The War on Posse Comitatus

Via Progressive Review, as part of its recurring feature entitled (appropriately enough) The Creeping Coup. The original appeared under the much more innocuous title "Military May Play Bigger Relief Role":

President Bush's push to give the military a bigger role in responding to major disasters like Hurricane Katrina could lead to a loosening of legal limits on the use of federal troops on U.S. soil. Pentagon officials are reviewing that possibility, and some in Congress agree it needs to be considered....

At question is how far to push the military role, which by law may not include actions that can be defined as law enforcement _ stopping traffic, searching people, seizing property or making arrests. That prohibition is spelled out in the Posse Comitatus Act of enacted after the Civil War mainly to prevent federal troops from supervising elections in former Confederate states.

Speaking on the Senate floor Thursday, Sen. John Warner, R-Va., chairman of the Armed Services Committee, said, "I believe the time has come that we reflect on the Posse Comitatus Act." He advocated giving the president and the secretary of defense "correct standby authorities" to manage disasters....

Uh huh. I guess Warner, like many in his party, is one of those "strict constitutionalists" who opposes "judicial activism"--except when it comes to "executive privilege," the President's "national security" prerogatives, and the garrison state.

Defense Secretary Donald H. 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 Friday. He said these included possible changes in the relationship between federal and state military authorities. Under the existing relationship, a state's governor is chiefly responsible for disaster preparedness and response....

Rumsfeld has not made recommendations to Bush, but among the issues he is examining is the viability of the Posse Comitatus Act. Di Rita called it one of the "very archaic laws" from a different era in U.S. history that limits the Pentagon's flexibility in responding to 21st century domestic crises.

"Very archaic." That reminds me of a talking head show I saw on CNN years ago, where Ernest van den Haag referred to the common law privilege against self-incrimination as a relic of the past, and pointed out that it existed only in a handful of countries: among them the U.S., England and Australia. Let's see, what do those three countries have in common? Oh, yeah--Magna Carta, the common law tradition, and all those other "archaic" things. The generation that passed the Posse Comitatus Act, being more historically literate than their modern heirs, might also have had in mind, besides that "other era" in U.S. history, an earlier case in which a country was divided up into military districts and governed by lieutenant generals: Cromwell's Protectorate. But nothing like that could ever happen here--even though it just had happened here during Reconstruction. Many of the events of 1861-77 were reminiscent of Macaulay--but repeated as farce.

Another such law, Di Rita said, is the Civil War-era Insurrection Act, which Bush could have invoked to waive the law enforcement restrictions of the Posse Comitatus Act. That would have enabled him to use either National Guard soldiers or active-duty troops _ or both _ to quell the looting and other lawlessness that broke out in New Orleans.

The Insurrection Act lets the president call troops into federal action inside the United States whenever "unlawful obstructions, combinations or assemblages or rebellion against the authority of the United States make it impracticable to enforce the laws" in any state.

The political problem in Katrina was that Bush would have had to impose federal command over the wishes of two governors Kathleen Blanco of Louisiana and Haley Barbour of Mississippi who made it clear they wanted to retain state control.

The last time the Insurrection Act was invoked was in 1992 when it was requested by California Gov. Pete Wilson after the outbreak of race riots in Los Angeles. President George H.W. Bush dispatched about 4,000 soldiers and Marines.

That may also, by the way, be the first time Garden Plot's emergency provisions were put into effect. For those who aren't aware that we live an Executive pen stroke away from dictatorship, here's a simplified time line. A series of executive orders under JFK gave the President authority, in a "national emergency," to declare martial law, nationalize the economy, detain "subversives," and relocate entire populations at will. The Garden Plot plan, developed in response to the civil disorders of the 1960s ("Never again!" our ruling elites said), provided for cooperation between the regular armed forces, Guard, and state and local police on a national scale to restore "civil order." Among other things, pursuant to Garden Plot, many local police forces maintain files of "subversive" organizations for future reference--pretty handy in a "national emergency," when a U.S. military liason is sent to "assist" the local Chief of Police. Under Jimmy Carter, FEMA was created with the primary mission of superceding civilian government in the event of a national emergency (under Bush II, of course, it has been subsumed under the Ministry of Fatherland Security). In the early 1980s, Reagan's FEMA Director, Louis Giuffrida (at one time Governor Reagan's National Guard guy, an enthusiastic supporter of Garden Plot joint training exercises) collaborated with Ollie North in drafting plans for martial law in a national emergency. The "emergency" scenario was mass civil disorder resulting from an antiwar movement, in the event of a hypothetical U.S. invasion of Central America. If it sounds like the U.S. government increasingly sees its own population as a potential enemy, well, that's the impression I get, too.

police state , constitution , martial law , fascism