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The Posse Comitatus myth

Recently, there's been a curious urban legend going around that says the president was unable to do more to help the victims of Katrina because of an old law with a funny name: the Posse Comitatus Act. Since apparently hasn't got around to debunking this one yet, I'll take it upon myself to do so.

First, what the hell is Posse Comitatus? Well, I'll just be lazy and quote from the Wikipedia entry:

"The Posse Comitatus Act is a federal law of the United States (18 U.S.C. ยง 1385) passed in 1878, after the end of Reconstruction, and was intended to prohibit Federal troops from supervising elections in former Confederate states. It generally prohibits Federal military personnel and units of the United States National Guard under Federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. "

What does this have to do with Katrina? I'll let the Bush apologists tell you:

Bill Barr: "The Posse Comitatus Act prevents, by federal law, the president of the United States from sending federal troops into any state without the direct request of the elected governor of that state. A frustrated President Bush could only stand by and watch as the horror unfolded until he received the request for help. Despite the finger-pointing at President Bush, there was little that he could do until he was formally asked for assistance. No matter how loudly the liberals scream, they know full well that the president was helpless to do much of anything."

Karen's Korner: "The President acted as fast as he could under the Posse Comitatus Law. That law prevents a President from sending federal troops or assistance into any state unless the Governor of that State requests it."

John Armor: "Federal law prevents the President from sending in the National Guard until the Governor gives the order ... U.S. military units (regular Army, not the Guard) cannot be used because of the Posse Comitatus law."

Buckhorn Road: " ...the reason the federal government took awhile to get going was because they can't just waltz into a state, even if it is for benevolent purposes. The feds have to wait for the governor of the state to invite them in. Unfortunately for Louisiana, their Governor Blanco took her damn sweet time asking for federal assistance. You don't want the federal government waltzing its troops into states uninvited, even if it is for a good purpose, because then someday, the feds will get the idea that it is OK to send them in there for sinister purposes. There is this little law called the Posse Comitatus act that prevents federal troops from being used in dealings with state citizens, whether to save them, or to hurt them, without cooperation from the state involved."

Snark Patrol: "when are the moonbats going to figure out that you can't demand President Bush just brush aside the Constitution, posse comitatus, and the entire federal structure? That is, not with a straight face. Not after accusing him of being an imperialistic warmonger."

A Technorati search will show you dozens more examples. But they are all mistaken; the Posse Comitatus Act did not prevent Bush from doing more to assist the people of New Orleans. From the Washington University Law Quarterly (emphasis added):
The PCA proscribes the use of the military "as a posse comitatus or otherwise to execute the laws." ... United States v. McArthur , approved by the Eighth Circuit in United States v. Casper ... focussed on the individual subjected to the PCA violation. The McArthur formulation asked whether "military personnel subjected . . . citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature." ... United States v. Yunis further clarified the elements of the McArthur formulation: regulatory power "controls or directs"; proscriptive power "prohibits or condemns"; and compulsory power "exerts some coercive force."

... There are many other uses of the military which seem to implicate the PCA, but are not within its scope because law is not being enforced. Since the passage of the PCA, the military has been used several times for domestic purposes that do not conform to its traditional role. The PCA proscribes use of the army in civilian law enforcement, but it has not prevented military assistance in what have been deemed national emergencies, such as strike replacements and disaster relief.

...Presidents Richard Nixon and Ronald Reagan both used the military to replace striking federal employees.

... Disaster relief, another common use of the military, does not seem to violate the PCA because it is not a mission executing the laws. In the 1906 San Francisco earthquake, the Army led the effort to put out fires and restore order. More recently, Hurricane Hugo in Florida resulted in a large military presence during the relief effort.
The PCA probably would have prohibited Bush from forcing an evacuation of New Orleans against the wishes of local and state officials. But the notion that the PCA "prevents a President from sending federal troops or assistance into any state unless the Governor of that State requests it," that it "prevents federal troops from being used in dealings with state citizens, whether to save them, or to hurt them, without cooperation from the state involved," is simply a misunderstanding of the law.

The idea that Bush was a helpless bystander in all this is politically convenient for the GOP. It does not, however, have the additional feature of actually being true. But when did they ever let that stop them, or even slow them down?

(Cross-posted at Liberal Street Fighter.)

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