Thursday, October 16, 2008

Maybe he's a terrorist -- at least he's not a Republican!

The good news, if you're John McCain? All the talk about Bill Ayers seems to be sinking in with at least some voters. The bad news? They don't care.

"Well, I don't know much about this terrorist group Barack used to be in with Weather guy but I'm sick of paying for health insurance at work and that's why I'm supporting Barack."

That's a woman in her late 50s, an anti-abortion Democrat, who voted for George W. Bush in 2000 in a state in the upper Midwest, speaking in a focus group run by a Republican consultant. The consultant, who e-mailed the Politico's Ben Smith about it afterward, was apparently testing some incredibly nasty attack ad about Obama for an independent group.

This is exactly the demographic group that all the Ayers noise is supposed to be scaring away from Obama; the theory is they'll conclude Obama is just too foreign, or too radical, or both, to be president. Apparently McCain's campaign has succeeded in getting people to think Obama is "palling around with terrorists," as Sarah Palin said. But that still isn't enough to get them to vote for McCain.

As McCain might say, it's time for a little straight talk, my friends: It is a very bad sign for your campaign when people think your opponent was in a terrorist group, but they plan to vote for him anyway.

Monday, October 13, 2008

Why is a U.S. Army brigade being assigned to the "Homeland"?

Several bloggers have pointed to this obviously disturbing article from Army Times, which announces that "beginning Oct. 1 for 12 months, the [1st Brigade Combat Team of the 3rd Infantry Division] will be under the day-to-day control of U.S. Army North" -- "the first time an active unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities." The article details:

They'll learn new skills, use some of the ones they acquired in the war zone and more than likely will not be shot at while doing any of it.

They may be called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive, or CBRNE, attack. . . .

The 1st BCT's soldiers also will learn how to use "the first ever nonlethal package that the Army has fielded," 1st BCT commander Col. Roger Cloutier said, referring to crowd and traffic control equipment and nonlethal weapons designed to subdue unruly or dangerous individuals without killing them.

"It's a new modular package of nonlethal capabilities that they're fielding. They've been using pieces of it in Iraq, but this is the first time that these modules were consolidated and this package fielded, and because of this mission we’re undertaking we were the first to get it."
The package includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and, beanbag bullets.

"I was the first guy in the brigade to get Tasered," said Cloutier, describing the experience as "your worst muscle cramp ever -- times 10 throughout your whole body". . . .

The brigade will not change its name, but the force will be known for the next year as a CBRNE Consequence Management Response Force, or CCMRF (pronounced "sea-smurf").For more than 100 years -- since the end of the Civil War -- deployment of the U.S. military inside the U.S. has been prohibited under The Posse Comitatus Act (the only exceptions being that the National Guard and Coast Guard are exempted, and use of the military on an emergency ad hoc basis is permitted, such as what happened after Hurricane Katrina). Though there have been some erosions of this prohibition over the last several decades (most perniciously to allow the use of the military to work with law enforcement agencies in the "War on Drugs"), the bright line ban on using the U.S. military as a standing law enforcement force inside the U.S. has been more or less honored -- until now. And as the Army Times notes, once this particular brigade completes its one-year assignment, "expectations are that another, as yet unnamed, active-duty brigade will take over and that the mission will be a permanent one."

After Hurricane Katrina, the Bush administration began openly agitating for what would be, in essence, a complete elimination of the key prohibitions of the Posse Comitatus Act in order to allow the President to deploy U.S. military forces inside the U.S. basically at will -- and, as usual, they were successful as a result of rapid bipartisan compliance with the Leader's demand (the same kind of compliance that is about to foist a bailout package on the nation). This April, 2007 article by James Bovard in The American Conservative detailed the now-familiar mechanics that led to the destruction of this particular long-standing democratic safeguard:

The Defense Authorization Act of 2006, passed on Sept. 30, empowers President George W. Bush to impose martial law in the event of a terrorist "incident," if he or other federal officials perceive a shortfall of "public order," or even in response to antiwar protests that get unruly as a result of government provocations. . . .

It only took a few paragraphs in a $500 billion, 591-page bill to raze one of the most important limits on federal power. Congress passed the Insurrection Act in 1807 to severely restrict the president's ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened these restrictions, imposing a two-year prison sentence on anyone who used the military within the U.S. without the express permission of Congress. But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act.

Section 1076 of the John Warner National Defense Authorization Act for Fiscal Year 2007 changed the name of the key provision in the statute book from "Insurrection Act" to "Enforcement of the Laws to Restore Public Order Act." The Insurrection Act of 1807 stated that the president could deploy troops within the United States only "to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy." The new law expands the list to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition" -- and such "condition" is not defined or limited. . . .

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 . . . .

Section 1076 was supported by both conservatives and liberals. Sen. Carl Levin (D-Mich.), the ranking Democratic member on the Senate Armed Services Committee, co-wrote the provision along with committee chairman Sen. John Warner (R-Va.). Sen. Ted Kennedy openly endorsed it, and Rep. Duncan Hunter (R-Calif.), then-chairman of the House Armed Services Committee, was an avid proponent. . . .

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." As is typical, very few members of the media even mentioned any of this, let alone discussed it (and I failed to give this the attention it deserved at the time), but Congressional Quarterly's Jeff Stein wrote an excellent article at the time detailing the process and noted that "despite such a radical turn, the new law garnered little dissent, or even attention, on the Hill." Stein also noted that while "the blogosphere, of course, was all over it . . . a search of The Washington Post and New York Times archives, using the terms 'Insurrection Act,' 'martial law' and 'Congress,' came up empty."

Bovard and Stein both noted that every Governor -- including Republicans -- joined in Leahy's objections, as they perceived it as a threat from the Federal Government to what has long been the role of the National Guard. But those concerns were easily brushed aside by the bipartisan majorities in Congress, eager -- as always -- to grant the President this radical new power.

The decision this month to permanently deploy a U.S. Army brigade inside the U.S. for purely domestic law enforcement purposes is the fruit of the Congressional elimination of the long-standing prohibitions in Posse Comitatus (although there are credible signs that even before Congress acted, the Bush administration secretly decided it possessed the inherent power to violate the Act). It shouldn't take any efforts to explain why the permanent deployment of the U.S. military inside American cities, acting as the President's police force, is so disturbing.

Bovard: "Martial law" is a euphemism for military dictatorship. When foreign democracies are overthrown and a junta establishes martial law, Americans usually recognize that a fundamental change has occurred. . . . Section 1076 is Enabling Act-type legislation—something that purports to preserve law-and-order while formally empowering the president to rule by decree.

As the recent militarization of St. Paul during the GOP Convention made abundantly clear, our actual police forces are already quite militarized. Still, what possible rationale is there for permanently deploying the U.S. Army inside the United States -- under the command of the President -- for any purpose, let alone things such as "crowd control," other traditional law enforcement functions, and a seemingly unlimited array of other uses at the President's sole discretion? And where are all of the stalwart right-wing "small government conservatives" who spent the 1990s so vocally opposing every aspect of the growing federal police force? And would it be possible to get some explanation from the Government about what the rationale is for this unprecedented domestic military deployment (at least unprecedented since the Civil War), and why it is being undertaken now?

Wednesday, October 8, 2008

Posse Comitatus: The What & The Remembering Why

President Bush, showing in full bloom the instincts that make it clear that whatever he is politically he is not a conservative of the traditional limited-government or Constitutionalist variety, has lofted a trial balloon to promote the idea of having the military play a more extensive, earlier and perhaps even primary role in handling future disasters. The fact that he has mentioned it more than once,and that press secretary Scott McClellan has discussed both that idea and the idea of bypassing governors when disaster strikes, suggests that the notion is not just something that popped into his head on the spur of the moment.

The president (like most presidents but to an exaggerated degree) almost always seeks to expand and enhance the power of the national government when an opportunity presents itself in which such power grabs can seem like a relatively logical response. We see a pattern explained most thoroughly by Robert Higgs in his now-classic (at least in certain circles) book, Crisis and Leviathan.

At least during the 20th century Higgs discusses, federal power has expanded during times of crisis – mostly wars but also economic emergencies like the Great Depression– when such expansion seemed at least tolerable, even plausible, to most Americans. When a war or crisis ended, gestures were made toward returning to a constitutional republican form of governance by offloading some of the "emergency" powers. But some of the extraordinary powers remained in place and became not only permanent, but part of the status quo that seemed "normal" to most Americans once they got used to it – or simply the way things are for younger people or those without much sense of history.

Thus over the course of the century not only has the power of the central government expanded exponentially, but a central government whose power and prerogatives the founders would not recognize, and which would frighten most of them, has come to seem just the way things are – indeed, the very definition of "freedom and democracy" that most Americans assume we have and which is the best and freest form of government possible. So more power for the feds has become the "natural" first-reach instinct of almost every national politician of either major party in the face of a perceived crisis (even a crisis arguably caused or at least contributed to by bloated government, as I have argued both 9/11and Katrina were).


The ongoing recognition of denizens of the state apparatus that, as Randolph Bourne recognized so memorably during World War I, that "war is the health of the state" has ensured that we have had a plenitude of military conflicts during the century just past. The habit of declaring "war" on such long-term and perhaps insoluble problems as poverty and government-disapproved drug use has not only compounded the trend, it has contributed to an ongoing militarization of society.

Whenever you see a police response to a major (or minor) criminal incident these days, the gendarmes assembled don't look like the friendly cop on the beat some of us remember from (possibly) more innocent days. They look like armored warriors, even the imperial "storm troopers" of the Star Wars movies, with their body armor, automatic weapons, shields, and tight formations. No wonder some neighborhoods in America feel more like occupied territory than like places where the people rule themselves.

In a crisis like the aftermath of Katrina in New Orleans, the presence of troops can seem comforting. Even though it is now widely acknowledged that the early stories about murders, rapes and gang violence in the Superdome and convention center were outright false, it was a stressful time. Violence, hunger, fear and uncertainty, compounded by lack of food and water and the knowledge that everything you owned was probably destroyed, proved iconic to an American TV viewership safe in their own homes. So most Americans, including those stranded or trapped, welcomed the people in military uniforms at the scene of a disaster.

And so Americans became a little more accustomed to seeing people on the streets with military uniforms and automatic weapons or imposing vehicles, and beginning to process that presence as not only normal but perhaps even comforting.

This may not mean we'll be pushed into a military dictatorship the day after tomorrow. But it makes the prospect just a bit more thinkable.

It is important for Americans, then, to remember or learn why we have a Posse Comitatus law and how it has served to protect American freedoms and our constitutional order.


Posse Comitatus is a Latin term meaning "power of the county." Black's Law Dictionary defines it this: "Posse Comitatus: the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases as to aid him in keeping the peace, in pursuing and arresting felons, etc. Besides the old English common law of which Black was probably the prime exponent, Americans catch a whiff of the Old West in the concept. Sheriffs in real history probably didn't gather a posse to go after bad guys as often as happened in Hollywood movies. But it happened.

The idea that every able-bodied person is ultimately responsible for keeping peace, that it is not solely the task of designated professionals, especially when something approaching a crisis is imminent, is not only part of our heritage as Americans. It is a bedrock of republican liberty, not just in America but wherever it has been reasonably successful.

The Posse Comitatus law was passed in 1878, not only in response to some of the abuses committed by federal troops during the Reconstruction period in the South after the Civil War, but more specifically after many suspected that federal troops influenced the election of 1876, in which Rutherford B. Hayes was chosen by the Electoral College and federal troops ran some polling places in the South. Specifically, Hayes won the disputed electoral votes of South Carolina, Louisiana and Florida, states where President U.S. Grant had sent troops as a posse comitatus by federal marshals at the polls.

The use of federal troops in an election, the most central event in any democracy, bothered many in Congress who didn't think it was stolen (or perhaps welcomed the theft). The Posse Comitatus Act was enacted in 1878. It reads as follows (as revised in 1956):
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned for not more than two years, or both."

A regulation by the Department of Defense includes the Navy and the Marine Corps as bound by the act. The Coast Guard, which until the creation of the Department of Homeland Security was under the Department of Transportation, has always had some domestic law enforcement responsibilities, even though it has some quasi-military functions as well.


What the act does is to ensure that the military is not used for domestic law enforcement. This is an important safeguard for individual liberty and citizens' rights. When military forces are used to enforce domestic laws on citizens, the danger of a military or military-dominated dictatorship is a constant danger.

The fact that the law was passed in 1878 does not necessarily mean that it was only then that U.S. citizens abruptly discovered the potential dangers of military domination. The attitudes of the colonists who eventually broke away from Great Britain was profoundly influenced by the fact that the British quartered troops forcefully in the homes of civilians and that the military often operated independently of civilian authorities. The Declaration of Independence also attacked the very idea of keeping of a standing army in time of peace.

The Articles of Confederation restricted the raising of armies and navies and reserved the appointment of officers below the rank of general to the states, thus limiting the power of the central government. The constitution mandated civilian control of the military, in part by making a civilian, the president, the commander-in-chief, and in part through governmental structures. It restricts military appropriations to two years and empowered Congress to regulate the armed forces. Some aspects of the Bill of Rights, including the Fourth Amendment protection against unwarranted search and seizure, were also inspired by abuses by the British military during the colonial period.

Prior to the Civil War, many Americans opposed having a standing army at all, as Arthur Ekirch's too-little-known book, Civilian and Military: A History of the Anti-Militarist Tradition in the United States documents in detail. However, as this paper shows, authorities gradually began to use the military domestically. The Fugitive Slave Act of 1850 permitted federal marshals to call on the military to help return slaves to their "owners." In Kansas, federal troops were used to quell disorder between pro-slavery and anti-slavery mobs. The heavy military presence in the South after the war increased distaste for military rule over civilians. The use of the military to guard polling stations in the election of 1876 was a final straw.


All this makes sense in a government of laws. Military people, as any of them will be pleased to inform you, are trained to kill people and break things. Within the confines of strategy and tactics, that's how you win wars. Civilian law enforcement officers are expected not only to go after bad guys, but to remember that they are considered innocent until proven guilty and to respect their rights – including rights like Miranda warnings that have been added since the Posse Comitatus Act was passed. They are different kinds of jobs.

Nobody has been convicted under the PCA and few have been prosecuted, but it has protected our liberties nonetheless. The downside of this, however, is that there is very little case law to help courts interpret the law. The little existing case law, however, suggests that the law is flexible enough to permit the use of the military in times of riot or natural disaster. At first the test was active-versus-passive, that is the military could furnish equipment and supplies but couldn't actively police Americans. In 1975, led by President Richard Nixon - who was being beseiged by anti-Vietnam war protests - a somewhat looser test emerged, whether "military personnel subjected ... citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature." In other words, military actions used against unarmed U.S. civilians.

Prohibiting the military from engaging in civilian law enforcement not only is a protection from the danger of a military dictatorship, it also protects the effectiveness and integrity of the military. If the military were asked on a regular basis to engage in civilian law enforcement (or even disaster relief) it would soften the warrior mentality and take resources and training time from the primary mission of being ready to fight an actual war. Weakening the Posse Comitatus Act, as has been suggested before by politicians of both parties,would almost certainly reduce the respect citizens have for the military, which has gradually increased since the act was passed.

Posse Comitatus is a Latin phrase that sounds obscure to most people, so it might not seem like a big thing to amend the act to make it easier to deploy the military in essentially civilian duties. But it is a big thing. The president's call to consider changes so far seems to have had little resonance, as have earlier calls. But Bush is a stubborn man who sometimes confuses stubbornness with integrity or commitment to principle. It serves those of us who prefer that this country not be governed like a banana republic to appreciate the Posse Comitatus Act, communicate its importance to others, and be on the alert for efforts to change it.