Monday, April 30, 2007

50% Good News Is the Bad News in Russian Radio

by Andrew Kramer, NY Times

At their first meeting with journalists since taking over Russia’s largest independent radio news network, the managers had startling news of their own: from now on, they said, at least 50 percent of the reports about Russia must be “positive.”

In addition, opposition leaders could not be mentioned on the air and the United States was to be portrayed as an enemy, journalists employed by the network, Russian News Service, say they were told by the new managers, who are allies of the Kremlin.

How would they know what constituted positive news?

“When we talk of death, violence or poverty, for example, this is not positive,” said one editor at the station who did not want to be identified for fear of retribution. “If the stock market is up, that is positive. The weather can also be positive.”

In a darkening media landscape, radio news had been a rare bright spot. Now, the implementation of the “50 percent positive” rule at the Russian News Service leaves an increasingly small number of news outlets that are not managed by the Kremlin, directly or through the state national gas company, Gazprom, a major owner of media assets.

The three national television networks are already state controlled, though small-circulation newspapers generally remain independent.

This month alone, a bank loyal to President Vladimir V. Putin tightened its control of an independent television station, Parliament passed a measure banning “extremism” in politics and prosecutors have gone after individuals who post critical comments on Web chat rooms.

Parliament is also considering extending state control to Internet sites that report news, reflecting the growing importance of Web news as the country becomes more affluent and growing numbers of middle-class Russians acquire computers.

On Tuesday, the police raided the Educated Media Foundation, a nongovernmental group sponsored by United States and European donors that helps foster an independent news media. The police carried away documents and computers that were used as servers for the Web sites of similar groups. That brought down a Web site run by the Glasnost Defense Foundation, a media rights group, which published bulletins on violations of press freedoms.

“Russia is dropping off the list of countries that respect press freedoms,” said Boris Timoshenko, a spokesman for the foundation. “We have propaganda, not information.”

With this new campaign, seemingly aimed at tying up the loose ends before a parliamentary election in the fall that is being carefully stage-managed by the Kremlin, censorship rules in Russia have reached their most restrictive since the breakup of the Soviet Union, media watchdog groups say.

“This is not the U.S.S.R., when every print or broadcasting outlet was preliminarily censored,” Masha Lipman, a researcher at the Carnegie Moscow Center, said in a telephone interview.

Instead, the tactic has been to impose state ownership on media companies and replace editors with those who are supporters of Mr. Putin — or offer a generally more upbeat report on developments in Russia these days.

The new censorship rules are often passed in vaguely worded measures and decrees that are ostensibly intended to protect the public.

Late last year, for example, the prosecutor general and the interior minister appeared before Parliament to ask deputies to draft legislation banning the distribution on the Web of “extremist” content — a catch phrase, critics say, for information about opponents of Mr. Putin.

On Friday, the Federal Security Service, a successor agency to the K.G.B., questioned Garry Kasparov, the former chess champion and opposition politician, for four hours regarding an interview he had given on the Echo of Moscow radio station. Prosecutors have accused Mr. Kasparov of expressing extremist views.

Parliament on Wednesday passed a law allowing for prison sentences of as long as three years for “vandalism” motivated by politics or ideology. Once again, vandalism is interpreted broadly, human rights groups say, including acts of civil disobedience. In a test case, Moscow prosecutors are pursuing a criminal case against a political advocate accused of posting critical remarks about a member of Parliament on a Web site, the newspaper Kommersant reported Friday.

State television news, meanwhile, typically offers only bland fare of official meetings. Last weekend, the state channels mostly ignored the violent dispersal of opposition protests in Moscow and St. Petersburg.

Rossiya TV, for example, led its newscast last Saturday with Mr. Putin attending a martial arts competition, with the Belgian actor Jean-Claude Van Damme as his guest. On the streets of the capital that day, 54 people were beaten badly enough by the police that they sought medical care, Human Rights Watch said.

Rossiya and Channel One are owned by the state, while NTV was taken from a Kremlin critic in 2001 and now belongs to Gazprom. Last week, a St. Petersburg bank with ties to Mr. Putin increased its ownership stake in REN-TV, a channel that sometimes broadcasts critical reports, raising questions about that outlet’s continued independence.

The Russian News Service is owned by businesses loyal to the Kremlin, including Lukoil, though its exact ownership structure is not public. The owners had not meddled in editorial matters before, said Mikhail G. Baklanov, the former news editor, in a telephone interview.

The service provides news updates for a network of music-formatted radio stations, called Russian Radio, with seven million listeners, according to TNS Gallup, a ratings company.

Two weeks ago, the shareholders asked for the resignation of Mr. Baklanov. They appointed two new managers, Aleksandr Y. Shkolnik, director of children’s programming on state-owned Channel One, and Svevolod V. Neroznak, an announcer on Channel One. Both retained their positions at state television.

Mr. Shkolnik articulated the rule that 50 percent of the news must be positive, regardless of what cataclysm might befall Russia on any given day, according to the editor who was present at the April 10 meeting.

When in doubt about the positive or negative quality of a development, the editor said, “we should ask the new leadership.”

“We are having trouble with the positive part, believe me,” the editor said.

Mr. Shkolnik did not respond to a request for an interview. In an interview with Kommersant, he denied an on-air ban of opposition figures. He said Mr. Kasparov might be interviewed, but only if he agreed to refrain from extremist statements.

The editor at the news service said that the change had been explained as an effort to attract a larger, younger audience, but that many editorial employees had interpreted it as a tightening of political control ahead of the elections.

The station’s news report on Thursday noted the 75th anniversary of the opening of the Moscow metro. It closed with an upbeat item on how Russian trains are introducing a six-person sleeping compartment, instead of the usual four.

Already, listeners are grumbling about the “positive news” policy.

“I want fresh morning broadcasts and not to fall asleep,” one listener, who signed a posting on the station’s Web site as Sergei from Vladivostok, complained. “Maybe you’ve tortured RNS’s audience enough? There are just a few of us left. Down with the boring nonintellectual broadcasts!”

The change leaves Echo of Moscow, an irreverent and edgy news station that often provides a forum for opposition voices, as the only independent radio news outlet in Russia with a national reach.

And what does Aleksei Venediktov, the editor in chief of Echo of Moscow, think of the latest news from Russia?

“For Echo of Moscow, this is positive news,” Mr. Venediktov said. “We are a monopoly now. From the point of view of the country, it is negative news.”

North Korea Nuclear Weapons Agreement Falls Short

by Bruce Klingner

One must wonder why, when this story released in February, it didn't cause more furor from Republicans who were fit to be tied when Clinton Administration 'negotiated' some U.S. agreements with the North Korean dictatorship. Four months after detonating a weapon, the Bush administration ships 50,000 Tons of fuel oil and other supplies with promises for up to one million more tons to come. Also a Northeast Asia Peace and Security mechanism is promised to come, including de-nuclearization of the Korean peninsula, a formal ending of the Korean War (never made official in the '50's), normalization of relations with Japan...I wonder if the decades from now goal is 'integration' of N Korea into an Asian Union which can be more feasible after reunification with the South.

Barely four months after exploding a nuclear weapon, North Korea has again foiled attempts to penalize it for violating international commitments. Kim Jong-il used his characteristic mixture of military provocations, brinksmanship, and crisis diplomacy to gain benefits for a return to the status quo ante and promises of future steps. The Beijing Agreement, announced on February 13 by the Six-Party Talks participants, rewards Pyongyang for its bad behavior and reflects America's abandonment of several previously intractable negotiating positions.
Although some might view the agreement as another step toward North Korea's eventual nuclear disarmament, its vague provisions and deferred requirements give Pyongyang loopholes that it will seek to exploit. Moreover, the accord sends a dangerously accommodating signal not only to North Korea, but also to Iran and any other aspiring nuclear weapons state.
Closing the Barn Door
The agreement initially constrains, rather than resolves, the North Korean nuclear issue. If the agreement is fully implemented, North Korea will negotiate away its nuclear weapons-building capability for immediate aid and promises of future benefits. But the accord does not specifically address North Korea's uranium-based nuclear weapons program, which triggered the current imbroglio, or the steps by which North Korea will divest itself of existing nuclear weapons. Also left for future negotiations are the details of verification requirements for facilities other than those at Yongbyon and the sequencing of benefits with North Korea's steps toward denuclearization.
North Korea has agreed to "shut down and seal for the purpose of eventual abandonment" plutonium processing operations at the Yongbyon nuclear facility and allow International Atomic Energy Agency inspectors to monitor the cessation of activity. The document carefully avoided the term "freeze," which would have elicited direct comparisons with President Clinton's Agreed Framework, much maligned by the incoming Bush Administration. Elsewhere in the document, North Korea is required to disable its existing facilities.
Left unclear is whether the language "all necessary monitoring and verifications as agreed between IAEA and the DPRK" includes pre-existing authority for challenge inspections of suspect sites and any additional measures needed to verify the parameters of the uranium program and monitor stockpiles of nuclear weapons and radioactive material outside of the Yongbyon facility. North Korea should also commit to returning to the Non-Proliferation Treaty.
Other Provisions
North Korea agreed to "discuss with other parties a list of all its nuclear programs." Still unresolved is whether this will resemble the data declarations required under other arms control agreements, which can be verified through on-site inspections.
The U.S. agreed to talks aimed at moving toward full diplomatic relations and at removing North Korea from the list of state sponsors of terrorism and Trading with the Enemy Act coverage. Separate discussions will be held between North Korea and Japan to move toward normalization of diplomatic relations, including addressing "outstanding issues of concern" (i.e., the kidnapping of Japanese citizens by Pyongyang).
All parties agreed to “cooperate in economic, energy and humanitarian assistance” to North Korea, with an immediate shipment of 50,000 tons of heavy fuel oil and further shipments of up to one million tons.
"Directly related parties"—presumably the U.S., South Korea, North Korea, and China—will negotiate a permanent peace treaty to formally end the Korean War.
The six nations agreed to establish five working groups to set out implementation steps. The groups will address denuclearization of the Korean Peninsula, normalization of DPRK–U.S. relations, normalization of DPRK–Japan relations, economy and energy cooperation, and a Northeast Asia peace and security mechanism.
Agreed Framework Redux?
Lost in the details of the agreement was that North Korea achieved a significant strategic objective by having gained international acquiescence to its agenda. Although many of the broader benefits (e.g., the non-aggression pledge, normalization of relations, and economic aid) had been previously promised to North Korea, few had been forthcoming due to Pyongyang's actions over the past decade.
Despite that its covert nuclear weapons program violated the North-South Denuclearization Accord, the Agreed Framework, the Non-Proliferation Treaty, and the International Atomic Energy Agency Safeguards Agreement, North Korea was able to win benefits, rather than suffer penalties, to halt its nuclear programs.
Conspicuously absent from the agreement is any direct reference to North Korea's uranium-based weapons program, which was what caused both sides to abrogate the Agreed Framework. Pyongyang used the intervening years to build its stockpile from an estimated one to two nuclear weapons at the end of the 1990s to enough fissile material for approximately ten weapons today. The U.S. decision to defer confrontation of North Korea over its uranium program weakens the rationale for the Bush Administration's diplomatic approach over the past five years. Moreover, it calls into question the necessity of instigating the crisis in 2002 when it was unwilling to stay the course.
It is puzzling that North Korea did not insist upon inclusion of its demand for receiving a light-water reactor or the annual provision of two million megawatt-hours from South Korea to compensate for the supposed loss of Yongbyon's electrical generating capacity (though the facility was never connected to the country's electrical power grid). Pyongyang had previously conditioned its agreement on a follow-on agreement to the September 19, 2005, Joint Statement that provided for construction of the reactors—a 10-year process—prior to any dismantlement of its nuclear facilities.
Also unmentioned in the agreement is the dispute over seized North Korean financial assets in the Banco Delta Asia. U.S. defense measures taken against the regime's illicit activities prevented resumption of nuclear talks for 13 months and were the likely reason for the collapse of the December 2006 negotiating round.[1] North Korea's acceptance of the Beijing Agreement either means it has relaxed its earlier demands or believes the U.S. has provided sufficient assurances that a satisfactory resolution will be forthcoming—perhaps release of funds assessed to be from legitimate business activity. The Chosun Shinbo, a pro-North Korean newspaper in Japan, claimed the U.S. had promised during the bilateral Berlin talks to lift the financial restrictions against Banco Delta Asia within one month.
The Beijing accord marks a resurrection of the Agreed Framework process, in which North Korea committed to previously agreed-upon obligations in exchange for resumption of cancelled benefits or discussions over future concessions. North Korea will accelerate or impede progress in the five working groups in correlation to how they fulfill Pyongyang's objectives. North Korea will presumably focus on obtaining energy and economic assistance while obfuscating on denuclearization, verification, and resolution of the Japanese abductee issues.
Without success in those working groups, the Beijing Agreement would appear to provide little not already included in the Agreed Framework. As such, the Bush Administration will be vulnerable to criticism that it has not only abandoned its principles, but that it did so while allowing North Korea to augment its nuclear weapons inventory.
Japan's Reaction: Tokyo may feel abandoned since it predicated the resumption of talks on Pyongyang's prior commitment to denuclearize and argued that no energy assistance should be provided without resolution of the abductee issue. Little progress is expected on the latter because it has been relegated to a bilateral North Korean–Japanese working group.
The Bill for Energy Assistance: Even before the announcement of an agreement, South Korea was already worried about the bill, foreseeing that it would foot the lion's share. Seoul has been the most eager to engage North Korea to resolve the nuclear impasse, and then-Minister of Unification Chung Dong-young offered North Korea two million won in June 2005, which Kim Jong-il deftly pocketed. The political opposition and populace may, however, balk at the expected cost of the new agreement if it later includes large-scale energy assistance.
South Korean Engagement: Seoul may see the release of fuel oil as a green light to resume deliveries of humanitarian aid that it reluctantly halted after North Korea's nuclear test. President Roh Moo-hyun may be encouraged to resume outreach to the North, including rumored preparations for a meeting with Kim Jong-il. Roh would be motivated by perceptions that an inter-Korean summit could reverse his plummeting approval ratings, improve the potential for a progressive candidate to win the December 2007 presidential election, and secure his legacy.
Waning Support for Sanctions: Beijing, Moscow, and Seoul will see the agreement as a vindication of their calls for greater U.S. flexibility to resolve the nuclear impasse. They will be even more reluctant to impose the sanctions against North Korea called for by U.N. Resolution 1718. They will likely call upon Washington to minimize efforts against North Korea's illicit activities, such as economic restrictions on financial institutions, lest these derail the Six-Party Talks.
Crafting a diplomatic agreement that serves a country's national interests is similar to building a house, with both requiring painstakingly careful construction of components. In both endeavors, it is critically important to start with a sound foundation, or instability will result. The Beijing Agreement makes this mistake. It may be possible, however, to salvage the end results. The U.S. must insist upon stricter measures in follow-on negotiations to ensure that North Korea divests itself of nuclear weapons in an expeditious and rigorously verifiable manner.

Bruce Klingner is Senior Research Fellow for Northeast Asia in the Asian Studies Center at The Heritage Foundation.

Bush's Paper Trail Grows

by John Prados

Possible insight into how discussions occur at high levels regarding how to "encourage" a start of war. These insights came from documents originally recorded by David Manning, Tony Blair's national security advisor, taking notes in meetings between Blair and Bush.

President Bush to Tony Blair: "The US was thinking of flying U2 reconnaissance aircraft with fighter cover over Iraq, painted in UN colours. If Saddam fired on them, he would be in breach"

Bush: "It was also possible that a defector could be brought out who would give a public presentation about Saddam's WMD, and there was also a small possibility that Saddam would be assassinated."

Blair: "A second Security Council Resolution resolution would provide an insurance policy against the unexpected and international cover, including with the Arabs. "

Bush: "The US would put its full weight behind efforts to get another resolution and would 'twist arms' and 'even threaten'. But he had to say that if ultimately we failed, military action would follow anyway.''

Blair responds that he is: "solidly with the President and ready to do whatever it took to disarm Saddam."

Bush told Blair he: "thought it unlikely that there would be internecine warfare between the different religious and ethnic groups."

John Prados is a senior fellow of the National Security Archive in Washington, D.C., and author of Hoodwinked: The Documents that Reveal How Bush Sold Us a War (The New Press).

On March 27, The New York Times published an article based on access to the full British record of the Iraq policy conversation that President George W. Bush and Prime Minister Tony Blair held on January 31, 2003, as recorded by Blair’s then-national security adviser David Manning. British legal scholar Philippe Sands had already revealed this discussion in his book Lawless World , and the British television network Channel 4 had—two months ago—printed many of the same excerpts of Manning’s memo, but the Times coverage focused new attention on the memo, previously ignored by the U.S. media.
The memo reveals that the two leaders agreed that military action against Iraq would begin on a stipulated date in March 2003—despite the fact that no weapons of mass destruction had been found there. The memo reveals how the two leaders mulled over ways to supply legal justification for the invasion. Indeed this record supplies additional evidence for the view that Bush planned all along to unleash this war.
Suddenly, the media descended upon the Bush White House demanding explanations. Spokesman Scott McClellan answered that “we were preparing in case it was necessary, but we were continuing to pursue a diplomatic solution.” McClellan tried to turn the question around by insisting that the press had been covering Bush at the time chronicled in the memo, implying that if the truth were different the press should have known better. He referred repeatedly to a December report from U.N. weapons inspector Hans Blix to back his assertion that Iraq had failed to cooperate with the inspections. Evidently that cowed the reporters, for there has been little follow-up. But White House damage control should not be allowed to cover up this evidence that the president knew his case for war was based on faulty evidence.
First, the evidence is overwhelming that Bush hosted the January 31 meeting to manage his move to war, not as an occasion to review progress toward disarming Iraq. The record of the session shows this—with talk of the war plan, the starting date, the justification and the securing of a second U.N. resolution as a legal cover, but there is more than that. Consider the context: the day the memo was taken U.S. Secretary of State Colin L. Powell began the extensive review at the CIA of the allegations he would use to make his Security Council “briefing”—already scheduled—supposedly “bulletproof.” It was also that same day that the codebreaking National Security Agency issued a directive to spy on the friendly nations who were members of the U.N. Security Council to divine their attitudes on the move to war.
The day before, according to Bob Woodward’s account, Bush had told Italian prime minister Silvio Berlusconi, “We will kick ass.” By his account, Berlusconi tried to dissuade Bush from war. Woodward duly notes the president resorting to his standard line that no decision had yet been made on military action. The Manning memo suggests otherwise, with Bush revealing March 10 as the projected date for beginning bombing—a campaign to hit 1,500 targets in four days, the “shock and awe” which U.S. officials bragged about at the time. Moreover, on January 24, the U.S. military commander, General Tommy Franks, had sent his final war plan up through Rumsfeld to the president. Bush’s comment to Blair on January 31, that “he was not itching to go to war,” is belied by the entire surrounding structure of events.
The other significant finding in the Manning memo concerns Tony Blair’s intentions. The press reporting at the time—regardless of what Scott McClellan says today—was that the purpose of the Blair-Bush meeting was to decide whether there needed to be a second U.N. resolution. Postwar investigations in London show that in late January Blair received official advice from his attorney general Lord Goldsmith that such a resolution was necessary to fulfill the terms of the existing resolution 1441. At the meeting with Bush, however, the record shows Blair presented the project as a convenience. “If anything goes wrong . . . a second resolution would give us international cover, especially with the Arabs,” Blair said, according to Manning’s memo.
Bush went along with Blair’s talk of a resolution, but his own propositions on justifications for war revealed his true lack of interest in U.N. action. Bush speculated about deceiving Saddam into shooting at U.S. aircraft phonied up to look like U.N. planes, or getting an Iraqi scientist to assert that WMD were being concealed. The most widely reported aspect of the Bush-Blair meeting was these speculations (talk of a Saddam assassination was less justification than opportunity).
Bush told Blair he would “twist arms” to get a U.N. resolution, corresponding exactly to the NSA spy directive, which would track the success of Bush arm-twisting through U.N. members’ own communications. Regardless of the outcome, Bush told Blair, “military action would follow anyway.” Blair’s assurance at that point that Britain stood with the U.S. put him squarely in the box with Bush of seeking to initiate an aggressive war.
Finally, on the matter of U.N. inspections, David Manning appears to have engaged in some policy advocacy, as opposed to strictly confining himself to recording the proceedings of this meeting in his memorandum to Tony Blair. Manning’s paper notes the conversation among the leaders on the urgency of action if Bush’s timeline was to be met. Blair’s adviser argued that, “We therefore need to stay closely alongside Blix, [and] do all we can to help the inspectors make a significant find.” But Manning’s view did not reflect the realities of—at least—U.S. intelligence cooperation with the inspections. Rather, the CIA had been parsimonious in its help, taking weeks to begin providing tips, and then holding back many of its target folders, while national security adviser Condi Rice had put pressure on Blix to declare Iraq in violation.
Immediately upon finishing their talk, at 4:12 p.m. Bush and Blair appeared before newsmen, where Bush declared, “Saddam Hussein is not disarming. He is a danger to the world.” Bush then added archly, “This issue will come to a head in a matter of weeks, not months,” an almost exact repetition of Blair’s comment at their secret meeting, as recorded by Manning, that “we should be saying that the crisis must be resolved in weeks, not months.”
President Bush asserted, inaccurately, that Resolution 1441 “gives us the authority to move without any second resolution,” a position the Attorney General of Great Britain had rejected only days before. Blair followed up, insisting that Dr. Blix had told the Security Council that Saddam was not cooperating with UN inspectors. In fact, what Blix had said when he reported to the U.N. on January 27 was that there had been difficulties with the Iraqi government but the situation was improving, and he added that his inspectors had made 300 visits to 230 different sites without finding any evidence of WMD. Nuclear inspector Mohammed ElBaradei had agreed, “We have to date found no evidence that Iraq has revived its nuclear weapons program.” Hans Blix’s own take on the Bush-Blair conversation rings true: “The U.S. government did not want to raise the hope that there was any way out but war.”
On balance the newly revealed record of President Bush’s secret meeting of January 31, 2003, confirms that by that date Bush’s Iraq war was certain. The Manning memo supplies an explicit picture of Bush not merely cherrypicking only the intelligence he wanted to use, but scheming to overcome the consequences of not finding weapons of mass destruction in Iraq.
In all likelihood the debate over the Iraq war will come to center on the question of how much sooner than January 2003 was Bush’s war policy cast in stone. Was it September 2002, when Bush blurted out “I don’t know what more evidence we need” and set up the White House Iraq Group to sell the war? Was it April at a previous Bush-Blair summit in Crawford or December 2001 when General Franks presented the first war plan to the president? Was it on or immediately after 9/11 or was it the day George W. Bush took the oath of office as President of the United States?

Working for the Clampdown

What might the president do with his new power to declare martial law?
by James Bovard

How many pipe bombs might it take to end American democracy? Far fewer than it would have taken a year ago.
The Defense Authorization Act of 2006, passed on Sept. 30, empowers President George W. Bush to impose martial law in the event of a terrorist “incident,” if he or other federal officials perceive a shortfall of “public order,” or even in response to antiwar protests that get unruly as a result of government provocations.
The media and most of Capitol Hill ignored or cheered on this grant of nearly boundless power. But now that the president’s arsenal of authority is swollen and consecrated, a few voices of complaint are being heard. Even the New York Times recently condemned the new law for “making martial law easier.”
It only took a few paragraphs in a $500 billion, 591-page bill to raze one of the most important limits on federal power. Congress passed the Insurrection Act in 1807 to severely restrict the president’s ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened these restrictions, imposing a two-year prison sentence on anyone who used the military within the U.S. without the express permission of Congress. But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act.
Section 1076 of the John Warner National Defense Authorization Act for Fiscal Year 2007 changed the name of the key provision in the statute book from “Insurrection Act” to “Enforcement of the Laws to Restore Public Order Act.” The Insurrection Act of 1807 stated that the president could deploy troops within the United States only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The new law expands the list to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition”—and such “condition” is not defined or limited.
These new pretexts are even more expansive than they appear. FEMA proclaims the equivalent of a natural disaster when bad snowstorms occur, and Congress routinely proclaims a natural disaster (and awards more farm subsidies) when there is a shortfall of rain in states with upcoming elections. A terrorist “incident” could be something as stupid as the flashing toys scattered around Boston last fall.
The new law also empowers the president to commandeer the National Guard of one state to send to another state for up to 365 days. Bush could send the Alabama National Guard to suppress antiwar protests in Boston. Or the next president could send the New York National Guard to disarm the residents of Mississippi if they resisted a federal law that prohibited private ownership of semiautomatic weapons. Governors’ control of the National Guard can be trumped with a simple presidential declaration.
The story of how Section 1076 became law vivifies how expanding government power is almost always the correct answer in Washington. Some people have claimed the provision was slipped into the bill in the middle of the night. In reality, the administration clearly signaled its intent and almost no one in the media or Congress tried to stop it.
The Katrina debacle seems to have drowned Washington’s resistance to military rule. Bush declared, “I want there to be a robust discussion about the best way for the federal government, in certain extreme circumstances, to be able to rally assets for the good of the people.” His initial proposal generated a smattering of criticism and no groundswell of support. There was no “robust discussion.” On Aug. 29, 2006, the administration upped the ante, labeling the breached levees “the equivalent of a weapon of mass effect being used on the city of New Orleans.” Nobody ever defined a “weapon of mass effect,” but the term wasn’t challenged.
Section 1076 was supported by both conservatives and liberals. Sen. Carl Levin (D-Mich.), the ranking Democratic member on the Senate Armed Services Committee, co-wrote the provision along with committee chairman Sen. John Warner (R-Va.). Sen. Ted Kennedy openly endorsed it, and Rep. Duncan Hunter (R-Calif.), then-chairman of the House Armed Services Committee, was an avid proponent.
Every governor in the country opposed the changes, and the National Governors Association repeatedly and loudly objected. Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, warned on Sept. 19 that “we certainly do not need to make it easier for Presidents to declare martial law,” but his alarm got no response. Ten days later, he commented in the Congressional Record: “Using the military for law enforcement goes against one of the founding tenets of our democracy.” Leahy further condemned the process, declaring that it “was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.”
Congressional Quarterly’s Jeff Stein wrote an excellent article in December on how the provision became law with minimal examination or controversy. A Republican Senate aide blamed the governors for failing to raise more fuss: “My understanding is that they sent form letters to offices. If they really want a piece of legislation considered they should have called offices and pushed the matter. No office can handle the amount of form letters that come in each day.”
Thus, the Senate was not guilty by reason of form letters. Plus, the issue was not on the front page of the Washington Post within the 48 hours before the Senate voted on it. Surely no reasonable person can expect senators to know what they were doing when they voted 100 to 0 in favor of the bill? In reality, they were too busy to notice the latest coffin nails they hammered into the Constitution.
This expansion of presidential prerogative illustrates how every federal failure redounds to the benefit of leviathan. FEMA was greatly expanded during the Clinton years for crises like the New Orleans flood. It, along with local and state agencies, floundered. Yet the federal belly flop on the Gulf Coast somehow anointed the president to send in troops where he sees fit.
“Martial law” is a euphemism for military dictatorship. When foreign democracies are overthrown and a junta establishes martial law, Americans usually recognize that a fundamental change has occurred. Perhaps some conservatives believe that the only change when martial law is declared is that people are no longer read their Miranda rights when they are locked away. “Martial law” means obey soldiers’ commands or be shot. The abuses of military rule in southern states during Reconstruction were legendary, but they have been swept under the historical rug.
Section 1076 is Enabling Act-type legislation—something that purports to preserve law-and-order while formally empowering the president to rule by decree. The Bush team is rarely remiss in stretching power beyond reasonable bounds. Bush talks as if any constraint on his war-making prerogative or budget is “aiding and abetting the enemy.” Can such a man be trusted to reasonably define insurrection or disorder? Can Hillary Clinton?
Bush can commandeer a state’s National Guard any time he declares a “state has refused to enforce applicable laws.” Does this refer to the laws as they are commonly understood—or the laws after Bush fixes them with a signing statement?
Some will consider concern about Bush or future presidents exploiting martial law to be alarmist. This is the same reflex many people have had to each administration proposal or power grab from the Patriot Act in October 2001 to the president’s enemy-combatant decree in November 2001 to the setting up the Guantanamo prison in early 2002 to the doctrine of preemptive war. The administration has perennially denied that its new powers pose any threat even after the evidence of abuses—illegal wiretapping, torture, a global network of secret prisons, Iraq in ruins—becomes overwhelming. If the administration does not hesitate to trample the First Amendment with “free speech zones,” why expect it to be diffident about powers that could stifle protests en masse?
On Feb. 24, the White House conducted a highly publicized drill to test responses to IEDs going off simultaneously in ten American cities. The White House has not disclosed the details of how the feds will respond, but it would be out of character for this president to let new powers he sought to gather dust. There is nothing more to prevent a president from declaring martial law on a pretext than there is to prevent him from launching a war on the basis of manufactured intelligence. And when the lies become exposed years later, it could be far too late to resurrect lost liberties.
Senators Leahy and Kit Bond (R-Mo.) are sponsoring a bill to repeal the changes, but it is not setting the woods on fire on Capitol Hill. Leahy urged his colleagues to consider the Section 1076 fix, declaring, “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.”
He deserves credit for fighting hard on this issue, but there is little reason to expect most members of Congress to give it a second look. The Section 1076 debacle exemplifies how the Washington establishment pretends that new power will not be abused, regardless of how much existing power has been mishandled. Why worry about martial law when there is pork to be harvested and photo ops to attend? It is still unfashionable in Washington to worry about the danger of the open barn door until after the horse is two miles down the road.
James Bovard is the author of Attention Deficit Democracy and eight other books.