[iwar] [fc:Bush.Will.Review.Law.on.Domestic.Use.of.Military]

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Date: 2002-07-27 19:19:31


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Date: Sat, 27 Jul 2002 19:19:31 -0700 (PDT)
Subject: [iwar] [fc:Bush.Will.Review.Law.on.Domestic.Use.of.Military]
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Bush Will Review Law on Domestic Use of Military
By Joseph A. D'Agostino
Human Events
7.29.02

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
(PCA) of 1878.

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.

"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."

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.

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."

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—providing
equipment, providing training, those kind of things which do not involve
arresting people."

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—let me be
precise—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."

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.

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."

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.

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."

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—the theory
behind conducting operations—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."

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. "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."

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."

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.

________________

© Human Events, 2002

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