[Congressional Record Volume 153, Number 23 (Wednesday, February 7, 2007)]
[Senate]
[Pages S1711-S1713]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Bond):
  S. 513. A bill to amend title 10, United States Code, to revive 
previous authority on the use of the Armed Forces and the militia to 
address interference with State and Federal law, and for other 
purposes; to the Committee on Armed Services.
  Mr. LEAHY. Mr. President, last year, Congress quietly made it easier 
for this

[[Page S1712]]

President or any President to declare martial law. That's right: In 
legislation added at the Administration's request to last year's 
massive Defense Authorization Bill, it has now become easier to bypass 
longtime posse comitatus restrictions that prevent the Federal 
Government's use of the military, including a federalized National 
Guard, to perform domestic law enforcement duties. That change runs 
counter to our founding principles, to the optimal use of our superb 
National Guard here at home, and to whatever sensible reforms are 
needed to improve our Nation's emergency response capabilities.
  Today Senator Bond and I are introducing legislation to repeal these 
unwarranted and perilous changes, which were made to a little-known law 
called the Insurrection Act. Our amendment replaces every word, comma, 
and period from the original act and returns it to its original form. 
Repealing this ill-considered change in the Insurrection Act would 
allow Congress to have a more orderly, thoughtful, open and 
consultative discussion on whether such sensitive and massive powers 
should be changed, if at all. It is difficult to see how any Senator 
could disagree with the advisability of having a more transparent and 
thoughtful approach to this sensitive issue.
  The Insurrection Act is a Reconstruction-era law that provides the 
major exemption from posse comitatus--the legal doctrine that bars the 
use of the military for law enforcement directed at the American people 
here at home. The Insurrection Act is designed to ensure that Federal 
laws are enforced and to ensure that American citizens' basic 
constitutional rights are respected and protected. When the 
Insurrection Act is invoked, the President can--without the consent of 
the respective governors--federalize the National Guard and use it, 
along with the entire military, to carry out law enforcement duties. 
Treading as this does across basic constitutional issues relating to 
separation of power and to state and local sovereignty, this is a 
sweeping grant of authority to the President. Because the use of the 
military for domestic law enforcement is so sensitive an issue, the Act 
has been invoked only sparingly since it was enacted.
  The primary reason that the law has been invoked so rarely is that 
there has been an inherent tension in the way it was crafted. Before it 
was changed last year, the law was purposefully ambiguous about when 
the President could invoke the Act in cases beyond a clear insurrection 
or when a state clearly violated Federal law in its actions. Because 
there was this useful ambiguity--a constructive friction in the law--a 
President until now would have to use the power with great caution, and 
with the impetus for appropriate consultation.
  Yet by the time committee work was completed in the House and the 
Senate on the Fiscal Year 2006 Defense Authorization Bill, the law had 
been changed and that useful ambiguity had vanished. In addition to the 
cases of insurrection, the Act can now be invoked to restore public 
order after a terrorist attack, a natural disaster, a disease outbreak, 
or--and this is extremely broad--``other condition.'' Restoring public 
order has suddenly become an entirely new purpose for the Insurrection 
Act. And, as if to underscore this fundamental change, the conference 
committee changed the name of the Act from ``Insurrection'' to 
``Enforcement of the Laws to Restore Public Order.''
  This significant change was made without consulting the Nation's 
Governors, mayors, sheriffs, or the National Guard Adjutants General. 
It was made without consulting the other relevant policy committees in 
the Senate and the House. It was merely slipped in, at the 
Administration's request, as rider to a bill that was hundreds of pages 
long. And when the Nation's Governors learned of the change and 
expressed their strong opposition, they were ignored, and this 
facilitation of presidential ability to federalize the National Guard--
even over the objections of the Nation's Governors--remained in the 
bill that was signed into law by President Bush.
  Now this President and future Presidents can more easily take control 
of the National Guard and use our entire military apparatus for law 
enforcement at home. In a situation like another Katrina or even a more 
contained incident like a terrorist incident, the President will be 
able to bring in Federal troops and take away control from the 
Governors, the Emergency Managers, the Sheriffs, and the State 
Adjutants General who know their communities best and are responsible 
for responding.
  What we should be doing instead is buttressing the response abilities 
of these local and State officials. We should ensure every State has a 
state-of-the-art emergency operations center, that our first responders 
have the best equipment and training, and that the National Guard has 
adequate equipment and available people at home to provide support. Any 
Federal assets--military or otherwise--that might come into a State 
should be in a supporting and not commanding role. The local officials 
who know their communities are in the best positions to control the 
situation, not the President or the military.
  Some have argued that the changes made were only a clarification of 
existing law or that the Insurrection Act already gave the power to the 
President to use the military for law enforcement in an emergency. I 
strongly disagree with that explanation, and so do the Governors, 
Adjutants General, and a host of other officials. They see it, as 
Senator Bond and I see it, as a tangible and troubling expansion of the 
President's powers and a parallel reduction in State sovereignty. But 
if some believe the original Act already gave the President this 
expansive power, they should not object to bringing the law back to its 
original form.
  Repeal of the recent changes to the Insurrection Act will help ensure 
that our National Guard and larger emergency response capabilities 
remain strong. Repeal is crucial to ensuring that our Governors and 
local officials remain in control and that they are consulted when 
anyone considers overriding their authority. Repeal is simply essential 
to ensuring the military is not used in a way that offends and 
endangers some of our more cherished values and liberties.
  We enter this effort with the strong support of Governors and of the 
National Guard community, including the National Governors Association, 
the National Guard Association, the Adjutants General Association, and 
the Enlisted Association of the National Guard. I ask unanimous consent 
that support letters from the National Governors Association, the 
Adjutants General Association, and the Enlisted Association of the 
National Guard be printed at this point in the Record.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  Last year's Insurrection Act rider reflects the general lack of close 
oversight that has taken a toll on our system of government. I hope the 
days of rubberstamping are over, and I hope the Senate will quickly 
remedy this situation by considering and passing the bill that we 
introduce today.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     National Guard Association of


                                      the United States, Inc.,

                                 Washington, DC, February 7, 2007.
     Hon. Patrick Leahy,
     U.S. Senate, Washington, DC.
     Hon. Christopher Bond,
     U.S. Senate, Washington, DC.
       Dear Senators Leahy and Bond: The National Guard 
     Association of the United States (NGAUS) is pleased to 
     support your efforts to repeal those provisions of Section 
     1076 of the John Warner National Defense Authorization Act 
     (Public Law 109-364) enacted in the 109th Congress.
       We believe those provisions removed the governors of the 
     several states from their constitutional role as the 
     commanders in chief of their respective states' National 
     Guard forces in responding to domestic emergencies, in both 
     an unnecessary and unwarranted manner.
       We further believe that the exploitation of the language of 
     the Insurrection Act as a surreptitious method to gain 
     special presidential authority where clearly the Congress has 
     never intended the federal executive to hold sway is 
     ``creative'' but ``poor'' public policy. Please spare no 
     effort to reverse this dangerous precedent.
       Thank you for your reasoned and forthright protection of 
     the prerogatives of the governors and the National Guard.
           Sincerely,

                                             Stephen M. Koper,

                                          Brigadier General (Ret),
                                                        President.

[[Page S1713]]

     
                                  ____
                               National Governors Association,

                                 Washington, DC, February 5, 2007.
     Hon.Patrick J. Leahy,
     U.S. Senate, Washington, DC.
     Hon. Christopher ``Kit'' Bond,
     U.S. Senate, Washington, DC.
       Dear Senator Leahy and Senator Bond: Section 1076 of the 
     John Warner National Defense Authorization Act (Public Law 
     109-364) unnecessarily expanded the President's authority to 
     federalize the National Guard during certain emergencies and 
     disasters. The nation's governors opposed the inclusion of 
     this section in the bill because responsibility for 
     responding to disasters and other local emergencies to assure 
     the security and wellbeing of our residents along; with 
     managing the Guard within a state must rest with the 
     governor. The changes made in Section 1076 of the National 
     Defense Authorization Act undermine governors' authority over 
     the Guard, place the safety and welfare of citizens in 
     jeopardy and should be repealed.
       Unless activated in purely federal service, the National 
     Guard is and should remain under state control with governors 
     as commanders-in-chief. The dual mission of the Guard, a 
     combat ready force that can be called on by the President and 
     a first responder in domestic emergencies or disasters under 
     the command and control of the governor, requires that 
     federal law clearly delineate chains of command for each 
     mission. The changes made to the ``Insurrection Act'' by 
     Section 1076 of the National Defense Authorization Act are 
     likely to confuse the issue of who commands the Guard during 
     a domestic emergency. By granting the President specific 
     authority to usurp the Guard during a natural disaster or 
     emergency without the consent of a governor, Section 1076 
     could result in confusion and an inability to respond to 
     residents' needs because it calls into question whether the 
     governor or the President has primary responsibility during a 
     domestic emergency.
       The Insurrection Act, prior to passage of the National 
     Defense Authorization Act served the nation well as an 
     extraordinary remedy that allowed the President to take 
     control of the Guard in the most rare and exceptional of 
     cases. Despite the role of governors as commander-in-chief of 
     the Guard in their states, Section 1076 of the National 
     Defense Authorization Act was drafted without consultation 
     with governors and without full discussion or debate 
     regarding the ramifications of such a change on domestic 
     emergency response. We urge Congress to repeal the provision 
     in Section 1076 of the Act and open a dialogue with governors 
     regarding how to best enhance the effectiveness of the Guard 
     in responding to domestic disasters and emergencies.
       Sincerely,
     Governor Michael F. Easley,
       Co-Lead on the National Guard.
     Governor Mark Sanford,
       Co-Lead on the National Guard.
                                  ____



           Adjutants General Association of the United States,

                           Washington, DC. 2001, February 7, 2007.
     Hon. Patrick Leahy,
     U.S. Senate, Washington, DC.
     Hon. Kit Bond,
     U.S. Senate, Washington, DC.
       The Adjutants General Association of the United States 
     (AGAUS) represents the 54 Adjutants General of the fifty 
     states, three territories, and District of Columbia who are 
     responsible for training and readiness of Army and Air 
     National Guard units under their jurisdiction. We are united 
     in support of your legislation that repeals all language 
     contained in the John Warner National Defense Authorization 
     Act for Fiscal Year 2007 that significantly altered existing 
     law known as the Insurrection Act.
       The language in the NDAA seriously upset the delicate 
     balance between Governors and the President in determining 
     the authority under which the National Guard will be used to 
     respond to domestic conditions endangering citizens. The 
     language significantly broadens the President ability to 
     declare martial law and mobilize the National Guard under 
     national command without consulting with the Governors. It 
     may in fact cause factions to pressure the President into ill 
     advised actions because the constructive ambiguity of the 
     original language which encourages consultation with 
     Governors no longer exists. For the National Guard this can 
     mean being federalized prematurely thereby losing important 
     capabilities available under State Active Duty and Title 32.
       The National Guard has proven capable of operating flexibly 
     and responsively when retained under governor control. This 
     is well documented from the airport security mission in the 
     aftermath of 9/11 to sending 6,000 National Guard Soldiers 
     and Airmen to the southwest border in 2006 (with over 50,000 
     citizen-soldiers rapidly deployed under EMAC and Title 32 to 
     support Hurricane Katrina recovery sandwiched in between). 
     The language in NDAA 2207 would likely discourage using the 
     National Guard in these innovative, responsive, and cost 
     effective ways.
       NDAA 2007 enabled something completely unnecessary without 
     committee or floor debate in either legislative chamber and 
     with explicit opposition from the Governors. Your bill 
     restores the Insurrection Act to a proper balance. Expect 
     willing and energetic support from the AGAUS.
       Sincerely,

                                              Roger P. Lempke,

                                                     Major General
     President.
                                  ____



                                                       EANGUS,

                                 Alexandria, VA, February 6, 2007.
     Hon. Patrick Leahy,
     U.S. Senate Washington, DC.
     Hon. Christopher Bond,
     U.S. Senate Washington, DC.
       The Enlisted Association of the National Guard of the 
     United States (EANGUS) is the only military service 
     association that represents the interests of every enlisted 
     soldier and airmen in the Army and Air National Guard. With a 
     constituency base of over 414,000 soldiers and airmen, their 
     families, and a large retiree membership, EANGUS engages 
     Capitol Hill on behalf of courageous Guard persons across 
     this nation.
       On behalf of EANGUS, and the soldiers and airmen it 
     represents, I'd like to communicate our support for 
     legislation to repeal the changes to the Insurrection Act as 
     passed in Public Law 109-364, Section 1076, and to restore 
     the authority of the Governors as our founding fathers 
     designed over 230 years ago.
       Public Law 109-364 stripped the nation's Governors of their 
     rightful authority to use the militia of the United States 
     (to wit, the National Guard) in times of natural disasters 
     and major public emergencies. Congress made this move without 
     any consultation with those Governors, duly elected by the 
     people of this great nation. It was an obvious knee-jerk 
     reaction to the events surrounding Hurricane Katrina in 2005, 
     yet without merit.
       We applaud you for taking legislative steps to repeal this 
     law, and to restore to the Governors their rightful authority 
     over the militia when not in Federal service. The people of 
     America have a unspoken need for the National Guard in times 
     of public emergencies, and Washington is too far removed from 
     the challenges in each state. We look forward to working with 
     your staff as this legislation works its way into law.
       Working for America's Best!
                                  MSG Michael P. Cline, USA (Ret),
     Executive Director.
                                  ____


                                 S. 513

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. REVIVAL OF PREVIOUS AUTHORITY ON USE OF ARMED 
                   FORCES AND MILITIA TO ADDRESS INTERFERENCE WITH 
                   STATE OR FEDERAL LAW.

       (a) Repeal of Amendments Made by Public Law 109-364.--
     Section 1076 of the John Warner National Defense 
     Authorization Act for Fiscal Year 2007 (Public Law 109-364), 
     and the amendments made by that section, are repealed.
       (b) Revival of Previous Authority.--The provisions of 
     chapter 15 of title 10, United States Code, that were amended 
     by section 1076 of the John Warner National Defense 
     Authorization Act for Fiscal Year 2007, as such provisions 
     were in effect on the day before the date of the enactment of 
     the John Warner National Defense Authorization Act for Fiscal 
     Year 2007, are hereby revived.
       (c) Clerical Amendments.--
       (1) Heading amendment.--The heading of chapter of 15 of 
     title 10, United States Code, is amended to read as follows:

``CHAPTER 15--INSURRECTION''.
       (2) Clerical amendments.--(A) The tables of chapters at the 
     beginning of subtitle A of title 10, United States Code, and 
     at the beginning of part I of such subtitle, are each amended 
     by striking the item relating to chapter 15 and inserting the 
     following new item:

``15. Insurrection...........................................331''.....

       (B) The table of sections at the beginning of chapter 15 of 
     such title is amended by striking the item relating to 
     section 333 and inserting the following new item:

``333. Interference with State and Federal law.''.
                                 ______