Gauging Bush's Use of Domestic Military

Robert Siegel talks with Scott Silliman, the executive director of the Center for Law, Ethics, and National Security at Duke University. Silliman talks about President Bush's speech Thursday night, which alluded to an expansion of military efforts in domestic problems.

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ROBERT SIEGEL, host:

Another change in policy that might emerge from this disaster is how the military is used in emergencies. Here's what President Bush said last night.

President GEORGE W. BUSH: It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces, the institution of our government most capable of massive logistical operations on a moment's notice.

SIEGEL: That's President Bush speaking last night in New Orleans. On Wednesday, Virginia Senator John Warner made very much the same point, saying that the Department of Defense is the only agency with resources on a scale to deal with what Katrina demanded. And he suggested in a letter to Secretary of Defense Rumsfeld that the government re-examine a law that restricts the military from domestic law enforcement. The law is the Posse Comitatus Act of 1878. Well, joining us from Durham, North Carolina, is Scott Silliman, the executive director of the Center for Law, Ethics and National Security at Duke University.

And, Scott Silliman, first, that marvelous name, the Posse Comitatus Act, where did we get such a Latin law from?

Mr. SCOTT SILLIMAN (Executive Director, Center for Law, Ethics and National Security at Duke University): Robert, `posse comitatus' actually means `power of the county,' and it's an old concept meaning you can marshal the local citizenry to take a law enforcement type of action.

SIEGEL: The posse?

Mr. SILLIMAN: That's exactly correct.

SIEGEL: And you can't use federal troops to go in and do local law enforcement's work?

Mr. SILLIMAN: That's correct except as where authorized by either statute or the Constitution, and it only applies to the active duty Army and Air Force.

SIEGEL: Well, let's say the president had looked at what was happening in the city of New Orleans and seen rampant lawlessness and, therefore, said let's send in the Army to restore order--not the National Guard, but the Army. Is that a violation of the Posse Comitatus Act?

Mr. SILLIMAN: That would have been a violation, Robert, because right now it is not authorized either by the Constitution or by statute.

SIEGEL: So there would have to be a change in the law to effect that?

Mr. SILLIMAN: There would, Robert, but I think your listeners need to remember that the active duty armed forces can be used for any type of humanitarian relief basically on the verbal order of the commander. He's authorized by the Stafford Act to do that. It's only that very small portion of the duty of law enforcement which is prohibited by the act. But, as you suggested, the National Guard, of which there were I think 44,000 in the area, could do that function without any problem.

SIEGEL: But if I were a bad guy loose in New Orleans and a US Army truck drove a police officer up to the scene, who then arrested me, and then he put me back in the US Army truck and drove me somewhere, can I then go to court and say, `My arrest was a violation of the Posse Comitatus Act. The Army can't do that'?

Mr. SILLIMAN: Well, I don't think so, Robert. In the situation that you portray where the Army is only providing transportation, logistical support, for the policeman who actually makes the arrest, in my opinion that would not be a violation of the act.

SIEGEL: It's just if a soldier, if an active duty soldier, actually arrested me, that would be a violation of the act.

Mr. SILLIMAN: That's correct, Robert. It's any kind of direct participation in a law enforcement function.

SIEGEL: You spent a career in the US Air Force as a lawyer. Do you think that the Department of the Air Force would relish the opportunity to see the Posse Comitatus Act revised so they could take part in law enforcement in times of emergency?

Mr. SILLIMAN: I don't think so, Robert. The United States Air Force and the other services, their job is to fight our wars for us and to keep the enemy from attacking our country. The law enforcement function is a totally different function. It's not one that they relish. It's not one that they train for.

SIEGEL: 1878, give us a little context here as to why a restriction on the use of federal troops for local law enforcement was passed in 1878.

Mr. SILLIMAN: It was almost a political accommodation, Robert. After the highly contested election of 1876, there was great concern that that election might have been at least affected by the presence of federal troops around the polling stations in the South. So in order to allow the election to be resolved, the Congress agreed to pass the Posse Comitatus Act.

SIEGEL: Which kept the Union army off--well, potentially off the streets of cities in the former Confederacy.

Mr. SILLIMAN: Exactly.

SIEGEL: Well, Scott Silliman, thank you very much for talking with us once again.

Mr. SILLIMAN: My pleasure, Robert.

SIEGEL: Scott Silliman was an Air Force judge advocate for 25 years. He is now the executive director of the Center for Law, Ethics and National Security at Duke University. He spoke to us from Durham, North Carolina.

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