Military Ban on Law Enforcement Questioned

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Federal troops assisting local governments with disaster relief are not allowed to engage in law enforcement, according to the 1878 law known as the Posse Comitatus Act. But the Bush administration, the Pentagon and members of Congress are considering loosening that longstanding restriction.


Following Hurricane Katrina, federal authorities are talking about the possibility of expanding the role of active-duty American troops in the event of a catastrophe. The regular military is barred from engaging in any law enforcement activity on American soil, but officials are considering loosening that restriction, as NPR's Vicky O'Hara reports.

VICKY O'HARA reporting:

President Bush has called for a larger role for the military in coping with domestic disasters. The military, he said last week, is the only institution of government capable of massive logistical operations on a moment's notice. President Bush did not go into details, but Defense Secretary Donald Rumsfeld says the president makes a valid point. Rumsfeld told a Pentagon briefing on Tuesday that, if asked, the military could take on a larger role, even with the burdens of extended deployments in Iraq and Afghanistan.

Secretary DONALD RUMSFELD (Defense Department): We have the capability in the department to do the things that we're likely to be asked to do, including homeland defense.

O'HARA: The military traditionally plays a supporting role in disasters, behind local responders, the Federal Emergency Management Agency and the National Guard, who serve under state governors. Federal troops are not allowed to engage in law enforcement under an 1878 law known as the Posse Comitatus Act. It was passed after the Civil War to prevent federal troops from overseeing elections in Southern states. Some Pentagon officials have called the law archaic and say it prevented a speedier federal response to Hurricane Katrina. But many Americans see the law as an important guarantor of civil liberties. Retired Brigadier General David Brahms, a former legal adviser to the US Marine Corps, says Posse Comitatus should stay on the books.

Brigadier General DAVID BRAHMS (Retired; US Marine Corps): I think the bottom line is the issue of whether this is politically correct in a democratic society to have the armed forces at the beck and call of the commander in chief to act as a police presence. I'm frightened by the prospect, regardless of who the president is.

O'HARA: General John Keane, who retired last fall as Army vice chief of staff, says he thinks that the president has the obligation and should have the authority in a catastrophe to use federal troops to rescue civilians, even if state and local authorities are opposed.

General JOHN KEANE (Former Army Vice Chief of Staff): One of the things we've had to come to grips with and it's difficult to deal with, is that we cannot expect a Rudolph Giuliani to be present every time we have a catastrophe, that we are going to run into people who are in elected positions who do not have the experience level to be able to deal with a catastrophe that requires such an enormous response.

O'HARA: Keane notes that in the case of Katrina, the governors of Louisiana and Mississippi initially did not ask for the help of federal troops. President Bush could have intervened anyway under the powers of Homeland Security and a law known as the Insurrection Act. But that would have been risky politically, given American sensitivities about federal interference in local affairs. Despite Secretary Rumsfeld's assertion that the military could handle expanded responsibilities, some military analysts are not so sure. Retired Marine General Joseph Hoar, a former head of US Central Command, says this is not the time to be asking more of overstretched US forces.

General JOSEPH HOAR (Retired; US Marine Corps): Today, given the very high level of activity for the US military with regard to Afghanistan and Iraq, I think it would be very difficult and would have an effect on readiness.

O'HARA: General Hoar says that the frequent rotations of troops in and out of Iraq and Afghanistan leave precious little time for training between deployments, training troops need to prepare for constantly changing enemy tactics. But General Keane says the fundamental role of the military is to protect the American people, and when they are threatened at home, Keane says, the armed forces must be in a position to respond. Senator Warner has made it clear that his committee will examine the entire legal framework governing the use of active-duty troops in a protracted emergency. Vicky O'Hara, NPR News, Washington.

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