There's an interesting discussion of posse comitatus going on at Armchair Generalist and Lawyers, Guns, and Money. I've been chewing on the following excerpt from AG, and I just don't agree with the conclusion:
Folks, this administration is nearly over. With luck and hope, we won't see a third term of the Bush administration, and perhaps (maybe I'm being overly optimistic) the general public and the Democrats in particular will be better positioned in the future to stop egresses such as those we've seen. Let's not discount the advantages of having active duty military forces augmenting the federal, state, and local emergency responder community. Let's not view our military forces as some kind of Hollywood heavy-handed thugs - they're good people, just like us.
While I take the Constitutional concerns very seriously, there are also eminently practical reasons for keeping the US Army (and the other branches, for that matter) limited to missions outside US borders:
- Overstretching the military's capabilities. The US military has enough to do already. During the inevitable retrenching period to come, the DoD has to focus on increasing readiness and recruitment. We should be asking the military to be better prepared for its core missions, not to be responsible for more missions.
- Overstretching the military's prestige. During the last decade, many Americans have spoken about the military as if they were frighteningly omnicapable. If you want something done right--intelligence gathering, the political side of counterinsurgency, disaster relief--give it to the armed forces. Of course, the US military is extraordinarily skilled at what they do, fighting (or threatening to fight) particular kinds of conflicts. That's why the US public gives the military high marks, which may be at risk if Americans see the armed forces fumbling domestic missions for which they are not trained, equipped, or otherwise prepared.
- Continued erosion of federalism. Jason at AG thinks it's a good idea for the Army to supplement state, county, and city emergency responders. However, how many Americans even know what these lower levels of government can do? For that matter, how many Americans can name their mayor, state representatives, or district attorney? One of the themes of American politics for the next several years will be, "The federal government has its hands full, so what can the other levels of government do?"
- Confused lines of accountability. Another big theme will be accountability, for which we've all grown nostalgic in its absence. Introducing the US Army into situations for which state and local authorities should be accountable (and in operational control, in many cases) only muddies these waters further.
- The transparency of the US military. By necessity, the DoD is secretive with basic details--who's doing what, where they are, how much money is allocated to them--than their partners in domestic projects. One complaint (among many) about the Army Corps of Engineers' role before and after Katrina was the occasional lack of transparency into their organzation. How much worse will it be when you involve other parts of the military that, unlike the ACE, aren't already involved in domestic civil projects?
And, of course, there are all those Constitutional and legal problems, particularly with the weakening of privacy protections, habeas corpus, and other basic principles that Bush and Cheney attacked with a meat cleaver. It's not too hard to imagine scenarios when these concerns become all too real. Should Army units deployed to a major city during a riot have the right to indefinitely detain people? Should troops during a blackout be free to eavesdrop on cell phone conversations for any reason, such as catching looters? And let's not forget the percentage of the US military that is now privatized: should posse comitatus exemptions extend to them?
It's wrong to wave aside these concerns with straw man arguments about "Hollywood heavy-handed thugs." We might also look at some of the debates about regulars and militias during our country's early history as something more than quaint and antiquated. Many of the Founding Father's concerns are still valid.