Eroding Posse Comitatus

The New York Times writes today about a little-known law passed late last year that significantly eroded the line between law enforcement and the military:

A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.

The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.

The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

And, as the Times noted, this was all done in the dead of night as an amendment to a defense appropriations bill. Nobody noticed it was there and it wasn’t seriously debated before being passed. That was, as Brendan Loy notes, simply indefensible. It is, however, consistent with the Bush Administration’s view of Presidential power, which seems to have few, if any, limits.

  • tkc

    It is incrementalism. Most people are used to the National Guard being deployed for natural disasters. It is not a huge step to go to outbreaks of disease or terrorist attack. It is the ‘other condition’ that is most troublesome. It can encompass just about anything.

    But we’ve been on the road to a police state for quite some time. The only difference between our government and the one of Chavez is that Chavez is sprinting towards tyranny while we are taking a leisurely stroll towards it.

  • miche

    What I found funny is the idea that the bipartisan bill recently proposed might help. I looked up the National Guard Empowerment Act of 2007 and it looks to me like more cash and promotions for the National Guard. Links at my site.

  • Priapus

    Ah, give it up already. The US is in a rapid freefall and everyone knows it. I’m not going to get shot by the military, because I refuse to protest injustice.