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Posse Comitatus 17 Novemeber 2005 #13 (Duplicated #14)
Posse Comitatus
By Dr Dave McIntyre, Director, Integrative Center for Homeland Security, 17 November 2005
When public order seemed a problem during Hurricane Katrina, some people thought the solution was easy – just send in the troops. But a 130 year old law made that difficult. And now some people want to change that law, while others are staunchly opposed. I’ll explain the issue if you will give me Just a Minute . . . for Homeland Security.
I’m Dave McIntyre, director of the Integrative Center for Homeland Security at Texas A&M. Every American school child knows that the use of British troops as police helped drive the colonists to revolution in 1775 – and we have been reluctant to use troops for law enforcement ever since.
But after the Civil War, some local sheriffs hit on the idea of drafting soldiers from nearby forts to “keep order” and intimidate voters on election days. Congress outlawed using soldiers as police in 1878 with the Posse Comitatus Act. The Act was extended to the Air Force when it was created 1947. The Navy and Marines are not mentioned in the law, but the Department of Defense keeps them out of police business by a DOD regulation.
Now, because of Katrina, some want to rethink these rules. Worried about civil order in time of crisis, they say, “change the law and put the military in charge.”
But in charge of what? The jails? The schools? Public health? Spending public money for overtime? It is hard to take over just one aspect of a government made up of interlocking parts.
And when should the generals take over? Only after elected officials prove incapable? Or before the actual crisis, if it looks like the civilians are going to lose control? And when would civilian leaders regain control? When a general decides they are ready?
Actually, we already have legal provisions for the most extreme cases. The Insurrection Act says that when “normal measures are insufficient to carry out federal functions” – in other words, when local government is overwhelmed -- the President can order federal forces to help out, even acting as police -- but always under civilian control. This happened during the Rodney King riots in Los Angeles several years ago.
Of course, federal troops can provide lots of help in other ways – with communications or rescues -- with medical help, or distributing food – all without changing the law. And the National Guard can already act as police because they work for the Governor in most emergencies. But under existing laws, federal troops can only police the streets when state and local elected leaders are missing, or ask the troops to take over the job. And neither of those happened in Katrina.
We can change this if we wish. But the time for debate is now – not in the middle of the next big crisis.
This is Dave McIntyre from the Integrative Center for Homeland Security at Texas A&M, inviting you to join us next week for Just a Minute . . . for Homeland Security.