Is Martial Law Coming?

June 3, 2007

by Joe Miller

Below find a link to an excellent article by Charlie Savage (1) on Saturday describing the Directives Bush signed on May 4 to provide "continuity of government" in the event of a catastrophic terrorist attack or natural disaster. The Savage article provides additional clarification to two earlier articles by Matthew Rothschild (2, 3) in the online edition of The Progressive on the possible implications and issues posed by Bush's National Security Presidential Directive (NSPD 51) and Homeland Security Presidential Directive (HSPD-20). Savage has provided a real service to the country by forcing a discussion of the Directives onto the national media stage.

1. White House Revises Post-Disaster Protocol
   Charlie Savage, Boston Globe, 6/2/07
   http://www.commondreams.org/archive/2007/06/02/1623/
2. Bush Anoints Himself as the Insurer of Constitutional Government in Emergency
   Matthew Rothschild, The Progressive, 5/18/07
   http://www.progressive.org/mag_wx051807
3. Is Martial Law Coming?
   May 29, 2007 By Matthew Rothschild, The Progressive, 5/29/07
   http://www.progressive.org/mag_wx0529b07

While planning to ensure maintenance of government following a catastrophic terrorist attack or natural disaster is obviously imperative, such planning needs to reflect the checks, balances, and safeguards mandated by our Constitution. Both Savage and Rothschild (especially the May 29 article) raise vital questions about whether the new policy would make it too easy for the President to invoke emergency powers and perhaps marital law; and whether the emergency powers would be implemented and/or could be terminated in a manner consistent with Constitutionally mandated checks and balances, or whether they would be implemented in a way consistent with Bush's belief in the "unitary executive." Bush interprets this doctrine to mean that the commander in chief in a time of war and in matters of national security has the authority to "overrule and bypass Congress or the courts, based upon his own interpretations of the Constitution" (4).

4. The Unitary Executive: Is the Doctrine Behind the Bush Presidency Consistent with a Democratic State?
   Jennifer Van Bergen, FindLaw.com, 1/9/06
   http://writ.news.findlaw.com/commentary/20060109_bergen.html

Bush has already utilized the unitary executive doctrine (5) to justify his authorization of warrantless domestic surveillance by the National Security Agency (6), and to justify his administration's treatment of individuals designated as "unlawful enemy combatants" (7). Aspects of both actions have been condemned by many and viewed as unconstitutional.

5. Unitary Executive Theory
   http://en.wikipedia.org/wiki/Unitary_executive_theory
6. NSA Warrantless Surveillance Controversy
   http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy
7. Unlawful Combatant
   http://en.wikipedia.org/wiki/Unlawful_combatant

Bush has also cited the unitary executive doctrine as a justification for repeatedly issuing "signing statements" when he signs legislation. In April of 2006, Charlie Savage (8) noted that Bush has "claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution." Bush used a unitary executive justification, for example, for the signing statements he attached to laws banning torture (9) and reauthorizing the USA Patriot Act (10), indicating in each case that he did not feel obligated to obey certain provisions of the legislation. Savage received a Pulitzer Prize in National Reporting in 2007 for his coverage of Bush's signing statements.

8. Bush Challenges Hundreds of Laws
   Charlie Savage, Boston Globe, 4/30/06
   http://www.truthout.org/cgi-bin/artman/exec/view.cgi/59/19450
9. 3 GOP Senators Blast Bush Bid to Bypass Torture Ban
   Charlie Savage, Boston Globe, 1/5/06
   http://www.commondreams.org/headlines06/0105-01.htm
10. Bush Shuns Patriot Act Requirement
    Charlie Savage, Boston Globe, 3/24/06
    http://www.commondreams.org/headlines06/0324-07.htm

If Bush's demonstrated use of the unitary executive doctrine in the above and other areas is any indication of how emergency powers would be implemented in the event of a catastrophic terrorist attack or natural disaster, and the checks and balances that would prevail, a whole new level of concerns has just formally emerged.

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Joseph Miller
Department of Psychology
51 Madeleva
Saint Mary's College
Notre Dame, IN 46556

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St. Joe Valley Greens, South Bend, IN