- Amid debate over whether U.S. troops should be used to
secure the U.S. border, or deployed in any other domestic capacity in the
war against terrorism, the Bush administration will review the Posse Comitatus
Act of 1878.
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- There is considerable confusion both in the public and
among lawmakers about what this law actually says and whether any changes
in it might be warranted.
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- "Federal law prohibits military personnel from enforcing
the law within the United States except as expressly authorized by the
Constitution or an Act of Congress," President Bush said July 16 in
the plan he submitted to Congress for the new Department of Homeland Security.
"The threat of catastrophic terrorism requires a thorough review
of the laws permitting the military to act within the United States in
order to determine whether domestic preparedness and response efforts would
benefit from greater involvement of military personnel and, if so, how."
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- The PCA is commonly and falsely believed to forbid the
U.S. military from enforcing domestic law in all circumstances. In fact,
it forbids it only in some circumstances.
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- Said Homeland Security Director Tom Ridge on "Fox
News Sunday" on July 21, "Well, I think there's been much conversation
about that concept, which as you know is called posse comitatus, and that
is historically within this country, we do not give our military law-enforcement
responsibilities. And I think the discussion, the public discussion, is
really about the private discussion that will undoubtedly occur between
the new secretary of the Department of Homeland Security and the Secretary
of Defense Donald Rumsfeld, once his new North American Command is established,
because I think it would be very appropriate for the two secretaries to
determine what military assets would be available, under what circumstances,
to support civilian authorities in the event of another terrorist attack."
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- Sen. Carl Levin, D-Mich., chairman of the Senate Armed
Services Committee, on CNN's "Late Edition," said, "I don't
fear looking at it to see whether or not our military can be more helpful
in a very supportive and assisting role even than they have been up to
now ñ providing equipment, providing training, those kind of things
which do not involve arresting people."
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- Sen. Joseph Biden, D-Del., chairman of the Senate Foreign
Relations Committee, said on "Fox News Sunday," "I think
it is time to revisit it. Back after Oklahoma City, former Sen. Sam Nunn
and I introduced legislation that would moderately alter the Posse Comitatus
ñ let me be precise ñ allow, for example, the military, that
has expertise in weapons of mass destruction, to be called in. Let's say
you had word that there was something going on in one of the tunnels in
Amtrak, or you had some major event where they thought there may have been
a weapon of mass destruction involved. Right now, when you call in the
military, the military would not be allowed to shoot to kill, if in fact
they were approaching the weapon, and so on."
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- The primary sentence of the Posse Comitatus Act, as amended
since 1878, now says, "Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or 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." "Posse comitatus" means "the
power or force of the county," according to Black's Law Dictionary
(1990), and refers to any group empowered to enforce domestic law.
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- Contrary to popular belief, the PCA does not presently
forbid all U.S. military units from enforcing domestic laws. The plain
language of the law does not cover the Navy, Marine Corps or National Guard.
"The PCA expressly applies only to the Army and Air Force,"
wrote Matthew Carlton Hammond in an article in the Washington University
Law Quarterly (Summer 1997). "Congress did not mention the Navy,
Marine Corps, Coast Guard or National Guard in the PCA; accordingly, the
PCA does not limit them. However, the Department of Defense has extended
by regulation the PCA's prohibitions to the Navy and Marine Corps."
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- The phrase "under circumstances expressly authorized
by the Constitution or Act of Congress" and the ambiguity of "to
execute the laws" have been interpreted to allow numerous uses of
the military to enforce domestic law since the PCA was enacted. Traditionally,
a "constitutional" exception to the PCA has been interpreted
broadly, said Hammond. "The exception permits military action to
protect federal property and functions, to prevent loss of life, and to
restore public order when local authorities cannot control a situation,"
he wrote. Congress already has explicitly carved out exceptions to the
PCA for drug interdiction and for responses to biological and chemical
incidents. According to Hammond, no one has ever faced criminal prosecution
under the law.
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- Writing in the Spring 2002 edition of Parameters, a highly
respected military journal published by the U.S. Army War College, Chris
Quillen wrote, "Almost any presidential decision or congressional
legislation can circumvent Posse Comitatus rather easily." Noted
Hammond, "Presidents Richard Nixon and Ronald Reagan both used the
military to replace striking federal employees. In 1970, President Nixon
sent 30,000 federal troops to replace striking postal workers in New York,
and in 1981, President Reagan replaced striking air-traffic controllers."
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- There is also one relatively recent example of the use
of the American military to restore order after a major domestic disturbance.
U.S. Marines detained suspects and performed searches during the Los Angeles
riots of 1992, even though some involved believed that they were violating
U.S. law. They did so because Marine Corps doctrine ñ the theory
behind conducting operations ñ told them that this was the only
way to restore order. Wrote Thomas E. Ricks in his well-known "Making
the Corps" (1997), "In Los Angeles, Maj. [Timothy] Reeves notes,
when faced with violating doctrine or violating the law, some Marines chose
the latter course, and detained suspects and conducted warrantless searches."
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- Given the confusion over the PCA, Quillen said that the
military might react inappropriately to an emergency situation. He called
for clarifying the law and federal regulations.
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- "The likely federal response to a nuclear incident
currently suffers from conflicting and confusing guidance that is dependent
on too many external factors to be timely and therefore effective,"
he wrote. "In the end, however, the federal response would be almost
totally dependent on the Defense Department for its resolution. Given
the legal limits placed on DOD's actions, this situation is a disaster
waiting to happen."
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- William Lind of the Free Congress Foundation, who has
advised the Marines on what he calls Fourth Generation Warfare - including
urban conflicts involving non-state actors such as terrorists - said he
thinks the National Guard should deal with domestic emergencies as far
as possible and that the military should stay out of policing the homeland.
Further restricting the PCA would lead to "a concern about civil
liberties," he said. But in addition, "the military would be
extraordinarily ineffective at the job. All top-down approaches will fail."
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- To maintain order domestically in the long term in the
face of potential terrorist attacks or other calamities, Lind said, the
United States needs to rebuild its tradition of local self-reliance and
look to local police forces and civilian preparedness.
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-
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- Editor's note: In collaboration with the hard-hitting
Washington, D.C., newsweekly Human Events, WorldNetDaily brings you this
special report every Monday. Readers can subscribe to Human Events through
WND's online store.
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- © 2002 WorldNetDaily.com
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- http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=28433
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