12.01.2008 0

Posse Comitatus and Homeland Defense

  • On: 12/02/2008 11:21:48
  • In: Homeland Security
  • By Isaac MacMillen

    The recent reports that up to 20,000 active duty personnel may eventually be assigned to homeland security duty should come as no surprise. For years the federal government has been slowly increasing its ability to intervene in the case of a natural disaster or terrorist attack. So the establishment of a domestic security force on domestic soil may seem to many a logical extension of a continuing saga.

    Clearly, it is within the purview of the federal government to react to military crises such as insurrection or invasion (Article I, §8, ¶15 of the U.S. Constitution)—and terrorists conducting a small-scale infiltration of the country for the purposes of launching a mass-casualty attack could well be considered “invading.” Still, great care must be exercised in carrying out such a constitional mission, lest, as Benjamin Franklin warned, we find ourselves in the sorry state of the man who, having traded his liberty for security, finds himself instead to have lost both.

    Many Americans may be familiar with the Posse Comitatus Act, which prevents the active-duty military from engaging in law-enforcement functions. However, what many Americans may not know is that the President can override the act by citing 10 U.S.C. § 332, which allows for the use of the military within the United States in case of a “civil disturbance”:

    “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 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.”

    The next section of the U.S. Code gives the President even more power:

    “(a) Use of Armed Forces in Major Public Emergencies. 

    “(1) The President may employ the armed forces, including the National Guard in Federal service, to –

    “(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that –

    “(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

    “(ii) such violence results in a condition described in paragraph (2); or

    “(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).

    “(2) A condition described in this paragraph is a condition that –

    “(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, 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 or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

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

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

    “(b) Notice to Congress. – The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.”

    Given the broad authority with which the President is entrusted above, it’s all too easy to see how vigilance can give way to license. Government intervention has resulted in abuses in the past, with chilling incidents such as Waco and Ruby Ridge testify. Other issues that will inevitably rise up include the decrease in combat proficiency suffered by units detailed to homeland defense. The GAO found such a problem to exist back in 2003, as they reviewed the effects of homeland security operations performed by active duty military forced to act against domestic targets.

    Additionally, the armed forces are specifically designed to deploy, engage, and destroy the foreign enemies of the United States. Using them in any other capacity, however well intentioned, interferes with their primary mission. And it saddles them with extra-legal responsibilities that could and should be undertaken by other agencies, which can focus time, money, and resources on combating specific terrorist threats.

    Of course, there may be specific situations when national security necessitates the use of active duty personnel. One can imagine a scenario in which a major terrorist attack temporarily immobilizes or overwhelms a state government, requiring the assistance of the federal government. In that case, there may be some cause to use the military. But such a case would be the exception, and as such should never be codified into rule of law.

    While the choices appear bleak—national security verses an expanded federal government—there is another option, one which has been largely passed over. A military commander is permitted to attach or detach units to enhance mission accomplishment. Nothing, therefore, stands in the way of the President temporarily “attaching” a unit (or units) to the state, to be used at the governor’s disposal. The military would be able to aid in the recovery/relief effort, while under the temporary and limited control of the state, thus maintaining the proper federal-state balance of power.

    Of course, before such far-reaching solutions can employed, much simpler ones should be considered. Increases in training, equipment, and a general disaster-response focus should all be implemented within the National Guard, state law enforcement, and even state civilian defense forces.

    As far back as July of 2002, then-Senator Joseph Biden proposed giving U.S. Soldiers the power to arrest civilians. Speaking on Fox News, Mr. Biden termed it “not very realistic” that under current law, soldiers would not be able to “shoot to kill” on U.S. soil.

    And one has to wonder whether “homeland security” really necessitates stationing 20,000 heavily armed troops in America’s cities and towns, charged with such far-reaching powers over a civilian population. Perhaps Franklin was right: swapping liberty for security is a devil’s trade—“and, behold, hell followed after him.”

    Isaac MacMillen is a contributing editor of ALG News Bureau.

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