After the Katrina debacle, there was a need for action — or, at last, a need for the appearance of action. So President Bush went down to Jackson Square in New Orleans, and “called for a vastly expanded military role in disaster relief, including ‘reconsideration’ of a century-old law banning the active-duty military from law-enforcement duties,” Defense Tech pal Spencer Ackerman notes in this week’s New Republic.
That law, the Posse Comitatus Act (PCA) of 1878, is widely considered to be a cornerstone in the development of U.S. liberty. Enacted after Reconstruction, when much of the South was under military occupation (and federal troops monitored political rallies and stood guard at polling places), it sought to prevent any subsequent use of the military to perform traditional police duties.
There’s a number of strange things about Bush’s request to reconsider PCA. First off, “there’s no evidence that the PCA had anything to do with the administration’s bungled response to Hurricane Katrina,” Ackerman observes. Second, there doesn’t seem to be anyone in the military’s upper echelons who thinks PCA is getting in their way.
When I asked Bush’s senior Pentagon official for homeland defense, Assistant Secretary Paul McHale, whether the PCA is a relic of an outmoded era, he immediately responded “absolutely not.” And, last week, Admiral Timothy Keating, who heads U.S. Northern Command, told The New York Times that “I’m not at all convinced that we need to go back and revise Posse Comitatus…“
The real obstacle to more effective disaster relief isn’t the PCA; it’s the composition of the military itself. Three years after its establishment, NORTHCOM — the regional military command responsible for the continental United States — still doesn’t have much in the way of designated military assets, such as aircraft or ships, that can facilitate rapid deployment of troops or civilian aid workers in the event of a catastrophic disaster. (To his credit, Keating is working on a plan to create a rapid-response active-duty force to assist Guardsmen in a domestic crisis…)
“If we expect [Defense] to arrive on the scene in large numbers 24 hours after an event,” says McHale, “we’re going to have to significantly alter our force structure, training, and equipping of this department, and significantly reduce our expectations of response normally tasked to state and local governments under our federal system.”
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The PCA has been grossly misinterpreted in terms of intent. Possee comitatus comes from English common law which empowers the local sheriff or marshall to summon men above the age of 15 to enforce the law. During the reconstructionist period, Attorney General William Evarts responded to a request for assistance from a U.S. marshall in Florida by citing that the posse comitatus common law could be used to draft both military and civilians to help enforce the law. Congress became increasingly unhappy with U.S. marshalls and sheriffs taking military personnel without the permission of the President (CINC). The Posse Comitatus Act was enacted largely at the request of the Army to stop this practice.
At no time was Congress distrustful of the Army and tried to limit its powers — it was just the opposite. However, as time passsed, the Act has been turned around and distorted. There is no limitation on the use of the military within the borders of the U.S. and there are no inhibitors that would prevent the use of the military in disaster response– provided it is done at the direction of the Commander-in-Chief
NPR’s morning edition ran a story on this topic just after Rita hit. The expert they had on the show explained that the PCA was put into place after the Civil War in order to keep Union soldiers from abusing citizens of the southern states.
So, in a sense, Congress enacted the PCA because it did not trust the US Military to perform policing duties.