When I first heard about the President's idea to put National Guard troops on the border of Mexico, I wondered which of the Governor's of the border states had requested these troops for help and added security, which would be the only way that the troops could legally be deployed. Turns out there were none. Which means that the President is once again adopting a policy that violates the laws of the land.
Update: The author would like to extended his sincerest apologies to Mr. Laurence Hayes, who was the source of the link of the AlterNet article. The text in the paragraph below has been altered to correct this error.You know you're in trouble when the ACLU and the Cato Institute agree on something. As reported in this
AlterNet article forwarded to me by Larry:
A central issue of Bush's plan is that the troops would be under federal authority. One of the exceptions built into the Posse Comitatus Act is that troops may be deployed to support law enforcement agencies, but with the exception of insurrections and riots, nuclear attack or interdiction of drug smuggling (when working directly with law enforcement agencies), they must be under the authority of a state governor.
Which is all well and good, except for the fact that no governor seems to have come forward and said that they would take these troops on in a law enforcement role. From the
Cato Institute letter linked to by the AlerNet article comes a good example of why this should be the case:
Because of the restrictions imposed by the Posse Comitatus Act, the federal law that proscribes the military from "executing the laws," the Marines who killed Hernandez operated under rules of engagement that prevented them from arresting or otherwise directly engaging civilians. Nonetheless, according to a senior FBI agent involved with the case, "The Marines perceived a target-practicing shot as a threat to their safety... From that point, their training and instincts took over to neutralize a threat." The camouflaged Marines tailed Hernandez for 20 minutes, and failed to identify themselves or try to defuse the situation. When Hernandez raised his rifle again, a Marine shot him, and let him bleed to death without attempting to administer first aid.
To be fair to the President, this is one time where's merely following a tradition established by his predecessors. A brief timeline of uses of the National Guard and uniformed Armed Forces can be found
in this article written by an historian after the FEMA failures post-Katrina led to a discussion of turning over disaster response to the Military:
The Posse Comitatus law was carefully observed for nearly 80 years, but in 1957 President Eisenhower sent the military to Little Rock, Ark., to quell anti-integration protests, and President Kennedy sent troops to Mississippi and Alabama in the 1960s. In the 1980s and 1990s the erosion of the restrictions on the use of the military accelerated. Under President Reagan, Congress authorized the use of the military's air and sea power in efforts to control drug smuggling. The Coast Guard served aboard Navy ships to handle the actual boarding and arrest, while the Navy provided intelligence, surveillance and other facilities.
The military later became involved in immigration control, tariff enforcement, civil disturbance riot control, national disasters and crowd control, as in the deployment of 10,000 troops to the 1996 Atlanta Olympics. Coincidentally, perhaps, public esteem for the military rose from a mid-70s low of 25 percent to a peak of 75 percent in 2000. Even after the prison scandals at Abu Ghraib and elsewhere, the military remained in 2005 the most respected institution in the United States.
It is hard to argue that the Executive branches expansion on the Posse Comitatus law during the 50's and 60's were not justified. But as citizens, we also need to recognize that the precedents set during those tumultuous years of our nation's history are direct ancestors to the policies of this administration. We cannot call out Donald Rumsfeld for wanting to push an amendment through to nullify aspects of the Posse Comitatus act now, when we would have supported Eisenhower and Kennedy (and some even Reagan) in their stretching of the law to it's breaking point.
As I said in my last posting, the world is watching our nation struggle through these difficult years since September 11th. Given the global audience, it is far from enough for we the people who disagree with this action to shake our heads and say "there goes Mr. Bush again, flaunting Presidential power". Instead we need to prepare answers to those would would say "what would you do instead".
So, the
ACLU has made their statement:
"Turning immigration enforcement policy into another military operation is not the answer. The president’s proposed deployment of National Guard troops violates the spirit of the Posse Comitatus Act, which prohibits the military from getting into the business of civilian law enforcement.
They have clearly stated what they believe is the wrong answer to the question of border security. What then is the right answer? Going back to the Cato Institute, we find that they have proposed that the answer to border security is to give the current processes more time to take hold:
Both the INS and the Border Patrol are getting a half a billion dollar infusion of new resources, and rapidly hiring new agents. If still more border patrol personnel are needed, they should be hired. But border security can be provided without eroding America's tradition of civil-military separation.
While I find myself agreeing with this in principle, the reality of the situation is that the INS is now a part of the Department of Homeland Security, whose failures to help keep our Homeland safe are what prompted many of these discussions of supplementing law enforcement with the military in the first place.
[But that's really a digression for another day--Ed.] But the bottom line is to maintain the rule of law in our nation, we need to distance our federal policies from those that resemble martial law. Period.
And the idea that we can follow the historic example of
China, and the more modern example of
Israel and unilaterally build a wall seems just plain wrongheaded also. I do find some compelling ideas in
this commentary on the subject, but I think Mr. Sullivan is being naive.
I am interested in what you all think, so please use the comments section to start a dialogue on this issue.