Congress may change the Posse Comitatus Act
Military May Play Bigger Relief Role
Sep 17 2:59 PM US/Eastern
By ROBERT BURNS
AP Military Writer
President Bush's push to give the military a bigger
role in responding to major disasters like Hurricane
Katrina could lead to a loosening of legal limits on
the use of federal troops on U.S. soil.
Pentagon officials are reviewing that possibility, and
some in Congress agree it needs to be considered.
Bush did not define the wider role he envisions for
the military. But in his speech to the nation from New
Orleans on Thursday, he alluded to the unmatched
ability of federal troops to provide supplies,
equipment, communications, transportation and other
assets the military lumps under the label of
The president called the military "the institution of
our government most capable of massive logistical
operations on a moment's notice."
At question, however, is how far to push the military
role, which by law may not include actions that can be
defined as law enforcement _ stopping traffic,
searching people, seizing property or making arrests.
That prohibition is spelled out in the Posse Comitatus
Act of enacted after the Civil War mainly to prevent
federal troops from supervising elections in former
Speaking on the Senate floor Thursday, Sen. John
Warner, R-Va., chairman of the Armed Services
Committee, said, "I believe the time has come that we
reflect on the Posse Comitatus Act." He advocated
giving the president and the secretary of defense
"correct standby authorities" to manage disasters.
Presidents have long been reluctant to deploy U.S.
troops domestically, leery of the image of federal
troops patrolling in their own country or of
embarrassing state and local officials.
The active-duty elements that Bush did send to
Louisiana and Mississippi included some Army and
Marine Corps helicopters and their crews, plus Navy
ships. The main federal ground forces, led by troops
of the 82nd Airborne Division from Fort Bragg, N.C.,
arrived late Saturday, five days after Katrina struck.
They helped with evacuations and performed
search-and-rescue missions in flooded portions of New
Orleans but did not join in law enforcement
The federal troops were led by Lt. Gen. Russel Honore.
The governors commanded their National Guard soldiers,
sent from dozens of states.
Defense Secretary Donald H. Rumsfeld is reviewing a
wide range of possible changes in the way the military
could be used in domestic emergencies, spokesman
Lawrence Di Rita said Friday. He said these included
possible changes in the relationship between federal
and state military authorities.
Under the existing relationship, a state's governor is
chiefly responsible for disaster preparedness and
Governors can request assistance from the Federal
Emergency Management Agency. If federal armed forces
are brought in to help, they do so in support of FEMA,
through the U.S. Northern Command, which was
established in 2002 as part of a military
reorganization after the 9/11 attacks.
Di Rita said Rumsfeld has not made recommendations to
Bush, but among the issues he is examining is the
viability of the Posse Comitatus Act. Di Rita called
it one of the "very archaic laws" from a different era
in U.S. history that limits the Pentagon's flexibility
in responding to 21st century domestic crises.
Another such law, Di Rita said, is the Civil War-era
Insurrection Act, which Bush could have invoked to
waive the law enforcement restrictions of the Posse
Comitatus Act. That would have enabled him to use
either National Guard soldiers or active-duty troops _
or both _ to quell the looting and other lawlessness
that broke out in New Orleans.
The Insurrection Act lets the president call troops
into federal action inside the United States whenever
"unlawful obstructions, combinations or assemblages _
or rebellion against the authority of the United
States _ make it impracticable to enforce the laws" in
The political problem in Katrina was that Bush would
have had to impose federal command over the wishes of
two governors _ Kathleen Blanco of Louisiana and Haley
Barbour of Mississippi _ who made it clear they wanted
to retain state control.
The last time the Insurrection Act was invoked was in
1992 when it was requested by California Gov. Pete
Wilson after the outbreak of race riots in Los
Angeles. President George H.W. Bush dispatched about
4,000 soldiers and Marines.
Di Rita cautioned against expecting quick answers to
tough questions like whether Congress should define
when to trigger the president's authority to send
federal troops to take charge of an emergency,
regardless of whether a governor agreed.
"Is there a way to define a threshold, or an
anticipated threshold, above which a different set of
relationships would kick in?" Di Rita asked. "That's a
good question. It's only been two weeks, so don't
expect us to have the answers. But those are the kinds
of questions we need to be asking."