Posse Comitatus Act kicked to the roadside by feds, say critics

By Jim Kouri

The new defense authorization act all but erases decades of U.S. government compliance with the letter and the spirit of the Posse Comitatus Act 1878, a law that prohibits the use of the U.S. military to perform law enforcement functions within the United States, according to police officials and others opposed to the militarizing of American law enforcement.

Provisions in the new authorization act allow military reservists — Army, Navy, Air Force and Marines — to be called to duty and deployed in the event of a natural disaster or other emergency within the homeland, as well as mobilization of reserve units to support counterterrorism and security missions overseas, according to the American Forces Press Service's Donna Miles.

"Except for a crisis involving a weapon of mass destruction, the reserves historically have been prohibited from providing a homeland disaster response," Army Lt. General Jack C. Stultz, the Army Reserve chief, told reporters on Friday.

Originally, such deployments were the duty of National Guard, which are under the control of state governors who would call in guardsman as needed to support civil police forces, fire departments and other emergency personnel.

However, when Hurricane Katrina fiercely struck the Gulf Coast in 2005, especially the city of New Orleans, active-duty service members became "the federal default force," according to Miles.

But the reason for that deployment was the inability of Louisiana's governor and New Orleans' mayor to command and control the police and emergency responders. Now the U.S. Congress and the Obama Administration have acquired the authority to use military resources in such emergencies, including deploying soldiers during an insurrection.

"Is anyone surprised at this latest disregard for the constitution and tradition? The military forces in the U.S., Canada and Mexico have been training in urban warfare and response to terrorist threats such as weapons of mass destruction (WMD) scenarios," said police lieutenant Walter Ingram of the Morningside, N.Y., police department.

Ingram also noted that "the Bush Administration and congress toyed with the idea of practically militarizing FEMA (Federal Emergency Management Administration). which is basically a 'bean-counting' agency. But that idea went nowhere."

But General Stultz is gung-ho about the new authorization. "In a lot of cases, there were reserve-component soldiers, sailors, airmen and Marines who were close at hand with the capabilities needed, but didn't have the authority to act," he said. "Finally, we got the law changed. This new legislation says that now we can use Title 10 reserves."

For these forces to be used, the law specifies that the Commander in Chief — President Barack Obama — must declare an emergency or disaster and a state governor must request the assistance.

Stultz clarified what hasn't changed under the law. Civil authorities will remain the first responders. And when they need military support, National Guard forces will be the first to step in when called by their state governor. "We are not trying to change any of that," the general said.

But now, when a situation also demands a federal response, reserve forces can step in to assist for up to 120 days, added Miles.

But political strategist Mike Baker is confused about the lack of news coverage and lack of controversy over the prospect of giving the U.S. warfighters so much leeway to operation within U.S. borders. "Imagine if President [George W.] Bush announced this increased use of military resources stateside. Does anyone doubt the media frenzy as well a the vitriol that would emanate from Democrats in both houses of the U.S. Congress?" Baker asked rhetorically.

Army Gen. Charles H. Jacoby Jr., commander of U.S. Northern Command, and his staff are evaluating their federal response plan to take advantage of these new capabilities, Stultz said.

Stultz participated in a recent U.S. Army North exercise that helped to test the concept. The scenario involved two hurricanes hitting the United States almost simultaneously, requiring a federal response, according to Miles' AFPS report.

The exercise helped participants work through the procedures that would be involved in calling Title 10 forces to duty, Stultz explained. "How does the governor and the adjutant general within a state go through the process of asking for federal help?" he said. "How do Army North and Northcom identify what capabilities are close by that they can use? How do we go through alerting these forces to go down and help this natural disaster? And as always, who cuts the order to put them on duty, and who provides the funding?"

Stultz said he's gratified by almost universal support for the new legislative authority.

"Everybody is on board, from the governors to the adjutants general to Army North to Northcom saying this is going to be a good thing," he said. "We just have to make sure we have the procedures and processes worked out."

And now, before the authority is actually needed, is the time to get that resolved, he said. "Let's not wait until a hurricane hits to say, 'How do we do it?' he said.

Another change in the 2012 authorization act allows Title 10 reservists to be called to duty to support unnamed overseas contingencies. The reserves, and particularly the Army Reserve, have a long history of deploying members for medical, engineering and other missions to support theater engagement and security cooperation efforts.

Typically, they did so as their annual training, which generally limits their engagements to 21 to 29 days, Stultz said. That could be particularly limiting when the missions are in far-flung parts of the world, he said, sometimes reducing time on the ground to as little as 14 days before the reservist had to pack up and return home.

"With this new authority, now we can send them down for much longer periods of time," Stultz said.

© Jim Kouri