Adios posse comitatus


Richard Moore

Original source URL:

February 19, 2007
Making Martial Law Easier

A disturbing recent phenomenon in Washington is that laws that strike to the 
heart of American democracy have been passed in the dead of night. So it was 
with a provision quietly tucked into the enormous defense budget bill at the 
Bush administration¹s behest that makes it easier for a president to override 
local control of law enforcement and declare martial law.

The provision, signed into law in October, weakens two obscure but important 
bulwarks of liberty. One is the doctrine that bars military forces, including a 
federalized National Guard, from engaging in law enforcement. Called posse 
comitatus, it was enshrined in law after the Civil War to preserve the line 
between civil government and the military. The other is the Insurrection Act of 
1807, which provides the major exemptions to posse comitatus. It essentially 
limits a president¹s use of the military in law enforcement to putting down 
lawlessness, insurrection and rebellion, where a state is violating federal law 
or depriving people of constitutional rights.

The newly enacted provisions upset this careful balance. They shift the focus 
from making sure that federal laws are enforced to restoring public order. 
Beyond cases of actual insurrection, the president may now use military troops 
as a domestic police force in response to a natural disaster, a disease 
outbreak, terrorist attack or to any ³other condition.²

Changes of this magnitude should be made only after a thorough public airing. 
But these new presidential powers were slipped into the law without hearings or 
public debate. The president made no mention of the changes when he signed the 
measure, and neither the White House nor Congress consulted in advance with the 
nation¹s governors.

There is a bipartisan bill, introduced by Senators Patrick Leahy, Democrat of 
Vermont, and Christopher Bond, Republican of Missouri, and backed unanimously by
the nation¹s governors, that would repeal the stealthy revisions. Congress 
should pass it. If changes of this kind are proposed in the future, they must 
get a full and open debate.

Copyright 2007 The New York Times Company

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