“In [Congressional] conference, the chairs…[adopted a] provision that simultaneously amended the federal Insurrection Act and authorized the President to take control of the Guard in response to any “natural disaster, epidemic or other serious public emergency, terrorist attack or incident, or other condition in any State or possession of the United States…..” Because this was done under an expansion of the President’s Insurrection Act powers, military forces operating at the President’s direction in such circumstances are not subject to the Posse Comitatus Act and can be used to force compliance with laws by any rules for use of lethal force (RUF) or rules of engagement (ROE) authorized by the President or those acting under his delegated authority. The conference report was agreed to in the House on the same day as its filing (September 29, 2006) and in the Senate the following day (September 30, 2006). Without any hearing or consultation with the governors and without any articulation or justification of need, Section 1076 of the 2007 NDAA changed more than 100 years of well-established and carefully balanced state–federal and civil -military relationships. One hundred years of law and policy were changed without any publicly or privately acknowledged author or proponent of the change. As written, the Act does not require the President to contact, confer or collaborate in any way with a governor before seizing control of a state’s National Guard forces. It requires only notice to Congress that the President has taken the action but no explanation, justification or consent of congress is required.” (Lowenberg, “Statement by Major General Timothy Lowenberg, April 24, 2007).
Insurrection Act Rider of 2006: “The changes made to the "Insurrection Act" by Section 1076 of the National Defense Authorization Act confuse the issue of who commands the Guard during a domestic emergency. By granting the President specific authority to use 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. As currently written, it calls into question whether the governor or the President has primary responsibility during a domestic emergency.” (Easley, “Statement of [NC] Governor Michael F. Easley, Before Senate Judiciary Committee, Hearing on “'The Insurrection Act Rider’…”, April 24, 2007, p. 4)
Insurrection Act Rider of 2006: “I can assure you that outside parties such as the military and National Guard lack the familiarity with a particular community which is necessary to effectively and efficiently secure its residents during a time of disaster or emergency. To provide a blanket authority to such federal agencies and individuals to conduct domestic law enforcement functions, as the new language of the Insurrection Act does, jeopardizes the likelihood of a timely response and effective assistance to our citizens in times of need.” (Kamatchus, “Statement of …President, National Sheriffs’ Association, Senate Hearing on ‘The Insurrection Act Rider’.” April 24, 2007, p. 3)
Insurrection Statutes: “The Insurrection Statutes, 10 U.S.C. 331-334. Recognizing that the primary responsibility for protecting life and property and maintaining law and order in the civilian community is vested in State and local governments, the Insurrection Statutes authorize the President to direct the armed forces to enforce the law to suppress insurrections and domestic violence. Military forces may be used to restore order, prevent looting, and engage in other law enforcement activities. Given this specific statutory authority, the Posse Comitatus Act does not apply to such civil disturbance missions.” (DHS, National Response Plan (Draft #1), February 25, 2004, p. 70)(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
