Posse Comitatus and the Use of Troops

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"Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor. "

This quotation is from a commentary on the "Posse Comitatus Act" of 1878.

Today I listened to a Washington press conference at which several senior speakers asserted that "Posse Comitatus" prevented the direct use of federal troops to assist law enforcement in the present emergency.  Hokum!

I am not a lawyer, but it used to be, and maybe still is, that in just about every service school an Army officer attended, a sub-course was taught on military law as it applied to situations that one might encounter.  I took that course a number of times beginning at the Infantry School and ending at the War College.

The conditions and hazards of a martial law declaration were always studied.  Ironically, a case always considered was the decision of General Andrew Jackson to declare martial law in New Orleans in 1814.

"Posse Comitatus" was always a "biggy."  This was especially true in the ’60s.  It was a sobering matter to consider this law in that context.  The law was written in the aftermath of the end of the military occupation of the South, the end of the 1st Reconstruction period and the general amnesty of Confederates which happened in the Hayes Administration.  This last gave the previously disenfranchised back the ability to hold office and vote.

As soon as the "Bourbons" got back into Congress in strength they did several things. One was to adjourn two years in a row without appropriating money to pay the officers of the Regular Army.  Another was to pass a law that forbade the use of Federal troops to enforce civil law.

The intent was pretty clear in both cases.  "Posse Comitatus"  was intended to prevent further use of US troops in the South to enforce a return to Reconstruction.  Over the years the law has become the subject of mythologizing and has become a symbol of civilian freedom from military domination.  The law was never intended to apply to the militia of the states and for that reason does not apply to the National Guard which is the federally recognized and partially funded portion of each state’s militia.

The law has been "clarified" a number of times, most notably in the "Stafford Act"cited above. 

It is simply not true that federal troops can not be used in the New Orleans and Mississippi situations.  It is clear that the state governments are overwhelmed by the scope of the destruction and the consequent lack of the transportation and communications infrastructure.

What should be done is that President Bush should suggest to the governors of the two states that federal troops are available to assist them in re-gaining control of places like New Orleans.  A request from each governor would then enable the use of real power, both humanitarian and disciplinary to restore the situation.  The Bush Administration knows that this is true. Clearly, they are looking for a minimal involvement.  Why?  Is it because they have other priorities?

The decision not to return troops of the Louisiana National Guard from Iraq to help their friends and neighbors would point in that direction.  Louisiana’s "Tigers" should be allowed to come home.

Pat Lang

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34 Responses to Posse Comitatus and the Use of Troops

  1. Ckrisz says:

    Posse Comitatus always struck me as a bit odd given that it allowed the Federal Government to deploy Marines during the L.A. riots.

  2. Pat Lang says:

    CZ
    Yup. If you look at that I’ll bet you find a request from the Califirnia government somehwere in the deal. pl

  3. J says:

    Colonel,
    federal troop involvement reduced to ‘prevent reconstruction’ then, and the same by the Bush admin. today. Agree?

  4. Pat Lang says:

    J
    Federal troops were withdrawn then because social Reconstruction had to come to an end sometime.
    This is just incompetence. pl

  5. carol says:

    Ok –I will admit I never heard of Posse Comitatus -I learn much from you —
    just wanted to say —-If our government lets masses of people die in New Orleans — not directly from the hurricane, but from failing to rescue them–someone needs to be accountable—–The response we have seen so far is inadequate and seems utterly incompetent ., my admiration is still great for the men and women working tirelessly to rescue and aid the people — –it just seems like getting the children and elderly food -water should not be so hard —to do

  6. Pat Lang says:

    Carol
    I agree.
    Pat

  7. Dan says:

    I am just so angry watching this unfold from Baghdad. The last embed i did last spring was the 1/23, a Marine reserve unit based in Lousiana (Boisier?) and Texas. These salty boys would be happy to go in, as would thousands of others. I just watched a CNN report saying FEMA had suspended police water borne rescue teams from carrying out their work because the situation was “too dangerous?” Pardon the language, but “balls” is a commidity that appears to be in much shorter supply than i thought. I also think these claims on TV of “snipers” shooting at rescue helicopters is bunk (some guy probably fired to get attention; at any rate, certainly not a “sniper”). The incompetence here is massive, and defies comprehension. Get in their, in huge numbers, and get people out. And W, try to wipe that smirk of your mug and show some gravitas (and balls).

  8. Tuli says:

    The wheels have come off.

  9. Pat Lang says:

    Dan
    Couldn’t agree more. Not returning these Guardsmen in this situation is just cruel. I guess their rotation plan is more important and Rumsfelds Arrmy is not too keen on state identity of Guard units anyway.
    Keep your head down. Pat

  10. Pat Lang says:

    Tuli
    Yup. The scab has been picked and what is underneath is a mess made up of topographic tragedy, social stratification, a weather disaster and Bush Administration indifference to things not on their agenda.
    See Krugman’s column today in the NYT. pl

  11. J says:

    Colonel,
    those politicans found culpable in the re-routing of SELA funds for levee construction to Halliburton, need to be criminally prosecuted and face the death penalty.

  12. Pat Lang says:

    J
    I want to hear the story of the Chief of the Corps of Engineers who quit in ’02 after a dust up between him and the Bushies over Corps funding.
    Was this Gen. Flowers? pat

  13. J says:

    Colonel,
    here’s another one where flowers defends his employees:
    http://www.govexec.com/dailyfed/0201/022801m1.htm

  14. J says:

    Colonel,
    here’s more re the Halliburton scamming of SELA funds
    Did New Orleans Catastrophe Have to Happen? ‘Times-Picayune’ Had Repeatedly Raised Federal Spending Issues
    http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1001051313
    also something glaringly sticks out regarding the New Orleans super dome and the mass chaos lack of military control. What ever happened to repelling and mountaineering skills? they ‘could have’ air dropped mp’s into the super dome. why did that not happen? we do it everywhere else around the globe, no?

  15. J says:

    Colonel,
    FEMA AND Homeland Security have no real command and control in New Orleans. in my opinion, they are derelict in their duties and responsiblities and need to be held criminally accountable for their ‘lack thereof’. the ‘death penalty’ needs to be on the table for all those found criminally responsible for funding transfers-rip off, and inadequate planning – not having their ducks all lined up.

  16. angela says:

    Nero fiddled and Bush played guitar. The symbolism is tragic in itself.
    Fema was evidently dramatically cut and demoralized. If true I wonder how much of this has to do with the fact as the same nutty cadre which called McCain a N Vietnamese agent also felt that Fema was a dastardly tool of secret government, an arm of the Illuminati.
    It seems to me the right has been very effective in hiding the philosophy of it’s lunatic fringes. While those on the left pop open their mouths on every occasion and earn often well deserved mockery, I feel that the really wacky right avoid major publicity and spread their doctrine to millions through a semi underground stream of publications.

  17. searp says:

    There is a lot of incompetence, but there is something more.
    We’ve been sold the yarn of the sturdy yeoman peasantry who don’t need help and shouldn’t pay taxes. The moral and intellectual bankruptcy of this minimalist vision is now clear. I think this is the end of this cycle of popularity for social Darwinism.

  18. CK says:

    I believe that there was an issue with the use of US military troops during the Detroit riots. The issue was that as soon as the troops were used the insurance companies declared that the use of troops meant that there was an insurrection and thus policies would not be paid. ( Almost all insurance policies have an exception in cases of insurrection.)
    I can see where any governor or mayor might be a little bit reluctant to call for Federal help with that dagger hanging over the head of his constituents.

  19. Diana says:

    Where’s Cheney?

  20. J says:

    Colonel,
    just ‘where’ is Cheney? it’s like he’s vanished from planet earth. where is Cheney?

  21. Pat Lang says:

    CK
    The same problem would apply to Guard troops. what should you do, nothing?
    pl

  22. Pat Lang says:

    searp
    could be. pl

  23. Pat Lang says:

    Angela
    This arm of the Illuminati do not seem very luminous. pl

  24. J says:

    Colonel,
    take a look at this one:
    Halliburton gets Katrina contract, hires former FEMA director
    http://www.halliburtonwatch.org/news/hurricane_katrina.html

  25. angela says:

    In referance to your post, read the last paragraph of this story.
    http://news.yahoo.com/s/ap/20050902/ap_on_go_ca_st_pe/iraq_us_military
    Troops with close relatives among the victims *may* be allowed to come home, others no.
    Nero fiddled, Bush played guitar.
    I know of one Iraqi veterans group:
    http://www.operationtruth.com/

  26. angela says:

    I should have said “known victims,” dead or seriously injured, they *may* get to return.
    Missing? So many are missing.

  27. Some Guy says:

    Colonel, Andrew Sullivan posted a very interesting email from a Corps member that is very relevent in regard to the Corps head Parker who was ousted. He said this week that although the flooding would have occurred it would have been less. Yet the current head of the Corps today said the SELA project completion would not have helped.
    Forgive my copying the whole email as it is pretty long but I think it is most interesting:
    “I’ve worked closely with Corps personnel for 6 years in various scientific and regulatory capacities on wetlands issues. While the Corps is often maligned by environmentalists, I will be the first to defend the professionalism, commitment and skill of their regulatory field staff.
    The Corps, however, is Army – the institutional culture is one of top-down control and damn-the-torpedoes, and a deeply-ingrained instinct against criticising the chain of command. In an email yesterday that eventually ended up on Wonkette, I predicted that they would be good soldiers and insulate Bush against charges that the levees weren’t finished, and indeed I woke up to Al Naomi saying just that on NPR. And General Strock from HQ had to be brought in to do the real damage control: “I don’t see that the level of funding was really a contributing factor in this case,” said Lt. Gen. Carl Strock, chief of engineers for the corps. “Had this project been fully complete, it is my opinion that based on the intensity of this storm that the flooding of the business district and the French Quarter would have still taken place.” (from Chi Trib).
    But there are really TWO questions that must be answered:
    1) Was the levee complete and at design spec?
    2) Would a design-spec levee have withstood Katrina?
    1) The truth is that short of a whistleblower, we may never know the condition of that levee on 8/29. My source on its inadequate condition isn’t solid enough. But I know the following things:
    a) You don’t finish levees and walk away. They need regular maintenance – even when you haven’t built them on dewatered organic soils that settle every year.
    b) A District that had just taken a one-year budget cut of $71 million will have had to make some very hard choices about whether maintenance on this particular levee fell (in Corps parlance) “above the line – priority” or “below the line – optional”. Their SOP (Standard Operating Procedures) guidance might tell us, but somebody needs to get a FOIA cookin’ on this right now.
    c) The question of levee adequacy breaks down at least into “was it at spec height?” [yes!] and “was it structurally sound to spec?” [oops!]. Because of the nature of the levee failure (not overtopped, but burst), watch for Corp HQ to focus on the first question (which pins the deaths on nature), and ignore the second (which might pin the deaths on budget decisions).
    2) Over the coming days, the Corps’ message will be this: “Katrina was greater than the design storm for this levee.” This is at least an open question – purportedly the levees were designed to withstand a direct hit from a Category 3 hurricane. Katrina was a Category 4 at landfall, presenting her weak side to the levees at a distance of some 40-50 miles. The question appears debatable on its technical merits, and Strock’s facile answer is far too politically expedient a conclusion to take at face value from Corps HQ. I have seen them fall on their sword for Presidents before, and the need has never been greater.
    To sum up: Gen. Strock is asking us to accept that the Army Corps could maintain the structural integrity of every last mile of levee built on subsiding soils in a District that had taken a $71 million budget cut in one year. AND that they would admit it if they hadn’t, when the reputation of the President is at stake. All my experience rejects both propositions.”

  28. Some Guy says:

    Sorry, they are not in the Corps but work with it.

  29. carol says:

    The picture of an American –“-begging Please help us”- in the Times-Picayune .. .
    “I’m ashamed of America. I’m ashamed of our government,” said Rep. Carolyn Kilpatrick (D-Mich.). “I’m outraged by the lack of response by our federal government.”
    I have heard remarks like this all day —-at work at the Market .
    I kept thinking about The People Are Sovereign—-by pat lang –I went back and read it just now —and took a quick glance at THE UNITED STATES CONSTITUTION—
    I said —-If our government lets masses of people die in New Orleans — not directly from the hurricane, but from failing to rescue them–someone needs to be accountable—–
    What small part of the blame is mine –.If this is not the America we want” we the people”need to work harder to elect a better government .
    Pat —-your words I think were written to get another point across—-but your words reminded me– we–The American People– elected this government ———-
    ,

  30. CK says:

    National Guard being state Militia, their use in domestic disturbances has never triggered the insurrection clauses in Life insurance or property insurance policies. It is only the calling out of the federal troops that has triggered those clauses and allowed insurance companies to null and void policies.
    What I would do is not the relevant criterion for the topic. I am not a gouvenour or a mayor or on any federal payroll. Nor is it even hypothetically possible that I will be.
    Given that, if the issue is to be one of pacification of the terrain and creating refugees then by all means keep the Red Cross and salvation army and national guards and military and any federal TLA agencies from entering, and starve out the survivors until such time as they can be easily herded off, controlled, counted, strip searched, and removed of their citizenship and any semblance of humanity. I would say that after 6 days the responsible parties in charge have accomplished their desired goals.

  31. Pat Lang says:

    ck
    Are you sure about the insurance thing? I see Bush has now ordered “active duty” troops into Honore’s JTF. pl

  32. CK says:

    About the insurance thing, Detroit riots, LBJ inserted the US Military without the Gouvernor request. Insurance companies bailed immediately. Kent State National Guard killed students Insurance companies did NOT bail.
    Inserting the Federal Military to assist in disaster relief does NOT trigger the insurrection clause. Inserting the Federals to maintain State/municipal level Law and Order does. Since there is no danger and no revolt in NOLA ( no gunshot wounds no injured soldiers ) now, the insurrection escape hole would be a tough one for the Insurance companies to use. The only real window of opportunity the insurance companies had to bail on their contracts was a few hours on Wednesday and Thursday when the print and radio media was suddenly full of unsourced, third hand claims of gunfire and arson and roaming bands of rapist/murderer/cannibal blacks. Since for all their looking, the TV media could not come up with any killer blacks and at best could find people scrounging for food and liquid; I think it is safe to say that the Posse Comitatus issue is a dead one.
    As far as the scrounging goes, I suspect many of those poor homeless blacks would make damn fine supply sgts. Ah hell where is Ernie Bilko when he is really needed?

  33. E L Smith says:

    During the 1930’s Adolph Hitler was conning the German people.
    QUESTION:When is there going to be a Tribunal by the WORLD COURT against the Saddam W. Bush Regime for CRIMES AGAINST HUMANITY ???
    I enlisted at the outbreak of the Korean War to protect things like little George W. Bush!! Like hell, he should have been drowned at birth

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