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 administrationâ€™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 presidentâ€™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 â€œother condition.â€
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.