Preserve Posse Comitatus

The Progressive, November 2005 | Go to article overview
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Preserve Posse Comitatus

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 FEMA, 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.

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