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Bill seeks to repeal stealthy erosion of posse comitatus
Posted by on Monday, February 19, 2007 at 2:26 pm

I’m with the New York Times on this one:

A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.

The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.

The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

Changes of this magnitude should be made only after a thorough public airing. But these new presidential powers were slipped into the law without hearings or public debate. The president made no mention of the changes when he signed the measure, and neither the White House nor Congress consulted in advance with the nation’s governors.

There is a bipartisan bill, introduced by Senators Patrick Leahy, Democrat of Vermont, and Christopher Bond, Republican of Missouri, and backed unanimously by the nation’s governors, that would repeal the stealthy revisions. Congress should pass it. If changes of this kind are proposed in the future, they must get a full and open debate.

I’m not certain the law — or some portion of it — isn’t necessary. But things like this certainly shouldn’t be passed in the dead of night without any debate or discussion. That’s just indefensible, and it’s an excellent example of why public mistrust of the Bush Administration and the Republican ex-leadership in Congress is not simply a consequence of MSM propaganda and “Bush Derangement Syndrome.” There are those who suffer from BDS, and there is corrosive bias in the MSM, but there are also some very real reasons to mistrust this president and his party.




32 Comments on “Bill seeks to repeal stealthy erosion of posse comitatus”

  1. Mad Max, Esquire Says:

    Too many people have died for the freedoms we have to have a guy like Bush quietly repeal them in the dead of night, whether he intends to abuse them or not.

  2. Brendan Loy Says:

    Indeed.

  3. gahrie Says:

    Bush didn’t, Congress did. And the Democrats went along with it, tacitly or not.

  4. Brett Says:

    Too many people have died for the freedoms we have to have a guy like Bush quietly repeal them in the dead of night, whether he intends to abuse them or not.

    I agree that changes like this should be open and debated but that comment is a little over the top.

    Name some of these “freedoms” that Bush has taken from you in the middle of the night.

  5. Anonymous Says:

    Brett, don’t get your hopes up. Mad Max’s comments are typical of the unwarranted vitriol that he vomits over this blog.

    Anyone notice the irony here? The MSM had a fit when Bush did not act quickly enough over Katrina by sending in troops to restore order. They blame him for the clusterf**k that resulted. The whole posse comitatus policy was in the news back then–people spoke of expanding it. Yet now the gripe is that Bush (even though it was Congress) has expanded it too much. Now, there might be good reasons to expand or cut back the policy. But it would be nice to have a debate without the usual MSM hypocrisy.

  6. Sean Says:

    I still find it amazing that an intelligent, articulate person (in this case, Brendan) can write a lengthy explanation of the exact liberties in peril and in the precise manner, then some idiot conservative can still cry, “Oh, yeah? What rights?”

    Really, people. You have to do more than call somebody a liberal or insult the news media to actually establish an argument or anything even resembling a point.

  7. David K. Says:

    That would be true anonymous, if you know thats what people had ACTUALLY been complaining about. Very few if any of the complaints i saw had to do with restoring order and more to do with disaster relief and recovery. Do that right and you don’t NEED to deal with the chaos that ensued, plus you free up the local police to do the restoring order part.

    And um, Brett, the Posse Comitatus provisions ARE the freedom that Bush took in the middle of the night

  8. Brendan Loy Says:

    Yet now the gripe is that Bush (even though it was Congress) has expanded it too much.

    No. The gripe is that Bush and his allies in Congress (or, if you prefer, the Republicans in Congress and their allies in the White House… it amounts to the same thing, no matter how you phrase it) expanded it without any sort of public discussion or debate. As I said above, “I’m not certain the law — or some portion of it — isn’t necessary.” I was thinking specifically of Katrina and the possibility of a bird-flu outbreak when I said that. But just because a change in the law might be needed, doesn’t make it right to fundamentally alter the state of our freedoms without a public debate. And just because the media said (correctly) that the federal government response to Katrina was poor, doesn’t mean they’re giving Bush or the Republicans a blank check to make whatever changes they see fit. If the MSM was digging in its heels and saying no changes should be made, period, then yes, that would be hypocritical. But that’s not what they’re doing.

  9. Jazz Says:

    In the hoopla of finger-pointing post-Katrina, the Bush-o-philes (understanably) blamed Nagin, Blanco and the NOLA officials who didn’t respond appropriately to their local catastrophe.

    When Blanco and Nagin lamely said they were expecting the Feds to take control, the Bush-o-philes again cried foul, saying that it wasn’t the role of the Federal government to coordinate first response to a local disaster.

    At that time, the Bush-o-philes were singing from the traditional right wing song book, their POV (then) made perfect sense from the Good Book of Right Wing Politics.

    Now, aside from the delicious joy of taking shots at Mad Max, or the Bush-as-Simon-from-Lord-of-the-Flies defense of every act of the President, irrespective of the specifics, how can the Republican-types possibly support this?

    Repealing posse comitatus is SUCH a John Kerry-ish maneuver.

    Maybe Bush had some sort of Republican-friendly reason…wouldn’t you all like to know what that reason is before you blindly support this big-Federal-government gesture?

  10. Mad Max, Esquire Says:

    I don’t know, Brett. Seems to me that Jose Padilla - an American citizen who was picked up in O’Hare airport - has been held without being charged of any crime for a number of years. Initially, he was denied a lawyer for several months. And from what I have heard, the case against him is pretty flimsy.

    I’m not defending Padilla. He could be a terrorist. However, we will never know because there hasn’t been a trial. I’m not even sure if there was ever an indictment. All I know is if we allow an American citizen to be picked up on flimsy evidence and held for years without due process at the urging of the POTUS, are any of us immune?

  11. Mad Max, Esquire Says:

    “the delicious joy of taking shots at Mad Max”

    Actually, Jazz, the joy is all mine. As far as I can tell, my opinions have been mostly supported by reality and gahrie, Joe Mama, Alasdair, etc, are sounding increasingly crazy over time.

  12. Mad Max, Esquire Says:

    “Bush didn’t, Congress did. And the Democrats went along with it, tacitly or not.”

    gahrie-

    That may be the case for the Patriot Act, but not for Bush’s notorious signing statements.

    I agree that the Dems need to grow a backbone on this issue. But, the whole effort is being orchestrated by Bush and the neo-cons.

  13. Joe Mama Says:

    Taking the NYTimes’ account at face value, I agree that “changes of this kind . . . must get a full and open debate.” If it were the President’s responsibility to ensure that such a debate took place, I might agree with hyperbole like “[t]oo many people have died for the freedoms we have to have a guy like Bush quietly repeal them in the dead of night.” Of course, at the risk of being labeled a “Bush-o-phile” who “sings from the traditional right wing song book” and “reads from the Good Book of Right Wing Politics” and advocates “Bush-as-Simon-from-Lord-of-the-Flies defense of every act of the President” and WhateverWhatever-BlahBlah, the Constitution pretty clearly establishes that the responsibility of having such a debate lies with the legislative branch, not the executive branch. Whether or not Bush asked fellow Republicans that such a provision be “tucked” or “slipped” (written in invisible ink?) into a bill, the buck on what gets voted through Congress stops with Congress.

    This reminds me of the only worthwhile segment in “Bowling for Columbine,” when Rep. Conyers sarcastically asks Michael Moore something along the lines of, “You think we read the bills we vote on?” Yes, you should. Work more than a two-day work week or hire some more staffers, but ignorance of what is in a bill is no excuse for a legislator whose job is to vote on bills.

  14. Mad Max, Esquire Says:

    First, Joe Mama, for someone who works in Washington, DC, you demonstrate a total lack of understanding of how a Congressional office works. Members of Congress have staffs who review the legislation and brief members on what is in it. Funny that a DC-laywer like yourself wouldn’t know that. Guess you are too busy getting the soy lattes for the “posers” you work for.

    Second, as for the debate, it is bad form for the President and his advisors to attack anyone who questions the war as “cut and runners” or “traitors” as Bush and his people have done. I don’t seem to recall Lincoln or FDR resorting to those kinds of tactics when the wars they were overseeing were flagging.

  15. Anonymous Says:

    Guess you are too busy getting the soy lattes for the “posers” you work for.

    Here comes the douchebag again.

  16. Jazz Says:

    FWIW, Joe Mama, I am a Republican, and for the most part I read from the “Good Book of Republican Politics”.
    WRT to Katrina, I do blame FEMA to some extent, but that’s mainly because it was obvious that Nagin/Blanco were clueless as that storm turned past Key West, and the gravity of the poor local response called for a FEMA intervention…generally speaking, I favor local solutions the way a good right-winger should.

    What I find frustrating, and indicated by your most recent post, is the people in my party who adhere less to the principles of the party, and more to the enjoyment of being on whichever side of the aisle the “correct” folks are gathering.

    Repeal of posse comitatus is rather remarkable, given the things that we Republicans philosophically believe. Do any Republicans care?

    (With only a small amount of irony, you should be careful about mocking the liberals - Bush might well endorse the things you mock, subsequently forcing you to approve them).

  17. Joe Mama Says:

    What I find frustrating, and indicated by your most recent post, is the people in my party who adhere less to the principles of the party, and more to the enjoyment of being on whichever side of the aisle the “correct” folks are gathering.

    I’m not sure what I said that went against the principles of the Republican Party, or what the “correct” side of the aisle means in this instance, for that matter. FWIW, my instict would be to oppose repeal of posse comitatus, at least in principle. I have nothing to go on here except what the NYTimes said in an editorial, so I can’t really comment intelligently until I know more about the provisions in question and the history of posse comitatus. What I can say is that blaming Bush for a lack of debate in Congress misses the mark badly, which is why I’m not surprised that that was Max’s first impulse. To the extent Bush attempted or instructed members of Congress to hide the ball on his behalf, that is of course improper. But as we all know by now, just because Max says it is so doesn’t make it so, as evidenced by the fact that he doesn’t know the first thing about me or what I do for a living (other than the fact that I’m a lawyer).

  18. Andrew Says:

    I agree with this part (with my alternate finish to the sentence):

    But things like this certainly shouldn’t be passed in the dead of night without any debate or discussion. That’s just indefensible, and it’s one small but excellent example of why the GOP lost its base and got hammered this past election.

    As far as Bush, everyone for and against Bush should fully know by now that he is not a small-government, libertarian-minded conservative — he believes in flexing federal power for conservative causes. You could say he believes in conservative ends more than he does conservative means. I don’t think anyone should be surprised whatsoever that Bush signed this bill into law and was probably fully content with the power it gave the Executive. But is that reason to distrust the president? No — he was true to his self the whole time. So if you really want to aim your ire at the president and his administration, then yes, I do think that is a little bit of BDS –or just plain ignorance — at work there.

    Where the distrust and frustration should lie is with the Congressional leadership on both sides of the aisle that allowed this to happen: the GOP for sneaking the provisions into the bill in the middle of the night, and the Dems for not squealing bloody murder when the GOP did that. Since the GOP got their right justice this past November by getting their asses kicked in the election, there’s little to complain about.

  19. Jazz Says:

    I might have mentioned previously that I just finished the book “D-Day” by Steven Ambrose. Interesting book, if somewhat tainted by the whiff of plagiarism, and one that leads to an inescapable conclusion:

    The allied social model (i.e. freedom/capitalism) was in every respect superior to the Nazi model (i.e. totalitarianism) on that critical day.

    Its pretty damn inspiring, if you are a believer in freedom/enfranchisement like I am. Hitler was quite sure that the Allies’ “diffusion of responsibility” would lead to chaos on D-day, while his central command and control would carry the day.

    In fact, quite the opposite occured. Hitler was late/woefully incorrect in his strategic moves, while on the allied side, infantrymen all up and down the beach put on their commander hats, where necessary, to break through Hitler’s Atlantic Wall.

    The reason we (classic) conservatives don’t want the Federal bureaucracy responsible for the first line of defense in a terrorist/biological/other catastrophe is because we fear that the Feds would be late/incorrect (as Hitler was on D-day), while the locals “should” be mobilized and responsive (as the Allied infantry/medics/engineers/etc were on D-day).

    I confess I am not sure what Andrew means by “believing in conservative ends more than conservative means”. Returning to the D-day example, its quite clear that the Allies relied on conservative means, while Hitler took a more “left-wing” approach…Hitler and Eisenhower most certainly had the same “end” that day - winning - what distinguished them is the means.

    When Andrew further says that this continued centralization of power is “par for the course” for this President, and that because it is “not surprising” it should also “not be troubling”, well that is troubling -

    - because it raises the following question: is it okay to proceed as Hitler did on D-day, as long as you INTEND to win?

    (Jimmy Carter INTENDED to win the Cold War, as far as we can determine…)

  20. David Ross Says:

    If we are arguing from “strict constructionism”, then you need to learn about the context of 1878.

    The South had nearly broken the Union in the Civil War, and after its well-deserved drubbing it again went into rebellion in order to suppress the black vote. In 1876, the Democrats had lynched and terrorised enough blacks and sympathisers that they were able to steal several State elections. The Republicans stole it right back, of course, but chose to make deals with the South for the victory to hold.

    If I am reading this right, then posse comitatus tells the federal government: it doesn’t matter how many Klansmen and incompetents are in our police force, we’re still not going to allow any oversight of what we do.

    Not much has changed in the Gulf Coast: our Democrats still want to screw over the black man, while keeping the Feds out, and blaming Republicans for it all…

  21. gahrie Says:

    Jimmy Carter INTENDED to win the Cold War, as far as we can determine…)

    Actually, one of the biggest problems with Carter’s presidency, is that this is not true. It was accepted wisdom by the ruling elites at this time that the Cold War was unwinnable, and that we must accomodate the USSR, and live with it. This attitude directly led to the Soviet invasion of Afghanistan, the Sandinistas in Angoila, a Communist government in Grenada, and the Communist insurgency in El Salvador. ( I also believe it played a role in the Iranian hostage crisis.)

    Pres. Reagan was denounced as a dangerous cowboy when he announced that not only could the Cold War be won, but that we should be actively trying to do so. The world’s Left Wing elites nearly fainted when he dared to call the USSR an evil empire.

    Nixon favored detente, Carter favored accomodation and Reagan insisted on winning the Cold War.

  22. gahrie Says:

    By the way, that’s Sandinistas in Nicaraugra, and Cuban fighters in Angola….

  23. Angrier and Angrier Says:

    Joe Mama-

    Everyone knows what you do. You are a “lawyer” in Alexandria, VA who works near the U.S. Patent Office for a bunch of “posers” (as you describe them). Based on your whining about your job, it is easy to assume that you are basically a butt-boy for the firms’ partners. Even worse, you might work for the Feds, which means you get paid shit to be a butt-boy.

  24. dcl Says:

    Just a short note to both Conservatives and Liberals: Ronald Reagan did not win the cold war Communism collapsed under its on weight of stupid bureaucratic bungling and various other assorted inanities and malfunctions inherent to any government but exacerbated by the way a full Communist system functions; in addition the selfish, hubristic, and megalomaniacal tendencies in all leaders of people went unchecked in any functional manner by the political system allowing the inherent shortcomings of government and Communism to be exacerbated even further–ultimately resulting in full on economic collapse; a Collapse hastened by envious efforts to keep up with some national ideal–this ideal was ultimately fed in part by a Western PR campaign that more or less said, “hey look at all the neat crap we’ve got and you don’t;” of course that PR campaign has now gotten us into trouble with our present enemy–they think of us mainly as prideful consumers of pointless crap–but that’s the topic of a different run on sentence.

  25. Sean Says:

    Did somebody actually call Hitler a left-winger? The man was a right-winger who roundly condemned - and imprisoned and killed - liberals all the time. You want left-wing dictators, stick to Robespierre and Napoleon and Stalin and Kruschev and Chavez, etc. (Although, liberals generally don’t fare well under Communists, who routinely issue polemics against “liberals and leftists.”)

    PS, this post got mentioned in a libertarian blog called The Liberty Papers. (www.thelibertypapers.org)

  26. Alasdair Says:

    dcl - Hitler was left-wing - all the way from sorta lefty to all the way out in totalitarian territory where the left-wing and the right-wing meet up again … his ’style’ and tactics were much more left-wing than right-wing - as would be expected from a Socialist party … try not to forget that he was the leader of the National Socialist party - even if most poeple now simple remember him as the leader of the Nazi Party …

  27. Jazz Says:

    Sean raises an interesting challenge: how do you define a liberal vs. conservative? That would make for a fascinating thread, and if young Loy or others are reading this, I recommend that in the not-too-distant future.

    My own stab at it would go something like this:

    Conservative: believes in individual autonomy, that the good of the collective is realized when each individual maximizes his/her own well-being, government only exists to coordinate/moderate dangerous excesses in individuals maximizing their well-being. Power clearly resides in the hands of the individual.

    Liberal: believes in centralized control; that the good of the collective is maximized when a central entity tells each individual what to do and where and when to do it, that individual autonomy exists only to the extent that the people work to serve the collectively-defined interest. Power is vested in the hands of the state.

    There could be a million other ways to slice this; some of which (e.g. conservative = pro-life, liberal = pro-choice) are precisely the opposite of what I laid out above.

    Be that as it may, if you happened to agree with my model, you would conclude that Hitler, as Alasdair said, would be labelled a liberal.

    And, as long as we’re on the topic, so might George W. Bush.

  28. Aaron Says:

    Jazz,

    That would be a fun thread. Brendan could link to one of those “political compass” type quizes, and people here could take it and post their results.

    Definitions for these words, as you mention, are notoriously hard to pin down. Personally I’d say your definitions are way off. They are much closer to the definitions of “libertarian” and “communist.” But I hope we get a thread to argue this in.

  29. Andrew Says:

    Political ideologies are a matrix, not a left-right scale, although I could accept for certain arguments a circular reference such as proposed by Alasdair above, because really there is little practical difference between a Stalin and a Hitler.

    Jazz, I am afraid you’ve misunderstood my point by a large margin, partly because you’ve put words in my mouth. I merely said we shouldn’t be surprised whatsoever by the president’s desire for more power and control — not that it wasn’t troubling. Whether the president’s actions are troubling to you depends entirely on your ideological frame of reference, but objectively within the president’s own ideological frame of reference, none of his actions are at all surprising.

  30. Joe Mama Says:

    Heh. Which of the previous seven comments is not like the others?

    I almost want to tell you exactly what I do, A&A, but listening to your crap is too much fun.

  31. Alasdair Says:

    Jazz - your definitions of Conservative and Liberal founder upon the fatal phrase “that the good of the collective is realized “ … Conservative tend not to respect “collectives” … and Liberals are horrified by what “collectives” require of their members …

    In comparatively recent times (politically), the Conservative seeks a Governance wherein anyone *may* (or may not) rise to the highest levels … whereas the Liberal seeks a Governance wherein no-one *may* (as in “is permitted to”) rise above the lowest levels …

    As an example - Liberals championing “Public Schools Only” while Conservatives champion “Voucher Systems” …

    As Aaron said, the Liberal definition you gave is much more like Communist - I don’t see Libertarian being willing to even *use* the word “collective” with anything even vaguely like approval, however …

  32. David K. Says:

    In comparatively recent times (politically), the Conservative seeks a Governance wherein anyone *may* (or may not) rise to the highest levels … whereas the Liberal seeks a Governance wherein no-one *may* (as in “is permitted to”) rise above the lowest levels …

    As an example - Liberals championing “Public Schools Only” while Conservatives champion “Voucher Systems” …

    Yes, because clearly no one who went to public school has ever achieved success…


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