Liberties Take Another Hit after Katrina

by Bob Barr, USA*

It is in times of great crisis that America has reached within its soul and found the extraordinary power to defeat the greatest forces of evil the world has marshaled against civilization. Ironically, it is in those same times of great challenge that America has succumbed to the lure of power and expediency to weaken the laws that serve to undergird our very liberty.

The threat of war with France in the late 18th century gave us the notorious Alien and Sedition Acts. The Civil War afforded President Abraham Lincoln an excuse to suspend the Great Writ - habeas corpus1. The "Red Scare"2 following World War I gave us the infamous Palmer Raids3, and the Second World War the internment of thousands of Japanese-Americans. The Communist threat of the post-WWII era spawned the House Un-American Activities Committee and the disgraceful McCarthy hearings.

More recently, the abject fears born of the terrorist attacks of Sept. 11, 2001, have given us the USA Patriot Act, which threatens to eviscerate the Fourth Amendment4 guarantees against unreasonable searches and seizures, even as it undermines the notion of privacy embodied therein.

In each of these chapters in America's constitutional journey, it was a real or perceived military threat that precipitated a constitutional crisis. In a sense, perhaps, it was understandable that, in attempting in good faith to meet those challenges, some would make mistakes in how to resolve them. Now, America's constitutional foundations are being shaken not in response to a military threat, but because of an act of nature.

Decision-makers in the White House and on Capitol Hill are considering legislative responses to Hurricane Katrina that would undo some of our most fundamental safeguards against abusive central government power. Federalism, a cornerstone of our system of governing, will be a casualty, as will the principle that the power of our armed forces to enforce domestic laws is inconsistent with the rule of law throughout our history. These efforts are being spearheaded by Republican lawmakers who in decades past prided themselves on being not the Party of Big Government but of states' rights and individual liberty. No more.

U.S. Sen. John Warner, who hails from Virginia, the state that gave us such timeless champions of freedom as Thomas Jefferson, Patrick Henry and James Madison, appears to be leading the charge to undo the doctrine of posse comitatus5, the post-Civil War law that has stood for 125 years to keep the military from enforcing domestic laws except in narrow, carefully crafted circumstances.

Specifically, many in the Congress, with the tacit if not express consent of the Bush administration, are considering changes to federal laws that would, among other things: empower active-duty federal troops to engage directly in enforcing local laws; create specialized military units dedicated to domestic problems; authorize the president to federalize National Guard troops without being asked to do so by a state governor; and establish a national military command center to immediately take control of logistics, security and supplies in the event of an "emergency."

Such changes, while perhaps possessed of a certain appeal in light of the bureaucratic bungling following the breaks in the flood control barriers in New Orleans, would fatally erode the principles of federalism and civilian rule of law that have enabled us to remain a uniquely free people.

Perhaps even more frightening, however, than the rush to militarize all aspects of natural disaster response is the move in the House of Representatives to pass legislation that would vest in a single federal judge the power to suspend all civil and criminal laws and proceedings in all federal courts, in the event of a vague "emergency." Moreover, the legislation being considered by the House would also make it a federal crime for any person to "interfere" with, "oppose" or "intimidate" any federal employee, or a person helping any federal employee, who may be involved in any way in supporting recovery from an emergency or disaster.

Thus, those people who forcibly refused to leave their home in a flooded area, when ordered to do so by any person employed by any federal agency, would have committed a federal criminal offense. And if they have a firearm in their house at the time, they would be subject to an enhanced penalty of 15 years in a federal prison.

These gross and unnecessary overreactions to the obvious problems following Katrina's rains and winds are being seriously considered in the Congress. If their advocates succeed in having such measures signed into law, Katrina will have claimed yet another victim - the Constitution of the United States of America.

* Former congressman and U.S. Attorney Bob Barr practices law in Atlanta. 
Additional information cf. www.ajc.com/opinion/content/opinion/0905/21edbarr.html

1 Lat. "You have the body." Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

2 by the Bolshevists, Communists and the «Reds» in general, cf. footnote 3.

3 The climate of repression established during World War One continued after the war ended: this time, government interest focused on communists, Bolsheviks and "reds" generally. The climactic phase of this anti communist crusade occurred during the "Palmer Raids" of 1918-1921. A. Mitchell Palmer, Wilson's Attorney General, believed communism was "eating its way into the homes of the American workman." In his essay "The Case Against the Reds," Palmer charged that "tongues of revolutionary heat were licking the alters of the churches, leaping into the belfry of the school bell, crawling into the sacred corners of American homes, seeking to replace marriage vows with libertine laws, burning up the foundations of society." With a broad base of popular support, in 1919 Palmer intensified the attacks on political dissent that had begun during the war.

4 The Fourth Amendment says: «The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.»

5 Posse Comitatus Act (18 USC 1385) of 1878, is sometimes disparagingly called a "legal antiquity" today.