The Posse Comitatus Act: Can we maintain American freedom
without it?

By C. T. Rossi
web posted July 29, 2002

It seems an odd first step. Why would the head of Homeland
Security, Tom Ridge, recommend a repeal of the Posse
Comitatus Act as a first measure towards fighting terrorism? The
Posse Comitatus Act was approved by Congress on June 18,
1878. The measure was in response to the disputed election of
1876 where Rutherford B.

Hayes went to bed the loser, but eventually found his way into
the Oval Office. The troops who President Grant had stationed
at polling places may have had an undue influence over the ballot
boxes and stolen a victory for Hayes. Whether the election was
actually fraudulent or not, Congress thought it wise to avoid the
appearance of impropriety by seeing to it that federal troops
would never again be stationed next to the polls - hence the
advent of the Posse Comitatus Act.

What the act essentially did was render the use of federal troops
for civilian law enforcement illegal. In a sense, the Posse
Comitatus Act was a revolt against the federal centralization
which had been conducted under the Lincoln and Grant
administrations. States and local communities had the right to
police themselves; they weren't to be subjected to federal
intimidation (remember, this was before the IRS).

Not eager to deny himself the power to intimidate that had been
enjoyed by his recent predecessors, Hayes vetoed the act citing
the "right of the United States government to use force . . . to
protect these elections from violence and fraud." One can easily
determine from this that Hayes adhered to a theory of rights that
would be quite at home on the modern Supreme Court.

Congress overrode the veto.

The Posse Comitatus Act was not an absolutist measure; it does
contain exceptions for the use of federal troops "in such cases
and under such circumstance as such employment of said force
may be authorized by the Constitution or by act of Congress."
(This exception clause has been used several times; most
recently when the Truman administration, in response to a rail
workers' strike, nationalized the railroads under the control of the
Army Corps of Engineers.) In short, Posse Comitatus provides a
barrier against the pell-mell deployment of troops by the
President against the American people. It may be one of the
most common-sense-laden pieces of legislation ever to come out
of Washington.

While Tom Ridge may seem overly eager to tamper with this
safeguard, Sen. Joseph Biden's recent comments were even
more concerning. In a recent interview, Biden recalled that he
was ready to modify the Posse Comitatus after the Oklahoma
City bombing. At that time, Biden and former senator, Sam
Nunn, "introduced legislation that would moderately alter the
posse comitatus." Biden's desire to alter the Act - after a single
act of terrorism in Oklahoma City -seemed a radical step and his
effort failed.

He now laments that under the current provisions "when you call
in the military, the military would not be allowed to shoot to kill,
if in fact [the military] were approaching the weapon [of mass
destruction]." But Biden is assuring that alterations which
Congress might make to the Posse Comitatus would not mean
radical changes to civil liberties: ". . . we're not talking about
general police power . . . [only the] idea that you could have
your local National Guard, you know, with arrest power like
your local policemen." But herein lies the rub.

What Biden didn't disclose is that the Posse Comitatus Act does
not directly apply to National Guard units because they are
under the control of the governors of their respective states - not
under the control of the president. Under the type of hypothetical
emergency scenarios that Ridge and Biden are fond of
constructing, state governors could (and most assuredly would)
deploy the National Guard in full cooperation with federal
authorities - however, governors would also be free to recall
their guardsmen should they feel that military actions were unduly
impinging on the rights of state citizens.

While Ridge and Biden fabulize about Schwarzenegger-esque
domestic shootouts between U.S. military forces and dirty-
bomb-toting terrorists in an Amtrak tunnel, the truth is much
more sobering. The federal government has yet to prove that it
can properly interpret the intelligence that leads them to deploy
the anti-terrorist commandos in the right place at the right time.

While a modification of Posse Comitatus makes Americans
practically no safer, it would open the door to old abuses. Had
the Biden initiative to repeal the Posse Comitatus Act passed in
1995, Bill Clinton would have been free to deploy troops to
Florida to ensure the validity of the presidential election recount.
Need anyone say more?

C.T. Rossi comments on contemporary politics and culture for
the Free Congress Foundation (http://www.freecongress.org)

Enter Stage Right - http://www.enterstageright.com