Mari | September 27, 2005 12:25 AM

Yeah .. Me, too. Thanks for sharing this. I'd not seen it.

mythago | September 27, 2005 12:52 AM

Great Chukulteh on a bicycle. Do you ever get the idea these people just sit around with their expensive Scotch and try to figure out new ways to gut the Constitution?

Chris Gabel | September 27, 2005 01:19 AM

(background mechanical breathing sounds....) I find your lack of faith disturbing......

Jim Cline | September 27, 2005 02:12 AM

Mythago: It isn't exactly constitutional law we're talking about - the Posse Comitatus Act was a law passed in the 1870s, I understand, as a reaction to the Reconstruction days after the Civil War. It has been amended, according to Fox News, about four times since then.

With that said, though, this may still be one of the worst ideas, yet, to come out of the Bush Administration...and I VOTED for the guy! Sigh...

Tom Nixon | September 27, 2005 02:33 AM

It's more than a little disturbing. Boots on the ground, military in the streets in the U.S. rings of darker, scarier times in Europe and elsewhere.

Soni | September 27, 2005 03:10 AM

Where are those armed dolphins when you need them?

Surely we can somehow lure our Feckless Leader into swimming out just past the sandbar, clear of any collateral targets, just long enough for Flipper to pull a Rambo and high-tail it back out to sea.

And all those dolphins look alike. So it's not like the Homeland Protection Racketeers, er, Secret Service could actually be able to find and torture, er, interrogate our names out of "guilty" critter.

I really need to brush up on my conversational echolocation.

Mark Ensley | September 27, 2005 03:42 AM

> Where are those armed dolphins when you need them?

By a strange "coincidence" those dolphins were set free during the wrath of Katrina:

"Armed and dangerous - Flipper the firing dolphin let loose by Katrina

"It may be the oddest tale to emerge from the aftermath of Hurricane Katrina. Armed dolphins, trained by the US military to shoot terrorists and pinpoint spies underwater, may be missing in the Gulf of Mexico."

http://observer.guardian.co.uk/international/story/0,6903,1577753,00.html

David Klecha | September 27, 2005 06:07 AM

What gets me, just a little bit, is that it seems so many of the people who have criticized Bush for things like the Patriot Act, erosions of freedoms, etc., are some of the same people who clamored for a hastier federal response to the disasters--the sort of thing the further chipping-away of posse comitatus is meant to address.

Most of the people I saw who said that, no, the military moved just fast enough, thanks, let's not encourage preemptive military action on American streets, tended toward right of the middle.

Weakening posse comitatus is a bad, bad thing, and I say that as a Marine.

Matt McIrvin | September 27, 2005 09:12 AM

The bastards are going to work every angle they can, even when their credibility is in the toilet.

David, I think that's exactly why Josh Marshall is so careful to make the distinction you're worried about. And I think you're both right.

Jim Winter | September 27, 2005 09:30 AM

OK, I have to say it.

This man is a fucktard. He makes Warren Harding look like FDR.

I'll send a royalty check to Tod Goldberg for that shortly.

Justin Anderson | September 27, 2005 11:07 AM

What really makes this all pointless is that the Posse Comitatus Act does not prevent the military from "com[ing] in with an overwhelming amount of resources and assets, to help stabilize the situation." It prevents the military's use to "execute the laws". All of the logistical support that the armed forces could provide are available without using troops to maintain law and order.
Major Craig T. Trebilcock wrote a fascinating article called "The Myth of Posse Comitatus" in the Journal of Homeland Security which pretty convincingly argues that with the weakening of the Act over the 20 years prior to his writing the Act is no longer a serious deterrent to true federal use of the military domestically. True, his main concern is for the use of active duty military to fight terrorist operations on American soil, but he notes:

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. In such an instance, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant exception to the Posse Comitatus Act’s underlying principle that the military is not a domestic police force auxiliary.

The "criteria of active versus passive" refers to recent interpretations that "passive" military activities such as "providing supplies, equipment, training, facilities, and certain types of intelligence information does not violate the act", while "[a]ctive participation in civilian law enforcement, such as making arrests, is deemed a violation of the act". Major Trebilcock seems to be a pretty sharp guy, especially when you consider the fact that he wrote the article in 2000.
More interesting reading is "Legal Aspects of Domestic Employment of the Army" by Colonel Thomas R. Lujan in Parameters (I haven't done more than skim anthing but the section titled "Disaster Relief Operations" -- which details the use of active duty troops in the wake of Hurricane Andrew in 1992 under the terms of the Stafford Act -- but the whole thing seems well worth reading).

mythago | September 27, 2005 11:52 AM

While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant exception to the Posse Comitatus Act’s underlying principle that the military is not a domestic police force auxiliary.

Can you see "conflict of laws that may eventually have to be resolved by a Supreme Court decision"?

It isn't exactly constitutional law we're talking about

Yeah, I know, but it's along the same lines, and they have screwed around with everything from habeas corpus to the First Amendment. Repeatedly.

Justin Anderson | September 27, 2005 12:06 PM

Can you see "conflict of laws that may eventually have to be resolved by a Supreme Court decision"?

I'm not entirely sure I get your point here, but I don't think that there is any true conflict between the Stafford and Posse Comitatus Acts at the statute level. Philosophically, yes, but I don't think they conflict legally (IANAL). When operating under the authority of the Stafford Act, military forces are still subject to the Posse Comitatus Act, therefore the distinction between active and passive activities (the interpretation of which governs the actions allowable under the Posse Comitatus Act -- and by extension, the Stafford Act). I don't see a conflict here.

Jim | September 27, 2005 01:12 PM

John, you're absolutely right, this is an abominable idea. I don't care who is president or what party is in the majority, this is a proposal that should sink without a trace immediately.

John Scalzi | September 27, 2005 01:36 PM

Agreed. It's not a partisan issue; I don't want anyone fiddling with Posse Comitatus.

Terry Karney | September 27, 2005 02:05 PM

That, alone, might make me a conscientous objector, and so fail to re-enlist, or weasel out of a contract.

TK

John H | September 27, 2005 03:13 PM

I guess it's just a matter of time before he marches the troops across the Rubicon, er, Potomac...

Kathryn Cramer | September 27, 2005 04:58 PM

Killing the Posse Comitatus Act would do nothing to speed relief, at least not with this administration, since the federal reaction time was much slower than the local response. My own first blog post on the seriousness of the situation is before Chertoff says he heard there was a problem. This is just desperate bottom-covering in freefall.

Melanie Fletcher | September 27, 2005 06:12 PM

Oh, it's all just part of Dubya's master plan for overhauling government bureaucracy, as commented upon in TIME:

"The Bush Administration didn't invent cronyism; John F. Kennedy turned the Justice Department over to his brother, while Bill Clinton gave his most ambitious domestic policy initiative to his wife. Jimmy Carter made his old friend Bert Lance his budget director, only to see him hauled in front of the Senate to answer questions on his past banking practices in Georgia, and George H.W. Bush deposited so many friends at the Commerce Department that the agency was known internally as "Bush Gardens." The difference is that this Bush Administration had a plan from day one for remaking the bureaucracy, and has done so with greater success."

Of course, one wonders what the bureaucracy is being remade into. A Yale frat house, pehaps?

Therese Norén | September 28, 2005 04:45 AM

After the Gothenburg riots, there was talk about giving up the Swedish equivalent law. It was a bad idea for us, and I'm sure it's a bad idea for you.

Stouthunter | October 1, 2005 12:27 AM

I can't help but see something Machiavellian in this. What is needed is to do the smart thing and take FEMA / disaster response out of DHS and make it independent. And then put a leader in there who at least understands what the Incident Command System is about and how to work with it. Oh but wait, that doesn't provide political capital does it? Silly me.