Playing with fire: President must be careful in domestic use of troops

NY Press & Sun Bulletin | October 10 2005

In 1878, Congress passed a law that said "it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress."

Washington University's Law Quarterly offers a definition of posse comitatus as "The power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc."

The law was enacted by Congress in the time of reconstruction of the Southern states (and meant to calm a nervous population there after the Civil War) to prevent the use of the military for civilian law enforcement. You may have heard the term used recently in regard to the delay of assistance in the Gulf Coast regions hit by Hurricane Katrina. Those defending the federal government's response said the president could not just order troops to move onto the scene because of the Posse Comitatus Act.

The Bush administration is hinting, and not too subtlely, that it would like to alter the Posse Comitatus Act or discard it. Consider this quote from the president's press conference in New Orleans on Sept. 15: "A challenge on this scale requires greater federal authority and a broader role for the armed forces."

On Sept. 25, while surveying the damage done by Hurricane Rita, he said, "Is there a circumstance in which the Department of Defense becomes the lead agency? ... It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces -- the institution of our government most capable of massive logistical operations on a moment's notice."

Last Tuesday, President Bush echoed a similar sentiment when he spoke about the possibility of an avian flu pandemic hitting this country. Expressing his concern about people from one community affected by the flu infecting another, Bush said, "It's one thing to shut down airplanes. It's another thing to prevent people from coming in to get exposed to the avian flu. And who best to be able to effect a quarantine? One option is the use of a military that's able to plan and move. So that's why I put it on the table. I think it's an important debate for Congress to have."

Is this drumming for repeal of the Posse Comitatus Act something new that the administration is considering after what occurred in New Orleans and the rest of the Gulf Coast? No. Actually, the Clinton administration passed an exception to the act in 1996 that allows the government to step in during a national emergency involving biological or chemical attacks. In 1999, it failed to get Congress to pass a law that would allow the act to be abandoned altogether if a terrorism threat were discovered.

The impact of terrorism has spurred scrutiny of our Constitution to redefine what freedoms should or should not be relinquished for the good of all. This country was blessed to have been conceived through the eyes of forward thinkers, who had tremendous wisdom when it came to how much power and restraint government should have. Of course, terrorism did not exist then on the magnitude it does today. There was no Internet to spread agendas around the world in seconds. There were no weapons of mass destruction that could be carried in a suitcase.

That said, there is a real danger in allowing a government too much power. If someone with devious plans were to act, without the safeguard of the Posse Comitatus Act, this nation could be turned into a police state overnight. That is not saying that the Bush administration has such plans, but provisions in its Patriot Act have alarmed many as to the loss of personal freedom the law mandates.

Let's not use the cloak of Katrina to make a rash decision to overturn this important law. Investing in programs such as the Town of Union has created to train the public in emergency response should be encouraged across the nation. Local agencies and law enforcement need to respond first. The military should be asked to help with relief when a municipality is overwhelmed by a disaster, natural or man-made. It should not be mustered otherwise

Last modified October 10, 2005