Mr. Arkin,

I'm a former Coast Guard officer who has been studying the issue of using military personnel to enforce domestic laws since I chose that as the topic for my law school thesis in 1985.

While I generally agree with the thrust of your 20 September piece "Rumsfeld to Katrina: 'Thanks'", I feel it necessary to point out a few factual errors and misleading comments you made.

First, you stated that "The PCA applies to all of the federal uniformed services by statute or DOD policy. It does not apply to the U.S. Coast Guard." The Coast Guard is one of "the federal uniformed services", although you're right to have said the PCA doesn't apply to it. In the future, a better phraseology would be, "The PCA applies to the DoD armed services, either by statute or policy."

Second, you're absolutely right that the PCA does nothing to prevent military personnel from assisting local or federal authorities in natural disasters.

Third, you're wrong about the PCA's origins. The impetus for the Act was the use of Union Army soldiers by local Republican officials in the occupied South between 1865 and 1878.

The concept of the posse comitatus (what fans of movie westerns know as the posse) dates back to pre-Norman England, not the 1850s in the United States. Until the U.S. Civil War, it was common practice -- in England and its North American colonies, and then in the United States -- for the sheriff (who usually had no staff) to call on all males over 15 who lived in his jurisdiction to assist him with bringing miscreants to justice and to quell riots, insurrections, or other disturbances.

As the 1854 opinion of Franklin Pierce's Attorney General Caleb Cushing clearly indicates, no distinction was made between military personnel and civilians with respect to whom the sheriff's call for a posse applied to. A longstanding English doctrine which had crossed the pond just before the end of our War for Independence held that soldiers serve in a posse in their capacity as citizens, not as soldiers, and are subject to the commands of civilian authorities on the scene, not of their erstwhile military commanders.

That centuries-old doctrine was forgotten during our Civil War and when it was abused after the Civil War, Democrats in Congress seized on those abuses as a way to end Reconstruction and hobble future presidents in their domestic use of the Army. The PCA, essentially, threw out the baby with the bath water.

Then, to make matters worse, the PCA has been obfuscated and misinterpreted by Congress and the courts ever since 1878. Now almost no one knows what the Act really says or does or how military personnel may actually be used domestically.

I'm currently working on a book that recounts the history of using the military for domestic law enforcement, debunks myths about the Posse Comitatus Act and supposedly scholarly commentaries about it, and proposes statutory changes that would clearly state current policy that is in keeping with our desire to maintain the military subordinate to civilian authorities. I'd be happy to send you a copy of the bill I've drafted and plan to send to Senators Warner, Graham, and other lawmakers who have recently commented on the PCA.

Sincerely,

Andrew Webb

"like Minnesota where the local government operates far outside the limits placed on the states by the U.S.Constitution and the state constitution. Please explain to me how martial law would be worse than the kleptocratic totalitarian spendaholic government we suffer under.
A realistic discussion of when Martial law needs to be imposed and the objectives of the militery in view of their oath is needed. The conditions under which local authorities can request martial law and those where the President needs to impose martial law should be well defined to the public."

Wow! Frightening comment! Guess this is exactly what the VOTERS in MN are scared of when we hear pols saying get rid of Posse Comitatus. When did the right wing conservatives start believing that if you don't like our ideas, you will be force fed them. My grandmother was a conservative, because she believed in LOCAL control. I absolutely agree with the comments about the NRA! Where are they on this issue. They should be screaming bloody murder. This is exactly what the 2nd Amendment is supposed to be about, an armed populace.

How do we get the word out to the general disaffected public about this stuff? I always use the argument, that ok, you might trust this in the hands of George Bush (shudder at the thought), but think about how someone like Hitler would use this sort of power? If it is granted to one president, it is granted to all that come after. This law was written within decades of Civil War in this country. If at any time in out history, they had a comprehension of the effect of military use on our soil it was then!

Mr. Arkin,

My understanding of the Posse Comitatus Act is that it only applies to active duty military. In other words it does not apply to the Army and Air Force National Guard. Proof to this end can be found via the connection between the Texas National Guard and the BATF and the FBI during the Waco fiasco. If memory serves me..those Abrahms tanks and Bradley fighting vehicles belonged to the Texas National Guard and yet they were being employed by federal law enforcement by and through the command structure of the National Guard; or should we say by and on the authority of the Governor of Texas...in this case, he/she was the peacetime commander in chief of the Texas National Guard.

This is great commentary Mr. Arkin.

Have you considered the further implications of America being an "early test" of the UN-EU NATO's Rapid Response Fighting Units? Do you suppose the Northern American Community agenda (that merges the US, Canada and Mexico) proposed by the CFR (http://www.cfr.org/publication.html?id=8102) had anything to do with the selection of the Canadian and Mexican navies (and marines) to assist with hurricane rescue efforts? Do you know if the international NRF (http://www.nato.int/issues/nrf/) troops are under consdieration for rebuilding the Gulf States? Have you written about this elsewhere? http://nord.twu.net/acl

What is Force Majeure?

Mr.Arkin yesterday I read on one of your blogs an emergency plan using government surplus.The writer stated many ways the wharehoused surplus from all branches of the military could be stored on un-used railroad cars in various areas of the country ready to be shipped. Included would be all sorts of necessities.It was a rather long post but really worth reading.I wish I had printed it as now I can't find it.Can you tell me where it is.If you read these at all that one would definately stick in your mind because it made so much sense.

What's the role of Force Majeure in
all of this?

Previous to the news story of Warner, I saw television coverage of Rumsfeld himself putting forth the idea that the military should be the ones to respons. So your theory, that Rumsfeld wants to do this is correct.

Hmm, seems the Posse Comitatus Act doesn't apply to the Navy or the Marines either, just the "Army and Air Force." Hmm.

Bravo! I just discovered your blog today. You've covered a number of topics that are not being covered by the press _anywhere_ as far as I
can tell. Keep up the good work!

These are difficult times. Thank you so much to the editors and Mr Arkinfor keep all of us informed and the discussion going. I would like your readers to know of another option to homeland defense that fulfills the needs of law enforcement without changing the set up of the National Guard or Federal Law.
The State Guard movement is the correct answer. These forces serve under the Governor and can only be used within their perspective states. They are part of the Military Departments of the states and work with National Guard units and remain in state when the National Guard is deployed. They already have state arrest powers and are trained in homeland defense. Sounds perfect huh? Then why is it so hard to get the DOD, DHS and the Federal Government to assist these groups? Well because they are not under direct Federal Control. I would suggest that the DOD could create guidelines and requirements for federal certification. These forces would be the best answer. Always in state, arrest powers already - no need to change laws, local control, trained for homeland defense, and they don't take away from present military force. They have very little cost. Virginia has an excellent program - check them out http://www.virginiadefenseforce.org/links. These forces have been supported by several high ranking DOD members (ARMY Magazine, September 2004, pages 15-19 "The Need for a Modern American Militia" by MG Edward B. Atkenson, US Army Ret. and MG James L. McCoskey, IN Guard Reserve Ret.) Finally look at the HR 3401 and see how these troops can get the support they need.
http://www.sgaus.org/HRsponsorLIST.htm
It is time to tune them up and apply them as they were created.

Mr Arkin,

D Rumsefeld and S Hannity used the military's own website to spin a similar story, via an interview.

http://www.defenselink.mil/transcripts/2005/tr20050906-secdef3863.html

On Paulison,
Paulison hasn't been on C-SPAN much since in the last few years, but he was on, a year or so after 9/11, explaining how the fake-emergency exercises (Chicago and Seattle?) were _designed_ in large part to overcome communications problems. I guess he didn't follow through. C-SPAN re-aired it recently.

Mr W Nelson,
Their oath to protect the Constitution can't be used as an excuse to violate it, or the law.

DutyHonorCountry,
Lawyers were 3/4 of this country's first 20 Presidents. And George Washington designed his own clothes. We seemed to turn out OK. Want to know why? During most times, a government is about laws, and lawyers are trained in the law.
You are also quite incorrect on the idea that the military doesn't care about who gets to be in charge (point 10). The US Air Force and the CIA bickered for ten days over who would be in control of the U-2 flights over Cuba to get the photos of the missiles. Some people call it "Thirteen Days" but it was really 23. The bickering almost doubled the length of time. The different branches, even between themselves, sorely hope to protect their own assets, and that's why they all have planes and they all have boats.

InsideTrack,
Generals who lead from the front _do_ talk tactics. But when you are sequested away, far from the front, you simply are incapable of talking tactics. Not that I didn't agree with most of your points.

Mr Arkin,

D Rumsefeld and S Hannity used the military's own website to spin a similar story, via an interview.

http://www.defenselink.mil/transcripts/2005/tr20050906-secdef3863.html

Mr W Nelson,
Their oath to protect the Constitution can't be used as an excuse to violate it, or the law.

DutyHonorCountry,
Lawyers were 3/4 of this country's first 20 Presidents. And George Washington designed his own clothes. We seemed to turn out OK. Want to know why? During most times, a government is about laws, and lawyers are trained in the law.
You are also DEADLY wrong on the idea that the military doesn't care about who gets to be in charge (point 10). The US Air Force and the CIA bickered for ten days over who would be in control of the U-2 flights over Cuba to get the photos of the missiles. Some people call it "Thirteen Days" but it was really 23. The bickering almost doubled the length of time. The different branches, even between themselves, sorely hope to protect their own assets, and that's why they all have planes and they all have boats.

Paulison hasn't been on C-SPAN much since in the last few years, but he was on, a year or so after 9/11, explaining how the fake-emergency exercises (Chicago and Seattle?) were _designed_ in large part to overcome communications problems. I guess he didn't follow through. C-SPAN re-aired it recently.

InsideTrack,

Generals who lead from the front _do_ talk tactics. But when you are sequested away, far from the front, you simply are incapable of talking tactics. Not that I didn't agree with most of your points.

SCOTT LINDLAW of Associated Press wrote an article while Tom Ridge was still Chief of Homeland Security (Jan 2003- Feb 2005), stating "Tom Ridge says the threat of terrorism may force government planners to consider using the military for domestic law enforcement, now largely prohibited by federal law.

The President soon after called on Congress to thoroughly review the law that bans the Army, Navy, Air Force and Marines from participating in arrests, searches, seizure of evidence and other police-type activity on U.S. soil. The Coast Guard and National Guard troops under the control of state governors are excluded from the post Civil War Reconstruction-era law, known as the "Posse Comitatus Act."

Ridge told Fox News "We need to be talking about military assets, in anticipation of a crisis event. And clearly, if you're talking about using the military, then you should have a discussion about posse comitatus."

Two influential Democratic senators agreed with Bush and Ridge that the law ought to be reviewed, but expressed no interest in granting the military new powers to arrest American citizens.

"It's (Posse Comitatus Act)kept the military out of law enforcement, out of arresting people except in the most unusual emergency situations like a riot or after some kind of a disaster where they have to protect against looting," Sen. Carl Levin said on CNN's "Late Edition."

Sen. Joe Biden, chairman of the Senate Foreign Relations Committee, said he favors expanding the military's role in responding to major catastrophes such as an attack by a weapon of mass destruction.

The law "has to be amended, but we're not talking about general police power," Biden said on "Fox News."

No more need be said. The present Administration wants the military to have the authority to enter States and declare martial law whenever Bush sees fit. Katrina has provided a second opportunity to further the cause.

E. C. Burkhart
Maryland

I guess I could be considered one of those security hot heads you talk about. I first want to thankyou for writing a thoughtful and informative article. With the plethora of lawyers gumming up the works, a clear public definition of when to use the military domesticly and the power they exercise is needed. I know I have taking an extreme position in regards to the PCA. The Military takes an oath to defend the U.S. Constitution against enemies foriegn and domestic. There are people who take thier oaths seriously and try to live by the oath. I think that the military does have a legitamate role in reinstating the U.S.Constitution where needed.
Martial law does not seem like a frightening possiblity when you live in a state like Minnesota where the local government operates far outside the limits placed on the states by the U.S.Constitution and the state constitution. Please explain to me how martial law would be worse than the kleptocratic totalitarian spendaholic government we suffer under.
A realistic discussion of when Martial law needs to be imposed and the objectives of the militery in view of their oath is needed. The conditions under which local authorities can request martial law and those where the President needs to impose martial law should be well defined to the public.

Not to travel too far from this blog's subject but... The explanation for the NRA's political blinders is that they are not beholden to their membership but to the gun lobby, which represents gun manufacturers. Making and selling guns in this country and abroad is big business. The NRA protects that business with the money from NRA members. The 2nd ammendment arguement is a classic fear tactic to solicit contributions which are then used to protect and advance gun manufacturing and their resulting profits. Follow the money and it always leads you to the source when politics are involved.

If the Pres can indefinitely hold a person--an American citizen==without charging him with a crime and without giving him due process or his rights,how can there be any question that the Pres has the right to restore public order?????? Or maybe he really does not have the right to do either but like Hitler is using 9/11 (Reichstag Fire) and the Iraq War to give the presidency "dictatorial" powers.

Dear Fran:

You are a decent Lawn Gyland gal, and I know John would have wanted you to do good. And George knows what to do, but agency heads are going to screw this up if they can.

Lessons we should have learned:

1) Lawyers make lousy leaders, and horrific disaster/terrorism response heads. The heads of ICE, FBI, DHS, and the Katrina inquiry are lawyers, among many other multitudes. The head lawyer, AG Gonzales, is an Air Force Academy dropout. He and the other Beltway Brain Trust members, with vast military experience, opined that the military had its hand tied, as did Federal Law Enforcement. Might want to have the guy who graduated an Academy have a say. Might read the National Response Plan, ESF 13 annex, and act.

2) Law enforcement should be headed by cops and Agents, not judges and lawyers.

3) Life and limb over paper and policy.

4) FEMA should be headed by a fire and rescue guy. (Bush, the king of pullouts, is getting this right now with Paulison).

5) The Mississippi Emergency Management Agency and Mississippi game wardens had FULL satellite radio coverage in Katrina. Sometimes the dumbass old country boys (and their city mouse cousins), who do it for real outside the Beltway lobbyist/thinktank/IvyLeague fantasy world, "git r done", to paraphrase our hero, Larry the Cable Guy. The dumbass Mississippi folks had this planned. Better outcome than our "sophisticated" NOLA folks? You bet. A couple of bubbas and brothers could get your behind out of trouble faster on a bad day than a Ivy League lawyer could in his lifetime. (And they LIVE for this!)

6) The National Guard had one satellite radio for two states. Sometimes, the military has to adapt to the real world.
CJCS and Chief, NGB, see item 5.

7) Bush needs to kick ass on this one, or he and the Republican Party are going to the woodshed, pardon my Southern. And the South is going to send him there, if'un he don't kick Karl rat square in the cojones and get this straightened out.

8) Forrest Gump rescued Bubba, because even a idiot from Alabama knows DUTY is doing what ought to be done, when it ought to be done, without having to be told to do so.

9) People in Washington are psychotic-detached from reality. (I'm sure you are the exception) Even Bill Gates is smart enough not to send computers to inland sub-Saharan Africa. He sent vaccines. But we have Wash. folks sending us Blackberries where there is still no power or housing.

10) The military knows that "getting there fustest and with the mostest", and packing beans and bullets, is more important than fiddlepucking around for three days to see who is in charge. The JAGs, DHS, and AG are killing folks . Paralysis by Analysis. And the Ronald Dumbsfeld crew is pushing for mil ops to "take charge"? God Help Us. Their justification was, literally, in one scenario from Northcom, that Fed. Law Enforcement was "overwhelmed" by three search warrants. Godalmighty, have they heard that we have 700,000 US Cops, 180,000 Fed. Law Enforcement, and 300,000 Firefighers. Do we need DOD? No, Just THEIR HELICOPTERS, C-17s, Boats, and the ability to fly, fuel and land them. It ain't rocket science.

DUTY HONOR COUNTRY

Correction. In below post, when I said "gas chamber" I meant to say "death chamber". I believe the Feds use lethal injection now.

Doesn't all this make the NRA leadership look like a pack of horses asses? They earn a nice living soliciting $Millions from members like myself by claiming they are defending the Second Amendment in Washington. In the past, they've argued that Democratic gun control would disarm US citizens and ultimately leave us at the mercy of a Presidential dictator in some far distant future.

Yet, Do you see any of them now waving firearms and chanting "From My Cold Dead Hands"? Or yelling against the "jackbooted thugs" of the federal government as they did during Clinton's administration?

Even after (a) Attorney General Gonzales has argued that federal officials can torture US citizens and (b) the Republican Supreme Court has ruled that the Republican Congress has given our Republican President the power to imprison any US citizens for years without a trial by jury?

As I've noted before, the NRA leadership had a good point about restraining Presidential power during the Clinton years. In the Ruby Ridge incident, the Justice Department tried to have an Idaho jury send Randy Weaver and his friend to the gas chamber. Yet the jury found Mr Weaver and friend not guilty and the Justice Department ended up paying Randy Weaver and his daughters $2.1 million for shooting Weaver's unarmed wife. The federal courts ruled that the county prosecutator in Idaho could try the FBI sniper for manslaughter.

The NRA leadership made much of the Ruby Ridge incident. So why did they elect an Administration that today would throw Weaver into a Navy brig for years without trial -- or maybe even have him tried/executed by a military tribunal??

If I hear one more hypocrite mindlessly blather about freedom and democracy I will toss my lunch.

Thank you,Mr. Arkin,for even mentioning Posse Comitatus. Very few references about it have been made,especially in the MSM,and only in passing. Just the usual lightweight "reporting" and amnesic reaction to what used to be known as the rule of law.

God help us all that Americans no longer have a basic understanding of our own country's history or the Constitution and the Bill of Rights. Perfect recipe for the disaster that is now upon us.

Mr. Arkin:
I am a new reader.

I agree with your point of view.

Dina Brandt-Holgate

Mr. Arkin:
I am a new reader.

I agree with your point of view.

Dina Brandt-Holgate

Great to have you back -- and on a daily basis! You know, you'll have to take up a little of the giant slack caused by David Hackworth's death (unofficially of course). Keep an eye on them roosters in the Pentagon!

Your subject today reminds me of the plot to "Seven Days in May."

I wish you would do some stuff to follow up a NYT (sorry) story from '99 about how the officer grades have been totally politicized, (overwhelmingly Republican)compared to the old days when soldiers were expected (by tradition at least)to remain nonpartisan. Even so, it's amazing that so many conservative military leaders have in one way or another thought that the Iraq war has been a disaster for the services. (Mostly retired but I would imagine a lot current who have to be careful what they say)

"Contract with America; balanced budget"

Hmmmmmmm

Heh heh...cough, choke gasp ..ha ha ha hahahahahahahahhaha....

Bush's last budget shows that the federal debt for 2008 is gonna be $9.9 Trillion --$3.8 TRILLION more than what he promised back in Feb 2001. Roughly $4 Trillion is money stolen --er--"borrowed" from the Trust FUnds for Social Security/Medicare. So how do the T bonds --those Trust Fund "assets" get paid off? Not only do you have to run a balanced budget every year for the next 20 years, you have to have a roughly $400 billion surplus. Where's the money coming from? (Millions of AARP members will be eating dog food if they don't get their SS checks --I don't think that's gonna happen . At least, not so long as we keep having elections. )

Soak the rich? Naahhh. They only need to buy one corrupt senator to filibuster any bill that raises their income tax. Or buy one corrupt President to veto it.

Only way I see to pay off the Bush debt is via very high taxes on the middle class baby boomers 401K/IRAs. Their savings are in "before tax" dollars and will be taxed on withdrawal. Can you say "marginal rates of 70%"?

As I've noted before, the one bright aspect of the past 5 years is that 50 million middle class Republican voters have had their life savings turned to ashes -- and they're too stupid to realize it yet.

Don,

There is no doubt, they must be thrown out!

I must say the Republicans, as a party, have really changed from their glory days in the '90s: Contract with America; balanced budget; voluntary term limits; no nation building adventures. I think the Dems could easily throw all of this back in the Reps faces next fall. As for me, I can never vote for a Republican again, not even if he/she was the best person for the job, because a republican majority supports the rest of the bums, Delay comes to mind quickly. Its too close to lunchtime to be discussing this...

Hey, Sully, re Congress's irresponsibility:

"When in doubt, kick them out"

The Constitution allows the President to take over control of the National Guard -- but ONLY after Congress transfers command of the militia from the State Governors to the President.

Unfortunately, COngress gave away this Constitutional control about 50 years ago (in the National Guard Act) and gave the President the power to take command of the National Guard away from the State Governors at will. This is now enshrined in US Code Title 10 section 333. (US Code is available online --google)

The real problem is that Congress assumes it can step in and restrain a President who overreaches. But during Sept 11, the airliner which crashed in Pennsylvania --due solely to the efforts of the Passengers -- was headed to the US Capitol. Congress could have been destroyed that day, with no check left to restrain the President.

Congress should take back its power to control who commands the militia/National Guard -- as a control on Presidental actions.

Don, you think something stinks? Try this:

The Post has a nice story on the nominee for Immigration and Customs (part of Homeland Security http://www.washingtonpost.com/wp-dyn/content/article/2005/09/19/AR2005091901930.html) , a post one would think would be very important these days. Well, this 36 year old has the following credentials besides being a lawyer, with NO customs/immigration experience and little management experience:

Her uncle is Air Force Gen. Richard B. Myers, the departing chairman of the Joint Chiefs of Staff. She married Chertoff's current chief of staff, John F. Wood, on Saturday.

This has got to stop and only Congress has oversight over who the president puts into these important positions. The Senate is currently questioning this woman to see if she is qualified. If the Senate passes her then nothing has been learned.

Something really stinks here.

1) Homeland Security's National Response Plan explicitly called for a "Proactive Federal Response to a Catastrophic Event" like Katrina --yet that response did NOT get executed for reasons which the White House refuses to explain.

Today, we hear in the New York Times that
Bush has appointed Frances Fragos Townsend, his "domestic security advisor" , to look into the federal screwup in New Orleans. What the stupidass New York Times does not realize is that Ms Townsend is actually
" Assistant to the President for Homeland Security and Counterterrorism ". WHitehouse.gov notes that "Ms. Townsend chairs the Homeland Security Council and reports to the President on United States Homeland Security policy and Combating Terrorism matters". See http://www.whitehouse.gov/government/townsend-bio.html

In other words, the White House official most directly responsible for the New Orleans screwup is now in charge of investigating what went wrong.

2) With regard to law enforcement, Annex ESF #13 (Emergency Support Function #13) in the Plan explicitly calls for the federal government to handle law enforcement if local and state law enforcement are overwhelmed --but states that the FIRST step in the process is to provide National Guard troops to the state governor. According to news reports, the governor of New Mexico offered troops from his state to the Louisiana governor even before Katrina hit, but the transfer was delayed for days due to lack of authorization from Washington.

Can someone explain to me why our active duty military units can be put under the command of FOREIGN military officers in UN operations but federalized National Guard troops can't be put under OPCON (operational control) of a state governor?

3) Our law gives even CIVILIANS the right to use deadly force (i.e., to shoot to kill) in order to protect the lives of themselves and others . So can someone explain why military and National Guard relief workers, carrying M16s, could be held backing from entering New Orleans by a few raggedy ass looters? Why couldn't rules of engagement have been given allowing workers to shoot in self defense without giving the soldiers law enforcement duties --e.g., chasing down and arresting looters?

This is a terrific new column.

Thanks...

You got it. Soldiers, sailors, airmen, and Marines don't want this. But, HOMELAND SECURITY geniuses do.
Let's quote a US State Adjutant General (National Guard chief): If we have another Beslan school siege, we'll just have a National Guard A-team fast rope in to neutralize the threat." Yeah, it will go real well. But, of course, as with every military event, "it's classified", in this case, as to the ensuing slaughter. We have cops and FBI teams for counterterrorism and hostage ops, cop and FBI bomb techs for bombs and WMD, and firefighters and EMS and rescue teams for fires, hurricanes and floods. Let's go WILD, Congress: EMPOWER THEM WITH MILITARY TOYS (not weapons). Have the miitary transport them, for one thing. How many of the above civilian first responders have tactical transport helicopters, small boat transport, etc. Only the Coast Guard, as far as I can tell.
Do you want a 19 year old Marine, hardened by Iraq, to take down your kid's school from a hostage situation? He would die for your kid, no doubt, but he doesn't have the skills and training and grey hairs to lead that op. But let a Marine or soldier be the crew chief on the rotary wing that could transport your SWAT and bomb techs, and the job will get done. Do you want an Air Force guy telling your ground operators what to do? That's what the dude above, and, by the way, Dick Myers, have experience in, fighters and fixed wing. The experienced military NCOs and officers don't want PCA repealed. Even Bush says, LOGISTICS. Generals talk logistics. Amateurs talk tactics. IT'S THE TRANSPORT AND LOGISTICS WE NEED.