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12:15:50 AM
Written By : Richard SchwartzCategory : News And Comment
Location : Nashua, NH

Posse Comitatus isn't just a couple of Latin words that refer to the "authority of the county". It isn't just the name of a really good episode of West Wing. It's a US law, the Posse Comitatus Act of 1878 that prohibits the use of the US armed forces for domestic law enforcement. Basically, it says that federal martial law is a no-no. It amplifies the provision of the Constitution that requires Congress to approve any suspension of the right of habeas corpus, except in cases of rebellion or invasion.

My friend Kevin Schofield mentioned Posse Comitatus in a post in which he expressed concern about President Bush's remarks at a press conference this week, in which he discussed the possibility of using the military to enforce a quarantine in the event of a avian flu epidemic. I share Kevin's concern about this specific instance, which I don't think would really call for waiver of Posse Comitatus, but I do think that recent events tell us that it is time to re-visit the role of the military in domestic emergency response. I say that despite the fact that the Wikipedia entry linked above contains information that indicates that Posse Comitatus is nowhere near as absolute a prohibition as some people claimed it was in the days immediately following Hurricane Katrina, and despite the fact that there have been cases where martial law has been declared in parts of the US after Posse Comitatus was in effect.

Be that as it may, Posse Comitatus is a very old law, enacted at a time when the problems of domestic law enforcement were far simpler, and the needs and expectations of emergency response were much lower. Furthermore, the roles of and the relationships between the active duty regular military with it's various branches, separate commands and joint staff, the reserve military, the National Guard, the Department of Defense, the Department of Homeland Security (which includes the Coast Guard), military and civilian intelligence agencies, the FBI, and state and local government and law enforcement are far, far, far more complex than they were in 1878. I doubt that very many people -- and probably none of the actual commanders, Cabinet secretaries, directors, governors, not to mention the President -- actually understands all the intricacies at every level of the relationships, and I'd be very surprised if anyone at all understand all the implications that Posse Comitatus has on all the various parties that have roles in law enforcement and emergency response..

On that basis alone, I believe that re-thinking Posse Comitatus is justified in order to allow for an expedited and coordinated federal response to state-wide or regional emergency situations that rise to the level of Katrina. I.e., something should be done for situaions where state and local authorities simply can not cope with the problems that they are encountering. to the point where they can not assume command and control of federal resources that are available to help them. A congressional delegation of extraordinary powers to the President as a contingency just isn't a good enough solution, however. It throws out fundamental principles that our system of government depends on. No matter how we re-think Posse Comitatus, we should not abandon separation of powers, and checks and balances.

If I were in charge of re-thinking Posse Comitatus, what I might do is require that no waiver can be authorized solely by the President, ever, and it must always be for a specific circumstance and a defined period of time. Congress should not and could not grant a blanket waiver as a contingency. On the other hand, I would recognize that if a state or region is clearly dysfunctional due to a major emergency, it would not be right to wait for Congress to get its act together. (Pun intended.) Still, there should be a way to make sure that either the Legislative or judicial branch has a say in things. One could simply require that the President get temporary legilative authorization by getting the approval of at least one Senator and one Representative from each of the states where the emergency situation exists. If that can't be done, the President could get temporary Judicial approval by getting at least two judges from each of the federal circuit courts that has jurisdicition for the affected states. The temporary approval would last 14 days, with no extension except by an act of both houses of Congress, and if the authorities in any of the affected states object to the waiver of Posse Comitatus they should be able to appeal to the full Congressional delegation or the full circuit court.

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Comments :v

1. Kevin Schofield10/06/2005 01:55:45 AM

Agreed, it was a really good episode of the West Wing.

I'm not sure that Posse Comitatus needs to be re-thought or tweaked any further. I kind of like it the way it is; except for a couple of specific cases, Congress needs to act to grant extraordinary powers to the President. and that means that they have to ask the very question I asked on my blog: do we trust this guy?

State governors already have control over the National Guard for law enforcement, so I think that handles most local and state issues.

If I could make any changes, it would be to put further limits on it. Such as a fixed time limit, as you suggest, which would require a supplementary act of Congress to renew. I don't like the idea of having two congress-folks from the state give authorization; I thin that's usurping authority of the governor. States have constitutions including their own succession plan, and the federal government shouldn't muck with that.

Funny, in general I'm not a "states' rights" kind of person. I am big on veyr clear limits to government power, though.

2. Jeff Crossett10/06/2005 07:36:06 AM

Another big question to consider: Who would control federal troops when they are used in this capacity? We would need to make sure the pissing matches between federal and state governments can be avoided.

3. Esther Strom10/06/2005 11:59:20 AM

I admit that I'm not as well-informed as I should be, so I won't comment on the actual column. I will say this: when I tried to access the West Wing link, I got a WebSphere error... nice to know the big guys are using IBM software, but it doesn't look so good if they can't use it correctly!

SRVE0017W: A WebGroup/Virtual Host to handle /web/westwingtv/episodes.jsp has not been defined.

SRVE0017W: A WebGroup/Virtual Host to handle has not been defined.

IBM WebSphere Application Server

4. Richard Schwartz10/06/2005 12:09:46 PM

Intersting. It just failed for me once, then succeeded three times in a row.

5. Jerry Carter10/06/2005 12:10:14 PM

An iteresting conundrum is that the US military answers to the civilian authority. How then can the military ever be asked to enforce any laws upon civilians?

There has been a court case (that I remember reading about some tmie ago) that used this reasoning in an attempt to argue that tax paying civilians (funders of the civilian authority and the military) have proxy authority to examine military facilities, such as the one located at Groom Lake and Freedom Ridge, NV.

The argument is, apparently , valid since security for these facilities (of some interest to very determined people) has been contracted to private firms, thus avoiding a concession by military personel to civilian plans for entry.

So, while I don't believe the suit above ever resulted in actual civilian exertion of authority on a federal military installation in that context, the military apparently thought the argument valid enough to warrant circumvention via a private security firm.

So, if troops were used, the government's actions SEEM to imply they would have only so much authority as ignorance afforded them.

6. Richard Schwartz10/06/2005 12:52:52 PM

Actually, the suit was brought by civilian contractors and their heirs, and the primary argument was that federal environmental laws required the government disclose environmental dangers. The blanket right of citizens to inspect military facilitie, if it was argued at all, was not upheld. The case was fought tooth and nail by the government, and when a ruling on the enviromental impact disclosure went against the governement the President issued an executive order specifically exempting the facilities from the laws that were in question. The underlying case was subsequently dismissed for lack of evidence, and appeals that the President had exceeded his authority were denied. See here:

7. Jon Johnston10/07/2005 12:29:33 PM

Wow, I have never heard of Posse Comitatus in this context, Rich. The Posse Comitatus that I'm familiar with was/is a self-made militia group that operates out of either Idado or Kansas, as I recall, and had other areas in the Midwest.

They had some dealings with the police in the 80's...trying to remember this, but it seemed to me around the time at which there were hundreds/thousands of farm foreclosures. Some didn't go peacefully.

It was a big deal.

It's a damned bad idea to allow the military to get involved in domestic affairs, regardless of what happened with Katrina. Think of emminent domain and what's that gotten us. The Feds have too much power as it is.

8. Richard Schwartz10/13/2005 12:45:12 AM

@Jon: I'm sure I had heard about the Posse Comitatus militia before, but it had slipped my mind. Re your other comments, eminent domain is not federal, it's state and local. At least if you're thinking of the recent supreme court ruling, that's the case. I've been planning to post about that. In case I never get around to it, it's a correct ruling according to strict constructionist principles. As long as due process is observed and just compensation is given the government can take any private property for public use. The limits on what constitutes "public use" were all previously defined via loose construction, and this ruling used strict constructionist principles to put the defintion of "public use" into the hands of the states. It makes no sense otherwise. It makes no sense at all for the people to be the arbiters of what constitutes "public use" because clearly that would negate all grounds for public seizure of property -- which the constitution does explicitly allow -- so the precedence given to the people's rights in amendment 9 can't apply, and the delegation of powers to the states in amendment 10 does apply. The outcome of the case is proof of the fact that the constitution wasn't perfectly written, and does not provide absolute protection to individual property rights. And it is proof that when someone asks for strict contruction they'd better be careful because they just might get it -- and they might not like what it does to individual rights!

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