The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
JAMES MADISON, “THE FEDERALIST NO. 45”
Blanco had said no, the military had been a reluctant accomplice to executive agent coup, homeland security was disorganized and befuddled, and federal law enforcement was on autopilot. President Bush flew away from New Orleans seething. “I was as frustrated as I had been at any point in my presidency,” he recalled.1
Posse Comitatus—Latin for “force of the county”—is easy to cite and hard to comprehend. The term has its origins in fifteenth-century England and is simply defined in common law to refer to all able-bodied men on whom a sheriff can call to assist in carrying out his duties.2 Yet there is nothing simple about Posse Comitatus as a US statute and an American legend; it has come to be a ubiquitous political touchstone, a perennial favorite of right and left, from survivalists and states’ rights patriots to civil rights and antimilitary activists, all of whom argue similarly and simply that the Civil War–era law prohibits “the military” from domestic duties. And not only that, but that it “is a pillar of freedom designed in complete accordance with the views expressed by the founding fathers.”3
Posse Comitatus, however, was never the codification of some American ideal. All during the period preceding the Civil War, “governors, sheriffs, US marshals, revenue agents, and other persons in authority frequently requested and received the assistance of detachments of troops, employed as a posse, to assist in carrying out their duties,” both in the North and in the South.4 The law is a post–Civil War law, infused with racist overtones and emblematic of a country searching for a uniting center.
After the Confederacy was defeated, the Union Army—the federal US Army—occupied the South, where it quelled violence against free blacks and Unionist whites alike and operated military tribunals where civil courts failed or refused to enforce civil law.5 As Reconstruction dawned, recalcitrant Southern states started to pass “Black Codes,” effectively enforcing exclusion; Congress passed a weak civil rights law in 1866, followed by the Fourteenth Amendment to the Constitution, which provides all citizens equal protection of the laws. Ratification of the amendment became the provision for readmission of states to the Union. What followed then was true martial law. Army General Order No. 44, issued in July 1866, empowered federal troops to arrest anyone involved in crimes aimed at “citizens and inhabitants of the United States” when local law enforcement failed to do so;6 and the occupying army was authorized “to suppress insurrections, disorders, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals.”7
Martial law lasted for three years, only relinquished after most of the Southern states pledged adherence to the Constitution and were readmitted to the Union.8 Yet the postwar battle didn’t abate, and after the Ku Klux Klan emerged and undertook an unprecedented terror campaign in South Carolina and Georgia, federal troops were again called in to suppress waves of violence, and the army played a significant role in vanquishing the Klan.9 As the presidential election of 1876 approached, radical Republicans contested the influence of states’ rights Democrats, and violence again increased: blacks were harassed and flogged, elected officials were assassinated. In South Carolina, Democrats proclaimed they would triumph against Republicans “if we have to wade in blood knee-deep.”10 The army was again called out as a posse comitatus, and troops were stationed at polling places.
Democratic Party candidate Samuel J. Tilden, governor of New York, won the popular vote and was leading in the electoral vote, with the exception of Florida, Louisiana, and South Carolina, heavily occupied by federal troops and under Republican control. The official count finally put Republican Party candidate Rutherford B. Hayes up by one electoral vote. Both sides claimed victory, and voting in the three states came under closer scrutiny. A special congressional commission was created to resolve the impasse. Meanwhile, President-elect Hayes negotiated a backroom deal: he would be named president; in return, he promised to remove all federal troops from the South and not interfere in their internal affairs in the future.11 It was the end of any kind of Reconstruction and the beginning of an almost century-long battle for voting and civil rights for blacks.
What also followed was a vow by the Democratic-controlled House of Representatives to pass a law prohibiting federal troops from ever again getting involved in local law enforcement, one Southerner calling the use of such troops “tyrannical and unconstitutional.” At first the Democrats failed to get an amendment through a Republican Senate in the 1877 army appropriations. The next year, though, with more Democrats in Congress and an alliance forged with Northern legislators who bristled at the use of federal troops to crush labor riots, Congress passed an amendment to the 1878 appropriations bill placing restrictions on the use of the military as a posse comitatus. It became known as the Posse Comitatus Act, and provided that:
It shall not be lawful to employ any part of the Army of the United States… for the purpose of executing the laws, except on such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by any act of Congress.…12
The law turned the concept of posse comitatus, meant to bolster the nation’s ability to uphold the law and democratic ideals, into the symbol of oppression and tyranny. (As one comprehensive army historical study says, it was “almost certainly intended as one last bulwark against federal meddling in the internal affairs of the white supremacist South.”13) A violation of Posse Comitatus and the image of the federal government as a tyrannical oppressor has become one of the most powerful myths in the nation.
Like the Bible or the Constitution itself, Posse Comitatus invokes outsize emotions. “Most individuals think they know what the Posse Comitatus Act allows and disallows; most of them are wrong,” says the foreword to the most comprehensive post-Katrina military study of the subject.14 “Not only is the law confusing to pundits and commentators,” another military officer writes, “it is confusing to soldiers of all ranks, as well as political leaders in Congress and the executive branch. Even military lawyers, who have the luxury of spending time in academic settings studying the Act, have found it to be confusing.”15 “The complication of PCA [Posse Comitatus Act] requires volumes of exceptions and DOD instructions to cover all of the dos and don’ts as we tap dance around the law,” says another.16
The truth is that the president has wide constitutional authority to take military action to do almost all of what is restricted in Posse Comitatus; the law itself makes provision for presidential powers granted in Article IV of the Constitution, to “call into Federal Service such of the militia of the other States, and use such of the [federal] armed forces, as he considers necessary to enforce the laws and suppress the rebellion.” Posse Comitatus also allows for the use of federal troops as otherwise authorized by statute, and over the years Congress has not been shy about passing subsequent legislation giving the president many powers. Today, federal troops are authorized by law to conduct domestic law enforcement under the disaster relief and protection of public health and safety provisions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988.17 Other legislative authority provides for certain assistance to customs officials, as part of the so-called war on drugs; in response to acts of terrorism involving weapons of mass destruction; in the execution of quarantine laws; in the protection of designated individuals, including members of Congress and foreign dignitaries; and during designated “National Security Special Events,” which can be as diverse as a presidential inaugural, the Democratic or Republican Party’s nominating convention, or a Super Bowl game.18
An intrinsic exception to Posse Comitatus is also called military purpose doctrine, which “allows the military to enforce civilian laws on military installations, to police themselves, and to perform their military functions.…”19 Commanders have the right to protect themselves, their properties, military interests, guests of the military, and classified information; protect and enforce law and regulations on military property; authorize military criminal investigators to conduct investigations, even of civilians; and they can assist civil law enforcement, regardless of the direct benefit, if there is a foreign policy or military connection to such action.20 There is also the doctrine of “immediate response,” allowing military commanders to act “to save lives, prevent human suffering, and mitigate great property damage” in imminently serious conditions.21
Each of these allowances comes with restrictions. Defense Department regulations say that immediate response can only be invoked if local authorities are unable to handle the situation, or if some incident involves chemical, biological, radiological, nuclear, or other high explosives.22 Military commanders can make emergency decisions in the course of immediate response to assist local law enforcement in suppressing civil disturbances, but again, only “if the commander has exhausted all resources to obtain prior authorization” from the president.23 And there are constraints on what federal troops can do even if they do become involved, including restrictions on active participation in search and seizure except under extraordinary circumstances, and there are stringent rules for the use of force, the domestic equivalent of overseas rules of engagement. Still, the Constitution, Congress, and the courts have granted so many exceptions to Posse Comitatus that the Army War College teaches prospective general officers “that the law essentially gives the President all the authority he needs to employ DOD forces inside the US.”24
The most significant statutory concession is the Insurrection Act mentioned by David Addington in his e-mail to Jim Haynes, which is actually a set of statutes predating Posse Comitatus that originally codified the president’s constitutional authority to see to it that the laws are faithfully executed. Found in its earliest iteration in the Uniform Militia Act of 1792, a law that permitted calling forth the militia to execute the laws of the Union, it was relied upon by President George Washington to suppress the Whiskey Rebellion despite the opposition of Pennsylvania’s governor.25
The current statute was enacted in 1807 and remained in effect on the books, with very little change, for exactly 200 years.26 (President Grant used his authority under the statutes to send federal troops to restore order in Louisiana, Alabama, Arkansas, and South Carolina before the presidential election of 1876.) It authorizes the president to order the use of federal troops to suppress domestic violence that hinders execution of state or federal law or otherwise deprives citizens of their constitutional rights in three circumstances:
The first (Section 331) permits use of federal troops to suppress an insurrection in a state upon the request of that state’s governor or legislature, and is meant to fulfill the federal government’s responsibility to protect against “domestic violence.” This provision was used during Hurricane Hugo in 1989 to suppress widespread looting in the US Virgin Islands, and during the 1992 “Rodney King” riots in Los Angeles.27
The second (Section 332) permits the president, on his own initiative, to suppress rebellion or enforce federal laws if he believes that “unlawful obstructions, combinations, assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”
The third (Section 333) permits the president to take such measures as he considers necessary to suppress an insurrection, domestic violence, unlawful combination, or conspiracy, if such disturbances hinder the execution of the laws of that state. It also applies to the laws of the United States within the state particularly when some of, or a class of, its citizens are deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, particularly if the constituted authorities of that state are unable to, fail to, or refuse to protect that right, privilege, or immunity, or to give that protection. This provision was the basis for the use of federal troops during the civil rights era, such as Eisenhower’s actions in Arkansas, as mentioned earlier.
Section 334 of the Act, the fourth provision, requires the president to issue a proclamation ordering insurrectionists to “disperse and retire peaceably to their abodes” before he can employ any of the previous three sections.28 This was precisely the draft proclamation being prepared by the executive agents before Hurricane Katrina made landfall, not to subvert or suspend Posse Comitatus, as many, including many in the military, would argue. That is because the Insurrection Act enforces constitutional executive authority. Even if, against the wishes of the governor, federal troops were sent to New Orleans to restore order, to see to it that no one’s civil rights were being infringed by the temporary breakdown in governance and law enforcement, many would no doubt have howled about federal tyranny, but it was unambiguously within the president’s lawful power even if it would have been a very questionable call.29
Hurricane Katrina was one of the largest and most destructive natural disasters in modern American history. In the end, though, considering the 120,000 or more trapped in the floodwaters, given the gravity of the reports of chaos and violence, and given the muddle of federal response, the official death count was surprisingly low—1,096 in Louisiana, 228 in Mississippi, and two in Alabama30—low, that is compared to, say, the Galveston hurricane of 1900, which claimed 8,000 lives, which at the time was 20 percent of the entire population of the city.31 A majority of the Louisiana deaths—roughly 80 percent—came from the New Orleans metropolitan area. As many as 10 percent of those 800 died in nursing homes, some allegedly abandoned by their caretakers; throughout the state, approximately 70 percent of the victims were older than sixty.32
More than 1,000 deaths is hardly a welcome statistic. But Katrina is not the test case for the executive agents to use to affirm that the Constitution suffocates disaster response and survival, or that antiquated rules stand in the way. “When you can get helicopters there within twenty-four to forty-eight hours of the event, that makes you virtually a first responder,” says Paul McHale, the homeland defense assistant secretary during Katrina33 and a former member of Congress.34 Over a twelve-day period, more than 72,000 men and women in uniform participated in the Katrina response—the largest in-country use of forces since the Civil War, the military proudly claimed. Just over 51,000 National Guardsmen responded under state control.35
Digging deeper, other than the Coast Guard, the federal presence becomes increasingly irrelevant. Over 60,000 people were physically rescued after landfall.36 A little more than half were rescued by the Coast Guard; the Louisiana National Guard rescued more than 25,000. FEMA claims to have rescued some 6,500, the rescuing done by volunteer urban search and rescue teams that came in from around the country.
More specifically, the Department of Defense says it rescued 2,911 people,37 two-thirds of them by the helicopters of the USS Bataan, a navy amphibious ship that moved on its own initiative and coordinated rescues locally with the Coast Guard from the earliest days.38 By the morning when President Bush announced the deployment of the 82nd Airborne Division, Louisiana general Landreneau said that his National Guard forces had successfully taken down the last bastion of civil unrest in the city.39 Honoré agreed.
Twenty thousand federal troops eventually served under Joint Task Force Katrina, but in addition to the 7,200 soldiers and marines whom the president mustered for humanitarian duty after the worst had passed, that number included every pilot and crewman, everyone on a navy ship, every communicator and logistician, every staffer, and in fact everyone in the five-state “joint operating area” assigned to the effort, most of them high and dry. It would be a mistake to imagine that the federal military saved the day. And it would be an even more pernicious error to accept the conventional wisdom of anarchy, insurrection, or insurgency. The pre-landfall evacuation from New Orleans, despite all the criticisms, was twice what the metropolitan area had ever produced.40 While the city was far from peaceful, its occupants were safer and more disciplined than anyone reported or imagined at the time; some 90 percent of the New Orleans police force stayed on duty, despite the loss of their own homes and concerns about their own families, despite police sleeping in their cars, exhausted, physically and mentally, and 911 operators who attempted to organize assistance despite virtually no communications or support.41 For all of the horror stories, there were six deaths at the Superdome; none were crime-related. And after a week of hell on earth, there was only one confirmed incident of an attempted violent crime.42 Four bodies were found at the largely unsupervised and unguarded convention center nearby.43 The New Orleans coroner estimated eight gunshot victims in the storm and its immediate aftermath; “that’s not even a good Saturday night in New Orleans,” he said.44
“The third provision of the [Insurrection] Act,” academics Michael Greenberger and Arianne Spaccarelli later wrote, “is of particular interest in the context of a catastrophe such as Hurricane Katrina, during which a State is unable to provide the basic guarantees of government and public safety to a large number of its residents. In addition to the widespread looting and privations experienced by ordinary citizens left behind in New Orleans, the legal system in the city and state was so devastated by the shortage of police, prison guards, attorneys, and resources that thousands of individuals detained in its jails were deprived of even the basics of constitutional criminal process. Such a governmental collapse arguably deprives citizens of their constitutional right to equal protection of the laws and, if so, justifies unilateral federal intervention under the Insurrection Act.”45 Were it only the case that this was Washington’s motivation.
At about 3:30 in the afternoon on Tuesday, March 10, 2009, twenty-eight-year-old Michael McLendon of Kinston, Alabama, started an insane killing spree, shooting his mother before burning down the house they shared, then getting into his red Mitsubishi with an arsenal of guns, heading east to the nearby town of Samson, where he drove up to the front porch of an uncle’s house, killed him and two cousins, then killed a young woman and her daughter who were visiting from across the street and critically wounded the woman’s four-month-old child. He followed that up by walking next door and killing his seventy-four-year-old grandmother before getting back in his car and driving through the town of 2,000, shooting randomly out the window with two assault rifles, killing a pedestrian and a woman as she walked out of a gas station.
Chased by police, McLendon drove twelve miles farther east on Alabama Route 52 to Geneva, population about 4,400, where he shot and killed a random driver who got in his way on the road, shot at an Alabama state police vehicle, striking it seven times, sprayed bullets at Geneva town police who attempted to set up a roadblock, then turned north on Alabama Route 27 in the direction of Reliable Metal Products, where he had once worked six years earlier. As he ran into the building, McLendon fired an estimated thirty rounds at the police vehicles now congregated in pursuit. After shots were heard from within, police found McLendon lying dead from self-inflicted gunshots.46
It took all of one hour: eleven were dead, including McLendon; six were injured, including four officers of the law; Alabama was in shock after the truly senseless killings; cable news had its usual feeding frenzy—and twenty-two soldiers from nearby Fort Rucker were brought up on charges of violating the Posse Comitatus Act.
The 1878 Posse Comitatus Act is every government official’s favorite excuse: the legal constraint that gets blamed by executive agents and their allies whenever the wishes of the what-if crowd are thwarted, a dastardly albatross that explains away failures of responsibility and execution. And it is a political football of the military, thrown around when partisan domestic duties are ordered, and a convenient whipping boy whenever homeland security falters. Military officers, frequently taking their cue from leaders, military and civilian, are just as happy to pay homage to its legendary restrictions whenever they want to limit what they consider mission creep. Meanwhile, in the National Guard’s own domestic operations handbook, Posse Comitatus has come to “symbolize the separation of civilian affairs from military influence—that is, federal troops.”47 This is a critical point, for the Guard, as a state militia, is exempt from the restrictions of Posse Comitatus, and zealously guards that institutional identity—and accentuates its uniqueness, especially when it is fighting for budgets and recognition.
Between these rigid and intransigent battle lines, Posse Comitatus is consistently invoked by executive agents as pernicious. This position is often justified by claims that only the federal government has the resources and infrastructure to guide the country through a disaster like Katrina or 9/11. But the more fundamental rationale has much less to do with boots and tarps: executive agents believe that because America is an irrational partisan tinderbox, the archaic law impedes rather than enhances common defense. In an age of constant vigilance, then, Posse Comitatus is the enemy.
“The Posse Comitatus Act of 1878 prohibit[s] active-duty military from conducting law enforcement within the United States,” states President Bush in his memoir Decision Points to explain how his hands were tied during Hurricane Katrina.48 Every fact of American history contradicts Bush’s articulation. Even right after the Civil War, even in the face of the act, the army often engaged in disaster response,49 and it often enforced law and order—sometimes not without controversy, but hardly ever rebuffed when it was available and willing to help.50 Three successive presidents then used federalized National Guard troops from 1957 to 1963 to enforce civil rights laws against the will of recalcitrant governors. In addition to Eisenhower’s September 1957 dispatching of federal troops to Little Rock and federalizing of the entire Arkansas National Guard, under Section 333 of the Insurrection Act, President Kennedy federalized the Alabama National Guard six years later when Governor George Wallace pledged to prevent black students from attending classes at the University of Alabama. Kennedy again federalized National Guard units and used federal troops to assist US marshals at the University of Mississippi from October 1962 through July 1963. Indeed, the record of Posse Comitatus is that the very enforcement of civil law that the post-Reconstruction Congress sought to prevent by passing the act occurred anyhow,51 a not-inconsequential affront to many who seek refuge behind the act.
In the years after Kennedy’s interventions, federal troops—and the National Guard—not only enforced civil rights but were liberally used for riot control and to suppress political dissent, from Detroit in 1967 through the Democratic National Convention in Chicago in 1968 and into the 1971 riots in Washington, DC.
After a long hiatus, in 1992, Bush’s father also federalized the California National Guard and used federal troops—more than 15,000—to quell the Los Angeles riots, upon the request of the Republican governor. Executive agents advised President Bush (and his then secretary of defense, Dick Cheney) to invoke the Insurrection Act. As during Katrina, though, the state’s National Guard had already largely stabilized the situation. While it was clear to those on the ground that such stability was precarious, “bewildered and perplexed military attorneys” filled the heads of federal commanders with all sorts of confusing and conflicting information about Posse Comitatus. Almost immediately the federal Joint Task Force commander Major General Marvin L. Covault declared that federal troops wouldn’t do any policing. “It was not the military’s mission to solve Los Angeles’s crime problem, nor were we trained to do so,” he said.52
For the federal military, a lot had changed since the civil rights era: all-volunteer armed forces had been created; the assumption of the counternarcotics mission (and the segregation of that mission) in the 1980s had sharpened the inherent bias against domestic mission creep; civil defense and the Program had gone underground. A decade and a half later in New Orleans, though, the civil disturbance, counternarcotics, and civil defense specialties had congealed into a homeland security constituency. Posse Comitatus and some other apparently irrational law prevented a necessary response, the new constituency argued, allies now to those in favor of extraconstitutional intervention. In fact, without someone or some organization standing in the way of order and unity; without chaos and fear (which in the cases of both Los Angeles and New Orleans meant images of blacks “looting” and repeated and amplified rumors of snipers and roving gangs); and without the public’s civic ignorance, executive agents have no chance.
On March 18, 2009, in the wake of the McLendon shooting spree eight days earlier in Alabama, the army initiated a formal inquiry to determine whether federal troops had violated the Posse Comitatus Act. Twenty-two military policemen led by the base provost marshal had come from Fort Rucker, the 63,000-acre home of army aviation nearby, to assist in traffic control and crime scene security pursuant to a mutual aid agreement signed two years earlier by the Fort Rucker garrison commander and the Geneva County sheriff. The town of Samson’s tiny police force and county officers were stretched to the limit after the shootings, working without a break, without food. However, an inspector general’s investigation found that the military personnel had violated the Posse Comitatus Act. “The historic tradition of limiting direct military involvement in civilian law enforcement activities, and the requirement of applicable law, do not appear to have been analyzed or considered,” the August IG report stated. By establishing traffic control points, the IG concluded, the MPs had “regulated the freedom of movement of civilian persons which served to prohibit those persons from going to where they might desire to go.”53 The local police chief said that he didn’t think anyone was actually stopped from doing anything and that the federal troops never had any intention of doing wrong and that no abuses of power had occurred, and even the IG conceded that “the intent was to be a good Army neighbor and help civilian law authorities facing a difficult, unique tragedy affecting the local community.”
“One of the creepiest details to emerge in the shooting rampage [in Alabama],” the liberal digital news service Alternet whined about the McLendon case, “were reports that troops from nearby Fort Rucker were brought into Samson and other surrounding areas to patrol the streets.” Alternet called this “a clear violation of the Posse Comitatus Act, every freedom-loving American’s worst nightmare.”54 Yet the criticisms came not only from the left: “Congress has been clear that the use of U.S. troops for civilian police purposes is forbidden,” Cybercast News Service—“The Right News. Right Now”—agreed.55 “Free from Constitutional restraint… military commanders deployed US Army active duty combat troops into the small civilian community of Samson, Alabama last week in a demonstration of their newly received despotic, domestic police power,” the equally exercised JAG Hunter blog claimed.56 Bloggers spewed that Obama was treasonous; birthers, survivalists, Tea Party activists all came out of the woodwork to condemn the occupation. (It’s all part of the Civil Assistance Plan with Canada to circumvent Posse Comitatus by preparing to bring in foreign troops to suppress the American people, wrote Jim Kouri, fifth vice president of something called the National Association of Chiefs of Police.57)
Asked to comment about the IG’s conclusions in the Alabama press, Geoffrey Corn, a retired army lawyer and professor at the South Texas College of Law in Houston, muddled things even more by agreeing with the inspector general and calling the Rucker incident “a slippery slope.” Controlling traffic is one thing, he said, “but if you keep going down that daisy chain, you have a soldier that may not be trained with the same practical restraint as a civilian law enforcement officer.”58 This “not trained” argument—that the US military exists to fight the nation’s wars and needs to be prepared for that task, not for domestic police work—is the seemingly neutral expression favored by the modern military to justify avoiding getting sucked into imposed domestic tasks. Donald Rumsfeld, notoriously resistant to his military being used for anything other than what he wanted, employed a similar argument after Katrina: “Our military had not been organized, trained, or equipped to conduct law enforcement in American cities.”59
There is some truth to this, but just a little: patrolling the hills of Afghanistan is obviously a different task than piling sandbags or directing traffic. But the specifics of what troops have actually been called upon to do hardly require years of schooling in Arabic dialects or coursework in how to fix reactors on nuclear submarines. Federal troops have always been intended for—and are increasingly being prepared for—both foreign wars and domestic law enforcement. The question asked by Washington’s executive agents is not whether federalization can be done, but whether such federalizing might help further the argument that a successful government is one that swerves around the Constitution.