The Invisible Battle Over Posse Comitatus

My late friend and mentor I.F. Stone spent his career devouring public documents—the congressional record, government reports, debates, meetings—to get all of the news his more consensus-minded colleagues found of little import.

If Izzy was alive today, he might have spent some time with Section 1076 of the John Warner National Defense Authorization Act for Fiscal Year 2007. And knowing Izzy, he would have paused just a few paragraphs into the $500 billion, 591-page bill as he noticed that it happen to undermine a centuries-old tenet of American law: the Posse Comitatus Act of 1878, which restricts the president’s ability to deploy the Army inside the United States.

Before the bill passed, the president could deploy troops inside the United States only if he invoked the Insurrection Act of 1807, which allows for deployment only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The new law expands the list to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition”—and such a “condition” is not defined or limited.

Lo and behold, President Bush has done just this, deploying an entire brigade from Iraq for domestic activities inside the United States. The 3rd Infantry Division’s 1st Brigade Combat Team has, since October 1st, been under the day-to-day control of U.S. Army North, the Army service component of Northern Command, as an on-call federal response force. Yet the mainstream media has raised nary an eyebrow at this striking expansion of presidential power taken in defiance of centuries of legal precedent—yet another in a series so large as to defy calculation.

Jeff Stein of Congressional Quarterly is perhaps the only reporter who even noticed the language in the fall of 2006, and virtually no other mainstream media outlet even mentioned the action. Even more surprising, a pitched battle erupted in Congress over just this issue, and lasted over a year. And still, we’ve seen no coverage.

Alarm bells were first sounded in a 2006 letter sent by the National Governor’s Association—which at the time included 22 Republicans—to the Republican chairs and ranking Democrats on the House and Senate Armed Services committees. The letter objected to the changes, which shifted authority from state governors and their local National Guard units to the president.

Receiving no reply, the governors sent an additional set of letters on August 6, 2006 to Sens. Bill Frist (R-TN) and Harry Reid (D-NV), then Speaker of the House J. Dennis Hastert (R-IL), and his Democratic opposite, Nancy Pelosi of California. After again receiving no reply, the NGA sent another letter to the congressional party leaders, as well as to then Defense Secretary Donald H. Rumsfeld. And during this period, Lexis/Nexis turns up only one story about the issue in any major American newspaper or wire service—an editorial in the St. Paul Pioneer Press on page 8 of the local section.

Sen. Patrick Leahy (D-VT) joined the chorus on Sept. 29, 2006, entering remarks into the Congressional Record. He explained that the new law “subverts solid, longstanding posse comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the president to declare martial law. The changes to the Insurrection Act will allow the president to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor.”

And still not a word from the mainstream media. A Lexis/Nexis search of all major newspapers for a week following Leahy’s remarks turns up no references to either “Insurrection Act” or “posse comitatus.”

The fight dragged on in Congress, and Leahy and Sen. Kit Bond (R-MO) finally passed a bill in January 2008 that re-toughened the Insurrection Act, reversing the earlier changes. But President Bush, when signing the bill, attached a signing statement essentially exempting himself from being governed by the restrictions.

The issue was fought out between two prominent senators, the president of the United States, and every governor in America. Yet it still got virtually no mainstream media attention. For more than a year after Leahy warned of the changes in September 2006 and battled the White House, through the January 2008 bill and Bush’s signing statement, not one story appeared about the issue on any mainstream broadcast news outlet—not NBC, CBS, ABC, CNN, Fox News, or MSNBC.

The implications of the mainstream media’s blind eye toward the struggle to redefine posse comitatus are not yet clear, but at the very least a disturbing precedent has been set. Some critics have expressed more ominous fears. Naomi Wolf worries that the potential deployment of an Army brigade inside the United States “puts teeth” into threats of martial law, and notes that Rep. Brad Sherman of California said on C-Span that, “a few members were even told that there would be martial law in America if we voted no [on the recent bailout bill].”

Glenn Greenwald, on the other hand, believes that “[t]here’s no need to start manufacturing all sorts of scare scenarios about Bush canceling elections or the imminent declaration of martial law or anything of that sort” since a single brigade is clearly insufficient to accomplish any of that, and the deployments probably wouldn’t be announced as they have been if there were indeed sinister plans. Greenwald is probably right here, as he is when he cautions: “[T]he deployment is a very dangerous precedent, quite possibly illegal, and a radical abandonment of an important democratic safeguard. As always with first steps of this sort, the danger lies in how the power can be abused in the future.” But one cannot be sure.

The one indisputable fact about the Bush administration is that its contempt for the Constitution is all but impossible to overestimate. A government that would deliberately lie to lead a nation into war, set up secret torture prisons, illegally wiretap American citizens, and then threaten the journalists who reveal these facts with jail, is certainly capable of using a military brigade at home, should it decide that its own definition of a threat has been met. Eternal vigilance is the price of liberty, but how can citizens voluntarily pay this price when the media upon whom they depend has proven AWOL on its most sacred constitutional charge?

Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College, and a professor of journalism at the CUNY Graduate School of Journalism. His blog, “Altercation,” appears at His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America, was recently published by Viking.

George Zornick is a freelance writer in New York.