The magical opener that the "War on Terrorism" has become -- granting wondrous new and unconstitutional powers to the president, the FBI, the CIA, the Attorney-General, the FAA, the Secretary of Transportation, and various and sundry other purveyors of State might -- is poised to open a new can of worms that was once safely contained. Rumblings are stirring not-so-far beneath the surface for gutting the 1878 "Posse Comitatus" law. This latest item on the Statist wish list may yet make it onto the hit parade.
Drafted in response to perceived abuses against civilians committed by the Northern occupying army in the post-bellum, Reconstruction South -- and, in particular, the use of troops during the 1876 presidential election -- the Posse Comitatus Act (PCA) was designed to severely limit military involvement in civil life.
The current version of PCA says:
This "power of the county" law is a codification of the long tradition in this country of keeping separate the role of the military from that of peace officers (sadly today, a.k.a., "law enforcement" officers, thus placing the "law" in a position superior to peace and justice). Unfortunately, this rational response to the real danger of armed soldiers running roughshod over our rights is gradually crumbling under a slow-motion assault. Those seeking to impose even more political control over potentially unruly, recalcitrant, and rebellious "subjects" have barely begun gearing up for action.
Soldiers are trained and (properly) deployed during emergency situations such as those represented by the presence of foreign troops invading our country. In such extreme conditions, the first priorities should be to restore order, to suppress the activities of our enemy, and to expel them from our lands. In the heat of battle, a soldier cannot concern himself with the civil rights of those attempting to kill him. Nor is he in any way able to distinguish innocent draftees from committed opponents intent on conquering his nation. He must, if you will, shoot first and ask questions later.
Once such foes are defeated and normalcy is reestablished, the soldier's place is to restore to civilian authorities responsibility for protecting our rights and administering justice, e.g., local police. Unlike soldiers, police must, in the day-to-day performance of their jobs, respect due process and obey such strictures as obtaining probable cause, considering suspects innocent until proven guilty, following proper evidentiary rules, getting specific warrants, honoring a defendant's right to legal representation, and on and on.
The training and mindsets of police and soldiers are thus widely divergent. Asking the latter to observe the limits on the former or blurring the lines separating them by militarizing our police in the pursuit of illicit goals endangers not only the lives of innocent civilians but also the very freedoms most politicians swear they are protecting.
As the old saying goes: With friends like these, who needs enemies?
Well-versed in history and personal experience, the founders of these United States of America recognized the peril inherent in introducing troops into arenas for which they are ill-suited. Roman generals used their armies to seize control of the State. King George, in his turn, used British troops in the colonies to enforce his edicts and to contain civil unrest. Such arrogance left a sour taste in the mouths of patriots. Drafting Americans into the British Navy and keeping British troops in the homes of colonists did nothing to polish the idea for restive rebels.
The problems blossoming from such British policies influenced the drafting of the Declaration of Independence and, eventually, the Constitution, e.g., no standing armies and no quartering of troops in civilian homes during peacetime. While some modern day military boosters complain that the PCA "handcuffs" the military or "cuts them off at the knees," that is precisely what is supposed to happen! Government -- and its enforcers -- were meant to be kept on short leashes. The State and the military that maintains it are supposed to be subordinate to the citizens that established, i.e., created, them in the first place. To phrase it differently: when did "to serve and protect" morph into "to rule and destroy"?
The World Trade Center attack and subsequent anthrax scares are providing a smokescreen for those who hate with visceral intensity any limitations on their ability to impose their will on a hapless populace. The prospect of sending troops and tanks to terrorize neighborhoods into submission is merely an extension of what-has-gone-before. While Senator John Warner of Virginia is urging the Secretary of Defense to change the PCA, senior military officials want to create a new CINC -- commander in chief -- for "homeland defense."
But isn't defending our "homeland" (once upon a non-fascist time known as our "country") precisely what the military is supposed to do in the first place? Maybe if they and their Commanders-in-Chief focused on that sole moral purpose and justification for their existence instead of meddling in every pissant backwater in the world, we wouldn't be in the mess we are.
Despite the skepticism of the founders and notwithstanding Constitutional limits on such transgressions, the military has repeatedly been called upon by the politicians to attack the citizens they are supposed to defend. Troops were used to put down tax protesters in the Whiskey Rebellion (1794) (a true blight on George Washington's legacy); to enforce the fugitive slave laws (1854); to quell draft riots in New York (1863); to breakup a miner's strike in Idaho (1899); to control union supporters and war opponents during WW I; and to spy upon opponents of the Vietnam War.
Collecting taxes, protecting slavery, enforcing the draft, stopping peaceful strikes, and interfering with free speech are all actions and/or laws that should never have existed in the first place. That trend continues with the War on Drugs and anti-immigration mania. In 1997, a Marine patrolling in Texas to suppress drug smuggling and the border-crossing of illegal aliens murdered an 18-year-old goat herder. The military "supported" the BATF and FBI in their incineration of innocent men, women, and children at Waco for "gun violations" that probably did not exist (and even if they did, should not have been illegal, anyway).
Other abuses have flowed from the use of the National Guard (which has, in essence, become merely an extension of the military). In 1957, National Guard troops in Arkansas enforced a coercive, state-monopoly school system that should never have been created. In 1970, at Kent State in Ohio, the Guard was called upon to control protesters of a "police action" (that should never have been undertaken, i.e., Vietnam) and the draft (that should not exist, either) and ended up killing four students.
Today, we have National Guard troops wandering around airports, literally and figuratively shoving airline customers around and detaining innocent travelers for no apparent reason. Overreacting to minor incidents accomplishes nothing in the way of increasing our security but does serve further to alienate a public that may soon become impatient with such heavy-handed tactics. Rather than acknowledging the right of private citizens to manage their own "airport security" via the free market, we're treated to yet another usurpation of power by the State.
The use of the military to maintain day-to-day "domestic tranquility" should be viewed as a last -- not a first -- resort. In most instances, immediate responsibility for responding to terrorist acts should reside with local police and emergency units. It is, after all, impossible to defend every conceivable target in this country and foolish even to try.
Rather than doing their chickens-with-their-heads-cut-off routine, our political "leaders" should address the fundamental issue of obeying the Constitution and doing only those activities for which they have explicitly been delegated authority. They should be proactive in protecting our freedom and not merely reactive to every supposed threat, as has been the case for longer than I care to recall. Rather than succumbing to a knee-jerk reaction of calling on the military, Congress should do its duty and support the citizen militia in helping to defend the people, i.e., "To provide for calling forth the Militia..." and "To provide for organizing, arming, and disciplining, the Militia..." (Article I, Section 8 of the Constitution.)
When was the last time Congress helped you to arm yourself...instead of voting to leave you more defenseless?
Instead of this, however, we are -- as in previous wars and conflicts -- subjected to a situation where simply uttering the words "national security" overrules everything else, including common sense and the rule of law.
In an eerie echo -- a precursor -- of what we may endure in the future, a few of years ago, the military conducted exercises in urban warfare in various cities throughout the country. Despite small but vociferous protests from some quarters, the operations continued without significant opposition. Then Texas governor Bush declared that interfering in such war "games" in his state was not part of his job description.
Marine Corps General Stephen Olmstead testified before Congress that, "History is replete with countries that allowed [their military to be a police force]. Disaster is the result." In 1997, Rep. Ron Paul of Texas said that, "In a police state...national governments yield to the temptation to use the military..." and eventually "the march toward martial law...becomes irresistible."
If anyone truly believes that once the military is handed the assignment of domestic law enforcement that the generals and politicians will draw a line in the sand and follow their promise of "this far and no farther," well, I have a bridge in Brooklyn I'd like to sell you. Soldiers may be dashing about primarily after swarthy skinned men at present, but the net of "suspects" will only widen as more attacks occur.
Remember this, as well: only in government does failure guarantee you more money and more power.
In their handbook for the 105th Congress, the Cato Institute said we should "tighten the Posse Comitatus Act so that it proscribes all use of military personnel and equipment, including the National Guard."
Would that such advice had been followed while it was still marginally feasible.
So many exceptions to PCA already exist that it -- like the Constitution itself -- has ceased to exist in any practical sense. The State can -- and will -- do whatever it damn well pleases regardless of the morality or legitimacy of such actions. Ninety-plus percent of what the federal government does -- and that its unconstitutional agencies (such as the FBI) enforce -- are violations of our rights.
The War on Terrorism will do nothing to heal those injuries to our liberty.
Indeed, supporters of greater reliance on the military explicitly declare that the erosion of such legal safeguards is a good thing. They propose that we simply and explicitly abandon the PCA. (And maybe throw in the Constitution for good measure?)
If and/or when that happens, "justifications" for the worst abuses that are certain to occur will rise up like weeds and be christened "flowers" by the very people committing those misdeeds. Then those same perversions will be used to justify still more infractions of our rights. After all, the creativity of statists in generating excuses for their evil is endless. And, of course, out-and-out lies are SOP. (See Ruby Ridge and Waco and the absurd falsehoods that the military willingly swallowed whole as excuses to "aid" their federal friends.)
The State has no grant of authority for federal law enforcement beyond counterfeiting, piracy, and treason. Despite all the World War II comparisons and wild, teeth-gnashing rhetoric cluttering the airwaves, we are not fighting pitched battles against foreign armies on our own soil. The State and the military should stick to their own bailiwick of fighting actual foes and leave the rest of us alone.
Indeed, how wonderful it would be if sheriffs throughout the country called out the posse -- the adult citizens of their respective counties -- and evicted any and all federal agents engaged in crimes against freedom and the Constitution they once swore to uphold.
That's one posse I would gladly join.