This opinion piece ran in the Hartford Courant on Sunday, July 28, 2002.
The Bush administration, having reduced the wall of separation between church and state, now proposes to break down that other wall that keeps soldiers out of law enforcement.
As part of their war on terrorism, Bush officials are calling upon Congress to relax or repeal the law that forbids the military to get involved in civilian law enforcement. Their target is the Posse Comitatus Act of 1878, which says, in effect, that soldiers cannot ride in posses or, more precisely, arrest and try civilians. The law was adopted to end military rule in the South and to prevent federal troops from suppressing labor unions or chasing criminals as they used to chase fugitive slaves.
The act expresses the long-held view that law enforcement is a civilian function, and largely local in nature. Federal troops should be used, as they have been since the 1790s, mainly to put down riots that police and state militias cannot handle.
The law also reflects the founders' anger at the militarization of colonial government. That was a major grievance in our Declaration of Independence and inspired several constitutional provisions, including the Second Amendment, which secures the right to bear arms as part of a state militia, and the Third Amendment, which prohibits the quartering of troops in private homes in times of peace.
All this seems like arcane history to the Bush administration, which would rather use soldiers for homeland security than fund civilian law enforcement adequately. When money and personnel are wanted to guard the Mexican border, spy on the civil-rights movement, chase drug smugglers in the Caribbean or guard airports against terrorists, our well-funded, well-staffed military is always a tempting resource to raid.
Quick fixes of this sort help politicians address crises without seeming to raise taxes. The long-term damage that such raids do to civil liberties, military readiness and effective law enforcement are for somebody else to worry about. The important thing is to appear to be doing something, and doing it fast.
Some administration officials want to involve the Army's Northern Command in law enforcement, apparently with no legal impediment to spying on, arresting, incarcerating and maybe even executing alleged terrorists. By associating these functions with the military, "war" and "intelligence," they hope to evade restrictions imposed by the Bill of Rights and the federal rules of evidence.
The militarization of American government has had a long and sorry history.
During the Civil War, Secretary of State William Seward boasted that he could ring a bell on his desk and order the indefinite detention of anyone in the United States. When military commissions went further and condemned civilians to death, the Supreme Court put its foot down, ruling, in Ex parte Milligan, that soldiers can detain people within a war zone, but cannot interfere with law enforcement so long as the civilian courts are functioning. The justices also held that civilians seized by the military have the right to ask a federal court to examine the legality of their detention (through a habeas corpus petition) and, if necessary, order their release.
Last fall, the president attacked this basic principle. He claimed that he had the power, as our commander in a pseudo-war, to detain alleged terrorists indefinitely, try them before military tribunals and execute them - all without following the Constitution or the federal rules of evidence, or opening their convictions to judicial review.
This breathtaking assertion of military supremacy is authorized, his lawyers claimed, by a couple of World War II cases that allowed military commissions to try enemy soldiers, in time of declared war, for operating behind our lines in civilian clothes (Ex parte Quirin) or committing war crimes (In re Yamashita). The war on terrorism, they say, has erased the distinction between civilians and soldiers. It has also abolished the distinction between declared and undeclared wars, and transformed the United States into a combat zone where the Constitution may be disregarded by soldiers in pursuit of terrorists.
In short, by labeling a civilian a terrorist (or enemy combatant), the government can arrest him in Chicago (like Jose Padilla, who dreamed of making a "dirty bomb"), hustle him off to a military jail in South Carolina (far from his civilian lawyer), and keep him there forever without trial. Or it can ship him off to our naval base in Cuba, convene a kangaroo court and send him to the gallows.
Wartime leaders always violate civil liberties, because they
want to detain suspects indefinitely and perhaps kill a few.
Abraham Lincoln detained about 13,000 civilians without trial, most in military prisons, until they swore loyalty oaths to the Union. Franklin Roosevelt herded 110,000 persons of Japanese ancestry into military prisons for the duration of World War II. Lincoln's detentions might be excused so long as Gen. Robert Lee's army threatened the nation's capital; that was a war zone. But Roosevelt's "internment" of Japanese Americans was a racial outrage, for which Congress eventually apologized and paid reparations.
Bush's militarization of law enforcement may seem minor by comparison, but it could easily escalate in the wake of another terrorist attack, especially if Congress repeals the Posse Comitatus Act.
If it does, the public is not likely to object. Americans sing about the "land of the free and the home of the brave," but most are too fearful for their own security to stand up for the rights of alleged terrorists. They will not care much who makes the arrest, runs the prison or carries out the execution, so long as members of their crowd are not targeted. Latin words like habeas corpus and posse comitatus mean nothing to most voters, who slept through history in high school.
Bush's people know this, and are thus emboldened to overstate the military's authority and breach what is left of the wall between civil and military functions.
The question is: Will wiser heads prevail?
Christopher H. Pyle teaches constitutional law and civil liberties at Mount Holyoke College in South Hadley, Mass. He is the author of "Military Surveillance of Civilian Politics, 1967-1970" and co-author of "The President, Congress, and the Constitution."