[IP] more on Posse Comitatus Weakened [From TSCM-L]

[David Farber <dave@farber.net>]

Begin forwarded message:

From: "Michael Froomkin - U.Miami School of Law"  
<froomkin@law.miami.edu>
Date: February 19, 2007 5:54:07 PM EST
To: David Farber <dave@farber.net>
Cc: ip@v2.listbox.com
Subject: Re: [IP] Posse Comitatus Weakened [From TSCM-L]
Reply-To: froomkin@law.tm

*Sigh*

Despite the number of times this has been repeated, it is still  
exaggerated.  I debunked it back in October at my blog,  
discourse.net, in a posting called "Crazy Times (Martial Law  
Edition)", http://www.discourse.net/archives/2006/10/ 
crazy_times_martial_law_edition.html

Here are the key points from that posting:

[The issue is] an amendment to 10 USC § 333, that significantly  
expands the circumstances in which the President can deploy the full  
armed forces -- and federalize the state National Guard even over a  
local governor's objections. The old version of the Insurrection Act,  
along with the Posse Comitatus Act, sought to narrow Presidential  
power and localize the decision to use force. [UPDATE: For a tour de  
force introduction to the legal regime as it existed prior to this  
most recent amendment, see Steve Vladek's amazing student note,  
Emergency Power and the Militia Acts, 114 YALE L.J. 149 (2004).]

Some of the circumstances the law addresses are pretty clear -- "a  
natural disaster, epidemic, or other serious public health emergency,  
terrorist attack or incident," -- even if not necessarily keeping  
with our traditions of civilian law enforcement and federalism.

But some are pretty vague: The President can call out the full  
military might of the US (and remove the governor's control of local  
forces), whenever he thinks that "any insurrection, domestic  
violence, unlawful combination, or conspiracy if such insurrection,  
violation, combination, or conspiracy" in a state has resulted in  
situation that,

<blockquote>(A) so hinders the execution of the laws of a State or  
possession, as applicable, and of the United States within that State  
or possession, that any part or class of its people is deprived of a  
right, privilege, immunity, or protection named in the Constitution  
and secured by law, and the constituted authorities of that State or  
possession are unable, fail, or refuse to protect that right,  
privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United  
States or impedes the course of justice under those laws.</blockquote>

But here's the thing: the section quoted above, the vaguest and  
broadest part of this statute, the very part that has some folks  
worrying out loud about martial law, is pretty much the same as the  
old language, which allowed the President to call out the troops to,

 <blockquote>suppress, in a State, any insurrection, domestic  
violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the  
United States within the State, that any part or class of its people  
is deprived of a right, privilege, immunity, or protection named in  
the Constitution and secured by law, and the constituted authorities  
of that State are unable, fail, or refuse to protect that right,  
privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United  
States or impedes the course of justice under those laws.</blockquote>


Laws like this are always troubling because there is no practical way  
to challenge their application. Unless it were willing to strike down  
the statute as a standardless delegation -- a nearly moribund  
doctrine -- it is very hard to see a court telling the President  
that, say, the chaos in New Orleans after the flood, or even the  
limited violence in Florida in 2000 when GOP operatives attacked the  
ballot counters, didn't rise to a level that "opposes or obstructs  
the execution of the laws of the United States or impedes the course  
of justice under those laws." The courts are going to label that a  
political question, or find some other excuse for the courts to duck  
the matter.

But while this sort of executive discretion is always a problem for  
democratic rule, as I hope I've shown by juxtaposing the old language  
and the new it's not a new problem, not at all.


[There's more where that came from, but that's the key part]


On Mon, 19Feb 2007, David Farber wrote:

> Begin forwarded message:
>
> From: Peter Thoenen <eol1@yahoo.com>
> Date: February 19, 2007 4:50:29 PM EST
> To: dave@farber.net
> Subject: Posse Comitatus Weakened [From TSCM-L]
> Reply-To: eol1@yahoo.com
>
> Dave,
>
> Not sure how many of the list readers on here follow John's TSCM-L  
> list
> but a particular recent thread there might be of interest to them:
>
> > From: reginald_curtis@hotmail.com
> > To: "TSCM-L Professionals List" <TSCM-L2006@googlegroups.com>
> > Subject: [TSCM-L] Posse Comitatus Weakened
> > Date: Mon, 19 Feb 2007 07:41:43 -0800
> > I missed this POSSE COMITATUS development altogether. From today's
> > New
> > York Times Feb. 19/07-
> http://www.nytimes.com/2007/02/19/opinion/19mon3.html? 
> th=&emc=th&pagewanted=pri..
> > "EDITORIAL
> > 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 administration's  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 national 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 essentiallly
> > limits a president's 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
> > 'other condition.'
> > 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 nation's 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 nation's governors, that would repeal the
> > stealty provisions. Congress should pass it. If changes of this kind
> > are proposed in the future, they must get a full and open debate."
> > THE END
> > Reg Curtis/VE9RWC
>
> Was a real good discussion of this back in '05 but yahoo killed the
> archives.
>
>
>
> -------------------------------------------

--
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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