In the aftermath of Hurricane Katrina, Congress should move quickly to follow the suggestion of President Bush and modify the Posse Comitatus Act so the president can use the military in law enforcement operations whenever a major national catastrophe is declared and many lives are at risk.
This is but one policy reform we need in the aftermath of this summer’s terrible tragedy, but it is a key one.
In almost all previous national disasters, it has been enough for the Federal Emergency Management Agency and the military to marshal most of their forces in days. The paradigm has been one of rapid, but not truly urgent, response. We now know that this is not always good enough. In some cases, it is essential to respond within hours rather than days. To make this possible, posse comitatus needs to change.
The basic argument for lifting the posse comitatus restriction in response to catastrophes is that in many cases, active-duty forces might be in the best position to respond quickly. There is no reason to favor them over National Guard units when all else is equal, and no reason to call on either when local first-responders can do the job.
But if military forces are needed, and if active-duty units can deploy more quickly than Guard units, or with a better mix of available equipment, or with better preparation for the crisis at hand, they should be used. No law written in 1878 to prevent former Union soldiers from mistreating former Confederates should stand in their way.
If a disaster is so massive that both active-duty and Guard units are needed, we should have that option as well—without having to proscribe the active-duty forces from carrying out law enforcement tasks or playing games deputizing active-duty forces as Guardsmen.
Revising posse comitatus is hardly the equivalent of revising the Constitution. Indeed, it has happened before, and there are special circumstances for which it no longer applies. In the event of insurrection, of crimes involving nuclear materials or of emergencies involving chemical arms or biological pathogens, troops under presidential command are allowed to play robust law enforcement roles. These exemptions make sense, and they are specific enough to prevent any serious temptation of abuse. That would also be the case for an exemption relating to major catastrophe.
Numerous checks and balances would continue to constrain the president and troops serving under the commander in chief.
First, although it is admittedly imprecise, the use of the term “major national catastrophe” would set a very high threshold for when the exemption could be invoked. That the exemption was created shortly after Katrina would provide further context, helping guide future expectations for when a president could order troops to enforce U.S. law domestically.
Second, the president would remain accountable after invoking the exemption as well. To be sure, the accountability would be more indirect than for a police chief, who might be expected to resign after authorizing or condoning a misuse of force.
But the president’s position would be similar to that of governors—and the latter are already empowered to command National Guard forces in a manner not constricted by posse comitatus. Why do we fear the president’s hypothetical power more than that of the nation’s governors? Any president who abused his power over American citizens would suffer enormously, up to and including the threat of impeachment.
Third, the Uniform Code of Military Justice would continue to hold troops accountable for their actions. Wanton disregard for the law would be severely punishable, just as it is for police officers today. In fact, as a further means of ensuring accountability, military personnel conducting domestic law enforcement tasks could even be held accountable in civilian courts for any misdeeds committed against their fellow citizens.
As an added measure of insurance, special procedures could be written into the law such that Congress could be given explicit power to immediately review the president’s invocation of the major catastrophe exemption. By a simple majority vote, it could be authorized to revoke that assumed power from the president. This would draw inspiration from the War Powers Act, but with a much more prompt power for Congress to overrule the executive branch.
The big problems in responding to Katrina admittedly were not due to posse comitatus per se. But future catastrophes could be different. Moreover, changing the law would send a message that presidents should be willing to step in sooner when there is no good alternative.
It is time to send that message and be better prepared for the next time, because the one thing about which we can be sure is that there will be a next time.