Updated October 1, 2005








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By James P. Tucker Jr.

The hurricanes that recently devastated the Gulf Coast now threaten constitutional government.

President Bush has Congress seriously considering allowing the U.S. military to enter a state and take over in the event of a national disaster, countrywide epidemic or terrorist attack.

Under present law and policy, dating back to the Founders, who feared a “national police force,” the federal military defends U.S. shores against foreign invaders and has no domestic role.

It was Abraham Lincoln who set the precedent that, if a president declares a state to be in rebellion against the United States, he can order troops there regardless of whether the governor asks for them. These restrictions on the central government were important to the Founders, who insisted on the Second Amendment right to bear arms to assure Americans that if the national government they created became as oppressive as the British government they overthrew, the people would have the means to resist.

To fortify the Constitution’s separation of powers on the military issue, in 1878, Congress passed Posse Comitatus legislation prohibiting the armed forces from enforcing domestic law.

This is no impediment to rescue efforts; a governor can always ask the president for federal help, which can arrive and be “pre-positioned” before the storm hits. But today, there is a danger that ignorant congressmen will approve legislation that would allow a president to order federal troops into a state whether or not the governor or people want them by merely deciding that there is a state of emergency.

Does a “natural disaster . . . enable the Defense Department to become the lead agency in coordinating and leading the response effort?” Bush asked rhetorically.  “That’s going to be a very important consideration for Congress to think about.”

Bush packaged his plan to win authority to use the military as a national police force by tactically sandwiching it into a proposal to have the federal government be the first responder with total control in the event of a terrorist attack, a natural disaster or an epidemic.

Bush already has the authority on terrorist attacks, which can, in some cases, be an act of war. The Army defends America at war even on the home front. On the other hand, in cases of storms, flooding, earthquakes or pandemics, the line is not so obvious.

“It may require change of law,” Bush said. “It’s very important for us as we look at the lessons of Katrina to think about other scenarios that might require a wellplanned, significant federal response—right off the bat—to provide stability.”

Homeland Security Czar Michael Chertoff went one step further saying recently that federal authorities should have overruled local and state officials in the mess following Hurricane Katrina and simply seized control of disaster areas.

Imposing “stability” during any catastrophe would likely require federal troops to arrest looters, seize firearms and perform other questionable law-enforcement acts in violation of the Posse Comitatus Act.

But, ominously, the federal government has had the military practicing for occupying localities for years. On grounds that much of modern combat is in urban areas, the Army has been conducting street-by-street drills, complete with overhead helicopters, for at least a decade.

In New Orleans, lawmen confiscated guns from the homes of law-abiding citizens at the very moment muggers, looters and rapists were reportedly prowling the streets to loot, rob and kill.

Quick legal action by the National Rifle Association resulted in a federal court stopping the gun confiscation.

But a federal army occupying a stormy state could have carried out the same operations with more power and with much more efficiency.

What other motive could there be than to turn the U.S. military into a domestic police force?

(Issue #41, October 10, 2005)

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