, or fears is in store for us, than I would be about the statutory authorization the President has, which does seem to cut against his powers a great deal. If Bush knows something we don’t… be afraid. If Bush doesn’t know something we don’t, be even more afraid.

Regardless, our Congress is now quite wary of the President’s ridiculous theories of the “unitary executive.” If Bush were to move on this, a Congressional wrist-slap would be instantaneous, and any crisis would be over before it began. Know your rights, stay informed, and bring this to the public’s attention. That’s all there is to do now.

Except, perhaps, vote for the guy whose ideas on executive power would find this sort of thing repulsive. Continue reading »

Bordering on Unhealthy

People say Obama’s fans border on a cult of personality! Rich Lowry, of the National Review Online: “I’m sure I’m not the only male in America who, when Palin dropped her first wink, sat up a little straighter on the couch and said, ‘Hey, I think she just winked at me.’ And her smile… was so sparkling it was almost mesmerizing.” Dear God, someone get this guy a real woman, and explain to him that the nice lady on TV isn’t winking at him: “when you think the people on TV are addressing you personally and directly it’s often a sign of incipient dementia.”