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.

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.

10 comments
  1. As I look at your discussion, I was concerned–because I trust my leadership to do the right thing, which they do most of the time.

    After I read the USA Today article you sited, I realized that my suspicions were right…this was not a “deployment” at all. Yes, I will admit that the MPs are Federal Troops–but they are also neighbors.

    Neighbors try to help one another. One town asked another “town” if they could have some help for a tragic situation. It seems to me–and I don't have all the facts (I'm in Iraq, so information is limited), but from a quote from USA Today:

    “Ward said he had his dispatcher call Fort Rucker again and request about 25 officers “to come to Geneva County. … They were here at our request, giving our officers a chance to get something to eat, to take a break before going back on duty. They had no investigative duties, no police powers. All they did was direct traffic.”

    It seems as though Fort Rucker was simply trying to be a good neighbor–I guess we have become so politically correct that we can not do this any more.

    Thanks for making a dirty image of a good thing.

  2. Chaplain,

    This isn't my attempt to make the Army look bad. I was in the Army. I love our soldiers, but it was simply out of bounds legally.

    If they were ordered by the President or the Governor requested it, then fine. But it wasn't. Federal law doesn't specify law enforcement, but any deployment within the United States.

    I can appreciate your sentiment though.

  3. Also some additional thoughts – it isn't about being “politically correct” because if you read this blog enough you'd know that isn't a phrase that describes me. It is following the law.

  4. Good post, Shane. I am of the sentiment of chaplainandrews. I think someone on post sent the men out, asked for volunteers, whatever. Neighborly as they say.

    Listening to former Joint Chief General Myers, he felt that if whoever sent them stepped up and took the heat for it, and told why they did it (most likely a benign desire to help) that all would be forgiven. A desire to help, while still wrong in this case, is understandable.

    *Shrug*

    Sean!

  5. Interesting! And I understand that you are not berating the military, they can only follow orders, right? It would be interesting to find out who made the final order (gee I wonder). My family has a long military history as well and I currently have cousins in the Canadian army who have served in Afghanistan, my uncle was in the Gulf for both conflicts, my ex husband is a Sgt in the Brit Army and has been to Iraq 4 times (my son's father), my great grandfather was in WW2 and lied about his age to be able to join, etc etc. Another cousin has been training soldiers in Oklahoma who were heading to Iraq… I have a great respect for the military. But you are right, the rules need to be followed and it does not seem so in this case.

  6. The problem with “neighbors helping neighbors” is that they can't do it with the power of the uniform behind them– if there'd been a request for volunteers, even if the military gave the guys time off to go help, it's a different situation than sending in MPs and an officer.

  7. If you trust American leadership, I certainly think that you have already been manipulated to look the other way and not really think about what is going on here. There are MANY reasons to question the overall state of law structure and leadership in America. This is not the issue here though, and neither is the EXTENT to which this law was broken. This is a 'foot in the door' tactic that is used to get Americans to accept a small violation of their rights so that down the line they will be less resistant to a more severe attack. This probably seems to be an innocent event in many people's eyes, but if people do not question these events, they are totally giving up control. Simply 'trusting' the nature of our leaders' decisions is a dangerous thing. It truly scares me to think that, while I am putting up a fight, there will be thousands of people to one who follow orders without thinking. Very scary IMO. The real problem, like others have mentioned, is that there is no accountability for what happened.

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