Preserve Posse Comitatus

The Progressive magazine, November 2005

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 the Pentagon.

"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 about."

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 as bad.

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 similar activity"

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," Graham wrote.

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," he said.

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 says.

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 says.

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 both parties.

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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