Tuesday, November 15, 2005

Posse Comitatus Sticks in Bush's Craw

November 15, 2005

In his speech in Jackson Square following Hurricane Katrina, Bush called for a greater military role in disaster relief and a “reconsideration” of a 130-year-old civil rights law: the Posse Comitatus Act of 1878. The Latin phrase means “power of the county,” deriving from roots which roughly translate to “capable of being joined with a retinue or force.” Enacted in the wake of the Civil War Reconstruction, the PCA expressly prohibits local government from giving civil police duties to the military without authorization from Congress. The move is gaining increasing support at all levels of the armed forces, which comes as no surprise given military disdain for civilian inefficiency.

Of course, after the abuses of the Reconstruction, many people were a bit gun shy about letting the military police their streets, but the underlying reasoning of the Act is simple federalism. Local governments should be responsible for their own day-to-day operations, including running their police forces. There's no denying that a large-scale natural disaster like the hurricane that took out New Orleans hardly constitutes “day-to-day operations,” but there are several exceptions to the law specifically to deal with events local police forces just aren't organized or equipped to handle.

The most obvious way to get around the statute is expressly provided in the act itself: get the authorization of Congress. They have a tendency to move slowly, but anything catastrophic enough to justify the use of the military as a police force is almost certainly going to be important enough to justify an emergency meeting of Congress. This is just exactly what happened in the wake of Katrina, except Congress passed funding resolutions instead of military authorizations.

A much more important exception is the National Guard. The Guard is not considered part of the military unless explicitly called upon by the federal government, so they are exempt from the PCA. They may be used as a police force under the authority of a state's governor when local law enforcement is overwhelmed. In fact, the National Guard was mobilized to provide support days before Katrina even made landfall. Governor Blanco's August 26 declaration of emergency called the Guard into action three full days before Katrina hit land. By August 28, they had supplied the Superdome with food and water and established over 500 troops as security.

Further, the 1984 Stafford Act specifically authorizes the use of military forces under FEMA authority. If a competent bureaucrat (okay, maybe that's an oxymoron) instead of a Bush lapdog (but that's redundant) had been in charge of the Agency at the time, he might have invoked this power instead of writing memos to his staffers asking how his tie looked on TV.

One member of New Orleans' City Council complained that the police and National Guard's time was being eaten up by preventing theft and violent crime when they should have been out rescuing people, but this reasoning is exactly backwards. The PCA has been treated as an exclusion of the military from the most basic powers of the police: search, seizure, and arrest. It has long been held that the military may lend facilities and equipment to law enforcement, as well as providing assistance by way of advice and reconnaissance. Consequently, it's perfectly legal and, I would argue, more logical to use the armed forces for search-and-rescue operations.

The benefit of using the military in disaster relief is to allow local police to be police while the people who have experience jumping out of helicopters to retrieve prisoners of war put their skills to new use pulling helpless flood victims off of rooftops. Remember, the purpose of law enforcement is to prevent crimes, not punish those who commit them. The last thing we want to see is local police with little experience in disaster control trying to mount rescue operations while soldiers with years of “shoot to kill” training under their belts endeavor to control theft and violent crime.

To encourage a review of the PCA in these circumstances is unnecessary and suspicious. Certainly, the military has a role to play in natural disaster situations—but it's the role of rescuer, not of the police. Let those who know the streets patrol them, and let the ones who can drop a bomb on a target from 30,000 feet drop food on a family from 300 yards. It just makes more sense to stick with what you do best.

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