Leahy, Bond fight Bush's control over National Guard

Leaders of the Senate National Guard Caucus are fighting to repeal legislation slipped into the latest defense authorization bill that would make it easier for the president to declare martial law and assume control of the National Guard.

Leaders of the Senate National Guard Caucus are fighting to repeal legislation slipped into the latest defense authorization bill that would make it easier for the president to declare martial law and assume control of the National Guard.

The law, which President Bush signed last fall, revised the 200-year-old Insurrection Act, which empowered the president to use the military as a police force during a rebellion.

The new provision crafted by Sens. Carl Levin (D-Mich.), chairman of the Senate Armed Services Committee, and John Warner (R-Va.), former chairman and now ranking member, says the president can call up troops to deal with natural disasters, epidemics and terrorist attacks, among other events.

Governors across the country were angered by last year’s legislation, and have mounted an intense campaign to keep the National Guard under their control during natural disasters and emergencies.

Backed by the National Governors Association (NGA) and the National Guard community, Sens. Patrick Leahy (D-Vt.) and Kit Bond (R-Mo.), co-chairmen of the National Guard Caucus, introduced a bill this week to revive the previous authority on the domestic use of the military.

The legislation has been referred to the Armed Services Committee, where it will probably face some opposition from Warner and Levin, who said that the provision clarifies existing law and does not give the president powers at the expense of the governors.

Leahy disagrees. “Expanding the president’s powers under the Insurrection Act was a sweeping, ill-considered and little-noticed grant of authority to the executive branch, at the expense of the National Guard and the governors,” he said. “That change in longstanding law treads heavily across basic constitutional issues relating to the rights of the people, the separation of powers, and state and local sovereignty.”

Even though the bill has been referred to the Armed Services panel, the issue is of interest to the Judiciary Committee, which Leahy chairs, according to his spokesman.

The change to the Insurrection Act went unnoticed among lawmakers, but governors were alarmed and united.

“NGA does very few letters where … all governors sign on because it is very difficult, but it did twice last year,” said a source close to the matter. “Governors do not need to look over their shoulders to see when Washington, D.C., is going to drop in.”

Bond, a former governor, said he was very concerned with “this imprudent change in law,” which would give the president “unnecessary and unprecedented power to invoke martial law.”

The change was prompted by a conflict between Bush and Louisiana Gov. Kathleen Babineaux Blanco (D) over who should control Guard units in the days after Hurricane Katrina in 2005. Bush sought to federalize the Guard, but Blanco refused to give up command, leading to a feud, which hampered the response to the disaster.

The National Guard Bureau is leaving the fight to the governors, according to a Pentagon source, who added that the bureau did not know about the changes and was surprised to see the language in the defense authorization bill. Some in the Guard are concerned that the new law is a slippery slope; others view the issue as political rather than legal.

“It makes it much easier, more politically palatable for the president to declare an insurrection,” said the source.

Because the change in law was instituted without consulting the governors, they are calling for an open debate. In a letter to the Senate National Guard Caucus, North Carolina Gov. Mike Easley and South Carolina Gov. Mark Sanford, the NGA’s lead governors on the National Guard, insisted that the citizen soldiers should remain under the control of the governors.

The changes are likely to “confuse the issue of who commands the Guard during a domestic emergency,” they wrote.