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One Step Closer to a Police State

Placing National Guard troops on the border could be a violation of the Posse Comitatus Act. And that's just fine with the Bush administration.
President Bush's plan to deploy 6,000 National Guard troops to the Mexican border, widely seen as a political gambit, is coming under fire from both left and right.

It's likely that the move is a violation of the Posse Comitatus Act, a law established after the Civil War that prohibits the use of U.S. troops for domestic law enforcement. Passed in 1878 to prohibit federal troops from running elections in the former confederate states, it is considered a bulwark against the development of a police state.

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.

The ACLU sent a letter to the administration warning that turning immigration "into another military operation is not the answer," adding that it "violates the spirit of the Posse Comitatus Act." The libertarian Cato Institute agreed, writing that "the same training that makes U.S. soldiers outstanding warriors makes them extremely dangerous as cops." Larry Korb, an assistant secretary of defense under Ronald Reagan, said that the military "is trained to vaporize, not Mirandize."

In 1997, a Marine corporal deployed in the border area shot and killed Esequiel Hernandez, an 18-year-old goat herder. The incident led to a congressional review that criticized the Justice Department's handling of the case and ended the Marines' involvement in policing the border.

But while some conservatives are joining civil liberties groups in expressing concern over the deployment, the Republican leadership is reportedly pursuing another course: rolling back the protections of Posse Comitatus once and for all.

Ray McGovern, a 27-year veteran of the CIA who maintains close connections in the national security community, reports that, according to "a credible source on the Hill," the Senate "is moving to amend [or] repeal the Posse Comitatus Act, ostensibly to allow greater options for National Guard troops on the border. The move would remove National Guardsmen "from governors' authority" and place them "under the president."

The move comes in the context of an administration that has consistently expressed disdain for Posse Comitatus, and the constraint it puts on the use of troops in domestic actions. As James Bovard reported for AlterNet in 2004:

From its support of the Total Information Awareness surveillance vacuum cleaner, to its use of Pentagon spy planes during the Washington-area sniper shootings in late 2002, to its attempt to empower military officials to seize Americans' financial and other private information without a warrant, the Bush administration gives grave cause for concern about the growing role of the armed forces in our daily life.

As far back as 2002, the president issued a national security plan calling for a "review" of Posse Comitatus. Gen. Ralph Eberhart, who headed the Northern Command said that he "welcomed" changes in the law if necessary. "My view has been that Posse Comitatus will constantly be under review as we mature this command," he told the New York Times.

In the wake of Hurricane Katrina, the calls for using troops in federal disaster relief grew. In September of last year, then-Pentagon spokesman Lawrence Di Rita called the Posse Comitatus Act "very archaic," and said that it hampered disaster response. Bush echoed that sentiment two weeks later, saying he wanted "a robust discussion about the best way for the federal government, in certain extreme circumstances, to be able to rally assets for the good of the people." A week later, Bush called for the possible use of federal troops to respond to a bird flu outbreak, saying "I think the president ought to have all options on the table."

But as William Arkin, military analyst for the Washington Post noted, there's no reason in the world to modify or repeal Posse Comitatus to respond to disasters:

Nothing in law prevents the president from employing the military in a Katrina-like emergency if state and local government really breaks down. In fact, the 130-year-old Posse Comitatus Act more symbolizes the military's subordination to civil authority than it actually restricts what the military can do.

Arkin warned that "Donald Rumsfeld and his ever-growing industry of military complexes ... seem to be intentionally badmouthing Posse Comitatus ... in order to earn themselves greater operational flexibility in the United States."

He also reported on a plan developed under Rumsfeld that predicted "a scenario in which the Defense Department would have to take 'the lead' from ... civil agencies, and the states, that is, to act without civil authority." He added: "I think we call that martial law."

And the military is not leaving domestic surveillance up to the NSA. Last month, Robert Dreyfus, writing in Rolling Stone detailed how Bush, "operating in secret" soon after Sept. 11, established the Counterintelligence Field Activity agency (CIFA), and "in a move that received little public attention," charged it "with consolidating all Pentagon intelligence."

Last year, a commission appointed by Bush urged that CIFA be empowered to collect and analyze intelligence "both inside and outside the United States." Dreyfus says that the Pentagon "is systematically gathering and analyzing intelligence on American citizens at home" and cites several examples of the new agency spying on antiwar protesters.

After it was revealed that a new intelligence unit in the California National Guard was spying on the Raging Grannies, a group that organized a Mother's Day protest against the war, an outraged California state senator, Joe Dunn, called for the Guard's intelligence unit to be dismantled, saying: "Our fear is that this was part of a federally sponsored effort to set up domestic surveillance programs in a way that would circumvent the Posse Comitatus Act."

The danger is that a president who even conservatives concede has consolidated more power in the White House than any administration since Lincoln's, and who has little faith in the rest of the government will lean more heavily on the military than he already does. Add to that this administration's well-known contempt for dissent, and there's a real potential for slipping into a full-blown police state.

Joshua Holland is an AlterNet staff writer.

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