New Orleans - The beginning of the end?

[Tim Gratz]

David, here is a spelling clue:

f--a--c--e--t--i--o--u--s !!!

[Tim Gratz]

Did leftist environmental groups contribute to the Katrina disaster? The proposition sounds foolish but consider the following:

http://www.nationalreview.com/comment/berlau200509080824.asp

Apparently there is a long history of such organizations objecting to strengthening of the levee system.

Edited September 9, 2005 by Tim Gratz

[Tim Gratz]

To David:

Did you actually believe that I thought that the many leftist-oriented members of the Forum respected "the G man"? It surprises me you did not know that when I wrote that my tongue, figuratively speaking, was deeply embedded in my cheek!

[George Bollschweiler]

I suspect person with a police or military background might be better qualified than a lawyer for a position such as head of FEMA.

Tim,

Do you really believe, that a military or police background is the best solution for such a position, I doubt that very much. I would understand if Bush would make such a statement but you? What about looking around a little, maybe even check with other countries that are facing the same problems sometimes and may have more experience, the Netherlands for example. IMO an engineering background would be a much more appropriate background to fill the top position of FEMA.

What I personally do not understand is the disability handling this kind of natural disasters like hurricanes in a more forward-thinking way. Look at the way the power supply in Florida is solved.

They still put posts up every year and every year these posts get knocked down, people have no power what means no TV, no information, no air-condition, no fridge and so on. That’s the way we had our power supply organized 25 years ago, today all the power lines as well as the telephone wires are put 3 feet in the ground, so avalanches, floods, knocked down trees etc. do not affect the power supply at all. But of course we do not put military or police people into agencies that handle such a matter.

George

[Thomas H. Purvis]

To David:

Did you actually believe that I thought that the many leftist-oriented members of the Forum respected "the G man"?  It surprises me you did not know that when I wrote that my tongue, figuratively speaking, was deeply embedded in my cheek!

<{POST_SNAPBACK}>

The real "G"-Man/aka Melvin Purvis, was a pretty good guy from what little I know of him.

But then again, one usually supports their distant relatives.

Tom Purvis

P.S. Needless to say, Melvin & JEH certainly did not get along.

[Tim Gratz]

From the "Irish Trojan" blog:

What I WILL tell you is about a guy named Charles. My hero, and someone I have acquired a new admiration for when I thought I knew his character through and through. Tirelessly this man has devoted every waking hour to gathering resources to give to the victims of Hurricane Katrina, leaving every single thought of reality behind. Every waking hour means that I know he did not lay his head down one time in a 40-hour time span. Not only did he not rest, he did not stop thinking about his mission.

He would never call himself a hero, but I do and I thank God that I have been able to be a witness to his strength and show of character that I have never seen in another human being in my lifetime. When we got back to our truck in Atlanta, we had a flat tire. After not sleeping for 2 days, driving thousands of miles, getting much-needed supplies to the people of the Gulf Coast, the man changed the tire . Through sweat dripping and all his clothing dirty and soiled thru and thru, he never once stopped until he crawled his lifeless body in the bed last night at 2 am.

I've never seen someone work as hard as he has and he loves every minute of it. I will say when I thought I didn't have another energy cell left in my body to give, I saw him giving more, and I found new strength. When someone needed a hand, he was there, when there was a time to sit and "take a breather" he was organizing our truck that held supplies, or he was seeing if someone needed supplies, he reloaded his palettes of food, cans, water that were 10, 20 lbs, over and over again to make more room in the overloaded truck for more red cross supplies.

Obviously this is only one of many stories of Americans helping their "neighbors" in a time of crisis, but it is inspiring nonetheless.

[Mark Knight]

Did you actually believe that I thought that the many leftist-oriented members of the Forum respected "the G man"? It surprises me you did not know that when I wrote that my tongue, figuratively speaking, was deeply embedded in my cheek!

Tim, it never ceases to amaze me that you take people to task for assuming to know what's in your mind and your heart, and then you take them to task when they DON'T assume to know. "You gotta let your "yeah" be "yeah" and your "no" be "no"," to use a lyric you're probably familiar with.

With someone whose ideas are, to say the least, out of the mainstream of this group...it's sometimes difficult to tell what is a heartfelt position and what is irony or sarcasm.

Maybe it's clear in YOUR mind, but I daresay a LOT of things look different in YOUR mind than they do in the minds of others....same goes for myself, and all the others on the forum. The failure to realize that your words don't mean what they say doesn't necessarily imply that the OTHER forum members have a problem, Tim. We're used to you staking out positions that, to many of us, are "out there." So to discover later that you were being facetious is sometimes a revelation [not always, but sometimes].

[Mark Knight]

...BULLETIN>>>>THIS JUST IN:

FEMA Chief Relieved of Katrina Duties

September 09, 2005 12:50 PM EDT

WASHINGTON - Federal Emergency Management Agency Director Michael Brown is being removed from his role in managing the Bush administration's Hurricane Katrina relief efforts and is returning to Washington.

Brown, who has been under fire for the federal government's slow response to the storm that devastated much of the Gulf Coast region, will be replaced by Coast Guard Vice Adm. Thad W. Allen, who was overseeing New Orleans relief and rescue efforts.

Asked if he was being made a scapegoat for a federal relief effort that has drawn widespread and sharp criticism, Brown told The Associated Press after a long pause: "By the press, yes. By the president, No."

Copyright 2005 Associated Press. All rights reserved.

[Robert Howard]

...BULLETIN>>>>THIS JUST IN:

FEMA Chief Relieved of Katrina Duties

September 09, 2005 12:50 PM EDT

WASHINGTON - Federal Emergency Management Agency Director Michael Brown is being removed from his role in managing the Bush administration's Hurricane Katrina relief efforts and is returning to Washington.

Brown, who has been under fire for the federal government's slow response to the storm that devastated much of the Gulf Coast region, will be replaced by Coast Guard Vice Adm. Thad W. Allen, who was overseeing New Orleans relief and rescue efforts.

Asked if he was being made a scapegoat for a federal relief effort that has drawn widespread and sharp criticism, Brown told The Associated Press after a long pause: "By the press, yes. By the president, No."

Copyright 2005 Associated Press. All rights reserved.

<{POST_SNAPBACK}>

My response to the comments of the illustrious Mr. Brown would be "if you admit on national television that you don't have a clue about what's going on then you deserve whatever happens to you." OR to use a Cajun colloquialism by the legendary Dean Andrews "You got the right ta-ta but the wrong ho-ho." Goodbye Mr Brown and may the force be with you.

[Ron Ecker]

FWIW here's a conspiracy theory that I just stumbled across: The 17th Street levee was bombed.

http://bellaciao.org/en/article.php3?id_article=8158

[Mark Knight]

Ron wrote:

The 17th Street levee was bombed.

Ron, we all know better; in New Orleans, inanimate objects don't get bombed.

People do.

[Ron Ecker]

Mark,

This is no time for leveety.

Ron

[Tim Gratz]

I agree with Ron (pun or not).

I do not subscribe to the "divine retribution" theory of natural disasters but there is this interesting tid-bit: Today I ran into a lady with business interests in several cities. She and her husband used to have a store in NO. She said they moved out because it was the most corrupt city she had seen, with both the Mafia and the police (but she said the police were worse than the mafia!).

Of course, this has nothing to do with the victims of Katrina. I'm sure the Mafia and NO Police were never in harm's way!

P.S. Re the phrase "subscribe to the theory"--does anyone know how you go about "subscribing" to a theory? Can you submit a subscription form to the theorist?

Edited September 10, 2005 by Tim Gratz

[Mark Knight]

This is no time for leveety.

Ron, I'm sure that one will provoke a FLOOD of indignant responses.

[Mark Knight]

The assertion that President Bush would have violated the Posse Comitatus Act had he ordered in National Guardsmen to assist in New Orleans prior to being INVITED to do so is BOGUS.

http://www.homelandsecurity.org/journal/ar.../Trebilcock.htm

The Myth of Posse Comitatus

Major Craig T. Trebilcock, U.S. Army Reserve

October 2000

--------------------------------------------------------------------------------

Major Craig Trebilcock is a member of the Judge Advocate General’s Corps in the U.S. Army Reserve. He is assigned as an operational law attorney with the 153d Legal Support Organization in Norristown, PA. His area of specialization includes the laws applicable to U.S. forces engaged in operations in both the United States and abroad. Major Trebilcock is a graduate of the University of Michigan (A.B. with high honors, 1982) and the University of Michigan Law School (J.D., 1985). His military education includes the Judge Advocate General Basic Course (1988) and Advanced Course (1992), U.S. Army Command and General Staff College (1997), and the U.S. Navy War College International Relations Seminar (2000). Major Trebilcock is a civilian immigration attorney with the firm of Barley, Snyder, Senft, & Cohen in York, PA.

--------------------------------------------------------------------------------

The Posse Comitatus Act has traditionally been viewed as a major barrier to the use of U.S. military forces in planning for homeland defense.[1] In fact, many in uniform believe that the act precludes the use of U.S. military assets in domestic security operations in any but the most extraordinary situations. As is often the case, reality bears little resemblance to the myth for homeland defense planners. Through a gradual erosion of the act’s prohibitions over the past 20 years, posse comitatus today is more of a procedural formality than an actual impediment to the use of U.S. military forces in homeland defense.

History

The original 1878 Posse Comitatus Act was indeed passed with the intent of removing the Army from domestic law enforcement. Posse comitatus means “the power of the county,” reflecting the inherent power of the old West county sheriff to call upon a posse of able-bodied men to supplement law enforcement assets and thereby maintain the peace. Following the Civil War, the Army had been used extensively throughout the South to maintain civil order, to enforce the policies of the Reconstruction era, and to ensure that any lingering sentiments of rebellion were crushed. However, in reaching those goals, the Army necessarily became involved in traditional police roles and in enforcing politically volatile Reconstruction-era policies. The stationing of federal troops at political events and polling places under the justification of maintaining domestic order became of increasing concern to Congress, which felt that the Army was becoming politicized and straying from its original national defense mission. The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its role of defending the borders of the United States.

Application of the Act

To understand the extent to which the act has relevance today, it is important to understand to whom the act applies and under what circumstances. The statutory language of the act does not apply to all U.S. military forces.[2] While the act applies to the Army, Air Force, Navy, and Marines, including their Reserve components, it does not apply to the Coast Guard or to the huge military manpower resources of the National Guard.[3] The National Guard, when it is operating in its state status pursuant to Title 32 of the U.S. Code, is not subject to the prohibitions on civilian law enforcement. (Federal military forces operate pursuant to Title 10 of the U.S. Code.) In fact, one of the express missions of the Guard is to preserve the laws of the state during times of emergency when regular law enforcement assets prove inadequate. It is only when federalized pursuant to an exercise of presidential authority that the Guard becomes subject to the limitations of the Posse Comitatus Act.

The intent of the act is to prevent the military forces of the United States from becoming a national police force or guardia civil. Accordingly, the act prohibits the use of the military to “execute the laws.”[4,5] Execution of the laws is perceived to be a civilian police function, which includes the arrest and detention of criminal suspects, search and seizure activities, restriction of civilian movement through the use of blockades or checkpoints, gathering evidence for use in court, and the use of undercover personnel in civilian drug enforcement activities.[6]

The federal courts have had several opportunities to define what behavior by military personnel in support of civilian law enforcement is permissible under the act. The test applied by the courts has been to determine whether the role of military personnel in the law enforcement operation was “passive” or “active.” Active participation in civilian law enforcement, such as making arrests, is deemed a violation of the act, while taking a passive supporting role is not.[7] Passive support has often taken the form of logistical support to civilian police agencies. Recognizing that the military possesses unique equipment and uniquely trained personnel, the courts have held that providing supplies, equipment, training, facilities, and certain types of intelligence information does not violate the act. Military personnel may also be involved in planning law enforcement operations, as long as the actual arrest of suspects and seizure of evidence is carried out by civilian law enforcement personnel.[8]

The Posse Comitatus Act was passed in the 19th century, when the distinction between criminal law enforcement and defense of the national borders was clearer. Today, with the advent of technology that permits weapons of mass destruction—chemical, biological, or nuclear weapons—to be transported by a single person, the line between police functions and national security concerns has blurred. As a matter of policy, Western nations have labeled terrorists “criminals” to be prosecuted under domestic criminal laws. Consistent with this, the Department of Justice has been charged as the lead U.S. agency for combating terrorism. However, not all terrorist acts are planned and executed by non-state actors. Terrorism refers to illegal attacks on civilians and other nonmilitary targets by either state or non-state actors. This new type of threat requires a reassessment of traditional military roles and missions along with an examination of the relevance and benefits of the Posse Comitatus Act.

Erosion of the Act

While the act appears to prohibit active participation in law enforcement by the military, the reality in application has become quite different. The act is a statutory creation, not a constitutional prohibition. Accordingly, the act can and has been repeatedly circumvented by subsequent legislation. Since 1980, Congress and the president have significantly eroded the prohibitions of the act in order to meet a variety of law enforcement challenges.

One of the most controversial uses of the military during the past 20 years has been to involve the Navy and Air Force in the “war on drugs.” Recognizing the inability of civilian law enforcement agencies to interdict the smuggling of drugs into the United States by air and sea, the Reagan Administration directed the Department of Defense to use naval and air assets to reach out beyond the borders of the United States to preempt drug smuggling. This use of the military in antidrug law enforcement was approved by Congress in 10 U.S.C., sections 371–381. This same legislation permitted the use of military forces in other traditionally civilian areas—immigration control and tariff enforcement.

The use of the military in opposing drug smuggling and illegal immigration was a significant step away from the act’s central tenet that there was no proper role for the military in the direct enforcement of the laws. The legislative history explains that this new policy is consistent with the Posse Comitatus Act, as the military involvement still amounted to an indirect and logistical support of civilian law enforcement and not direct enforcement.[9]

The weakness of the analysis of passive versus direct involvement in law enforcement was most graphically demonstrated in the tragic 1999 shooting of a shepherd by marines who had been assigned a mission to interdict smuggling and illegal immigration in the remote Southwest. An investigation revealed that for some inexplicable reason the 16-year-old shepherd fired his weapon in the direction of the marines. Return fire killed the boy. This tragedy demonstrates that when armed troops are placed in a position where they are being asked to counter potential criminal activity, it is a mere semantic exercise to argue that the military is being used in a passive support role. The fact that armed military troops were placed in a position with the mere possibility that they would have to use force to subdue civilian criminal activity reflects a significant policy shift by the executive branch away from the posse comitatus doctrine.

Congress has also approved the use of the military in civilian law enforcement through the Civil Disturbance Statutes: 10 U.S.C., sections 331–334. These provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property. In case of civil disturbance, the president must first give an order for the offenders to disperse. If the order is not obeyed, the president may then authorize military forces to make arrests and restore order. The scope of the Civil Disturbance Statutes is sufficiently broad to encompass civil disturbance resulting from terrorist or other criminal activity. It was these provisions that were relied upon to restore order using active-duty Army personnel following the Los Angeles “race riots” of the early 1990s.

Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor. In such an instance, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant exception to the Posse Comitatus Act’s underlying principle that the military is not a domestic police force auxiliary.

An infrequently cited constitutional power of the president provides an even broader basis for the president to use military forces in the context of homeland defense. This is the president’s inherent right and duty to preserve federal functions. In the past this has been recognized to authorize the president to preserve the freedom of navigable waterways and to put down armed insurrection. However, with the expansion of federal authority during this century into many areas formerly reserved to the states (transportation, commerce, education, civil rights) there is likewise an argument that the president’s power to preserve these “federal” functions has expanded as well. The use of federal troops in the South during the 1960s to preserve access to educational institutions for blacks was an exercise of this constitutional presidential authority.

In the past five years, the erosion of the Posse Comitatus Act has continued with the increasingly common use of military forces as security for essentially civilian events. During the 1996 Olympics in Atlanta, over ten thousand U.S. troops were deployed under the partial rationale that they were present to deter terrorism. The use of active-duty military forces in a traditional police security role did not raise any serious questions under the act, even though these troops would clearly have been in the middle of a massive law enforcement emergency had a large-scale terrorist incident occurred. The only questions of propriety arose when many of these troops were then employed as bus drivers or to maintain playing fields. This led to a momentary but passing expression of displeasure from Congress.[10]

Homeland Defense

The Posse Comitatus Act was passed in an era when the threat to national security came primarily from the standing armies and navies of foreign powers. Today the equation for national defense and security has changed significantly. With the fall of the Soviet Union our attention has been diverted—from the threat of aggression by massed armies crossing the plains of Europe to the security of our own soil against biological or chemical terrorism. Rather than focusing on massed Russian intercontinental ballistic missiles as our most imminent threat, we are increasingly more aware of the destructive potential of new forms of asymmetric warfare. For instance, the U.S. Office of Technology Assessment states that 100 kilograms of dry powdered anthrax released under ideal meteorological conditions could kill up to three million people in a city the size of Washington, DC.[11] The chemical warfare attacks carried out by Japanese terrorists in the subways of Tokyo during the 1990s heightened our sense of vulnerability. The Oklahoma City bombing and the unsuccessful attempt to topple the World Trade Center have our domestic security planners looking inward for threats against the soil of the United States from small but technologically advanced threats of highly motivated terrorists. What legal bar does the Posse Comitatus Act present today to using the military to prevent or respond to a biological or chemical attack on the soil of the United States? In view of the erosion of the Posse Comitatus Act in the past 20 years, the answer is “not much.”

The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues. The plethora of constitutional and statutory exceptions to the act provides the executive branch with a menu of options under which it can justify the use of military forces to combat domestic terrorism. Whether an act of terrorism is classified as a civil disturbance under 10 U.S.C., 331–334, or whether the president relies upon constitutional power to preserve federal functions, it is difficult to think of a domestic terrorism scenario of sizable scale under which the use of the military could not be lawfully justified in view of the act’s erosion. The act is no longer a realistic bar to direct military involvement in counterterrorism planning and operations. It is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact.[12]

Conclusion

Is the Posse Comitatus Act totally without meaning today? No, it remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter. Although no person has ever been successfully prosecuted under the act, it is available in criminal or administrative proceedings to punish a lower-level commander who uses military forces to pursue a common felon or to conduct sobriety checkpoints off of a federal military post. Officers have had their careers abruptly brought to a close by misusing federal military assets to support a purely civilian criminal matter.

But does the act present a major barrier at the National Command Authority level to use of military forces in the battle against terrorism? The numerous exceptions and policy shifts carried out over the past 20 years strongly indicate that it does not. Could anyone seriously suggest that it is appropriate to use the military to interdict drugs and illegal aliens but preclude the military from countering terrorist threats that employ weapons of mass destruction? For two decades the military has been increasingly used as an auxiliary to civilian law enforcement when the capabilities of the police have been exceeded. Under both the statutory and constitutional exceptions that have permitted the use of the military in law enforcement since 1980, the president has ample authority to employ the military in homeland defense against the threat of weapons of mass destruction in terrorist hands.

--------------------------------------------------------------------------------

Click on an endnote number to return to the article.

[1] “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both”—18 U.S.C. 1385.

[2] The act as originally passed referenced only limitations upon the Army. After World War II, it was amended to include the Air Force. By DoD Directive 5525.5, the limitations of the act have been administratively adopted to apply to the Navy and Marine Corps as well.

[3] The peacetime law enforcement mission of the Coast Guard has been well recognized since the founding of its parent agency, the Revenue Marine, in 1790.

[4] For the sake of brevity, the term military as employed in this article refers to the Army, Air Force, Navy, and Marines, their Reserve components, and the National Guard when in federalized status pursuant to Title 10. It does not include the Coast Guard or the National Guard operating in state-controlled Title 13 status.

[5] The Uniform Code of Military Justice is an exception to the Posse Comitatus Act. The code gives the military the inherent right to maintain good order and discipline over its personnel through law enforcement activity, prosecution, and punishment. As such, the code gives the military jurisdiction to enforce both military and civilian laws against its own military personnel.

[6] State v. Nelson, 298 NC 573, 260 SE 2d 629, cert den; 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980).

[7] Ibid.

[8] United States v. Red Feather, 392 F. Supp. 916 (DC SD 1975).

[9] Pursuant to this mission, the USS Kidd intercepted a drug-smuggling boat in 1983. When the smugglers refused to yield without force, the problem of passive versus active law enforcement was handled by lowering the Navy ensign on the ship and raising the Coast Guard ensign. The Coast Guard asset USS Kidd then fired on the smugglers’ ship, rendering it immobile and leading to its seizure, along with 900 bales of marijuana.

[10] “Business, Capitol Hill Question Military’s Role in Olympics,” Defense Week, 22 July 1996.

[11] U.S. Congress, Office of Technology Assessment, Proliferation of Weapons of Mass Destruction: Assessing the Risks (Washington, DC: Government Printing Office, 1993), OTA-ISC-559, p. 54.

[12] The enforcement of a prosecution under the Posse Comitatus Act would necessarily be brought by the Department of Justice, the lead agency charged with combating domestic terrorism. This further suggests that as long as coordination of the use of military forces was part of a coordinated interagency effort that the likelihood of prosecution under the Posse Comitatus Act of any executive branch official would seem remote at best.

Edited September 12, 2005 by Mark Knight