Posse C in da House? Part II

There has been much ado about shrubya’s recent comments regarding the federal readiness for avian flu. As usual, he eschews any real planning to prevent an outbreak and opts instead for the reactionary approach of a military response once we already have a problem.

One example: If we had an outbreak somewhere in the United States, do we not then quarantine that part of the country? And how do you, then, enforce a quarantine?

…One option is the use of a military that's able to plan and move. So that's why I put it on the table. I think it's an important debate for Congress to have.

Forget about FEMA’s proficiency under James Lee Witt; Health and Human Services? Bah! Strengthening our First Response network and coordinating medical services – none of these matter, because our military knows how to organize and deploy; let them handle it. It’s as though shrubCo believes the military is the only justifiable federal program; you can almost hear him saying “so we might as well use it. And besides, I’m only CinC for another three years...”

I guess preemption is only good for turrists abroad; for any home-grown crisis, shrubCo has exhibited quite the predilection for martial law. I have no doubt that they would use any excuse that presented itself to expand federal powers via the military. At long last, shrubya has actually told us the truth about something! Too bad it had to be this…

In Part 1 of this writing, I shared how I became convinced shrubya tried to impose martial law via the Insurrection Act in post-Katrina New Orleans. Since that fateful Friday, there has been no shortage of stories discussing this imagined need for greater military involvement during disaster management. Take Exhibit A, published on 9/17:

Defense Secretary Donald H. Rumsfeld is reviewing a wide range of possible changes in the way the military could be used in domestic emergencies, spokesman Lawrence Di Rita said Friday. He said these included possible changes in the relationship between federal and state military authorities.

…Di Rita said Rumsfeld has not made recommendations to Bush, but among the issues he is examining is the viability of the Posse Comitatus Act. Di Rita called it one of the "very archaic laws" from a different era in U.S. history that limits the Pentagon's flexibility in responding to 21st century domestic crises.

And, Exhibit B published on 9/19:

As Washington picks through the lessons learned from hurricane Katrina, there is a growing conviction that the only organization with the skills, expertise, and resources needed to respond quickly to a catastrophe of such magnitude is the American military. President Bush suggested a larger disaster relief role for the armed forces in his national address last week, and Congress has indicated it will take up the issue this autumn.

...As officials look at what went wrong - and wonder what to do if a future disaster similarly eviscerates local responders - their attention has turned to the military.

Then there’s Exhibit C, published on 9/25:

President Bush called on Congress to consider a larger role for U.S. armed forces in responding to natural disasters, as he completed what White House aides called a weekend "fact-finding" mission to determine whether the Pentagon needs more control. "Clearly, in the case of a terrorist attack, that would be the case, but is there a natural disaster -- of a certain size -- that would then enable the Defense Department to become the lead agency in coordinating and leading the response effort?" Bush said after a briefing from military leaders at Randolph Air Force Base here. "That's going to be a very important consideration for Congress to think about."

Bush has told aides that one of the major breakdowns in the Hurricane Katrina response was the federal government's inability to seize control of rescue and relief efforts.

Exhibit D, from 9/26:

President Bush said he wants to make it easier for the military to take charge after a disaster like Hurricane Katrina.

...White House spokesman Scott McClellan said Bush "wants to make sure that we learn the lessons from Hurricane Katrina," including the use of the military in "a severe, catastrophic-type event." "The Department of Defense would assume the responsibility for the situation, and come in with an overwhelming amount of resources and assets, to help stabilize the situation,"

We could probably get through the whole alphabet and each article would merit its own diary; suffice it to say there has been plenty of ink devoted to this supposed need for “greater federal authority” during disasters. This recent article, though, speaks the most plainly:

The U.S. military is planning a more rapid, robust role for active-duty forces in responding to catastrophic disasters or terrorist attacks, a senior Pentagon official said yesterday, describing the demand for large-scale military resources in such cases as "inevitable."

…"We are looking at a wide range of contingencies potentially involving Title 10 forces [federal troops] if a pandemic outbreak of a biological threat were to occur," said McHale.

…The Pentagon is drafting recommendations for improving the military's response to devastating attacks or disasters as part of a government-wide review of "lessons learned" from Hurricane Katrina.

At least they recognize that Katrina brought us many lessons. Chief among them being patronage appointments make for bad government, Edwards was right about the “Two Americas,” and Norquist’s bathtub doesn’t hold water. But the only lesson to shrubCo, apparently, is “more military and increased federal control in crisis situations!”

And therein lies the rub; “increased federal control” is just a pernicious euphemism for martial law. As I mentioned in Part 1 of this story, there is absolutely nothing barring the military from disaster relief efforts. Under the Stafford Act, federal armed forces can be deployed in a natural disaster.

The US Army had a remarkable experience in responding to the devastating onslaught of Hurricane Andrew in south Florida in August 1992; Hurricane Iniki on the island of Kaui in Hawaii one month later evoked a similar response. Both instances provide ample evidence that there is a reliable mechanism to facilitate the employment of active-duty Army units in times of great national disaster. The Robert T. Stafford Disaster Relief Act of 1984, as amended in 1988 (42 US Code Section 5121 et seq.), commonly referred to as the Stafford Act after its legislative author, is the authority under which such assistance is provided.

The Stafford Act is applicable only within the United States and its territories, and comes into play when a state, usually through its governor, requests a presidential declaration of a state of emergency following a natural disaster. Once a state of emergency is declared, active-duty soldiers can be employed to respond to the crisis under the direction of the Federal Emergency Management Agency.

In essence, the only ability the military lacks in a disaster scenario is civilian police powers; ergo, that is the only “expansion” of their role to be had. While the articles I’ve found tend to be long on vaguaries – “larger disaster relief role for the armed forces” - there are also subtle clues hinting at militarization. From Exhibit A:

Di Rita called it (posse comitatus) one of the "very archaic laws" from a different era in U.S. history that limits the Pentagon's flexibility in responding to 21st century domestic crises.

“Flexibility” – ha! Then there’s this telling gem from Exhibit C:

Bush has told aides that one of the major breakdowns in the Hurricane Katrina response was the federal government's inability to seize control of rescue and relief efforts.

And of course, the springboard for all this runaway punditry - shrubya’s blue-light speech in New Orleans:

Yet the system, at every level of government, was not well coordinated, and was overwhelmed in the first few days. It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces - the institution of our government most capable of massive logistical operations on a moment's notice.

Thankfully, there were a few straight-shooters in the lot, such as Exhibit B:

Reservations about granting the military too much power at home are older than the republic itself, harking back to days when British soldiers were foisted upon colonials for room and board. In the Constitution, the framers made specific provision to check military power by declaring that America's armed forces be directed by civilian authority - namely, the various secretaries of Defense. Posse Comitatus goes even further, giving only National Guard units the authority to act as law enforcement, because they are under the control of governors. Active-duty troops are being used in the Gulf relief efforts but only for humanitarian efforts and logistical support. The move to amend Posse Comitatus would likely give them law-enforcement powers.

Exhibit D even went so far as to speak against such a role for the military:

The Posse Comitatus Act of 1878 bans the armed forces from participating in police-type activity on U.S. soil. Gene Healy, a senior editor at the conservative Cato Institute, said Bush risks undermining "a fundamental principle of American law" by tinkering with the Posse Comitatus Act.

Healy said the act does not hinder the military's ability to respond to a crisis.
"What it does is set a high bar for the use of federal troops in a policing role," he wrote in a commentary on the group's Web site. "That reflects America's traditional distrust of using standing armies to enforce order at home, a distrust that's well-justified."

Healy said soldiers are not trained as police officers, and putting them in a civilian law enforcement role "can result in serious collateral damage to American life and liberty."

By and large, though, there has been very little meaningful coverage of this topic; very few articles explain what is really being debated in this or what the implications of amending Posse Comitatus are. And almost none of them mentioned that this campaign didn’t start with Katrina at all; Katrina merely broadened the scope to include natural disasters. On the contrary, shrubCo has been gunning for Posse Comitatus since 9/11.

We could probably get through the whole alphabet on these articles as well, but here’s a healthy sample indicating this military response mindset:

From November, 2001:

America's military is largely prohibited from acting as a domestic police force, but with the increased fears of terrorism, some experts say it's time to rethink those restrictions.

...The law, known as the Posse Comitatus Act, was championed by Southern lawmakers in 1878 who were angry about the widespread use of the Army in post-Civil War law enforcement.

...Deputy Defense Secretary Paul Wolfowitz, testifying in October before the Senate Armed Services Committee (news - web sites), agreed that it might be desirable to give federal troops more of a role in domestic policing to prevent terrorism.

Army Secretary Thomas White said late last month that the Pentagon's review of Posse Comitatus would not likely lead to recommendations that Congress overhaul the act.
``But we are looking at the details of the law to see if revisions are appropriate in the way it's executed or the exceptions that can be taken,'' White said.

Then there’s this July, 2002 piece entitled “Posse Comitatus Hits the Spotlight,” by Christopher Prawdzik (sorry; I’ve lost its url):

Fueled by an enthusiastic desire to curb future terrorist threats, Bush administration officials and members of Congress recently suggested possible revision of the Posse Comitatus Act. Other vested interests in homeland defense, however, view this move unnecessary and threatening to the some of the country's institutions.
The issue emerged when Bush administration officials suggested the Department of Defense and Justice Department look at laws that limit the military's role within U.S. borders.

Another article from July, 2002:

Although Defense Secretary Donald H. Rumsfeld has said the Pentagon would not seek any changes in the venerable Posse Comitatus Act that restricts the use of the military in domestic operations, President Bush's new plan for domestic security included a notable provision calling for Justice and Defense attorneys to review it.

Now Gen. Ralph E. Eberhart, the officer charged with defending the continental U.S., has gone on record that he’s all for it and would endorse changes in the law if that translated into a better-defended country.

"My view has been that Posse Comitatus will constantly be under review as we mature this command, as we do our exercises, as we interact with FEMA, F.B.I., and those lead federal agencies out there," the New York Times quoted Gen. Eberhart Sunday.

I highly recommend that you read this piece in its entirety:

The proposed new Homeland Security strategy recently released by the administration of President George W. Bush quietly unearths, in seemingly innocuous language buried on p. 48, an old idea that deserves robust public debate: "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."

What this review means is that the Bush administration now is casting a critical eye on the Posse Comitatus Act of 1878. It might mean giving the federal government authority to deploy the National Guard in emergencies, currently a power reserved for governors, or to use the military for civilian defense, including enforcing quarantines in case of a biological weapons attack.

Administration officials have thus far downplayed the implications of reviewing the Posse Comitatus Act. Homeland Security Director Tom Ridge said "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."

Similarly, Gen. Ralph E. Eberhardt, the designated head of the new Northern Command (NORTHCOM) that the Pentagon is forming explicitly for homeland security functions, said he would favor changes in existing law to give greater domestic powers to the military to protect the country against terrorist strikes.

Revising Posse Comitatus was even discussed during the Beltway Sniper incident:

When Defense Secretary Rumsfeld agreed to a request from the FBI for the use of military surveillance planes to help track down the so-called “D.C. sniper,” the issue of the Posse Comitatus Act once again splashed across the front pages of domestic newspapers. Apart from the usual ranting by the “Black Helicopter” crowd that views every use of the United States military as a continuing government conspiracy to garrison this nation with United Nations forces, the use of the military in this manner is entirely a propos and not in violation of the Posse Comitatus Act.

...As the War on Terror continues and America braces for more terrorist attacks on its soil, the question of whether the Posse Comitatus Act should be revoked or modified will continue to be raised. Arguments that the Posse Comitatus Act is a Congressional statute and can be repealed in toto do not sit well with the long national tradition of excluding the military from domestic law enforcement. Americans clearly have an aversion to the use of soldiers as a policing force.

These and similar musings recently culminated in a War Plan Draft discussed in this WaPo article dated August 8th – three weeks before Katrina hit.

The U.S. military has devised its first-ever war plans for guarding against and responding to terrorist attacks in the United States, envisioning 15 potential crisis scenarios and anticipating several simultaneous strikes around the country, according to officers who drafted the plans.

The classified plans, developed here at Northern Command headquarters, outline a variety of possible roles for quick-reaction forces estimated at as many as 3,000 ground troops per attack, a number that could easily grow depending on the extent of the damage and the abilities of civilian response teams.

The possible scenarios range from "low end," relatively modest crowd-control missions to "high-end," full-scale disaster management after catastrophic attacks such as the release of a deadly biological agent or the explosion of a radiological device, several officers said.

...The war plans represent a historic shift for the Pentagon, which has been reluctant to become involved in domestic operations and is legally constrained from engaging in law enforcement. Indeed, defense officials continue to stress that they intend for the troops to play largely a supporting role in homeland emergencies, bolstering police, firefighters and other civilian response groups.

But the new plans provide for what several senior officers acknowledged is the likelihood that the military will have to take charge in some situations, especially when dealing with mass-casualty attacks that could quickly overwhelm civilian resources.

Given this background, we need to believe shrubya when he says he wants to look at this “increased role for the military” because he means it. 9/11, Katrina, and the as-yet unrealized Avian Flu threat all elicited the same response – let’s militarize! I’m reminded of the adage “Once is a fluke, twice is a coincidence, and three times is a pattern” - quite the predilection, indeed.


Thanks for reading this beast! Part I is here. I hope you join me soon for Part Three.


Tags: martial law, Katrina, New Orleans, Posse Comitatus, Bush, Insurrection Act, avian flu, quarantine