by Col. W. Patrick Lang (Ret.)

“Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor. “

This quotation is from a commentary on the “Posse Comitatus Act” of 1878.

Today I listened to a Washington press conference at which several senior speakers asserted that “Posse Comitatus” prevented the direct use of federal troops to assist law enforcement in the present emergency. Hokum!

I am not a lawyer, but it used to be, and maybe still is, that in just about every service school an Army officer attended, a sub-course was taught on military law as it applied to situations that one might encounter. I took that course a number of times beginning at the Infantry School and ending at the War College.

The conditions and hazards of a martial law declaration were always studied. Ironically, a case always considered was the decision of General Andrew Jackson to declare martial law in New Orleans in 1814.

“Posse Comitatus” was always a “biggy.” This was especially true in the ’60s. It was a sobering matter to consider this law in that context. The law was written in the aftermath of the end of the military occupation of the South, the end of the 1st Reconstruction period and the general amnesty of Confederates which happened in the Hayes Administration. This last gave the previously disenfranchised back the ability to hold office and vote.

As soon as the “Bourbons” got back into Congress in strength they did several things. One was to adjourn two years in a row without appropriating money to pay the officers of the Regular Army. Another was to pass a law that forbade the use of Federal troops to enforce civil law.

The intent was pretty clear in both cases. “Posse Comitatus” was intended to prevent further use of US troops in the South to enforce a return to Reconstruction. Over the years the law has become the subject of mythologizing and has become a symbol of civilian freedom from military domination. The law was never intended to apply to the militia of the states and for that reason does not apply to the National Guard which is the federally recognized and partially funded portion of each state’s militia.

The law has been “clarified” a number of times, most notably in the “Stafford Act”cited above.

It is simply not true that federal troops can not be used in the New Orleans and Mississippi situations. It is clear that the state governments are overwhelmed by the scope of the destruction and the consequent lack of the transportation and communications infrastructure.

What should be done is that President Bush should suggest to the governors of the two states that federal troops are available to assist them in re-gaining control of places like New Orleans. A request from each governor would then enable the use of real power, both humanitarian and disciplinary to restore the situation. The Bush Administration knows that this is true. Clearly, they are looking for a minimal involvement. Why? Is it because they have other priorities?

The decision not to return troops of the Louisiana National Guard from Iraq to help their friends and neighbors would point in that direction. Louisiana’s “Tigers” should be allowed to come home.

Pat Lang

Personal Blog: Sic Semper Tyrannis 2005 || Bio || CV

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