Preserve Posse Comitatus
The Progressive magazine, November
The Pentagon may be the only agency of
the federal government that George Bush believes in, so it's little
wonder that he wants it to keep expanding its powers, not only
overseas but right here at home. Ever since Hurricane Rita, the
one consistent message out of Bush's mouth has been: Bring in
"A challenge on this scale requires
a greater federal authority and a broader role for the armed forces,"
he said in his eerily lit New Orleans speech on September 15.
Then, as Rita was blowing onshore, Bush
went to Northcom, which wasn't in existence until after 9/11.
Northcom stands for Northern Command, just as Southcom stands
for Southern Command, the notorious outpost of the Pentagon in
Latin America. After spending the night at Northcom, Bush asked:
"Is there a circumstance in which the Department of
Defense becomes the lead agency? That's
going to be a very important consideration for Congress to think
Such a move would be unnecessary and unwise.
Unnecessary because local and state police,
as well as the National Guard, are better equipped to perform
law enforcement functions. Had they, and FEIvIA, gotten their
acts together, the Katrina disaster would not have been nearly
Unnecessary because the Pentagon already
has the authority to give logistical support and humanitarian
aid during disasters.
Unwise because Bush's power grab for the
Pentagon would force federal troops to do local law enforcement
in unfamiliar communities, undermining the premise of local policing.
And unwise, above all, because having
the army patrol our streets cuts quickly to the question of whether
we are a democracy or not. For more than 125 years, the President
has been prohibited, except in the most extreme cases, from foisting
troops upon the public.
There is no reason to give the President
that authority today.
The Posse Comitatus Act of 1878 prohibits
the President from using "any part of the Army of the United
States... for the purposes of executing the laws" unless
expressly authorized by the Constitution or an act of Congress.
Regulations governing its enforcement explicitly rule out the
"direct participation by a member of the Army, Navy, Air
Force, or Marine Corps in a search, seizure, arrest, or other
Aside from a few departures, the line
has been clear: The military deals with overseas threats and cannot
engage in domestic law enforcement.
Many history textbooks stress that Southern
lawmakers championed this law, as they opposed federal troops
enforcing Reconstruction. And that is certainly true. But prior
to the Civil War, Southern lawmakers had no problem relying on
federal forces. In fact, the Fugitive Slave Act of 1850 empowered
U.S. marshals to return runaway slaves to their owners. In the
disputed election of 1876, President Ulysses S. Grant used federal
marshals at the polls, and that also fueled the effort to get
this law on the books.
Over the years, Congress and the courts
have carved out several exceptions to the law.
First, the military can already provide
disaster relief by sending in supplies and equipment or providing
humanitarian assistance. Courts have ruled this kind of involvement
as "passive," since it doesn't grant the military coercive
power over the citizenry.
Second, the National Guard, when it is
under the command of a state governor, can engage in law enforcement.
And the Coast Guard is exempt.
Third, the President can waive the law
by invoking the Insurrection Act, which grants him powers to put
down lawlessness, rebellion, and resistance by states to the enforcement
of federal laws.
Presidents have used troops in a variety
of domestic settings: dubiously to intervene in labor strikes
and legitimately to enforce the civil rights laws when state governments
were refusing to do so.
But the Bush Administration has gone to
new lengths. It has used troops for immigration patrol and drug
interdiction. And ever since 9/11, it has pushed hard for amending
the Posse Comitatus Act.
On October 4, 2001, then-Deputy Defense
Secretary Paul Wolfowitz testified to Congress that he strongly
favored reexamining that law.
Later that month, then-Assistant Attorney
General Jay Bybee wrote a memo confirming the Administration's
view that the Posse Comitatus Act "does not forbid the use
of military force for the military purpose of preventing and deterring
terrorism within the United States."
Bush underlined the premise of that memo
after Katrina by saying, "Clearly, in the case of a terrorist
attack," the Pentagon would be the lead agency.
And it's preparing for the day.
Northcom itself has developed plans for
"a variety of possible roles for quick-reacting forces"
of 3,000 soldiers each within the United States, according to
an article by Bradley Graham of The Washington Post on August
8. "The war plans represent a historic shift for the Pentagon,
which has been reluctant to become involved in domestic operations
and is legally constrained from engaging in law enforcement,"
The first commander of Northcom, General
Ralph Eberhart, was a strong proponent of ditching the Posse Comitatus
Act. "We should always be reviewing things like Posse Comitatus
... if we think it ties our hands in protecting the American people,"
After Katrina, Defense Secretary Rumsfeld
is "reviewing a wide range of possible changes in the way
the military could be used in domestic emergencies, spokesman
Lawrence Di Rita said," according to AR "Among the issues
he is examining is the viability of the Posse Comitatus Act."
Di Rita called it "very archaic."
Timothy Edgar, national security policy
counsel at the ACLU, is not impressed with that criticism. "The
Bill of Rights is very old," he says. "The Magna Carta
is very old."
Like its reaction to its incompetence
prior to 9/11, the Bush Administration is responding to its colossal
Katrina screw-ups by flailing away at our own cherished civil
liberties. And just as the harsh measures of the Patriot Act are
not necessary to protect us, the revision of Posse Comitatus is
not the answer.
"I'm afraid we're focusing on the
wrong problem in order to avoid accountability for failures at
all levels of government," says Edgar. He specifically faults
Homeland Security. "It makes very little sense to put the
Pentagon in charge of disaster relief when we have a whole new
Department of Homeland Security that's supposed to do this."
"Americans have never grown accustomed
to seeing soldiers in the streets as a standard enforcement presence."
-Law Professor Jonathan Turley
Edgar has no problem with troops delivering
humanitarian supplies. "If they did that, then the local
police and the National Guard would be freed up to provide security,"
He does have a problem with troops doing
law enforcement, however.
"That would be a real departure for
our system of government and one that's not at all needed,"
he says. "Posse Comitatus lays out a fairly strict and basic
principle of democracy: Our active duty soldiers are not to be
used for internal security for police functions. The danger is
that active duty soldiers are not trained in dealing with the
local community and they are not accountable to the local community
in the way the police are or even the National Guard is."
Michael Ratner of the Center for Constitutional
Rights agrees. "What we're talking about is having people
who are trained to kill patrol our streets rather than peace officers,"
he says. "That's a pretty bad sign. They are not trained
in constitutional rights or the Fourth Amendment, but are trained
to shoot first and ask questions later."
Ratner also is concerned that there would
be "no real accountability system, no ability to sue, no
citizen review boards." Along with the rightwing ideology
that is ascendant right now, this militarization of the police
would "begin to cross a line that's really scary," he
Jonathan Turley, professor of law at George
Washington University, notes a "disturbing level of militarization
of past civilian functions." Along with the increased use
of troops, he cites the Administration's attempt "to remove
hundreds of cases from the federal judiciary to courts of the
President's own creation." He, too, worries about a "new
model of government for this country."
So do libertarians. "If Congress
weakens the legal barriers to using soldiers as cops, substantial
collateral damage to civilian life and liberty will likely ensue,"
wrote Gene Healy, senior editor at the Cato Institute, back on
December 17, 2003. Katrina did not alter his thinking. "The
military is trained to vaporize, not Mirandize," he told
NPR after the hurricane. "You can run into trouble when you
mix these functions up."
Colonel Patrick Finnegan, who is now dean
of the academic board at the U.S. Military Academy, shares that
concern. "The military is designed and trained to defend
our country by fighting and killing the enemy, usually faceless,
with no individual rights," he said in 2003, when he taught
law at the academy. "We do not, and should not, want the
military to act as a police force."
There is also resistance in Congress from
Senator Patrick Leaky, Democrat of Vermont,
and Republican Senator Kit Bond of Missouri both oppose Bush's
effort to gut the Posse Comitatus Act. In a September 29 letter
to Bush, they warn against "the potentially dangerous use
of the active military for law enforcement." They write:
"The worst lesson to take away from recent natural disasters
would be to change the presumption against using the military
as the lead organization. Such a radical change would go against
our Constitution, threaten civil liberties in emergency situations,
and ignore the full capabilities of the National Guard."
But Bush and Rumsfeld are pushing on.
They have an ally in John Warner, the Virginia Republican, who
chairs the Senate Armed Services Committee. He has wanted to amend
the act since 9/11 and may introduce legislation soon.
The outcome of this debate over the Posse
Comitatus Act may prefigure the contours of our society for a
generation or more. We should not let the ineptitude of the government's
response to Katrina coerce us into abandoning our commitment to
civilian law enforcement..
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