Martial Law on the Installment Plan

Photo courtesy of Jim Bovard

















"I abominate and detest the idea of a government, where there is a standing army," exclaimed the immortal George Mason, during his state's constitutional ratifying convention of 1788.


A a forceful and principled defender of individual liberty, Mason was the irritant in the constitutional oyster that eventually created the pearl we call the Bill of Rights. During the June 14 session of the convention, Mason -- ably assisted by his fellow Anti-Federalist Patrick Henry -- conducted a critical examination of the congressional power to call out the state militias to enforce the laws of the union.


Their eyes, keenly perceptive of the potential for government to abuse any powers alloted to it, discerned in the womb of that delegated power an embryonic rough beast that could eventually destroy any semblance of liberty in America.


Eager to defend a document that was largely his handiwork, James Madison blithely told the convention that the reason for granting Congress the power to call out the militia was quite obvious: "If resistance should be made to the execution of the laws ... it ought to be overcome. This could be done only in two ways -- either by regular forces or by the people [meaning that portion of the people organized into militias]. By one or the other it must unquestionably be done. If insurrections should arise, or invasions take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army."


It's interesting that Madison -- a visionary statesman in so many ways -- assumed that the first priority of government should be to secure the means of compelling submission to its edicts. That order of priorities is evident in the statement cited above, as well as the famous passage from Madison's most-cited contribution to the Federalist:


"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."


Those more consistently concerned about individual liberties than Madison proved to be would reply: Government, like a forest fire, is entirely incapable of controlling itself; granted autonomy, it will expand until it devours everything within its sphere of influence. So if we're to have a government, the first task of those who create it is to ensure the ability of the people to resist its predations; only then can we discuss the scant handful of revocable powers we'll permit it to have. If the first priority is to ensure government power, rather than individual liberty, in process of time, liberty will be destroyed, and power is all that will remain.


Replying to Madison's comments, Mason pointed out that unless the power of Congress to call out the militia were curbed, it would eventually "produce dreadful oppressions" -- for instance, "if any disturbance happened in New Hampshire, to call [militia] from Georgia" to put it down. This would harass the people so much that they would agree to abolish the use of the militia, and establish a standing army." The central government could "render the militia useless" through "neglect," Mason continued, "in order to have a pretence of establishing a standing army." Or it could be forcibly disarmed, a "method which has been practiced in other parts of the world before." Or the militia could be destroyed through the attrition resulting from promiscuous over-use by Congress.


In any case, Mason warned, the proposed Constitution, as offered for ratification, would eventually result in the destruction of the citizen militias and their replacement by a standing army controlled by a national government. He urged that the document be modified to recognize, explicitly, the power of states to veto the federal government's power to deploy the militias beyond the borders of their home states.


For his part, Patrick Henry agreed that the provision granting power to Congress to call out the militia was a potentially fatal flaw in the document. "In this great, this essential part of the Constitution, if you are safe, it is not [because of] the Constitution, but [because of] the virtues of the men in government," he wryly observed. "If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have."


Mason and Henry were hardly the only Founders who found a standing army to be abominable; from their perspective, the only reason for the existence of a peacetime army was to impose martial law on the general population.


"I humbly conceive there is extreme danger [in congressional power over the militias] of establishing cruel martial regulations," Mason warned. In fact, from his perspective the term "martial law" applied anytime and anywhere the Congress called out the militia.


At the beginning of the 20th Century, the beast foreseen by Mason came to term when the militias were absorbed into the standing military establishment by way of the Dick Act of 1903. In this way the people's local militias -- "this great bulwark, this noble palladium of safety," in Henry's words -- became the National Guard.


Significantly, this development was brought about, in large measure, because of dissatisfaction with the way the militias had performed in Washington's first unambiguously imperialistic war, the 1898 war of aggression against the decrepit Spanish Empire. But militias had always been problematic, as far as ambitious ruling elites in Washington were concerned.


During the War of 1812, for instance, the refusal of militia units to cross into Canada prompted the Madison administration and its congressional allies to propose a conscription bill. Even with a depleted treasury and a White House still smoldering after being put to the torch by Redcoats, Congress refused to embrace conscription. This would change a century later during WWI, in which America would display, among other defining marks of tyranny, a centrally controlled "select" militia, or national guard, and a conscript standing army.


Now, roughly a century after making the world safe for Democracy, Washington has allowed conscription to lapse. But in its ongoing efforts to, ahem, make the world safe for Democracy again, Washington has created exactly the situation Mason foresaw: The "militias" (or what remains of them) are ceaselessly deployed abroad, and the national military -- in collaboration with a centralized law enforcement/intelligence apparatus -- is responsible for "homeland security."


In his potent and timely new book Ain't My America, the indispensable Bill Kauffman recalls that Madison dismissed the possibility that the central government would "drag the militia unnecessarily to an immense distance.... This, sir, would be unworthy [of] the most arbitrary despot."


"True, true," Kauffman replies, "though the act is eminently worthy of the administration of George W. Bush, which has called well over half of the four hundred thousand members of the state National Guards -- descendants of the militia -- to active duty for the Iraq War. And when in the mid-1980s the governors of Minnesota and Massachusetts challenged the authority of Ronald Reagan's Department of Defense to send state National Guard units to Honduras, presumably to assist in the overthrow of the government of Nicaragua, the Supreme Court (Perpich v. Defense, 1990) upheld the right of the central government to send Guardsmen wherever the hell it wishes, even over the objections of state governors. So much for federalism. So much for Madisonian guarantees."


In October 2006, the Bush Regime and its congressional minions enacted a measure that would have destroyed any residual state power over the National Guard: The provision would have permitted the president, in the event of an "insurrection" or other emergency, to deploy Guard units within the United States as he saw fit. This amendment to the Insurrection Act would have completed the transformation of what -- at the dawn of our republic -- had been people's militias into a presidential Praetorian Guard.


Fortunately, Senators Patrick Leahy (D-Vermont) and Kit Bond (R-Missouri), critics of that measure, were able to attach a rider to a military appropriations measure overturning the Praetorian Guard measure and preserving the autonomy of the National Guard. So this is a good thing, right?


Well... not exactly. The Guard "empowerment" bill sponsored by Leahy (which was nearly identical to a measure proposed by Senator Bond) actually continues the process of folding the Guard -- which was once, I note again, the independent people's militias -- into the national military establishment: Its commanding officer is made a full general, for instance, and given a more prominent role in Pentagon councils.


Most significantly, the measure creates "a stronger relationship between the Guard and the Northern Command" and instructs the Pentagon "to work with the Guard in planning homeland defense."

Nerve Center for Martial Law: George W. Bush and his handlers monitor the progress of Hurricane Rita at the headquarters of U.S. Northern Command.



Northern Command, for the uninitiated, is the military department responsible for the United States, as well as coordinating "theater security cooperation with Canada and Mexico." It is, in essence, the military muscle behind the Department of Homeland Security. In the event of widespread natural disasters, insurrections, terrorist attacks, or other national emergencies, Northern Command would provide the assets and manpower to lock down the country under Homeland Security supervision.


For a glimpse of how this would work in practice, one need only recall the federal response to Hurricane Katrina: US troops and federally controlled mercenaries were deployed on the streets of New Orleans with orders to disarm any Americans they encountered, and shoot anybody who resisted.


What all of this means, of course, is that Senator Leahy's measure didn't reverse Bush's transformation of the National Guard into an instrument of martial law; instead, it accomplished the same objective in a less transparent fashion. By holding out the inducement of additional funding and material support for the Guard, Leahy's measure also nullified the objections offered by all fifty state governors, who with one voice had condemned Bush's October 2006 grab for control over the militia.


Now, like a small child giddily playing with a toy steering wheel, the governors can pretend that they're in control -- at least until the president and his handlers decide the illusion is no longer necessary. And really, since the Civil Rights era, when Guard establishments in Arkansas
and Alabama were "federalized" to enforce desegregation decrees (by physically assaulting and arresting non-cooperating governors, if necessary), there has been no excuse for any reasonably intelligent governor to believe that he actually controls the National Guard.


The Big Easy under Martial Law: Blackwater mercenaries (left) and combat units home from Iraq (below, right) patrol the streets of post-Katrina New Orleans.


It is becoming increasingly common for the regular military -- especially the Marines -- to conduct "urban operations" training exercises in various Midwestern cities. Quite reasonably, some Americans see these operations as preparation not only for combat missions abroad, but here at home as well.


It's not alarmist to think that at some point America could succumb to overt military regimentation. But it should be understood that from the perspective of the Founders -- particularly the Anti_Federalists -- we're already living under a species of martial law, one that is generally quite mild but capable of intermittent outbursts of terrifying violence.


Even as it has assembled the architecture of martial law, the Bush Regime has quietly worked to create the necessary legal and political doctrines.


In a March 14, 2003 memorandum, former administration legal counsel John Yoo -- yes, the same one who discovered the presidential authority to order the sexual torture of children -- made the arresting claim that the Fourth Amendment doesn't apply to "domestic military operations."


Of course, the Framers of the Constitution made it abundantly clear that "domestic military operations" of any kind are the purest form of tyranny, and the use of the military as a law enforcement body is entirely impermissible. It's a pity, I suppose, that they lacked Yoo's vision and insight.


Fear his "Islamo-Fascist" Mullet: Qatari national Ali al-Marri, designated an "enemy combatant" in June 2003 and held since then in military detention.

More recently, the Bush Regime has used the ongoing legal conflict over the detention of suspected terrorist Ali Saleh Kahlah al-Marri to argue that the president can exercise martial law powers at whim. Al-Marri was designated an "unlawful enemy combatant" by presidential ukase in June 2003; since that time he has been held in military detention.

In its ruling a year ago, the Fourth Circuit Court of Appeals pointed out that the president cannot exercise military authority over civilians in the United States “absent the suspension of … habeas corpus or [a] declaration of martial law….” The Bush Regime appealed that decision without seriously objecting to its assumptions.

In essence, the appeals court said: Your claim assumes that some kind of martial law is in effect.


To which the Bush Regime effectively replied: And your point would be...?




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