The enemy within
Posted by metaphorical on 23 February 2007
Has the Bush administration been secretly making it easier for militias to take over the streets of our cities? The NY Times thinks so. So do I, but not in the way that the newspaper fears. In fact, the Times’s concern has already been refuted by a well-respected law professor. My concern has to do with the fact that the Times’s worst fears seem to have already been realized—posses reportedly patrolled the flooded streets of New Orleans after Katrina back in 2005 and shot at people.
A Times editorial earlier this week raised the concern that the Bush administration had, back in October, passed yet another of its laws “in the dead of night” that “strike to the heart of American democracy,” this one making it “easier for a president to override local control of law enforcement and declare martial law.”
The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.
The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”
There are two things a bit odd about this editorial. First, nothing has changed in the four months since this October 2006 law. Second, a rather thorough-going refutation of exactly the view that the Times expresses was made—also back in October —by Michael Froomkin, a professor at the University of Miami School of Law. In a blog posting that was widely circulated at the time, Froomkin first quoted the new law:
(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
and then went on to show that it changes existing law very little:
But here’s the thing: the section quoted above, the vaguest and broadest part of this statute, the very part that has some folks worrying out loud about martial law, is pretty much the same as the old language, which allowed the President to call out the troops to,
suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
Froomkin’s conclusion is that the if the new law is problematic, so too was the old one—and it has been for a very long time.
Laws like this are always troubling because there is no practical way to challenge their application. Unless it were willing to strike down the statute as a standardless delegation — a nearly moribund doctrine — it is very hard to see a court telling the President that, say, the chaos in New Orleans after the flood, or even the limited violence in Florida in 2000 when GOP operatives attacked the ballot counters, didn’t rise to a level that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The courts are going to label that a political question, or find some other excuse for the courts to duck the matter.
But while this sort of executive discretion is always a problem for democratic rule, as I hope I’ve shown by juxtaposing the old language and the new it’s not a new problem, not at all.
I assume Froomkin is right about this; he’s the guy who’s paid to analyze laws; I have enough trouble just abiding by all of them. What’s disturbing is that the Times doesn’t even take a sentence to answer this widely-known refutatation. That’s not the way a public debate is supposed to be done, Times Op-Ed people. If you didn’t know about Froomkin, you didn’t do any research. If you did, well, that’s just intellectually dishonest.
But what’s even more disturbing is that both the Times and Froomkin—who recently reposted his refutation to Dave Farber’s influential Interesting People mailing list when the Times’s editorial was cited there—have ignored the fact that the Bush administration has already figured out a way to get militias doing what the Times fears, in a way that completely bypasses the old posse comitatus laws, the new one, and, probably, any possible one.
It’s pretty well known that we have private militia corporations—firms like Blackwater, DynCorp, and Intercon—and that we’ve been paying them premium wages to do soldiering in Iraq. But we did the same thing in Louisiana, which, despite its parishes and deference to the Napoleonic Code, is still one of the 50 United States.
Back on 22 September 2005, with the French Quarter still underwater and the X’s still not scrawled across homes and stores, Jeremy Scahill reported in The Nation that Blackwater and other private militia services brought their Uzis, flak jackets, and $350-a-day soldiers to New Orleans.
In an hourlong conversation I had with four Blackwater men, they characterized their work in New Orleans as “securing neighborhoods” and “confronting criminals.” They all carried automatic assault weapons and had guns strapped to their legs. Their flak jackets were covered with pouches for extra ammunition.
When asked what authority they were operating under, one guy said, “We’re on contract with the Department of Homeland Security.”
As business leaders and government officials talk openly of changing the demographics of what was one of the most culturally vibrant of America’s cities, mercenaries from companies like DynCorp, Intercon, American Security Group, Blackhawk, Wackenhut and an Israeli company called Instinctive Shooting International (ISI) are fanning out to guard private businesses and homes, as well as government projects and institutions. Within two weeks of the hurricane, the number of private security companies registered in Louisiana jumped from 185 to 235. Some, like Blackwater, are under federal contract. Others have been hired by the wealthy elite, like F. Patrick Quinn III, who brought in private security to guard his $3 million private estate and his luxury hotels, which are under consideration for a lucrative federal contract to house FEMA workers.
What exactly is the concern here? It’s not as if these private soldiers would train their weapons on U.S. citizens. Except that apparently that’s exactly what they did.
A possibly deadly incident involving Quinn’s hired guns underscores the dangers of private forces policing American streets. On his second night in New Orleans, Quinn’s security chief, Michael Montgomery, who said he worked for an Alabama company called Bodyguard and Tactical Security (BATS), was with a heavily armed security detail en route to pick up one of Quinn’s associates and escort him through the chaotic city. Montgomery told me they came under fire from “black gangbangers” on an overpass near the poor Ninth Ward neighborhood. “At the time, I was on the phone with my business partner,” he recalls. “I dropped the phone and returned fire.”
Montgomery says he and his men were armed with AR-15s and Glocks and that they unleashed a barrage of bullets in the general direction of the alleged shooters on the overpass. “After that, all I heard was moaning and screaming, and the shooting stopped. That was it. Enough said.”
Enough said indeed. Our all-consuming fears about terrorism have allowed a loophole in our laws large enough to fly a C-130 through it. The loophole has nothing to do with posses comitatus, and everything to do with a cabinet department that’s not shy about shuttling troops through it. If the Times wants to worry about dead-of-night attacks that strike to the heart of American democracy, it should turn its attention to this most perfect distillation of the military industrial complex, which now has an immune system that allows it to defend itself, even on supposedly sacrosanct American soil.