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Bird Flu and the Posse Comitatus Act

Montesquieu, famous for his articulation of the theory of separation of powers, said, “There is no crueler tyranny than that which is perpetrated under the shield of law and in the name of justice.”

The latest test balloon of federal power enhancement comes in the form of public health response to the possibility of an outbreak of pandemic bird flu.

This administration seeks for Congress to grant it the power to use America’s military to enforce domestic order and impose martial law. President Bush stated, “I think the president ought to have all options on the table, all assets on the table to be able to deal with something this significant.” That ought to bother us deeply; so deeply that we take decisive action and let our elected officials know that this proposed action is a step too far.

On June 18, 1878, during the Reconstruction, recognizing the inherent danger to liberty posed by using soldiers for civilian law enforcement, Congress passed the Posse Comitatus Act (PCA). Title 18 US Code, Part I, Chapter 67, § 1385, reads:

Use of Army and Air Force as posse comitatus. Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Democrats as well as Republicans have been guilty of eyeing-up the PCA for reform. After the Okalahoma City bombing Senator Joseph Biden introduced legislation that would “moderately alter the posse comitatus,” and President Clinton proposed an exception to allow the military to aid civilian investigations involving “weapons of mass destruction.” In the 1996 presidential campaign candidate Bob Dole pledged to fight the drug war using our military, and candidate Lamar Alexander suggested creating a new branch of the military to replace the Immigration and Naturalization Service and the Border Patrol. If Biden and company had been able to reform the PCA in 1995, could B! ill Clinton have sent troops to Florida to stand guard over the ballot recount of 2000?

The gargantuan federal government will never resist the temptation to grant itself additional power. It is up to us at the grassroots level to confront it when it oversteps its bounds. It is incumbent upon us to tell it when it is wrong for the simple fact that they are wrong and not submit to the whims of “our side.” Precedent is real and it will be used against us sooner or later. In their turn when they are appointing department heads and granting various political favors, the “other side” will use every privilege we grant the federal government to their benefit.

Exceptions to the PCA already exist: In 1981, Congress created an exception to allow passive military assistance to civilian law enforcement, such as the provision of equipment, information training and advice. Eight years later, the Department of Defense became the “single lead agency” in drug interdiction efforts, requiring the Secretary of Defense to conduct annual briefings regarding the availability of military equipment and expertise to civilian law enforcement. In 1993, the PCA was amended to provide procedures for civilian agencies to purchase “law enforcement equipment suitable for counter-drug activities” through the Department of Defense, such as flash-bang grenades, assault rifles and armored personnel carriers.! The PCA could easily become completely undermined if we do not put a halt to the growing perception of our military as a panacea for all domestic problems. While modifications of the PCA do not necessarily make Americans safer, they do open us up to old abuses and possibly a few new ones.

U.S. Armed Forces are spread across the globe. Further expanding the role of the military on domestic soil would certainly stretch the military to beyond its currently too-thin capacity, weaken or destroy the healthy division between military and civilian duties and most frighteningly, weaken civilian control of the military. This should keep you up at night.

After risking all of this, who can promise that a military solution would work, and not devolve into some unintended consequence? Look at governments around the world and throughout history that tried this quick-fix-easy-answer approach. The results are not pretty.

This administration claims to be referring to a “catastrophe,” in which the Pentagon would be the only agency with enough strength to respond. However, the federalizing of emergency management has not proven itself worthy of expansion. The federal government should instead consider releasing monies back to the states to fund and re-equip National Guard and public health services, which are the proper channels for managing a national, or more accurately state-by-state, health emergency. These first-responders need to have materials, facilities and training (which should include practice drills) in order to make them effective. Governors in each state will certainly be held accountable to fulfill their role as st! ate commander-in-chief by the voting citizenry and the press.

Instead of asserting excessive executive power and trying to centralize, federalize and militarize America, why not revitalize the systems that we have in place and enable them to fulfill their intended purposes?

JILL S. FARRELL is a conservative communications and media relations professional. She can be reached at: jillsfarrell@yahoo.com

 

 

 

 

 

 

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