Revise the Posse Comitatus Act now!

By Michael Gaynor

Question: What governmental entity indisputably distinguished itself during Hurricane Katrina and its aftermath?

Answer: The United States Coast Guard.

Question: What federal armed force is NOT subject to the restrictions of the Posse Comitatus Act?

Answer: The United States Coast Guard.

Question: Is that a coincidence?

Answer: No.

Question: Should the Posse Comitatus Act be revised to explicitly permit the federal government to act in emergencies that appear to be beyond the capacity of local and state officials, when, for whatever reason, they are unwilling to cede control to the federal government?

Answer: Yes.

Nicholas Lemann, in a comment posted on September 19, 2005 in The New Yorker's "The Talk of the Town," lamented the federal government's failure to appreciate Louisiana's incompetence BEFORE Hurricane Katrina:

The Bush Administration realized after the storm what it should have realized before it: that the state and local authorities in Louisiana were not going to be able to handle the hurricane's aftermath effectively. Apparently, the Administration tried to persuade the governor of Louisiana, Kathleen Blanco, to issue an official request that the federal government take control of the Louisiana National Guard and the New Orleans police, but she refused, out of pride or mistrust or a desire to maintain some degree of control. Then the Administration considered sending active-duty federal troops to New Orleans to do what the National Guard and the police could not — make the streets and the evacuation centers safe and decent — and decided not to. Whatever its failings before the hurricane hit, the federal government could have greatly lessened the disaster if it had acted immediately afterward as a direct enforcer of the law. People suffered and died because it did not.

Yes. But the Posse Comitatus Act, together with a balky Governor Blanco, put President Bush in a damned-if-you-do-and-damned-if-you-don't situation that must not be repeated.

Let's put aside politics, remembering that the statute is politically neutral, that is, it applies regardless of the political parties of presidents and governors, and revise the statute to remedy the problem of recalcitrant state and local officials who selfishly cling to power for image reasons or because they are "stuck on stupid" instead of inviting the federal government to take control temporarily and use its resources, including the armed forces, to protect people and property from calamity.

The general policy that the military should not handle civilian law enforcement is sensible, but only if civilian law enforcement is ready, willing and able to do its job.

The CATO Institute's David Kopel believes that "[u]sing the military for domestic law enforcement...is a terrible idea....because soldiers are warriors, not peace officers."

That may have been true, but it surely is not the case today. Their primary mission is to protect the nation from invasion, of course, but these days America's soldiers are trained to be warriors AND peace keepers. And they are not bloodthirsty killers who live to kill and cannot be entrusted with domestic law enforcement under any circumstances. They have conducted many successful peacekeeping operations.

There are some tasks of such scope and difficulty that only the American military is capable of handling. The fact is that things happen much more quickly today than they did when the Constitution was drafted. Congress has delegated authority to the President, in recognition of the fact that quick action may be needed and Congress is not always capable of providing it.

The Founders had an aversion to a large standing army, but, realistically, it became essential and so we have one. And not using it to deal with domestic catastrophes like Hurricane Katrina would be a grave mistake. Exalting a sound general principle at the expense of people in desperate need of immediate assistance, instead of providing appropriate exceptions.

Congress recognized the need for the President to be able to act in case of insurrection and enabling legislation was enacted as early as 1792.

The Insurrection Act contains several parts.

Section 331 of 10 United States Code, which assumes wise legislatures and governors, now states:

Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

This is a workable statute. Legislature or governors have every reason to call for federal help in case of insurrection. And they occasionally have.

But the Insurrection Act wisely does not leave the President helpless to act in the absence of a call for help.

Section 332 of 10 United States Code now states:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Section 333 of 10 United States Code now states:

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it —

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

Sometimes governors are the problems. Examples: Orville Faubus of Arkansas, whose refusal to obey the law led President Eisenhower to act in 1957, and George Wallace of Alabama, who likewise led President Kennedy to act in 1963.

The Posse Comitatus Act is not supposed to permit governors to violate people's rights, and Presidents Eisenhower and Kennedy realized that and acted.

But, Congress should authorize the President to act to protect people and property when the governor is like Louisiana's Kathleen Blanco, inept but not racist.

Ironically, a massacre of politically active blacks in New Orleans in 1866 preceded the adoption of the Fourteenth Amendment, which prohibits states from denying life, liberty or property to any person without due process of law to any person or from denying the equal protection of the laws to any person in its jurisdiction, and the Fifteenth Amendment, which prohibited states from denying or abridging the right to vote of any United States citizen on account of race, color, or previous condition of servitude.

Let the needless death and suffering of New Orleanians in connection with Hurricane Katrina lead to a revision of the Posse Comitatus Act, so that the Act will no longer be a death sentence for people when a governor stubbornly refuses to cede authority to the federal government, when federal intervention is needed. After all, the Constitution makes the President THE Commander-in-Chief and having the President directing his troops is enormousl;y preferably to putting them under the direction of governors.

New Orleans lacked a workable disaster plan. Mayor Ray Nagin dawdled when President Bush urged him to order as mandatory evacuation and the New Orleans buses were not used to evacuate those people who did not have their own vehicles. Governor Blanco stalled when President Bush offered to have the federal government take control, and then her Louisiana Department of Homeland Security kept the American Red Cross and the Salvation Army from bringing desperately needed help. Although many New Orleans police performed heroically, a frightening percentage deserted their post and some committed suicide. Governor Blanco and Mayor Nagin, both Democrats, did not cooperate effectively with each other, for the sake of the people. Former FEMA Director Michael Brown could not magically transform cowardice into courage, incompetence into competence, and dysfunctionality into functionality. And President Bush, having tried to jawbone unsuccessfully, was dissuaded by the Posse Comitatus Act from taking control from a white female governor who should have continued to teach school and a black male mayor who should have continued to work for Cox Communications.

Before the New Orleans levees broke, having taken a particular interest in Louisiana since doing a thesis on Huey Long in 1969, I feared the worst and wrote THE MISINTERPRETED POSSE COMITATUS ACT STILL ENDANGERS NATIONAL SECURITY.

Originally enacted in 1878, the Act was amended to apply to the Air Force and currently reads:

Sec. 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

This much misunderstood statute, a residue of Southern racism, allowed Louisiana's Governor Kathleen Blanco to hamstring the federal government's efforts to deal with Hurricane Katrina.

A criminal statute that is supposed to be strictly construed, it instead has been expanded by federal regulation (32 Code of Federal Regulations Section 213.10(c)) to cover the Navy and the Marines, with the Secretary of the Navy authorized to make exceptions on a case-by-case basis.

Thank God it doesn't cover the Coast Guard!

In February 2002, Colonel John R. Brinkerhoff, US Army Retired and acting associate director for national preparedness of the much criticized FEMA from 1981 to 1983, in "The Posse Comitatus Act and Homeland Security, not only thoroughly reviewed the Act's history, but 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.

Maybe now Congress will get this done.

© Michael Gaynor