R.I.P. Posse Comitatus

September 19th, 2005

It was Representative Ron Paul of Texas who read into the Congressional Record on June 25, 1997—well before the malfeasance of George Bush, the Constitution-bashing Patriot Act, and the reckless so-called war on terror—the following: “In a police state the police are national, powerful, authoritarian. Inevitably, national governments yield to the temptation to use the military to do the heavy lifting…. [O]nce the military is used, however minor initially, the march toward martial law … becomes irresistible.”

Fast-forward to the present. In the wake of Hurricane Katrina, General Peter Grace, soon to become Vice Chairman of the Joint Chiefs of Staff, has called “for Posse Comitatus to be reconsidered in response to suggestions that it slowed down deployment of troops,” according to Jurist, a legal research website.

Virginia Republican John Warner, chairman of the Senate Armed Services Committee, “has questioned restrictions under the law since the September 11th attacks, and has promised to do so again.”

In February, 2002, soon after the nine eleven attacks, Colonel John R. Brinkerhoff, US Army Retired, and acting associate director for national preparedness of the Federal Emergency Management Agency (FEMA), wrote: “President Bush and Congress should initiate action to enact a new law that would set forth in clear terms a statement of the rules for using military forces for homeland security and for enforcing the laws of the United States. Things have changed a lot since 1878, and the Posse Comitatus Act is not only irrelevant but also downright dangerous to the proper and effective use of military forces for domestic duties.”

“Article II, Section 2 of the Constitution grants the power to Congress to make the rules governing the armed forces,” writes Diane Alden. “In recent years Congress has acted less like the source of legitimacy for the use of the military force and more like a rubber stamp for military adventurism by the executive branch, regardless of who is president…. both Republicans and Democrats can share the blame for blurring lines between the military and police…. Both can share blame in the unconstitutional laws passed and the open checkbook they offer federal police agencies that don’t seem to be concerned with the niceties of the Bill of Rights.” Alden wrote this in the 1990s, during the Clinton administration and after the outrage of Waco. Her words are even more urgent today as Bush and Congress have eroded the Constitution and the Bill of Rights even further.

Our corporate media has blamed FEMA’s response to Katrina on bureaucratic inertia and ineptitude. However, a cursory examination of events reveal something else: FEMA (and the Department of Homeland Security) deliberately exacerbated the situation in New Orleans and up and down the Gulf Coast by withholding crucial assistance, thus creating a chaotic situation and “anarchy” in the streets as desperate people “looted” stores in search of water and food. FEMA turned away experienced firefighters; turned away Wal-Mart supply trucks; prevented the Coast Guard from delivering diesel fuel; prevented the Red Cross from delivering food; blocked morticians from entering New Orleans; blocked a 500-boat citizen flotilla from delivering aid; turned away generators; told first responders not to respond. As Jefferson Parish President Aaron Broussard revealed during an emotional plea on NBC’s Meet the Press, FEMA basically declared war on local authorities and sabotaged local communications. FEMA went out of its way to make the situation worse, thus sending the message: without military occupation and a watering down of the Posse Comitatus Act, FEMA and the feds cannot do their job, a message dutifully echoed by the corporate media.

“The Posse Comitatus Act reflects the political sensitivities of a period in American history when Union troops enforced laws on the former Confederate states,” opines the San Antonio Express-News.

It also reflects the American concept of federalism and a traditional distrust of powerful government.

Hurricane Katrina sheds new light on these subjects. Emergency-management planning is now inextricably linked with national security. The military is, in effect, a first responder for both humanitarian relief and law enforcement. The federal government may be the only source of available help in some disaster situations.

Congress and the American people will examine what went wrong in the homeland security bureaucracy and why the federal government was slow to respond to Katrina’s destructive force.

They also need to examine the Posse Comitatus Act to make sure it—or at least government lawyers’ understanding of it—does not remain an obstacle to common-sense response to national disasters.

If the Posse Comitatus Act is an obstacle to anything, it is the federal government’s desire send in the Marines—who are trained to fight wars, not provide disaster relief and augment (or supplant) local law enforcement. “One of the United States’ greatest strengths is that the military is responsive to civilian authority and that we do not allow the Army, Navy, Marines or the Air Force to be a police force,” Marine Corps General Stephen Olmstead testified before Congress. “History is replete with countries that allowed that to happen. Disaster is the result.” Or, as Maryland delegate Luther Martin argued during the Constitutional Convention in 1787, “When a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.”

“If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator,” Bush joked on December 18, 2000. However, as we have witnessed since, Bush was not joking and the result of his desire to be a dictator has resulted in a serious erosion of the Bill of Rights, most notably the First, Second, Fourth, and Six Amendments. Indeed, if the barriers to military rule are removed by Bush’s rubberstamp Congress, and the American people are not vigilant, “slavery,” as Luther Martin noted, will be the ultimate result.