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For a good perspective on the recent talk
about martial law read this by Prof. Michael Froomkin (Univ. of Miami School of
Law). KwC Crazy Times (Martial
Law edition). “…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 Vladek’s amazing student
note, Emergency Power and the Militia
Acts,
114 YALE L.J. 149 (2004).] 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. http://www.discourse.net/archives/2006/10/crazy_times_martial_law_edition.html |
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