At 03:53 PM 10/5/01 -0700, Tim May wrote:
It's called "Posse Commitatus," and it's clear that troops cannot be used on U.S. soil.
Tim knows all about this, of course, but for the benefit of the folks who may not, here's an excerpt from an article I co-authored a few years ago. -Declan [...] With the end of the cold war, it would have made sense for the U.S. military to shrink. Retired Army chief of staff Edward Meyer told a Washington Post reporter in 1989 that "the end of the cold war makes it inevitable that the Army will shrink far below the 772,000 on duty today." It didn't. Supporters of an expansive U.S. military have spent the last decade finding something for it to do. In the 1980s, Congress amended the Posse Comitatus Act of 1878 which restricts the use of troops to enforce civilian laws to let the president enlist the military in the War on Drugs. President Reagan in 1986 signed a national security decision directive declaring drug trafficking a threat to the security of the United States. The framers of the Constitution opposed standing armies in general, and especially their use for any purpose other than defending the country against foreign enemies. It was the arrest of civilians by the British army, quartering of soldiers in private homes, and similarly incendiary tactics that provided the tinder that sparked the American Revolution. Less than a century later, President Lincoln usurped constitutional authority in well-chronicled ways. His justification: The inherent power of the commander-in-chief and his duty to "take Care that the Laws be faithfully Executed." During the Civil War and Reconstruction, the arrest and trial of civilians by military and civilian courts and the impotence of civilian courts when the military refused to respect orders of habeas corpus led to the passage of the Posse Comitatus Act. Since that time, understanding of the dangers of deploying the military in the domestic arena has diminished. Francis Mullen, administrator of the Drug Enforcement Agency, once casually dismissed civil libertarians' concerns about potential abuses if the military joined law enforcement. "There is sufficient oversight on the part of Congress and others," he told a Newsweek reporter, "to deter infringement on individual liberties." A Democratic congressman characterized the Posse Comitatus Act as a "sinful, evil law." Military leaders appear more aware of the danger of deploying forces domestically. Marine Major General Stephen G. Olmstead, deputy assistant secretary of defense for drug policy, warned a Senate subcommittee in 1987 that calling out the military to fight the drug war within the U.S. would be unwise. "One of [America's] greatest strengths is that the military is responsive to civilian authority and that we do not allow the Army, Navy, and the Marines and the Air Force to be a police force. History is replete with countries that allowed that to happen. Disaster is the result." Use of military procedure by FBI agents proved disastrous at Ruby Ridge. Vicky Weaver was murdered in part because the officers who shot her were governed by military rules of engagement. They allow troops to shoot an enemy on sight a far cry from the rules controlling domestic law enforcement. At Ruby Ridge the rules of engagement let officers fire at any armed adult, rather than engage in usual threat assessment. Even though using the military to perform civilian functions is extraordinarily dangerous, the Posse Comitatus Act has gradually been eroded. The Stafford Act of 1984 allows the military to help during natural disasters. After a natural disaster, a governor can ask the president to declare a state of emergency. Once it declares an emergency, FEMA can deploy soldiers on active duty. In August of 1992, the Army was deployed in South Florida to respond to Hurricane Andrew, and a month later on the island of Kauai after Hurricane Iniki. Since the Posse Comitatus Act remained in effect during this time, soldiers could not enforce the law, arrest or detain civilians, or serve search warrants. In South Florida the soldiers doled out aid to citizens and illegal immigrants alike, no questions asked. Active-duty soldiers were not permitted to provide security at relief centers occupied by civilians. When it comes to the use of troops to restore order during riots, however, the president can suspend the Posse Comitatus Act at the stroke of a pen. The act doesn't cover soldiers deployed as authorized by the Constitution or exempted from the act by statute. Defense Department regulations* outline one of the larger loopholes. It allows the use of soldiers "to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal governmental functions." The reality? The president can deploy troops whenever he feels like it. President Bush did just this in response to the the Los Angeles riots. On April 29, 1992, the jury released its verdict in the Rodney King trial. A wave of riots followed. On May 1, 1992, California asked the president for aid; Bush responded with an executive order allowing the secretary of defense to call out the Army. [...] * DoD Directive 3025.12.