Tuesday, September 20, 2005

Send in the cavalry: the militarization of law enforcement and the Posse Comitatus Act

The bungled response to Hurricane Katrina has led many in Washington to question the value of the Posse Comitatus Act of 1878.

Sen. John Warner, R-Va., has asked the Pentagon to review laws governing the use of the active military for domestic operations, including law enforcement. Warner, who chairs the Senate Armed Services Committee, wants a review of the 1878 Posse Comitatus Act and the insurrection statutes written in the 1860s and 1870s.

"That framework of laws has served us well for the history of our country, but our nation is faced with some unusual threats today unlike anything we had when these laws were devised," Warner said. He said he wants a "careful review" and did not put a timeline on when it should be done.

Sen. Joseph Lieberman, D-Conn., said a review is warranted, adding that it is "probably time for a change."

"We may, in some situations, want to give a president ... the opportunity early on in a crisis to federalize the operation," said Lieberman, who is ranking member of the Senate Homeland Security and Governmental Affairs Committee and also sits on the Senate Armed Services Committee.

"The fear ... of federal military usurping state and local authority and, in the worst case, martial law imposed by a president has to give way to the reality of lives on the line that in many cases only federal authorities will save," Lieberman added.

Senate Majority Leader Bill Frist said the military might be the only option when first responders and local infrastructure are wiped out.

"I think that mobilization of sufficient resources with a strong command and control structure and good communications is something our military can provide. If it can't be provided locally or at the state level or with the [National] Guard, active military will be deployed," he said.

Frist added, however, that he does not know if any changes to the law are necessary.

But Allen acknowledged that giving the federal government greater control over disaster response operations might present legal complications.

"This country was made to have constitutional challenges," he said. "The organization and the execution of government in the United States was made messy on purpose." |GoveExec|


The Bush Administration has long wanted to dispense with Posse Comitatus and Katrina has given them a very powerful argument for dispensing with the act.

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. Though the topic has emerged at other troubled times - most recently 9/11 - Congress has always avoided amending Posse Comitatus, the law that has kept active-duty soldiers out of civilian law-enforcement affairs since Reconstruction.

Anger over the scenes of chaos in New Orleans in the days after the hurricane, however, seems to have shifted the political landscape. It is an issue of profound importance both to the Pentagon and to the country at large, raising questions about the boundaries between the armed forces and American society - as well as the military's ability to press the war on terror abroad if it receives a new homeland mission.

"There's a strong historical precedent against doing this," says Michael O'Hanlon, a defense analyst at the Brookings Institution here. "But now we've got a real reason."

The difference is the scope of the destruction and the dire results of the delayed response, scholars say. During previous disasters, local responders were able to help many victims, while others were able to manage without power or shelter. Katrina, however, completely incapacitated local first-responders, and in the days before help arrived, New Orleans was beset by anarchy. |CSM|
Of course the militarization of the police has been a continual process. The Clinton administration actively sought to transfer cold war era technology to the police as part of the peace dividend. A lot of the urban surveillance technology was pioneered by the British as a way to control Northern Ireland. The infra-red camers watching citizens from bullet proof domes are directly military spin-offs. London used to be the most observed city in the world with all of its cameras, and they're adding more after the attacks on the Underground. But I'm sure other cities (like DC) are catching up in terms of surveillance cameras.

After the end of the cold war, defense contractors increasingly marketed their products as dual use meaning they could be used by the military or police. The fact that you see police officers with M-16s and Kevlar helmets jumping out of former military helicopters is not an accident.

I bring this up to point out that the militarization of the police has been a process and this move by the Bush administration takes a long process of militarization to the next level.

As I've commented elsewhere, I think we should modify the Posse Comitatus Act, but not do away with it entirely.

It would be more prudent to amend the Act to allow use of the military in disaster situations or terrorist attacks or any other case where the President and Governor agree.

I'd probably put some nominal safeguards as well, such as neither the Speaker of the House (or agent) nor the Governor of the State(s) involved must have any objection to the deployment of U.S. troops in a domestic law enforcement role.

If there were an objection, I'd send it to a randomly selected Circuit Court of Appeals for an expedited ajudication.

As to reversing the militarization of the police, I don't think it will happen. I think that the Second Amendment and the prevalence of firearms almost requires the police to go to the next level to keep up. The threat of terrorism (as much as the reality) will also push law enforcement to adopt ever more sophisticated and militant tactics.

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