Posse Comitatus Shot Through the Heart

Location: United States

Thursday, November 02, 2006

Posse Comitatus Shot Through the Heart

Here's the 21st Century version of what has happened to Posse Comitatus: it has been thoroughly trashed. And it was done quietly.

But now you can hear the screaming from Washington, D.C. to the Pacific Ocean.... and beyond. The changes sneaked into law now given George W. Bush new powers. They open the door to use the military for policing actions to "restore public order", and gives the president much leeway to exercise these powers. One of the most troubling is that he can now mobilize the National Guard without the permission of state governors, and can move them into other states -- for up to 365 days.

But some changes to the law are so subtle that you might miss them. See if you can find the new doors that have now opened for the president to act. Here are the changes:

* Section 522 (House section 511) extends from 270 days to 365 days
the period for which the Selected Reserve and Individual Ready Reserve may be involuntarily called to active duty.
* Section 1076 (Senate section 1042):

o Amends the "Insurrection Act" (i.e., Chapter 15 of title 10, U.S. Code) by:

§ Changing the title of chapter 15 of title 10, U.S. Code) from "Insurrection" to "Enforcement of the Laws to Restore Public Order";

§ Changing the title of section 333 of chapter 15 from "Interference with State and Federal Law" to "Major Public Emergencies; Interference with State and Federal Law";

§ Clarifying the President's authority, under section 33 of chapter 15, to use the armed forces, including the National Guard in Federal service, without a request from a State governor, to restore order and enforce Federal laws in cases where, as a result of a terrorist attack, epidemic, or natural disaster, public order has broken down; and

§ Including those who are obstructing the laws to the existing requirement for the President to issue a proclamation ordering insurgents to disperse and retire peaceably to their abodes within a limited time.

o Amends Chapter 152 of title 10, U.S. Code, to authorize, with certain limitations, the President, in any situation he determines to exercise the authority provided in section 333 of chapter 15, to direct the Secretary of Defense to provide supplies, services, and equipment (e.g., food, water, utilities, transportation, search and rescue, medical care, and other assistance necessary to save lives and property) to persons affected by the incident.

o Amends section 12304 of title 10, U.S. Code, eliminating the limitation imposed on the President's authority to involuntarily call to active duty members of the reserve components to perform law enforcement and other duties in response to serious natural or man-made disasters, accidents, or catastrophes to only those incidents involving terrorist or weapons of mass destruction threats or attacks.

How was this done? It was done in the dead of night in the Congress of the United States. It was slipped into the Defense Appropriations Bill of 2006 entitled, "USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES". The original language of the provision was stripped out and new language put in its place.

Senator Patrick Leahy (remember him? He's the senator who was sent U.S. military vintage anthrax some years back, but the cuprits were were never caught). He, along with other Democratic members of congress have expressed public outrage that Posse Comitatus has been gutted after almost two hundred years. According to Leahy, his committee had created the original language for the provision that empowered the National Guard, but the new language empowers the president instead. Leahy says the language, "...was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals."

This late night tactic has become the prevailing modus operandi of the Republican Congress.

Let's be clear there was no reason for this law except to seize power to act unilaterally to mobilize the National Guard without needing to consult state governors, and to easily allow the president to use the armed forces for law enforcment in America's streets.

The implications of this are mind boggling. If anyone argues that these new powers are needed for disasters and terrorism, please forget that argument. For many years the armed forces have played major roles in emergencies, disasters, drug interdiction, and other situations. The Robert T. Stafford Disaster Relief Act of 1984, (called the Stafford Act and amended in 1988 under 42 US Code Section 5121 et seq.), provides the authority under which armed forces' assistance is given. And if you look hard, you will see that no president was ever prosecuted for violation of Posse Comitatus, although there have been some notable violations. The powers that were there were sufficient, but George W. Bush wanted more.

Senator Patrick Leahy's entire official statement regarding the new provision:


Here are two of the most salient quotes from Senator Leahy's official statement about the new provision being slipped into the bill:

"It also should concern us all that the Conference agreement includes language that subverts solid, longstanding Posse Comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the President to declare martial law. There is good reason for the constructive friction in existing law when it comes to martial law declarations. "

"The changes to the Insurrection Act will allow the President to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor. When the Insurrection Act is invoked Posse Comitatus does not apply. Using the military for law enforcement goes against one of the founding tenets of our democracy, and it is for that reason that the Insurrection Act has only been invoked on three — three — in recent history. The implications of changing the Act are enormous, but this change was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals."

Many of us fear that this power has been grabbed to stop any and all public reactions to another stolen election. The public is much, much more aware of this problem now. There are press reports in several states of voters trying to vote for Democrats, but the machines keep showing votes for Republicans instead. Even conservative computer scientist Dan Wallach admitted today that after years of studying security issues with computerized voting machines that, "All the reports I've seen have generally been at the expense of Democrats "

What a pity that we have a president and a congress that have willfully worked to shred so many of the intricate protections that our Democratic system of checks and balances produced over two centuries. As we see each component of these efforts slip into place, we see a fabric forming of disturbing shape and color that theatens to ensnare us all.

Ashley Simmons Hotz
Monticello, FL