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Jan. 6 committee’s concerns about Insurrection Act should concern us

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Jan. 6 committee’s concerns about Insurrection Act should concern us

Congress should take notice when a long-standing law does not address the current reality. But when those members of Congress happen to be sitting on the select committee investigating the Jan. 6, 2021 attack on the U.S. Capitol and they are privy to a mountain of evidence related to the planning and execution of a purported plot to overturn a presidential election, they should have our undivided attention. We have definitions for insurrection. Even a law is against insurrection. We don’t appear to have carefully defined parameters for the presidency.

According to an April 19 report in The New York Times, that committee is considering whether the 1807 Insurrection Act needs revision. This act gives the president the power to deploy the armed forces of the country, which includes the National Guard, active-duty military and the National Guard, in order to end rebellions or other uprisings against the government. The committee may need to amend a law giving absolute power to the president. In this instance, they are likely to see evidence that former President Donald Trump was close to using that power.

We have definitions for insurrection. Even a law is against it. We don’t appear to have, nor does the committee seem to be focused on it, carefully defined presidential parameters that will deal with it. Some have used the term “insurrection”, which I believe is a good description of what occurred at the Capitol on January 6. Black’s Law Dictionary describes insurrection to be: “A rising or rebellion of citizens or subjects against their government.” Insurrection is defined as any combination of resistance to lawful authority and intent to cause its denial. Federal Law punishes insurrection with a fine or up to ten year imprisonment. According to The New York Times, the insurrection law makes it punishable by a fine and up to ten years in prison.

There may be no greater presidential power than the authority to send our troops into battle. This authority becomes even more important if we are fighting on our own turf. In fact, there’s a law, the Posse Comitatus Act, that prohibits federal military forces from actively engaging in civilian law enforcement without congressional or constitutional authority. The Insurrection Act is the exception to this rule. We must ensure the act is not misused by any president.

Trump threatened to invoke the Insurrection Act following the nationwide and sometimes violent protests that erupted after a Minneapolis police officer murdered George Floyd. Trump’s idea was successfully rejected by then Defense Secretary Mark Esper. The Insurrection Act came up again as Trump desperately considered options that would help him overturn Joe Biden’s victory over Trump in the 2020 election. According to The Times, Trump advisers Roger Stone and Mike Flynn suggested declaring martial law or that military personnel be deployed to seize voting machines in order for the election “rerun”.

There may be three ways to check if a president intends to abuse his Insurrection Act powers.

If the Select Committee investigating the attack on Capitol Jan. 6, 2017, it may have found evidence that Trump either was in close proximity to invoking Insurrection act in an inappropriate manner, or that the act was part a plan to illegally overturn election results – or both. According to the New York Times, there are many members of that committee who feel this way. Representative Zoe Lofgren, D-Calif., and a member that committee, said, “There are many of us who are of the view that the Insurrection Act, which the former president threatened to invoke multiple times throughout 2020, bears a review.”

There are at least three possible solutions to checking a president intent on abusing his Insurrection Act power. Each of these options would offer greater control than the current lack of restraint and would not prevent the president from swiftly responding to a growing domestic rebellion against government.

1st, it is important that the Insurrection Act be modified to allow for some congressional oversight. When it comes to committing troops to combat on foreign soil, the War Powers Act puts restraints on a president in the form of congressional notification and authorization requirements. Specifically, the War Powers Act requires that Congress be notified within 48 hours of U.S. troops being introduced into foreign hostilities and mandates use of those troops end within 60 days unless Congress declares war or authorizes continuance. For a domestic deployment of U.S. forces, a president should be required to notify Congress within 24 hours, and that deployment should end in 48 hours without congressional authorization.

Second, in anticipation of a scenario such as the alleged discussions of the U.S. military seizing voting machines, where 48 hours would be just enough time for a president to complete a coup, the consent of one or more other executive branch members should be required. A president contemplating an anti-democratic plot could be frightened by the idea that high ranking officials will have to approve an Insurrection Act invocation. For example, then Vice President Mike Pence refused to succumb to intense pressure from those demanding that he refuse to ratify the 2020 Electoral College vote. Then Attorney General William Barr eventually resigned when Trump insisted he find election fraud that didn’t exist. In fact, the attorney general should provide a Department of Justice opinion that the proposed insurrection invocation and troop deployment must not violate exercise of civil rights, as happened in 2020 after Floyd’s murder when the National Guard was deployed in response to the peaceful protests in Lafayette Square in Washington.

Third: A president signing an Insurrection Act Declaration should automatically trigger judicial review. As Kelly Magsamen of the Center for American Progress proposes in an excellent primer on changing the act, such a judicial review is especially necessary if the military is used to spy on or surveil Americans.

Rep. Adam Kinzinger, R-Ill, a member of the Select Committee, characterized the January 6 attack on our democracy as a “dry run” – implying it could happen again – perhaps successfully. It’s possible it will again, if we don’t put in mechanisms to stop a corrupt president using the Insurrection Bill’s absolute power. This must be done now, before another authoritarian, or the same one, tries to use the absolute power conferred by Insurrection Act.

Frank Figliuzzi is an MSNBC columnist and a national security contributor for NBC News and MSNBC. He was the assistant director for counterintelligence at the FBI, where he served 25 years as a special agent and directed all espionage investigations across the government. The author of “The FBI Way”: Inside the Bureau’s Code of Excellence. “

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