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Posse Comitatus on the Merits

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Over e-mail, Glenn has suggested that the origins of posse comitatus in the United States are irrelevant to the wisdom of maintaining the policy today. I only partially agree with that claim. To briefly set aside the question of the origins, and to entirely set aside the question of whether the incident Glenn mentions actually represents an erosion of posse comitatus, it is certainly worthwhile to examine whether or not posse comitatus is a policy worth maintaining. It’s also worthwhile to dispose of this:

Even after the last 8 years, there are still plenty of people — including, apparently, liberals like Farley — who dismissively wave away concerns about presidential seizures of radical, dangerous and possibly illegal powers as nothing to worry about. That mentality bodes well for the McCain/Palin ticket and for authoritarian policies in general, and explains much of what has happened during the Bush era (throngs of people like Farley who mocked objections to Bush’s radical executive power theories as “handwringing”).

Yup…. C’mon, Glenn; just call me Neville Chamberlain. You know you want to.

Anyway, the case against posse comitatus runs something like this; giving the President the capacity to legally use the United States Army within the United States will lead to an increase in the militarization of our society, and an erosion in our civil liberties, the latter created by the increased capacity of the President to use force in the face of civil disobedience. Moreover, while the United States Army has a substantial organizational capacity, its strengths do not lie in crowd control, disaster relief, or other tasks that a President might wish to use it for; even though the Kent State incident didn’t actually involve the US Army, more incidents like Kent State would occur if the Army was regularly used inside the borders of the United States. This is an entirely reasonable case, and one that reasonable people can hold to; if there’s a part of the case that I’m missing, please feel free to indicate in comments, because I don’t want to build and burn a strawman. It’s also fair to say that no small percentage of United States Army officers hold to this position; the Army is not, by any means, seeking a larger internal role. Moreover, while posse comitatus in the United States was born of the effort to destroy Reconstruction, as a policy it certainly shares much with the concerns of the Founders regarding the dangers of standing armies.

So what’s the case against? The first is merely practical; the military is capable of a multitude of tasks associated with disaster relief and crisis preparedness, and is regularly asked to execute the disaster relief role. It would be better, I think, if we simply accepted what everyone already knows (that the military will be asked to participate in disaster relief, as indeed is allowed by the Posse Comitatus Act), instead of regarding the semi-permanent designation of a brigade to handle and prepare for disaster relief as an encroachment on civil liberty. This brigade is not, in fact, the only one stationed in the United States, and is not the only one that would be asked to respond in the case of natural disaster. Moreover, the use of the military in natural disasters isn’t something that started in the Bush administration, but rather has been ongoing for some time.

The case for holding the line on posse comitatus would be more compelling if the theoretical argument made more sense. Civil liberties come under threat not simply from the Federal Government, but also from states, localities, and private actors. Armed force is not inherently hostile to civil liberties; indeed, it can and has enabled people to take advantage of their civil and political rights, such as voting, assembly, and speech. As such, an increase in the ability of the Federal government (through use of the Army) to intervene in domestic situations does not necessarily lead to a loss of freedom. If rights come under threat from private actors, localities, or states, then the intervention of the Federal government can have a net positive effect on the ability of the people to take advantage of their civil rights. Moreover, the Federal government is a good deal more capable of protecting civil liberties than states or localities, because it enjoys far greater resources. Small government entities are no more likely to recognize civil liberties, political freedoms, or minority rights than the Federal government, and potentially could be a good deal likely.

Now, this may all seem terribly abstract; the intervention of the Federal government in a military sense could yield benefits for civil liberties, but is it likely to do so? The possibility of a direct confrontation between the Federal government and a state or local government that would require the use of the Army, or even the threat of the use of the Army, would seem pretty unlikely. This, I think, is where the history becomes relevant. In asking whether posse comitatus results in a net positive or negative for civil liberties, it hardly seems irrelevant to note that the Posse Comitatus Act was part of an explicit bargain to enable the re-establishment of a white supremacist regime across the South. In other words, the point of the act was to insulate states and localities from the threat of Federal force, such that those states and localities could either tolerate white supremacist activites (involving the disenfranchisement and murder of thousands of African-Americans) or directly engage in the support of those white supremacist activities. It’s not as if this behavior stopped in 1952; states and localities bitterly resisted Federal efforts to disassemble the white supremacist regime that held sway over the South after Reconstruction throughout the heyday of the Civil Rights Movement. Moreover, efforts to resist the expansion of civil rights and civil liberties on the part of states and localities continue to this day, albeit through means less direct than those pursued in 1890.

In short, the Federal government might well try to use the Army to threaten civil liberties, but we absolutely, without a doubt know that states and localities will use force and other means to eliminate or reduce civil liberties, and we also know that the desire of states to do this has been a significant source of friction between those states and the Federal government for the last 130 years. This is why the invocations of Kent State, the Minneapolis police, and various other organs of state are rather beside the point in a discussion of posse comitatus; states and localities already possess considerable coercive capacity, and have demonstrated a strong willingness to use that capacity against groups and individuals that they don’t care for. We also know that in the most egregious case of the destruction of civil liberties in US history (the end of Reconstruction and the establishment of Jim Crow), the states perceived the Federal government to be their enemy and sought a specific prohibition on the ability of the Federal government to mess with their business.

This point is not lost on conservatives. There’s a reason that Glenn found it useful to cite Alan Bock, a right-wing libertarian who strongly opposes Federal interference in local affairs. Bock, to put it as simply as possible, doesn’t believe that the Federal government had any business in enforcing respect for civil liberties during Reconstruction, or during any other period of note. It’s not that he’s afraid of what the Federal government might do; he thought it was wrong to use the Army to enable black people to vote in the first place. Similarly, Glenn cites right wing libertarian James Bovard in defense of his case for posse comitatus. These are hardly the only right wingers to share an aversion to Federal power; to the extent that “state’s rights” has any content whatsoever, it has typically included a commitment to the privilege of state’s to restrict the civil liberties of whatever minority groups that find distasteful.

And so yes, it is possible to have a reasoned objection to posse comitatus without necessarily being an appeaser of the Bush administration. Glenn (and some others) think that the Reconstruction story is irrelevant, but it’s not at all difficult for me to envision the need for troops to protect the rights of African-Americans to vote, or of women to have access to abortions. It makes a substantial difference whether those troops belong to (say) the Alabama National Guard, or the US Army; I know that I’d strongly prefer the latter.

See also Yglesias, who touches on some of these points. Chris Quillen had a good article on posse comitatus in the Spring 2002 Parameters, the timing of which should also suggest that this debate was ongoing prior to the Bush administration. Finally, let me again recommend Nicholas Lemann’s Redemption, which is a detailed account of the role that the US Army played in Reconstruction-era Mississippi.

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