September 23, 2005
Time for a New PosseBy John B. Dwyer
Hurricane Katrina revealed the need for a much better ability to respond to the possible catastrophes — natural or man—made — which may hit our major cities. On Thursday, September 15, in the wake of Katrina, President Bush said:
But you can't do that, opined columnists and pundits. Any broader role for the armed forces would violate the Posse Comitatus Act. And then with the assuredness of a gambler with aces up a sleeve, they would cite that Act:
Simply put: a president is barred by law from deploying federal troops to the several states in a law enforcement role. That is why President Bush asked Governor Blanco of Louisiana to mobilize the Louisiana National Guard and formally ask for federal assistance, only to have her demur for 24 hours.
But the act does completely forbid the use of federal forces domestically. There are a number of exceptions. It doesn't apply to:
1. The U.S. Navy and Marine Corps, even though both have acted as if it did for decades;
2. The U.S. Coast Guard, formerly a component of the Department of Transportation and now part of the Department of Homeland Security, is both a law enforcement and military agency;
3. The National Guard when under gubernatorial command as state troops;
4. The National Guard when called to federal active duty, e.g. the 1950s to '60s civil rights unrest, Democrat Party Convention rioting and the Watts riots;
5. Military personnel assigned to military police, shore police, or security police duties.
And it does not prevent the president from deploying federal troops to quell riots or civil disturbances. From 1795 to 1995, as Colonel John R. Brinkerhoff states in his excellent essay 'The Posse Comitatus Act and Homeland Security:
Another authoritative source, Bonnie Baker's November 1999 essay "The Origins of Posse Comitatus" (published in Air and Space Power Chronicles) states:
In his October 2000 essay 'The Myth of Posse Comitatus' posted at the Department of Homeland Security website, Army Reserve Major Craig T. Trebilcock notes that
The author goes on to say that the scope of these statutes is broad enough to encompass disturbances resulting from 'terrorist or other criminal activity.'
In addition, there is the Stafford Act, 42 U.S.C., Section 5121, which allows federal troops to be deployed in times of natural disaster at the request of a governor, as President Bush requested of Governor Blanco. Under this Act a president may declare a major disaster and send in forces on an emergency basis for up to 10 days to preserve life and property.
He cites the deployment of over 10,000 troops to the 1996 Olympic venues in Atlanta under the 'partial rationale that they were present to deter terrorism' then notes that
As Brinkerhoff tells us in his essay, it was President Franklin Pierce's attorney general Caleb Cushing who
Why did Attorney General Cushing opine thusly? To help enforce the 1850 Fugitive Slave Act. The operative effect of his opinion meant that Army units under their own commanders could still be pressed into service by marshals or sheriffs as a posse comitatus without the president's approval. In practical terms, it allowed the Army to assist local law enforcement out in the wild West, or where they were the only personnel who could enforce the law. As Brinkerhoff stresses, this was merely Cushing's opinion. It had not yet undergone judicial or legislative review.
The 1866 Civil Rights Act allowed U.S. marshals to utilize the posse comitatus of the counties, or portions of the land or naval forces of the United States, or of the militia, validating the role of federal troops who were effectively governing the 11 defeated Confederate states during Reconstruction. Before the Civil War, as Brinkerhoff writes,
In 1878 Congress, having grown tired of marshals habitually employing Army troops without presidential authorization, passed the Posse Comitatus Act, which passed as an amendment to the Army appropriations bill. Here, Brinkerhoff stresses that
'Greater federal authority and a broader role for the armed forces,' is what President Bush now wants Congress to consider in the aftermath of Katrina. And he wants Congress to know that he believes he has the executive authority to deploy troops should an emergency or catastrophic situation require doing so.
Given the Swiss cheese nature of the old Posse Comitatus Act and the multitude of exceptions to it, it is now time to discard it and write a new law for the 21st century. It is time to begin discussing how to preserve our liberties from the type of threat of military domination experienced by so many other countries, while at the same time allowing us to respond to domestic emergencies arising from acts of God like hurricanes and earthquakes, as well as the man—made threat of terror attacks. The time to debate the issue is now, not in the federal courts following a future disaster, when we will have our hands quite full.
John B. Dwyer is a military historian and a frequent contributor to The American Thinker.