Illegal Deployment (Update: A Clarification)

I appreciate our military, especially the Army.  I was in the Iowa Army National Guard and Illinois Army National Guard and am proud to have served.  I however am disturbed by a recent disclosure by the Army that U.S. Army Military Police (not National Guard mind you, but regular Army) from Ft. Rucker, AL were deployed to Samson, AL after that town experienced that senseless tragedy when a gunman took the lives of 10 residents and then turned the gun on himself.

What many people don’t realize is that this deployment is illegal.  The Posse Comitatus Act of 1878 forbids federal military to be used for civil law enforcment.  This law was passed toward the end of the Reconstruction era after the Civil War and was signed into law by President Rutherford B. Hayes.

CHAP. 263 – An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes.

SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section And any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.

10 U.S.C. (United States Code) 375

This was to assure southern states that the United States Army would no longer be patrolling their streets and law enforcement would be left up to resident civil authorities.  Whether this was a good thing, looking back in history with the civil rights abuses that took place, can be up for debate.

In 2006 Congress passed a bill that granted the President the ability to deploy federal troops within the United States in certain emergency situations.  This was called the John Warner Defense Authorization Act, and it amended the Insurrection Act of 1807,  by specifying in what circumstances the President can declare martial law (natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident or other condition in which the President determines that domestic violence has occurred to the extent that state officials cannot maintain public order).

One can seriously question whether the situation in Samson, AL met the criteria for martial law.  I do not believe that to be the case, and nobody seems to know is saying who ordered the deployment.  Only the President can, and he would have to make a case as to why state officials couldn’t maintain public order.  The Governor of Alabama didn’t make any such request according to Glenn Beck who contacted Governor Bob Riley earlier today.

James Bovard wrote an article in the American Conservative (HT: Your Politics Are Boring) shared the problems of this new law, and how Governors opposed it:

These new pretexts are even more expansive than they appear. FEMA proclaims the equivalent of a natural disaster when bad snowstorms occur, and Congress routinely proclaims a natural disaster (and awards more farm subsidies) when there is a shortfall of rain in states with upcoming elections. A terrorist “incident” could be something as stupid as the flashing toys scattered around Boston last fall.

The new law also empowers the president to commandeer the National Guard of one state to send to another state for up to 365 days. Bush could send the Alabama National Guard to suppress antiwar protests in Boston. Or the next president could send the New York National Guard to disarm the residents of Mississippi if they resisted a federal law that prohibited private ownership of semiautomatic weapons. Governors’ control of the National Guard can be trumped with a simple presidential declaration.

The story of how Section 1076 became law vivifies how expanding government power is almost always the correct answer in Washington. Some people have claimed the provision was slipped into the bill in the middle of the night. In reality, the administration clearly signaled its intent and almost no one in the media or Congress tried to stop it.

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Every governor in the country opposed the changes, and the National Governors Association repeatedly and loudly objected. Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, warned on Sept. 19 that “we certainly do not need to make it easier for Presidents to declare martial law,” but his alarm got no response. Ten days later, he commented in the Congressional Record: “Using the military for law enforcement goes against one of the founding tenets of our democracy.” Leahy further condemned the process, declaring that it “was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.”

I see this as a dangerous precedent.  We really don’t want to see our troops patrolling our streets.  They, for the most part, are not trained for civilian law enforcement.  That isn’t their mission.

Update 3/19/09: I just want to clarify my position.  I recognize as a former member of the National Guard that there is a place for the use of the military during natural disasters, etc.  If the border chaos escalates there will be a compelling argument for the use of federal troops (as opposed to National Guard).

I also want to be clear that I am not saying that these soldiers did anything inappropriate in Samson.  I am very supportive of our soldiers, sailors, airmen and Marines.  I just believe we need to be very, very careful how our military is mobilized stateside.